A. The inclusion of the following as the first condition:

Before the development starts amended plans to the satisfaction of the responsible authority must be submitted 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 and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

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Self-supporting trellis, to a height of 1700m above the finished floor level of the deck, along the southern and northern boundaries to the satisfaction of the responsible authority.

B. The consequential renumbering of the conditions.

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

Mr Will Alstergren, of Counsel, instructed by Cole & Co, Solicitors.

1 This is a joint application by objectors under Section 82 of the Planning and Environment Act 1987 to review the decision of the City of Boroondara [the Council] to grant a permit to construct alterations and additions to an existing dwelling at 84 Tennyson Street, Kew. The application is made on the following grounds:

Height and bulk will adversely affect amenity.

Inconsistent with neighbourhood character.

Overlooking of neighbouring properties.

2 The subject land is located on the east side of Tennyson Street, commencing approximately 70m south of Earl Street. It has a frontage of 7.49m and a depth of 44.9m, yielding an area of 347m2. From the frontage to the rear boundary there is a slope of around 2m. .

3 The land is currently developed with a single storey, semi-detached weatherboard dwelling. Much of the vegetation in the rear yard has recently been removed. There remains one tree adjacent to the northern boundary. A crossing adjacent to the south west corner of the site provides access to a single, uncovered car space. New 1950mm high timber paling fences have recently been erected along the side and rear boundaries.

4 The subject site is within an established residential area, principally comprising single storey dwelling with hipped and gabled roofs. In the City of Boroondara Residential Urban Character Study the subject site is within Area No 13. It includes the following description:

The housing demonstrates construction from the Victorian period, through to the Edwardian period. Some house replacements have occurred and limited multi-dwelling development has occurred in the 1960s.

5 Mr Grant's property (86 Tennyson Street) abuts to the north. It is developed with a single storey weatherboard dwelling that shares a party wall with the dwelling on the subject site. Outbuildings at the rear of the dwellings also share a wall. Ms Frederiksen's property (82 Tennyson Street) abuts to the south. It is a wider site developed with a single storey timber dwelling. The dwelling has a number of habitable room windows facing the subject site. A second storey has been added to a garage on the southern side of the rear of the property.

6 To the east the subject site abuts the rear yards of two properties that have dwellings facing Derby Street. Across Tennyson Street there are single storey dwellings at Nos 81 and 83.

7 I adopt the following description of the relevant features of the proposal included in Ms Borg's written submission:

The proposal seeks to demolish the existing 'lean-to' at the rear of the site and construct a ground floor extension which will incorporate a new kitchen, meals and family room with a deck to the rear;

The development will include the construction of a first floor which is to include a study, bathroom and main bedroom. A balcony is also proposed off the main bedroom;

The first floor and ground floor extensions are proposed to be constructed to the northern boundary of the site. The first floor and ground floor additions are to be set back 2.98m and 1.2m, respectively from the southern boundary of the site;

Materials and finishes of the proposed additions are to match the existing dwelling;

The construction of a new 1.8m timber picket front fence and enclosed courtyard area in the west of the site; and

The construction of a carport within the west setback of the site 1.0m from Tennyson Street.

8 Ms Borg clarified that the front fence is to have bluestone piers.

9 Under the Boroondara Planning Scheme the land is within a Residential 1 Zone, the provisions for which are located at Clause 32.01. No overlay controls apply. Pursuant to Clause 32.01-3 and its schedule a permit is required to construct or extend one dwelling on a lot of between 300m2 and 500m2. In addition to considering the decision guidelines in Clause 65, the responsible authority and this Tribunal on review, must consider, as appropriate:

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The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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The objectives, standards and decision guidelines of Clause 54.

10 Ms Borg's written submission provides a comprehensive description of the relevant policy context. Of particular relevance are Clause 16.01-1 and the strategic land use issues identified in the Municipal Strategic Statement [MSS]. The Residential Urban Character Study is incorporated into the MSS.

11 At the hearing Ms Borg spoke to a written submission. Mr Grant presented a written submission on behalf of Ms Frederiksen and himself. Ms Frederiksen also made a brief oral submission and showed a video. Mr Alstergren spoke to a written submission. Those documents, together with various photographs, plans and other material tendered, have been retained on the Tribunal's file.

12 After the hearing I carried out an inspection of the subject site and Mr Grant's rear yard, externally inspected Ms Frederiksen's property and examined the general area.

13 The parties agreed that the proposal complies with all of the quantitative standards of Clause 54, including those relating to building height and setbacks, site coverage and sunlight reaching neighbouring private open spaces. Nevertheless, the appellants submitted that there is a failure to comply with some of the ResCode objectives.

14 Mr Grant also raised specific concerns relating to drainage and the capacity of the party wall. They are not planning issues.

15 I consider that there are two outstanding issues:

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Whether the proposal respects neighbourhood character, in terms of the streetscape and visual bulk perceived from the rear of neighbouring properties.

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Whether the proposal would result in any unreasonable amenity impacts on neighbouring properties, particularly Ms Frederiksen's property to the south.

16 According to Ms Borg, the nature of the proposed front fencing, including the front courtyard, was covered in objections. It was not, however, a focus of the appellants' submissions at the hearing.

17 Nevertheless, Ms Borg addressed that matter in some detail. She noted that according to the Character Study fences are a Quite important character element with the characteristics described as medium height fences of varied materials and detail. Ms Borg provided photographs showing the diversity of fencing in the street. That diversity was confirmed during my inspection. I accept Ms Borg's submission that it is common to have high fencing. One example is Ms Frederiksen's property. It has a high timber picket fence painted bright blue. I also accept Ms Borg's observation that there are numerous examples of stone or brick piers between timber pickets. I consider that the proposed fencing would not be out of character.

18 The appellants were critical of the visual impact from the street of the proposed upper level. They submitted that it would be out of character as there are only 4 or 5 double storey dwellings in the street. They suggested that it s_ticks up_ and would not sit well with its pair to the north.

19 I do not agree with those contentions. Although the street has mainly single storey dwellings the proposed form is already represented in the street. I noticed similar upper floor additions at Nos 10 and 48 Tennyson Street.

20 In any event, the fact that most development is single storey does not mean that the inclusion of a second storey addition is out of character. Two storey dwellings are part and parcel of most suburban areas. On that matter I note the comments of the Tribunal in Baillie v Moreland City Council and Others (Application for Review No 2000/14971, unreported) that double storey dwellings are not two headed monsters but rather that they are a normal housing type throughout the metropolitan area. Furthermore, I note the comments of the Tribunal in Rendevski v City of Greater Geelong and Hackel and Others (Application for Review No 1999/28245, 3 VPR 9):

Leaving aside the fact that this would not be the first two storey "intrusion" (either for a single home or multi unit), the Tribunal would be reluctant to reject what is a perfectly normal and acceptable form of development right throughout our urban areas, except if the neighbourhood characteristics were so pristine and important so as to make a two storey proposal unacceptable

21 In this case the neighbourhood characteristics are obviously not so pristine that two storey development is unacceptable. There are two storey dwellings in the area, the Planning Scheme policies do not discourage the development of such dwellings and two storey single dwellings may be developed on an as-of-right basis on larger lots. My determination cannot be based on the personal preferences or prejudices of Mr Grant or Ms Frederiksen. There needs to be an objective assessment of what constitutes reasonable development on this site. That is, the impact of the actual mass, bulk and location of the development needs to be considered

22 I agree with Ms Borg that it is not necessary for the built form to continue to match the attached pair, provided it is suitably recessive. I am satisfied that the proposed upper floor is appropriately recessed. It would commence more than 14m from the frontage and just over 10m behind the ground floor facade. As noted by Ms Borg, such a siting would be acceptable if a heritage overlay applied.

23 I also note that upon referral of the application the Council's Urban Designer commented that the proposed additions and carport are an appropriate response from a streetscape point of view.

24 I consider that it is important that the proposal provides for the retention of the existing dwelling and the essentials of its relationship with its pair to the north. The proposal would have a minimal impact on the streetscape compared to demolition and new building

25 The appellants correctly highlighted that the concept of neighbourhood character is not just about the streetscape. It also includes such elements as the siting and scale of buildings and the way in which 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. I intend to consider such matters under the next heading.

26 The appellants' principal concern is the extent and location of the second storey addition. They submitted that given the slope of the land the height of the addition will be exacerbated from their rear yards. They argued that there is little or no capacity for screening to soften the view and the exposure will impact on the use and enjoyment of their rear gardens. Mr Grant tendered a photograph depicting the bulk that would be visible from a point in his garden. The appellants suggested that a single storey addition would be less intrusive, even if it involved further construction into the rear of the site.

27 At the outset I must mention that I consider it to be disingenuous for Ms Frederiksen and Mr Grant to suggest that the large structure erected in the rear yard of Ms Frederiksen's property is irrelevant. Ms Frederiksen suggested that the structure has little impact when viewed from the property abutting to the south. That may be the case. I did not have the opportunity to directly assess that vantage point. However, my inspection revealed that the two storey structure, with a sheer wall on its northern side, is highly visible from the rear yard of the subject site and a major element in the outlook from Mr Grant's rear yard. Furthermore, the structures external staircase potentially allows overlooking of many rear yards.

28 Given the existing structure towards the rear of Ms Frederiksen's property it cannot be said that the proposal represents the first introduction of two storey form. More significantly, the proposed upper level would not extend as far to the east as the existing two storey structure. The proposal largely avoids siting upper floor development adjacent to the private open spaces of the neighbours. The upper floor (including the balcony) extends only marginally beyond the rear of the adjacent section of Ms Frederiksen's dwelling.

29 Given the slope of the land the structure at the rear of Ms Frederiksen's property (with a height of around 7m) is not as high as the 8.85m maximum height of the proposal. However, I accept Mr Alstergren's submission that the maximum height of the proposal is only marginally higher than the 8.04m high ridge line of Ms Frederiksen's dwelling. Indeed, many of the Californian bungalow style dwellings in the area have high roofs.

30 Mr Grant was critical of the proposed 11m length of north-facing wall at the upper level. He described it as blank. I do not consider that to be an unacceptable feature of the proposal. Only angled views of the wall would be possible from the street or Mr Grant's rear garden. The remaining tree on the subject site would interrupt some views from Mr Grant's rear yard.

31 I consider that the proposed upper floor is likely to be less visually dominating than Ms Frederiksen's two storey structure. As noted by Mr Alstergren, the proposed first floor is to be built into the existing roof line, rather than being a box on top. The side setbacks at both levels comply with Clause 54.04-1.

32 I appreciate that at ground level the addition would extend further to the east than the closest part of Ms Frederiksen's dwelling. The proposed deck would be a further projection into the back yard. However, only the deck would extend beyond the outbuilding on Mr Grant's property. As all of the properties have deep rear yards the proposal allows for the retention of a continuous corridor of open space.

33 With respect to the issue of daylight I note that the windows along the north side of Ms Frederiksen's dwelling would be setback at least 3.7m from development on the subject site. The juxtaposition provides for an effective light court, exceeding the requirement in Standard A12.

34 Ms Frederiksen strongly expressed her concern that the development would significantly affect the access to sunlight she currently enjoys. She was particularly concerned about the loss of Winter sun. She saw such a loss as leading to a need for artificial lighting and heating and affecting the whole feel of her dwelling.

35 The shadow diagrams show that the existing building on the subject site does not cast shadow on Ms Frederiksen's four north-facing windows at the relevant times for assessment (the Equinox). The diagrams show that at 9am the proposal would cast shadows over the front two windows and reach the rear of the dwelling. At noon shadows would be cast over three windows. At 3pm the easternmost window would be affected by shadows. However, Ms Borg highlighted that depending on the sill heights the actual shadows cast within the neighbouring dwelling may not be as extensive as first suggested. The diagrams do not show overshadowing in Winter. The overshadowing would obviously be more substantial.

36 I have sympathy with Ms Frederiksen. For many years she has enjoyed largely uninterrupted access to sunlight. The proposal would appreciably change that situation. However, I must be guided by the prevailing standards. ResCode does not call for an assessment of shadows cast in Winter. I am satisfied that the proposed setbacks comply with the relevant standard (A12) and its objective to allow adequate solar access to existing

north-facing habitable room windows.

37 Lastly, I am satisfied that the positioning or treatment of upper floor windows would prevent any unreasonable overlooking of neighbouring properties. I acknowledge concerns about the prospect of overlooking from the proposed deck, given the slope of the land and the existing fence height. The plans have annotations stating that there will be trellis or lattice screening on the side boundaries adjacent to the deck and extending to the east (around 1.5m on the south fence and around 3m on the north fence). With respect to the northern boundary the annotation refers to a height of 1700mm to avoid overlooking to side adjoining open space areas.

38 Ms Borg suggested that any remaining concerns could be addressed by clarifying that the screening must extend 1700mm above the finished floor level of the deck. She suggested that its length could be extended if that was deemed necessary. I accept the appellants' wish to ensure any extra screening is permanent. It would thus be appropriate for it to be

self-supporting.

39 In summary I have found that the proposed alterations and additions are acceptable in terms of the broader understanding of neighbourhood character and will not have any unreasonable off-site amenity impacts. They will allow a modest dwelling to be upgraded for modern living.

40 Accordingly I will disallow the Application for Review and make the appropriate order.