a Northeast facing windows of Dwelling 5 having obscure glass to 1.7m above floor level.

b The family room of Dwelling 5 further set back from the boundary to allow the laundry door to face southeast.

d Dwelling 5 set back a minimum of 5m from the rear boundary.

e A two-way vehicular crossover at least 6.4m wide at the property boundary.

f The edges of the vehicular crossover angled at 600 to the road reserve boundary.

g The driveway within the subject land at least 6m wide for the first 6m to allow two-way traffic flow.

h Modifications to ensure that vehicles can enter and leave the subject land in a forward direction.

i Deletion of the visitor car space in the front setback.

j No parking within the driveway within 6m of the front boundary.

k A schedule of external materials, finishes and colours.

l The gap between Dwelling 2 and Dwelling 3 a minimum of 2m wide.

m The terrace to Dwelling 1 not resulting in any increase of level.

n The increase in the gap between Dwelling 2 and Dwelling 3 and the increased setback of the family room to Dwelling 4 achieved by reducing building footprints.

o The electric gates set back 6 metres from the front boundary.

q The front fence not higher than 2 metres and a picket style fence painted in muted tones unless otherwise agreed by the Responsible Authority.

2 The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 Construction plans for all parking areas and access lanes must be submitted to and approved by the Responsible Authority prior to the commencement of any buildings or works authorised or required by this permit, except with the further consent of the Responsible Authority.

4 Before the development starts, areas set aside within the subject land for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

d provided with concrete kerbs or other barriers to prevent direct vehicle access to an adjoining road other than by a vehicle crossing.

Parking areas and access lanes must be maintained to the satisfaction of the Responsible Authority and must be kept available for these purposes at all times.

5 The land to which this permit applies must be drained in accordance with detailed plans and specifications, showing location, size and fall of pipes and point of discharge, which shall be approved by the Responsible Authority prior to the commencement of any buildings or works.

6 Before the development starts, or before such later date as the Responsible Authority may approve in writing, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

a a survey of all existing vegetation and natural features;

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

d location of nine canopy trees to be removed as per Permit No. M2003/656.

7 No tree shall be felled, lopped, topped, ringbarked or otherwise destroyed or removed on any part of the site unless in accordance with an approved landscape plan or planning approval issued by the Responsible Authority, or in compliance with a lawful requirement in writing by a Public Authority acting under any Act.

8 Prior to the occupation of any dwelling, the landscaping and planting works shown on the endorsed plan must be established and thereafter shall be maintained to the satisfaction of the Responsible Authority.

9 The permit holder must pay the full costs of all road works, drainage works, pavement markings, public lighting alterations, service relocations, signage and other costs associated with the development.

10 The permit shall expire if the development hereby permitted is not:

a commenced within three (3) years of the date of issue of this permit; and

b completed within four (4) years of the date of issue of this permit.

or any extension of such periods the Responsible Authority may allow, if a request is made in writing before the permit expires or within three (3) months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

1 Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of the failure of the Maroondah City Council ("the Responsible Authority") to grant a permit within the prescribed time.

2 Mr Easton noted that a statement of grounds had not been received by the Responsible Authority.

3 Mr Easton said that a plan had been provided to the Responsible Authority during the application process changing the layout of the rear to pull the garage off the boundary. The permit application was not amended.

4 The proposal is for five double storey dwellings set one behind the other. It is proposed that there be a gap between Dwelling 2 and Dwelling 3, which would be 1.5m wide, and 3m wide where there is a visitor car space proposed. Dwellings 1, 2, 4 and 5 would have living areas at ground floor level and three bedrooms at the upper level. Dwelling 3 would have living areas and the main bedroom at ground floor level and 2 bedrooms and a gallery at the upper level. Each dwelling would have a double garage. It is proposed that there be a driveway adjacent to the southern boundary, and visitor car spaces in the front setback, between Dwelling 2 and Dwelling 3, and between Dwelling 5 and the south boundary.

5 Dwelling 1 would have a ground floor area of 87.91m2 plus a garage of 36.88m2, and first floor area of 76.75m2 which would be approximately 62% of the ground floor level including the garage. Dwelling 2 would have a ground floor area of 77.74m2 plus a garage of 36.88m2 and a first floor area of 70.80m, which would be approximately 62% of the ground floor area. Dwelling 3 would have a ground floor area of 104.90m2 plus a garage area of 40.87m2, and a first floor area of 66.76m2 which would be approximately 72% of the ground floor area. Dwelling 4 would have a ground floor area of 73.31m2 plus a garage of 39.00m2, and a first floor area of 69.97m2 which would be approximately 66% of the ground floor area. Dwelling 5 would have a ground floor area of 84.08m2 plus a garage of 38.28m2, and a first floor area of 78.52m2 or approximately 69% of the ground floor area.

6 The subject land is on the southeast side of the Maroondah Highway. It presently contains a single storey dwelling. The dimensions of the subject land are:

7 There is a single storey brick and weatherboard dwelling on the southeast side of the subject land which is set well back from Maroondah Highway. There is a development of four dwellings with tiled hip roofs on the northeast side of the subject land. The front dwelling is single storey and the other dwellings are double storey. These dwellings are set one behind the other. To the northeast of that development on a relatively wide lot is a development of eight single storey brick dwellings with tiled hipped roofs. The front two dwellings front Maroondah Highway and three dwellings are set one behind the other of each of those dwellings.

8 Mr Easton submitted that the subject land is 1 kilometre northeast of Ringwood Central and the Eastland Shopping Centre. The Karralyka Centre and the city offices are located to the south of the subject land and abut the southern corner of the property to the southwest.

9 The subject land is covered by the Maroondah Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct two or more dwellings on a lot, pursuant to Clause 32.01-4. Clause 55, two or more dwellings on a lot and residential buildings, applies to the proposal.

10 There is a schedule to the Residential 1 Zone which provides for increased side and rear setbacks under Standard B17 of Clause 55.

11 The subject land is also covered by Schedule 2, Maroondah Canopy Tree Protection Area, to Clause 42.03, Significant Landscape Overlay. A permit is required, pursuant to Clause 42.03-2, to construct or carry out works, but this does not apply if the Schedule states that a permit is not required, and Schedule 2 does so state. A permit is required pursuant to Clause 42.03-2 to remove, destroy or lop any vegetation specified in the schedule, and the schedule applies that a permit is required, with some exceptions. It was the submission of Mr Easton that Schedule 2 does not trigger a requirement for a permit, as a permit has already been granted for removal of trees.

12 Maroondah Highway is in a Road Zone Category 1, and Clause 52.20 provides that a permit is required to create or alter access to a road in a Road Zone Category 1. Clause 52.29 also provides that VicRoads is a referral authority under s 55 of the Act.

13 Mr Boyle made reference to the following planning policies:

* Clause 22.03 - Maroondah Residential Neighbourhood

Grounds on which application would have been refused

14 Mr Boyle said that had an application for review of the failure of the Responsible Authority to grant a permit not been lodged, the application would have been refused on the following grounds:

1. The proposed development is inconsistent with the objectives and standard of clause 55 of the Maroondah Planning Scheme and associated schedule to the Residential 1 zone of the Maroondah Planning Scheme in that primarily but not restricted to, it is not site responsive and not consistent with the neighbourhood character of the area.

2. The proposal fails to comply with the objectives of the State and Local Policy Framework to the Maroondah Planning Scheme in regard to a responsible design and siting criteria that complements the character of the area, and vegetation constraints on the site.

3. The proposal is considered to be an overdevelopment of the site.

4. The proposal fails to meet the objectives of the Significant Landscape Overlay and is considered an over intensive development on the site in regard to enhancement of canopy trees.

15 The permit application was received by the Responsible Authority on 31 October 2003. The application for review of the failure of the Responsible Authority to grant a permit was lodged with the Tribunal on 29 March 2004. The officer report was signed on 30 June 2004 and authorised on 1 July 2004, the day before the hearing.

16 Mr Boyle made an oral submission prior to his written submission. Mr Boyle submitted:

i the proposal was out of character with the locality, overly intensive, does not satisfy State and Local Planning Policy, and was not site responsive to its surrounds,

ii the proposal was a strategically intensive residential development which would generally be directed to the Ringwood District Centre or the Croydon Community Centre,

iii even if the proposal was compared with the four dwelling development on its northeast boundary, it doesn't accord with the scale of the area or the site on the southwest boundary,

iv many VCAT decisions recommend that the scale on adjacent sites shouldn't predetermine a development of the same size or larger,

v what was proposed was a large bulky, big form with a gun barrel driveway, which was unacceptable, and the gun barrel driveway would create traffic problems,

vi regardless of frontages and high fences this part of Maroondah Highway between Braeside Avenue and Mines Road, about 10 sites, was an important microenvironment, with large canopy trees and open gardens,

vii the proposal was therefore an overdevelopment compared with the open space on the property to the southwest.

17 Mr Boyle, in his written submission for the Responsible Authority, submitted with respect to the subject land and the proposal:

The surrounding neighbourhood character is a mix of properties, development with residences in varying architectural styles. The general streetscape could be described as mainly lawned, garden development, with numerous canopy trees. The nearby streetscape, that is, within 2-3 lots, has dwellings with attention given to a landscape retaining canopy trees. The site fronts Maroondah Highway with a "clearway" 7-9am and 70 kph limit.

The development also proposes to access the site with all cars on the lot moving onto Maroondah Highway via one driveway. It should be noted that there is virtually no provision for parking on Maroondah Highway.

18 Mr Boyle submitted that unless a visitor car space was provided for each dwelling, visitor cars would be forced onto the Maroondah Highway, which he submitted was "extremely dangerous".

19 Mr Boyle spoke to the grounds on which the application would have been refused, and submitted:

Council is therefore of the opinion that pursuant to clause 21.08, the development in its present form neither complements the environmental character of Maroondah on this site, or in terms of design and siting criteria, has provided a responsible housing stock for the area.

20 Mr Boyle made reference to the objectives of Schedule 2 to the Significant Landscape Overlay, and submitted:

With regard to tree regeneration on the site, it is evident that some opportunities exist in the areas of private open space to each dwelling for the provision of future canopy trees beyond 3 metres of any of the proposed dwellings. However, this in itself does not provide for a reasonable level of development that allows for larger areas of open space as a feature of the site in association with a medium level of built development on adjacent site.

21 Mr Aspinall made a written submission for VicRoads, the referral authority. Mr Aspinall made reference to the VicRoads letter dated 4 December 2003, which advised that VicRoads would have no objection to the grant of a permit subject to conditions set out in the letter. Mr Easton, for the Applicant for Review/Permit Applicant, later submitted that these conditions were acceptable.

22 Mr Aspinall also submitted that relocation of a service pole would be required. This need not be a permit condition.

23 Ms Slattery, the Respondent/Objector, spoke to a written submission. Ms Slattery is the owner of the rear dwelling of the four dwelling development to the northeast. Ms Slattery noted that the revised plan submitted by the Applicant for Review/Permit Applicant provided for the garage, laundry and family room to be moved off the common boundary with her dwelling. She noted that the laundry includes a window and a door, and the family room includes a window, both of which would overlook her private open space.

24 Ms Slattery submitted that the proposal was too intense and did not respect the character of the area, that there was insufficient room for canopy trees, it was too large and there was insufficient visitor parking. Ms Slattery also submitted that the proposal would impact on the enjoyment and amenity of her home, because of its negative visual impact, overlooking, radiant heat and reflection from the wall and roof, airflow and sunlight, and the impact on the use of her sundeck. Ms Slattery noted that a permit had been granted in August 2003 for removal of five trees on the subject land, two being at the rear and three at the front. She submitted that all trees and shrubs at the rear have been removed leaving just one lemon tree.

25 Mr Easton, in his written submission for the Applicant for Review/Permit Applicant, submitted:

It is understood that in many of the discussions with Council officers the stumbling block was often the number of units rather than the nature of the design. Under Clause 55 there are no longer any density requirements. The requirements are instead expressed in a series of more detailed provisions. These provisions in turn have been enhanced in the City of Maroondah as an alternate to altering the density. The amended proposal still complied with the enhanced standards.

The overall strategic objectives of Maroondah to support a range of densities is achieved in a number of ways. These include the adoption of specific minimum lot sizes of 864 sq metres in some areas (not the subject area), the use of Vegetation Protection Overlays, the use of Schedule 1 SLO areas in the more strategically important parts of the municipality and support for higher density areas in the main activity centres. However these higher density areas are to encourage multi storey and far more intense development. The subject proposal is still only at the less dense end of the medium density housing spectrum.

In addition as has been observed by other divisions of the Tribunal the new requirements for much large open space areas coupled with the increased boundary set aback will only be achieved on a consistent basis by the use of more space efficient double storey development such as the present proposal. In this case the ground level footprints of each building are still only around the 73 to 100 sq metre range.

Finally there is no strategic justification in the planning scheme to insulate this section of Maroondah Highway from the larger scale developments now establishing to both its east and west. This project despite being based on all double storey dwellings will not be fully visible from any single vantage point or adjoining property.

26 Mr Easton also submitted that apart from commercial and industrial areas and areas covered by Schedule 1, Ridgeline Protection Area, to Clause 42.03, Significant Landscape Overlay, the municipality was covered by Schedule 2, Maroondah Canopy Tree Protection Area, including the subject land.

27 I reserved my decision. The Responsible Authority to provide a draft permit conditions which were based on the advertised plans, which might be considered if I was to direct that a permit be granted. I took submissions on those draft conditions.

28 I consider that the proposal, as advertised, would be one that would not warrant the grant of a permit. I consider however that with some changes, including changes set out in the revised plans, a permit could be granted.

29 Ms Slattery was concerned about overlooking from Dwelling 5 to her dwelling. I have in mind the following changes to Dwelling 5:

* the northeast facing windows to the laundry and family room having obscure glass to 1.7m above floor level,

* the family room set back further from the boundary sufficient to allow the laundry door to face southeast.

30 These changes would reduce the mass of Dwelling 5 and also should overcome any concerns of Ms Slattery with respect to overlooking.

31 I consider that the VicRoads conditions are appropriate. This would mean the elimination of the visitor car space in the front setback. Mr Boyle said that the Responsible Authority would oppose a visitor car space in the front setback, and maintained that five visitor car spaces should be provided. Standard B16 requires that developments of five or more dwellings should provide one visitor car space for every five dwellings. Two car spaces would be provided with the elimination of the visitor car space in the front setback. There are no parking restrictions on Maroondah Highway apart from the am peak. If it was necessary one would imagine that those restrictions would be for a longer period of the day. I consider the two visitor car spaces would be adequate.

32 It was suggested that the gates should be set 6m in from the front boundary to allow for vehicles to be clear of the footpath prior to opening the gates, and I think that this would be appropriate.

33 It would seem necessary for modifications to at least some of the dwellings and car spaces to allow for vehicles to enter and leave in a forward direction. I suggested at the hearing that the garages for Dwelling 1 and Dwelling 2 be set back 6m from the northeast boundary rather than 6.8m. Mr Boyle opposed this, but I consider that it would be appropriate having regard to the requirement for vehicles to enter and leave in a forward direction. A 6 metre setback would be quite adequate. Such a condition will also require other modifications, including maybe cutting the corners of dwellings.

34 I consider that the gap between Dwelling 2 and Dwelling 3 should be increased from 1.5m to 2m to reduce the impression of bulk.

35 That change and the increased offset of the family room at Dwelling 5 from the boundary must be achieved by reducing the building envelopes, rather than reducing the private open space. The minimum setback of Dwelling 5 from the rear boundary is 5m although this is staggered. I consider it appropriate to include a condition providing for the minimum setback to be 5m and this may allow the staggering to be changed.

36 I note that the revised plans include a terrace for Dwelling 1. I think it appropriate to include a condition that this terrace should not result in a raising of levels.

37 I note that some of the draft conditions tendered by the Responsible Authority include the word "use". This is inappropriate as a use permit is not required.

Appropriate screening measures shall be carried out where necessary to prevent any direct overlooking of neighbouring habitable room windows and/or private open space areas, to the satisfaction of the Responsible Authority.

39 Mr Boyle said that the following words should be added:

but not beyond six months after the issue of the Certificate of Occupancy.

40 I consider that this condition is inappropriate. Requirements for screening should be assessed by the Responsible Authority at the time of consideration of the permit application if the Notice of Decision to Grant a Permit is to be issued, or in drafting conditions for consideration of the Tribunal in the case of an application for review of a decision to refuse to grant a permit or failure to decide. New owners could be occupying any or all of the dwellings six months after the issue of the Certificate of Occupancy and I consider that it would be most unfair for them to be required to erect screens. I consider that the condition is too vague and should not be included, and I am not persuaded that any further treatment for overlooking, apart from that which I have proposed for Dwelling 5, is necessary.

41 Condition 7 would require a landscape plan and it was suggested that it should also include location of the nine canopy trees to be removed under Permit No. M2003/656, and I agree.

42 Condition 10 would require approval of the Responsible Authority for external materials and colours, and I consider that this would be better included in a condition 1 requiring submission of amended plans to the satisfaction of the Responsible Authority.

43 Condition 11 would require front fences to be no higher than 1.2m and be a picket style fence painted in muted tones unless otherwise directed by the Responsible Authority. Mr Easton submitted that his client wanted a 2m fence. Standard B32 provides that the maximum height of a front fence abutting a street in a Road Zone Category 1 should be 2m. I consider, having regard to the nature of the Maroondah Highway, that a 2m fence would be appropriate.

44 Condition 12 provides that the permit expire within three years of the date of issue if the development is not commenced in that time and within two years of the date of commencement. It was suggested that the permit expire if works are not commenced within three years of the date of the permit, and not completed within four years of the date of the permit. I agree.

45 Most of the VicRoads suggested conditions will be included in Condition 1, except for the requirement that the permit holder pay all costs of service relocation, etc.

46 I consider, that with the changes discussed above, that the proposal would not be an overdevelopment and would not be disrespectful of the character of the neighbourhood. This is a large lot and can accommodate this number of dwellings. Areas of private open space are generous, being 5 and 6 metres wide, and provide good landscaping opportunities. There was criticism of the driveway but there is opportunity for some landscaping to ameliorate the gun barrel impression. I consider the proposal satisfies the relevant objectives and standards of Clause 55, including the side and rear setbacks set out in the schedule to the Residential 1 Zone.

47 I consider that the proposal satisfies relevant State and Local Planning Policy. Canopy vegetation can be provided and the design and siting, subject to conditions, is such that the development would not be too intense.

48 Mr Boyle tendered a copy of the decision of the Tribunal in Application for Review No. P24/2004 Archestril Design v Maroondah City Council, which was an application for review of the refusal of the Responsible Authority to grant a permit for a single storey dwelling and four double storey dwellings at 318 Maroondah Highway, Ringwood. Mr Martin affirmed the decision of the Responsible Authority and directed that a permit not be granted. I must first say that each case must be considered on its own merits. Mr Martin had a number of concerns, one of his concerns was the removal of canopy trees. In the subject application a permit has already been granted for removal of trees.

49 I consider that with appropriate landscaping the objectives of the Significant Landscape Overlay 2 would be satisfied.

50 For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.