Steps lead down to a lower level under the rear elevation, where there is a rumpus room, hobby area, bar and powder room. There is also a terrace at this level located under that for the upper level. The ground floor area including garage and decking is some 250sq m, and the basement level provides a further 70sq m (not including deck area).

The southern half of the area between the two dwellings is to be paved, with the northern half shown as landscaped. A 1m wide landscaping strip is shown between the driveway and southern side boundary.

The dwelling has an articulated elevation facing Rockbeare Grove with a gabled roof incorporating the attic style first floor. The style was described by the permit applicant as "a modern architectural idiom" sympathetic to nearby buildings without being a Federation style replica.

The rear dwelling has a hipped roof form at the front with a flat rear roof. This would require variation of a restrictive covenant applying to the land and which constrains type of roofing material used but the current application does not seek to vary this covenant.

The subject site is located in a Residential C (Heidelberg Zone) at Clause 128 under the Banyule Planning Scheme. A permit is required for the proposed development under the provisions of this clause. Other provisions of this Scheme which are relevant include Clause 14.2 dealing with housing and urban consolidation, Clause 16 setting out matters for consideration of applications generally, and Clause 21 requiring the Good Design Guide for Medium Density Housing (the Guide) to be used in assessing such applications.

The subject land is also covered by the Rockbeare Park Environs Overlay (Clause 150), with the purpose of the Overlay appearing as follows:

"* To enhance and encourage the conservation and maintenance of the streamside environment as a visual, conservation, ecological and recreation resource.

* To encourage the restoration and regeneration of degraded areas of the streamside environment.

* To conserve water quality and watercourse capacity to enable appropriate beneficial land use and water based activities to be undertaken.

* To protect and enhance the skyline when viewed from the creek or adjacent open space.

* To encourage development in keeping with the character and appearance of the streamside environment.

* To protect the Rockbeare Park Environs and Darebin Parklands (including the Darebin Creek) from inappropriate siting or appearance of buildings and works that may adversely affect the creek environment as a visual, conservation, ecological and recreation resource."

The provisions of this clause specify that a permit is required for buildings and works where the floor area or total area of the works exceeds 170sq m, any part of the buildings or works is more than 6m above natural ground level directly beneath and for building and works more than 40m from the street frontage. There are also vegetation controls applying.

Under the new format Banyule Planning Scheme, the site is proposed to be included within a Residential 1 Zone and affected by an Environmental Significance Overlay (ESO), a Design and Development Overlay (DDO) and partly within a Land Subject to Inundation Overlay.

The thrust of the ESO controls is to protect areas along the Yarra and Plenty Rivers and Darebin Creek, and to enhance their conservation, ecological and recreational values. The objectives for Schedule 1 relating to the Darebin Parklands and Rockbeare Park Environs include ensuring that buildings and works are sited and designed to minimise visual impact on the adjoining parkland, do not impose on the landscape, are compatible with the character of the site, minimise the physical alteration of natural slopes and landscape generally and respect the neighbouring natural and built environment.

The requirement for a permit remains as previously ie. where the total floor area is in excess of 170sq m, any part of the building is more than 6m above ground level, and more than 40m from the street frontage.

The Council has also adopted the City of Banyule Neighbourhood Character Study which designates this site as within the Garden Suburb Precinct. The most important characteristic identified for the precinct is the inter-war and Edwardian housing styles set in established gardens. Guidelines for development in the precinct include ensuring new buildings and extensions are sympathetic to existing building form and style, do not dominate streetscape and/or buildings, maintaining consistency of front setbacks and minimising loss of front garden space and dominance of front car storage facilities.

The application was required to be advertised and was referred to the relevant referral authorities as well as the Darebin Creek Co-ordinating Committee. There were 19 objections received from surrounding residents. The Co-ordinator of the Darebin Creek Committee forwarded an objection, with no objection in principle from other referral authorities subject to a number of conditions. The Council resolved to refuse a permit for the grounds set out previously.

At the hearing written submissions were presented on behalf of the Council, a number of the objectors, individual objectors, the Darebin Creek Co-ordinating Committee and the permit applicant. Mr Verhoeven who represented a number of the objectors called evidence from Mr Lewis, an architect and acquaintance of the residents of the adjoining residence abutting the site to the north at No. 2 Rockbeare Grove, and from Mr Course, a local resident and founding member in 1973 of the Darebin Parklands Association and subsequently member of the Committee of Management. Mr D'Oliveyra for the permit applicant, called Mr Peter Roccella an architectural illustrator who had prepared a montage of the view of the proposed development as seen from the parklands.

The Tribunal has considered all submissions and supporting material which included an aerial photo of the site and surrounding area. Adjoining properties to the north and south of the site were inspected following the hearing and from these the site and location of the proposed development were viewed. The Tribunal also walked into the parklands from the path off Rockbeare Grove, and viewed the site and surrounding area from the ampitheatre and surrounding area.

The main issue raised by this proposal is the effect of this development when viewed from the nearby Darebin parklands. Other issues are neighbourhood character and impact on the adjoining neighbours.

The Council and other parties quoted at some length from a previous decision of the AAT the predecessor of this Tribunal, concerning a dual occupancy development at 14 Rockbeare Grove, (Appeal 1994/015541 D. Marsden Subdivision Services v City of Heidelberg and Others unreported). The Council in referring to reasons given by the Tribunal for rejecting that development said, and the Council's submission in that matter, said:

"The Tribunal's previous determination outlined the history of the area and the geography of the site and its surrounds to contextualise the proposed development in terms of the area's landscape sensitivity. The site subject to this appeal is included in the 10 allotments described in the following assessment.

"The appeal site is one of approximately 10 allotments on Rockbeare Grove which sit above the Darebin Parklands. These allotments all fall steeply to the Darebin Creek, thereby providing the backdrop to the park and the amphitheatre. From the park there is little evidence that dwellings exist in the area above. This is due to the siting of the dwellings on Rockbeare Grove and the relatively dense vegetation which exists on the steeply sloping land above, albeit land which is held in private ownership. The appeal site forms an important component of this backdrop." (Page 4)

The Responsible Authority's submission regarding the previous appeal stipulates that in relation to any of the 10 properties on the western side on Rockbeare Grove, that:

"Development of any of these properties would need to be sensitive to the parkland environment and would compromise (sic) neutral colours and landscaping to aid in screening any development from the Darebin Parklands." (Page 5)

The previous appeal made reference to an appeal heard by the Tribunal 10 years earlier (Begg v City of Camberwell (1984) 2 PABR 260) which concerned the development of land adjacent to a public park. With regard to the importance of protecting the intrinsic values of the park from inappropriate development, the determination states:

"Where an applicant proposes to develop land adjacent to publicly owned land reserved for the purpose of passive recreation, this division of the Board considers that the appropriate test to apply is to inquire whether the proposed development is of a nature and intensity which is sensitive to, and in harmony with, the concept and objectives for which the recreational land has been reserved."

In consideration of this, the Tribunal recommended, in relation to the previous appeal, that:

"The Tribunal has no doubt at all that the building would intrude upon the ambience of the park. The character of the amphitheatre depends in no small measure on the impression of seclusion and remoteness from the built environment. The only dwellings which are visible form the furthest reaches of the view-line and are protected by the vegetation on the steep bank which falls to the creek." (Page 9)

In the Tribunal's opinion, a strong case can be made for taking steps to prohibit any development below a point 45 metres from the Darebin Creek on any land affecting view-lines from the park. Once a precedent is set on that land, the Responsible Authority may well find difficulty in resisting similar applications nearby." (Page 10)"

The following passage is also of some relevance in the matter before me and where the Tribunal went on to say:

"It is difficult to escape the conclusion that the larger the building, and the further back it is located from the Rockbeare Grove frontage, the greater will be the intrusion. Landscaping may serve to screen the building after a long period of time but the impact of the proposed building would have severe short to medium term impact."

Mr D'Oliveyra argued that the site and nearby properties in Rockbeare Grove and Wynstay Crescent are visible only from a relatively small area of the parkland, the ampitheatre directly below the site, and more distantly from a clearing in the vicinity of the park administrative centre at the end of Separation Street. He acknowledged that the escarpment on this side of the creek is a prominent feature in the "vista" from the ampitheatre but described this as:

"A vista however, in which the ridgeline is dominated by housing and more particularly prominent red tiled roofs. The subject land and properties to the north are generally cleared of trees however, and developments on them are highly visible from the Park."

He went on to cite three such developments, the dual occupancy development which fronts Waverley Road abutting the western half of the site's northern boundary, a three storey attic style residence further north along Wynstay Crescent and a third dwelling further north in Abbottsford Grove.

These three developments are the most intrusive elements seen from the ampitheatre, the character of which I agree with the former Tribunal "depends in no small measure on the impression of seclusion and remoteness from the built environment". At present the cleared area of the subject land, the already constructed retaining wall and associated structures, particularly the formal balustrading, also contribute to this intrusion into the outlook from the ampitheatre.

However these developments only occur in the north-west quadrant of the 360o outlook from the ampitheatre, the subject site being at one end of that arc and the Abbottsford Grove dwelling at the other. Moreover, while intrusive they do not in any way "dominate" the vista as suggested by Mr D'Oliveyra. They rather punctuate it, serving as a reminder perhaps that this tranquil oasis of bushland, meandering creek, steep wooded escarpments along one side and creek floodplains along the other, is less than 10km from the centre of Melbourne.

The only other intrusions into the ampitheatre outlook are occasional glimpses of residential development to the south of the site, through the thickly treed slopes of the escarpment.

In the development before me the rear unit will be clearly visible as a two storey building bulk, sited close to the edge of the escarpment and extending virtually boundary to boundary on the site, being built to the southern side boundary with only a 1m setback from the northern boundary. The 1m setback would not allow for substantial canopy trees to be planted along this side of the building. Moreover there will be limited potential for landscaping between the rear elevation and the escarpment edge, due to the easement running across part of the site, the retaining walls and other works already undertaken in this area.

Mr D'Oliveyra said these works had been necessary to stabilise the site where it had been disturbed to clear the sewer line and to protect the escarpment edge and filled areas on the adjoining property to the south. However the formal nature of the walls, paths and balustrade construction is quite at odds with the informal landscaped character of the escarpment and adjoining parklands. This is a recreational area that has been developed to allow users to enjoy a sense of remoteness in this creek valley which is essentially enclosed by the escarpment and areas of natural bushland.

The retaining walls, pathways and other works have reduced the area available to plant large trees and other vegetation which would help screen the rear unit from the ampitheatre and other areas of the parklands.

The submission on behalf of the Darebin Creek Co-ordinating Committee pointed out that four existing trees retained beyond the proposed location of the rear unit are of such a structure and shape that they will not of themselves adequately screen the development. This was evident from the montage prepared by Mr Roccella as well as photographic evidence tendered, and confirmed on site inspection.

There was a good deal of discussion about the accuracy of the montage which showed the rear unit from an unspecified point in the ampitheatre, and whether it reflected the extent to which the front unit would be seen above the roof of the rear unit. However the montage shows the rear unit itself to be visually prominent and intrusive and any additional bulk presented by development higher up the site would only exacerbate this unacceptable aspect of the development.

Notwithstanding its lightweight concrete, steel and glass construction facing the parkland, the two storey nature of the rear unit just above the top of the escarpment and its 15m building length across the block will make it clearly visible and intrusive from the ampitheatre and surrounding parkland. It will be difficult to screen given the need for both canopy and lower growing species to break-up the height and bulk in view of the limited area available for such planting and the sloping nature of the terrain. By stepping the building down the slope, setting it further back from the escarpment edge and retaining wall structures, there would be more room for planting to effectively screen the development.

The Tribunal agrees with Mr Verhoeven that this proposal shows no regard for the aesthetic and screening value of landscaping and the site layout will need to be significantly adjusted to provide larger areas for re-vegetation. The fact is that the 840sq m which the applicant suggested was available to accommodate this development is compromised by both the location of the trunk sewer traversing the rear of this area and works already undertaken immediately beyond this.

Mr D'Oliveyra submitted the intrusive nature of adjoining development would allow this proposal to "fit within the skyline silhouette" framed by surrounding development. The Tribunal rejects any suggestions that inappropriate development should be allowed to set the precedent for further such development in such a sensitive location. The parkland developed around the Darebin Creek is in a particularly sensitive location, and as the Tribunal said in the earlier decision on No. 14 Rockbeare Grove, once a precedent is set to allow development that unduly intrudes on this parkland, the Responsible Authority may well have difficulty resisting similar applications.

For the above reasons I find that the Council's decision to refuse a permit should be affirmed. It is therefore not necessary to consider other issues raised by Council and objectors.

However I consider the proposal for a second crossover and driveway would not be in keeping with the existing character of Rockbeare Grove. This is a pleasant residential area, with generous and well vegetated front gardens and side setbacks. The immediate neighbourhood also offers glimpses of the parkland area to the west from vantage points along Rockbeare Grove, Waverley Road and Wynstay Crescent.

The dwellings and associated car parking on this side of Rockbeare Grove particularly, are generally well screened from view. In the revised plans for this development the double garage for the front unit has been set back about 1m from the front elevation of this unit, the floor level excavated some 1.5m below street level for the garage, and crossovers and driveways reduced in width. These changes are an improvement on the original proposal but the area of hard surface proposed and the lack of landscaping potential at the front of the site is still out of character in this immediate neighbourhood.

With respect to the loss of views enjoyed by neighbours to the south of the parkland and city skyline beyond, the Tribunal adopts the headnote to the decision of Tashounidis v Shire of Flinders 1988 which appears at 1 AATR 16 as follows:

"Although there was no right to a view at law, protection of an existing view was a relevant town planning consideration under the head of amenity. Thus later developments should be constrained in their height, size, orientation and location to give a measure of protection to the factors enjoyed by earlier buildings, especially light, sunlight, privacy and views. However the later development was also entitled to a reasonable enjoyment of the same factors and should not be so constrained by the presence of earlier dwellings to make its reasonable enjoyment of those factors virtually negligible if not impossible. In short the Tribunal was required to balance the reasonable desires of competing interests. Anthony & Anor v Manly Municipal Council 1985 ELR 0110; Determination of Planning Appeals Board in Appeal No. P86,1542 followed."

More sensitive siting of development on the subject land would not only allow views from the adjoining parkland to be protected, but would also allow more reasonable sharing of views from the site and nearby properties.

The garage wall of the rear unit is also located on the southern side boundary where it will adversely impact on the rear open space of the neighbours this side, and whose swimming pool is close to the boundary in this area.

In summary then the Tribunal finds that the proposal fails to satisfy provisions of the current and proposed Planning Scheme aimed at protecting the amenity of the adjoining parkland, maintaining the established neighbourhood character in which the site is located and protecting the amenity of neighbours.

The Council's decision is affirmed and no permit granted.