1. This application is brought under Section 77 of the Planning and Environment Act 1987 to review a decision of the Responsible Authority in refusing to grant a planning permit for a dual occupancy.

2. The subject land is on the east side of Macrina Street, Oakleigh south of Ferntree Gully Road at No 22. It has a frontage of 16.76m, a depth of 46.33m and an area of 726m2. There is a 1.83 wide easement across the rear and the land slopes approximately 3m from the rear to the street frontage. It contains a fairly new large two storey brick and tiled roof dwelling set approximately 6m from the street frontage.

"It is proposed to construct a second dwelling behind the recently completed double storey residence located on the land.

If approved Unit 1 would be provided with private secluded open space of 61.5 square metres enclosed by a what would appear to be a timber paling fence.

* A double garage with 6.5 metre reversing area;

* Four bedrooms (one shown as a study with built in robes);

* An open plan family/kitchen/living/dining room;

* Private secluded open space of 42.25 square metres; and

* Setbacks to the north, east and south of 1.55, 5.0 - 1.83, and 1.55 metres respectively.

In order to accommodate the new residence a second crossover would have to be provided to the property."

4. The subject land and surrounding land is zoned Residential C under the Monash Planning Scheme. The new format scheme has recently been adopted by Council and forwarded to the Minister. The relevant scheme is the existing scheme although the new scheme has to be given considerable weight after reaching this stage from a vigorous consultation and panel process.

5. The grounds of refusal and reasons for this request are:

1. The proposal does not satisfactorily address the purpose and intent of Good Design Guide for Medium Density Housing.

2. The proposed development is out of character with the surrounding area in particular with regard to mass, bulk and scale.

3. The proposed development is not appropriate for the locality in regards to its adverse impact on the streetscape and general neighbourhood character.

4. The proposed dual crossover concept servicing the site is not appropriate at this location.

5. The proposed development does not accord with the spirit and intent of State Planning Policy.

1. The proposal is fully complaint with the purpose and intent of the Good Design Guide for Medium Density Housing.

2. The proposal is in-keeping with the character of the surrounding area.

3. The proposal will have no adverse impact on the character of the streetscape.

4. The proposed vehicle access arrangements are appropriate.

5. The proposal is entirely consistent with the spirit and intent of State Planning Policy.

6. The Tribunal considered after hearing from the parties that it was necessary to view the area and assess the proposal including the existing dwelling as part of the dual occupancy against the neighbourhood and streetscape character concerns. The inspection occurred on Wednesday 21 June 2000.

7. This is an unusual application in that it is a dual occupancy, however the large two storey front dwelling has been erected "as of right" as a single dwelling and the Responsible Authority submit that if considered as a true dual occupancy the front dwelling would not comply with the neighbourhood character and for a number of reasons would not have been permitted.

8. The application is for a second and single storey dwelling at the rear of an existing two storey dwelling located closer to the street frontage than the average dwellings in the street with two vehicle access points to provide a separate entry for each dwelling.

9. The Responsible Authority is not against a dual occupancy but claims that the front dwelling as designed and constructed now requires all the frontage for landscaping to soften the bulk.

10. There is a background history on this site that needs to be outlined to understand the position today, which was the basis of the Responsible Authority submission and addressed by Mr Wooldridge who called the applicant as his witness to explain his reasons for the method adopted in trying to achieve his dual occupancy.

"Planning application TPA/25342 for three units comprising two double storey and a single storey residence, was refused by Monash Council on 23 March 1999. The grounds of refusal for the application concerned the impact of the development on neighbourhood character as well as several areas of non-compliance with the Good Design Guide.

The current application was lodged with Council on 26 October 1999. At the time of lodgement construction of a two storey residence was already underway on the property. A meeting was held with the applicant where Council's strong concern was expressed that the dual occupancy had already been commenced without any consultation with Council. A letter was sent to the Minister for Planning concerning the difficulties arising in the municipality from people commencing staged dual occupancy developments before approval is granted to the entire project. The difficulty with such situations is that in many instances the dwelling already constructed would not obtain approval pursuant to the multi unit requirements of Good Design Guide.

People undertaking developments in this way set out to subvert the planning process and obtain approval for developments that would otherwise not be forthcoming.

The applicant, having been through the planning process already, was well aware that a dual occupancy would necessitate the submission of a further planning application. Rather than do this they decided to proceed with the development in a staged fashion. In taking such a course of action developers are taking a risk. Clearly the hope is that either Council or the Tribunal will support the forced development scenario put for the land. Herein however lies the risk as such approval may not be forthcoming. IN the case before us today Council evaluated the proposal and considered that the development had already adversely impacted on the amenity of the neighbourhood. The second residence proposed making the situation worse.

There are several areas of concern with the application. Whilst one of the residences is already complete the two dwellings should be assessed against the relevant provisions of the Good Design Guide.

Only then can a full picture of the development be obtained. Grounds of refusal 1 - 3 essentially concern neighbourhood character issues. The difficulty of course is that one of the buildings is already constructed. The existing building has generated impacts in terms of neighbourhood character which need to be considered as part of the approval for the dwelling to the rear. The reason being that construction of the second dwelling will further exacerbate what is in effect a substandard outcome for the site. The last ground of refusal acknowledges the misuse of the planing process in securing approval for the development of the site considered as a whole."

12. Mr Wooldridge explained that the new wide driveway to the front dwelling could be reduced in width and landscaping provided each side as well as the existing plot provided for landscaping. Whilst this would help the current harsh front appearance, the Tribunal believes that the whole frontage is necessary for landscaping, the bulk, shape and location of the recently completed dwelling has spoilt the immediate area and the Tribunal is not prepared to allow a second dwelling on this land with a separate driveway. The proposed drive is needed for total landscaping.

13. It is acknowledged that the proposed rear single storey dwelling generally complies with the requirements of the Good Design Guide however this is a question of neighbourhood character and streetscape that is of importance and carries substantial weight in the consideration of applications such as this.

14. The Tribunal intends disallowing the request and does not see any future for a dual occupancy on this land because of the existing dwelling.