Statements of Grounds from Mr Brian Herbert and Ms Clair Wayman were also considered.

1. This is an application for review by the permit applicant against the failure of the Kingston City Council [the Council] to grant a permit within the prescribed time for the construction of seven double storey dwellings at 10 Flinders Street, Mentone.
2. In response to advertisement of the permit application the Council received twelve objections. They raised such matters as overdevelopment; loss of privacy and amenity; neighbourhood character; traffic and parking; loss of vegetation and the availability of space for landscaping; and drainage.
3. The application was referred internally. The Council's Development Approvals Engineer required three standard conditions relating to car parking spaces and access. The Vegetation Management Officer did not support the removal of the tree at the front of the site.
4. After the application for review was lodged a Council planning officer prepared a report recommending that the application not be supported. The Council adopted that recommendation. The Council determined to advise all parties that had it made a decision within the prescribed it would have resolved to refuse the application on the following grounds:
   1. The proposal fails to achieve the objectives and strategic directions of the Municipal Strategic Statement - Residential Land Use contained at Clause 21.05 of the Kingston Planning Scheme.
   2. The proposal fails to achieve the objectives of the Residential Development Policy contained at Clause 22.11 of the Kingston Planning Scheme.
   3. The proposal does not satisfy the objectives and standards of Clauses 55.02-1 (Neighbourhood character), 55.02-2 (Residential policy), 55.02-5 (Integration with the street), 55.03-1 (Street Setback), 55.03-2 (Building Height), 55.03-3 (Site Coverage), 55.03-7 (Safety), 55.03-8 (Landscaping), 55.03-10 (Parking Location), 55.05-2 (Dwelling Entry), 55.05-3 (Energy Efficiency), 55.05-4 (Private Open Space), 55.05-5 (Solar Access to Open Space) and 55.06-1 (Detailed Design), and 55.06-2 (Front Fences) of the Kingston Planning Scheme.
   4. The proposal displays excessive visual bulk to existing adjoining properties' secluded private open space areas.
   5. The proposal provides insufficient landscaping opportunities due to the excessive built form.
   6. The proposal involves the removal of a significant tree from the front setback of the site, which adds to the landscape character of the streetscape and neighbourhood in general.
   7. The proposal constitutes an overdevelopment of the site.
   8. The proposal would detrimentally affect the amenity of the neighbourhood.
5. Many of the objectors are parties to this review.

1. Mr Neofitou's written submission reproduced the following description in the planning officer's report of the subject and surrounds:

The subject site is an irregular "L" shaped allotment located on the southern side of Flinders Street in Mentone. The site has a frontage width of 21.54 metres, a maximum depth of 60.56 metres (along the eastern boundary), and a rear boundary width of 35.78 metres, resulting in an overall area of 1,587.4m2. Vehicle access to the site is via a single width crossover located at the eastern end of the Flinders Street property frontage.

The site presently contains a single storey 1960's style brick veneer dwelling with a low pitch gable steel deck roof. There is a carport within the front setback area. The site also contains six (6) existing trees between 6 and 10 metres in height within the front setback of the dwelling, one of which comprises a large gum tree with provides considerable landscape amenity to the site and the streetscape. Two (2) trees of 3 and 5 metres in height are located to the rear of the dwellings and a 4 metre high hedge along the northern part of the rear fence line. There is also one 12 metre high tree within the nature strip along Flinders Street. There is a 2 metre high brick fence across the front (northern) site boundary.

The site slopes about 4 metres generally towards the front

north-eastern site corner. There is a retaining wall along the western side of the driveway, at the south-east site corner and east of the dwelling (to the east of the existing veranda). The site is located midway along a rise in Flinders Street, which falls towards Charman Road in the west and Bourke Street in the east.

Development in the area immediately surrounding the site comprises mostly single storey dwellings, with some double storey development present. Abutting land is developed as follows:

• East: five single storey 1960's style brick veneer dwellings with hip concrete tiled roofs.
• South: rear private open space, and the south-western section abuts a nursing home which is double storey brick and rendered with complex hip concrete tiled roof
• West: Rear of the nursing home (outlined above) and a double storey Tuscan style rendered dwelling with a hip terracotta tiled roof
• North (opposite): single storey 1950's style brick veneer and timber clad dwellings with flat and low pitch gable corrugated iron roofs.

There is a significant difference between the levels of the site and abutting properties. In particular, No. 12 Flinders Street and Nos. 3, 9 and 11 Patty Street are lower than the subject site, and No. 8 Flinders Street is higher.

1. It is proposed to demolish the existing dwelling and construct seven double storey dwellings within two building above a basement car park that would provide two car spaces for each dwelling.
2. Each dwelling would have three bedrooms. The floor areas are in the range 159m2-181.5m2. The dwellings would have ground level private open spaces within the range 31.5m2-78.1m2. Dwelling 1 would also have a balcony facing the street.
3. Dwelling 1 has an L-shaped configuration. The element closest to the street has a setback of between 7.3m and 7.6m at ground level (not including the projecting porch) and between 7.9m and 8.2m at the upper level. It would be set back a minimum of 6.35m from the eastern boundary and 3.3m from the western boundary.
4. Dwellings 2, 3 & 4 would be located to the south of Dwelling 1, all in an attached building form. At ground level the minimum setback from the eastern boundary would range between 5m and 6.54m. From the western boundary at ground level the minimum setbacks would range between 3.8m and 5.28m. The dwellings have marginally greater setbacks at the upper level.
5. Dwellings 5, 6 & 7 are to be in attached form across the rear section of the subject site. The land is to be excavated so that those dwellings sit at a lower level. At the ground level the building would have a minimum setback of 3m from the southern boundary. The minimum setback from that boundary at the upper level would be 4.6m. Dwelling 5 would be set back from the eastern boundary a minimum of 2.4m at the ground level and 3.8m at the upper level. Dwelling 7 would be set back from the western boundary a minimum of 1.75m at the ground level and 2.2m at the upper level.
6. The walls would have a variety of materials - face brickwork, lightweight render and weatherboard cladding. The roofs would have terracotta tiles.
7. It is proposed to retain the existing brick fence which steps down the frontage with a height of 1.8m-2m.
8. The proposal represents site coverage of 45.1 %, and a site permeability of 52%.
9. No landscaping plan has been prepared.

1. The subject site is zoned Residential 3 [R3Z] under the Kingston Planning Scheme and is not subject to any overlay controls. A permit is required pursuant to Clause 32.06-4 to develop the land with more than one dwelling. A development must meet the requirements of Clause 55 (ResCode). A schedule to the R3Z varies some of the ResCode standards. For instance, it requires a greater amount of private open space for each dwelling and a front fence height of 1.2m in this instance.
2. Relevant provisions of the State Planning Policy Framework [SPPF] include Clause 12 (Metropolitan Development), Clause 14 (Settlement), Clause 15.12 (Energy efficiency), Clause 16.02 (Medium density housing) and Clause 19.03 (design and built form).
3. Relevant provisions of the Local Planning Policy Framework [LPPF] include Clause 21.05 (Residential Land Use) and Clause 22.11 (Residential Development Policy).

1. At the hearing Mr Neofitou, Ms Laven, Ms Kukovec and Mr Fletcher spoke to written submissions Mr Dibbs, Mr Young, Mr Warr, Ms Tromp and Ms di Diego spoke to their Statements of Grounds.
2. The written submissions of the parties, together with numerous photographs, plans, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

1. After the hearing I carried out an inspection of the subject site, the neighbouring property to the east (including the rear courtyard of Unit 5/12 Flinders Street) and the general area

1. It is axiomatic that the proposal - which involves replacing one dwelling with seven - is consistent with the broad thrust of State and local policies that support urban consolidation, the use of existing infrastructure and increasing the diversity of housing stock.
2. However, I accept Mr Neofitou's submission that State and local policies do not provide explicit support for a development of the form and intensity that is proposed in this application.
3. In relation to State policies the objectives and strategies for development in Metropolitan Melbourne encourage higher density housing on sites that are well located in relation to activity centres and on other strategic redevelopment sites. The subject site is not close to an activity centre. While there are local bus services, it is at least 1km to a train station.[1]
4. In relation to local policies relating to residential areas I note that the Council has adopted "the Glen Eira Model" to identify areas where different types of change are envisaged. On the Strategic Framework Plan at Clause 21.05 the subject site is within an "Incremental Housing Change Area". According to Clause 21.05-1:

The type of housing change anticipated in these areas will take the form of extensions to existing houses, new single dwellings or the equivalent of new two dwelling developments on average sized lots. The existing single dwelling character of these areas is to be retained.

1. A relevant strategy is:
   • Promote lower density housing in established suburban areas that do not have direct access to activity/transport nodes and "encourage" only incremental change in housing density (incremental housing change areas). Such areas will retain their predominantly single dwelling character and incremental change will occur in the form of single dwellings or the equivalent of dual occupancy developments on average sized lots.
2. Those provisions are reinforced in the Residential Development Policy at Clause 22.11. The policy objectives at Clause 22.11-2 include:
   • To promote a managed approach to housing change, taking account of the differential capacity of local areas in Kingston to accommodate increased housing diversity, incremental housing change, residential renewal or minimal housing change, as identified within the MSS.
   • To encourage new residential development to achieve architectural and urban design outcomes that positively respond to neighbourhood character having particular regard to that identified in the Kingston Neighbourhood Character Guidelines - February 2003.
3. The policy at Clause 22.11-3 relating to "Incremental Housing Change Areas" is:
   • In suburban locations which are not within convenient walking distance of public transport and activity centres, encourage lower density housing forms with a predominance of single dwellings and the equivalent of dual occupancy developments on average sized lots.
4. The policy at Clause 22.11-3 relating to "Neighbourhood Character" includes:
   • In areas identified for incremental housing change, ensure that new housing development is responsive to maintaining the existing and preferred single dwelling/lower density nature of these areas.
5. Having read the State, metropolitan and local components of the Kingston Planning Scheme - including the above extracts - I find a clear and simple statement as to the desired strategic direction in relation to housing. Activity centres, significant redevelopment sites, "Increased housing diversity areas" and "residential renewal areas" are seen as providing opportunities for higher densities, including new medium density housing. In constrast, it is anticipated that "Incremental change areas" will experience limited changes to the type of housing. Further areas - identified as "Minimal change areas" - are seen as not playing a significantly expanded role in meeting future housing needs, due to particular factors.[2]
6. With respect to the subject site the planning scheme clearly does not envisage a radical departure from the existing neighbourhood character. I note that the local policies envisage new housing that is"the equivalent of dual occupancy developments on average sized lots". As the subject site is obviously substantially larger than "an average sized lot" in this area, there is perhaps an implicit endorsement of more than a dual occupancy (two dwellings). Nevertheless, I can find nothing in the local policies that would support a development of the intensity proposed.

1. State and local planning policies - including Clause 21.05 and Clause 22.11 - the purpose of the R3Z and the objectives at Clause 54.02-1 all reinforce the need for new development to respect existing neighbourhood character. Clause 55.02-1 also refers to design contributing to "preferred neighbourhood character."
2. Pursuant to Clause 22.11-2 particular regard should be given to the neighbourhood character identified in the Kingston Neighbourhood Character Guidelines (February 2003). Those Guidelines are also an incorporated document at Clause 21.05. The Guidelines do not specify a preferred character. Rather, they call on applicants to prepare a site analysis and design response utilising the "typical characteristics" of the relevant Character Area.
3. The typical characteristics for this area (No 17) include:
   • Building placement - a narrower and a wider side setback and a front setback of 5-10m;
   • Building footprint - varied;
   • One and two storey houses oriented to the street and detached;
   • Roof shape - simple hipped;
   • Materials - gray or red tiled roofs and brick or render walls;
   • Window shapes - vertical, rectangular.
   • Front boundary and garden - grassed front gardens and varied boundaries; and
   • Other building features - porches.
4. In relation to rear gardens, the Guidelines for Area 17 state that characteristics "cannot be identified for the area as a whole" but:

garden size and vegetation must be included in the consideration of neighbourhood character, particularly in terms of boundary screen planting and trees visible from the street.

1. The proposal accords with those characteristics in terms of roof shape, windows, materials and side setbacks. In particular, there are no walls proposed on the boundaries. The side setbacks to the west and east boundaries are generally consistent with the wider and narrower side setbacks of the existing dwelling on the subject site and neighbouring properties. The proposal also has the benefit of providing landscaping along the driveway, which is currently a hard edge with the property to the east.
2. There are, however, various features of the proposal that are clearly at odds with those "typical characteristics" - the principal one being that it is comprised of multiple attached dwellings, most of which are not oriented to the street. However, to reject the proposal on that basis alone would be tantamount to saying that only single, detached dwellings are acceptable. A more detailed analysis of the design response is called for.
3. On that matter, Mr Fletcher submitted that the proposal has effectively responded to the streetscape and the nature of development on abutting properties. As he described it, the design is "borrowing off existing neighbourhood character". Mr Fletcher also noted that the existing dwelling on the subject site has considerable length and, although it is single storey, presents to the street as a higher building.
4. I do not wholly agree with Mr Fletcher's submission relating to the presentation to the street. I acknowledge that a double fronted dwelling would face the street, wide side setbacks are proposed and the existing driveway and front fence would be retained. I also appreciate that any form of new development - particularly with a two storey form - within the existing frontage setback would substantially alter the appearance of the site.
5. Nevertheless, I consider that the presentation of Dwelling 1 would be unacceptable. It includes an almost sheer two storey wall facing the street, contrary to the policy at Clause 22.11-3 relating to Built Form, Siting and Scale of Development. That policy (applicable to new residential development in all the "Housing change" areas) includes:
   • Encourage the two storey component of new medium density housing to be located towards the front of the site.
   • Where the local neighbourhood is characterised by single storey development and this characteristic makes a major or critical contribution to neighbourhood character, new two storey development should incorporate rooms within the roof form of attic style dwellings, and should set the second storey building envelope back from the ground level envelope.
   • Encourage well articulated and graduated elevations in order to avoid 'box-like' double storey designs, thus reducing visual bulk.
6. Furthermore, the front wall of Dwelling 1 is proposed to be set back 1.4-1.7m less than the 9m setback required by Standard B6. Despite the substantial setback of the dwelling (around 19.5m) and garage (around 12.5m) to the west I do not believe the reduced setback can be justified, particularly given the form of the proposed Dwelling 1.
7. Mr Fletcher submitted that the height of the proposed development is designed to "provide an infill development" between the two storey

Tuscan-style dwelling to the west, on higher land, and the single storey units to the east. He also argued that Dwelling 7 has been designed to "provide a height transition" between the Tuscan-style dwelling and the retirement/nursing home to the south. 8. I agree with Mr Fletcher that the interface to the south west - the Avonlea Aged Care complex - is not particularly sensitive given that the complex is on much lower land. However, I do not agree with Mr Fletcher's suggestion that the very intensive form of development on that land somehow justifies the proposed intensity of development on the subject site. The nursing home is oriented to Patty Street and has no visual connection with the Flinders Street streetscape. 9. Nor does the double storey Tuscan style dwelling justify an intensive form of development on the subject site. Perched high on the ridge it represents a style of housing that is an anomaly[3] in the small section of Flinders Street between Charman Road and Bourke Street which has a distinct character, arising from the scale of buildings as well as the street trees and the slope of the road. 10. Neighbourhood character is, of course, not exclusively about the streetscape. As Senior Member Baird has noted, the Tribunal has frequently held "that side and rear setbacks, including a 'backyard-scape', are relevant in terms of neighbourhood character."[4] I have frequently had cause to make similar observations. For instance, in a matter concerning a proposed development in Brighton I stated:

...the concept of neighbourhood character is not just about streetscape. It also includes such elements as the siting and scale of buildings, the space between them, the landscape character of the area and the way in which the buildings integrate with open space areas. It also includes the nature and "feel" of an area, including that experienced in the rear yards of neighbouring properties.[5]

1. In terms of that broader concept of neighbourhood character I consider that the proposal has critical deficiencies.
2. The first deficiency - which I consider to be the most critical - is the proposed massing of the buildings, both down the length of the site and across its rear. Such massing is uncharacteristic of the neighbourhood. Dwellings 1-4 and Dwellings 5-7 would be attached at the ground floor level. As there is limited or no separation at the upper level, there would be little relief of upper level built form. The massing is also exacerbated due to the difference in levels between the subject site and the abutting properties to the south and south east. Although the units on the land to the east are attached by their garages, it is only a single storey development and on lower land.
3. The second deficiency relates to the ability to plant trees with spreading crowns that would screen the mass of the building and add to the landscape character of the area. Although the basement is proposed to be offset from the east and west boundary, and does not extend to the rear of the subject site, the basement would potentially limit landscaping opportunities.
4. Thirdly, while the proposal meets the 50% site coverage requirement in Standard B8, almost all development in the surrounding area has lower site coverage.

1. I accept Mr Fletcher's submission that the interface with 8 Flinders Street is not particularly sensitive. In addition to the Tuscan-style dwelling the property to the west has a double garage and a 11m-long covered pergola abutting part of the common boundary. I also understand that it is proposed to retain a number of trees along the common boundary.
2. Nor would the proposal have any adverse amenity impacts on the Avonlea Aged Care complex to the south west.
3. Given the separation distance I do not consider that there would be any unreasonable overlooking of Ms di Diego's property - on the opposite side of Flinders Street.
4. Although Mr Dibbs submitted that the proposal would result in "over looming bulk" presented to his property to the south east, I note Mr Fletcher's submission that Mr Dibbs dwelling is more than 20m from the common boundary, with intervening vegetation and a storage shed. Any overlooking could be addressed by an appropriate window treatment.
5. The unit development to the east represents a more sensitive interface, especially given that the units and their small areas of private open space are close to the shared boundary. The ground level of the proposed development would be 1.2m-2m above the neighbouring property, raising potential issues of overlooking and visual bulk.
6. I appreciate that the interface is currently less than ideal. The low fence along much of the shared boundary allows some views into the small courtyards of the units. The rear unit (5/12 Flinders Street) now has a large besser brick fence facing its courtyard. However, most of the small courtyards appear to be used as service areas. Balconies on the eastern side are more likely to be used as the principal areas of open space, although they are not private. There is also a large terraced garden in the south east corner of the property.
7. I accept Mr Fletcher's submission that the proposal would not result in a substantial change in outlook from the rear of Unit 5/12 Flinders Street. There could also be measures to limit any overlooking of all of the units. What is of concern, however, is the measure adopted by Mr Fletcher. It is proposed to erect a high fence along the length of the shared boundary. It would have a height of 2.75m above the courtyards of the units then be angled away. While it would prevent overlooking it is a style of fencing that is uncharacteristic of this neighbourhood. It reminds me of fencing commonly installed at places of incarceration.
8. A number of the respondents raised concerns about the noise that would be experienced at Units 1 & 2/12 Flinders Street due to the cars accessing the basement, including the noise of the entry mechanism of the basement door. Given the proximity of the neighbouring units they are valid concerns. However, planting could provide some barrier and there could be ways to limit the noise of the door.

1. Mr Neofitou conceded that most of the proposed dwellings incorporate a good relationship between their internal living rooms and areas of private open space. Each of the private open spaces would comply with the varied ResCode standard in the schedule to the R3Z. Mr Fletcher also noted that some of the dwellings would enjoy bay views to the south west, over the roof of the Avonlea complex. However, Mr Neofitou raised a number of concerns about the liveability of the dwellings for future residents.
2. In relation to solar access Mr Neofitou submitted that the private open spaces for Dwellings 5 & 6 would achieve poor access to northern sunlight. He also argued that Dwellings 2-5 are provided with a poor northern orientation.
3. Although Dwellings 5, 6 & 7 have areas of private open space to the south of the dwellings, Dwelling 5 & 7 would also have areas with an eastern or northern orientation. Mr Fletcher suggested that the design could be altered to increase the solar access to the private open space of Dwelling 6. That matter should have been resolved at an earlier time.
4. With respect to the solar access to the proposed dwellings themselves I note that Dwellings 2, 3 & 4 would not have any north-facing windows at the ground level, Dwelling 5 would only have a window at its entry with such an orientation and the living rooms of Dwelling 6 face south. Dwellings 2-5 also have a lack of north facing windows at the upper level. On the other hand, I note Mr Fletcher's submission that Dwellings 2-5 are proposed to have large east and west facing windows to their living rooms and Dwelling 7 would have extensive north-facing windows. I consider that on a site the size of the subject site it should be possible to provide better solar access to multiple dwellings.
5. Mr Neofitou submitted that all dwellings except Dwelling 1 would have "a lack of address" in that they would not address the street and would only be accessible via a narrow pedestrian path. I do not see that as a fatal flaw. I agree with Mr Fletcher that with many multi unit developments it is simply not reasonable to expect that all dwellings will face the street.
6. Mr Neofitou also submitted that the communal basement car park would result in inconvenient access to a number of the proposed dwellings. Mr Fletcher suggested that the car spaces could be reallocated to ensure they are as close as possible to their respective dwellings. Although that could partially address the concern raised by Mr Neofitou, some of the dwellings would be some distance from a stairway to the basement.

1. Many of the respondents highlighted the narrowness of Flinders Street and difficulties with on-street parking, especially given the crest of the hill. I am satisfied, however, that the provision of car spaces - 2 spaces for each dwelling with 3 bedrooms and 2 visitor spaces - is acceptable. It accords with the Standard B16 of ResCode and cars would exit the basement in a forward direction.
2. Concerns were also raised about the proposed removal of two large trees from the front of site - a Smooth Barked Apple Gum and a Prickly Paperbark. My inspection confirmed that the trees, especially the former one which is in the centre of the front garden, provide substantial landscape value to the subject site and the streetscape.
3. In a report dated 26 August the applicant's arborist observed that the Apple Gum "is stressed and is in significant decline". The report strongly recommended removal of the tree. The report observed that the Prickly Paperbark is "of average health". It recommended that the tree be retained but saw it as one that could "be easily replaced" within a redevelopment incorporating a detailed landscaping plan.
4. I understand that there is a difference of opinion between the applicant's arborist and the Council's Vegetation Management Officer about the issue of tree retention. While neither was called to give expert evidence, the report by the applicant's arborist seems to make out a strong case for the removal of the Apple Gum. There is no overlay control relating to vegetation retention. Nevertheless, it is policy at Clause 22.11-3 to "Encourage the retention of existing semi-mature and mature canopy trees wherever possible". For that reason alone it would desirable to retain the Prickly Paperbark in any redevelopment of the subject site.
5. Ms Tromp was concerned about the loss of the existing bore water facility on the subject site. Mr Fletcher indicated that it could be retained.
6. Matters relating to retaining walls close to the side boundaries of the subject site would be more appropriately considered at the building permit stage.

1. I understand from Mr Fletcher that since the permit application was submitted to the Council in October 2006, three different statutory planners and two different Vegetation Management Officers have handled the proposal. According to Mr Fletcher "the consistency of thought process and direction has changed from officer to officer with due process all but lost". I have sympathy with Mr Fletcher if he was indeed given an indication by any Council officers that the proposal would be supported. However, such a claim is not substantiated by any of the material provided to me. On the contrary, I was provided with an early letter from the Council expressing serious concerns with the proposal and the Council has adopted the most recent officer report and not supported the proposal.
2. In any case, the history of the processing of the application is ultimately not a relevant matter. A tribunal hearing is a hearing de novo on the merits of the proposal.
3. For the above reasons I find that the proposal would represent an unacceptable outcome. Accordingly, I will direct that no permit be issue.

[1] Cheltenham station is approximately 1 km away; Mentone station is about 1.1km away.

[2] Factors include proximity to the airport flight path, single dwelling covenants and neighbourhood agreements.

[3] There is also an imposing new dwelling at No 13 Flinders Street.

[4] Chernov v Bayside CC [2005] VCAT 61.

[5] Grant v Boroondara CC (2005) VCAT 356.