Does the development respond to its policy and built form contexts?

1. The planning policy framework in the Banyule Planning Scheme (the scheme) contemplates that Melbourne should accommodate many additional dwellings in its established urban areas. It also encourages new residential development to enhance housing choice and affordability by providing more dwellings that are suitable for smaller households, many of whom prefer generous sized dwellings without spacious front and rear yards that require maintenance[2]. I concur with the parties that the replacement of one dwelling with four smaller dwellings would make a modest contribution to the above housing objectives.
2. Planning policy accepts that established suburbs have different capacities to accommodate new residential development. In general, the scheme identifies areas close to public transport, activity centres, employment corridors and adjacent to a main road to be best placed to accommodate higher levels of change. Established suburbs that are more remote from train stations and activity centres are encouraged to accommodate moderate or limited change.
3. The site is within the General Residential Zone Schedule 2 (GRZ2) that includes in its purposes the intention to implement planning policy, to provide a diversity of dwellings and to increase the number of dwellings in the zone to a moderate extent. The site is located in an area of Incremental Change Areas that is to provide for well designed single dwellings and medium density dwellings[3].
4. The site is within an area that is well provided with services. It is adjacent to a neighbourhood activity centre that primarily serves the local community. The area is well provided with facilities and reticulated services, bus services operate along Waterdale Road, and it is within 10 minutes walking time to the Ivanhoe major activity centre and train station. The site also is also conveniently located (by car and public transport) to a wide range of employment and recreation opportunities and higher order health and education facilities.
5. It was common ground that the site that can readily contribute to the housing goals in the scheme. It is a larger lot, it has regular dimensions and it has no vegetation, slope or features that constrain its redevelopment. It has some advantages over other sites as it adjoins a right-of-way and it faces the rear of the nearby shops that together comprise a robust appearance and a less sensitive interface than a residential abuttal.
6. While the GRZ2 encourages development to contribute to moderate housing growth and housing diversity, it also encourages new dwellings to respond to, and respect neighbourhood character. The purposes of the General Residential Zone include:

Encourage development that respects the neighbourhood character of the area.

Implement neighbourhood character policy and adopted neighbourhood character guidelines[4].

1. The vision for an Incremental Change Area also provides that new development:

must make a positive contribution to the desired future neighbourhood character, including opportunities for tree protection and planting[5].

1. The site is within the Garden Suburban Precinct 3. Clause 22.02-3 sets out the features of this precinct and guides the design responses so a new proposal can enhance the prevailing character of the area. The clause sets out numerous statements, design objectives and design responses that together define a preferred neighbourhood character.
2. The most succinct statement of the preferred character for the Garden Suburban Precinct 3 is:

These areas will protect and enhance the garden suburban character of the precinct with an emphasis on protecting trees and creating new opportunities for vegetation throughout sites. They will provide for a mix of well-designed single dwellings medium density dwellings in garden settings, with space around and between dwellings to create an attractive, treed landscape setting[6].

1. The applicants for review say the development fails to respond to, or respect the character of the area, particularly the streetscape. They say the central driveway, the reduced front setbacks, a wall on the west boundary and the narrow widths of the two front dwellings (relative to other dwellings in the street) together would create a built form that would be out of place in the street.
2. They say a new development should appear similar to other multiple dwelling developments in the area, that is two to three dwellings in a tandem arrangement, with a driveway at one side. The front dwelling should have a scale, massing and width similar to other dwellings in the street.
3. Three points need to be made before I respond to the particular matters raised the Mr Creaco and Mr Buzza. Firstly while there are usually multiple ways to design a development, it is not the role of the Tribunal to pick one design from multiple options, or to redesign a proposal that may be flawed. It must make a decision on the proposal before it. Hence comparing this development to one or more alternate designs is not relevant to my decision.
4. Secondly, the test in the scheme is:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause[7].

1. A proposal does not need to be ideal or perfect, it needs to demonstrate that having considered all the relevant matters set out in the scheme it is an acceptable design response. It should also be noted that a proposal may be acceptable even though it has some unacceptable parts, provided that in total, it provides a net community benefit and complies in most aspects with the scheme.
2. Finally, it must be remembered that clause 22.02 is a local policy that guides the discretion available under the zone. The requirements set out in local policy should not be applied by the responsible authority, or by the Tribunal on review, as prescriptive, mandatory requirements that if not met are fatal to the application. Any non compliance is a matter to be assessed in the context of the whole of the policy framework, the requirements of the scheme, the context of the site and the quality of the design response.
3. I am not persuaded by the submissions of the Mr Creaco and Mr Buzza and having regard to the matters set out in clauses 15.01, 21.04, 21.05, 21.06, 22.02 and 32.08, I am satisfied that the proposed development would be an acceptable fit into Beatty Street. I make this finding for the following reasons.
4. Firstly the development has a high level of compliance with schedule 2 to the General Residential Zone, as it would have a site coverage less than 40 percent and it enables the planting of one tree for every 400 metres of site area.
5. Secondly the development has a high level of compliance with the matters identified as integral to the preferred neighbourhood character for GS3 precincts. The development would have the following positive attributes:
   • Has an architectural style commonly seen in the street.
   • Uses materials commonly seen in the area and streetscape.
   • Comprises two storeys, readily seen in the area.
   • Replaces environmental weeds with native vegetation.
   • Provides space for tree planting in the front setback and throughout the site.
   • Does not provide car parking in the front setback.
   • Provides a single crossover and single width driveway.
   • Retains the street trees, subject to relocation of the crossover and driveway.
6. Thirdly the development responds well to the preferred character set out in clause 22.02-3 regarding development in the GRZ2. It comprises well designed dwellings and it provides space around the dwellings for canopy landscaping throughout the site.
7. Fourthly the development responds well to the design objectives and design responses of the GS3 precinct. Many of these repeat the above mentioned statement of preferred character and need no further comment.
8. Four criticisms raised by the applicants for review require comment that is more detailed. They are the staggered setbacks to the front, the width and massing of dwellings 1 and 4 in the streetscape, the location of the driveway in the centre of the site rather than on one boundary and the boundary wall of dwelling 4.
9. Dwelling 1 would be setback 4.74 metres and dwelling 4 would be setback 7 metres from the front boundary. No.10 Beatty Street to the west is setback 10.78 metres (with a protruding verandah) and the shop at no.218 Waterdale Road to the east of the right-of-way is built to the Beatty Street boundary. The permit applicant says proposed front setbacks aim to create a visual transition between the zero boundary development and the setback of the dwelling to the west.
10. I consider the front setbacks are generally acceptable, but require some modification. The proposed setbacks provide the opportunity for canopy vegetation in front of both dwellings 1 and 4. The relatively narrow width of both dwellings and their upper floor set backs behind the ground floor, reduce their prominence in the street. Furthermore the dwellings on the south side of Beatty Street are setback 7.7 metres, creating a perception when one is near the shops of a public realm that is narrow and then opens to a more spacious, vegetated realm west of the right-of-way.
11. I think the proposed setbacks would be appropriate if the review site abutted the commercial property. The visual transition would be readily apparent. However, the 6 metre wide right-of-way creates a visual separation between the rear of the shop and the review site. Its width places the review site clearly within the residential context to the west, and reduces the need for a visual transition that to the zero lot boundary.
12. I think that with a setback of 4.7 metres, dwelling 1 would be too close to its frontage compared to the dwellings to the west, and its relatively small front setback would make it appear prominent and out of place in the streetscape.
13. I think the front setback of dwelling should be increased to better reflect its residential context to its west. I find that a setback of 6 metres would continue to provide a transition, but one that better responds to its predominant residential context and enables the dwelling to sit more comfortably in the streetscape. I accept that an increased setback would reduce the secluded open space available for dwelling 1, but provided at least 25 square metres of secluded open space is provided for dwelling 1, this to be an acceptable trade off to better integrate into the streetscape.
14. Dwellings 1 and 4 would have widths facing the street of 6.2 metres and 5.8 metres respectively. Except for the dwellings at no.212 Waterdale Road that are 6 to 7 metres in width (opposite the commercial building), most of the single dwellings in Beatty Street have widths from 12 to 15 metres. I accept the residents' proposition that the proposed dwellings would be more narrow than the prevailing built form.
15. They will appear to be somewhat different to the prevailing single dwellings, but I do not see this to be fatal. They are a different type of dwelling, being multiple dwellings on a lot, designed for smaller households. They are not intended to be large family home and should appear to be different.
16. However, they have been designed to respect the characteristics of their neighbours by incorporating features such as two storeys, hipped, tiled roofs, porches and windows and doors of similar dimensions as the nearby dwellings. While different, they are respectful of their context, and they would not be so different in their form and materials to be out of place. In my view modest variances in architectural style, scale and massing in a street add to, rather than detract from its visual interest and identity.
17. The development would be accessed by a single width crossover and a driveway located in the middle of the site. The residents say the crossover should be located at one of the side boundaries, consistent with other properties.
18. The crossovers on the north side of Beatty Street comprise a 6 metre right-or-way and the existing crossover to the review site, and two crossovers to both nos.10 and 12 Beatty Street that create double width crossovers. The responsible authority and the permit applicant say the proposed location of the driveway responds to clause 22.02 and aims to reinstate the preferred rhythm of single crossovers, hence reducing the prominence of large paved crossovers that break nature strips and limit opportunities for planting street trees.
19. I concur with Council and the permit applicant that the proposed crossover responds to the preferred rhythm of single crossovers, and will offset the prominence of the nearby wide and dominant double crossovers in this part of Beatty Street. I think it is a positive design response.
20. Dwelling 4 would have a brick wall on the western boundary set back approximately 11 metres from the frontage. The wall would be 4.7 metres in length and be 3 to 3.2 metres in height. It would be located adjacent to an existing car port with a hipped roof at no.10 Beatty Street.
21. The wall on the boundary would be similar in height, length and materials to the side wall of a garage built on a boundary, of which there are many visible in Beatty Street. It would be largely screened in oblique views from the street by the carport at No.10 Beatty Street. Importantly, its length and height comply with standard B18 of clause 55. It does not offend any design guidelines in clause 22.02. I have no difficulty with a short length wall of dwelling 4 being built on the boundary.
22. In my view, while the two dwellings closest to the street may appear somewhat different to their neighbours, they have responded to their policy and their built form contexts through their two storeys, pitched roofs, materials, landscaping, single crossover, dwelling entry, low front fence and windows and doors. The staggered setbacks will provide a visual transition between the dwellings to the west and the shop to the east. They will fit into the preferred neighbourhood character and they will contribute to housing diversity, affordability and a more compact Melbourne. In my view, the development is acceptable and would be a positive contribution to the neighbourhood.

Would the development impose unacceptable amenity impacts on neighbours?

1. I concur with the responsible authority and the permit applicant that the development would not impose unacceptable amenity impacts on its neighbours. Firstly the larger dwellings are placed on the east side near the right-or-way and the smaller dwellings are on the west side. This arrangement places the smaller built form adjacent to no.10 Beatty Street, provides a visible break in the middle of the site, and provides opportunities for landscaping.
2. Secondly, Dwelling 3 is set back from its boundaries and does not intrude into the tree root zone of the prickly pear tree on the adjoining land to the northwest. Thirdly, the development readily complies with the standards of clause 55 relevant to the assessment of amenity impacts on neighbours such as overlooking, overshadowing, daylight and the visual bulk of the proposed built form.
3. Nevertheless the applicants for review expressed concerns and say:
   • The number of car parking spaces would be inadequate.
   • There would be an excessive number of garbage bins in the street
   • The car parking spaces for dwellings 3 and 4 would disturb people in the bedrooms of no.10 Beatty Street.
4. With regard to the above concerns I find:
   • The development complies with the provision of car parking as required by clause 52.06 and I have no discretion to require more spaces to be provided.
   • Council says the number of bins generated by three additional dwellings can be readily picked up by its weekly service.
   • Two car parking spaces next to the common boundary fence should not unduly disturb occupants of the bedrooms in the adjoining dwelling, as vehicle movements are part of living in this suburb where car use is expected and often necessary.
5. I am satisfied that this proposal would have no unacceptable amenity impacts on its neighbours.

Would the development provide acceptable amenity for its future residents?

1. The responsible authority says the development has a high level of compliance with the standards of clause 55 that are relevant to the assessment of internal amenity. I adopt its assessment, which was not disputed by the parties.
2. I am satisfied the development would provide comfortable accommodation. I also note the amenity of the future residents would be augmented by their convenient proximity to an neighbourhood shopping centre that offers a good range of services, and by their proximity to the activity centres and facilities at Ivanhoe and in the wider area.

1. For the reasons explained above, the decision of the Responsible Authority is varied. A permit is issued subject to conditions.

• Development of four dwellings on a lot in the General Residential Zone (Clause 32.08-4)

1. Before the development permitted by this permit 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 the advertised plans submitted with the application but modified to show:

1. The front (south) façade of bedroom 1 of Dwelling 1 to be setback a minimum of 6 metres from the front boundary with the dwelling to have a minimum area of 25 square metres useable open space and no change to the adjoining garages or Dwelling 2. 2. The upper level bathroom of Dwelling 1 relocated to the eastern side of the TV room toward the ROW to reduce the length of sheer wall on the western side of the dwelling which is partially visible from the street.

1. The upper level corridor and bedroom 1 of Dwelling 2 relocated further east toward the ROW to reduce the length of sheer wall on the western elevation providing a minimum of 500mm upper level recession on this elevation.

1. Relocation of the single access and realignment of the driveway to retain Tree 1 - White Cedar (street tree). The driveway must retain a curve with sufficient room for a medium canopy tree in the front setback of Dwelling 1. It is acceptable t remove street trees # 2 and #3. 2. All side and rear boundary fencing to have a minimum height of 1.8 metres. 3. All ESD features to be annotated and illustrated on the plans. The location and sizing of rainwater tank/s must also be shown including a note that they will be connected to all toilets. 4. The driveway to be finished with earthy, natural tones such as dark greys and browns. 5. Landscaping as required by Condition 3 of this permit. 6. Engineering plans showing a properly prepared design with computations for the internal drainage and method for of disposal of stormwater from all roofed areas and sealed areas including: 1. The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system; 2. The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas; 3. The drainage works necessary to connect the subject land to the Council nominated point of discharge.

Please note the Engineering plans must show all protected and/or retained trees both on the site and on adjoining properties where within 5m of the boundary and every effort must be made to locate services away from the canopy dripline of trees and where unavoidable, details of boring must be provided.

1. The Tree Preservation Fencing in accordance with Condition 9 of this permit.
2. Landscape and tree zones to be clearly marked with hatching, colour coding or similar and distinguished from useable open space areas.

1. A plan notation indicating that no building works or facilities are to be provided within the dedicated landscape areas.

1. A reduction in the combined width of the parking spaces for Units 3 and 4 by at least l metre with an associated increase in the amount of private open space for Unit 4.
2. Each dwelling provided with at least 6m3 of externally accessible storage.
3. An amended SDA assessment, generally in accordance with the report prepared by Keystone Alliance, dated 21 February 2014, but modified to show an improvement on the STORM rating to comply with the best practice performance objective set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999.

1. The development permitted by this permit must not be commenced until a satisfactory amended landscaping plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and shall include:

1. Alterations to the driveway and retention of Tree 1- White Cedar (street tree) as per Condition 1(c) above. 2. A reduction in the extent of paving within the frontage setback of Dwelling 4.

1. Details of planting within the Tree Planting and Landscape Zones as shown on the submitted Concept Landscape Plan.

1. The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site. 2. Provision of formed garden beds with edging around the landscape zone within the front setback to prevent cars parking within those areas. 3. Planting adjacent to driveways and within landscaping zones to consist of varying heights and species. 4. Provision of replacement planting for vegetation that is to be removed including a minimum of (2) medium canopy trees (mature height of at least 8+m) within the front setback together with (1) medium and (3) small canopy trees (mature height of at least 6+m) planted elsewhere throughout the site. 5. An indigenous and/or drought tolerant planting theme. 6. A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified. 7. Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill. 8. Tree numbers #2 and #3 are to be removed and replaced with an advanced tree sourced from a qualified tree grower. The specimen is then to be maintained (including, but not limited to, mulching, weeding, watering and pruning maintenance) for a minimum of two years by suitably qualified specialists, to the satisfaction of the responsible authority. All works are to be undertaken at the cost of the applicant. Prior to the authorised removal of a street tree, the applicant must contact the parks department on 9457 4415 to confirm the following: 1. The species which is to be planted; 2. The pot size of the specimen to be planted; 3. The frequency of watering and weeding; 4. The depth of the mulch and the mulch material to be used; 5. Other requirements as deemed necessary.
2. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the responsible authority.

1. The walls of the development on external boundaries must be cleaned and finished in a manner to the satisfaction of the responsible authority.

1. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the responsible authority.
2. Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.
3. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). The location, design and construction of the vehicle crossing(s) must be approved by the responsible authority Any existing unused crossing(s) must be removed and replaced with concrete kerb, channel and naturestrip to the satisfaction of the Council prior to occupation of the building All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to commencement of works.

1. Unless otherwise agreed in writing by the responsible authority, prior to the commencement of works (including demolition) on the site Tree Preservation Zones must be established around Trees 5 and 6 as identified in the submitted arborist assessment located on the neighbouring property to the west. You must contact Council's Development Planning Arborist on 9457 9878 once the Tree Preservation Fencing is erected so that an inspection of the fencing can be carried out. Once installed and inspected the Tree Preservation Zones must be maintained to the satisfaction of the responsible authority, and meet the following requirements:

Tree Preservation Zones shall be provided in the following locations:

Tree #1: to the extent of the TPZ where it occurs within the naturestrip.

Tree #9: to the extent of the TPZ where it occurs within the subject property.

Any weeds located within the Tree Preservation Zone are to be removed and the area mulched with 100mm of composted coarse grade woodchips.

1. Vegetation Preservation fences with a minimum height of 1.2 to 1.5 metres and of chain mesh or like fence with 1.8 metre posts (e.g. treated pine) or like support every 3-4 metres and a top line of high visibility plastic hazard tape must be erected around the perimeter of the zone.
2. The posts must be strong enough to sustain knocks from on site excavation equipment.
3. The fences must not be removed or relocated without the prior consent of the responsible authority.
4. Canopy and Limb protection must be provided in accordance with the guidelines detailed in AS4970-2009 Protection of Trees on Development Sites.

Fixed signs are to be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from the City of Banyule".

The area must be irrigated during the summer months with 1 litre of clean water for every 1 cm of trunk girth measured at the sail/trunk interface on a weekly basis.

1. No persons, vehicles or machinery are to enter the Vegetation Protection Zone except with the consent of the responsible authority;
2. No fuel, oil dumps or chemicals are allowed to be used or stored within the Vegetation Preservation Zone and the servicing and re-fuelling of equipment and vehicles must be carried out away from the root zones;
3. No storage of material, equipment or temporary building is to take place within the Vegetation Preservation Zone;
4. Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree.

Requests for consent of the Responsible Authority (City of Banyule) pursuant to this Condition should be directed to Council's Arborist - Development Planning on 9457 9878. Consent for the conduct of works within the Tree Protection Zone, where granted, may be subject to conditions. Such conditions may include a requirement that:

• Any underground service installations within the Tree Protection Zone be bored to a depth of 1.5 metres;
• All root excavation be carried out by hand digging or with the use of 'Air-Excavation' techniques;
• Roots required to be cut are to be severed by saw cutting and undertaken by a qualified arborist.

Or other conditions, as relevant, to ensure the ongoing health and stability of the subject tree/s.

1. Unless otherwise agreed in writing by the responsible authority, the landscaping areas shown on the endorsed plans must used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • The development is not commenced within two years of the date of this permit;
   • The development is not completed within four years of the date of this permit.
2. In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing along with payment of relevant fee before the permit expires, or within three months afterwards.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.