1. After having considered the submissions, the key issues in this matter are:
   • What is the direction given by planning policy and the relevant zone and overlay controls for this site?
   • Is the proposed development respectful of neighbourhood character?
   • Would the proposed development cause unreasonable impacts on the amenity of neighbouring properties and the area generally?

1. It was contended on behalf of the applicants that the site is not suited to being redeveloped with 3 double storey dwellings and that a more suitable form of redevelopment would comprise two dwellings, preferably single storey.
2. Putting aside the form of development, the point to be made at the outset is that the site presents a redevelopment opportunity for some form of appropriately designed medium density housing.
3. Although not overly large and irregular, its area of about 610 square metres is sufficient to accommodate more than one dwelling and it has good proportions. The site also has the advantage of being located on a corner. This provides better opportunity than mid block properties for vehicle access. It can be obtained directly from either street without the need for a long driveway. This reduces the need for land area to be taken up by long driveways. The land is reasonably flat, vacant and there is no significant vegetation. There are no difficult or awkward easements to contend with.
4. Contextually, this site is also well located within an established urban area where all infrastructure services are available and it is within easy walking distance of the Highett Activity Centre shops and railway station.
5. This is a good site for redevelopment.

What is the direction given by planning policy and the relevant zone and overlay controls for this site?

1. Although the site is clearly a candidate for redevelopment, this does not mean that it is suited to any form of redevelopment. It is not a matter of "anything goes". The design response, particularly in terms of the intensity of development and its appropriateness having regard to neighbourhood character, needs to be assessed. This assessment cannot occur in a vacuum. Rather, it is necessary to take into account the direction given by policy, the purpose of the zone and the provisions of the overlay control that apply. The appropriateness or otherwise of the design response is guided by the direction given by policy and the controls.
2. State policies, at clauses 12.01 and 14.01, clearly encourage and support increased housing densities in locations that are within or around activity centres. This is particularly so with respect to those located on the principal public transport network. State policy would therefore support the more intensive redevelopment of this site given that it is located just 140 metres or so from the activity centre and railway station.
3. The MSS at clause 21.05 supports the provision of a wide range of housing types across the municipality. Specifically, the strategies of the MSS include promoting increased housing diversity in residential areas that are within convenient walking distance of public transport and activity centres. In this regard, under the Residential Framework Plan in this clause, the site is located in an area "for the promotion of increased Housing Diversity". Under the strategies for this clause it is envisaged that:

Such areas will accommodate a variety of medium density housing types and layouts at increased residential densities, responding to the established but evolving urban character.

1. The local policy at clause 22.17 specifically relates to the Highett Activity Centre. The policy builds on the policies set out in state policy and the MSS in terms of increasing housing diversity in and around the activity centre through, amongst other things, the implementation of Highett Activity Centre Structure Plan- May 2006; a reference document in the planning scheme. The objectives of the policy include:

To promote increased residential opportunities within the Activity Centre.

To establish a built form character that respects the existing character of the Activity Centre.

To recognise the character of Highett's established residential areas and manage change that responds to their character and proximity to public transport and activity centres.

1. Strategies set out in the policy to achieve these objectives include maximising development opportunities on vacant and underutilised land in response to urban quality, as well as proximity to public transport and activity centres; encouraging well designed medium density development in designated preferred medium density residential areas and promoting a diverse range of housing types and sizes within areas identified for increased residential and mixed use development.
2. Under the policy, the site is located in Precinct 2 which is the preferred medium density residential area. In addition to the general policies set out in the clause, in the preferred areas it is policy to support the development of contemporary medium density housing in the form of well designed apartment developments rather than villa unit and town house style developments, promote development with a maximum of three storeys on consolidated lots and to encourage the consolidation of lots.
3. I do not think that there can be any doubt that the policy frameworks of the planning scheme provide the clear message that the site is located in an area where an increase in the intensity of development to facilitate the provision of more housing is an outcome specifically sought by policy.
4. In relation to the controls themselves, the provision of housing at a range of densities is also envisaged by the purpose of the Residential 1 zone. The purpose of the zone is not simply to provide for single storey dwellings and dual occupancies.
5. More specifically, the provisions of the schedule 12 to the DDO apply to the Highett Activity Centre. The DDO, which is based on the Structure Plan, sets out objectives for this area as well as specific provisions for development within different parts of the activity centre. The objectives of the DDO12 area include:

To encourage apartment style residential development of up to three storeys in height on consolidated lots in residential areas close to the Highett Activity Centre.

To retain the amenity of existing low density residential development by ensuring that adequate side and rear setbacks are provided to taller buildings to allow screen planting and a landscape setting, and to prevent unreasonably overlooking, overshadowing and visual bulk.

1. Under the DDO12 area provisions, the maximum building height of lots under 1000 square metres is 2 storeys and 7.5 metres while 3 storey buildings up to 11 metres can be contemplated on sites that are greater than 1000 square metres.
2. It seems to me that the DDO12 provisions also send out a fairly clear message; that is, that development ranging in height from double to three storeys can be contemplated in this particular area. This message is clearly in line with and implements the direction given by policy which seeks to facilitate residential development at increased densities.
3. In my view, the proposed redevelopment of this site is clearly in line with the direction given by policy. As a matter of principle, I see no difficulty with the redevelopment of this site for three double storey dwellings. The increase in density is encouraged and supported in this location. The double storey height is in keeping with the development height envisaged for sites of this size in this part of the activity centre. The proposal is also in line with the purpose of the zone which includes to facilitate the implementation of policy and to provide for dwellings at a range of densities. What is also clear is that the site is located in a precinct where change is envisaged and encouraged. It is not an area where the "status quo" is envisaged. By necessity, that will translate into departures from the existing level of development intensity.

Is the proposed development respectful of neighbourhood character?

1. It was contended by Ms Coutts that the proposed development has not been designed to be respectful of the neighbourhood character as required by various objectives and standards at clause 55. This was particularly so with respect to matters such as the amount of landscaping to be provided; the contemporary nature of the design; the size of the proposed front setback and other details such as the height of the front fence. But it seems to me that the area of most concern to the applicants is the amount of development and the contemporary design of the buildings. In this regard, Ms Coutts presented a slide show which illustrated the nature of the dwellings on the locality, particularly in Aster Crescent, which by and large, include many bungalow style single storey homes from the interwar period. It was submitted that these homes display particular design detail such as pitched roofs, eaves, large setbacks low fences and consistency in building materials.
2. It is true that the proposal is different to many of the other buildings that exist in Aster Crescent. It is clearly more intense in terms of the level of development. However, because the proposed development is different to what exists, in terms of the intensity of development and its appearance does not necessarily mean that the outcome is unacceptable from a neighbourhood character viewpoint.
3. The assessment of whether a proposal has been designed to be respectful of the neighbourhood character, whether preferred or existing, is somewhat complex. As noted in by the tribunal in Sinn v Moira SC[1]:

.........Residential 1 zone, the policies at clause 16 and 21.04 and clauses 55 and 56 all emphasize the need for new development to respect neighbourhood character. That does not mean more of the same, nor does it preclude double storey dwellings, unit development or smaller lots.

1. Following on from this I refer to the comments in Iloray v Darebin CC[2] when the tribunal said:

If policy, the purpose of the zone and the objectives of clause 55 were calling for development that is more of the same, then they would say so. Rather, the notion of "respectful" development must embrace the need for change and diversity in the type of dwellings that are provided and an increase in the intensity of development in circumstances where this is encouraged by planning policy and the purpose of the zone.

1. It follows that a proper understanding of the policy context that applies is important in assessing the suitability or otherwise of the proposed development from a neighbourhood character viewpoint. As noted in the policy at clause 19.03, "development must take into account the natural, cultural and strategic context of its location". What this means is that the consideration of whether a particular design is appropriate will need to have regard to more than just what exists in the vicinity in a physical sense; rather, the strategic context and the direction given by policy and the provisions of the scheme also need to be taken into account.
2. For reasons set out earlier, there is no doubt that the policies, zone and overlay provisions that apply lead to the conclusion that this site is located in an area where an increase in the intensity of development is encouraged. This is not a site where the planning scheme would be directing a dual occupancy development comprising single storey dwellings to occur.
3. The physical context, which includes the nature of surrounding development, is also relevant. While Ms Coutts asserted that the proposal is inconsistent with dwellings and unit development in Aster Crescent, the neighbourhood context is wider than this. The site is on a corner with a frontage to Railway Parade. Development on Railway Parade opposite this site is comprised of double storey town house development. It is a form of development that is relatively contemporary in terms of its styling and more intense than what exists in Aster Crescent. Contextually the site is also located adjacent to unit developments to the north, on the opposite side of Aster Crescent, and to the east at No 4-6 Aster Crescent. The development to the north takes on some of the forms of interwar period dwellings; however, the units to the east are somewhat unremarkable, appearing to date from about the 1970s. There is variation in the styling of development in the immediate context of this site.
4. It also needs to be said that despite the existence of interwar period homes in the locality, it is not covered by heritage controls. Nor is it covered by the Neighbourhood Character Overlay, a statutory control that can be put in place in areas that have a defined special character to be protected.
5. Given this overall context, I conclude that there is scope to introduce onto this site a development which display contemporary architectural forms and styling such as that displayed by this proposal. I do not accept that for a development to be respectful, it must seek to replicate the features of other buildings or that attached forms are inappropriate.
6. I understand that under the council's neighbourhood character guidelines, the site is located in Area 6. This is a large area that partly covers both the area identified for "housing diversity" and "incremental change". The guidelines set out "typical characteristics" for the area. Some of the typical characteristics of this area include the nature of the subdivision pattern, modulated building footprints, most housing at single storey height, materials, and complex gabled roof forms. The proposal involves a departure from the exact detail of most of these items. However, I am unable to conclude that this warrants refusal.
7. The difficulty that I have with the guidelines is that they do not embrace the direction given by the policies within the scheme. For example, the guidelines provide a description of what generally exists; however, they do not seem to deal with how the more intense forms of residential development envisaged under policy for "preferred housing diversity areas" and the DDO12 provisions will be dealt with. This is important bearing in mind that the DDO12 provisions seek to facilitate 3 storey buildings, lot consolidation and apartment style development. Clearly this form of development will be different in its appearance, form and intensity to what exists. While the guidelines are useful in dealing with new development in areas of incremental change, they are less useful in dealing with development in areas where greater change is envisaged.
8. I am unable to agree that the form and intensity of the proposed development is inappropriate. The double storey height is acceptable. The height is consistent with the scale of other double storey forms found directly adjacent to the site and further afar, and in accordance with the limit set down in the DDO12 provisions. I do not agree that the bulk presented is unreasonable given the physical and policy context.
9. It is also unreasonable to expect that the subdivision pattern will be maintained. The reality is that medium density development is different to conventional housing. The lots are smaller and diverse. It is inevitable that there will be departures from the existing subdivision pattern as smaller lots are created. The subdivision of the units to the east is a clear example of this. Although subdivision is not proposed as part of this proposal, nonetheless if the proposed development is subdivided, something which is likely, I would not regard the lot layout to be unacceptable, particularly given the somewhat unusual shape and juxtaposition of this site with its neighbours.
10. I accept that the front setback to Aster Crescent does not meet Standard B6. However, this does not mean that the setback is not acceptable. The provisions at clause 55 make it clear that it is the objective that must be met. While the standard should usually be met, the objective may still be met if the Responsible Authority, or the tribunal standing in its shoes, is satisfied that an application for an alternative design solution meets the objective. The objective to be met at clause 55.03-1 is:

To ensure that the setbacks of buildings from a street respect the existing or preferred neighbourhood character and make efficient use of the site.

1. On this issue, it is relevant to note three things. First, this site is not a typical lot found in the area. It is almost triangular in shape, extending out like a small peninsula. Second, the site's Aster Crescent frontage does not align with that of other properties on the same side of the street. Rather, at the northeast corner, the road alignment starts to bends in a south-westerly direction toward Railway Parade. Third, in response to these factors and the corner position, the development has been designed to have dwellings with frontages to both streets.
2. The design response has been to adopt a staggered setback to Aster Crescent. The northeast townhouse has a front setback which aligns with the units on the adjoining property to the east. As the Aster Crescent frontage bends away, a staggered frontage has been adopted. The setback to Aster Crescent varies from about 2 metres to 7.2 metres. I do not find this design response inappropriate given that it responds to the shape of the site, the bed in the alignment of Aster Crescent, and the relatively modest setbacks of the development directly opposite. The design response will result in a highly articulated facade with each dwelling having its own sense of identity. The same can be said about the Railway Parade frontage. Clearly, the front setback facilitates the efficient use of the site. I conclude that the proposed front setbacks to be acceptable and meet the objective.
3. I do not agree that the landscaping opportunities are insufficient. I accept that the open space areas will be smaller than the garden areas that are typically associated with single dwellings. However, I am satisfied that there is sufficient space available along both frontages and the east boundary to facilitate appropriate landscaping.
4. The extent to which a 1.7 metres high fence is exposed to the frontage is minimal. Such a fence is to be provided to enclose the private open space for Dwelling 2. On most corner sites, it is commonplace to find a high paling fence on at least one frontage. The extent to which there would be a high fence presented by this development to the adjacent streets is much less than what is typically found. Further the fence is setback into the site to allow for landscaping in front of it.
5. It is my conclusion that the proposal represents a reasonable response to neighbourhood character, balancing the direction given by policy to supporting more intense development in this location, while maintaining a double storey scale, dwellings having individual street frontages, satisfactory setbacks which respond to the characteristics of the site and the provision of opportunities for landscaping.

Would the proposed development cause unreasonable impacts on the amenity of neighbouring properties and the area generally?

1. It was asserted that the proposed development would cause unreasonable impacts on the amenity of neighbouring properties. Concerns were expressed about overshadowing of neighbouring open space; increases in traffic and difficulties with car parking.
2. In relation to shadows, I note that until 12 noon, the proposed development would not overshadow the neighbours to the east. After this, the open space of the neighbouring dwellings will be affected. However, Standard B21 does not suggest that there can be no additional shadowing. In this regard, it was the council's submission, supported by Ms Kellock; that the extra shadowing would accord with the parameters allowed under Standard B21. No material to the contrary was presented. It seems to me that when consideration is given to the narrowness of the open space appurtenant to the units to the east, and the impact of shadows cast by the side boundary fence are taken into account; the shadow impacts would be negligible.
3. I do not accept that the proposed development would generate so much additional traffic that it cannot be accommodated by the surrounding street network. Utilising readily accepted figures for this type of residential development, it could be expected that the two extra dwellings would generate 16 to 20 vehicle trips[3]. This does not take into account the site's proximity to the activity centre and public transport; factors that are likely to reduce the dependence on motor vehicle use. The amount of extra traffic would be imperceptible.
4. Each dwelling is provided with two car parking spaces; one in a garage, the other in tandem. This provision meets the requirements of Standard B16. Given the size of this development, there would be no requirement or need for visitor car spaces.
5. I am also satisfied that this proposal would not give rise to amenity issues such as loss of daylight to windows, overlooking and noise. For reasons outlines earlier, the bulk presented by this development would not be out of place in this neighbourhood.

1. I am unable to conclude that this proposal is an overdevelopment given:

1. The direction given by policy and the zone and overlay provisions which support increased densities in this location; a preferred medium density housing area; 2. My findings that the proposal is acceptable having regard to neighbourhood character considerations, and

1. The absence of unreasonable impacts on the amenity of neighbouring dwellings.
2. Further, I note that the overall height meets Standard B7; the site coverage of about 54 per cent is blow the 60 per cent allowable under Standard B8; the amount of permeable areas meets Standard B9; side and rear setbacks generally meet and/or exceed the requirements of Standard B17; the required car parking is provided open space areas meet Standard B28 and satisfactory on site facilities can be provided.
3. The proposal is not an overdevelopment given the site's context in an area where more intense forms of development are encouraged and the requirements of clause 55 are met.

1. The site has the attributes that make it suited to being redeveloped for medium density housing. Such development is supported by policy, the zone provisions and the DDO12. I am satisfied that the proposal has been designed to be respectful of the neighbourhood character; will not cause unreasonable impacts on the amenity of neighbouring properties and satisfies the requirements of clause 55. I will therefore direct the grant of the permit in accordance with the Notice of Decision issued by the council.

[1] [2004] VCAT 75

[2] [2003] VCAT 692

[3] Traffic engineers appearing before the tribunal readily accept that dwellings generate 8-10 vehicle trips each per day, although this figure would reduce with proximity to activity centres and public transport.