The order of the Tribunal is that the decision of the Responsible Authority is varied. In permit application 2004/0452 a permit is granted and directed to be issued for the land at 15 Wellington Street, Brighton. The permit will allow the construction of dwelling greater than 9 metres in height within a Design and Development Overlay (Schedule 2) in accordance with the endorsed plans and subject to the following conditions:

1

Before the development starts_,_ amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with Plans by DCF Design Group P/L Job No. 1213(386) Plan No.'s TP03, TP04, TP05, TP06, TP07, TP08, TP09, TP10 TP11 all Issue B and the landscape plan by Faulkner & Chapman dated 05/01/2005 tabled at the hearing of Application for Review 2652/2004 but modified to show:

(a)

Site level information demonstrating that the overall building height does not exceed a maximum of 10.085m. Such height is to be measured as the vertical distance between the ground level and finished roof height directly above;

(b)

deletion of the water feature near the northern boundary.

2

The development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

3

Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

4

The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

5

This permit will expire if one of the following circumstances applies:

(a)

The development is not started within two years of the date of this permit.

(b)

The development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

Mr Adrian Finanzio, Barrister. He called Ms Colleen Peterson, town planner to give evidence.

1

This is an application to review the decision of the Responsible Authority to grant a permit for the construction of a dwelling at 15 Wellington Street, Brighton. The application is made on the following grounds:

i

The proposal is not an architectural or urban design outcome that contributes positively to local urban character.

ii

The design, particularly the extent to which the proposal would exceed 9 metres in height, fails to minimise detrimental impact on neighbouring properties.

iii

The proposal does not satisfactorily respond to the design objectives, particularly having regard to the effect of the building height on the scale and character of the area.

2

The application for permit was lodged with the Council on 30 June 2004 and following notice procedures and the receipt of one objection from the Applicant for Review, a Notice of Decision to Grant a Permit (the NOD) was issued by the Council on 13 September 2004.

3

In the description of "What will the Permit Allow?", the NOD states:

Construction of a double storey dwelling in a Design Development Overlay Schedule 1 in accordance with the endorsed plans.

4

The site was thought by the permit applicant and the Council to be in Schedule 1 to the Overlay throughout the processing of the application including at the time of Council's decision.

5

In fact the site is actually within Schedule 2 to the overlay. From submissions made at the hearing and a review of relevant material it would seem that:

•

the site is located at the border of Schedule 1 and Schedule 2 of the Design and Development Overlay;

•

Amendment C2 to the Bayside Planning Scheme involved the realignment of properties in the Design and Development Overlay such that the subject site which was previously in Schedule 1 to the overlay is now included in Schedule 2. The gazettal of the amendment occurred on 18 March 2004;

•

The planning scheme maps relied upon by the permit applicant and the Council were either incorrectly interpreted or not updated to reflect the amendment.

6

In any event, at the hearing the parties accepted that the site was within the DDO2 when the permit application was made. Thus, the DDO2 was and still is clearly the trigger for the permission sought.

7

The witness statement of Ms Peterson was served on the parties on 10 January 2004, 2 days prior to the hearing. Although not complying with the 10 business day timeframe under Clause 4.2 of the Tribunal's Practice Note (No. 1), I admitted Ms Peterson's evidence in the absence of any objection by the parties.

8

The site is located on the north-west corner of Wellington and Sussex Streets, Brighton. The land is irregular in shape with a frontage of 27.9m to Wellington Street, sideage of 22.9m to Sussex Street and total site area of 784.96sq.m. The site is relatively flat with a fall of 0.4m from north to south. The land contains minimal vegetation although a semi-mature Copper Beech tree with a lop-sided canopy is located close to the northern boundary.

9

The site is developed with a single storey red-brick dwelling circa 1960's. Vehicle access is provided to the site from Wellington Street.

10

The abutting site to the east (No.17 Wellington Street) is developed with a large two-storey dwelling from the interwar period. A driveway is positioned along the boundary in common with the review site. The dwelling has a pitched roof and gable end facing the review site.

11

The Applicant for Review occupies the adjoining dwelling to the north (No. 30 Sussex Street). This dwelling has a two-storey form and is of cream brick construction built circa 1940's. A feature of this site is the dwelling's very open aspect to the street, being set within an attractive garden with low lying plants and shrubs, framed by a low brick fence along the frontage. The dwelling has a tiled pitch roof with a ridge height of around 8.5 metres. A ground floor addition in the form of a conservatory with a glazed roof is under construction on the east side of the dwelling. The addition is setback 1m from the common boundary.

12

A substantial 2-storey dwelling occupies land to the west, on the opposite corner of Sussex and Wellington Streets (No. 13 Wellington Street). The dwelling, of brown brick construction circa 1970's, has an overall height of around 9.2m to Sussex Street and 8.5m to Wellington Street.

13

The land on the opposite south side of Wellington Street at the corner of Sussex Street is developed with a single storey dwelling with a flat roof. The dwelling has a fairly low profile typical of this style from the 1960's. A high masonry fence of around 2m defines much of the site's frontages.

14

The neighbourhood more broadly is characterised by a range of housing styles representative of many eras - including the interwar period through to more recent styles. Building materials, finishes, fencing styles and roof forms vary quite considerably. Many dwellings are however quite grand in appearance.

15

This application is for a two-storey dwelling with a basement carpark for up to 5 cars. Vehicle access is to be from Wellington Street.

16

The dwelling is French Provincial in style with a wall height of 7.23m and overall height of 10.085m. Setbacks range from 6m to 14.7m from Wellington Street and 4.9m to Sussex Street. A portion of the dwelling is proposed along part of the east boundary thus abutting a garage on the adjoining property at No. 17 Wellington Street.

17

The dwelling is setback 4.625m and 8.5m from the northern boundary, due to the irregular alignment of this boundary. The upper level follows the footprint of the ground floor except along the east side where a setback of 3.98m from this boundary is proposed. A timber pergola is proposed between the dwelling's west side and Sussex Street boundary.

18

The dwelling is to be finished in a natural sand cement render (French grey) with a slate or slate look tile to the roof. Classical detailing to walls, windows and doors reminiscent of the style is proposed. A wrought iron and pier front fence 1.8m in height is proposed along Wellington Street and part of Sussex Street. A solid masonry fence with a height between 2.35m and 2.6m is proposed along the balance of Sussex Street.

19

The land is included in a Residential 1 zone and is affected by a Design and Development Overlay (DDO). Schedule 2 to the Overlay (Building Height Control - Inland Areas) applies in this instance.

20

A permit is not required to use or develop land for a single dwelling under the zone provisions.

21

Pursuant to Clause 43.02-2 of the DDO, a permit is required to:

• Construct a building or construct or carry out works. This does not apply:

•

If a schedule to this overlay specifically states that a permit is not required.

•

To the construction of an outdoor swimming pool associated with a dwelling unless

•

a specific requirement for this matter is specified in a schedule to this overlay.

• Construct a fence if specified in a schedule to this overlay.

22

Clause 2 of Schedule 2 to the overlay, states inter alia:

A permit is not required to construct a building or construct or carry out works for any of the following:

• A building with a building height of not more than 2 storeys and not more than:

•

9 metres, or

•

10 metres where the slope of the natural ground level at any cross section of the site of the building wider than 8 metres is 2.5 degrees or more.

Where building height is expressed in storeys, it excludes a basement as defined, but an attic, mezzanine and built over car parking area are each considered to be a storey.

23

As the dwelling has a height of more than 9m a planning permit is required. A permit is not required to construct a swimming pool or a fence under Schedule 2.

24

In terms of the operation of overlays, Clause 41 states that decision makers:

... must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the overlay and any of the other decision guidelines in Clause 65.

25

As well as implementing state and local policies, the purpose of the DDO is:

To identify areas which are affected by specific requirements relating to the design and built form of new development.

26

Decision guidelines under the DDO at Clause 43.02-5 state:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

•

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

•

The design objectives of the relevant schedule to this overlay.

•

The provisions of any relevant policies and urban design guidelines.

•

Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

•

Whether the design, form, layout, proportion and scale of any proposed buildings and works is compatible with the period, style, form, proportion, and scale of any identified heritage places surrounding the site.

•

Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

•

The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.

•

Whether subdivision will result in development which is not in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

•

Any other matters specified in a schedule to this overlay.

27

The decision guidelines in Schedule 2 that must be considered are:

•

The design objectives of this Schedule.

•

The neighbourhood and site description.

•

The design response.

•

The effect of the building height on the scale and character of the area.

•

Whether the building height exceeds the preferred building height of up to 2 storeys.

•

Whether the proposed siting, height, design, building setbacks and landscaping will be in keeping with the character of the area.

28

In relation to the first dot point, the design objectives of Schedule 2 are:

•

To achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.

•

To preserve the existing character and amenity of the areas as low rise (up to two storeys) suburban areas with a strong garden character.

•

To maintain the prevailing streetscape rhythm, building scale and height of neighbourhoods.

•

To maintain a strong landscape character with buildings set within vegetated surrounds.

29

Other Scheme provisions relevant to the consideration of this application within the State and Local Planning Policy Frameworks include Clause 11 (Introduction), Clause 19.03 (Design and Built Form) in the SPPF and Clause 21.05-3 (Housing - Objectives Strategies and Implementation) in the LPPF.

30

In relation to Clause 21.05-3, Objective 2 seeks:

To provide greater certainty to both residents and developers in relation to the preferred future character of residential areas and areas that require special treatment or greater protection.

Strategies

Strategies to achieve this objective include:

•

Apply the findings of the Urban Character Study to influence development and subdivision outcomes in the residential areas of the municipality.

•

Identify areas of significant urban character and environmental sensitivity which have limited capacity for higher density development.

31

The implementation of these strategies includes the application of the DDO "to facilitate the protection of coastal and residential environs". The Bayside Urban Character Report is a reference document and the site is included within Character Area C.

32

The decision guidelines set out in Clause 65 also require consideration such that a decision-maker must decide whether a proposal constitutes an acceptable outcome in terms of the decision guidelines.

33

The parties and the witness at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing and the policies, objectives and decision guidelines of the Scheme.

34

The two key issues for consideration are whether:

a

the development will make a positive contribution to neighbourhood character while minimising detrimental impacts on neighbouring properties;

b

the height of the dwelling is acceptable in the context of the neighbourhood character.

35

Before turning to these issues, it is necessary to comment on the Tribunal's exercise of discretion in dealing with the development's impact on neighbouring properties. Mr Pitt submitted that the excessive bulk, height and elevation above ground level "exacerbates levels of overlooking from first floor windows within 9 metres of the private secluded open space to the objector's premises".

36

In forming a view about the degree of weight which should be given to this (and any other) amenity impact, I am guided by the principles set out in National Trust of Australia (Vic.) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592; Salmal Constructions Pty Ltd v Richards (1998) 99 LGERA 423 and Shalit & Faine v Boroondara City Council and Anor [2002] VCAT 515 (12 June 2002); a decision upheld by the Supreme Court in Shalit and Faine v Jackson Clement Burrows [2002] VSC 528.

37

These authorities have established that a decision maker's ambit of discretion is confined to a consideration of those matters related directly to the permit trigger itself.

38

Applying the principles set out in these authorities, I find that the ambit of discretion in this case is confined to matters under the DDO. I have previously set out in full the purpose and decision guidelines of the DDO as well the design objectives and decision guidelines in Schedule 2. Having regard to these matters, I find that in essence, the DDO and Schedule 2 primarily require a consideration of built form and landscaping issues. Importantly, there is no reference to amenity impacts beyond those arising from a visual appraisal of development proposals and their relationship with neighbourhood character.

39

Consideration of relevant state and local policies, as appropriate and the decision guidelines at Clause 65 such that acceptable outcomes are achieved are of course relevant. However, adopting the principles established in the cases cited above, I find that my consideration of these policies and guidelines is similarly confined to an assessment of visual amenity impacts.

40

This approach is to be distinguished from applications for single dwellings located, for example, in a Residential 1 zone and a Heritage Overlay. The provisions of Clause 54 (ResCode) apply in such instances and encompass a detailed consideration of amenity impacts.

41

Consequently, in relation to direct amenity impacts such as overlooking, I find, as Senior Member Baird did in the Shalit case at para. 33 that:

... while the Applicants for Review may well have valid concerns in relation to the impact of the proposed development on their amenity ... there is clearly no basis within any of the relevant Scheme provisions to give any latitude to the Tribunal to take those direct amenity impacts into consideration. ...

42

It is within this context that I have based my findings.

Will the development make a positive contribution to neighbourhood character?

43

The Bayside Urban Character Report describes 'Character Area C', within which the site is situated, as follows:

Varying architectural styles from Victorian, Inter war and Post war, to modern on large lots. Buildings are generally of a larger scale with tall perimeter fences. Many of the older properties have large established gardens which dominate views over the fences and offer a `borrowed' landscape backdrop to the street and foreshore.

The area also presents a number of avenues of large street trees which respond to the scale of the homes and further the relationship of private gardens to the streetscape.

Key features of the area are the large scale of the built elements, set within large allotments with established gardens which both unify and separate dwellings in the streetscape and the relationship between the private gardens and the street trees.

44

I find from my inspection of the site and surrounding area that this description is fairly representative of those features which characterise the neighbourhood. Indeed, one of the most striking features is the lack of consistency in relation to architectural styles. A variety of building elements is therefore evident, including architectural adornments, external wall finishes, roof forms and fence designs.

45

The degree to which buildings are exposed when viewed from the public and private realm also varies. Fence treatments, the maturity of street trees and the style of planting within front yards and around properties, are key influences. Whilst landscaping rather than buildings has a strong presence in some instances, such as the eastern neighbouring property (No. 17 Wellington Street) there are numerous examples in the vicinity of the site where the opposite is true. This is the case, for example, in relation to the objector's property to the north whose garden is characterised by a low flowering plant theme rather than large canopy trees.

46

Conversely, those elements which I find offer some consistency are:

•

the substantial size of dwellings the majority which are 2-storey with overall heights in the range of 8m to 10m; and

•

the detached housing forms and spacing between buildings.

47

Put simply, large two-storey detached dwellings make a strong contribution to neighbourhood character.

48

In forming a view about the suitability of the architectural style proposed, I accept that development in the more immediate local neighbourhood better informs neighbourhood character considerations in this instance. I also find that the neighbourhood character (including building height) is influenced by development on the west side of Sussex Street, even though these properties are in Schedule 1 (Building Height Control - Coastal) to the DDO, as pointed out by Mr Pitt.

49

Under cross-examination, Ms Peterson conceded that the French Provincial style of architecture proposed would be the first of its kind within the local neighbourhood but not within Brighton more broadly.

50

However, in the absence of any prevalent dwelling style, I find no basis to reject the application on this ground.

51

The more important consideration in this instance is whether the proposed dwelling will respect and make a positive contribution to the neighbourhood character. In forming my view, I agree with and have adopted Mr Pitt's submission that neighbourhood character considerations are not just limited to the streetscape but involve an assessment of proposals 'in the round'. This includes the building's appearance from No. 30 Sussex Street.

52

There is no question that the dwelling is substantial in scale and will, as Ms Peterson suggested, sit proudly on this corner site. I find that although the upper level of the dwelling largely follows the footprint of the level below, there are a number of design features which offer relief and articulate the building form. These features include the:

•

use of decorative mouldings to windows and walls;

•

scale, proportions and placement of windows and doors;

•

delineation of the front entry using a single storey portico treatment;

•

use of juliette balconies to upper level windows;

•

provision of a pergola structure on the west side of the dwelling;

•

varying front fence design to Wellington and Sussex Streets; and

•

landscape treatment around the site.

53

In relation to the last dot point, a landscape plan was tabled at the hearing by Mr Finanzio. The plan includes a cypress hedge (to be clipped to 5m) along the northern boundary and Magnolia Grandiflora species (growing to a height of 7m to 9m) along Wellington Street. I find that this vegetation is commensurate with the style and scale of the building and will satisfactorily meet the outcomes sought under the provisions of the DDO and local policies. I am also satisfied with the setbacks provided for the reasonable growth of these plantings. Mr Finanzio agreed that the plan should form part of the permit which I will require.

54

I acknowledge Mr Pitt's suggestion that further discussion occur between his client and the permit applicant in relation to landscaping works along the north boundary, such as species selection. The parties agreed that such negotiations could occur without the need for a permit condition.

55

I find that the proposed front setbacks are acceptable and will provide a reasonable transition to the adjoining properties fronting Sussex and Wellington Streets, thus maintaining the prevailing streetscape rhythm.

56

I am therefore satisfied that, having regard to the neighbourhood character, the building will produce an acceptable outcome in terms of its appearance from the public and private realms.

57

Finally, it needs to be said that there are many areas in Bayside and indeed throughout Melbourne's suburbs where the design response would not be acceptable in neighbourhood character terms. However, for the reasons I have explained, the proposal in this particular context is acceptable.

Is the height of the building acceptable in context of Neighbourhood Character?

58

I agree with Mr Finanzio's submission that a reduction in building height such that it does not exceed 9m, is tantamount to a refusal of the permission sought. Having found that buildings nearby do have prevailing heights in the range of 8m to 10m, I find no basis to require a lowering of the building to 9m.

59

I accept that the dwelling with a height of up to 10.085 metres is however at the upper end of the scale. The question then arises as to whether the building should be lowered such that its height is greater than 9 metres but less than 10.08 metres.

60

This amounts to a reduction of height in the order of 1m. On balance, I find that a reduction in height of this magnitude is unlikely to bring about any appreciable change in the observer's experience of the building from either the public or private realm.

61

I also find that the height of the building whilst triggering the need for a permit, is only one design aspect to be tested against the neighbourhood character. As I have stated, the overall massing and proportions of the building, which whilst substantial, is acceptable and consistent with other dwellings in the neighbourhood. Fundamentally, the building continues to maintain the preferred building height of up to 2 storeys and will achieve an acceptable transition in height to its neighbours.

62

Mr Pitt questioned whether the overall building height was a maximum of 10.085m in the absence of more detailed site level information and the slight slope of the land by 0.4m. Given that building height is the permit trigger, I agree that this aspect of the plans requires clarification. Accordingly I will require a condition to the effect that the overall building height is not to exceed 10.085m supported by more detailed site level information.

63

The landscape plan does not include the water feature shown on the architectural plans adjacent to the northern boundary. Mr Finanzio indicated that this feature had been removed from the landscape plans to allow for continuous hedge planting along the north boundary. I acknowledge that a permit is not required for the water feature which may according to Mr Finanzio be relocated elsewhere on the site. I will however require the deletion of the water feature to ensure consistency between the two plans and to ensure planting can occur along the full length of this boundary.

64

For the reasons set out above, I will order that the decision of the Responsible Authority be varied.