Hampton Apartments Pty Ltd v Bayside CC [2011] VCAT 1869

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

TP-01/D Neighbourhood & Site Description Plan; TP-02/D Design Response Plan; TP-03/D Basement Plan, Ramp Section; TP-04/D Ground Floor Plan; TP-05/D First Floor Plan; TP-06/D Attic Floor Plan; TP-07/D Roof Plan; TP-08/D Proposed Elevations; TP-09/D Proposed Elevations; TP-10/D Proposed Streetscape Elevation & Plan; TP-11/D 9am Shadow Diagram, 10am Shadow Diagram, 12pm Shadow Diagram; TP-12/D 3pm Shadow Diagram.

1. The decision of the Responsible Authority in relation to permit application no. 2010/578/1 is set aside.
2. A permit is granted in relation to land at 33 Crisp Street, Hampton. The permit will allow the construction of a three-storey building (plus basement) accommodating dwellings and associated car parking in accordance with the endorsed plans.
3. The permit is subject to the conditions contained in the Appendix to these reasons.

Mr G Peake of Counsel, by direct brief. Evidence was called from:

• Mr D Crowder, Town Planner of Ratio Consultants Pty Ltd.
• Ms C Dunstan, Traffic Engineer of Traffix Group Pty Ltd.
• Mr J Patrick, Landscape Architect of John Patrick Pty Ltd.

Construction of a three-storey building (plus basement) accommodating 28 dwellings and associated car parking.

Application under Section 77 of the Planning and Environment Act 1987.

Cl. 32.01-4 (construction of two or more dwellings on a lot in the R1Z).

Cl. 10, 11, 11.01, 11.04, 15, 15.01, 16, 16.01, 21, 22.06, 32.01, 55 and 65.

The review site is located on the north side of Crisp Street, approximately 350 metres east of Hampton Street. The land has a frontage of 30.48 metres, a depth of 53.69 metres and an overall site area of 1718 square metres. It is presently occupied by a single-storey detached dwelling and associated tennis court. To the north is a multi-dwelling development comprised of four, two-storey dwellings. To the west are two, single-storey dwellings, while to the east is a two-storey 'attic style' dwelling. On the opposite side of Crisp Street a single dwellings and multi-dwelling developments. The prevailing scale of development in Crisp Street is single-storey.

I have undertaken an inspection of the site and surrounds, including the adjoining properties at 29, 29B and 35 Crisp Street and 22 Service Street.

Innovation One Design Group v Bayside CC [2011] VCAT 1602

1. I acknowledge that this decision will come as a disappointment to the residents, in particular. They presented well-argued submissions opposing this form of development in their neighbourhood. It is apparent that they highly value their existing environment, which is generally characterised by a predominance of single-storey 'family-style' dwellings on relatively generous allotments. While accepting that change will occur, and emphasising that they are not opposed to development, they consider that this proposal represents too significant a departure from what presently exists in both Crisp Street and the surrounding streets.
2. The site, however, is within an area that has been strategically earmarked for change. The Council has included it within the boundaries of the Hampton Major Activity Centre. The Planning Scheme includes the land within a Residential Opportunity Area, being a preferred location for medium density housing. As a consequence, the level of change encouraged here is much greater than what is anticipated in residential areas that are more distant from the core of the Activity Centre. Had this site been in one of these other locations, I may have reached a different conclusion.
3. The Planning Scheme requires decision-makers to implement the State and Local Planning Policy Frameworks. Within these frameworks, there is unequivocal policy support for increased residential densities in and around activity centres[2]. This means that these areas will experience quite significant change in their built form composition. This development is one example of this change.
4. The site's proximity to the core of the Major Activity Centre, its location within the Activity Centre's boundaries and its inclusion within a Residential Opportunity Area all underpin the acceptability of the proposed redevelopment. There are important policy implications arising from applications such as this in respect of realising the vision embodied in the Planning Scheme for a settlement pattern that makes best use of existing services and infrastructure, while at the same time protecting the character of more distant residential neighbourhoods.
5. This is not to say that neighbourhood character considerations are not important in this case. They are. However, in balancing the competing policies of urban consolidation and neighbourhood character in this location, it appears to me that the Planning Scheme places a lesser emphasis on protecting existing character in this area, when compared with sites that are outside of the Residential Opportunity Areas. I believe that, with some modifications, the development achieves an increased density and sufficiently acknowledges and responds to the neighbourhood character.
6. My conclusion is consistent with that reached by the Council's planning officers, who recommended to the Council that a permit should be granted. While I have made changes beyond those suggested by the officers, I consider that, in making their recommendation, they undertook a sound analysis of the policies and provisions of the Bayside Planning Scheme.
7. The basis for my decision is explained in detail in the following sections of these reasons.

1. Hampton Apartments Pty Ltd applied to the Bayside City Council for a permit to construct a three-storey development (plus basement) accommodating dwellings and associated car parking.
2. Contrary to the recommendation of its planning officers, the Council determined to refuse a permit. Its grounds for doing so refer principally to matters of policy, neighbourhood character and impacts on the amenity of adjoining properties.
3. The key issues for determination in this matter are:
   • Is the proposal consistent with the relevant planning policy context?
   • Is the development an acceptable response to the neighbourhood character?
   • Will the development have an unacceptable impact on the amenity of the adjoining residential properties?
   • Is adequate car parking provided, and will the traffic impacts of the proposed development be acceptable?
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, I have decided to set aside the Council's decision.

1. The Key Issues and Strategic Vision for the municipality are detailed at Clause 21.02 of the Municipal Strategic Statement (MSS). In relation to Settlement and Housing, this Clause identifies the need to manage growth and its impacts; the need to direct population growth into appropriate locations; and the provision of housing to meet the changing needs of the community. Further issues are the need to protect the quality and character of the urban environment, and the need to provide certainty in relation to the preferred future character for residential areas.
2. The MSS includes a Strategic Framework Land Use Plan at Clause 21.02-5. That plan illustrates the key strategic directions for future land use planning and development. It identifies a number of 'Residential Opportunity Areas' that are centred around the municipality's Major Activity Centres, and selected Neighbourhood Centres. It is common ground among the parties that the review site is situated within one such area.
3. Clause 21.03 articulates the specific policies relating to Settlement and Housing. Key issues noted in this Clause include changing household preferences (for example, households are seeking low maintenance dwellings with smaller gardens) and the increasingly important role of Activity Centres in providing for future housing needs. An objective is to accommodate population increases and respond to changing demographic profiles. Related strategies are:

Ensure a diversity of housing is provided to meet the needs of the community over time.

Support the provision of housing to enable people to live in Bayside throughout their lives.

Direct new medium density housing to Major Activity Centres, residential opportunity areas, particularly those with good access to public transport routes as identified in the Strategic Land Use Framework Plan. [sic]

1. The latter of these strategies is also expressed as an objective (with the inclusion of reference to large Neighbourhood Activity Centres) in Clause 21.03-1, which addresses 'Activity Centres'.
2. Clause 21.06 (Built Environment and Heritage) specifies a number of key issues for the City's residential areas. Relevantly, these refer to providing certainty in relation to preferred character outcomes, and note that development outside of Residential Opportunity Areas should not significantly erode the prevailing scale and density of housing. In general terms, the objectives and strategies of this Clause seek to ensure that new development makes a positive contribution to residential areas.
3. It is evident from the MSS that the Council is seeking to direct medium density housing to strategic locations such as activity centres and the surrounding Residential Opportunity Areas.
4. I was provided with an extract of the adopted Hampton Street Structure Plan (Final Structure Plan 2006). According to the Structure Plan, the review site is within the Activity Centre boundaries, as are all the properties on the north side of Crisp Street between Hampton Street and Gillies Street.
5. Further confirmation of the review site's inclusion within the Activity Centre is found in the documentation associated with proposed Amendment C103 to the Planning Scheme. That Amendment has recently completed its exhibition period and proposes to introduce a new Schedule to the Design and Development Overlay[3]. The review site is included within the boundaries of the proposed Overlay.
6. It is clear that the site is located within a residential area that is earmarked as having a strategic role to play in the implementation of the Council's overall vision as it relates to settlement and housing. By implication, this means that the built form character of this neighbourhood will change as single dwellings are progressively replaced by medium density developments.
7. In respect of envisaged built form outcomes, it is noteworthy that proposed DDO12 nominates a maximum 11 metres (3 storey) height for development in this area. Given its stage in the process, this Amendment cannot be afforded the status of a seriously entertained planning proposal. It is, however, indicative of the Council's latest strategic thinking and is confirmation that Council continues to see the review site as forming part of the Activity Centre, with a height limit that reflects this strategic context.
8. The Planning Scheme also recognises that the municipality's character must be respected. It recognises that change needs to be managed to ensure that acceptable outcomes are achieved, while accommodating the increased densities sought by the settlement policies.
9. The Local Planning Policy Framework of the Planning Scheme includes a Neighbourhood Character Policy[4]. Objectives of this policy include:

To ensure that development is responsive to the preferred character of the area.

To retain and enhance the identified elements that contribute to the character of the area.

To recognise the need for change around activity centres while respecting the desired future character of the area.

1. Pursuant to Clause 22.06-3, 'Exercising Discretion', it is policy to take into account:

The preferred future character and the precinct guidelines including objectives, design responses and avoid statements for each precinct as described in this policy.

The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.

Whether the site is located within a residential opportunity area as shown on the Strategic Framework Plan of the Municipal Strategic Statement and the extent to which this may alter the relevance of the design responses to consideration of the proposal.

1. The character area statements are detailed at Clause 22.06-4. The review site is located within Precinct F1. The preferred future character for this precinct is as follows:

The dwellings, including a continued frequent presence of pre-WW2 dwellings, set within garden settings. Buildings are occasionally built to the side boundary, however the impression of the streetscape is of informality and openness due to the open front fencing, and well articulated building designs. Buildings and gardens are clearly visible from the street despite the presence of front fences, and these are appropriate to the building era. Buildings fronting the foreshore reflect their setting and provide a visually attractive built form interface with the reserve.

1. The corresponding Precinct Guidelines provide a series of Objectives and Design Responses, and include reference to matters/elements that are to be avoided.
2. The impact of the proposal on the character of this neighbourhood is a principal concern of both the Council and the residents. I will address this issue in a later section of these reasons. Before doing so, I will consider whether the proposed replacement of the existing single dwelling with a three-storey apartment style development and basement car park is consistent with the planning policy context that I have just outlined.

Is the proposal consistent with the relevant planning policy context?

1. There is general agreement among the parties that the review site is a suitable candidate for redevelopment in the form of medium density housing. Aside from its generous proportions and site area, which lend themselves to more intensive development, the site is strategically positioned to take advantage of existing infrastructure and the many services and facilities within the Hampton Major Activity Centre. These include convenient access to public transport - being the Hampton Railway Station and bus routes along Hampton Street. Both the Council and the residents acknowledged the site's suitability for medium density housing. Indeed, Ms Scacco, Ms Appelbe, Ms McKeown and Mr Conroy all stated that they are not opposed to development. They do not consider, however, that a three-storey apartment building is an acceptable outcome for this site and for the neighbourhood within which it is situated. The residents consider that a more 'conventional' townhouse-style development, similar to that which exists at 24-26 Service Street, adjoining the rear of the review site, would represent a far more respectful outcome from a neighbourhood character and amenity perspective, while still achieving the increased density sought by the Planning Scheme.
2. I will return to the matters of neighbourhood character and amenity shortly.
3. Having regard to the overall strategic directions and policies of the Planning Scheme, I am satisfied that the proposal will implement the State and Local Planning Policy Frameworks insofar as they relate to achieving a settlement pattern where increased residential densities are provided in and around activity centres. This outcome is consistent with the directions contained within the metropolitan strategy, Melbourne 2030, that are aimed at achieving a more compact city and making greater and more efficient use of existing infrastructure, services and facilities within the established urban area.
4. Mr Kane emphasised that Bayside is a municipality were residents choose to live throughout their various life stages. He referred to a 'theme' within the MSS that reinforces the fact that Bayside residents wish to reside there for their whole lives, as they value the character and amenity of the area. He went on to submit that this requires the provision of both larger family homes for families and smaller dwellings for those wishing to 'downsize'. Mr Kane stated that a balance needs to be struck, and that new dwellings should not be at the expense of neighbourhood character and amenity.
5. This development comprises two-bedroom dwellings with an open space area in the form of a courtyard space or balcony. The neighbourhood within which the review site is located is dominated by single-family homes with a scattering of medium density developments. These vary in form, ranging from new dwellings at the rear of the original home, through to entire redevelopments comprising several units on a site. The proposal will add to the diversity of housing in this location and assist in responding to the demand for smaller dwellings by persons who wish to remain in the area, but no longer desire a large property. It is consistent, therefore, with the Council's desire to provide a range of dwelling types within the municipality to allow persons to continue to live in the area through their lives.
6. I acknowledge the Council's and residents' submission that, despite the proposal's consistency with the strategic intent of increasing densities and providing housing diversity for the community, neighbourhood character and amenity are important considerations in the assessment and determination of this application. I agree. I will address these matters in the following sections of these reasons.

Is the development an acceptable response to the neighbourhood character?

1. Normally, a Neighbourhood Character Policy that forms part of a Planning Scheme's Local Planning Policy Framework would reasonably be expected to assist decision-makers in their task of determining whether a particular proposal will contribute to a preferred neighbourhood character. Regrettably, I have not found this to be the case with Clause 22.06. At least, not the extent that I would have hoped. Indeed, there was quite some confusion among the parties as to how the policy is to be interpreted and applied in the circumstances of this application. This confusion stems from the site's location within a Residential Opportunity Area, where it seems a different neighbourhood character outcome is sought compared to surrounding residential hinterland. The Planning Scheme, however, does not sufficiently articulate what this should be.
2. Clause 22.06-3 appears to recognise that a different character outcome can be expected in Residential Opportunity Areas, and suggests that some flexibility is to be exercised in the application of the policy within these areas. It states that, where a permit is required to develop in residential areas, it is policy to take into account whether a site is within a Residential Opportunity Area and the extent to which this may alter the relevance of the design responses to the consideration of a proposal. However, it does not go any further in providing guidance or an explanation of what this means in a practical sense. Certainly, the descriptions of the preferred neighbourhood character (and the associated objectives and design responses) do not include any recognition of Residential Opportunity Areas. All areas within the precinct are treated the same. Needless to say, I have not found this helpful.
3. When considering the extent of the built form change that can be reasonably contemplated of this neighbourhood, I believe it is instructive to look at the Council's vision for its residential areas as expressed at Clause 21.06-1.1. This includes the following objective:

To achieve quality design outcomes which improve the image and land use and development in Bayside and contribute to a sense of place appropriate to Bayside's character and maintains, strengthens and enhances local character.

Ensure that redevelopment and subdivision outside Residential Opportunity Areas does not significantly erode the prevailing scale and density of housing.

1. No equivalent strategy exists for development within Residential Opportunity Areas. It appears implicit in this strategy that a degree of erosion in the prevailing scale and density of housing can be expected (and allowed) in the Residential Opportunity Areas. If this were not the case, then the strategy would refer to all land, not just that outside of the Residential Opportunity Areas. My reading of the Scheme is that development may have a significant impact on the scale and density within Residential Opportunity Areas without necessarily being an unacceptable planning outcome.
2. The residents clearly articulated their opposition to an apartment style development such as this in their neighbourhood. In their submission, it represents an outcome that is not in keeping with the character of this area. It is true that the proposal will stand in contrast to the prevailing single-storey dwellings. This is a consequence of its size, form, siting, scale and height. However, when the Planning Scheme's policies are considered as a whole, there is an evident 'mandate' for change in this location. This means that the evolution of the neighbourhood will see the introduction of new and different building forms that will accommodate increased densities. It is reasonable to expect that this may include apartment blocks such as that proposed here. Of course, the acceptability or otherwise of any given proposal will depend on the particular facts and circumstances applicable in that case.
3. This is not to say that neighbourhood character is not a relevant consideration. The Scheme's policies make it clear that it is. What it does mean is that the character outcomes sought by Clause 22.06 must be tempered in these strategically important locations if the increased densities envisaged by the policy framework are to be achieved. This appears to be inferred in Clause 21.06-1.1.
4. As I have already stated, the Planning Scheme does not assist decision-makers in the task of determining what an acceptable neighbourhood character outcome in Residential Opportunity Areas should be. While acknowledging that these areas will experience a greater degree of change than the remainder of the municipality's residential areas, it does not go on to state how this change is expected to manifest from a character perspective. This lack of clarity does not only affect applicants and decision-makers, it also affects residents in these areas, who are left without a clear understanding of how their neighbourhood is expected to change. In this respect, I endorse the following comments of the Tribunal in the matter of Innovation One Design Group v Bayside CC [2011] VCAT 1602:

[57] I think council's local policy framework fails to provide adequate direction regarding the role of the housing opportunity areas around the activity centres and the scale, form and types of housing expected to be developed in the housing opportunity areas. Policy should guide expectations about how much change is to be anticipated and the types of change that are to be encouraged and supported. Reliance on neighbourhood character is I think insufficient in an area identified as a housing opportunity area. Greater policy direction would provide more certainty for residents and other parties when contemplating change.

1. It appears to me that Amendment C103 provided a means for Council to respond to this issue and provide clarity in respect of its neighbourhood character expectations for the Residential Opportunity Area centred on the Hampton Major Activity Centre. I was advised that the Amendment does not propose any changes to Clause 22.06. This is regrettable, as it will only serve to perpetuate the confusion that was so apparent at the hearing. In my view, the Council should give consideration to potentially amending Clause 22.06 to articulate the character outcomes sought for the Residential Opportunity Areas to provide greater certainty to all stakeholders in the planning process.
2. Within the context of an area that is strategically earmarked for change, some compromises will need to be made. These are likely to be in terms of the form and scale of development, its siting, extent of site coverage and areas available for landscaping.
3. The residents expressed significant concerns regarding the proposed three-storey height. They quite correctly submitted that there are no buildings of this height and scale in the vicinity of the review site or within the wider residential neighbourhood. I have been unable to conclude that, given the site's Activity Centre context, a three-storey height represents an unacceptable outcome. It is a height that is contemplated by the provisions of Clause 55, which applies to all residential zones. That being the case, I consider that there is greater justification for this height in a location which is identified as suitable for increased densities. It is also relevant that the design has attempted to reduce the visibility and prominence of the top floor by containing it within a sloping form, reflective of a hipped roof profile. This assists in creating a more recessive appearance for this part of the building.
4. Existing dwellings in the neighbourhood are almost exclusively detached forms. They are typically set back from all property boundaries, resulting in an evident rhythm within the streetscapes. Boundary construction is not a characteristic of this area. The proposal is respectful of this rhythm. With the exception of a portion of the basement that extends to the eastern boundary, it is set back from all boundaries. This is an acceptable response.
5. Its front setback is consistent with that of the two adjoining dwellings. It is proposed to provide high front fences to achieve seclusion to the front setback area, given this space will be used as the private open space of the two ground floor dwellings. I am not persuaded that this is a desirable outcome. A more appropriate response would see the extent of the secluded private open space reduced, with lower front fences to allow views of the front setback area from the street. I propose to address this by condition.
6. The front elevation of the development has been somewhat modulated through the inclusion of a central recess and avoid the presentation of a continuous wall plane. The balcony elements introduce further articulation to this elevation. Mr Peake suggested that this articulation could be enhanced by reducing the floor area of Dwelling APT-F1D to achieve a consistent balcony width of 2.3 metres; and by extending the balcony across the entire width of Dwelling APT-F11B. I agree that these changes are desirable and will remove the sheer two-storey walls in this elevation. This will represent an outcome that is more sympathetic to the scale of the two adjoining dwellings.
7. While not a true 'attic' form, the top floor has the appearance of being contained within a roof space, minimising the visibility of walls at this level. The outcome is a more recessive appearance, which reduces the visual impact of this level on both the streetscape and the surrounding properties. The proposed 'attic' roof form is reflective of the pitched rooves that characterise this locality, and enables the development to present a more 'residential' appearance than would otherwise be the case.
8. There was some discussion at the hearing regarding the proposed landscaping of the site. This included whether the existing liquidamber tree in the front setback should be retained. Mr Patrick advised that, with some modification to the basement layout, the tree can be retained, however, it will compromise the growth of adjacent trees. His suggested that the best outcome would be to remove this tree and establish a new planting regime. I am persuaded that this is the preferable approach in order to achieve a new generation of planting that establishes a uniform landscape theme for the land. This is particularly so given the tree is likely to hinder the optimal growth of proposed trees within the front setback, and affect the ability to establish a garden that will contribute to the character of the area.
9. Concerns were expressed regarding the ability to plant throughout the site, including some reservations regarding the species selection shown on the landscape plan. For the greater part, the basement is set back from the boundaries to allow for the 'in ground' planting of trees and other vegetation. I accept Mr Patrick's evidence that the site can be adequately landscaped, including the provision of canopy trees in selected locations. Given that it may be appropriate to deviate from the species shown on the landscape plan, I will include a condition that requires the landscape plan and the species selection to be to the Council's satisfaction.
10. In summary, subject to the changes I have detailed above, I have concluded that the development will represent an acceptable response to the character of the neighbourhood when considered within the strategic context set out in the Planning Scheme.

Will the development have an unacceptable impact on the amenity of the adjoining residential properties?

1. The principal amenity impacts arising from the proposed development are those of overlooking, overshadowing, visual bulk and noise.
2. It was acknowledged by the Council and the residents that screening can, and has, been utilised to limit overlooking from the upper level windows and balconies. The use of screening is consistent with the Objective and Standard of Clause 55.04-6 as a means of addressing overlooking from multi-dwelling developments. It was not suggested that the proposed screening will be ineffectual, rather, that the placement of windows and balconies in locations proximate to property boundaries will result in a perception of overlooking.
3. From my review of the plans it appears to me that the design has sought to generally position balconies in locations that are not directly adjacent to secluded private open space areas. They are typically sited adjacent to existing structures on the adjoining properties, or are otherwise positioned so that they face non-sensitive areas, such as the service yards of the dwellings to the north. Although some windows and balconies do face neighbouring sensitive spaces, these are shown as being screened to a height of 1.7 metres. This screening is in the form of both obscured glazing and perforated metal screens with a 25% transparency. Given the screening complies with Standard B22, it is difficult to find that it will not limit overlooking to within acceptable parameters, as set down by the Planning Scheme.
4. Due to the orientation of the allotment, and the proposed setbacks from the boundaries, the overshadowing impacts will be within the parameters of Standard B21 at Clause 55.04-5. On this basis, the development will not result in unreasonable overshadowing of the adjoining properties.
5. Due to the extent of site cut proposed in the north-east corner of the land, the development will appear largely as a two-storey form when viewed from the secluded private open space area of Mr Altmann's and Ms Whitbread's property at No. 35 Crisp Street. This is a consequence of the ground floor level being entirely below the height of the boundary fence. Measured from the natural ground line, the development will have wall heights of 4.7 metres (first floor level) and 5.2 metres (second floor level) with an overall height of 7.5 metres. At setbacks of 3.2 metres and 7.1 metres to the walls, the development is well within the building envelope nominated in Standard B17, as varied by the Schedule to the Residential 1 Zone. This Standard requires setbacks that are double those nominated by the 'normal' Standard at Clause 55.04-1. I am unable to conclude that, with these setbacks and the recessive hipped profile of the second floor level, that the development will present unreasonable visual bulk to this land.
6. The management of the development's visual impact on the amenity of the land to the west is more challenging, given the reduced extent of excavation proposed in this portion of the review site and the relatively small size of the adjoining secluded private open space areas. I will comment on each of these areas individually.
7. Those parts of the ground and first floor levels of the development directly opposite the courtyard of Mr Conroy's property at 29 Crisp Street, being the front dwelling of the adjoining development, are proposed to be set back 6.0 metres from the boundary. At second floor level this setback increases to 6.6 metres. These setbacks are significantly in excess of those specified in the varied Standard B17 and should minimise the impact of the building on this space. I am, however, concerned about the proximity of the first floor balcony of Dwelling APT-F9B to the courtyard. It is adjacent to this area and is set back 2.7 metres from the boundary. I consider that it should be set back a greater distance to reduce its impact, and I will include a condition to this effect.
8. The proposed setback of 3.3 metres for the ground and first floor level from the courtyard of Ms Brown's property (2/29 Crisp Street) similarly complies with the varied Standard. While I consider the ground level is acceptable at this setback, the first floor level (Dwelling APT-F7D) should have a greater setback to provide a staggered profile and additional visual relief from what would otherwise be a sheer wall plane. Mr Peake suggested that the first floor setback from the western boundary could be increased to respond to this issue. I agree that this is desirable and would reduce the development's visual impact on this neighbouring courtyard. I will include a condition to require this change.
9. Ms Scacco expressed concerns regarding the appearance of the development from her property, which is located to the north-west of the review site. Again, as the setbacks from the boundaries are compliant with, or in excess of the varied requirements of Standard B17, I am unable to conclude that the development will have an unreasonable visual impact. However, the increased setback of Dwelling APT-F7D will assist in providing an increased separation between the first floor level and this property. In addition, the proposed landscaping is established, it will assist in screening the appearance of the development as it presents to all surrounding properties.
10. I am not as concerned about the impact on the land at 24-26 Service Street, as the interface is to a service yard. The secluded open space areas of this development are located to the north of the two rear dwellings and will not be directly impacted by the proposed building. In any event, the proposed 4.51 metre setback from this boundary is sufficient to avoid any unreasonable visual bulk impacts to this adjoining property.
11. Overall, subject to changes referred to, I consider that the potential visual bulk impacts have been, or can be, acceptably managed. This is not to say that the development will not represent a significant change to the outlook from the adjoining sites. There is no question that it will. This, however, is not the relevant test. What needs to be determined is not whether the view from surrounding properties will change, but whether the proposed built form will impact unacceptably on the amenity of these sites. That assessment must be made within the strategic context of the locality as one where a very evident change to its built form composition is anticipated, and indeed is facilitated, by the Planning Scheme. My conclusion is that the proposed setbacks in conjunction with the articulation of the building and the proposed landscaping around the perimeter of the property will achieve an acceptable outcome.
12. I acknowledge and understand the concerns raised regarding the potential noise impacts arising from this development. These concerns were expressed within the context of mechanical noise from the air conditioning condenser units proposed to be placed on the roof, and noise associated with the use of the elevated balcony areas.
13. Turning firstly to the matter of mechanical noise, Mr Peake advised that all the condenser units can be relocated from the roof to the basement area. I consider that this will adequately address this issue and ensure that the operation of the air conditioners does not adversely affect the amenity of adjoining sites.
14. The second noise issue is one that, in my experience, is commonly raised in applications proposing multi-dwelling developments. It is inevitable that an increased number of occupants on the review site will result in a greater level of noise emanating from the land than if it remained as a single dwelling. It is also true that the greater the number of dwellings/occupants, the greater the potential for noise emissions. This outcome is part and parcel of achieving increased residential densities. Further, any noise that does emanate from the development is likely to be similar to that which would be expected within a residential environment. Obvious examples include people talking, the playing of music etc. The fact that these will be audible from neighbouring properties is not, of itself, a sufficient reason to refuse the application or require a modification to its siting and design. However, should the noise constitute a nuisance, then there are other laws to deal with this.
15. Residents are also concerned that the reverse situation will also apply. That is, that they will be overheard by occupants of the development and therefore experience a loss of privacy. This may eventuate but, again, is a potential outcome of the planning policy to increase densities, meaning that people will be living closer to each other than what has occurred in the past. This may mean that, on occasion, neighbours may overhear each other. It is not an impact that is specifically recognised by the Planning Scheme and is one that is difficult (if not impossible) to regulate. Again, it is not a reason to refuse or modify the proposal.

Is adequate car parking provided, and will the traffic impacts of the proposed development be acceptable?

1. The Council, and its traffic engineers, did not raise any objection to the proposed car parking provision or access arrangements. The residents, however, are concerned about the parking and traffic implications of the development.
2. The application of the car parking rates specified at Standard B16 at Clause 55.06-11 generates a requirement for 34 car spaces - equating to 28 resident spaces and 6 visitor spaces. While the development will provide 34 spaces, two of the spaces are in tandem, with the outcome being that there will be a shortfall of two visitor spaces.
3. Although the residents expressed doubts that one car space per dwelling will be sufficient to meet the occupant's requirements, this parking provision is compliant with Clause 55.06-11. According to the Planning Scheme, this is adequate. I therefore have no basis on which to require further resident parking.
4. On the basis of Ms Dunstan's evidence, and the absence of an objection from the Council's Traffic Engineers, I am satisfied that there is adequate capacity in the on-street (or kerbside) parking to accommodate the two visitor car spaces that cannot be provided in the basement. I was not provided with any information or material that would lead me to a different conclusion in this respect.
5. The evidence is also that the traffic generated by the development can be accommodated by the surrounding street network. Ms Dunstan estimated that the development will generate in the order of 140-224 vehicle trips per day. She stated that Crisp Street, due to its width, has an environmental capacity that is in the order of 7000 vehicles - more than double that of a normal residential street. In her opinion, the traffic generated by the development will have a negligible impact on the operation and safety of the surrounding street network. Ms Dunstan also noted that it is a grid network with roundabouts at key intersections and allows for good traffic distribution. Importantly, the width of Crisp Street means that two-way traffic flow can be accommodated even when vehicles are parked on both sides. On the basis of the evidence, I am persuaded that the development will not result in an unacceptable traffic impact.

1. I was advised that there is an underground stream (or spring) in this area. During my inspection of Ms Brown's property I observed a pump, that has been installed to address this issue, in operation. The residents are concerned about the effect of the development on the drainage in the area, in particular, its implications for the underground stream and the consequential impacts for the surrounding properties. Mr Kane advised that Council's drainage engineers have not raised any objection to the proposed development. Mr Peake submitted that drainage matters can be addressed by a condition that requires the drainage of the land to be to the Council's satisfaction. I will include a condition to this effect and would encourage the Council to have particular regard to this issue of the stream in its assessment of the required drainage works, including potential implications of the basement for the stream's flowpath, and whether it will affect adjoining land as a consequence of the development.

1. In conclusion, I consider that when assessed against the relevant policies and provisions of the Bayside Planning Scheme, subject to the changes detailed in the reasons, the proposal represents an acceptable planning outcome for the review site. It will represent a significant change for this street and neighbourhood, but it is a change that is contemplated, and facilitated, by the Planning Scheme given the site's location within the boundaries of the Hampton Major Activity Centre and a Residential Opportunity Area.
2. Accordingly, I have decided to set aside the Council's decision. I will grant a permit subject to the conditions detailed in the Appendix.

The construction of a three-storey building (plus basement) accommodating dwellings and associated car parking 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 generally in accordance with the plans identified as TP-01/D Neighbourhood & Site Description Plan; TP-02/D Design Response Plan; TP-03/D Basement Plan, Ramp Section; TP-04/D Ground Floor Plan; TP-05/D First Floor Plan; TP-06/D Attic Floor Plan; TP-07/D Roof Plan; TP-08/D Proposed Elevations; TP-09/D Proposed Elevations; TP-10/D Proposed Streetscape Elevation & Plan; prepared by Brayshaw Architects and dated July 2011, but modified to show to the satisfaction of the Responsible Authority:
   • (a) All column locations within the basement car park located in accordance with the relevant Australian Standard.
   • (b) A schedule which details the allocation of car parking spaces (refer to Condition No. 17 of this Permit).
   • (c) Provision of a stop-go signalling system to minimise conflict in access and egress to the basement car park.
   • (d) Sight lines where the proposed ramp intersects with the front footpath in accordance with Australian Standards.
   • (e) A landscape plan (refer to Condition No. 4 of this Permit).

(f) A comprehensive schedule of construction materials, external finishes and colours (including colour samples).

(g) The provision of screening to all habitable room windows and balconies that allow views of secluded private open space areas and/or habitable room windows within 9.0 metres. The screening must be in accordance with Clause 55.04-6 (Standard B22) of the Bayside Planning Scheme.

(h) The deck areas of Dwellings Apt-G1D and Apt-G11B reduced in size to achieve a minimum 7.0 metre setback from the frontage.

(i) A maximum height of 1.5 metres for the front fences. The fences must be of a permeable construction.

(j) The balcony of Dwelling Apt-F9B set back a minimum of 4.0 metres from the western boundary. The balcony must have a minimum width of 1.6 metres and a minimum area of 8 square metres. This must not result in a reduction of any setbacks.

(k) Dwelling APT-F7D set back a minimum of 4.5 metres from the western boundary. This must not result in a reduction of any setbacks.

(l) The balcony of Dwelling APT-F11B extended eastward to adjoin the kitchen and living area of this dwelling. This must not result in a reduction of any setbacks.

(m) The south wall of Bedroom 1 of Dwelling APT-F1D set back 10.3 metres from the front boundary to align with the south wall of the living room/study of this dwelling, with a corresponding increase in the width of that portion of the balcony that adjoins the bedroom. This must not result in a reduction of any setbacks.

(n) The relocation of the air conditioning units from the roof to the basement, and the deletion of the rooftop services enclosure and associated screening.

(p) Any stormwater treatment in accordance with Condition No. 15 of this Permit.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
3. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority, including planting of canopy tree species within the front, side and rear setbacks where 'built form breaks' have been provided. 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 landscaping plan must show:
   • (a) Building and trees (including botanical names) on neighbouring properties within three metres of the boundary;
   • (b) Details of surface finishes of pathways and driveways;
   • (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plan.
   • (d) Landscaping within all open areas of the site.
   • (e) Modifications generally in accordance with the plan identified as Amendment for Landscape Plan, DWG No. VCAT01, prepared by John Patrick and dated August 2011.

All species selected must be to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the landscape plan must be carried out and completed to the satisfaction of the Responsible Authority, and must not be altered without the prior consent of Responsible Authority
2. The landscaping shown on the landscape plan must be maintained and watered regularly until the replacement trees are established to the satisfaction of the Responsible Authority. Any dead, diseased or damaged replacement plants and/or trees are to be replaced by a tree or plant of a similar size and species to the satisfaction of the Responsible Authority.
3. Tree protection fencing must be established around the street trees being retained prior to commencement of any works and must be maintained until all works on site are complete. The fencing is to be constructed and secured so its position cannot be modified by site workers. The fencing is to encompass the entire nature strip adjacent the works site with the exception of the crossovers. The tree protection zone is to be established and maintained in accordance with Australian Standard 4970 Protection of trees on development sites to the satisfaction of the Responsible Authority.
4. The existing street tree/s must not be removed or damaged.
5. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
6. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of the Responsible Authority
7. The land must be drained to the satisfaction of the Responsible Authority.
8. Drainage associated with basement during construction (seepage and agricultural waters are to be filtered to rain water clarity) must be pumped to the nearest Council Drain/Pit and not be discharged to the kerb and channel unless with the written consent of the Responsible Authority.
9. Before the development starts, a Construction Management Plan must be submitted to, and approved in writing by, the Responsible Authority. The Construction Management Plan must address, but is not limited to:
   • (a) Hours and days of construction activity.
   • (b) Control of noise and airborne matter, deliveries, vehicle access, worker car parking, damage to public assets, and contact numbers for complaints;
   • (c) No water containing oil, foam, grease, scum or litter to be discharged to the stormwater drainage system from the site;
   • (d) All stored wastes are to be kept in designated areas or covered containers that prevent escape into the stormwater system;
   • (e) The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is to be minimised when vehicles are leaving the site.

(f) No mud, dirt, sand, soil, clay or stones are to be washed into, or allowed to enter, the stormwater drainage system;

(g) The site is to be developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.

The development must be undertaken in accordance with the approved Construction Management Plan to the satisfaction of the Responsible Authority.

1. Before the development is occupied, a Waste Management 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. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) Provision on the land for the storage and collection of garbage and other solid waste. This area must be graded and drained - and screened from public view to the satisfaction of the Responsible Authority.
   • (b) Waste collection service must be carried out on site and no garbage receptacles must be stored in the road reserve at any one time.
   • (c) All waste material must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created to the satisfaction of the Responsible Authority.

The Waste Management Plan must be implemented to the satisfaction of the Responsible Authority. The Waste Management Plan must not be modified unless with the written consent of the Responsible Authority.

1. Before the development starts, detailed plans to the satisfaction of the Responsible Authority must be submitted to, and be 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 show:
   • (a) The type of water sensitive urban design stormwater treatment measures to be used;
   • (b) The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas;
   • (c) Design details of the water sensitive urban design stormwater treatment measures, including cross sections;

These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved a minimum 100% STORM rating and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999.

The water sensitive urban design stormwater treatment system as shown on the endorsed plan must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.

1. Remote control of the basement car park gate/door must be available from all dwellings within the development to facilitate access to the visitor car parking spaces. An intercom system enabling visitors to identify themselves to residents of the development must be provided, with an intercom station/facility being provided in a location proximate to the entry to the car park to the satisfaction of the Responsible Authority.
2. A minimum of one car space must be allocated to each dwelling. The visitor car spaces must be provided within common property.
3. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two (2) years of the date of this permit
   • (b) the development is not completed within four (4) 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] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Schedule 12 - Built Form Standards for Hampton Major Activity Centre (DDO12)