The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for development of six dwellings (two on each of three separate lots) at 9 & 11 Tarakan Avenue and 16 Samarinda Avenue, Ashburton generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application but modified to show:

(a)

The frontage setback for 16 Samarinda Avenue being increased to

8.5 metres and the minimum south setback of dwelling 1,

16 Samarinda Avenue being increased to 4 metres;

(b)

Privacy screening in accordance with Standard B22 of ResCode for:

(i) North facing first floor windows of dwellings 1 & 2,

(ii)

South facing first floor windows of dwelling 1,

11 Tarakan Avenue;

(iii)

North facing first floor windows of dwellings 1 & 2,

16 Samarinda Avenue;

(c)

Landscaping in accordance with condition 3 including the provision of a minimum of one canopy tree within the frontage setback of each lot and within the secluded private open space area of all the rear dwellings on each of the lots.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3 Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

(a)

an accurate survey of all existing vegetation to be removed and retained and other natural features;

(b)

the area(s) set aside for landscaping;

(c)

a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread 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;

(d)

planting required by any other condition of this permit;

(e)

paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

4 Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

5 All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

6 Temporary barricades to protect trees to be retained must be erected around such trees, to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

7 The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained prior to the commencement of the related construction tasks.

Measures to Minimise Compaction and Damage to Tree Roots

8 Without the prior written consent of the Responsible Authority:

(a)

No goods, materials or stockpiling of fill is to be stored or vehicles parked within the drip line of any tree to be retained;

(b)

No excavation, trenching or soil removal is permitted within 3 metres of any tree to be retained.

9 The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

10 Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

11 Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

12 Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channelling and the affected nature strip, to the satisfaction of the Responsible Authority.

13 All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

14 Garbage containers must be stored out of general view, to the satisfaction of the Responsible Authority.

15 All clotheslines must be positioned so as not to be visible from any nearby street, to the satisfaction of the Responsible Authority.

Reticulated Electricity to be Provided Underground.

16 Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

17 No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

18 Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

19 Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant authority.

(a)

The development does not start within two (2) years of the issue date of this Permit; or

(b)

The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for development of six dwellings on three separate lots at 9 & 11 Tarakan Avenue and 16 Samarinda Avenue, Ashburton. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

•

The scale, bulk, frontage setbacks and height of the proposed buildings are excessive and will have a dominating impact upon the streetscape and surrounding area.

•

The design, layout and massing of the proposed development fails to respond to the prevailing pattern of development nearby.

•

The provision of the secluded open space is unsatisfactory for all dwellings with the exception of Dwellings 2/9 & 2/11 Tarakan Avenue.

•

A site layout that includes a gun barrel driveway and partial use of the frontage setback for secluded private opens pace which is contrary to the prevailing neighbourhood character.

•

The proposal will result in unreasonable overlooking from the first floor habitable room windows and terraces into the adjoining properties to the north and south in Tarakan and Samarinda Avenues.

2 The parties and the witness at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

3 The subject land falls within a public housing estate developed immediately after the second world war for returned serviceman. The estate is bounded by High Street, Warrigal Road, Gardiners Creek and the Alamein railway line. The estate is broadly characterised by modest single-storey dwellings built in red brick, or rendered concrete panels interspersed with relatively small blocks of walk up flats. The estate is well located in terms of its proximity to public transport, community facilities, and public open spaces. Indeed, the Ashburton Swimming Pool and Recreation Centre lies to the east of Samarinda Avenue.

4 The subject land is comprised of three separate lots, two adjoining lots in Tarakan Avenue which back on to a single lot in Samarinda Avenue. The lots are regular in shape, and like surrounding lots contain the modest single-storey dwellings which are characteristic of the estate.

5 In recent years within the estate there as been a considerable growth in land value, and there is evidence of progressive redevelopment occurring, with new one and two-storey dwellings replacing the original dwelling stock. However, while there is evidence of some redevelopment in both Tarakan and Samarinda Avenues, they remain streets in which the original modest dwellings of the estate predominate.

6 The proposal is for what is essentially three separate dual occupancies, one on each of the original lots. In each case, the development on an individual lot comprises two two-storey dwellings, one behind the other, each with three bedrooms and a double car garage[1], accessed from a common driveway extending along the southern boundary of the land. In

7 Attachment 1 there is an extract from the design response plan, which sets out the relationship between the three lots which comprise the subject land to surrounding lots, and the development proposed on the subject land and its relationship to development of surrounding lots. (In Attachment 1, north is to the left of the page).

8 It appears to me that, on a site-by-site basis, the design of the proposed dwellings has been well resolved. The architecture involves simple but highly articulated building forms, using a mix of face brickwork and rendered finishes, which is responsive to the simple palate of forms and materials found within the estate. The proposed dwellings are modest, averaging about 160 square metres, but the combination of open spaces, north facing windows and decks take advantage of the solar orientation of the various sites. The issue to be resolved is whether or not these well designed buildings, are sufficiently respectful of neighbourhood character, and responsive to the use and development of adjoining land.

9 Having considered the submissions, and inspected the subject land, I propose to deal with the issues at large in this application under the following broad headings:-

•

Neighbourhood Character;

•

Height and Setbacks;

•

Private Open Space;

•

Overlooking; and

•

Other More Minor Issues

10 The Responsible Authority's view of this application, in respect of the neighbourhood character issue, is perhaps best encapsulated by setting out the Responsible Authority's urban designer's response to the proposal:-

•

If there is ever a clear cut imposition of a new development of a different character into an area that is relatively unchanged and intact, this is it.

•

Some would argue that anything new in the neighbourhood would be an improvement on the dilapidated public housing in the area. I disagree.

•

Within the immediate surrounds, excepting new 2 storey houses on the south side of Samarinda Avenue which also had a bowls club and family centre, all houses were single storey. There are also duplexes.

•

To say that this development fits in with the existing character is absurd. It pushes the boundaries too far. The front setback is different, the height and elongated bulk of the side elevations and the fact that there are two dwellings per block in no way reflects the existing character and should be rejected.

11 I agree with Council's urban designer that there is cultural value in the character which is established by the modest public housing developed in the immediate post war period in this estate. Nevertheless, for the purposes of this application I think that the urban designer has defined the neighbourhood too narrowly, and misconceived the correct approach to neighbourhood character in the context of the Planning Scheme provisions governing the development of the subject land.

12 The subject land is not affected by a Heritage Overlay, there are no measures in the Planning Scheme designed to preserve the modest public housing which is characteristic of this estate. Because of the location of the estate, land values are high and there is already evidence of the original dwellings being replaced by more contemporary housing. The newer dwellings, both single and two-storey dwellings, are very much more substantial than those they replaced. In my view these economic and social realities are a relevant consideration, and therefore this emerging character is a relevant consideration in deciding whether or not the proposal is sufficiently respectful of neighbourhood character.

13 While it is true that in an historical sense single dwellings in this estate were uniformly single-storey and modest in scale, the estate from the outset included a variety of dwelling types including small blocks of two-storey walk up flats, often in small groups or clusters. None of these flats are to be found in either Tarakan or Samarinda Avenue, but they are within the relevant neighbourhood.

14 The neighbourhood character provisions of the Planning Scheme are predicated on the idea that neighbourhood character should be respected in the context of change designed to achieve urban consolidation. It is therefore irrelevant to observe that two dwellings per block in no way reflect the existing character and should be rejected.

15 Indeed, if one considers the suite of planning controls applicable within this estate, and the economic and social realities which exist, then one could reasonably assume that this is an area in which substantial change is expected to occur over time.

16 In this changing context, how does one approach a neighbourhood character assessment? I think one must look at the characteristics of the neighbourhood in highly generalised terms, i.e:-

•

Red brick, rendered concrete panels, and tiled rooves are common;

•

Front setbacks are varied but often quite generous;

•

Side boundary setbacks are usually generous;

•

Driveways extending along one side boundary are common;

•

The rhythm of buildings and spaces between buildings in the street is spacious.

17 As I have already indicated, I am of the view that the architectural form and palate of materials chosen for the proposed building is respectful of neighbourhood character. When viewed from the street, the principal mass of the proposed dwellings varies in width from 7 to 9 metres on sites which vary in width from approximately 15.5 metres to 16.5 metres. On each of the lots comprising the subject land, there is proposed a driveway extending along the south boundary of the lots. I am therefore of the view that the proposed development is respectful of the rhythm of buildings and spaces between buildings within the existing street. In part, each of the proposed buildings extends to its northern boundary, but I do not think that these elements of the building impact in any significant degree on one's perception of the relationship of the proposed buildings to the streetscape.

18 Nevertheless, the design does raise neighbourhood character/streetscape/amenity-related issues which are relevant to the question of whether or not the proposed buildings are sufficiently site responsive, i.e:

•

Each building is for two two-storey dwellings, one behind the other, how does this relate to the backyard amenity of adjoining sites;

•

The proposed frontage setback is within the range of setbacks found within the broader neighbourhood, but less than that common in the immediate environs of the site.

19 In the metropolitan area it is common place for single-storey detached dwellings to be the predominant building form in established suburban areas. Indeed, the uniformity of some suburban environments is greater than found in this estate, with its walk up flats and duplex houses. Notwithstanding this, it would be unusual for the Tribunal to find that two-storey developments are necessarily inappropriate in such an environment, particularly given that in the normal course such dwellings are as of right, unless the dwellings are part of a medium density development or on a smaller lot.

20 In this case, the proposed two-storey buildings are highly articulated. The buildings are a combination of single-storey and two-storey elements. The two-storey elements are set well back from the frontage of the site, and from side boundaries. In my view the design represents a respectful approach for the inclusion of two-storey building elements in this streetscape.

21 In relation to the question of backyard amenity, the dwellings in Tarakan Avenue have first floor elements which come within 7.5 metres of the rear boundary of the respective sites, while the dwellings at Samarinda Avenue have first floor elements which come within 4.5 metres of the rear boundary of that site. It is true that two-storey development towards the rear of sites in suburban context can raise issues in respect of the amenity of adjoining backyards. However, in this case, the orientation of the sites, the nature and location of development on adjoining sites, and the location of private open space areas on those sites, has the effect that in most cases the proposed two-storey buildings will have no unreasonable amenity impacts on adjoining sites.

22 A possible exception to this is the relationship between the rear dwelling at 9 Tarakan Avenue in respect of its impact on the rear garden space of 7 Tarakan Avenue. However, having had regard to the relationship of the existing dwelling, and its tall north-facing gable end to number 7, and the fact that the proposed dwellings are to the south of number 7 Tarakan Avenue, I do not consider the relationship to be unreasonable.

23 In Tarakan Avenue the frontage setback of the proposed dwellings varies from 6.9 metres to 10.4 metres, in each case. These setbacks are within the range of frontage setbacks evident within the estate, but are less than those within the immediate environs of the site. The smaller setback relates to a single-storey bay comprising one room within the dwelling, 4.85 metres wide as it presents to the street. I think if one has regard to the narrowness of this bay, the overall narrow presentation of the buildings and street in relation to its overall site width, then one can conclude that a satisfactory streetscape outcome is achieved in the case of these two lots.

24 In Samarinda Avenue, the frontage setback of the proposed dwellings is 7.12 metres. There is what amounts to a single bay, 7.6 metres wide at this setback. Having regard to the greater mass of building, at this setback, I am of the view that in this case it would be appropriate if the frontage setback was increased to 8.5 metres, the same as that of 14 Samarinda Avenue.[2]

25 For all three of the lots comprising the subject land there is proposed a common access driveway extending along the southern boundary of the respective lots. In every case, the garages for the proposed dwellings are to the north of the driveway, and therefore only oblique views of garages are available from the street. In response to a characteristic of the locality, the architect proposes concrete strips, rather than fully paved driveway surfaces.

26 The proposed driveways are essentially similar to those which exist on each of the subject lots, but instead of terminating in a garage, they terminate in a small area of open space which, at least for the Tarakan Avenue properties, is intended to incorporate a feature tree. In Tarakan Avenue the buildings are set back at least 4.8 metres from the south boundary fence, allowing for generous landscaping along the driveway, including a 1 metre landscape strip adjacent to the south boundary fence. In Samarinda Avenue the equivalent south boundary setback is only 3.5 metres. I am of the view that this setback should be increased slightly to enable better landscaping of this driveway.[3]

27 The Responsible Authority argued the areas of private open space provided were inadequate, by comparison with the private open spaces traditionally associated with the established houses in the area The proposes opens space for the front dwelling in each case was also criticised because part of the open space was in the frontage setback. In my view there is no basis for the suggestion that new medium density dwellings should have to provide private open spaces equivalent to the backyards available to modest suburban houses developed in the 1950's. The proportion of the frontage setback area required for private open space is minor, and in my view entirely appropriate.

28 In relation to the issue of privacy, existing conditions in respect of developments and landscaping on adjoining sites limits the degree to which privacy measures are necessary. It is true that these characteristics of adjoining sites might be regarded as being transitory, but they demonstrate that in any future development of adjoining sites there are feasible measures to ensure a reasonable degree of privacy for that future condition. Some privacy measures are required and this is reflected in my permit conditions

29 Some respondent objectors were concerned about the traffic implications of the proposed development, and of the level of activity which might result on adjoining sites. In my view, one additional dwelling on an adjoining site, or two additional dwellings in the street, is quite unlikely to result in any unreasonable amenity impact.

30 In recent decades the fashion for large box-like two-storey dwellings has resulted in community concern about mass and character. Responses to this concern include the encouragement of attic-style dwellings, or dwellings with first floors inset from the floors below. Simple design ideas such as this have led to improvements in the massing of two-storey dwellings within our neighbourhoods. However, when such ideas degenerate into simplistic concepts such as sheer two-storey walls are inappropriate or that the only appropriate solutions are attics, or first floors entirely inset from the floors below, then the ideas cease to be useful tools for the assessment of good design.

31 The same can be said for the accusation that a driveway is a gun barrel driveway. Long, straight, poorly landscaped and harshly paved driveways can be an unattractive, and are pejoratively known as gun barrel driveways. On the other hand it is not universally true that all straight driveways exhibit this character.

32 In this case:

•

the dwelling are highly articulated and include two storey walls, and;

•

the proposed driveways are site and locality responsive design solutions.

There will be occasions when "sheer two-storey walls" or "gun barrel driveways" will be inappropriate, but it won't be because they are two-storey walls, or gun barrel driveways, it will be because the underlying design defects which are the basis upon which these jargon terms were developed exist.

33 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit issued. In deciding the conditions to be included on the permit I have had regard to the "draft" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons. In particular Mr Mithen proposed a number if detailed design changes which I have ultimately concluded are unnecessary.

ATTACHMENT 1 - EXTRACT FROM DESIGN RESPONSE PLAN

[1] Except for Dwelling 2, 16 Samarinda Avenue which is a two bedroom dwelling with a single car space.

[2] This change will require a reduction in the overall length of the building at ground floor level together with some associated change to the east-west location of the first floor.

[3] This change should be achieved by reducing the ground floor width of the building at this location.