1. The decision of the Responsible Authority is varied.
2. In permit application PA0919586 a permit is granted and directed to be issued for the land at 84 The Strand, Newport. The permit will allow:
   • Demolition of the existing dwelling and construction of two double storey dwellings with associated roof decks in accordance with the endorsed plans.

The permit is subject to the conditions set out in the Appendix.

Cl. 43.01 (demolition and buildings and works in HO27 and HO31)

The site is on the south west corner of The Strand and Swan Court. It has an area of 404m2, a frontage to The Strand of 16.4 metres and sideage to Swan Court of 23.44 metres. It contains a double storey dwelling with vehicle access points to both The Strand and Swan Court. It contains three larger trees - two near the corner of The Strand and Swan Court and one in the back corner along the boundary with No 83 The Strand. Double storey dwellings adjoin the site in the Strand and Swan Court and are commonplace in the locality. One of the few single storey dwellings is owned by Ms Gruneklee and located diagonally behind in Holland Court.

I visited the locality and Ms Gruneklee's property on the Friday after the hearing.

1. The key issue in this case is whether construction of the double storey dwellings will cause unreasonable impacts on Ms Gruneklee's property, in particular because of building bulk, loss of vegetation, overshadowing, loss of outlook towards the city and The Strand, overlooking/noise from the roof top decks. Ms Gruneklee was also concerned about property devaluation but I am not persuaded to accept her submission on this issue. If adjoining land is devalued because of detriment to its amenity, it is the detriment to the amenity that is considered in relation to town planning permit applications, not the resulting devaluation. As I now discuss, I have found amenity impacts associated with the proposal to be acceptable for the reasons given.
2. Many of the properties along The Strand are undergoing significant redevelopment and many of the original dwellings have been replaced by substantial two storey dwellings that are higher, closer to boundaries and with higher site coverage. The new built form appears to be intensive and very 'urban' in its character with little space for significant garden areas or landscaping including canopy trees. The review site is somewhat unusual in that it contains three large canopy trees and other shrubs which create something of a garden character which is at odds with the predominant character along The Strand.
3. The two new dwellings proposed for the site result in a far intensive built form than the existing dwelling or other older dwellings in the area. The dwellings abut part of the southern and western boundaries at ground level but are recessed at the first floor. Because of the irregular lot layout in the area, the common boundary between the review site and Ms Gruneklee's property extends for just less than 3 metres. The land slope is such that the ground floor is proposed to be recessed 690mm below natural ground level where it abuts that short section of common boundary. The result is that the boundary wall only extends to a height of approximately 1.9 metres above ground level - just 100mm more than a 1.8 metre high boundary fence. The first floor wall is setback 1.8 metres from the western and southern boundaries and has a maximum height above ground level of 5.77 metres.
4. The proposed development must meet the objectives of (Clause 55) and those objectives are deemed to be met if the related standard is met. This proposal has a very high level of compliance when measured against the standards set out in Clause 55 (ResCode) with the major area of non compliance being site coverage at 73% against the standard of 60%. I am satisfied that standards and objectives used to assess building bulk such as street setback, building height (as reduced in accordance with condition 1(g)), side and rear setbacks, and walls on boundaries are met. I am also satisfied that objectives/standards concerning neighbourhood character are met having regard to the redevelopment that has occurred along The Stand and on the adjoining site in Swan Court.
5. Ms Gruneklee's rear yard and verandah is a green oasis and quite secluded. It has tall shrubs and screening vegetation along the boundaries and a chicken shed on the boundary fence just beyond the abuttal with the review site. The large eucalyptus tree in the corner of the review site is a significant and dominating feature and I can understand why Ms Gruneklee is upset about its proposed removal. However the area is not affected by any vegetation controls under the Planning Scheme and there is no requirement to obtain a planning permit to remove this or any other vegetation. While the retention and replacement of trees is referred to in Standard B13 of ResCode, there are no mandatory requirements dealing with the retention of taller or more significant vegetation.
6. The proposed development will change the views from Ms Gruneklee's back yard and dwelling, but those changes are not unreasonable given that the development is quite modest in terms of the height and setback of walls as they will be seen from her property. Building to the boundary does have the positive benefit of providing a very benign interface that can maintain the existing tranquillity of her yard. The alternative of setting back the building would provide space for a service yard or outdoor courtyard with the potential for noise and activity likely to have a greater adverse impact on her amenity. Her poultry is also less likely to be a problem to future neighbours if there is a blank boundary wall rather than an open setback area. I do however accept that the loss of the tall tree and shrubbery in the rear corner of the review site will accentuate the change that is occurring, but I have to consider that in the context of the change that is encouraged in the Planning Scheme.
7. Overshadowing impacts are assessed using standard B21 of Clause 55 (ResCode), and it only applies to shadowing of open space. The test is applied at the equinox rather than in mid winter or mid summer. If sunlight to the secluded open space of an existing dwelling is reduced, at least 75% or 40 square metres (with a minimum dimension of 3 metres) should receive at least 5 hours of sunlight between 9am and 3pm. Shadow diagrams submitted with the amended plans suggest that additional shadowing of the secluded open space in Ms Gruneklee's rear yard will occur at 9 am. The yard has an area well in excess of 100 square metres and I am satisfied that the standard will be fully met and that the amount of additional overshadowing is acceptable given the size of the rear yard and the way the yard is designed and used.
8. Ms Gruneklee also raised a concern about the impact of the development on existing views of the city skyline and The Strand. Those views are at best glimpses between existing buildings and over and through existing vegetation. I note that Clause 22.10 of the Planning Scheme includes a specific reference to view sharing (To provide for the reasonable sharing of views to the bay or coast). At the hearing I made reference to Tashouindis[2] and Healy[3], where the Tribunal set out a series of 'principles' to guide an assessment about view sharing. In Healy, Senior Member Marsden restated those principles as follows:

(b) Views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) The availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) In addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) Added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

1. Although application of these principles provides a consistent way of dealing with view sharing in individual cases, ultimately it is necessary to undertake a site inspection to assess the particular impacts applying to any given proposal. I undertook that inspection some days after the hearing.
2. Having regard to my site inspection and the principles set out above I am not persuaded that the development should be refused or significantly modified. The existing views from the rear yard and verandah are virtually non existent and it is necessary to climb a ladder to glimpse a few tall buildings in central Melbourne. There are no views of the bay or coast (the only views referred to in policy) and the existing dwellings and vegetation between Ms Gruneklee's property and The Strand block any such views. It is my assessment that the removal of some of the vegetation on the review site will in fact open up some views towards the bay (between the buildings at Nos 83 and 84). One of the principles referred to above is whether those objecting have taken all appropriate steps to optimise development of their own properties. Ms Gruneklee lives in an older style, single storey dwelling where there has been no attempt to optimise development (such as adding a first floor) in order to obtain views towards the bay and coast.
3. I lastly deal with potential for adverse impacts from the two roof top decks. These are located at the front of the dwellings and located more than 16 metres from the boundary with Ms Gruneklee's property. I agree with Mr Waldon that because of the intervening roof, there will be virtually no opportunity for any downward overlooking to the rear of the site. I also expect that people using the roof decks are most likely to be looking towards the bay rather than inland to houses. However, given that the elevations depict the balustrades at 1 metre in height (with a 1.7 metre high screen between the two decks), there maybe an opportunity for oblique views to Ms Gruneklee's property. I have therefore decided that the decks should be fitted with 1.7 metre high screens along the western and parts of the southern sides and have included conditions to that effect - conditions 1 (h) and (i).
4. Having regard to the above I will vary Council's decision and direct that a permit issue subject to the conditions set out in the Appendix.

Demolition of the existing dwelling and construction of two double storey dwellings with associated roof decks in accordance with the endorsed plans.

1. Before the development starts, three copies of revised plans drawn to scale and dimensioned, 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 substantially in accordance with the plans submitted on 15 December 2009 but modified to show to the satisfaction of the Responsible Authority:
   • (a) A schedule of all external materials and finishes. The schedule must show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking surfacing). The driveways are required to incorporate a high quality finish and not plain concrete.
   • (b) The positioning of plant and equipment (including air conditioning units, heating units, hot water systems, etc) which is proposed to be located externally. Such plant and equipment must be positioned to prevent unreasonable noise and visual impact.
   • (c) A Sustainable Design Assessment, detailing sustainable design initiatives to be incorporated into the development must be submitted to, and approved in writing by the Responsible Authority. The Sustainable Design Assessment must outline proposed sustainable design initiatives within the development such as (but not limited to) energy efficiency, water conservation, storm water quality, waste management, material selection and greenhouse emissions. Upon approval the Sustainable Design Assessment must be incorporated into the development.
   • (d) The proposed landscape treatment of the site including the location of all existing and proposed species. An emphasis must be placed on maximising the use of native drought tolerant species.
   • (e) The provision of two street trees to be planted within the road reserve at the Swan Court frontage of the site. The planting of the street trees is to be carried out by the Responsible Authority at the cost of the owner.
   • (f) Nomination of a Tree Protection Zone in accordance with Condition 7 of this permit.
   • (g) The provision of an upper level sub-floor level of a maximum of 500mm and a ground level floor to ceiling height of a maximum of 2700mm to both dwellings in lieu of 3000mm and reducing the overall height of the development by a minimum of 400mm.
   • (h) The provision of 1.7 metre high screens along the western edges of both roof top decks, and along the southern side of the roof top deck of Dwelling 2 for a distance of 3 metres from the western edge.
   • (i) The 1.7 metre high wall between the two roof top decks is to be extended to the western edge of the roof top deck for Dwelling 1.
   • (j) Electricity company connections to the proposed dwellings provided underground.
   • (k) A maximum driveway width to each dwelling of 3.0 metre at the front boundary to reduce the extent of hard paving.
   • (l) The existing vehicle crossing at the north west corner of the site for Dwelling 1 removed and replaced with a new 3.0m wide vehicle crossing.
   • (m) The existing vehicle crossing at the south east corner of the site for Dwelling 2 removed and replaced with a new 3.0m wide vehicle crossing which aligns with the proposed driveway.
   • (n) The upper level south facing study windows of Dwelling 2 screened to comply with Clause 55.04-6 (overlooking objective) of the Hobsons Bay Planning Scheme. Use of adhesive film to obscure glass is not acceptable.
   • (o) The upper level south facing living room window (excluding the corner window) located adjacent to the highlight window screened to comply with Clause 55.04-6 (overlooking objective) of the Hobsons Bay Planning Scheme. Use of adhesive film to obscure glass is not acceptable.
   • (p) The provision of footings to the ground level deck of Dwelling 1 located a minimum of 2400mm away from the tree trunk of the Lemon scented gum at the north east corner of the site and cantilever the floor joists and deck over the footings. This is to ensure that the foundations for the ground level deck are located a satisfactory distance from the tree trunk of the Lemon scented gum.
   • (q) The finished floor level of the proposed dwellings must be a minimum 2.41m AHD to allow for any future sea level rise of not less than 0.8 metres by 2010.
   • (r) To reduce the impact of bulk from the proposed dividing rooftop privacy wall the height of the solid component of this wall must be reduced to a maximum of 1000mm above finished floor level and 700mm of opaque glass (not fire rated) provided above.
   • (s) Written notation on the plans confirming that the car parking space to Dwelling 1 is not enclosed on the northern side in any way to ensure that there is sufficient space for a visitor car parking space.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. The northern side of the car parking space to Dwelling 1 must not be enclosed in any way without the written consent of the Responsible Authority.
4. Prior to the endorsed plans being made available a bank guarantee or bond of $1000 must be lodged by the owner with the Responsible Authority to ensure the satisfactory establishment of landscaping works. Once landscaping has been completed in accordance with the endorsed landscaping plan, Council must be notified so that a site inspection can confirm the landscaping is compliant, and a 6 week establishment period will commence. The bank guarantee or bond will be returned after landscaping has been initially maintained for that period to the satisfaction of the Responsible Authority. After the establishment period, the landscaping must be maintained in accordance with the endorsed landscaping plan to the satisfaction of the Responsible Authority.
5. Prior to the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority.
6. Prior to the endorsed plans being made available, arrangements must be made to the satisfaction of the Responsible Authority for the provision of a street tree to be planted within the road reserve at the Swan Court frontage of the site. The planting of the street tree is to be carried out by the Responsible Authority at the cost of the owner.
7. Prior to commencement of works, the following provisions relating to the protection of the existing Lemon scented gum tree at the north east corner of the site must be undertaken to the satisfaction of the Responsible Authority:
   • (a) A suitable Tree Protection Zone of 2.5 metre radius with barrier fence must be established around the Lemon scented gum tree at the north east corner of the site.
   • (b) The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'.
   • (c) The area within the Tree Protection Zone must not be disturbed by any means including parking of vehicles or storage of plant & equipment, materials, soil or waste.
   • (d) The lowest limb on the south side of Tree 1 must be removed by a qualified Arborist pre-construction.
8. Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers must be placed adjacent to the front entrance of each dwelling, such numbers must be clearly legible from the access driveway.
9. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
10. Any alteration of soil level involving an increased or decreased level at the boundary must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall must be carried out by the owner. The retaining wall must remain in place whilst any increase or decrease level is present.
11. All face brickwork on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority.
12. Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:
    • (a) Constructed.
    • (b) Properly formed to such levels that they can be used in accordance with the plans.
    • (c) Surfaced with an all-weather seal coat.
    • (d) Drained and maintained.

Parking areas and access lanes must be kept available for these purposes at all times.

1. All basic services, including water, electricity, gas, sewerage and telephone must be installed underground and located to the satisfaction of the Responsible Authority.
2. Before any construction or demolition works commence on the site, a secure fence must be provided around the perimeter of the site to prevent access to the site from unauthorized persons. This fence must be maintained for the duration of the construction and demolition, be a minimum height of 1.5m (or such alternative height as is approved in writing by the Responsible Authority), and be constructed to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.
3. The owner must meet the costs of all alterations to and reinstatement of, the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The owner must obtain the prior specific written consent of the Council or other relevant Authority to such alterations and reinstatements and must comply with conditions required by the said Authority in relation to the execution of such works.
4. Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's City Maintenance and Cleansing Department prior to construction.
5. Prior to commencement of the development the owner must prepare stormwater drainage design plans to the satisfaction of the relevant Building Surveyor. An application to Council must be made for a Legal Point of Discharge for the disposal of stormwater from the subject land and to determine the relevant Council standards for the stormwater drainage system design. An on-site storm water detention system will be required if the volume of stormwater exceeds the capacity of the legal point of discharge.
6. If the nature strip is damaged during construction of the development approved or during the construction of any services, it must be reinstated and made good, including the planting of grass at the cost of the owner to the satisfaction of the Responsible Authority.
7. Boundary fences must be replaced to the satisfaction of the Responsible Authority at no less than 1.8 metres and no more than 2.0 metres in height and at the full cost of the owner unless otherwise agreed to in writing.
8. 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.

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.

[1] Ms Gruneklee submitted additional material by letter dated 10 December 2010. However I did not give leave for parties to make supplementary written submissions and have not considered the additional material.

[2] Tashouindis v Flinders SC [1987] 1AATR 116

[3] Healy v Surf Coast SC [2005] VCAT 990