The decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be granted pursuant to section 85(1)(a) of the Planning and Environment Act 1987.

Ms M Foley, barrister instructed by Arnold Bloch Leibler. Ms Foley was assisted by Mr Manton, architect.

Ms K Partenio, traffic engineer, of GTA Consultants;

Mr T Biles, town planner, of Contour Consultants; and

Mr T Vernon, landscape architect, of Contour Design.

1 This is an Application to review the failure of the Stonnington City Council ('the Council') to grant a permit within the prescribed time. The Council has subsequently determined to refuse the permit application, and we have had regard to the Council's grounds of refusal in our consideration of this matter.

2 This matter concerns a site containing both vacant land and derelict special accommodation housing formerly operated by SCOPE (previously known as the Spastic Society of Victoria). The site has been sold and is now the subject of this permit application to develop 17 dwellings with associated car parking, and to subdivide the land into 18 lots.

3 The details of this proposal include:

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8 attached dwellings along the Malvern Road frontage with double garages accessed at the rear via a new private road off Cairnes Crescent. The dwellings are separated into two blocks of four. The middle two dwellings in each block are three storeys in height whilst the remainder are two storeys in height.

•

3 attached double storey dwellings within the site with pedestrian and vehicular access via the new private road off Cairnes Crescent.

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5 attached double storey dwellings fronting Cairnes Crescent, of which four have driveways from Cairnes Crescent to their double garage and one has a double garage accessed via the new private road off Cairnes Crescent.

4 The Council and objectors, particularly the residents of Cairnes Crescent, expressed concerns with this proposal relating to:

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It being an overdevelopment of the site;

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The siting and layout of the proposed dwellings;

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The proposed three storey height of some of the dwellings along Malvern Road;

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The proposed lots being contrary to the prevailing subdivision pattern;

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The traffic impacts upon Cairnes Crescent;

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The inadequate rubbish storage areas;

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The lack of permeable area leading to adverse drainage impacts; and

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Its failure to comply with the objectives of the State and local planning policy frameworks of the Stonnington Planning Scheme ('the Planning Scheme').

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The application was publicly advertised and 25 objections were received, particularly from residents in Cairnes Crescent;

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A consultative meeting was held after the advertising period and the issues of concern were discussed; and

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The application was considered at a Council meeting and it was determined to refuse the permit application on 10 grounds that are similar to the concerns outlined previously in paragraph 4.

6 At the commencement of the hearing, Ms Foley sought leave to substitute amended plans which had been circulated in accordance with the Tribunal's practice note. The plans were accompanied by a statement outlining what changes have been made. None of the parties had any objection to the substitution, therefore leave was granted.[1] Accordingly, the plans being considered by us as part of this application have been prepared by Jan and Manton Pty Ltd with drawing numbers 0423 TP00 to TP16, Revision C.

7 Mr Kune attended the first day of the hearing but stated that he did not wish to formally become a party to these proceedings. He provided a letter expressing concerns including that the proposed new dwellings may overlook his home. We advised Mr Kune and the parties to this matter that we had read his letter.

8 During the hearing there was some confusion as to whether the subdivision component of the application was for 17 or 18 lots. As a result, Ms Foley sought leave to amend the application to refer to 17 lots and we grant leave for this amendment[2]. Accordingly, the application being considered by us seeks approval for 17 dwellings and a 17 lot subdivision.

9 We advised the parties at the start of the hearing that we were familiar with the site. Following the completion of the hearing, we undertook an inspection of both the site and surrounding residential area.

10 The expert witnesses called by Ms Foley gave their evidence in chief and were made available for cross-examination.

11 All of the submissions made, evidence given and documentation tabled during the course of the hearing has been taken into consideration.

12 The site is located within an established residential neighbourhood in Malvern East and has frontages to both Malvern Road and Cairnes Crescent. It is a large property with an area of 5,527.3 square metres that currently contains vacant land and derelict institutional style buildings, together with a variety of mature trees and vegetation.

13 The site is bounded on three sides by roads, being Malvern Road to the southwest and Cairnes Crescent to the northeast and southeast. It has an existing driveway on Malvern Road and an existing driveway on Cairnes Crescent. The site has a fall of approximately 6 metres from the southeast to the northwest.

14 Abutting the site's northwest boundary are two properties. One property is a vacant block of land that has frontage to Malvern Road. We were advised that it is owned by the permit applicant. The other property contains a relatively new single storey institutional building operated by SCOPE that has frontage to Cairnes Crescent.

15 The site and surrounding residential properties are all contained within a Residential 1 Zone under the Planning Scheme. A planning permit is required to construct more than one dwelling on a property and to subdivide land. Clauses 55 and 56 of the Planning Scheme must be considered. They contain objectives, standards and decision guidelines for medium density housing (clause 55) and subdivision of land (clause 56).

16 Malvern Road is contained within a Road Zone No. 1. A permit is required to create or alter vehicular access to this road[3]. However, this development does not include any vehicular access via Malvern Road therefore this provision is not relevant to this proposal.

17 There are no overlay controls that affect the site or surrounding properties.

18 The State Planning Policy Framework, including Melbourne 2030, encourages a more compact city through the consolidation of existing urban areas, including the development of well designed medium density housing that respects neighbourhood character.

19 The Municipal Strategic Statement ('the MSS') in the Local Planning Policy Framework acknowledges urban consolidation and the housing needs of the municipality. The MSS also emphasises the importance of maintaining the character and amenity of residential areas. The character and amenity of residential areas is reiterated and further emphasised in the Urban Design local planning policy at clause 22.02 and the Residential Character local planning policy at clause 22.06.

20 The relevance of the State and local planning policy frameworks to this proposal is discussed further in the reasons for our decision.

21 Having considered the submissions presented and evidence given, we find that there are a number of matters that require our consideration in determining whether this proposal is appropriate for the site. These matters relate to the appropriateness of the proposal in light of the planning policy framework in the Planning Scheme; the neighbourhood character and residential amenity; the potential car parking and traffic impacts; and other issues such as permeability and drainage. Each of these matters are discussed in the following sections of our decision.

22 Mr Bowden highlighted the Council officer's report assessing the merits of the proposal found the site is in a suitable location for a medium density housing development having regard to both the State and local planning policy frameworks of the Planning Scheme.

23 We agree. State planning policies have introduced an urban growth boundary around the periphery of metropolitan Melbourne and hence, it is both encouraged, and necessary, for new residential development to occur within the existing urban areas of Melbourne. Such development includes the consolidation of existing residential areas through medium and high density built forms. The MSS in the local planning policy framework of the Planning Scheme also recognises this. It seeks to provide housing choices and diversity for residents by, amongst others, directing medium density housing development into residential areas with infrastructure and service capacity[4]. The Council has accepted that this site is located within an existing residential area with infrastructure and service capacity, and is therefore a suitable location for medium density housing.

24 The strategies in the MSS include the encouragement of "a variety and balance of dwelling types that can be adapted to meet the varying needs of Stonnington's population, including families, the youth, the elderly and the disabled"[5]. This proposal provides 17 dwellings containing three or four bedrooms that can meet varying housing needs as their size allows for a small or large household to be accommodated. However, the type and size of the proposed dwellings needs to be considered in light of the neighbourhood character and residential amenity.

25 We have decided to deal with the proposal's impact upon residential amenity first as there are limited impacts. This is due primarily to the fact that the site only has two abuttals to residential properties along its northwest boundary, being vacant land and the SCOPE building.

26 We note that the SCOPE building is setback from the common property boundary with car parking and new landscaping planted in this setback area. Whilst we are satisfied that there will be no unreasonable impacts in terms of overlooking or overshadowing, we are concerned about the height of the two garage walls to be constructed on the common property boundary. The wall heights are not specified on the elevations but measure on plan as being between 4.2 and 4.8 metres above natural ground level. Clause 55.04-2 requires walls on boundaries to be considered in light of, amongst others, the extent to which the slope and retaining walls or fences reduce the effective height of the wall. In this instance, there is a retaining wall on the SCOPE side of this boundary, which actually increases the height of these garage walls, when viewed from the SCOPE building. The SCOPE site is very open and exposed along this boundary due to its existing open space area and car parking. In our opinion, these characteristics increase the visual impact of the proposed garage walls from the SCOPE property and from Cairnes Crescent. Standard B18 of clause 55.04-2 states the height of a wall on a boundary should not exceed an average of 3 metres and we see no reason why this cannot and should not be achieved to minimise the visual bulk of these walls when viewed from the SCOPE property and Cairnes Crescent.

27 We have a similar concern in regard to the visual impact of the walls of dwelling 1 to be built along the northwest boundary, adjacent to the vacant residential land fronting Malvern Road. By our calculations, approximately 67% of the length of this boundary will have a wall constructed along it. Again, the height of these walls are not specified in the elevations but measure on plan as being:

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A two storey wall of between 7.2 and 7.5 metres above natural ground level constructed for a length of 14 metres;

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A fence/wall of 2.7 metres above natural ground level constructed for a length of 4.5 metres; and

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A garage wall and screen of 4.4 metres above natural ground level constructed for a length of 6.4 metres.

28 In our opinion, the potential visual impact of these walls upon the amenity of this property is unacceptable and, again, we see no reason the height of a wall on a boundary should exceed an average of 3 metres.

29 Mr Kune expressed concern that the height of the dwellings along Malvern Road and the number of windows proposed in these dwellings will result in overlooking and perceived overlooking. We do not share Mr Kune's concern as we find the proposed dwellings are well separated due to the combination of their front setbacks, the width of Malvern Road and the frontage setbacks of his and other properties on the southwest side of Malvern Road. For similar reasons, we have no concerns regarding overlooking into the existing dwellings opposite the site in Cairnes Crescent.

30 The Council, Mr Blumberg, Ms Giles and Mr Timms all expressed concern that the proposed scale, height and siting of the dwellings is not respectful of the existing neighbourhood character. We note that the purposes and objectives of the Residential 1 Zone, clause 55 and the relevant local planning policies[6] all require new residential development to be respectful of the existing neighbourhood character.

31 Mr Bowden described the existing neighbourhood as an established lower density suburb characterised by low scale, single storey bungalow dwellings with pitched roofs. Mr Blumberg emphasised the single storey detached nature of the existing dwellings in the neighbourhood, and pointed out that there are limited examples of double storey dwellings in the neighbourhood. He also pointed out that properties in Malvern Road and Cairnes Crescent have 15 to 20 metre wide frontages with dwellings setback between 9 and 11 metres. Mr Blumberg described these features as "an intact, valued and continuous built form pattern in the neighbourhood".

32 We have inspected the neighbourhood and find that, whilst the majority of dwellings are detached and single storey, there are examples of double storey dwellings. There are also examples of varying lot sizes and shapes due to the existence of some medium density housing such as Mr Kune's double storey dwelling at 42 Forster Avenue and the double storey townhouse style development at 55 Cairnes Crescent. Hence, we find the "built form pattern in the neighbourhood" does include examples of double storey and medium density housing.

33 The gradual inclusion of medium density housing within this neighbourhood is consistent with the objectives and strategies in the State and local planning policy frameworks of the Planning Scheme. The built form pattern of this neighbourhood is not included in any Overlays such as a Heritage Overlay or Neighbourhood Character Overlay, therefore this residential neighbourhood is not recognised in the Planning Scheme as having any special or valued characteristics that need to be protected.

34 The Department of Sustainability and Environment's General Practice Note "Understanding Neighbourhood Character" ('the DSE practice note') states that respecting character does not mean preventing change. It goes on to explain that the neighbourhood character requirements in Planning Schemes are not intended to result in replication of existing building stock or stop change. We see no reason why this site should not contain a good modern example of medium density housing. In fact, the site's abuttal to street frontages on three sides creates, in our opinion, an opportunity to create smaller lots with smaller frontages than surrounding properties without unreasonably impacting upon the neighbourhood character.

35 Mr Biles placed much emphasis upon this proposal being a high quality contemporary or modern architectural design worthy of approval. Mr Manton provided a folio illustrating the quality of dwelling designs prepared by Jan and Manton Pty Ltd. The objectors felt that, whilst the design was modern, it had an industrial feel that was out of character with the neighbourhood. Mr Bowden stated the Council acknowledged the proposal as a good contemporary architectural design, and the Council's issue was not the quality of the design, but the appropriateness of the design response to the existing characteristics of the neighbourhood. In highlighting the inappropriateness of the proposal, the Council and the objectors pointed to the proposed dwellings' small frontage setbacks; the attached housing style; the resultant lack of side setbacks; and the garages sitting forward of dwellings fronting Cairnes Crescent.

36 The DSE practice note states respecting neighbourhood character means a development "should try to 'fit in'" and it explains the two broad approaches to achieve this are respecting the scale and form, or respecting the architectural style, of surrounding development. The features and characteristics of the neighbourhood identified by all parties during the hearing were the scale and form of the neighbourhood, and we have had regard to these.

37 The two and three storey dwellings fronting Malvern Road are attached in two groups, each containing four dwellings. These two groups each extend 25 metres in length along the Malvern Road frontage, separated in the centre between 5.1 metres and 2.4 metres. Dwelling 1 is constructed along the northwest boundary and dwelling 8 is setback between 2.9 and 3.9 metres from Cairnes Crescent.

38 We find that the combination of the two to three storey height; the attached form; and the 6 metre frontage setback creates a large building form in both scale and bulk. In our opinion, this design response creates a visual bulk that is not respectful of the neighbourhood.

39 Mr Biles acknowledged that the proposed built form is different to the existing built form character but argued that this site has always been different and is a "punctuation point" along Malvern Road, between Darling Road and Waverley/Belgrave Roads. Ms Foley likened the design response to the existing institutional buildings on the site because they both extend along the length of the Malvern Road frontage.

40 We find that the existing institutional buildings present as one storey in height to Malvern Road and this height is achieved in part by the fact that the buildings are cut into the site, particularly adjacent to the Malvern Road/Cairnes Crescent corner. In contrast, the proposed dwellings are to be built to coincide with the existing ground level of the Malvern Road frontage and then rise up in height to 3 storeys. This creates a strong built form presence that overwhelms the existing residential streetscape character. In our opinion, if a "punctuation point" is to be achieved on the site, it could just as easily be achieved by a two storey built form with improved separation between individual building forms.

41 The other concern that we have, which is directly related to the attached style of the dwellings, is the proposed private road to be created off Cairnes Crescent. On the northwest side of this road are a row of eight double garages, creating a laneway style appearance. This in itself may have been acceptable; however the southeast side of this road has three dwellings fronting onto it. The frontages of these dwellings comprise a front door entryway width of approximately 2 metres and a double garage door width of 6.4 metres.

42 In total, there are twelve double garages and therefore 24 cars accessing this private road. In amongst this are three dwellings with 2 metre wide entryways, which we find to be poorly sited and located with no sense of address to their 'street frontage'. On a site of this size and shape, we see no reason why such a poor level of amenity and entry/address to three large (four bedroom) dwellings is necessary or appropriate.

43 The proposed double storey dwellings and the garages fronting Cairnes Crescent are all attached, extending from the proposed private road around to the boundary with the SCOPE property. We note that the setback of the second storey of dwelling 11 from the eastern corner of Cairnes Crescent is approximately 4 metres; and the northeast elevation indicates dwellings 11 to 14 all sit between 0.8 and 1.2 metres above the natural ground level.

44 We find that the combination of a two storey built form that sits above the natural ground level; garages with high parapet walls; garages projecting forward of the dwellings; a two storey building close to the Cairnes Crescent street corner; and an attached built form that extends for a length of approximately 86 metres, all result in a dominant built form that is not respectful of the neighbourhood character. In contrast to this, we note that the other north east corner of Cairnes Crescent features a property with a dwelling that has setbacks from each frontage to Cairnes Crescent that makes it appear to have two frontages and this is respectful of the streetscape. Development of this site should seek to achieve a similar outcome.

45 Added to this, we find the provision of private open space for dwelling 11 in its frontage setback on the eastern corner of Cairnes Crescent; and the double storey dwellings surrounding the private open space for dwelling 9 to be poor design responses.

46 We accept the evidence of Mr Vernon regarding the range of existing trees to be retained/relocated on the site as part of this proposal. We feel that the combination of the existing trees, together with new trees and other vegetation will provide an improved landscape character on the site and one that is respectful of and will compliment the neighbourhood character. However, the benefits of the landscape concept do not outweigh the shortfalls that we have already highlighted with this design response.

47 Overall, we are of the opinion that this proposal is not a respectful design response to the existing neighbourhood character, particularly having regard to the proposed siting of the dwellings, their scale and the heavy reliance upon an attached building form. The resultant design creates an unreasonable visual bulk and a poor level of internal amenity for some of the proposed dwellings.

48 Mr Blumberg, Ms Giles and Mr Timms expressed concern about the insufficient car parking provided in the proposal and the resultant parking and traffic problems that will occur in Cairnes Crescent.

49 Ms Partenio explained that Cairnes Crescent is a 6 metre wide road. This means that, whilst it is possible for two cars to park on the street, opposite each other, this is illegal as it is not possible for a vehicle to pass between two parked cars. This is an existing situation in the street that neither the residents nor the Council have sought to rectify to date. We note Ms Partenio's advice that this situation could be rectified by Council imposing parking restrictions on one side of the street.

50 In regard to the car parking provision, this proposal provides two car spaces for each dwelling and some dwellings have room for additional parking in front of their respective garage. As all of the dwellings contain either 3 or 4 bedrooms, the objectors submitted that these dwellings will be occupied by families and the provision of two car spaces is insufficient. We acknowledge that some family households will have more than two cars but the occupancy of dwellings will vary as there may be different household types and hence their car needs will vary. Clause 55.03-11 of the Planning Scheme recommends two car spaces be provided for a dwelling containing 3 or more bedrooms and this proposal satisfies this requirement. There are no local planning policies or parking precinct plans in the Planning Scheme that require additional car parking to provided for a house containing three or more bedrooms in this neighbourhood. Therefore we find that the car parking provision for the dwellings complies with the Planning Scheme recommendation and is therefore appropriate.

51 Clause 55.03-11 of the Planning Scheme also recommends that visitor car parking in the order of one car space for every five dwellings be provided, which equates to three visitor car spaces in this instance. We accept that visitor parking for dwellings fronting Malvern Road and Cairnes Crescent is likely to occur at the front of the dwelling, in the street. We consider this outcome on a site of this size to be acceptable. However we are concerned about the visitor parking for the three dwellings accessed off the proposed private road. Ms Partenio gave evidence that they would generate a visitor parking demand of one car space and this can be accommodated in Cairnes Crescent. Given our concerns about the siting and the lack of sense of address for these dwellings, we find that the lack of visitor parking on site for these dwellings is yet another indication that this is an inappropriate design response for the site.

52 We appreciate that the width of Cairnes Crescent can already present access problems for residents and their visitors when cars are parked opposite each other on the street. However, this is an existing problem that can be rectified by the Council if deemed appropriate. We accept Ms Partenio's evidence that, despite its width, Cairnes Crescent is capable of accommodating the additional traffic generated by this proposal. We also accept her evidence that the southeast intersection of Cairnes Crescent and Malvern Road has adequate capacity to accommodate the traffic generated by this proposal.

53 Overall, we are of the opinion that the car parking provision, other than visitor parking for the internal dwellings, is appropriate. We find that the additional traffic generated by this proposal can be accommodated in the surrounding street network.

54 Ms Timms expressed concern about the permeability of the proposal as her property is located on low lying land in Cairnes Crescent and has experienced flooding due to drainage problems in the neighbourhood. She explained that this problem has been brought to Council's attention, and is being investigated to ascertain what the underlying cause of the problem is. However, given her experiences with flooding, she queried the permeability of the proposal and requested that water run-off be retained on the site.

55 The permeable area equates to 27.5% of the site area and this exceeds the recommended permeability of 20% contained in clause 55 of the Planning Scheme. Mr Vernon explained that there are opportunities for water run-off from the development to be absorbed and treated on site prior to it entering the stormwater drainage system. He also explained that water storage tanks could be provided on site either for individual dwellings or as a combined storage facility underneath the surface of the proposed private road.

56 We are satisfied that the proposal provides an appropriate level of permeability and that permit conditions could be imposed as part of any permit granted to require stormwater run-off storage to be provided on site together with the overall development's stormwater and drainage details being to the satisfaction of the Council.

57 Our concerns with this proposal relate to the siting of the building forms, the scale of buildings, and the extent of attached building forms across all of the frontages of the site. As indicated earlier, we feel that a site of this size should be able to provide a higher density of residential accommodation than that found on the immediately surrounding properties. However, we find this proposal is an overdevelopment of the site, creating a visual bulk that does not respect the neighbourhood character, and creating a poor level of internal amenity and sense of address for some of the dwellings. Our concerns will require significant changes to the proposal and, as such, any revised proposal should be the subject of a new planning permit application. For these reasons, we are of the opinion that a permit should not be granted.

The decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be granted.

[1] Leave granted pursuant to section 64(2) of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

[2] Leave granted pursuant to section 64(2) of schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

[3] Pursuant to clause 52.29 of the Stonnington Planning Scheme

[4] Clause 21.07 of the Municipal Strategic Statement

[5] Clause 21.07-3 of the Municipal Strategic Statement

[6] Clauses 22.02 and 22.06 of the Stonnington Planning Scheme