1. Miriam Henry, who lives behind the review site, is joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.
2. Plans being sheets 1/5, 2/5, 3/5, 4/5 and 5/5 (all dated 30 March 2009 and marked Revision B) are substituted for the application plans.
3. The decision of the Responsible Authority is affirmed.
4. In permit application 290/2008/P no permit is granted.

Mr David Norman and Ms Nicole Worsley of David Norman Design and Construction Pty Ltd.

Ms Adrianne Kellock, Town Planner of Kellock Town Planning Pty Ltd.

No appearance but by letter dated 9 December 2008 asked that its conditions be included in any permit that may be granted.

Construction of two double storey dwellings beside an existing single storey dwelling and a three lot subdivision.

I agreed to the substitution of amended plans (5 sheets dated 30 March 2009) which were circulated on 7 April 2009 in accordance with the relevant VCAT Practice Note.

Section 77 Planning and Environment Act 1987.

Cl. 32.01-4 (two or more dwellings on a lot in R1Z).

Clauses 11, 12, 14, 15, 16.02, 19, 21.04, 22.17, 55, 56 and 65.

The review site is located on the western side of the street one lot south of the intersection with Boonong Avenue. It has an area of 1,003 square metres, a frontage of 27.4 metres and a depth of 36.6 metres. The southern side of the site contains a single storey, weatherboard dwelling which is being extended to include 4 bedrooms, a study and living areas. The northern side of the lot is set aside as open yard associated with the dwelling and is very secluded because of a tall timber paling fence across the frontage.

The surrounding area is residential. Some of the original, single storey and modestly sized dwellings remain but there are many examples of single and double storey medium density developments including 1960s/1970s era double storey apartment buildings facing Boonong Avenue to the north west of the review site.

The area is very well served by urban services including the Kananook Primary School about 50 metres away on the other side of Boonong Avenue, a local milk bar in Wells Road to the north east, the Frankston activity centre about 1.5 kilometres to the south, and numerous parks and reserves including the Port Phillip Bay foreshore about 700 metres to the west. Buses run along Boonong Avenue and Wells Road, and the Kananook train station is around 650 metres to the north east.

1. I accept that the review site is well located close to many urban facilities and that construction of a medium density development on the site is supported by policies seeking to consolidate development in well serviced urban areas close to public transport, schools, parks, shops, sources of employment and a range of other urban facilities. The review site is also within an area south of Boonong Avenue that is recognised in local policy (Clause 22.17) as having a concentration of medium density housing. These positive aspects of the site were acknowledged by Ms Kellock.
2. However these attributes also need to be considered having regard to the specific site context and the way in which the development has responded to that context. The key problem with this development is keeping the existing dwelling and trying to fit two new double storey dwellings to one side of the site. Basically all the shortcomings identified by Council flow from the desire to retain the existing house. There is no doubt that the existing dwelling is a significant constraint in achieving a site responsive site layout. A simple and equal division of the land would create three lots each of around 335m2 (assuming for this purpose that the common driveway is included in the calculation). Instead the existing single storey dwelling occupies 534m2 while the two new dwellings occupy 470m2 (or 162m2 and 170m2 excluding the common driveway). In making this analysis I stress that I am not concerned about density but rather intensity of development and the way in which the most intensive built form is concentrated onto less than half the review site.
3. Local neighbourhood character policy at Clause 22.17 includes the site within Precinct Seaford 4 and provides design objectives and responses for Seaford as a whole as well as others that are specific to Precinct 4. These objectives seek, amongst other matters, to maintain and strengthen the coastal garden settings, to maintain the openness of the streetscape, to reflect the rhythm of existing dwelling spacing, and to encourage the retention and planting of indigenous vegetation. As is the case in all neighbourhood policies, not all of the design objectives and responses are equally relevant throughout a precinct because very few areas have an entirely homogenous character. Similarly, statements about key existing characteristics do not always apply to each site or each street within a precinct although in this case the 7 key characteristics are a broadly accurate description of the area. Council submitted that the development is inconsistent with neighbourhood character because of height and building form, siting and front boundary treatment, although Ms Kellock conceded that the amended plans were an improvement and that front setback and front boundary treatment were now acceptable. I agree that the amended plans are an improvement but I am not satisfied that they have achieved the sort of outcome sought by neighbourhood character policy.
4. Although Ms Henry may be concerned about two storey dwellings, in principle two storey dwellings do not concern me provided they are well designed and respond to neighbouring conditions. I accept Mr Norman's submission that the proposal has a high level of compliance with the numeric ResCode standards and that compliance with those standards is a good starting point in assessing how a proposal responds to its site context. I also agree with Senior Member Byard that compliance with ResCode standards results in the relevant objective also being met (see Chak Lai Li v Whitehorse CC).[1]&[2]
5. But as also noted in Chak Lai Li (as corrected by No.2):
   1. It does not follow from this that a proposal that meets the relevant ResCode standards must necessarily receive a permit. That may be a strong indication for the grant of a permit, but it does not mean that a permit is an automatic result. There may nevertheless be valid planning considerations that indicate refusal, and that outweigh considerations in favour of the proposal. ...
6. While it is easy to measure whether a quantitative standard has been met, it is the qualitative objectives such as neighbourhood character which are open to a difference of opinion. I have already explained that the biggest constraint in achieving a site response and acceptable development is the desire to retain the existing dwelling. Because of that constraint the design has some serious shortcomings which together result in an unacceptable proposal. These include:
   • The unequal distribution of land to the three lots so that the existing single storey dwelling occupies 53% of the site while the two new double storey dwellings (and the new common property driveway which is not shared with the existing dwelling) occupy the remaining 47%.
   • The common driveway occupies around 13% of the site and yet it provides no access to the existing dwelling with the result that the existing dwelling is required to retain a separate driveway and car storage area at the front of the site.
   • The minimal boundary setbacks to the northern and central boundaries. While building setbacks may accord with the ResCode standard, I am not convinced that they satisfy neighbourhood character policy set out in Clause 22.17 which amongst other things asks that new development reflect the rhythm of existing dwelling spacing and to maintain the informal garden setting.
   • The main living areas for the two new dwellings are at first floor and introduce activity at a height which is largely foreign and quite at odds with the neighbourhood. I accept that as a matter of course neighbours can hear one another from their backyards, but that is quite different to including two first floor decks above the backyard of the two neighbouring properties to the north. The decks are reasonably large, unshaded for the majority of the day and, because they lead off living areas, will undoubtedly be the primary area of secluded open space for these two dwellings. Despite the screens, neighbours will perceive activity on the decks and to that extent they will be intrusive, particularly if larger or noisier gatherings take place on the decks.
   • The need to screen windows or fit highlight windows for almost all the first floor rooms of the new dwellings to avoid overlooking.
   • The inability to provide any meaningful landscaping or canopy trees anywhere along the northern boundary or between the new driveway and the existing dwelling. Retention of the large tree in the front setback is major plus as is the intention to retain the two large trees at the rear of the site. I acknowledge Ms Henry's submission that these two trees are unsuitable, and in the case of the eucalypt unsafe because it is dropping limbs. They could be removed and replaced with more appropriate species.
   • The relocation of the storage space within the garage for the front dwelling has reduced the width opposite the garage door to around 5 metres which would make vehicle movements very constrained. I accept this could be overcome in the manner discussed at the hearing but it is nevertheless a shortcoming that has arisen with the revised layout shown on the substituted plans.
7. Redevelopment of this site would be transformed if the existing dwelling was replaced with a new dwelling so that the three dwellings were of a consistent design, scale, materials and colours. Respecting neighbourhood character is not necessarily achieved by retaining an older dwelling which is at complete odds with the new dwellings being placed on the rest of the site. Such an approach may work where a single new dwelling is being located behind or beside a dwelling of great intrinsic character, and in a street with a uniformity in design, scale, setbacks, use of building materials and so forth, but that is not the case here where the existing dwelling appears to have little intrinsic merit except that it is a modest, weatherboard house set on a large lot and set off all boundaries.
8. If a medium density development is to be constructed on this site then removing the existing dwelling would allow for a much more efficient site layout with a more equal distribution of space between the new dwellings. It may even mean that the dwellings could be single storey or with very modest and well articulated first floors. A revised layout would free up space between each of the dwellings and at the rear and sides of the development and would allow for a development that better respects the character of this neighbourhood and the design responses set out for Seaford Precinct 4.
9. As noted, a redesigned proposal may also mean that there is no need for first floors, although I do not necessarily reject well articulated two storey or attic style dwellings provided issues such as window orientation, screening and hence internal amenity are well handled. I also note that in making these changes there would be no point in creating three very large dwellings exhibiting the same sorts of shortcomings I have identified above. Instead it should be a genuine redesign so that the character of the development more closely matches the existing and preferred character for this part of Seaford. If the owners are not prepared to remove the existing dwelling then it may mean that a development comprising two new dwellings is not practical on this site.

1. I will therefore direct that no permit is to be issued.

[1] Chak Lai Li v Whitehorse CC (No. 1) [2005] VCAT 1274 (30 June 2005)

[2] Li v Whitehorse CC (No. 2) [2005] VCAT 1438 (18 July 2005)