Design and Development Overlay - Schedule 3 ('DDO3')

Development Contributions Plan Overlay - Schedule 1 ('DCPO1')

Clause 32.09-5 - Construct or extend one dwelling on a lot less than 300 square metres

The review site is located on the south-eastern side of William Street, approximately 15 metres southeast of Male Street, Brighton. The site has a frontage of 7.92 metres and a depth of 33.22 metres, with an overall site area of 263 square metres. It is currently occupied by a single storey dwelling, with a car space in front and an existing high front fence and gates.

Adjoining sites are developed with two storey dwellings.

1. This application for review concerns Bayside City Council's (the 'council') decision to refuse to grant a planning permit for the extension of an existing dwelling on a lot under 300 square metres in a Neighbourhood Residential Zone ('NRZ3'). The decision was made contrary to the recommendations of its planning officers. Justin Gillis ('the applicant') seeks a review of this decision.
2. The permit application was refused on six grounds, essentially summarised as:
   • Neighbourhood character, more particularly being the upper level built form and relationship of the front of the dwelling on the William Street streetscape.
   • Inadequacy of upper-level side wall setbacks from adjoining properties.
   • The single storey side boundary walls.
   • Inadequate landscaping and potential adverse impact on a tree on an adjoining property.
   • Visual bulk and massing to adjoining properties.
   • Overshadowing.
3. Chantelle Brott, Paul Tay & Others are respondents to this proceeding. They own the properties at No. 64 William Street and No. 72A Male Street, to the immediate north-west of the review site. They are both developed with double storey dwellings in an attached duplex format. No. 64 is orientated to address William Street and no. 72A addresses Male Street.
4. Amended plans have been circulated in accordance with the Tribunal Practice Note PNPE9. While no party has any objection to the substitution of these plans, the Council and respondent maintain their opposition to the development.
5. While there has been a number of amendments that affect the zone and clause 54 to the Bayside Planning Scheme (the 'Scheme') since the council's decision, transitional provisions in the zone allow for the consideration of this matter under the provisions in force at the time of the council decision.
6. In setting out my assessment of the issues below, I do not recite all of the relevant material tendered by the parties. I have considered all written submissions, Statement of Grounds and assisted by my inspection.
7. My assessment must be undertaken in the context of the directions of the Scheme and the specific evaluation criteria for the matters in which a planning permit is required.
8. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Scheme, I have decided to set aside the decision of the responsible authority and direct that a permit be granted.
9. My detailed reasons follow.

Clause 54 before Planning Scheme Amendment VC267 apply

1. On 6 March 2025 Planning Scheme Amendment VC267 was gazetted. This amendment modified clause 54 and amongst other changes made various consequential amendments to residential zones about requirements for permits, references to standards and application material. The amendments commenced operation on 31 March 2025 ('commencement date').
2. The VC267 amendment also inserted a transitional provision to the residential zones. The transitional provision has the effect that any permit application made before the commencement date continues to be assessed under the provisions of clause 54 that were in force immediately before the commencement date.
3. The permit application now the subject of this review was made before the commencement date. Accordingly, the council's assessment and the assessment I make in this review are based on the provisions of clause 54 and their operation immediately prior to VC267.

IS THE PROPOSAL ACCEPTABLE FROM A NEIGHBOURHOOD CHARACTER PERSPECTIVE?

1. The application seeks to largely remove the existing single storey dwelling on the land and replace it with a new two storey form. Vehicle access to the site is unchanged, and the building will largely retain its existing front setback. Walls are proposed on side boundaries with the upper level recessed. No changes are proposed to the existing high front fencing.

1. The council's neighbourhood character concerns with the proposal are the two storey presentation of the dwelling to the street. They say that its Neighbourhood Character Policy at Clause 15.01.5L provides preferred character strategies for Area B2 (in which this site is located), which include to:
   • Articulate the form of buildings and elevations particularly front facades.
   • Recess upper storey elements from the front façade.
2. It says that the proposal does not acceptably respond to these strategies. Further, it says that the site coverage (approximately 55%) exceeds the modified standard A5 requirement in Schedule 3 to the NRZ at the time of consideration of the appplication (being 50%).

WILL THERE BE UNACCEPTABLE AMENITY IMPACTS TO ADJOINING PROPERTIES?

1. The amenity concerns expressed by council relate to the proposed first floor setbacks from both side boundaries which do not meet the then varied Schedule 3 to the NRZ. Council says there is adverse bulk impact on the adjoining properties created by walls closer to the side boundaries than that nominated in the modified clause 54 standard.
2. They also say that the proposal will increase overshadowing of the adjoining light courts, and the development will potentially have an adverse effect on a large tree on a neighbouring property.
3. The respondents say that the proposed boundary wall fails to align with the wall at No. 64 William Street which will then result in unreasonable visual impacts to the adjoining habitable room windows and courtyard. Further, that the first-floor north-western wall does not comply with the standard A10 (as modified by Schedule 3 of the NRZ). They say that the limited setback and no articulation will give rise to unreasonable visual bulk and mass from adjoining habitable room windows and courtyards.

1. A substantially sized Eucalypt is located along the front boundary in the secluded private open space ('SPOS') of No. 64 William Street. A significant portion of its canopy extends into the review site. The respondents are concerned that construction works on the review site will impact on the tree roots or result in canopy loss to enable the construction, which may impact on the ongoing health of the tree.

1. I am satisfied from a streetscape character perspective that the proposal is consistent with that evident in the immediate area and responds in an acceptable manner to the Neighbourhood Character Policy strategies for Area B2 as expressed at Clause 15.01.5L. The proposal adopts an upper-level articulation that is consistent with its neighbour and provides a generally recessed upper storey from the front façade.
2. The modified standard A5 requirement in Schedule 3 to the NRZ (relating to site coverage) is marginally not satisfied by the proposal. In considering whether a proposal meets the objective of the Standard, the decision guidelines require a consideration of:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • The existing site coverage and any constraints imposed by existing development or the features of the site.
   • The site coverage of adjacent properties.
   • The effect of the visual bulk of the building and whether this is acceptable in the neighbourhood.
3. I am satisfied that the proposal satisfies the site coverage objective and respects the existing neighbourhood character. The 5.5% additional site coverage is acceptable for the following reasons.
4. The existing dwelling on the land already has a high site coverage. The increase in site coverage beyond that existing is marginal and confined to areas of the site (the western side setback) that is currently a utilitarian space.
5. Contextually, the immediate neighbourhood character comprises one in which high site coverage is evident. The adjacent properties and many of those evident in the street also have high site coverage in part due to the modest size of the lots and the substantial nature of many of the dwellings. The proposal is therefore consistent with the existing neighbourhood character.
6. More broadly from a neighbourhood character perspective, I am satisfied that the proposal:
   • Retains the footprint of the existing dwelling.
   • Does not remove any large canopy trees.
   • Provides the same amount of space for replacement planting as the existing dwelling as the footprint of the dwelling is only increased on the western side of the site, in a location where there is presently no significant vegetation.
   • Retains the existing sense of separation between dwellings as viewed from the public realm.
   • Ensures there is no additional loss of front garden space and the existing parking arrangements are maintained with no proposed garaging or additional hardstand area.
   • Generally sets back the upper level of the dwelling more than the two storey dwellings on either side.
   • Uses a simple rendered finish in keeping with existing dwellings evident in the immediate area.
   • Respects the dominant building form and scale of buildings in the immediate area.

On amenity impacts to neighbouring properties

1. The relationship between the proposal and abutting respondent properties is demonstrated in Figure 2 below. The main amenity impacts asserted relate to the light courts of the respondent's properties and their view to the proposal from their properties.

Figure 2: Extract of plans - Respondents properties to the bottom of the image Source: Council submission.

1. Unsurprisingly on a lot of this size, the proposal does not satisfy the side and rear setbacks standards relevant at the time of the council decision. The first-floor walls are setback 1.91 metres from both side property boundaries which requires an upper level setback (based on the height of the building) of 3.76 metres.
2. The objective to standard A10 at then clause 54.04-1 (side and rear setbacks) seeks to ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.
3. In considering whether a proposal meets the objective of the standard, the decision guidelines require a consideration of:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings or small second dwellings.
   • Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.
   • Whether the wall abuts a side or rear lane.
4. The SPOS to No. 64 William Street and No. 72A Male Street is located to the front of each of these dwellings. Where small courtyards exist abutting the review site, the narrow width of these leads them to performing a service-related function, rather than being the principal area in which each of the residents can recreate. The respondent's submission acknowledge that these are service yards along the common boundary to the review site.
5. I accept that along the north-western interface are the service courtyards, skylights and non-habitable room windows at No. 64 William Street and No. 72A Male Street. They are located in close proximity and have a direct outlook to the proposed development. However, being able to see a development does not make it unreasonable. The respondents acknowledge that the site is narrow and that full compliance with the modified standard would be unattainable and unreasonable to expect at the review site.
6. While the respondents have offered suggestions about how this interface could be improved, via modified setbacks and further building articulation, my decision must determine whether an acceptable, and not necessarily ideal outcome is achieved.

1. Based on the plans now before me, I find that an acceptable amenity outcome is achieved. I do not agree that the setback of the proposed dwelling results in a continuous and poorly articulated wall that will be highly visible from the habitable windows and courtyard within 64 William Street. While I acknowledge that the setback of 1.91 metres does not comply with the varied standard, I am satisfied that there is a very limited view available of this elevation of the building from either habitable room windows or SPOS of the abutting dwellings. There are no habitable room windows on the abutting sites that face the review site, nor is there any abutting SPOS (that provides for the recreational needs of the residents) that would be affected.
2. Finally, with respect to the proposed walls on the boundary, the non-compliance raised by council relates to the average height and not the length of these proposed walls. The non-compliance is in the order of 0.08 metres.
3. I agree that boundary walls are an existing part of the character of the neighbourhood. The non-complaint part of the wall on boundary is confined to a section of ground floor western boundary wall housing a toilet and part of a store that has a length of around 3.5 metres. This wall abuts the light court/service yard on the abutting property. As this is not an area of SPOS or abutting any habitable room windows, the additional 0.08 metre wall height above the standard will have no discernible negative impact on the amenity of the adjoining site. For these reasons, I am satisfied that the proposal satisfies the Walls on Boundaries objective of then clause 55.04-2.

1. A large tree on the adjacent property currently has part of its tree canopy extending over the review site. Some if this canopy may require lopping to allow the proposal to proceed. There may also be impacts to the root zone of this tree arising from the construction of the proposal.
2. There is uncertainty about the extent of impact, if any to this tree. This is because there is no clarity about what, if any parts of the canopy will be required to be lopped to allow the construction of the second storey, or what additional impacts there may be to the root penetration that occurs into the site.
3. I do not accept the criticism that this information does not form part of the application. Firstly, while I agree that the tree is significant in the landscape, at the time the application was lodged with council, there were no planning controls that required a planning permit for its removal or lopping. The respondents acknowledge that they themselves had recently undertaken lopping of some of the canopy.

1. Since the assessment of the application by council there have been changes. Firstly, the relevant Australian Standard for tree protection on development sites was updated (now known as AS4970:2025) on 30 May 2025. This standard provides guidelines for retaining, assessing, and protecting trees during construction.
2. Secondly, Planning Scheme amendment VC289 was gazetted on 15 September 2025. The amendment introduces a planning permit requirement to remove, destroy or lop a canopy or boundary canopy tree in residential areas at clause 52.37.
3. This new provision may require a further planning permit be sought if any tree lopping is necessary to construct the proposed dwelling. As discussed in the hearing, this is not a matter before me and will require further consideration by the parties.
4. During discussion on conditions, the applicant agreed to a suitable condition that would require that the plans be amended to detail that the proposal does not encroach into the Notional Root Zone of the tree by more than 10%. I have imposed this condition as it is not clear if there will be any additional intrusion into the Notional Root Zone beyond what currently occurs on the site (noting that the proposed footprint largely matches the existing footprint). I have also retained a condition that requires a Tree Protection Plan to manage the tree during construction and demolition works.

1. Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal.

1. In conclusion and having regard to the requirements of clauses 65 and 71.02, I consider that the proposal is an acceptable outcome, and that when assessed against all relevant policies it does, on balance, achieves a net community benefit. The decision of the responsible authority is set aside, and a permit is granted.

Construct or extend one dwelling on a lot less than 300 square metres

1. Before the development start/s, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions. The plans must be generally in accordance with the considered plans prepared by G&S Appleton Design and Drafting (Revision C), but modified to show:

(a) that the proposal does not encroach into the Notional Root Zone of the tree located at No. 64 William Street by more than 10%.

1. 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 (unless the Bayside Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
3. All pipes (excluding downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
4. The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
5. Before the development starts, including any related demolition, a Tree Protection Plan ('TPP') must be submitted to, approved and endorsed by the Responsible Authority. When endorsed the TPP will form part of this permit. The TPP must be prepared to the satisfaction of the Responsible Authority and be prepared in accordance with the relevant requirements of AS4970-2025 Protection of Trees on Development Sites. The TPP must include but is not limited to:

(a) measures that must be incorporated into the design and construction of the development to ensure the protection of the tree at 64 William Street in accordance with AS4970-2025 - Protection of Trees on Development Sites but must ensure proposed works do not encroach into the tree protection zone ('TPZ') of the tree by more than 10 per cent and do not encroach into the structural root zone ('SRZ');

(b) a plan that is drawn to scale showing the location and dimensions of the TPZ and tree protection fencing for the tree;

(c) measures to manage the tree's TPZ and tree protection fencing during the construction of the development; and

(d) identify any works or ground disturbance that must be supervised by a suitably qualified arborist necessary to ensure the retention of the tree.

1. Before the development starts, tree protection fencing must be erected in accordance with the endorsed TPP to the satisfaction of the responsible authority.
2. At all times during the carrying out of any works associated with the development approved under this permit all requirements of the endorsed TPP must implemented to the satisfaction of the Responsible Authority.

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

(a) the development is not started within two years of the date of this permit

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

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

[1] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.