....to protect the safety and wellbeing of residents living in private supported residential services.[2]

1. Council put that this piece of legislation may or may not apply to the proposed rooming house if approval is granted and the development proceeds.
2. The Applicant for Review put to me that the SRS Act is not relevant as the proposed development is a private boarding house under the planning scheme, clause 52.23. It was further put that under clause 52.23 [Shared Housing], a permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants or 2 or more people if the building meets all of the following requirements:
   • Is in an area or zone which is used mainly for housing.
   • Provides self contained accommodation.
   • Does not have more than 10 habitable rooms.
3. The Parties agreed that a permit is not required for the use but for the buildings and works component of the proposal.
4. In considering what 'tools' are helpful in assessing this proposal, I am persuaded by the Parties that a broad interpretation of ResCode is of benefit, and I agree with the Applicant for Review that the SRS is not a relevant consideration in this matter.

1. Council refused the proposed development on the following ground:

[5] The proposed high density housing development is inconsistent with the rationale of clause 22.09-3.2 of the Planning Scheme.

1. Clause 21.04 [Housing and community] identifies that there is a need to support urban consolidation and housing close to activity centres and that appropriate and affordable housing that suits diverse needs is critical to maintaining a healthy and balanced socio-economic society. It is policy:

To encourage and facilitate a wide range of housing types and styles which increase diversity and cater for the changing needs of households.

1. The Strategic Residential Framework identifies the review site as being within a 'Preferred Residential (Incremental Change) Area. Clause 21.04 clearly identifies the issue of affordable housing and states in 'other actions' the following:
   • Advocate the retention and increase the supply of appropriate and well located housing for low income households and those with special needs.
   • Undertake ongoing monitoring and review of housing particularly in and around major activity centres to assist provision of diverse choice of housing.
   • Monitor changes in housing affordability for all housing types and tenures across the municipality to assist land use planning.
2. Clause 22.09-3.2 relates to incremental change areas. The policy identifies that incremental changes areas have been identified as suitable to accommodate low density housing. The policy identifies the future medium density character as:

Future medium density character - The future character of incremental change areas will evolve over time to contain a greater proportion of well designed and site responsive medium density infill development. Future density will be at a lower intensity than in substantial change areas, but a higher intensity than in limited change areas. Residential development in this area will generally be more reliant on the private car and less able to take advantage of public transport because of its location than the substantial change area.

Residential development will generally comprise of houses of up to 2 storeys with ground level living areas. Developments of up to three storeys and developments that contain dwellings that do not have ground level living areas will only occur if they can be justified on merit with respect to design, location and amenity grounds. Consolidation of allotments to increase development potential is encouraged.

The amenity of adjoining dwellings will be preserved by responsive site design that ensures an appropriate setback of two and three storey buildings from sensitive outdoor living areas, or from the main outlook from living rooms, on adjoining properties to enable screen planting.

Sufficient ground level space will be provided at the front of sites, and along side and rear boundaries adjacent to sensitive outdoor living areas on adjoining properties, to provide for landscaping and canopy trees to soften the appearance of the built form when viewed from the street and from adjoining sensitive outdoor living areas, and to provide a landscaped character throughout the area.

1. Council's ground of refusal was on the basis that the proposed development is considered to be a 'high density' housing development and is therefore inconsistent with the rationale of clause 22.09-3.2. On review of clause 22.09-3.2 there is no definition of what is low, medium or high density but policy does state that development in this location will be at a lower density than in substantial change areas. This is not disputed by the Applicant for Review. The Applicant for Review however submitted that clause 22.09 is a character policy and that Council did not refuse the proposal for character reasons. It was put to me that Council refused the proposed development largely for internal amenity reasons.
2. Having regard to the local planning policy framework, I find that it is clear that there is support for medium density development in this location. I do not need to determine the definition of low, medium and high density as it applies in this case, as the proposal does not fail due to the application of clause 22.09. The proposal fails due to the internal amenity offered to future occupants as discussed below.

1. I am persuaded by Council that the internal amenity offered to future occupants is poor and the proposed development is refused for the following reasons. The private open space objective of clause 55.04-5 is:

To provide adequate private open space for the reasonable recreation and service needs for residents.

1. It is fair to say that to apply the strict interpretation of the ResCode private open space requirements would be difficult given the different needs of the future occupants. This is a boarding house development not a traditional dwelling development where a kitchen, laundry and bedrooms are accommodated. The plans detail that each unit/bedroom is provided with room for a bed, a bathroom and small kitchenette. Unit 1 is a ground floor accessible unit and is provided with a car space with direct access to the room and direct access to the shared open space. Unit 2 is also a ground floor unit with a car space and 19 square metres of private open space. Units 3, 4 and 5 are all first floor units with a 3 square metre balcony. Access to these units is provided through the shared ground floor kitchen space to an external stair case or through the car space to unit 2 to the stair case.
2. The open space areas provided in the proposed development include:
   • Secluded private open space area of 33 square metres located in the south eastern corner of the site.
   • Secluded private open space area of 19 square metres accessed off unit 2.
   • The front setback to Wigstone Street.
   • A 3 square metre first floor balcony provided to units 3, 4 and 5.
3. It was agreed by the Parties that due to the small size of the rooms ranging from 13.5 to 18 square metres, it is a reasonable expectation for future occupants to have access to some outside space. I make the observation that I agree with the Applicant for Review that the strict compliance with the provision of ResCode is not required in this case due to the nature and functionality of the use. However, it could be equally said that due to the small size of the rooms some external space is important and highly valued.
4. The plan details a secluded private open space area of 33 square metres located in the south east corner of the site. This space however is not secluded, provides the area for clothes lines and bins and is south facing. As a result of its location, the space is in constant shadow from 9am to 3pm with the exception of a 'slither' of land accommodating the bins and clotheslines. In terms of the first floor balconies, at a size of 3 square metres, they are hardly large enough to stand on, let alone serve as an area of open space. With the exception of unit 2 that is provided with a reasonable sized north facing private opens pace, I find that the level of open space provided in this proposal cannot be considered to provide adequate space for recreational needs. The south facing ground floor space provided is little more than a service yard that provides bin storage, clotheslines and access. In any future proposal, greater thought needs to be given to the orientation of any private open space and how and who is to use it.

1. Council raised concern regarding the proposed dwelling entries particularly to the first floor units 3, 4 and 5. The plans detail that access to these units is either via the communal kitchen on the ground floor, then to an external stair case, or through the car space to unit 2 to the stair case.
2. In response to Council's concerns, the Applicant for Review presented a plan that modified the access to the first floor units. It proposed an internal staircase provided from a new front access point off Wigstone Street. The plan however also reduced the size of the accessible unit, which may not be desirable.
3. This plan was not submitted as an amended plan but one for information only. Based on the application plans, the dwelling entry to units 3, 4 and 5 is unacceptable. I accept how these units are accessed may differ from a conventional house; however, the dwelling entry objective is a relevant consideration and reads:

To provide each dwelling or residential building with its own sense of identity.

1. The proposed development fails to provide adequate entry to the first floor bedrooms.

1. Council refused the proposed development on the ground that the front setback fails to meet the minimum front setback requirement of clause 55.03-1. The proposal to Wigstone Street is setback 6.38 metres to the building line of the porch and first floor balcony and 7.58 metres to the building line. The dwelling to the south is setback 7 metres to Wigstone Street.
2. The Applicant for Review put to me that the required front setback is 7 metres, not 7.5 metres and that the area of non-compliance with the first floor setback of 6.38 metres. The street setback objective of clause 55 reads:

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

1. I am persuaded by the Applicant for Review that the setback as proposed is acceptable. Even if the first floor balconies were removed, it does not result in increased landscaping opportunities in the front setback. The proposed setback is reflective of the adjoining setback of the dwelling to the south. The proposed setback provides an area for a front garden and the planting of canopy trees. It also achieves the objective to respect the neighbourhood character and make efficient use of the site.

1. The overshadowing plans detail overshadowing of the secluded private open space of the adjoining properties to the east and to the south between 9am to 3pm. The shadow diagrams did not provide a detailed assessment but the Applicant for Review submitted that the level of overshadowing to the southern property would not comply with the standard of 55.04-5 [Overshadowing open space].
2. Whilst overshadowing of these properties was not raised as a reason for refusal nor were there any objections regarding the overshadowing, I have concerns. The proposed two storey development would have an unreasonable impact by way of overshadowing to the secluded private open space of the adjoining properties. In any future proposal, this issue requires further consideration.

1. Whilst I agree with the submissions of Council and the Applicant for Review that this is a case where a more lateral interpretation of ResCode should be applied, the principles of ResCode such as providing for a good internal amenity and minimising the impact on adjoining properties remain a relevant consideration.
2. In this case, the proposed development fails to provide a good level of amenity for future occupants. I further conclude that based on the information before me the impact of overshadowing to adjoining secluded private open spaces are unreasonable.
3. For the reasons explained above, the decision of the Responsible Authority is affirmed. No permit is to issue.

[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.

[2] Supported Residential Services Design Guidelines, Third Edition, August 2013_._