Mr N J Tweedie of Counsel, represented the Applicant for Permit/Applicant for Review by direct brief. He called Mr Eddie Zagami, town planning consultant, to give expert evidence.

On the day of the hearing a written submission was received from Ms Lynette Ide and Mr Joseph Macey of 27 Fairview Crescent, Diamond Creek.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by E Hadziomerovic to review a decision by the Nillumbik Shire Council ("the Council") to refuse a permit in application No. 970552.

2. By letter dated 31 March 1999 Mr Zagami, the Applicant's planning consultant, advised the Tribunal of an intention to make an application at the hearing to substitute new plans. Copies of the plans were attached. Mr Zagami's letter indicated that a copy of his letter and plans had been served on "all parties".

3. By letter dated 15 April 1999 the Responsible Authority advised Mr Zagami of its intention to oppose that application on the grounds that the new plans represent "a substantial change" and should be the subject of a fresh application.

4. At the hearing Mr Tweedie conceded that the new plans "represent a change" but "do not" represent a "transformation" of the original permit proposal into something entirely different". Mr Tweedie submitted that they "are simply a design improvement", accommodating objections and the Responsible Authority's concerns.

5. Mr Tweedie highlighted the nature of the changes. In particular, he noted the changes to the appearance of the buildings and the relocation of the driveway (with an altered gradient) from the north to the south side of the site - abutting No. 23 Fairview Crescent.

6. Although all parties who had been notified of the original application had been sent a copy of Mr Zagami's letter, it became evident that copies of the new plans had only been sent to the Responsible Authority and the two objectors - Ms Bursten (6 Valley Court) and Ms Ide and Mr Macey (27 Fairview Crescent).

7. Mr Tweedie and Mr Hydon made submissions on whether Mr Zagami's actions constituted adequate notification. It was acknowledged by Mr Tweedie that Mr Zagami's letter to the owner/occupier of 23 Fairview Crescent did not include the new plans. Mr Tweedie submitted that nevertheless the owner/occupier had an opportunity to follow up the letter. Their choice not to do so was seen by Mr Tweedie as an indication that they were "not interested". On the other hand, Mr Hydon submitted that the new plans involve a further detrimental effect on 23 Fairview Crescent (by relocation of the driveway) and that it is not up to the Council, the Applicant, or the Tribunal to speculate about whether or not the owner/occupier "now has a concern". Mr Hydon submitted that all parties notified of the original application should be notified of the new plans.

8. Given the nature of the proposed changes and the principles established in Addicoat v Fox (No. 2) [1979] VicRp 37; [1979] VR 347, I determined that it would be appropriate to allow the substitution of plans provided. I was satisfied that all relevant parties were given sufficient notification.

9. I formed the view that Mr Zagami's letter (without copies of the new plans) was insufficient. Compared to the normal Notice of Permit the letter did not invite parties to look at plans or lodge an objection. In particular, I considered that the owner/occupier of 23 Fairview Crescent had not been given sufficient notice.

10. Accordingly, I allowed the substitution of the amended plans pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and gave the following directions:-

* the Responsible Authority to send an explanatory cover letter and reduced copy of the amended plans (supplied by the Applicant) to all of the parties originally given notice of the application - except Ms Bursten and Ms Ide and Mr Macey;

* the Responsible Authority to send an explanatory cover letter, a full size copy of amended plans and a copy of written submissions made at the hearing to the owner/occupier of 23 Fairview Crescent;

* the explanatory cover letter to invite parties to respond in writing to the Tribunal within 14 days of its receipt, by making a written submission or making application to have a further hearing (including a statement of reasons why this course should be adopted);

* the Responsible Authority to send a copy of the cover letters to the Tribunal.

I also undertook to notify the Applicant and the Responsible Authority of any supplementary submissions received. These parties would be given 14 days to lodge a response.

11. In accordance with these directions on 17 June 1999 the Tribunal received copies of the cover letters sent on 16 June 1999 to the parties originally notified (except the objectors) and Mr & Mrs Staub of 23 Fairview Crescent.

12. I understand that the delay in sending out this material arose due to extended discussions between the Responsible Authority and the Applicant about the content of the cover letter.

13. I am satisfied that the Tribunal's directions relating to further notification have been followed.

14. On 1 July 1999 (at the end of the 14 day period provided for) the Tribunal received a brief submission from M J Balestra of 7 Valley Court. A copy had been sent to the Applicant's representative and the Responsible Authority. No submission was received from the owner/occupier of 23 Fairview Crescent. No party requested a further hearing.

15. It is proposed to develop three units. The substituted plans show Unit 1 commencing 5m from the frontage and a minimum of 1.8m from the northern boundary. It would contain a living - meals - kitchen area and 3 bedrooms with a double garage below the bedrooms.

16. Unit 2 would be connected to the first unit by a single garage. Unit 2 would also be split level in design and contain 3 bedrooms. A large balcony would extend from the unit in the north-west corner of the site.

17. Unit 3, in the south-west corner of the site, would also have 3 bedrooms and be split level. Its vehicle accommodation would comprise a free standing carport. A visitor space is shown adjacent to the carport.

18. Vehicle access to all car spaces would be gained via a driveway which commences near the northern end of the frontage, crosses the steep upper section of the site and swings between the southern boundary and an existing tree.

19. Rooves are to be flat or curved and made of steel. Walls are to be finished in timber weatherboards.

20. The subject land is situated on the western side of Fairview Crescent. It is an irregular-shaped allotment with an area of 1195m2. The angled frontage is 16.8m and the lot widens to a rear boundary width of 36.6m.

21. The land has a steep slope down to an undeveloped reserve known as Sawpit Creek. The north-east corner of the site has a slope of up to 1:2.5. There are slopes of around 1:5 in the southern and northern sections of the site.

22. Adjoining land to the north and south has a similar slope. The adjacent lots are developed with detached houses at the top of the blocks.

23. Higher land on the opposite side of Fairview Crescent is developed with detached houses. Lower land on the opposite side of the Sawpit Creek reserve (facing Valley Court) has detached houses.

24. The site has been owned by the Applicant for Review's family for 30 years and has remained undeveloped. Vegetation includes two medium-sized Red Box trees towards the north-west. Overgrown Hawthorn bushes are at the lowest section of the site.

25. The subject land is zoned Residential C under the Nillumbik Planning Scheme.

26. Under the proposed new VPP format Nillumbik Planning Scheme the subject land would be within the Residential 1 Zone. A Wildfire Management Overlay might apply. The CFA is currently reviewing its fire management areas.

27. Section 84B of the Act sets out the matters which the Tribunal must or may take into account in determining an Application for Review. Section 84B(1) directs the Tribunal to take into account any relevant Planning Scheme.

28. Clause 16-2 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the State, Regional and municipal planning policies, and the purpose of the zone or control.

29. Clause 3-3A contains the State policy on residential development - medium density housing.

30. The Regional policy is found in Clause 14-2. This includes use of the latest revision of the Good Design Guide for Medium Density Housing ("the Good Design Guide") in assessment of applications like the present one.

31. Clause 21 aims to ensure that the use and development of land for medium density housing is in accordance with the Good Design Guide.

32. Clause 130 applies to the Residential C Zone. The purpose of the Zone includes:-

* To provide the opportunity for a variety of residential densities and dwelling types.

* To encourage higher residential densities in areas near rail transport stations and stops, near centres of commercial and community activity ...

* To ensure that if land is used for ... a multi-unit development, adequate provision is made for daylight, privacy and landscaping and that the amenity of occupants of adjoining land is not impaired.

33. "Flat" is a Permit required - Section 2 use under Clause 130-1.2.

34. The Council has a Municipal Strategic Statement ("MSS") which has been adopted for exhibition. With respect to urban areas the MSS seeks to encourage a diversity of housing styles. Methods to achieve this include:-

(a) encourage medium density housing in areas not restricted by overlays and located generally within 400m of a public transport scheduled stop, 400m of an open space link and 400m of a commercial centre;

(b) require medium density development to be site and locally responsive and to respect neighbourhood character.

35. After the hearing I made an inspection of the subject site and surrounds to better inform myself of the issues in this review. I consider that the essential issues are:-

* Whether the development would enhance existing neighbourhood character.

* Whether the provision for vehicle movements and car parking is satisfactory.

* Compliance with the Good Design Guide, particularly in relation to overlooking and visual bulk.

* The appropriateness of the site for multi-unit development.

36. Clause 21 of the Regional Section now aims to "ensure that new developments maintain or enhance existing neighbourhood character and amenity". The consideration is clearly not limited to the streetscape. It relates to a broader consideration of "neighbourhood character" which includes such elements as the siting of buildings, the space between them, the landscape character of the area and the way in which buildings are juxtaposed with open spaces.

37. The objectives and criteria of Element 3 of the Good Design Guide require that development:-

* makes a positive contribution to the character of the neighbourhood (E3.02);

* maintains the garden character of neighbourhoods (E3.03);

* incorporates trees with spreading crowns into developments (E3.04).

38. Diamond Creek has been going through a period of rapid expansion, changing from a small county town to an outer metropolitan suburb. The nature of recent development appears to reflect this new status. New subdivisions, particularly on the main approach to Diamond Creek, contain modern-style housing which is highly visible. In contrast to this form of development, which also occurs on the higher side of Fairview Crescent, lots which abut the reserve on the lower side of Fairview Crescent have developments of an older style. As Ms Bursten noted, there is a natural bush setting and a "country town" feel. The slope of the land has meant that most dwellings are perched high on the lots with a large expanse of open space adjacent to the treed reserve. A two unit development at 31 Fairview Crescent is an exception.

39. I consider that the proposed development would not respect the existing character of the neighbourhood for the following reasons.

40. The mass of the proposed buildings will be out of character with the neighbourhood. Almost the entire length of the northern side of the site will be covered with buildings (Units 1 and 2). Although Mr Tweedie described the layout as a "cascade" of "pods" which follow the fall of the land, the visual impact from the north will be of continuous development. The view from across the reserve (for instance, from Ms Bursten's property) will also be of substantial buildings extending across most of the site.

41. The dominant mass will be exacerbated due to the proposed height of the buildings. As noted by Mr Hydon, the location of Units 2 and 3 at the lowest point of the site means that the western façade of these units will rise to over 6 metres above natural ground level. As the site is now undeveloped, and adjoining land is undeveloped at such a low level close to the reserve, the facades of Units 2 and 3 will significantly alter the built character of the creek valley when viewed from the northern end of Valley Court.

42. The impact of the buildings will also be increased due to the minimal setbacks proposed. Unit 2 will have a minimum setback of 3m from the rear boundary. Unit 3 will have a minimum setback of 2.5m. There will be limited opportunities for landscaping to screen the bulk of the buildings.

43. Mr Tweedie submitted that building materials have been chosen to enhance the perceived "rural atmosphere" of the area. He cited the use of wood paneling, textured walls and steel deck roofing. I accept that the use of such materials would be complimentary to those used in nearby developments. I also acknowledge that the design as a whole is innovative, well-articulated and attractive. Nevertheless, I consider that the scale of development is unacceptable on this particular site.

44. A landscape plan was not submitted with the application or tendered at the hearing. It was Mr Zagami's evidence that "in consultation with the Council and with the fullness of time, the landscape treatment will assist to soften this development and provide a indigenous theme which will blend with and be part of the landscape backdrop". Mr Zagami noted that a "John Patrick landscape plan could be prepared".

45. The lack of any landscaping proposal makes it impossible to assess whether the objectives and criteria of the Good Design Guide can be met - in relation to Neighbourhood Character (Element 3) and Site Layout and Landscaping (Element 4). Even if I was to accept Mr Zagami's opinion about a landscape treatment being formulated and implemented, the issue remains of whether the site layout provides adequate areas for suitable landscaping.

46. The dwellings on the abutting properties are very close to the boundaries and there is little existing vegetation which would screen the proposed development. Given the general nature of the area - characterised by mature trees and a "bush feel" - it is vital that the development has the capacity to be landscaped with screening vegetation and trees with spreading crowns.

47. On this matter I accept the Responsible Authority's submission that the capacity is limited. A substantial area of the front of the site will be devoted to the driveway. An existing tree is to be maintained within the curve of the driveway, but a significant area in the centre of the site will be a paved driveway. The minimal side setbacks on the northern boundary will restrict the potential for large trees. In any case large trees in this area will conflict with solar access.

48. The proposed fencing at the front of the site (to create a "courtyard" for Unit 1) will limit the opportunities for significant planting in that area to make a contribution to the streetscape.

49. The development has the advantage of locating garages and car spaces away from the frontage and street visibility. This would be in keeping with the established character of the streetscape.

50. A total of five car spaces are provided, in compliance with the Good Design Guide. I consider that the ordinary demands for car parking associated with the development would be catered for on the site, although the availability of the visitor space, given its obscure location, might be overlooked.

51. Given the slope of the site a concrete driveway with a significant gradient is proposed to traverse the front of the site. I accept Mr Zagami's evidence that the driveway will not be dangerous to use (in contrast to the driveway on the original plans). Nevertheless, the location of the driveway and turning area will have detrimental effects. The steep first section of the driveway will cross the site to a point immediately adjacent to the house at No. 23 Fairview Crescent. There are kitchen and entry windows in this vicinity and currently no screening vegetation. The proposed design allows for little new screening vegetation. Noise and vehicle lights will be experienced at the neighbouring house. I have these concerns about the development despite the fact that the owners/occupiers of the property chose not to object to the application or respond to the further notification of the amended plans.

52. I do not believe Ms Bursten's fears about headlights affecting the enjoyment of her home would be realised. The buildings at the lower section of the site would interrupt light.

53. A further detrimental effect will be that the centre of the property will be dominated by the concrete driveway and turning area servicing the car spaces. Mr Hydon calculated that this would comprise an area of over 120m2. I accept Mr Hydon's submission that this will dominate the internal area of the development and prevent it from being suitably landscaped.

54. The proposed density of 1:398m2 easily complies with the benchmark density in E1.T1 of the Guide. Many other elements and techniques of the Guide are also satisfied (for example, the amount and location of private and communal open space; site facilities; dwelling entry and interior). There is good solar access to the open spaces and living areas. Landscaping or screening could ensure energy efficiency.

55. I have already discussed my concerns about visual bulk and the building envelope. I do not consider that the proposal complies with the first objective of Element 6; that is,

"To ensure that the setbacks of a building from its boundaries, the height and length of its walls, its site coverage and its visual bulk, are acceptable in the neighbourhood setting."

56. A further issue raised by the parties was visual privacy. On this matter the objectives of the Guide include to limit views into neighbouring secluded private open spaces and habitable rooms and protect residents from external noise.

57. Mr Hydon submitted that the design and location of windows across the development fails to satisfy E7.C1 of the Guide which relates to overlooking. In particular, he cited a bedroom window in Unit 1 and windows and balconies of Unit 2 - all along the northern façade - and a bedroom window in each of Unit 2 and Unit 3 and the balcony of Unit 3 - all facing west. Many of the views from these vantage points would be within the 9 metre radius suggested by the Good Design Guide as the most critical area of direct overlooking.

58. Mr Zagami conceded that living room windows and balconies facing north would need to be screened. It was his evidence, however, that the bedrooms would have limited occupancy and there would be little "need and opportunity to outlook towards a neighbour's property". The "intelligent use of landscaping, fencing and trellis" was mooted.

59. I cannot accept Mr Zagami's evidence on this matter Bedrooms are "habitable rooms" for the purpose of the overlooking provisions in the Guide. Without a landscaping plan the promise of relief by that means remains uncertain. While other techniques of the Guide to screen views could be adopted, the requirement for such extensive treatment (particularly for windows and balconies facing north) indicates that adequate consideration has not been given in the design to potential overlooking.

60. Ms Bursten was also concerned about visual privacy, particularly given the slope of the land. She feared that without the prospect of a barrier, noise from Units 2 and 3 would travel directly to her house. I do not believe noise from the residential units is likely to be excessive. Given the distance between Ms Bursten's dwelling and the units unreasonable levels of noise are unlikely to be experienced. It is likely that eventual planting on Ms Bursten's property, trees along the reserve and planting on the subject site would ultimately filter noise.

61. I accept Mr Tweedie's submission that the zoning of the site expressly contemplates that a multi-unit development is appropriate within the zone. The proposed zone under the new VPP format Scheme would also facilitate the proposed form of development.

62. The MSS, however, encourages medium density housing in areas "located generally within 400m of a transport scheduled stop, 400m of an open space link and 400m of a commercial centre". It was acknowledged by Mr Zagami that the site is at least 700 metres south of the local shops and 800m from a transport link. He suggested that the site is "within easy driving distance to a full range of shopping and cultural activities". I do not consider that the site is ideally located for medium-density development. It is not within an easy walking distance to commercial and other services. The distance would be exacerbated by the topography of the land.

63. It is not at issue whether the site should be developed residentially, but rather the specific form any development should take. I believe that the proposal fails to achieve the locational criteria in the MSS for medium-density development. It also fails to satisfy the other objective set out in the MSS; that is it is not "site and locality responsive" and does not "respect neighbourhood character".

64. For the above reasons I have concluded that this Application is disallowed. No permit shall be granted and I will so order.