1. Before the development starts, or any trees or vegetation removed, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:

(a)

A reduction in the overall height of Residence 2 to a maximum height of RL 107.1.

(b)

The front porch/verandah of the dwellings are to align and reflect the 'discussion' plan submitted to the Tribunal on 7 February 2005.

(c)

Complete details of dwelling materials, colours and finishes including colour swatches and a sample board.

(d)

The deletion of the timber shingles and replacement with slatted gables on the front facade.

(e)

The substitution of the colourbond iron roofing for both dwellings with a tiled roof.

(f)

The garage roof line for both dwellings to be modified to a simple half gable or a flat roof profile.

(g)

One additional step between the end of the living room and the rear private open space area for residence 1 to reflect the slope of the site.

(h)

Site grades measured at 90 degrees to the angle of parking (i.e. north-south direction) and levelled to a grade that does not exceed 1 in 16 (6.25%).

(i)

The driveway to Residence 2 to be modified to a splayed landscaped entry to accord with the existing crossover.

(j)

The garage of Residence 1 must be provided with clear internal dimensions of at least 6.0 metres long and 3.5 metres wide.

(k)

The garage of Residence 2 to be modified to accommodate an opening on the northern boundary (similar to a carport structure) and to maintain the 1.0 metre setback.

Once approved these plans become the endorsed plans of this permit.

2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.

3. The development must be provided with external lighting capable of illuminating access to each garage, car parking space and pedestrian walkways. Lighting shall be located, directed and shielded and of limited intensity that no nuisance or loss of amenity is caused to any person within and beyond the site.

4. A retractable or folding linear type clothes line shall be provided in the private courtyard appurtenant to each dwelling unit, no other type of clothes line shall be permitted unless indicated in writing by the Responsible Authority.

5. All internal fences or internal screen walls marked on the endorsed plan shall be maintained to the satisfaction of the Responsible Authority.

6. All piping and ducting, except downpipes, above the ground floor storey of the building shall be concealed.

7. Floor levels shown on the endorsed plans(s) must not be altered or modified without written consent of the Responsible Authority.

8. The discharge of water from the property shall be controlled around its limits to prevent any discharge onto any adjacent property or streets other than by means of an underground drain discharged to an approved outlet in a street to an underground pipe drain.

9. Provision must be made for the drainage of the site including landscaped and pavement areas all to the satisfaction of the Responsible Authority.

10. The area set aside for the parking of vehicles, together with the associated access lanes as delineated on the endorsed plan shall:

(a)

Be provided and completed to the satisfaction of the Responsible Authority prior to the commencement of the use hereby permitted;

(b)

Thereafter be maintained to the satisfaction of the Responsible Authority;

(c)

Be made available for such use at all times and not used for any other purpose;

(d)

Be properly formed to such levels that it can be used in accordance with the endorsed plan;

(e)

Be drained and sealed with an all weather seal coat to the satisfaction of the Responsible Authority.

11. Standard concrete vehicular crossing/s must be constructed to suit the proposed driveway/s in accordance with the Responsible Authority's standard specification and any vehicle crossings no longer required must be removed and the land, footpath and kerb and channel replaced all to the satisfaction of the Responsible Authority.

12. No buildings or works shall be commenced (and no trees or vegetation shall be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority. This plan when endorsed shall form part of this permit. This plan shall show:

(a) A survey of all existing vegetation, abutting street trees, natural features and vegetation.

(b) Buildings, outbuildings and trees in neighbouring allotments that would affect the landscape design.

(c) Planting within and around the perimeter of the site comprising trees and shrubs capable of:

(1)

Providing a complete garden scheme

(2)

Softening the building bulk.

(3)

Providing some upper canopy for landscape perspective.

(4)

Minimising the potential of any overlooking between habitable rooms of adjacent dwellings.

(d) The proposed design features such as paths, paving, lawn and mulch.

(e) A planting schedule of all proposed vegetation (trees, shrubs and ground covers) which includes, botanical names, common names, pot size, mature size and total quantities of each plant.

Landscaping in accordance with this approved plan and schedule shall be completed before the building is occupied.

Once approved these plans become the endorsed plans of this permit.

13. Prior to the occupation of the development hereby permitted, all landscaping, including trees, shrubs and lawn, shall be planted to the satisfaction of the Responsible Authority.

14. The boundary walls of the dwellings must be constructed, cleaned and finished prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

This permit will expire if:

(a)

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

(b)

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

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

Mr Rigoni, Consultant Planner, Terrain Consulting Group

1 This is an Application under Section 79 of the Planning and Environment Act 1987 [the P and E Act] brought by J Docking against the Moonee Valley City Council's failure to make a decision within the prescribed time with respect to permit application no. MV 16274/2004. The permit application seeks permission for the construction of two dwellings on land at 91 Fawkner Street Aberfeldie.

2 After the permit application was lodged with the Council, it required notice to be given under Section 52 of the P and E Act. In response, the Council received one objection which was summarised in Council's submission as follows:

•

The proposal will have an adverse impact upon the Fawkner St streetscape and related neighbourhood character concerns.

•

Increase in on-street parking.

•

Such development should only be permitted adjacent to trams, trains and shopping centres, not in a quiet residential location.

3 Whilst Council did not make a decision within the prescribed time, on the 5th November, Council was of the opinion that it would have refused to grant a planning permit on the following grounds:

1. The proposal represents an unacceptable level of bulk and scale on the land and to the surrounding area, particularly in terms of the impacts of the proposal on the streetscape, existing and preferred neighbourhood character and on adjoining backyard areas, failing to satisfy the objectives of Clauses 55.02-1 and 55.02-2 of the Moonee Valley Planning Scheme.

2. The proposal fails to meet the street setback objective of Clause 55.03-1 of the Moonee Valley Planning Scheme (in terms of ground and first floor front setbacks).

3. The proposal fails to meet the building height objective of Clause 55.03-2 of the Moonee Valley Planning Scheme.

4. The design detail proposal is not in keeping with the existing or preferred neighbourhood character, failing to meet the requirements of Clause 55.06-1 of the Moonee Valley Planning Scheme.

5. The proposal fails to satisfy the Residential Design Provisions set out at Clause 22.06.10 and 22.06-17 of the Moonee Valley Planning Scheme.

6. The proposal is not site responsive and this provides an inadequate design response for the land and surrounding area.

7. The proposal fails to satisfy the relevant provisions of the State Planning Policy Framework, the strategic vision for residential development contained at Clauses 21.03 and 22.06, the objectives of Clause 32.01-4 and Clause 65.01 of the Moonee Valley Planning Scheme.

4 The application for review was lodged on 1 October 2004.

5 It is noted on the Tribunal file, that the objector E and P Illesinghe were unable to attend the hearing but would like their objection noted.

6 At the hearing Ms Salmon and Mr Rigoni tabled and spoke to written submissions. The parties also presented other material to assist our consideration of the matter including photographs of the subject site and surrounds. The documents tabled at the hearing have been retained on the Tribunal's file.

7 It is noted that during the hearing, Mr Rigoni presented plans to me that he believed address the draft conditions circulated by the Responsible Authority. The plans were not intended to be submitted as amending plans, but as suggestions in how the development can be amended to satisfy the draft conditions. The primary suggestions included:

i

Reduction in the height of Residence 2 to a maximum of RL 107.1

ii

Deletion of the timber shingles and replacement with slatted gables on the front elevation.

iii

Amendment to the garage roof form.

9 The site is located on the east side of Fawkner Street approximately 60 metres south of Chisholm Street and 80 metres north of Tilba Street.

10 The site is rectangular in shape with a frontage of 16.26 metres, a depth of 40.23 metres and an overall site area of 674.25 square metres.

11 The site currently accommodates a single storey California Bungalow.

12 The site has a slope of .97 metre from the north to the south boundary.

13 The surrounding area is a residential area with a local catholic school existing in near Buckley Street, and a group of shops located in Buckley Street.

14 The immediate neighbourhood is one of low key residential houses with little new development. The immediately adjoining dwellings are low key Californian Bungalows. In the broader area however, there has been a random range of new development occurring, largely two storey and of a variety of building styles and materials.

15 It is proposed to develop the site for two double storey dwellings. The main features of the proposal are described as follows:

•

Each dwelling is to comprise of three bedrooms.

•

The ground floor is to accommodate an open plan family/dining/kitchen area, bathroom and study.

•

The first floor is to accommodate three bedrooms, the main with an ensuite. A balcony is also proposed at the first floor with screening to the height of 1.7 metres provided.

•

A garage with a tandem car space is proposed for each dwelling on the north and south boundaries.

•

The dwelling is proposed to be setback 8.1 metres to the bay window, 9.0 metres to the façade and 10.5 metres to the garages from Fawkner Street.

•

The dwellings are proposed to be constructed of a combination of brickwork and weatherboard cladding with a colourbond roof with a tilt panel garage door.

16 The subject site is zoned Residential 1, Clause 32.01 under the provisions of the Moonee Valley Planning Scheme [the Scheme]. A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.

17 No overlays apply to the site.

18 The decision guidelines at Clause 65 require consideration to be given to a number of factors including the Planning Scheme's policies, the purpose of the zone, overlay and particular provisions that apply, orderly planning and amenity.

19 There are a number of Clauses that set out policies that are in some way relevant to the consideration of the proposed application including:

•

Clause 14 Planning for urban settlement, Clause 16 Housing, Clause 19 Particular uses;

•

Municipal Strategic Statement including Clauses 21.02-3, 21.03, 21.06, 22.06 Residential Design Policy and specifically 22.06-10 Aberfeldie Residential Design Policy. This design policy in summary highlights that the suburb offers moderate levels of infill development potential and to promote sensitive re-development and infill housing opportunities in the area.

20 In broad terms the applicable policy framework emphasises the importance of urban consolidation objectives and also the need for appropriate development to respect neighbourhood character.

21 Melbourne 2030 has been taken into account by the Tribunal. This is adopted Government policy which reinforces the State Planning Policy Framework and it is a policy to which the Tribunal must have regard.

22 Mr Rigoni submitted that the consideration of the concerns raised by the Responsible Authority can be a discussion on how the development can meet the draft conditions circulated by the Responsible Authority. Ms Salmon representing the Council agreed to this type of discussion.

23 It was agreed by both parties that the dispute is not suitability of the site to accommodate the development of two dwellings, the concerns were focussed upon the detail aspect of the design. Hence, I agree that the concerns can be discussed in addressing the draft conditions. I also note that the concerns can be broadly identified as follows:

i

The design and detailing of the proposed development is out of character with the neighbourhood.

ii

The setback of the first floor of the proposed development is unacceptable.

iii

The building bulk or scale is excessive.

The design and detailing of the proposed development is out of character with the neighbourhood.

24 Council had concerns that the proposal was elaborate in contrast to the surrounding dwellings. Ms Salmon in her submission described the development as:

The casement and dormer windows and rooflines, the chimneys and steep gabling are suggestive of a Gothic Revival/Queen Anne style. This is at odds with the relatively simple lines of the Californian Bungalows and Interwar dwellings.

25 Council highlighted that the Residential Design Principle at Clause 22.06-17 states that:

• be consistent with the overall shape or form of those dwellings which are predominant in the street and neighbourhood in general; and

• respond in a manner that positively contributes to the streetscape values.

It is Council's submission that policy discourages the development of 'mock' housing elements.

26 To address this issue, the Council prepared several draft conditions which included:

A more simplified and contemporary dwelling design by the deletion of the external chimneys, timber shingles and other "mock" detailing.

27 The Applicant also submitted a suggested plan change to the front setback including the reduction in height of Residence 2 which has the effect of bringing the front porches of the dwellings in line and simplifies the front façade of the dwellings. The Applicant also proposed to reduce the level of "mock" detailing and replace for example the timber shingles with a slatted gable.

28 The issue that needs to be addressed is what is the character of the neighbourhood, and is the proposed development "too elaborate" for the area?

29 Based on the photographs presented at the hearing and on my inspection of the area, the immediate neighbourhood can be described as one that has experienced relatively little new development. However the broader area does accommodate dispersed or random new development of a range of height and building styles. Whilst the adjoining dwellings to the subject site are relatively simple Californian bungalows, the broader area hosts a range of styles. I do agree with the Council, that the front elevation of the proposal is visually cluttered. However, in my opinion, the Applicant has suggested ways to address this issue with a number of suggestions including:

•

Aligning of the front porches for both dwellings.

•

Replacement of the timber shingles with a slatted gable.

•

Alternation to the garage roof.

30 The effect of these changes is to simplify the design, without requiring the level of change that the proposal may have been warranted if it was in a heritage area. In principle, I am in agreement with Member Read in George & Dimitrious Frangoulis v Darebin City Council & others (P1425/2002) where he stated in exploring the issue of neighbourhood character:

30. "However, the area is not within a Heritage Overlay, nor within an urban Character Overlay. I therefore cannot accept that it is unreasonable in principle to place a two-storeyed structure - a widely familiar scale of residential building - within the streetscape. This has already happened and a larger number of examples are found in the wider area. Urban character controls, as many divisions of the Tribunal have held, are not intended to prevent any change. The issue is rather whether the scale of new development is respectful or not, and that does not mean simply repetitive of the most median building in the area.

31 I am of the opinion that the development with the changes identified above, is respectful of the neighbourhood character of the area. The new dwellings will appear as a new element in the streetscape, but the impact is not considered unreasonable.

The setback of the first floor of the proposed development is unacceptable.

32 Council raised concerns that the front setback failed to satisfy the Residential Style Notes. This document is a reference document to the Moonee Valley Planning Scheme. The style notes state that the first floor should be setback a minimum of 3 metres from the front ground façade. The proposed first floor is not setback from the first floor. The Applicant argued that "the requirement for a 3 metre setback to the first floor will not contribute to the character of the streetscape and will be inconsistent with other recent two storey housing in the immediate neighbourhood".

33 I do not agree that a 3 metre setback is warranted in this case. The front façade is a highly articulated one with the porch providing a built element that protrudes beyond the ground and first floor setbacks. The garage also provides a secondary built form element being recessed beyond the dwelling. It is my opinion that the combination of building setbacks and materials results in a development that is acceptable in this neighbourhood.

34 Council believed that the bulk and scale of the development was excessive due to the use of mansard rooflines and other dormer windows, lack of first floor setbacks, amount of building, length of two storey component, height of building and use of chimneys.

35 Building bulk and the scale of a development is contributed to by a combination of the height and massing of a building. Elements such as a high level of articulation and use of different materials can break down the visual impact of a building. I do not agree that this is an excessive building bulk to warrant any major change or refusal. In making this decision, I address the issues of concern raised by Council.

•

The length of the building does not warrant a refusal of the development. The development is highly articulated on both boundaries with a combination of roof forms, windows and building materials to break down the visual impact of the dwellings.

•

The proposed development maintains the important garden corridor (private open space) at the rear of the yard.

•

The suggestions made by the Applicant regarding simplifying the front façade are accepted.

•

The overall height of residence 2 can be reduced which assists the visual impact to the street. The maximum height of residence 2 is to be RL 107.1.

36 In terms of planning policy, the Responsible Authority agreed that the proposal was largely consistent with State and Local Planning Policy. The site is located in a residential area, relatively close to community facilities and services and is suitable for medium density housing.

37 However, Council believes that the bulk and design are not appropriate and fails to comply with Neighbourhood character provisions and with Council's Residential Design Guidelines. I do not agree with the conclusion of the Responsible Authority. I believe that the Responsible Authority has taken a narrow interpretation of the Residential Design Guidelines and have not considered the neighbourhood character in a broad enough context. Whilst much of the surrounding area remains unchanged, there are examples of new development that have introduced new elements into the streetscape. It is also important to note that I draw my conclusions, in the context that the site is not in a Heritage or Neighbourhood Character overlay.

38 Much of the hearing was a discussion of detail regarding possible changes that could be made to the plans to address the Responsible Authority's concerns. Whilst there were a couple suggestions made by the Applicant that could not satisfy the Responsible Authority, in the main, the Ms Salmon advised that many of the suggested changes were indeed an improvement.

39 I am of the opinion, that whilst the dwelling may still appear a bit 'fussy' to the Responsible Authority, the suggested changes made by the Applicant to simplify the proposal is an improvement and ensures that that the development will respect the character of the area.

40 For the reasons that I have set out above, the decision of the Responsible Authority is set aside and I will direct the grant of a permit subject to conditions.