A. Application for review P1289/2004 is granted and a permit is granted for the construction of two houses on the land in accordance with the endorsed plans hereafter provided for and subject to the following conditions:

1. Before the development starts amended plans must be submitted to the responsible authority for its approval. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved, the plans will be endorsed as evidence of their approval. The plans are to be substantially in accordance with the plans submitted to the council and considered at the hearing by the Victorian Civil and Administrative Tribunal of planning applications for review P1289/2004 and P1290/2004 but modified to show:

a. reduction in floor to ceiling heights of the ground floor to both dwellings to a maximum of 2.7 metres;

b. a trellis fence extension to the east boundary fence adjacent to the main living room windows of both dwellings which trellis must result in a screen to a minimum height of 1.7 metres above floor level and with a maximum transparency of 25 percent;

c. the east facing first floor bedroom window of bedroom 2 of dwelling 2 is to have fixed obscure glass to a height of 1.7 metres above the floor level of the bedroom and be unable to be opened to a height of 1.7 metres above the floor level of the bedroom; and

d. a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

ii. a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plans and the location of all areas to be covered by grass, lawn or other surface material as specified;

2. 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.

3. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the responsible authority prior to the occupation of the development.

4. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the responsible authority.

5. The land must be drained to the satisfaction of the responsible authority and all drainage works must be completed prior to the occupation of the building.

6. Stormwater drains must be connected to a legal point of discharge approved by the responsible authority. Drainage connections within a road reserve must be to the council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the responsible authority.

7. The owner must accept any costs related to the construction, re-alignment, alteration and/or reinstatement of the crossovers and any and all street assets and/or supervision works are to be borne by the owner.

8. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the responsible authority.

Reticulated Electricity to be Provided Underground

9. Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the responsible authority.

10. Consent must be obtained from the relevant authority for the relocation of the power pole on Monash Avenue.

11. This permit will expire if one of the following circumstances applies:

(a) The development is not started within 2 years of the date of this permit.

(b) The development is not completed within 4 years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Note: Headings are for ease of reference only and do not affect the interpretation of permit conditions.

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

C. Application for review Dalakouras and Dalacorp Pty Ltd v. Boroondara CC being application for review No. P1290/2004 is withdrawn pursuant to leave granted by consent.

Mr. Daniel Soussan, town planner of Ratio Consultants Pty Ltd, appeared for the responsible authority. He presented written and oral submissions.

Mr. Robert Easton, town planner, appeared for the applicant company. He also presented written and oral submissions.

Mr. Ian Delacy appeared for the respondent objector, Pamela Harrison. He made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.

Application under s.78(b) PE Act for review of a requirement by the Responsible Authority for further information.

Residential 1 Zone under the Boroondara Planning Scheme

This is a review under s.79 PE Act of the failure of the responsible authority to grant a permit within the prescribed time. By the time of the commencement of the review proceeding the responsible authority had not issued a notice of decision to grant a permit or a notice of refusal. Consequently, no grounds of refusal were given.

Subsequently the responsible authority has decided that it does not favour the grant of a permit on the following grounds:

1. The scale and prominence of the upper storeys with minimal articulation in the front facades accentuates the appearance of building bulk.

2. The extent of building bulk will have a detrimental impact on the streetscape and the neighbourhood character.

1 This case concerns the proposed redevelopment of a residential allotment on the south-east corner of the intersection of Belmore Road with Monash Avenue in Balwyn. There is a "splay" at the corner. Disregarding that splay, the site is a rectangle of land with a frontage of 18.14 metres to the south side of Belmore Road and a "sideage" to the east side of Monash Avenue amounting to 36.58 metres. The area is 661 square metres.

2 The land is zoned Residential 1 under the Boroondara planning scheme. It is set in a Residential 1 zone with residential developments round about. However, there is an extensive public open space area on the opposite side of Belmore Road.

3 The proposal is for the construction of two new dwellings on the review site. The first would effectively face Belmore Road, and the second would take advantage of the corner block and would have its frontage to Monash Avenue. Each would have a first floor component of a smaller floor area than the ground floor. The ground floor level is required to be elevated to an extent that appears to vary between .3 metres and .6 metres so as to place the floor above the flood level for a 1 in 100 year flood event. Each dwelling would have three bedrooms and a garage with access from crossings onto Monash Avenue. Unit 2, being the rear one facing Monash Avenue, would have a double garage with a 5 metre concrete apron in front of it which could provide off-street parking for visitors' cars. The front unit has a single garage (perhaps amounting to 1½ normal garages so as to provide storage) with a similar 5 metre concrete apron between the garage door and the vehicle crossing onto Monash Avenue.

4 This is, in my opinion, a well designed and well thought out proposal. It has been refined and improved since the original application plans were lodged. These modifications have taken account of various concerns and suggestions made on behalf of the responsible authority. I say this by the way, as the question before me is whether the final proposal is acceptable rather than whether it is an improvement on an earlier version.

5 The proposal represents substantial compliance with the ResCode provisions in cl.55 of the planning scheme.

6 The issues in contention in this case are narrow in scope. The responsible authority recognises many virtues of this proposal, and has confined itself to the question of whether the proposed building bulk would have a detrimental impact on the streetscape and neighbourhood character. This is really in relation to the scale and prominence of the upper storeys which, it was claimed on behalf of the responsible authority, display "minimal" articulation.

7 Ms. Harrison had several specific but limited concerns.

8 After hearing the case I announced my decision and gave oral reasons. These reasons have been recorded. I will not attempt a verbatim account of them, but merely give a summary.

9 My decision was to grant a permit. It follows that I did not find the grounds of refusal relied upon by the responsible authority to be justified. I find the scale and prominence of the upper storeys to be reasonable and I would not describe the degree of articulation as being "minimal". On the contrary, I regard it as appropriate.

10 The criticism, in this respect was directed to whether the degree of setback for the first floors is sufficiently increased over the setbacks for the ground floor to provide enough articulation in that dimension. With the exception of some minor wall faces, the upstairs walls are further setback compared with the equivalent ground floor walls below. This is true to varying extents. This has the effect of breaking up the appearance of bulk.

11 Double storey buildings are normally in scale with single storey dwellings. There are a number of double storey developments in the locality, frequently single detached houses. Some are most unfortunate in their presentation to the street and their contributions to the streetscape. Prominent double garage doors, thrust well forward of the main wall of the house, gives a most unfortunate result. This proposal, to a modest extent, will make a positive contribution to the streetscape and neighbourhood character, in contrast to some of these other unfortunate developments.

12 Ms. Harrison's statement of grounds contain two concerns. The first claimed that her private open space would be adversely effected by the proposed development as shown on the plans which, she claimed, did not accurately depict the relationship between the proposed development and her dwelling.

13 Her property is on the next allotment to the east, adjoining the eastern side boundary of the review site. That land has been the subject of a development in the form of two single storey houses. Hers is the rear most of the two dwellings. Her private open space is in front of her dwelling, and between it and the first dwelling. No doubt this is to maximise northern exposure.

14 Detriment to private open space is normally by means of overlooking, overshadowing or over-prominent bulk looming over the private open space. The concern here is really the neighbouring private open space, rather than whether there are some erroneous details in relation to the depiction of the dwelling associated with that open space.

15 An examination of the plans discloses that there is only one first floor window that could be a problem in this respect. It is denoted on the plans as having obscured glass. There is a question of the style and openability of the window, but that can be dealt with by conditions. Apart from that privacy can be adequately secured with the existing boundary fence which has a trellis on top of it, or its replacement with a new fence and trellis of similar height.

16 So far as overshadowing is concerned, the proposal meets the guidance afforded by the ResCode provisions in cl.55 of the planning scheme. This is the appropriate guide and I am satisfied in relation to that aspect.

17 It is true that there will be some change to the outlook from within the adjoining private open space. However, it is unrealistic to expect that there will be no new development or extensions to adjoining properties that have some effect on the outlook. I am satisfied that the impact, from this point of view, is modest and acceptable.

18 The second ground of Ms. Harrison was to suggest that the proposal is a considerable overdevelopment of the land and uncharacteristic of the built environment. Having examined the proposal in detail, I am satisfied that this is not an overdevelopment of the site. It has some advantages, in this respect, being a corner block. It means that little space is lost by providing vehicle access to the rear dwellings.

19 I do not consider the development to be uncharacteristic of the neighbourhood in any detrimental sense. In fact, as I have said, it is something of an improvement on some of the other prominent recent developments.

20 In closing, I note two points. The responsible authority suggested that the potential loss of a substantial existing tree in the Belmore Road front setback should be taken into account in assessing the bulk of the proposal in a way that is adverse to the proposal. What I have done, in this respect, is to assess the proposal on the basis of that tree being lost. I regard the proposal as acceptable, whether or not that tree survives.

21 I have made some mention of the modest elevation of the ground floor level on the count of the possibility of flooding. The responsible authority suggested that this adds to the height of the building. It does not add to it in such a way as to make a double storey dwelling unacceptable in this locality, or on this land. Nevertheless, it has suggested some reduction in wall heights, and incorporated provisions requiring such reductions in draft conditions that were circulated. Mr. Easton, on behalf of the applicant company, accepted those conditions containing those reductions.

22 Thus far I have been discussing the application for a planning permit for the two dwellings. The second proceeding was brought seeking the removal of a restrictive covenant that applies to the land. The restriction in this restrictive covenant provides that the land is not to be used for quarrying or brick making operations and that no marl stone, earth, clay, gravel or sand is to be dug or carried away or removed from the land.

23 The concern was apparently that this would prevent the excavation of for footings and foundations. The concern was based on a decision of the Tribunal in Isles v. Glen Eira CC (2003) 14 VPR 73.

24 The restrictive covenant, in that case, was worded a little differently in that it provided an exception for foundations for buildings. I am afraid I do not agree with that decision and would not follow it. I think that the "use" of this land is for residential purposes, and not for quarrying, brick making or extractive industry which are the things against which the restrictive covenant is directed. I was referred to a number of subsequent decisions of the Tribunal in line with what I have just said, and I have myself made previous decisions to the like effect.

25 The responsible authority referred the question to its solicitors. The advice of the solicitors was that the proposal was not contrary to the restrictive covenant. I consider this advice to be correct. The covenant does not prevent a consideration of the application for a permit for the two dwellings, and does not prevent a construction of the two dwellings in the event of the permit being granted.

26 The responsible authority consents to leave being given to withdraw this second proceeding. Leave is given by consent and it is withdrawn accordingly.