1. Directly north is a single storey weatherboard dwelling at 22 Hardy Street and to the south is a double storey dwelling at 18 Hardy Street. This is a modern infill dwelling that includes a car space in the front setback.
2. The applicant describes the area as having many double fronted dwellings with setbacks to the rear boundary. He says the built form contains interconnected living areas that extend across the width of sites with open backyards. However, the respondent considers the area contains compact lots with many dwellings containing built form abutting side and rear boundaries. My findings on neighbourhood character are discussed further below.

1. The review site is in a Neighbourhood Residential Zone - Schedule 3 ('NRZ3'). Schedule 3 relates to inner urban precincts and contains variations to clause 54 for site coverage (basement only) and front fences, with a height of 1.2 metres on streets not in a Transport 2 Zone. The application includes a 1.7 metre high front fence[11] that triggers a permit in this zone.
2. The review site is also affected by a Special Controls Overlay - Schedule 11 (SCO11') which relates to the Alfred Hospital Emergency Helicopter Flight Path Protection (east). As the height of proposal is 22.92 AHD, no referral or planning permit is required.
3. The site is affected by a Development Contributions Plan Overlay ('DCPO'). As there is no additional demand, the requirements of this overlay do not apply.
4. The Municipal Planning Strategy contains policies relevant to my decision including:
   • Clause 02.03-4 (Built environment and heritage) recognises the high quality and varied built form of the municipality and seeks to manage the scale and design of development to respect the built form character elements of the precincts. It also seeks to support development that does not compromise sunlight, daylight and weather protection on adjoining sites.
5. There are a range of policies in the Planning Policy Framework that are relevant to my decision including:
   • Clause 15.01-2S (Building Design) has an objective to achieve design outcomes that contribute positively to the local context and enhance the public realm. Strategies include to minimise the impact of development on neighbouring properties.
   • Clause 16.01-1L-01 (Housing supply) contains a strategy to that encourages residential infill development. The review site is in an Incremental Change Area that encourages multi-unit development up to three stories in areas that can support change.
   • Clause 18 (Transport) aims to provide a safe, integrated and sustainable transport system.
   • Clause 19.03-3L-02 (Water Sensitive Design).
6. Local policies that are applicable include Clause 15.01-5L (Neighbourhood Character) that identifies the review site is within the Inner Urban area. Strategies for the preferred neighbourhood character for this area are to encourage innovative, high quality architectural styles, orientate dwellings parallel with front boundaries, ensure adequate landscaping is provided, locate car parking structures behind the front façade and provide low, open style fencing.
7. The introduction of Amendment VC243 is also relevant to the consideration of the applicable Res Code standards that will be discussed further below. This amendment codified the standards and shifted how assessment of these matters should occur. Therefore, my findings, in terms of Clause 54, are that the objective is deemed to be met if the standard is met.

DOES THE PROPOSAL RESPOND TO THE PREFERRED NEIGHBOURHOOD CHARACTER?

1. The applicant submits that dwellings in this area generally have living areas at the front of sites and gardens to the rear. He considers the provision of open space in the northern setback is contrary to this character.
2. Council considers the layout at the front of the dwelling is consistent with the spacing of other dwellings in Hardy Street. It also considers the provision of open space in the northern setback, towards the rear, is not an unusual arrangement and is reflected in nearby properties including at 16, 25, 38, 40 and 45 Hardy Street and 17 Osborne Street.
3. The respondent submits that the design response/layout which orientates the open space to the north is derived from the way in which many other dwellings have laid out their open space on east/west allotments nearby.

1. Clause 15.01-5L states the preferred neighbourhood character for inner urban areas is to orientate dwellings parallel with the front boundary to visually address the street.
2. I find the proposed layout, that includes the dwelling extending across the width of the site at the front, except for a 590mm setback to the south boundary, acceptable as it is reflective of the spacing of existing dwellings nearby. I consider the side setbacks will maintain the rhythm and spacing of dwellings in the street and are typical for an inner city location such as South Yarra.
3. I also find the provision of the secluded private open space in the north-east corner of the site acceptable and not uncommon in the area. This is evident in the aerial photographs tabled by the respondent.

1. The applicant submits the built form and absence of built form at the rear is a characteristic of most dwellings in this area. He argues the respondent has not conducted a detailed assessment of the neighbourhood character and the proposed design will not 'fit in'.
2. Council submits that walls on or near boundaries are common in the inner city due to the narrow street frontages. It says this results in limited or no side setbacks and walls on rear boundaries. It also says that rear setback patterns are somewhat inconsistent with many dwellings' setback several metres from the rear boundary and others constructed to the rear boundary.
3. The respondent argues that the concept of providing built form to the rear boundary is acceptable:

particularly where it can successfully manage amenity impacts and provide an appropriate built form response as witnessed by the proposals compliance with Rescode, particularly to 17 Osborne is an example of a polite addition to this inner city context in character terms. [12]

1. Based on my inspection of the area and tabled aerial photographs, I find this neighbourhood does not display a 'green spine' at the rear but has a mixed character that includes single storey walls on rear boundaries. I therefore agree with the respondent that the rear yard character is defined by built form intrusion.
2. I am satisfied that construction of a five metre wall along part of the rear boundary is consistent with the prevailing neighbourhood character. This includes the existing conditions on the review site and the applicant's dwelling.
3. I find the design response acceptable as the built form is single storey and reflects the existing dwellings and outbuildings found in rear yards nearby. I also note the double storey component of the dwelling is setback 4.459 metres from the rear boundary which will maintain the lower scale of built form to the rear of dwellings.

WILL THE DWELLING HAVE UNREASONABLE AMENITY IMPACTS ON THE ABUTTING PROPERTIES?

1. The ground floor of the new dwelling is proposed to be setback 410mm from the south boundary at ground floor level and 1.25 metres setback at first floor level. Therefore, a variation of Clause 54.04-1 (Standard A10 - Side and rear setbacks) is required.
2. The respondent submits the design response is a polite addition to all its neighbours, including the applicant's dwelling. He says the variations are acceptable as the upper level aligns with the setback of the southern neighbour to provide an appropriate amenity response.
3. Council agrees with this proposition and says the upper levels are orientated to face existing narrow side setbacks or boundary walls.

1. I acknowledge the proposal fails to meet Standard A10 of Res Code for the ground and first floor setbacks to the south boundary. This standard contains an objective to ensure the height and setback of a building from a boundary respects the existing and preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
2. I am satisfied that the southern side setbacks will not cause unreasonable amenity impacts given the wall is sited to face the existing double storey dwelling at 18 Hardy Street which does not have any north facing windows.
3. The first floor east elevation is also setback 4.459 metres from the east boundary. This response steps the built form away from the applicant's rear yard and meets the requirements of Standard A10.
4. I consider the height, setbacks and scale of the dwelling consistent with other double storey dwellings nearby and the design has limited the impact on the amenity of existing nearby dwellings.

1. Clause 54.04-2 (Standard A11 - Walls on boundaries) requires a wall on a boundary to have a maximum length of 8.06 metres to the rear (east) boundary and a maximum average height of 3.2 metres. The proposal fully complies with standard as the east boundary wall proposes a maximum length of 5.17 metres and average height of 2.95 metres.
2. The south boundary wall has a length of 7.99 metres and meets the standard (i.e. maximum length of 12.8 metres). However, the height of the first floor requires variation as it has a height of between 2.6-6.3 metres.[13]
3. The north boundary wall also requires variation to Res Code as it has a maximum height of 6.36 metres.
4. Council submits the siting of the boundary walls are consistent with existing built form and character of this area. It says this includes the existing dwelling on the review site that has a wall abutting the east boundary adjoining 21 Osborne Street.
5. The respondent submits the placement of the first floor north and south elevation walls respond positively to the nature of the abuttals. He says the limited length of these walls is commonplace in this neighbourhood.
6. He says the ground floor wall on the east (rear) boundary seeks to deactivate the relationship between the sites and provide separation between the private open space areas. He submits the height and setback of the ground and first floor are appropriately managed given the double storey height is setback 4.4 metres from the shared boundary. The applicant has offered to retain the existing 2.1 metre high fence on the boundary

1. I find the height, length and location of walls on the north and south boundaries sensitively designed to limit the impact on the amenity of the adjoining dwellings that also have walls on or near the common boundary.
2. The applicant is primarily concerned about the construction of the single storey living room wall on the east (rear) boundary that faces his rear yard.
3. Whilst I acknowledge this wall will face his garden, the height and length of the wall meet Standard A11 and is deemed to comply with the objective. Therefore, the proposed east boundary wall of 2.61 metres to approximately 3 metres high is compliant with the Planning Scheme requirements. As previously noted, I find that walls on rear boundaries are a characteristic of this area.
4. I note the respondent has offered to retain the existing fence along the common boundary with the applicant's rear yard. I consider this response will reduce the visual impact of the wall for the applicant. Therefore, I will include it as a condition on the permit.

1. The applicant argues the useable open space for his dwelling is approximately 15 square metres and extends about four metres from the rear boundary. He says this is a surfaced area that includes the accessible part of the backyard that is used to walk on, rest, have a meal and play. He notes the useable area excludes the vegetable patch (13 square metres) and garden bed (7 square metres) in the rear yard.
2. The applicant submits that according to the shadow diagrams, the useable open space for his dwelling would be one-third overshadowed by 1.00pm, two-thirds overshadowed by 2.00pm and fully overshadowed by 3.00pm. He submits this will significantly affect the use of this area by family for outdoor living and for clothes drying.
3. Council argues that lack of compliance with this standard does not mean that a development is automatically unacceptable. It notes there is no reduction in sunlight in the applicant's rear yard between 9.00am and 11.00am and a minimal reduction at 12 noon, 1.00pm and 2.00pm.
4. It submits that the overall sunlight throughout the day means the loss of sunlight at 3.00pm has a smaller impact as it receives useable sunlight throughout the day, including 21 square metres remaining. It says this area has reasonable and useable dimensions with a minimum width of 3.6 metres across most of the sunlit area.
5. The respondent argues the built form and massing of the new dwelling is designed to limit the impact of afternoon shadow on the applicant's property. He says the amenity and useability of the open space will not alter significantly because of the additional shadows cast by the proposal.

1. The objective of Clause 54.04-5 (Standard A14 - Overshadowing of open space) is to ensure buildings do not unreasonably overshadow existing secluded private open space of dwellings. The secluded private open space of 17 Osborne has an area of 49 square metres and therefore, 36.75 square metres should have solar access for at least five hours between 9.00am and 3.00pm on 22 September. The standard states:

If existing sunlight to the secluded private open space of an existing dwelling or small second dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.[14]

1. The proposal fails to meet the standard as there will be new shadows cast at 12pm, 1.00pm, 2.00pm and 3.00pm and therefore assessment against the objective of the standard is required.
2. I acknowledge that there will be some additional overshadowing of the applicant's rear yard in the afternoon. However, based on Council's calculations of the additional shadow impact and remaining sunlit area[15] there will be only 0.1 square metres additional shadow at 12 noon, with 29.5 square metres of the rear yard remaining in sunlight. The greatest impact is at 3.00pm where there will an additional 5.6 square metres of shadowing but there will still be 21.1 square metres of the rear yard in sunlight.
3. The respondent also provided his own assessment of the shadow impacts that are generally consistent with Council's table.
4. I accept the respondent's argument that it is difficult to achieve full compliance with the standard given the inner city context with narrow width lots and extensive built form on or near boundary. I am satisfied that the extent of shadowing is not excessive and maintains a reasonable amount of the rear yard free of shadow in the afternoon. I consider the new dwelling has been designed to minimise shadows and visual impact on the applicant's property with the implementation of measures such as a site cut which has lowered the overall height on the wall on the east boundary and a raked ceiling.

1. The applicant is concerned that the large east facing first floor window of bedroom 1 will reduce his privacy in his rear yard.
2. Both Council and the respondent submit the proposal fully complies with Clause 54.04-6 (Standard A15 - Overlooking).

1. The objective of Standard A15 is to limit views into existing secluded private open space and habitable room windows.
2. The new dwelling does not have any ground floor window facing the applicant's property and the first floor east elevation window includes screening to a height of 1.7 metres above finished floor level with a maximum of 25% transparency. Council has also included a condition to provide a cross section of the screens to verify the 25% transparency, and they are to be fixed.
3. I am satisfied that the condition on the permit will ensure the plans fully comply and meet the objective of Standard A15.

1. The applicant is concerned the east facing window will cause glare to enter his property.
2. Given the first floor east elevation bedroom 1 window includes a privacy screen to 1.7 metres in height to the window, I do not consider that there will be unreasonable glare from this feature.
3. The proposed first floor north boundary wall is facing two habitable room windows in the south elevation of 22 Hardy Street. In accordance with Clause 54.04-3 (Standard A12 - Daylight to existing windows) a minimum of one metre clear to the sky is required.
4. I agree with the respondent that given there is already an existing wall facing these neighbouring windows, there will be no change to the current situation.

DOES THE PROPOSAL PROVIDE A REASONABLE LEVEL OF INTERNAL AMENITY?

1. The applicant states that Council acknowledges the proposal fails to meet Clause 54.05-3 (Standard A18 - Solar Access to Open Space). He says the expected benefits to the new dwelling from having northern light entering the kitchen/dining area will be limited. He says this will be further reduced if a double storey dwelling is constructed on 22 Hardy Street.
2. The applicant considers changes to the plans are required to address this issue. This includes relocating the spos to the eastern setback which will provide additional daylight and sunlight in the rear yard. He says this change will also be a more sustainable design.
3. He has also suggested the first floor east elevation window be relocated to the north side of the dwelling to avoid hot summer morning sun and to provide benefits from the northern orientation.

1. As noted at the hearing, the Tribunal's role is to assess the plans that have been considered by Council and not an alternative proposal suggested by the applicant. I find his suggested changes to the plans will be a significant change that cannot be considered by permit condition.
2. Whilst I acknowledge the plans fail to meet Standard A18 of Res Code, I am satisfied that there will be adequate solar access to the spos of the new dwelling as it partially abuts the rear yard of 22 Hardy Street (north).

1. The applicant is concerned about the reduction in car parking for this proposal. He says there is a shortage of car parking in Hardy Street that results in cars with resident permits parking in Osborne Street.
2. The respondent submits the provision of one car space strikes the right balance on a small lot as the provision of two spaces would take up too much space. He notes the site is well serviced by public transport and an activity centre is within walking distance.

1. Based on my site inspection, there are other dwellings in Hardy Street that contain off-site car parking in the frontage. I find the inclusion of one car space a suitable level of provision for this dwelling that is proximate to several forms of public transport and the South Yarra activity centre.
2. I consider the design of the garage is successfully incorporated into the design of the façade and will complement the streetscape character.

1. Conditions were discussed at the hearing and the permit conditions contained in Appendix A reflect my conclusions on what are appropriate conditions.

1. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

Construct or extend a dwelling on a lot less than 300 square metres in a Neighbourhood Residential Zone

Construct or extend a front fence associated with one dwelling on a lot less than 300 square metres in a Neighbourhood Residential Zone

1. Before the commencement of the development, 1 copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the advertised plans (identified as Drawing No's. TP04 to TP07 and TP10) but modified to show:

(a) The external overlooking screens to north and east facing windows of Bedroom 1 notated as being fixed.

(b) A cross section of the proposed overlooking screens fully dimensioned to include the width, height and angle of any louvres, slats or blades as well as the gap between the louvres, demonstrating compliance with Standard A15 of Clause 54.04-6.

(c) Retention of the existing boundary fence adjacent to the rear yard of 17 Osborne Street.

All to the satisfaction of the Responsible Authority.

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, without the prior written consent of the Responsible Authority.
2. Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking as required by Standard A15 of Clause 54.04-6 in accordance with the endorsed plans must be installed and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
3. Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
4. The development must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or Water Sensitive Urban Design Response to the satisfaction of the Responsible Authority.
5. The level of the footpath must not be lowered or altered in any way to facilitate access to the site.
6. Any new dwelling allowed by this permit must not be connected to a reticulated gas service (within the meaning of clause 53.03 of the relevant planning scheme). This condition continues to have force and effect after the development authorised by this permit has been completed.
7. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

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

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[1] The date of final order being 9 January 2025 has been corrected to 9 January 2026.

[2] The submissions of the parties and any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[7] Tribunal photograph taken at site inspection.

[10] Tribunal photograph taken at site inspection.

[11] Findings on the front fence will be discussed later in the decision.

[13] Standard A11 maximum height wall on boundary height is 3.6 metres.

[15] Council submission table at [59].