1. For the time being, I will refer to the proposal in accordance with the assessment of Council. In its advertised form, the proposal includes the existing detached two storey dwelling (at No. 42 Mountain View Parade) and the development of four new dwellings that extend down the block of No. 44 Mountain View Parade and around into the rear area of No. 42 in an "L" shape.
2. In terms of the four new dwellings, Dwellings 1 and 2 are double storey and each will contain 3 bedrooms, a study, an en-suite, a bathroom, laundry, kitchen, meals and living areas. Dwellings 3 and 4 are both single storey and each will contain 3 bedrooms, an en-suite, a bathroom, laundry, kitchen, meals and living areas.
3. Each of the four new dwellings are provided with two covered car spaces. Two accessways are provided into the site, one to service Dwelling 1 and the other driveway to service Dwellings 2, 3 and 4.
4. Private open space is provided for each of the new units ranging from 34m² for Dwelling 1; 45m² for Dwelling 2; 76m² for Dwelling 3; and 86m² for Dwelling 4. A landscape plan prepared for the Tribunal hearing shows some screen and canopy planting in these open areas.

1. I have inspected the subject site and the surrounding area on two occasions. The first was an unaccompanied visit where I looked at the site in the context of the wider neighbourhood. The second visit was more localised and it included a view from within the properties and the houses at Nos. 40, 42, 44 and 45 Mountain View Parade.
2. In a general sense, I adopt Council's description of the area as provided in its submission:

44 Mountain View Parade is currently occupied by a single storey cream brick dwelling with a hipped pitched tiled roof. There are a number of predominantly exotic trees within the backyard with two greenhouses located among the trees along the southern boundary. The front yard is landscaped with shrubs and contains a substantial cedrus deodara close to the northern boundary. As well as some smaller trees which are in decline.

A new three storey dwelling which includes an under-croft garage level has recently been completed and occupied at 42 Mountain View Parade. ........................This site was cleared of all vegetation prior to the commencement of construction of the new dwelling. The sites slope downwards by approximately 7.3 metres from the north-western corner to the south-western corner.

The surrounding area is characterised by a mix of single and double storey dwellings. Dwellings in Mountain View Parade are a mixture of Inter War (predominantly Californian Bungalow and English Revival) and Post War housing styles. Building materials are generally brick and terracotta or red/black tiles.

Lots on the east side of Mountain View Parade that have not been developed with units typically feature large backyards which contain a range of native and exotic trees. Multi dwelling development along the west side of Mountain View Parade is uncommon. Street trees are common and are a mix of native and exotic species.

1. The subject site and all surrounding land is within the Residential 1 zone under the Banyule Planning Scheme. It was not in dispute (aside from the description of the land and the number of dwellings) that a permit was required pursuant to Clause 32.01-4 for more than one dwelling on the lot.
2. No overlays apply to the land.
3. An extensive array of State of local policies are relevant to the application and I will discuss these in detail below.

1. The application was lodged in December 2008 and further information was sought in January 2009 which, among other things, raised some concerns with the proposal in terms of access, open space, trees, streetscape and character. Further information was received in April and June 2009.
2. Council advertised the application to surrounding owners and occupiers and received seventeen objections which it summarised as follows:
   • Density and bulk.
   • Dominance on the landscape.
   • Threat to "openness" of the area by reducing spacing between development.
   • Architectural styling of dwellings unsympathetic to the area.
   • Front setback inadequate to allow for landscaping.
   • Loss of vegetation.
   • Lack of permeable surfaces will increase the likelihood of flooding.
   • Hard paved surfaces provide insufficient space for planting which is inconsistent with the Garden Suburban Precinct.
   • Overdevelopment.
   • Insufficient turning circles (particularly for Unit 4).
   • Impact upon kerbside parking and garbage collection.
   • Safety issues associated with vehicles reversing along driveway.
   • Increased traffic.
   • Overlooking.
   • Increased overshadowing of adjoining properties.
   • Increased glare from use of white render and aluminium cladding.
   • Increased noise and air pollution.
   • The normal planning process has been circumvented by constructing the "as of right" dwelling first following by the proposal for a multi unit development.
   • Certificate of occupancy issued for the existing dwelling despite works not having been completed.
   • Construction of existing dwelling has impacted on the amenity of the area through loss of on-street parking and emission from the site.
   • Plans fail to depict earthworks undertaken on the subject site;
   • Windows of adjacent habitable room windows have not been included on plans.
   • Impacts upon infrastructure in the area.
   • Loss of views.
   • Devaluation.
3. These issues, more or less, coincide with the submissions made to me by the residents at the hearing.
4. Council took advice from its Engineering Services Section about the application and no objection was received subject to a requirement for onsite detention. Evidently, Council's arborist also provided some informal comments but these did not form part of Council's ultimate assessment.
5. Council considered the matter in August 2009 and it resolved to refuse the application on four grounds being:
   1. The proposal does not respond appropriately to the relevant State and Local Planning Policy Framework contained in the Banyule Planning Scheme, including:

1. Clause 12.05 - A great place to be - urban design, cultural identity and neighbourhood character. The proposal has not had due regard to the existing character of the area through its design response, including layout, spacing and response to the landscape. 2. Clause 16.02-1 - Medium Density Housing.

1. Clause 21.04-1 - Residential, Objectives and Strategies encourage appropriately located housing and improved dwelling types and design. The subject site is not located within the areas encouraging medium density housing as per the map included within the policy.

1. Clause 22.06 - Housing Policy. 2. The proposal is contrary to the character of the neighbourhood and fails to adequately address all of the components and objectives of Council Neighbourhood Character Strategy and Clause 22.07 of the Banyule Planning Scheme, particularly with respect to:

1. To ensure new infill buildings are sympathetic to the current building form and style. 2. To maintain consistency of current front setbacks, where present.

1. To ensure buildings and extensions do not dominate the streetscape and/or the building.

1. To minimise loss of front garden space, and the dominance of car storage facilities. 2. To maintain the view of front gardens from the street, and to reflect the predominant era of dwellings. 3. To maintain and strengthen the garden dominated streetscape character. 3. The proposal does not satisfactorily meet the following objectives of Clause 55 of the Banyule Planning Scheme:

Clause 55.02-1 - Neighbourhood Character objectives

4. The proposal is an overdevelopment of the site.

1. Having considered all submissions and having inspected the subject site and the surrounding area on two occasions, I think that the following issues need to be addressed:
   • Description of the proposal and the land;
   • Compliance with housing policy;
   • Character impacts;
   • Amenity impacts.

1. Planning permit application No. 1042/2008 was lodged with Banyule City Council on 29 December 2008 for the purposes of (according to the lodged application form):

Development of four dwellings comprising two double storey and two single storey dwellings.

1. The address of the land was listed as Nos. 42-44 Mountain View Parade, Rosanna, although the formal description on the application form was given as only Lot 1 PS 59236U (which is the registered title for the property at No. 44 Mountain View Parade).
2. Upon receipt of the application, Council's preliminary assessment of the proposal prompted a request for further information on 23 January 2009 which included the following (with Tribunal emphasis):

It is noted that the application is proposed across two parcels of land and that no subdivision or boundary realignment has been approved which reflects the proposed site boundaries shown. Unless this is anticipated, the application will need to be considered as a five dwelling application across the two sites which incorporates the recently completed dwelling at 42 Mountain View Parade and it will be necessary to:

• Amend the application form so that the proposal reads: "Multi dwelling development (five dwellings) comprising an existing double storey dwelling, two new double storey dwellings and two new single storey dwellings."
• Include the internal and site layout of the existing dwelling.

1. Evidently, Council itself then amended the application form so as to read:

Five (5) dwelling development of four dwellings comprising an existing double storey dwelling, two double storey dwellings and two single storey dwellings.

1. The permit applicant responded by letter of 5 April 2009 noting (with Tribunal emphasis):

With regard to your request, please note that the proposal is to apply for a subdivision that separates the existing dwelling at 42 Mountain View Parade. As indicated the owners of the two premises are the same, hence there is no intention to have the proposal as one whole development.

1. Council clearly did not support this submission and proceeded to consider the application as a "five dwelling" development and proceeded to advertise it on this basis.
2. Council's ultimate decision contained the following description of the proposal:

Multi Dwelling Development (five dwellings) comprising an existing double storey dwelling, two new double storey dwellings and two new single storey dwellings.

1. There was some discussion on this issue on the first day of the hearing and I received written submissions from both council and the applicant on the second day of the hearing.
2. I have already noted that it was council who had insisted on the change to the submitted application so that it included the existing dwelling at No. 42 Mountain View Parade. Council emphasised that there are two separate titles for Nos. 42 and 44 Mountain View Parade and it relied on Clause 32.01-4 which requires a permit to construct two or more dwellings on the lot. As the development of No. 42 involves two dwellings on that lot (one existing and one proposed) then it was submitted that the requirements of Clause 55 should be applied to the existing dwelling as well as to the new dwelling. In Council's submission, this would enable conditions to be imposed regarding screening, boundary fencing, site cover and permeability. Council noted that other Tribunal decisions (see Perkins Architects Pty Ltd v Banyule City Council - P1638/2009) have included existing dwellings within the 'planning unit' of the application.
3. The objectors joined Council in claiming that the proposal included the existing dwelling. Mr Gardner, on behalf of the residents, had earlier expressed the view that the application encompassed both lots and that it sought permission for five dwellings including the existing dwelling. It was apparent that many of the concerns of the residents stemmed from their disappointment with the existing dwelling and they saw the current application as their opportunity to remedy what they saw as the shortcomings in the completed development.
4. The permit applicant submitted that the existing dwelling at No. 42 should not be considered as part of the application site and that Council were in error in insisting that the application be amended to reflect this.
5. Mr Testro advised me that Nos. 42 Mountain View Parade was purchased at auction on 9 April 2005 and that an 'Isabel Lopez' became the registered proprietor of Nos. 42 Mountain View Parade on 10 August 2005. A Building Permit was issued for construction of the new house and swimming pool at No. 42 on 27 September 2007 under an owner-builder arrangement. The new dwelling at No. 42 was designed, and plans were prepared for it well before No. 44 Mountain View Parade even went onto the market in late 2007.
6. The previous house at No. 42 Mountain View Parade was demolished and the new house was partially constructed (excavation, slab and much of the frame) prior to the auction of No. 44 Mountain View Parade.
7. I was finally advised that No. 44 Mountain View Parade was purchased at auction on 15 December 2007. A 'Jacque Elcheikh' became the registered proprietor of Nos. 44 Mountain View Parade on 5 April 2008.
8. Mr Testro therefore concluded that:

It is clear that the existing house at 42 Mountain View Parade has already been built, was built at the time the responsible authority made its decision and was in the course of being built when the Application for Permit was made.

A Planning Permit was not required for the construction of the existing house and works associated with its curtilage. All what (sic) was required was a Building Permit under the Building Act and that was obtained.

1. Mr Testro referred me to a number of relevant Tribunal cases including Holyoak v Maribyrnong CC (2002) 9 VPR 298 [2001] VCAT 1960; BP Australia Ltd v Bayside CC [2004] VCAT 604; Typhoon Pty Ltd v Macedon Ranges SC (2004) 17 VPR 185; [2004] VCAT at [19] as to the question of what constitutes "the site" in a planning application and the difference between a "lot" and the "site".
2. Mr. Testro also insisted that the operation of Clause 32.01-4 (which Council relies on) is of a 'prospective' nature and not a retrospective nature in that the clause requires a permit to "construct" two or more dwellings whereas, in fact, No. 42 is already constructed. That being the case, the 'retrospective' measures and conditions sought by the other parties is not relevant.
3. Ultimately Mr Testro sought leave under Section 172 of and Clause 64 of Schedule 1 to the VCAT Act to amend the Application for Permit, Notice of Refusal and Application for Review to modify the preamble to the permit so as to read:

The construction of two double-storey dwellings and two single-storey dwellings on 44 Mountain View Parade and on the rear portion (and behind the existing house and its curtilage) of 42 Mountain View Parade, Rosanna.

1. I advised the parties that I had sat on numerous review applications at the Tribunal where a dwelling already existed on a lot (or a 'site') and that it was quite common to consider the proposal inclusive of changes to the existing dwelling.
2. However, it seems to me that there are three important differences with this proposal. The first is that, unlike any other like-proposal, the dwelling at No. 42 has no design or functional relationship whatsoever with the development at No. 44. It does not look like it, and it does not rely on it for access or parking or open space. It does not 'borrow' on No. 44 nor does it 'lend' to No. 44 for any amenity features. No. 42 is entirely independent of the development proposal at No. 44 other than for the 300m² of land at the rear. It would have been an altogether different scenario if (say) dwelling No. 44 was reliant for its access on an extension of the existing driveway at No. 42, or if all access were to be via one of the driveways with separate drives to each unit leading off it. In these circumstances, one lot is dependent on the other. In the current case, not only is there no relationship between the dwelling at No. 42 and the land at No. 44, it is physically separated by a significant masonry wall.
3. Secondly, and quite separate to this application, Nos. 42 and 44 could easily be subdivided into two lots by a realignment of boundaries with the front part of No. 42 (being over 840m2) being detached from the rear portion of over 300m2 and merged with No. 44 Mountain View Parade.
4. Lastly, it is apparent that at all times it was proposed to divide No. 42 off from the 'rest' but that the precise boundaries of that subdivision would be determined by the outcome of the application for the four new dwellings. I note that Council made reference to this in its 'further information' letter of January 2009 and that the applicant responded in April 2009 advising that the proposal is to '...apply for a subdivision that separates the existing dwelling at no. 42 Mountain View Parade.'
5. I have therefore concluded that, so long as a condition of permit to the effect of requiring separation of titles is included, then I regard the application as being confined to the construction of the four new dwellings.
6. I appreciate that my finding seriously jeopardises the objectors case in the application as it was apparent that they had as much (if not more) complaint with No. 42 as they did with No. 44. I also appreciate that it means that many of their suggested conditions to remedy the ills of No. 42 have no basis.
7. However, their fundamental concerns go to the construction of a detached house that did not, and does not need a planning permit. It remains a basic tenet of planning in this State that a 'home' is not caught by the planning system other than if it is within an area covered by an overlay (or if it is a small lot). This is not the case here. I appreciate that it can seem grossly unfair that, on the one hand, neighbours can comment on, and influence the design of (say) two small single storey units, yet they have no say at all on a large double storey house that might appear to them to be overbearing, bulky or downright ugly. However, that is the planning framework in this State.
8. Related concerns as expressed by the residents and as sought to be controlled by condition of permit such as overlooking, the location of air-conditioning units, the lack of landscaping and the passage of noise are therefore also not within the ambit of this application. While it may be that there are some aspects of the existing building that are at odds with the approved building plans, there is remedial action available to rectify this. Other complaints about noise, lighting and the location of machinery may well fall within the domain of EPA type regulations.
9. Were it not for the desire to use the rear part of No. 42 for a unit, then there is no question that No. 42 can continue 'as built' without any remedy other than to comply with its building permit. In my view, the desire to use the rear part of No. 42, does not of itself reactivate an assessment of the appropriateness or otherwise of No. 42 so long as it is detached from the rest of that lot.
10. Accordingly, if I am of a mind to grant a permit, any approval to use part of No. 42 must be conditional on a subdivision or boundary re-alignment taking place which detaches the rear of No. 42 and joins it with all of No. 44. In addition, such a subdivision or boundary re-alignment must take place prior to any construction taking place on the modified No. 44. The end result will be an 'L' shaped parcel at No. 44 improved by four dwellings and a rectangular parcel at No. 42 improved by an existing and approved detached house.

1. I have already noted that the subject site is within the Residential 1 zone. The first purpose of this zone (and every other zone) is to implement the State and local planning policy frameworks.
2. Relevant State level policies include Clause 12 which provides objectives and 'strategies for Metropolitan Melbourne relating to "urban consolidation". The strategies in Clause 12.01-2 relate to 'A more compact city' and include (with Tribunal emphasis):
   • Encouraging higher density housing in and around Neighbourhood Activity Centres that is designed to fit the context and enhances the character of the area while providing a variety of housing options for different types of households.
3. The strategies included in Clause 12.05-1 relating to 'A great place to be' include:
   • Promote good urban design to make the environment more liveable and attractive.
   • Recognise and protect cultural identity, neighbourhood character and sense of place.
   • Promote excellent neighbourhood design to create attractive, walkable and diverse communities.
4. The objectives of Clause 16.02 with respect to medium density housing are to encourage the development of well-designed medium density housing which:
   • Respects the character of the neighbourhood.
   • Improves housing choice.
   • Makes better use of existing infrastructure.
   • Improves energy efficiency of housing.
5. These State and regional policies are refined at the local level and council advised me that it has a very 'fresh' local policy framework which was brought in by Amendment C61 in October 2009. Three clauses of the LPPF are especially relevant to the application. One relates to housing, and the other two relate to the built environment.
6. I will deal with each in turn.

1. The housing policy is contained at Clause 21.04-1 and the identified key issues for Banyule are:
   • There are limited opportunities for new dwellings in broad hectare sites or large non-residential sites.
   • In areas where change is taking place threats to residential character and amenity should be minimised.
   • Environmental and heritage factors contribute to the valued quality of residential areas and should impose constraints on development and redevelopment.
   • Maintaining the population numbers in Banyule is necessary to ensure existing physical and social infrastructure is used efficiently and to support local retail; business and community activities.
   • The trend to smaller household sizes and changes in lifestyle mean that a greater diversity of quality housing is needed in appropriate locations.
2. As to what these "appropriate locations" might be, there is a helpful Housing Framework Map which identifies (Clause 21.04 - page 3 of 8) areas of low density residential; infill residential development; vast areas where no explicit strategic direction is provided; and a number of areas along train routes marked as being for the ".....encouragement of medium density housing close to public transport and commercial/community centres". The subject site falls just outside one of these "medium density" areas which appears to be an area contained within about a kilometre of the Rosanna Railway Station and shops.
3. Clause 21.04 seeks to provide a greater diversity of affordable housing opportunities in appropriate locations to address the needs of those seeking to reside in Banyule. Objectives and strategies for housing include:
   • Encourage higher-density housing close to public transport, community facilities and within activity centres, in accordance with the Housing Framework Map, without impacting adversely on the amenity or character of the surrounding areas.
4. Council finally advised me that it has prepared and adopted a "Housing Strategy" (March 2009), although this is yet to find its way into the planning scheme. Relevant parts of the Housing Strategy include the estimate that the population of Banyule is expected to increase from about 119,000 in 2006 to nearly 133,000 in 2026. In the same period, the number of households is expected to rise from about 46,000 to about 54,000 over that 20 year period.
5. In my view, the housing policy in the scheme provides a fairly 'neutral' framework for my assessment being neither wholly supported nor explicitly rejected. On the one hand, the site is unquestionably outside a nominated medium density housing area.
6. On the other hand, four dwellings on a site of about 1400m2 and within about a kilometre of a fixed rail station is generally consistent with the State, regional and local policy directions of the planning scheme. Moreover, the site is within an area where there are enough examples of modest medium density (30, 32, 52 and 56 Mountain View and 29, 31, 37 and 41 Grandview) to suggest that this is an area that can sustain moderate density increases to help deliver on Council's obligations to provide a diversity of housing in a well located middle ring metropolitan area. While the site is 'at the margins' in terms of a walk to the shops or station, it is certainly better located than many areas of Banyule which are remote from such facilities.

1. The other two relevant clauses in the local policy framework relate to 'character'. Clause 21.06 of the MSS sets the scene and invokes the "Built Environment" as being important. Key issues include:
   • The landforms and vegetation are defining characteristics of Banyule that contribute to and influence the quality and attractiveness of the built environment.
   • The remnant indigenous tree cover, and the exotic and native trees planted in others have produced streetscapes that should be enhanced and protected.
   • New development should complement, if not improve, the existing streetscape and neighbourhood character.
2. Objective 2 of Clause 21.06 is particularly relevant as it deals with 'Character and Identity'. The objective is 'to ensure that new buildings and extension to existing buildings make a positive contribution to the character and identity of an area' and strategies to achieve this objective include:
   • Retain older dwellings, through restoration and renovation.
   • Protect and enhance residential streetscapes and the character, amenity and safety of residential neighbourhoods.
   • Encourage dwelling designs, densities and site layouts which will ensure the protection and enhancement of neighbourhood and landscape character.
   • Discourage architecture and urban design which would be detrimental to identified streetscape and neighbourhood character.
   • Encourage additional or replacement planting consistent with the landscape character of the area in association with new development or redevelopment.
3. Lastly, this MSS direction is refined in a local policy at Clause 22.02 (Residential Neighbourhood Character Policy). Under this policy, the site is within Precinct "Garden Suburban GS4". According to Clause 22.02-3 the key characteristics of all "Garden Suburban" areas are as follows (with Tribunal emphasis):

The Garden Suburban character area type has a spacious and leafy character in generally formal garden settings, with space around and between dwellings, a relatively wide and open street space, and garden style vegetation, often mature and exotic, in both the private and public domain, creating an attractive, tree-dominated landscape setting in some streets. The most important characteristics of the area type are the scale, siting and style of the dwellings and the vegetation and topography of their settings.

In these areas new development should reflect the main themes of existing dwelling styles and defined special characteristics of particular precincts should be protected and enhanced.

1. There is then, for each sub-precinct, a 'statement of desired future character'; a 'threats to the valued character'; and a series of objectives and design responses. I have included these as they appear in Clause 22.02-3 for GS4 (with emphasis):

The area's valued low scale residential character, is to be retained and enhanced by:

• Designing new dwellings and extensions in a style sympathetic with existing dwellings in the street.
• Maintaining the overall scale of dwellings in the area.
• Positioning new dwellings and appurtenances in keeping with the setbacks of nearby dwellings.
• Discouraging the construction of high or solid front fences.

• Dwellings, carports or garages that are located forward of the predominant setback in the street.
• New over-sized buildings or extensions to existing dwellings that are inappropriate in style or scale.
• Construction of high solid front fences.
• Loss of the Eucalypt street trees and split carriageway treatments.

To ensure new buildings and extensions are sympathetic to the current building form and style

• Incorporate the main themes, in correct proportions and scale from the Interwar or 1950s era as appropriate to the street.
• Second storey additions should reflect the style and form of the existing building.
• Period detailing is not encouraged, but if used should complement the style and sale of the building.

• Buildings should be setback sufficient distance from the front boundary to provide a landscaped garden setting consistent with others in the street.

To ensure buildings and extensions do not dominate the streetscape and/or the building

• Second storey portions of buildings should be recessed from ground level wall surfaces and minimised in height.

To minimise loss of front garden space and the dominance of car storage facilities

• Locate carports and garages at or behind the line of the dwelling or in the rear yard.

To maintain the view of front gardens from the street and to reflect the predominant era of the dwellings

• Front gardens should contain large shrubs or trees.

To maintain and strengthen the garden dominated streetscape character

• Retain existing large trees.
• For substantial trees, determine the tree's canopy drip line when mature.
• Buildings should be located sufficient distance from at least one side or rear property boundary to accommodate the drip line of substantial trees and vegetation.
• Building site coverage should enable sufficient pervious site area for planting, grown and retention of vegetation.

1. I was urged by Mr. Testro to be mindful of the fact that all of these directions are 'policy' provisions and that Council has not sought to translate them into an overlay control such as a Design and Development Overlay or a Neighbourhood Character Overlay. While acknowledging the general direction provided by Clauses 21 and 22 on 'character', Mr. Testro felt that if Council were serious and really wanted to control this issue, then it would have implemented some form of overlay control in much the same way as it had introduced overlays for others reasons in other areas such as the Vegetation Protection Overlay or the Environmental Significance Overlay.
2. Nowhere is the absence of an overlay control more apparent than with the issue of detached houses. Without an overlay or similar control, Council is utterly defenceless to stop new houses being erected which are totally at odds with what it sees as the important character elements of the area. Without a permit trigger, every identified 'threat' in Clause 22.02-3 could be visited upon the precinct in the event of new detached housing replacing existing housing. The limitations of the policy direction at Clauses 21 and 22 have to be seen in that light, according to the applicant.
3. That may be so (and is an issue Council might like to re-assess on reviewing its scheme) but this application is not for a detached dwelling, but it is for a development that attracts a permit and therefore activates the policy settings at Clauses 21 and 22. I am clearly not in a position to ignore those settings especially as there are repeated prompts elsewhere in the Banyule Planning scheme at Clauses 12.05; 16.02; 21.04, 22.02; 55.01, 55.02; 55.03; 55.04 and 55.06.
4. My character assessment is informed by two main things; the provisions of Clause 22.02 and by my own observations having had a walk and a drive around the area.
5. I have already detailed Council's description of the area including a mix of inter war and post war housing styles. On my inspection I found myself in a mid century, mainly post-war estate which is characterised by modest buildings (with some notable exceptions) set within spacious ornamental gardens. While built form is clearly evident, there is a softening curtain of landscaping to most dwellings which is complemented and entrenched by street trees and grass nature strips. It is not a "harsh" environment, but rather a quiet and 'leafy' part of Rosanna that commands expansive views to the west, over a valley and towards the Dandenongs.
6. Of course there are exceptions to this, none more so than the property immediately to the south at No. 42 Mountain View Parade. This new detached dwelling is at odds with the prevailing character by way of design, presentation and landscaping. That is not to criticise this dwelling especially as it did not require planning permission. It is simply to say that it provides a stark contrast to almost all other properties in the immediate area.
7. In my view, the proposal really struggles when assessed against the state and local policy character settings and especially against the detailed criteria at Clause 22.02-3. I think that it also struggles against an independent assessment of the character of this area which was evident to me on my inspection.
8. Part of the problem that I have with this design is that I don't think that it has been informed at all by its surrounds or its context. As a result, I feel that it will be an alien element in an otherwise settled and fairly consistent built environment.
9. My main concern is that the design does not incorporate features that are (in the words of 22.02-3) 'sympathetic to the current building form and style'. While I accept that a flat roof in the precinct is not unique, it is not a dominant characteristic of the area and it certainly is not typical in the immediate vicinity. Zinc clad walls and a bright coloured palette incorporating orange feature walls might all be admirable design features in the right setting, but they struggle to satisfy the policy framework of Council at Clause 22.02 as well as Standard B31 (Design Detail) of Clause 55.06 which encourages design detail that respects the existing or preferred character. Standard B31 notes that façade articulation, window and door proportions and roof form (among other things) should respect the existing or preferred character. In making a decision, Council is to consider '...the effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting'. I find this a helpful decision guideline and reference point for my assessment and it is one that the proposal struggles with.
10. There are other design aspects of the proposal that are also jarring. Double driveways to the site are not a characteristic of the area and the combined effect of two driveways plus the drive at No. 42 would, in my view mean that paving, not landscaping dominates the streetscape. This is not a typical element of the Mountain View streetscape.
11. I might not regard these design faults as fatal on another site in another area. In fact I quite like this design. But that is not the point. Once I have determined that the policy settings, and my own assessment of the character of the area provide me with a framework for consideration, then I must be guided by those settings and by that assessment.
12. While I have no quarrel with modern, contemporary or innovative architecture, the context of the site must provide a clue or a hint as to whether there would be either a seamless addition; or an alien intrusion. In a street characterised by ornamental gardens, single driveways, recessed building forms, and (where apparent) a pattern of pitched roof forms and post-war design elements, the introduction of very regular and uniform flat-roofed dwellings strikes me as not being informed by its context.
13. Ultimately I have to decide, in accordance with numerous references in the planning scheme whether the proposed development respects the neighbourhood character
14. I accept that 'respect' does not mean replicate, mimic or repeat and it could result in a quite 'different' design. I have said in other applications that I think that 'respect' requires a building to be a comfortable companion to the other assets that are characteristic of the area. These assets might be buildings, they might be public realm features or they might be vegetation. 'Respect' in a building context typically is achieved by incorporating elements which complement built form features in the area such as style, height, setbacks, materials, colours. Other elements are more intangible such as rhythm, spacing, recessive elements and public realm.
15. I have formed the view on the basis of my inspection that this building does not respect the character of the area. In my view this building is too dominant, too different, too obvious and too much of a 'statement'. As a consequence, I think that it has an overbearing and alien presence in the street and the area.
16. Accordingly, I conclude that Council has substantiated its ground of refusal concerning the impact of the proposal on character of the area.

1. While there was substantial compliance with most of the 'Rescode' standards, especially concerning amenity impacts, it was apparent from the submissions that there were some shortcomings in the overall Clause 55 assessment. In the view of Mr. Glossop, these are by no means fatal and can all be remedied by re-design. While I accept that that might be the case and while there is no 'knock out' blow in Clause 55, I think that the cumulative effect of a number of shortcomings suggest that this is not a particularly site responsive design and one that seems to have been based on maximising the development opportunity of the site.
2. In the context of an area that is renowned for its landscape, I am disappointed at the lack of attention to tree preservation. I note that Mr. Glossop felt that it was '...the garden setting rather than the dwelling type, is the binding agent'. That being the case, the removal of all but three of eighteen trees on the site seems a modest return. Once again, I acknowledge that it is within Council's domain to control this by way of an appropriate overlay. That said, Clause 55.01-1 requires significant trees on site to be identified and Clause 55.03-8 seeks to encourage the retention of mature vegetation on site. Standard B13 states that 'development should provide for the retention or planting of trees, where these are part of the character of the neighbourhood'.
3. I was surprised to see that an arborist report had identified that five trees on site had attained a 'medium' rating where retention is recommended 'if future design permits'. In addition to this, another tree is recommended for 'high retention' value. Based on the landscape plan it seems that only three trees are to be retained (one at the front and two on the rear boundary) and that the 'high retention' tree is to be removed.
4. In my view, if the garden setting is the 'binding agent' in this area, then to clear the site of almost all of its vegetation is not suggestive of a design response that has been informed by an assessment of the characteristics of the area.
5. I take no comfort from the embryonic landscape plan tendered at the hearing which showed some peripheral boundary landscaping in beds of about half a metre in width. In an area where canopy trees frame the view, Nos. 42 and 44 will be notably absent of making any meaningful contribution to the garden setting of the area.
6. I have already commented on the degree to which the streetscape would be dominated by parking and access lanes. I note that Clause 55.03-9 (Standard B14) seeks to ensure that the number and design of vehicle crossings respects the neighbourhood character.
7. Other aspects of the design that I have concerns with include the gun barrel straight driveway alongside the units which extends for over 50m without relief or variation. The landscaping within the 500mm beds is the only prospect for any softening of this feature. I also think that the turning movements for the most easterly units would be tight with a number of manoeuvres required to get in and out of the garages and car spaces. I lastly note that on such a large site and in an area characterised by spaciousness and open rear yards, the provision of private open areas as low as 34m2 is, in its context, quite squeezed.
8. I hasten to add that none of these features on their own are fatal; it is that they all add up to a conclusion that the lot has been developed to its maximum. For the record, I have no issues at all with the two storey nature of the units, nor with the proposed front setback which marginally fails the Rescode standard.

1. Mr. Testro submitted that the 'balance bottom line' in both the policy and merits ledger, favours the proposal and the grant of a permit. In the end, I conclude that the proposal has deficiencies in both a policy and merits sense and accordingly I have decided to support the decision of Council and reject the application for four new dwellings.
2. Ultimately, I have decided that while the site could support a modest medium density development, I am not satisfied that the submitted design sits at all comfortably in this part of Rosanna.
3. Mr. Testro had requested that if I reached this conclusion, that I issue an interim decision so that the applicant could modify the plans to implement the Tribunal's directions. However, I am not inclined to do this as I think that the design has to start afresh and not be burdened by the proposed footprint. While my fundamental concern is with design, appearance and character, I think that there are some evident shortcomings in others aspects such as access, landscaping and an overall 'cramped' feeling in the design.
4. Without giving explicit advice on the nature of the design, or even on the number of units, I think that a successful design response on the land would include:
   • Modified appearance that is more reflective of building details, design elements and minimised access points much as has occurred nearby at Nos. 52 Mountain View Parade;
   • Incorporation of pitched roof forms;
   • A more comprehensive landscape assessment inclusive of possible retention of existing trees and the provision of a more meaningful landscape implementation program.
5. For the above reasons I have decided to reject the application and it is directed that no planning permit be issued.