1. This part of the decision is made by both Members.
2. In the event that the Presiding Member is wrong in law and contrary to her view the upper level is an attic, we have considered whether the overall scale, siting and appearance of the development, adequately addresses the preferred neighbourhood character and its potential impacts upon surrounding dwellings.

1. The planning scheme requires the overall design to address the preferred character[55] of the area in context of the ResCode provisions set out in Clause 55.
2. The site coverage is 59%. Mr Crowder's evidence was whilst this did not meet the Bayside Planning Scheme standard of 50% it was consistent with other developments in the locale. He also acknowledged that the side and rear setback did not meet all of the variations to Rescode set out in the Schedule to the Residential 1 Zone. His view was that the building meets the standard ResCode requirements, which he considered to be more appropriate given the large scale massing of other dwellings in the area.
3. We accept other dwellings in the area are large, but generally appear to retain garden settings. The exception to this is the unit development at 366 Beach Road.[56] The relevant objectives of ResCode require consideration of the character of the area and any site features. The preferred character of this is area is identified in local policy as providing for 'single and double storey dwellings' that 'sit within the topography and informal landscaped surrounds.'[57]
4. We agree with Mr Crowder that meeting the standards of Rescode, as varied by the Bayside Planning Scheme, is not an end in itself. The critical issue is to ensure the objectives are met.
5. The front setback is 9 metres to the building line, but 6 metres to a raised balcony level for ground and first floors. There is also a central wing wall that is setback 6 metres from the road. Whilst the adjoining dwelling to the north west has an eave extending into its setback, the overall form is setback at least 9 metres, with much of the dwelling façade further recessed. It is only a small arc of the curved façade eave that sits at 7 metres from the street. All of the area below the façade appears to be retained as garden setting. It is behind a front boundary wall, but the sense of space between buildings remains apparent. In contrast, the proposal before us relies on extensive built form elements (including wing walls entry treatments and the balconies) setback at 6 metres across 12 metres of the 16 metre frontage. We consider this will be a far more dominant relation of building to landscaping for the front setback to achieve the preferred character objectives of the area.
6. We are not convinced that this extent of built form can meet the character objectives for the area to maintain space between buildings and respond to the forms of the surroundings sites, including the public domain of Beach Road.
7. Whilst we accept that the proposal does not meet the side and rear setback provisions, neither does the existing dwelling, particularly on its north west boundary where the side wall with gable roof already sits close to the adjoining property at 364 Beach Road. We do not consider that the prescriptive standards must be met, particularly at this interface where existing form already does not meet the requirements. Our concern lies more with the overall sense of mass, particularly across the front of the site. The sense of mass and scale, in what appears to be a broad and somewhat bland façade treatment requires review to better address the character objective for Beach Road to providing visually interesting forms and facades that respond to the exposure of the site.

1. Even if the upper level could be characterised as an 'attic', the DDO1 also requires specific consideration to be given to whether the roof form of this attic matches the 'typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows in the roof must be dormer windows, mounted flush to the roof, recessed or of minimal dimensions.'[58]
2. We do not consider that the proposed attic roof form meets these requirements the following reasons:

1. The roof, by description of Mr Jones and Mr Crowder, is a modified mansard form. There are no similar roof forms in the area. Nor are there any roof pitches of similar style in the area that we could identify from our inspection or from the photographs tendered to us. Mr Crowder was unable to identify any roofs in the surrounding area to satisfy us that the proposed roof has typical details of the surrounding neighbourhood. We concur with Mr Ng's observation that the predominant roof form is flat. 2. Mr Crowder's evidence was that the overall character of the area was of mixed roof styles. Whilst we accept that nearby roof forms are varied, we consider the proposed roof to be distinctly different in pitch and style and we do not consider it would be complimentary to the surrounding area. In fact, we find it difficult to see where this roof draws reference from, other than a desire to maximise the roof area to accommodate the floor plate of the dwelling within it.

1. The windows on the third storey end walls are large and prominent, forming glazed panels to Beach Road to access a balcony. We do not consider that these meet the requirement in DDO1 for windows that are small, recessed or of minimal dimension.
2. In a more general sense, the character provisions[59] and DDO1 provisions in combination direct that the preferred character of this area is for one and two storey form. The roof form of the upper level we consider is such that the building will be clearly read as a three storey building that will significantly 'stand out' when viewed from McGregor Avenue, and from Beach Road south east of the site, where its corner location exposes the building to the street.
3. We therefore find the proposal does not adequately address the existing or preferred neighbourhood character in relation to building height, front setback and general form.

1. We accept Mr Crowder's evidence that there is no direct amenity to adjoining neighbours as a result of overlooking and overshadowing as the ResCode standards are met. This includes the overlooking requirements to the property at 364 Beach Road that were raised by Mr Ng. We see no reason why more than 9 metres needs to be provided, given that views would be limited by the existing walls to the front garden of 364 Beach Road.

1. We note that the development meets its statutory car parking requirement of 11 car spaces on site. We accept Ms Dunstan's expert opinion that the proposed parking layout and access arrangements via McGregor Avenue are appropriate and safe, including the design of the access ramp. As a general principle, we concur with Ms Dunstan's evidence that as a policy position, it is convention[60] to minimise access points to Category 1 Roads and therefore we consider the access point to McGregor Avenue to be sensible.
2. We do not have any concerns about the level of traffic that the development would generate. Ms Dunstan's expert evidence was that the proposal would generate a low level of traffic that would not have any adverse impact on the surrounding street network.

1. The Responsible Authority and the Respondents also raised a number of concerns about the proposed landscaping detail. We do not consider the proposed landscape theme or planting schedule to be problematic. However we consider that because of the building's overall scale and form, the development has not made adequate provision to enable suitable landscaping.

1. The proposal is prohibited by the two storey mandatory height control in DDO1. The Presiding Member has found that the building presents as a three storey building and therefore does not comply with DDO1.
2. We find that the mansard style roof is not typical of the surrounding neighbourhood, as required by DD01.
3. We also find that the overall scale and massing of the building, particularly in its presentation to Beach Road is too dominating and contrary to the preferred character of the area as set out in the Planning Scheme.
4. For these reasons, we affirm Council's decision and direct that no permit is to be granted.

[1] Section 4(2)(d), Victorian Civil and Administrative Tribunal Act 1988.

[2] Pursuant to Clause 52.29: Land Adjacent to a Road Zone.

[3] Height Control 77 extended inland for 1 kilometre.

[4] Bayside New Format Planning Scheme; Report of the Panel and Advisory Committee (October 1998), p 26.

[5] Bayside Planning Scheme Amendment C52; Panel Report (December 2007), p 3.

[6] Prepared by Hansen Partnership for Bayside City Council, (March 2000) and is a reference document under Clause 4.0 Design and Development Plan Overly Schedule 1.

[7] Which were supported by the Panel considering Amendment C2.

[11] Amendment C2 Bayside Planning Scheme; Panel Report (August 2001)

[13] Clause 21.02-1: Municipal Profile.

[15] Clause 21.02-5: Strategic Framework Land Use Plan; Clause 21.03: Settlement and Housing.

[16] Clause 21.06-1: Character and Identity.

[19] Clause 21.06-1.1: Residential Areas.

[21] Clause 22.06-4, Precinct H4 - Preferred Future Character Precinct Guidelines.

[22] The internal storey height is must be measured from the floor to the finished floor level of the floor above or if there is no floor above, to the celling (excluding staircases, architectural voids and light wells).

[23] We note that the basement does not project more than 1.2 metres above ground level, as is required by Clause 72.

[24] A 'storey' is defined in Clause 72: General Terms as: 'That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

[25] It was not in contention that the dormer windows meet the description in DDO, being: A projecting construction to provide natural lighting to attic spaces, comprising a vertical window with its own pitched roof, gable and side walls, framed into a larger sloping roof. Usually several dormers are used for balanced design.

[26] Bayside Planning Scheme Amendment C52 Panel Report (December 2007).

[29] [2003] VCAT 1884.

[31] [2004] VCAT 2487.

[33] The Tribunal ultimately went on to find that the DDO4 controls did not prevent the amendment of the permit to allow the construction of a third storey - see Ibid., [56]-[59].

[35] [2007] VCAT 1764. The purpose of the determination was to decide whether as a preliminary question of law, the development was prohibited by reason of the height control.

[36] The height control was contained in Schedule 4 to the Design and Development Overlay: 'Foreshore Height Limitation'.

[39] [2004] VCAT 1525.

[41] [2006] VCAT 1869.

[42] The development comprised 77 apartments in a two storey above ground level apartment building, together with 6 town houses.

[44] [2008] VCAT 243.

[45] Ibid., [28] - the site in question had an earlier permit issued for a development which included an attic that was 54% of the floor area of the storey below.

[48] As noted above, DDO1 was amended by Amendment C52 on 26 March 2009.

[49] [2012] VCAT 302.

[52] [2012] VCAT 764.

[55] As set out at Clause 22.06 - with particular reference to Precinct H4.

[56] We were informed by Ms Bowdern that this development had been approved in 1997 prior to the current Planning Scheme controls applying to the land.

[57] Clause 22.06 - Preferred Character Statement to H4 Precinct.

[58] Clause 2.0 Design and Development Overlay Schedule 1

[59] At Clause 22.06 - with particular reference to precinct H4

[60] For example, subdivision as directed by Clause 56 seeks to minimize direct access to Category 1 roads.