Clause 32.01 Residential 1 Zone for construction of two or more dwellings on a lot.

Relevant Policies and Provisions of the Boroondara Planning Scheme

Clauses 11, 12, 14, 15.12, 16 and 19.03 in the State Planning Policy Framework.

In the Local Planning Policy Framework clause 21 Municipal Strategic Statement especially 21.05 Urban Character and 21.07 Residential Land Use. Local policies at Clauses 22.03 Car parking and 22.07 Neighbourhood Character Policy.

The review site is rectangular with a frontage of 21.34 metres, a depth of 54.69 metres and an area of 1167.1 square metres

The land is located on the south east side of Belmore Road between Evelina Street and Union Road in Balwyn. The land slopes down from the frontage to the rear and contains a double storey dwelling setback over 10 metres from the frontage. There are several trees in the front setback with the rear yard containing a pergola, carport, shed and swimming pool.

To the immediate south west there are two double storey dwellings. To the north east is a single storey dwelling. There are two properties that adjoin to the rear. At 42 Relowe Crescent a large rear garden adjoins the review site. At 2/40 Relowe Street a smaller rear private open space area adjoins the review site.

The area is residential in nature. The Balwyn East shopping centre is located close by and several bus routes run along Belmore Road.

I undertook an inspection of the review site and surrounds on 9 October 2009 including a view from 1/40, 2/40 and 42 Relowe Crescent.

1. This case is about an application for a double storey dwelling at the rear of an existing dwelling in Belmore Road, Balwyn. The application also proposes a carport for the existing dwelling.
2. Boroondara City Council (the 'Council') have refused to grant a permit on grounds relating to unacceptable building bulk to adjoining properties, inappropriate impact of the carport for the existing dwelling, overlooking and inadequate provision of private open space and landscaping opportunities.
3. Residents of properties to the rear of the review site support Council's position and raise concerns about negative impact on valued neighbourhood character, overdevelopment, visual bulk and loss of amenity.
4. The applicant for permit conversely submits that the proposal is site responsive, presents a scale and mass that is appropriate in the context of the surrounding pattern of development, avoids external amenity impacts and will contribute to the garden character of the area.
5. Having inspected the review site and surrounds, considered the submissions and the applicable policy and provisions of the Boroondara Planning Scheme (the 'Scheme'), I find that the proposal is acceptable for the review site. My reasons follow.

1. My decision to support the proposal is based on my findings on the following key issues:
   • Built form and its impact on neighbouring properties and neighbourhood character.
   • Entry to the existing dwelling
   • Adequacy of private open space.
   • Opportunity for landscaping
   • Overlooking and overshadowing
2. Before turning to these issues, I record that I find the site is in a suitable location for increased residential density and such development would meet State and local policy that seeks better use of existing infrastructure, urban consolidation and increased diversity of dwellings. No party disputed the suitability of the site for the development of a second house.

1. Ms Rea, for Council, raised two main concerns about the built form of the proposal. Firstly, that the design of the new dwelling is bulky, inappropriately presents sheer walls and is sited with setbacks that do not allow adequate area for the softening effect of landscaping. The second concern of Council is the proposed carport and vehicle turning area in the front setback of the existing dwelling and the negative impact this would have on the streetscape and on the entry to the dwelling.
2. Mr Opray, on behalf of some of the respondents, submitted that the dwelling is bulky, overpowering and fails to complement the neighbourhood character which is one of space and amenity. In particular the scale and building mass is inappropriate and does not meet the Council's Residential Design Policy that seeks the first floor of any dwelling to be less than 50% of the ground floor. The overbearing nature of the dwelling is exacerbated, in Mr Opray's submission, by the difference in levels between the review site and the adjoining properties in Relowe Crescent.
3. Mr Tsui submits that the dwelling is excessive in height and is sited too close to the rear boundary resulting in a 'visual eyesore' when viewed from adjoining properties.
4. Mr Collins, for the applicant, submitted that the proposed dwelling is a contemporary design that responds to the mixed style of development in the area and provides articulation and setbacks that are respectful of neighbourhood character.
5. There is considerable emphasis in the Scheme on new development respecting neighbourhood character and responding appropriately to the site and surrounds. The site is included within Character Area No 37 under the Boroondara Residential Urban Character Study, a reference document in the Scheme. Elements identified as quite important in this character area include moderate canopy vegetation, mixed lot sizes and moderately sloping land form. My inspection of the area confirms the description in local policy as a leafy suburb with dwellings, both single and double storey, set in attractive gardens. Built from varies with 1950s era development common and some examples of more recent development. The immediate context includes substantial double storey dwellings to the west, south and on the review site.
6. I find the design responds appropriately to adjoining properties and will not be intrusive in the neighbourhood. In saying this I acknowledge that the development will result in the currently open backyard of the review site being substantially reduced. This is a consequence of accommodating increased density and diversity of dwellings in established suburbs to meet increased housing needs and make better use of existing infrastructure, matters that are also given emphasis in State and local policy. In assessing the built form impact of the proposal, I examine each interface[1] in turn.

1. The retention of the existing double storey dwelling together with the slope of the land means the new dwelling at the rear of the review site will have little impact to the street. The existing crossing, driveway and high front fence are to be retained contributing to the maintenance of the existing streetscape.
2. I find the double carport proposed in front of the entry to the existing dwelling acceptable. The existing dwelling is 'L' shaped and the carport would be located within the gap created by that shape and will not protrude forward of the front setback thus avoiding inappropriate intrusion into the front garden.
3. The reversing area proposed in front of the carport will mean less area is available for landscaping. However, given the relatively generous front setback of over 10 metres to the dwelling and 6 metres to the reversing area I am satisfied that there is sufficient area retained as front garden. The existing high front fence also means that visibility of this area to the street is restricted.

1. The adjoining property to the east, at 358 Belmore Road, contains a single storey dwelling with a carport, shed and private open space adjoins the common boundary with the review site. I am satisfied that the new dwelling will not be visually intrusive to this private open space area or to the dwelling at 358 having regard to the following:
   • The new dwelling will be over 20 metres distant from the existing dwelling. This distance and the intervening shed avoid significant visual impact to the dwelling.
   • The garage for the new dwelling is proposed on the boundary with a maximum wall height of 3 metres but the two storey dwelling is setback nearly 6 metres from the common boundary providing adequate physical separation from the private open space area.
   • There is relatively dense vegetation along the western boundary of 358 that will provide screening of the new development.

1. To the west, at 354 Belmore Road, are two dwellings. Both of these are two storeys and incorporate private open space that has outlook to the review site. The front dwelling, 1/354 Belmore Road, is over 20 metres from the proposed dwelling. The rear dwelling, 2/354 Belmore Road, is an elevated two storey dwelling setback some 10 metres from the common boundary with the review site.
2. The topography and the dwelling design of 2/354 Belmore Road means there are currently substantial views available between the two properties. Although the new dwelling will replace what is currently an open rear yard I consider the design and setbacks to the west boundary are respectful of the adjoining development.
3. The setback of the new dwelling to the west boundary will vary between 2.8 and 4.3 metres and the dwelling extends for a distance of 11 metres along this elevation. I consider this variation in setback, the extent of the west elevation, and the use of render for upper level walls and brick for lower level walls will provide articulation in a manner that will avoid visual bulk when viewed from the west. Furthermore I find that the setbacks will allow some opportunity for landscaping.

1. The properties of the three respondent objectors are located to the south or rear of the review site and have an address to Relowe Crescent. Having carefully considered the impact of the proposal to these properties assisted by a site visit, I consider the proposal will result in a changed but acceptable interface to the rear. I address each of the respondent objectors properties ,as follows.
2. The rear garden of Mr and Mrs Lee's property at 42 Relowe Crescent adjoins[2] and is lower than the review site. I am not concerned about views of the new dwelling from the house on 42 Relowe Crescent given that it is setback 25 metres from the common boundary and there are intervening trees and shrubs that will significantly filter outlook. I agree that there will be views of the new dwelling from the rear garden of 42 Relowe Crescent but I am not persuaded that this change is unreasonable. A garage wall extending for 6.4 metres along the boundary at a height of approximately 3 metres I consider an acceptable boundary treatment in a suburban setting. The new dwelling will be setback between 3.5 and 4.1 metres from the rear boundary and combined with the variation in external wall finishes to the rear elevation will provide modulation that, in my opinion, will avoid visual bulk.
3. Unit 2/40 Relowe Crescent has a common boundary with the review site[3] of approximately 8 metres. The dwelling at 2/40 Relowe Crescent is setback some 7 metres from the boundary of the review site and private open space is located in that setback. The proposed dwelling will be setback from the common boundary a minimum of 3.5 metres at ground level and 4.5 metres at upper level and will have a maximum height of 7.4 metres. I find the separation achieved by these setbacks combined with the existing high fencing to this boundary, the partly recessed upper level and variation in external finishes will avoid unreasonable visual bulk when viewed from 2/40 Relowe Crescent, noting that the building height and setbacks proposed achieve compliance with ResCode[4] standards.
4. I do not share concerns about unacceptable impact of the development on 1/40 Relowe Crescent. This dwelling and its associated secluded private open space is located in excess of 16 metres from the rear boundary of the review site. This separation combined with the screening effect of the double storey dwelling behind at 2/40 and existing vegetation on 1/40 Relowe Crescent means the proposed dwelling will have little visual impact to this property.
5. Mr Opray, speaking for respondent objectors, criticised the bulk and 'top heavy' nature of the proposed dwelling and the failure of the development to meet ResCode and Boroondara Council's Residential Design Policy. My assessment is that the ResCode standards and objectives relating to side and rear setbacks, building height and walls on boundaries are met. I am satisfied that the dwelling although containing an upper level that is similar in area to the lower level nevertheless incorporates sufficient design features to avoid an unreasonably bulky building and will result in a development that is acceptable in its context. As I indicated at the hearing, I do not give weight to the Residential Design Policy of Council since this document is not incorporated or referenced in the Scheme.

1. Ms Rea submitted that the placement of the carport in front of the existing house obscures the entry and fails to meet the dwelling entry objective of ResCode.
2. The objective of Clause 55[5] relating to dwelling entry is:

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

The standard to achieve this objective states that entries to dwellings should:

Be visible and easily identifiable from streets and other public areas.

Provide shelter, a sense of personal address and a transitional space around the entry.

1. The plans show a double carport placed adjacent to the stairs leading to an elevated front verandah. This verandah provides access to the front door of the existing house. Although I think the dwelling by its freestanding nature and orientation to the street will retain a sense of identity, I agree with Council that the entry is not ideal in requiring all access to the front door to be via the carport. However I consider this can be remedied by a change in plans that could include:
   • Siting of the carport 1 metre closer to the street. This would create a 1 metre separation of the carport from the entry stairs and allow retention of an existing pathway that leads to these stairs. The revised front setback of the car port would be acceptable, in my view, since it would still be in excess of 10 metres from the frontage and not be forward of the western part of the front elevation; or
   • Removal of existing stairs to the front verandah and construction of new stairs facing east that align with the northern edge of the verandah.
2. Either of these changes would result in an appropriate entry. The deletion of the carport to allow an open car parking area in front of the entry was suggested as an option to improve entry. However given a likely future demand for a covered car space and the ResCode standard of one covered car space per three bedroom dwelling, I do not support that suggestion.
3. I will include a condition of permit that requires alterations to the plans to improve pedestrian entry to the existing house with the design outcome that provides pedestrian access outside the carport. The design I leave as a matter for the applicant and Council to finalise.

1. Council criticised integration of private open space with the dwelling and availability of solar access to the open space.
2. Secluded private open space is provided on the west, north and south side of the new dwelling and I find it adequate for the reasonable recreation and service needs of residents having regard to the following:
   • There are double doors from a dining/living room providing direct access to the west facing private open space.
   • The amount of private open space provided for the new dwelling exceeds 100 square metres, well in excess of the ResCode standard of 40 square metres.
   • Although the private open space will be affected by shadow the provision of some space on three sides of the dwelling means that there will be access to sunlight somewhere on the site at different times.

1. Council submitted that there are limited landscaping opportunities throughout the site and this is contrary to the neighbourhood character of a 'treed' environment. In particular Council criticised the inadequate opportunity for planting of canopy trees in association with the new dwelling.
2. Respect for landscape character of the neighbourhood is emphasised in ResCode and local policy where retention of valued existing vegetation is encouraged and landscaping that reflects the garden character of the area is sought. I agree the area contains well established and attractive gardens and substantial canopy trees. I consider the development can make an acceptable contribution to this character having regard to the following:
   • No trees of value or significance are proposed to be removed. The relatively large front setback of the existing house is retained including an existing canopy tree.
   • There is opportunity on the south and west side of the new dwelling to provide landscaping.
   • Sections of landscaping are proposed along both sides of the driveway that will provide a softening effect to the hard surface.
   • A condition of permit can require submission of a landscape plan that includes appropriate planting. This should include a requirement for planting of at least one canopy tree, for the turning area in the front setback to be of permeable materials and for planting to the south and west boundaries includes plants that are capable of growing above boundary fence height to provide a softening of the built form.

1. Council raised concern about potential overlooking as follows:
   • West facing window of bedroom 4 to 354 Belmore Road.
   • North facing windows of Bedrooms 2 and 3 to the secluded private open space of 354 Belmore Road and of the existing house on the review site.
   • A balcony associated with bedroom 1.
2. I agree that bedroom 4 facing west should have a high sill height or be screened to limit overlooking directly to the west. I am not concerned about views to the west from bedrooms 2 and 3. These views would be angled and are from bedrooms which have less impact on privacy compared with views from a living room.
3. Internal overlooking from bedrooms 2 and 3 of the new dwelling to the existing dwelling on the review site will be possible. I am satisfied however that the extent of overlooking is acceptably limited by the existing roofing of the majority of the rear secluded private open space of the existing dwelling together with the limited loss of privacy arising from views from bedrooms.
4. Mr Collins clarified that there is no balcony adjacent to bedroom 1 but a condition requiring this to be clarified on the plans will be included on the permit. Subject to a permit condition that requires the window of bedroom 4 to be modified, I consider the proposal does not create inappropriate overlooking opportunities.
5. Mr Tsui raised concern over potential overshadowing of his property. There will be some shadow cast from just before noon until 3pm at the equinox on the private open space of 2/40 and 42 Relowe Crescent. I find that shadows cast will not create unreasonable amenity impacts given that the relevant standard of ResCode[6] is met and the shadow is largely confined to the 3 metre wide enclosed section of right of way that is used for secluded private open space on both properties.

1. The draft conditions prepared by Council were discussed at the hearing. I have generally adopted the conditions proposed by the Council subject to some changes to accord with findings made in this decision.

1. For the reasons set out above, I will direct that a permit issue subject to 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 TP03 and TP04 revision B dated 15 September 2009 but modified to show:

1. Screening of the window to Bedroom 4 of the proposed dwelling to comply with Standard B22 of Clause 55 of the Boroondara Planning Scheme; 2. Provision of altered entry to the existing house that provides pedestrian entry outside the carport

1. Elevations of the carport associated with the existing dwelling;

1. Reversing bay to the existing dwelling to be constructed of a permeable or soft surface; 2. Clarification of the front porch treatment for the proposed dwelling where it intersects with Bedroom 1; 3. Provision of six cubic metres of external storage for both dwellings; 4. A landscape plan in compliance with Condition 4 of this permit.

1. 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 (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

1. Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

1. A landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will form part of this permit. The plan must be drawn to scale with dimension and three copies must be provided. The plan must show:

1. A survey (including botanical names) of all existing vegetation to be retained and /or removed; 2. Details of surface finishes of pathways and driveways including permeable paving to the vehicle turning area provided in front of the existing house;

1. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;

1. Inclusion of species along the southern (rear) and western (in common with 354 Belmore Road) boundaries that are capable of reaching a height that exceeds 3 metres and nomination that these plants are to be a minimum of 1.5 metres in height at the time of planting. 2. Landscaping and planting within all open areas of the site and inclusion of at least one canopy tree; 3. Planting required by any other Condition of this permit.

1. 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.

1. 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.

1. 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.

1. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Construction of Driveways and Car Parking Areas

1. 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.

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

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

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible 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.

[1] I refer to the interfaces as western, eastern and southern to reflect the elevation labels on the plans and for ease of reference, noting that the frontage of the site actually faces north west.

[2] Noting that the title shows a 3 metre wide laneway between the review site and 40 and 42 Relowe Crescent. I was advised at the hearing that fencing encloses the laneway with the Relowe Crescent properties.

[4] ResCode is a term used to refer to the provision of the Scheme that include objectives and standards for residential development. Clause 55 is applicable to developments of two or more dwellings.