1. The order of the Tribunal is that the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

It is proposed to construct a two storey three bedroom dwelling and garage at the rear of the existing dwelling located at 5 Pell Street, Bentleigh East. The new dwelling is to comprise of three bedrooms with two bedrooms located on the ground floor, kitchen and open plan living areas and amenities on the ground floor, with the main bedroom and amenities and a void proposed at the upper level.

The provision of car parking for the front dwelling is an open car space area located between the existing dwelling and the front boundary accessed off the common driveway.

The proposed new dwelling is to be constructed on both the east and west boundary and setback from the northern boundary approximately 4 metres.

The private open space for the existing dwelling is located between the existing dwelling and the new rear dwelling and varies in dimension.

This is an application pursuant to section 77 of the Planning and Environment Act against council's determination to refuse the grant of the permit.

The review site is zoned Residential 1 and has a Development Contributions Plan Overlay over it.

A permit is required pursuant to clause 32.01-4 to construct two or more dwellings on a lot. Other relevant clauses include clause - 11 Settlement, Clause 16 - Housing, Clause 21.04 and Clause 22.08 - Minimum Change Area. In addition, the provisions of clause 55 (being ResCode requirements) and clause 65 -Decision Guidelines are also required to be taken into account in determining this application.

The review site is located on the north side of Pell Street between Julis Street to the west and Kadir Street to the east.

The site has a frontage of 15.9 metres and a depth of 39.3 metres with a total site area of 617 square metres.

At the present time the dwelling on the site is a single storey dwelling comprising of two bedrooms.

The immediate areas made up of predominantly single storey dwellings and some multi unit developments.

A number of decisions were referred to during the course of this review including Navani v Glen Eira CC 2008 (VCAT) 2231 JH Vullers vGlen Eira CC 2007 (VCAT) 2158, Helou v Glen Eira CC 2007 (VCAT) 26, Tecton Design Studio v Glen Eira CC 2007 (VCAT) 1804, Mad Artist Holdings Pty Ltd v Glen Eira CC (2008) VCAT 1699

1. This was an application for review by the permit applicant of the council's decision to refuse the grant of a permit for the development of a second dwelling at the rear of existing dwelling at 5 Pell Street, Bentleigh East.
2. The application was refused essentially on the basis that:
   • The extent and location of the double storey component to the rear new dwelling.
   • Mass and bulk impacts to adjoining properties, and
   • Car parking within the front setback area.
3. Both parties made detailed submissions and tabled material which has been taken into consideration and determination in this matter. The site has been inspected as has the surrounding area.

1. Essentially, as is the case in most matters requiring planning determinations to be made, there are tensions that arise between the application for policy at both state and local levels. This application is no different.
2. The starting point is that state policy, that encourages urban consolidation applies equally to Glen Eira as it applies to other municipalities within the inner urban area.
3. However Glen Eira City Council has developed a detailed strategy which sets out the framework for decision making based on areas it has identified will best address the achievement of urban consolidation objectives within its municipality. This the policy suggests is proposed to be undertaken and achieved by identifying areas where medium density housing is encouraged eg. housing diversity areas, and other areas such as minimal change areas where least development and change is anticipated.
4. The review site is located within a Minimal Change Area.
5. The council's local policy for Minimal Change areas is set out at clause 22.08 and each of the parties highlighted the objectives of this policy as including:
   • To ensure that the siting and design of a new residential development takes account of its interface with existing residential development on adjoining sites.
   • To ensure that the design of new development is sensitive to and respectful of the scale of existing development on adjoining sites.

6. The policies go on to identify a number of specific matters including:
   • Ensure that car spaces, car ports and garages are not located within the front setback or project forward of the dwelling with street frontage.
   • Discourage the siting of two storey or multi storey dwellings at the rear of the sites.

• ensure the changes in heights and buildings from adjoining properties are graduated both across the site and along the length of the site.

1. Both parties referred me to a number of previous Tribunal decisions which supported their respective position.
2. I have considered these carefully and propose to address each of the issues identified earlier in the following reasons.

1. While it is acknowledged that a two storey built form is discouraged at the rear of the sites within a minimal change area, that does not mean it is prohibited, or that the starting point for any application that has a two storey development or component to the rear, should be automatically refused, as was alleged by the permit applicant was the council's position in this application.
2. As the Tribunal has pointed out time and time again, each site must be assessed on its merits. There may be circumstances where all the adjoining lots have a two storey component to the rear or whether the proposed two storey development itself, results in little or no impact on adjoining properties.
3. The starting point for assessment must be to make an assessment not only using the clause 55 performance standards but also a character and amenities assessment as to the impacts on the neighbouring properties, and whether the proposal will result in an acceptable planning outcome.
4. While two storey developments can have a visual impact on neighbouring properties, they can also have a positive impact in respect of the amount of the development area taken up at the ground level, thereby increasing the amount of private open space available for landscaping purposes to screen or soften the development.
5. In this proposal, the upper level is an area of approximately 44 square metres (including the void and stairwell). This compared with the ground floor area of approximately 107 square metres plus approximately 37 square metres for the garage area, results in the upper level footprint being approximately 40% of the ground floor dwelling area, and approximately 30% of the total ground floor built area.
6. This is in itself not a significant upper level area. In addition there are reasonable setbacks to the east, west and north boundaries.
7. However, the upper level area, is quite generous with a large bedroom being proposed with separate built in robes and walk in ensuite.
8. In addition and significant to my consideration, is the upper level includes a large void area over the lower kitchen area. The roof form over this void is located close to the southern wall of the dwelling. This feature, in my view, results in a visual mass issue to the south, which is directly abutting the private open space area of the existing dwelling of the site.
9. Similarly, the eastern upper level wall of approximately 6.9 metres in length is setback approximately 3.5 metres from the eastern boundary and is not well articulated.
10. In my view while the upper level appears well setback, the reality is, it presents as a visual mass to both the south and east properties.
11. This, together with the unusual roof form profile, make the upper level unacceptable in this application. I say in this application because I have no doubt a more sensitively designed upper level may be appropriate in some circumstances on this site.

1. In terms of a mass and visual bulk impacts to the adjoining neighbours I do have some other concerns in addition to those I have raised previously.
2. My main concern is the long 11 metres wall on the boundary of the eastern property. This wall on boundary is located adjacent to the private open space of the adjoining dwelling. While it may meet the performance standards of clause 55 in respect of length of walls on boundary, its location entirely opposite the private open space of that dwelling renders it, in my view, an unacceptable planning outcome. Had I formed an opinion to grant the application I would have requested that this wall be setback a minimum of 1 metre from the eastern boundary.
3. I also have concerns in respect of what appears on the plans as a roof form over the garage and other parts of the dwelling, which appears to introduce bulk in the roof form which is either unnecessary or uncharacteristic of roof forms in the area.
4. This roof form which is evident in the elevations and on plans appear to add visual bulk to both ends of the proposed dwellings unnecessarily.
5. Again I find the form of the roof foreign to the area and more importantly introduces a form of massing which is unacceptable.

1. As mentioned earlier the positioning of car space within the front setback area of the existing dwelling is generally discouraged in the policy provisions.
2. However, in this instance the existing dwelling, which appears to be in good condition, is sought to be retained as part of this proposal.
3. The retention of the existing dwelling has many positive features:
   • It maintains to a large degree the existing streetscape impact.
   • It recycles and reuses an existing building as part of the proposal.
   • It is energy efficient to maintain the existing dwelling.
   • It does not propose to introduce a second crossing or additional built form within the front setback area.
4. These factors needs to be balanced against the provision of a car space within the front setback area.
5. Given, there are a number of other properties nearby that provide for the accommodation of a car space within the front setback area, and in a similar position, and in addition, the fact an adequate amount of landscaping area is still maintained in the front setback area, results in me believing the outcome is an acceptable outcome in this instance.
6. The proposed car space services a two bedroom dwelling and importantly Pell Street itself is a relatively quite residential street where reversing out of the driveway is quite a common occurrence.

1. Given I find the proposed rear building is too bulky as a consequence of its boundary to boundary construction and its roof form and upper level area, I propose to uphold the council's determination in this proceeding. I did consider providing the applicant with an opportunity to amend plans but the degree of changes required are too numerous to facilitate that option.