1. The proposal involves the construction of two double storey dwellings in a contemporary style. The dwellings are attached at ground floor but the first floors are well separated from one another. Each dwelling contains 3 bedrooms and Dwelling 2 also includes a ground floor study. Each is provided with a double car garage - Dwelling 1 in a side-by-side arrangement and Dwelling 2 in a tandem arrangement. Secluded open space at the rear exceeds 40 square metres, is north facing and leads directly off living areas.
2. The land is zoned Residential 1. The only overlay is a Vegetation Protection Overlay which is not relevant as no trees requiring a permit are being removed.
3. Clause 21.06 identifies the site as being within an Incremental Area where well designed single dwellings and medium density dwellings are encouraged. Development must make a positive contribution to the desired future neighbourhood character including opportunities for tree protection and planting.
4. Clause 22.02 is policy for neighbourhood character. The site and locality is within Garden Suburban Precinct 1 (GS1) where the desired future character is designing new dwellings to be in a style sympathetic with existing dwellings in the precinct, maintaining the overall scale of the area, positioning new dwellings in keeping with the setbacks of nearby dwellings, encouraging the planting of indigenous vegetation and discouraging the construction of front fences. Threats include removing remnant indigenous and tall native trees, buildings located forward of the predominant setback in the street, new extensions that are inappropriate in style and scale and construction of front fences. Six objectives and design responses deal in more detail with each of these matters.
5. Mr Ryan made detailed comments on each of these and, with the exception of his comment about current style and form of buildings, I largely agree with him. Rigid application of the 'criteria' or element concerning buildings being sympathetic to the predominant form of housing in this locality, namely the mainly brownish brick and pitched tile roof dwellings built in the 1960s to the 1980s, would potentially rule out any attempt to construct a more contemporary, flat roofed design such as shown in this proposal. I appreciate Mr Ryan's observation that there is some variation in building style in the area, including the flat roofed dwelling behind and some skillion roofed dwellings nearby, but the overall impression of built form is the one I have referred to above. However, different divisions of the Tribunal have commented many times about the application of neighbourhood character policy and how it should not be used to stymie new and different forms of residential development. This is not an area where the character is so valued that Heritage or Neighbourhood Character Overlays have been introduced to provide added protection including controls over the demolition of buildings. Without being unkind, this area largely comprises the type of relatively modest dwellings found across large areas of Melbourne, with design features typical of the period of construction and providing living conditions which often do not reflect current thinking including north facing living areas and high energy efficiency.
6. While I accept that the contemporary design, including the two garages across the frontage, is different to the majority of detached dwellings with pitched roofs, I do not agree with Council that the contemporary design of this proposal is so unacceptable that it should be refused. In making this observation I am also taking into account the particular site context, including the vacant site to the west, the flat roofed, one/two storey dwelling on the site behind, the slope of the land and the way is which the building sits down on the site when viewed from Yallambie Road, the absence of any dwellings on the opposite side of Yallambie Road, and the very modestly sized and separated first floor components of each dwelling.
7. Although Council identified some areas of non-compliance with ResCode standards concerning side and rear setbacks, walls on boundaries, internal views and design detail, I note that these are relatively insignificant and, if required, can be modified by conditions on the permit. In all other respects the proposal has a high level of compliance with Clause 55. I also note that Council is critical that the two garages across the front of the building occupy nearly half the width of the site and that it is not a design feature commonly found in the area.
8. The side and rear setbacks standard is not achieved for the longer front section of the western wall of Dwelling 2. The setback is 1 metre, but because of the slope of the land towards the rear, has a much less dominating appearance than the narrow setback would suggest. When combined with the screening effect of a new boundary fence I consider that the setback is acceptable and that it is consistent with the relevant Clause 55 objective.
9. I take a similar position about the non-compliance with the walls on boundaries standard. It affects a section of the eastern wall of Dwelling 1 where the average height exceeds 3 metres. It adjoins a concrete driveway on the adjoining property and while rising to a height of 3.5 metres at the lower end of the site, is acceptable and consistent with the relevant Clause 55 objective dealing with character and amenity impacts to existing dwellings.
10. I agree with Council about internal views and at the hearing discussed what I consider is a fairly simple change to first floor windows to overcome potential overlooking, improve front wall articulation and avoid the need to screen Bedroom 3 windows in both dwellings. It involves relocating the windows for each bedroom from the east to south elevations. I note that the Bedroom 2 windows in both dwellings are already screened to prevent overlooking into adjoining dwellings, and results in an acceptable outcome.
11. Council has been quite critical of the concept of providing two crossovers instead of the one preferred by Council's crossover policy. Indeed it was Mr Hooper's submission that the fundamental reason for Council finding fault with the application is its' opposition to the incorporation of two crossovers for medium density developments. I note that the development complies with the ResCode standard for crossovers (B14). I accept that Council has a newly adopted crossover policy and that it is going through the amendment process. However it has no status in the planning scheme and potentially has the effect of limiting some forms of development. As I have commented in previous Banyule cases, there is a trade-off between the impact of two crossovers and the impact of a single driveway leading towards the back of the site with often minimal landscaping along the side boundary. Both have advantages and disadvantages. This proposal provides for landscaping on the outer edges of the driveways and between the driveways which, depending on the species, will allow for the planting of taller shrubs and taller canopy trees. I do not agree with Council that there are any safety or operational issues arising from two crossovers and there is plenty of on-street parking in this location. I also note that ResCode would not require vehicles to exit in a forward direction for a development of two dwellings.
12. A related issue and one discussed at the hearing is the layout of the garage for Dwelling 2 which provides two spaces in a tandem arrangement. The garage has a length of 11.41 metres and width of 3.51 metres. Clause 52.06 which now applies to the application would require an internal length of 12.5 metres and Council seeks to have the garage lengthened from 11.41 metres. Mr Ryan tabled a written comment from Traffic Engineer Mr Terry Hardingham who supports the length at 1.41 metres. I note the email is dated 19 October 2011 which predates the amendments to Clause 52.06. In any event I consider Council is correct in seeking a lengthening of the garage to assist in its practical use and operation. An extension to the garage can be achieved by extending the northern wall of the kitchen by a similar distance. I consider that such a change will have no adverse impacts on the amount of open space for Dwelling 2 or on the adjoining walkway of Dwelling 1. I have included a condition to give effect to this change.
13. I lastly want to discuss landscaping. A landscape plan prepared by Habitat provides for major areas of planting at the front and rear of the site. Although Council was critical about the limited areas available for landscaping, I consider that there is enough space for decent sized vegetation at both the front and rear of the site. All landscaping is in-ground (i.e. no basement to plant over) and I consider that the building setback of over 6 metres at the front provides good scope for the planting of a variety of vegetation which will in time provide a garden character not dissimilar to what occurs on other sites in the area. There is minimal or non existent planting of vegetation along the side boundaries but that is hardly unusual or uncharacteristic in a suburban setting; dwellings are often very close to one side boundary with little or no landscaping while on the other side there is a driveway with minimal or no landscaping between the driveway and the side fence. I agree with Council that the space for landscaping at the rear is much more limited because of the outdoor deck/paving and the potential limitations caused by the 1.83 metre wide easement across the back of the site. Although the landscape plan indicates the planting of some taller trees, the plan may need to be revisited to better respond to the easement and location of the deck/paving. I also observe that some of the species, such as the Yellow Box, may not be appropriate given the eventual mature heights of some of the vegetation.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions, Mr Ryan's written comments and discussion about them at the hearing. The main changes concern conditions 1 and 2.

1. For the above reasons, I will set aside Council's decision and grant a permit subject to conditions.

1. At the end of the hearing Mr Hooper tabled a two page written application seeking an order for costs to be awarded against Council. I advised that I would read through his submission and would only seek Council's written response if I was proposing to award costs.
2. My response to Mr Hooper's application is as follows.
3. I hold strongly to the principle that parties must bear their own costs and that whether a party 'wins' or 'loses' a case has no bearing on whether costs should be awarded against the losing party. The awarding of costs is not about punishment. Instead it is about redressing any unnecessary expenditure by, in this case, the permit applicant caused by the conduct of the Council.
4. The fact that the case was 'lost' by Council does not mean that its whole case was untenable in fact or law. My decision to reserve my decision and to inspect the site was on the basis that I was not comfortable to give an oral decision after hearing from parties.
5. Although the decision to oppose the proposal because of it being a side-by-side design with two crossovers may appear unreasonable, it is only one aspect of Council's reasons for opposing the development. While I accept that Council may have been clear from the outset that the two crossovers was a 'deal breaker', the fact remains that Council's submission to me dealt with dominating built form, extent of hard paving at the front of the site (two crossovers and driveways), insufficient space for landscaping and non-compliance with a number of ResCode standards including side and rear setbacks, walls on boundaries, internal views and design detail The hearing afforded the two parties the opportunity to ventilate issues concerning all these issues, not just those related to two crossovers.
6. The fact that I reserved my decision and have taken 3 weeks to finalise my order indicates that the issues raised by Council were not untenable or without merit. My decision to support the application was by no means a sure thing. Although I may not have agreed with Council's position regarding two crossovers, I do not accept that Council's overall case, and reasons for opposing the development, was untenable and weak to the point of being unarguable.

Construction of two double storey attached dwellings in accordance with the endorsed plans.

1. Before the development permitted by this permit starts, 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 and three copies must be provided. The plans must be generally in accordance with the advertised plans but modified to show:
   • (a) Dwelling 1, internal west elevation plan;
   • (b) Dwelling 2, internal east elevation plan;
   • (c) The External Elevation plan must clearly show and specify the finished floor levels of the rear living areas (Dwelling 1 family room and Dwelling 2 family and meals area);
   • (d) Section diagram plans showing the internal split level areas in context with the natural ground level and finished floor levels;
   • (e) The Proposed Ground Floor and External Elevation plans to show any cut and fill/retaining walls on the site;
   • (f) Dwelling 2 north elevation plan to reflect the Ground Floor Plan specifically in regard to the width and location of the kitchen and laundry areas;
   • (g) The windows for bedrooms 3 in both dwellings relocated to the front elevation;
   • (h) Dwelling 2, tandem arrangement garage must be a minimum of 12.5 metres in length in accordance with Clause 52.06, Car Parking, Design Standard 2: Car parking spaces in the Banyule Planning Scheme. The northern kitchen wall of Dwelling 2 is to be relocated northwards by 1.09 metres as a consequence of the above change;
   • (i) A schedule of colours for the external façades of the development. Include colour swatches or similar;
   • (j) Landscaping as required by Condition 2 of this permit;
   • (k) Engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system.
2. The development permitted by this permit must not be commenced until a satisfactory detailed landscaping plan is submitted to and approved by the Responsible Authority. The advertised Landscape Plan must be amended to include:
   • (a) The labelling of the dwellings to reflect the Proposed Ground Floor plans;
   • (b) A redesign of landscaping in the vicinity of the easement to ensure that any vegetation planted will not adversely impact on any assets located within the easement;
   • (c) Provision of formed garden beds with edging around the landscape zone within the front setback to prevent cars parking within those areas;
   • (d) Planting adjacent to driveways and within landscaping zones to consist of drought tolerant species of varying heights and species;
   • (e) Location and details of paving, steps, retaining walls, water tanks, clotheslines, fence design details and other landscape works including cut and fill;
   • (f) A schedule of all proposed trees, shrubs and ground cover, which includes 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.
3. Unless otherwise agreed in writing by the Responsible Authority, the landscaping areas shown on the endorsed plans must be used for landscaping and no other purpose and any landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.

1. The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.
2. Unless otherwise agreed in writing by the Responsible Authority the proposed dwellings permitted by this permit must not be occupied until the development has been completed to the satisfaction of the Responsible Authority in accordance with the permit and endorsed plans (including, but not limited to built form and layout, parking, landscaping, drainage, street numbering, replacement of street trees).
3. The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

1. Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.
2. Areas set aside for the parking and movement of vehicles as shown on the endorsed plans must be made available for such use and must not be used for any other purpose.
3. Vehicular access or egress to the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveways and the vehicles that will use the crossings. The location, design and construction of the vehicle crossings must be approved by the Responsible Authority. Any existing unused crossings must be removed and replaced with concrete kerb, channel and naturestrip to the satisfaction of the Responsible Authority prior to occupation of the building. All vehicle crossing works are to be carried out with Council Supervision under a Memorandum of Consent for Works which must be obtained prior to commencement of works.

1. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • (a) The development is not commenced within two years of the date of this permit; or
   • (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, 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] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] Council issued a Notice of Refusal in error after the application against failure had already been lodged with the Tribunal.