16-17 Beach Road, Beaumaris. The permit allows construction of a 3 level building for dwellings, over a basement for car parking and associated services in accordance with the endorsed plans and subject to the conditions set out in Appendix A.

The construction of a 3 level building for 8 dwellings, over a basement for car parking and associated services,

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

R1Z - a permit is required to construct two or more dwellings;

DDO1 - a permit is required as the building height exceeds 6 metres;

VPO3 - a permit is required to remove, destroy or lop any vegetation native to Australia;

Clause 52.29 a permit is required to create or alter an access to a Road Zone, Category 1.

The subject land is a regular parcel comprising 2 lots and an unused right of way. The land has a frontage of 39.58, a depth of 42.67 metres and an area of approximately 1,700 square metres.

A Restrictive Covenant is also registered on the title of each property. In Wilson v Bayside CC [2006] VCAT 1954 the Tribunal was required to interpret a Restrictive Covenant in almost the identical terms. The Tribunal held that the Covenant did not prevent the development and use of the land for multiple dwellings.

1. This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for construction of a 3 level building for 8 dwellings, over a basement for car parking and associated services, at 16-17 Beach Road, Beaumaris. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

The proposed development does not accord with the Neighbourhood Character objectives of Standard B1 of Clause 55 and the objectives of Clause 22.07 of the Bayside Planning Scheme;

The proposal does not comply with the setback requirements of Clause 55.04 Standard B17 (side setbacks) of the Bayside Planning Scheme;

The proposal will result in visual bulk when viewed from the adjoining properties;

The proposal does not comply with the siting, height, design and building setback objectives of the DDO1;

The proposal is considered an overdevelopment of the site.

1. At the commencement of the hearing Mr Peake applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Peake's request.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is a regular lot with a fall of approximately 3.3 metres from the north west corner to Beach Road. The land contains two, two storey brick dwelling and a number of mature trees and shrubs. There is an unused right of way traversing the east boundary of the land[1].
2. The subject land is part of an area known as the Deauville Estate, an interwar estate which has developed into an attractive residential area. Adjoining sites are developed with one and two storey dwellings with established gardens. The Beach Road has been generally developed with large two storey dwellings on large sites. The area is characterised by:
   • Large dwellings on large sites with establish gardens of mixed character;
   • Well-developed landscaped front setbacks with canopy trees;
   • Well defined spaces between dwellings;
   • A range of roof styles and building materials.

1. The proposal is for the removal of all vegetation and the construction of a 3 level building for 8 dwellings, over a basement for car parking and associated services. The upper level is an attic level. All levels are serviced by lifts and stairwells.
   • The architecture has a restrained contemporary character.
   • The basement will contain, 8 double garages and 4 visitor car spaces, storage for each apartment and rainwater tanks Vehicles will access and exit the basement via two new crossovers from Beach Road.
   • The ground floor level will contain three, three bedroom dwellings. Private open space consists of terraces and courtyards in the front setback.
   • The first floor level will contain two dwellings with three bedrooms plus a study/guest room and one, three bedroom dwelling.
   • The attic level will contain two dwellings with three bedrooms plus a study/guest room

1. At the commencement of the hearing Mr Peake advised the Tribunal that it had come to the realisation of the applicant, that a Cultural Heritage Management Plan under the provisions of the Aboriginal Heritage Act 2006 is required in relation to the proposed development. The consequences of this are that:
   • as a result of the operation of section 52(4) of the Aboriginal Heritage Act the appeal against failure to grant a permit is premature, and;
   • as a consequence of the operation of section 52(1) of the Aboriginal Heritage Act a decision maker does not have the power to grant a permit until a CHMP has been approved.
2. In respect of the first of these consequences Mr Peake requested that the Tribunal exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure of the applicant to wait until the expiry of the prescribed time. In respect of the second of the consequences set out above Mr Peake suggested that the Tribunal make an interim decision, withholding final orders until the CHMP is approved.
3. It was argued that these steps were appropriate given the very high level of confidence a CHMP will be approved without consequence to the development and because the continuation of the hearing, on the date set aside for that purpose suited the convenience of the Tribunal and the parties.
4. I advised the parties that I had some reservations about exercising my power to disregard a failure of an applicant to await the expiry of the prescribed time when that period has not yet expired, and will not expire until after the CHMP has been approved.
5. I proposed that the hearing continue and that I would reserve my decision about whether or not exercise my power to disregard a failure to comply with a requirement until I was advised that a CHMP in relation to the land had been approved. On the approval of a CHMP that did not require amendment of the proposal it would be my intention to disregard the failure and then decide the application for review. The parties at the hearing accepted this course of action.
6. On 23 December 2009, I was provided a copy of the approved CHMP. The approved plan only required standard contingency plans in accordance with Clause 13(1) Schedule 2 of the Aboriginal Heritage Regulations 2007. Accordingly I disregard the failure of the applicant to wait until the expiry of the prescribed time in accordance with the requirements of section 79 of the Planning and Environment Act 1987 and will decide the application in accordance with these reasons.

1. The Local Planning Policy Framework envisages that urban consolidation, medium and high density housing, will be focussed within residential opportunity areas and in and around activity centres. While the subject land is a large lot on an arterial road directly opposite the bay and is well served by a rich variety of community facilities, it is not within a residential opportunity area and it is not in or around an activity centre. Consequentially I agree with Mr Kane's observation that from a strategic perspective the land gets no free kicks as a consequence of its favourable location for higher density development. Therefore, there is a greater burden on the application to achieve a respectful outcome in respect of neighbourhood character, than there might be in one of these areas in which higher density development is encouraged. However, it is not the case that the land is rendered unsuitable for medium density development, because it is not within one of these preferred locations.

1. The council and the objectors argue that the scale and the intensity of the proposed development is substantially inconsistent with the established and preferred neighbourhood character. In particular:
   • The objectors argued that the proposed development is inconsistent with the special character of the Deauville Estate arising from the history of its development and the protective effect of the assumed meaning of the restrictive covenant applying to lots within the estate;
   • The objectors also argue that a multi dwelling development comprising eight dwellings on two lots, is highly inconsistent with the single dwelling character of the Deauville Estate, and
   • The council in particular argues that the scale of the proposed building is inconsistent with the preferred character for the H4 character area.
2. The objectors argue that the Deauville Estate should be viewed as a single entity with a special character driving from the history of its development. It is argued that this is a character equally evident on Beach Road, and the development of a different building form on Beach Road would be inappropriately disrespectful of the character of the estate as a whole.
3. It is true that the Beach Road properties within the Deauville Estate have not undergone the extensive redevelopment found elsewhere on Beach Road. Nevertheless there exists in this part of Beach Road the differences in scale and landscape character vis a vis the Beach Road properties and the hinterland properties that is found elsewhere along Beach Road. This is an observation reinforced by the fact that under clause 22.07 of the planning scheme the Beach Road properties fall within the character precinct H4, a precinct extending along Beach Road from Balcombe Road to the north west, and Charman Road to the east. The balance of the Deauville Estate is within a different character precinct, character precinct H7.
4. The argument that the proposal is inconsistent with the character of the immediate neighbourhood, in particular the Deauville Estate, because it is a multi dwelling development inconsistent with the single dwelling character of the area is not sustainable. Urban consolidation policy is an important, or pervasive, planning policy related to the metropolitan area. It is undoubtedly the case that the Deauville Estate has an attractive established character but the question of whether or not a proposal is sufficiently respectful of that character is not to be assessed on the basis that it is not a single dwelling proposal. The planning scheme encourages multi dwelling development which is respectful of neighbourhood character.
5. The preferred character statement for character precinct H4 is as follows:

The single and double storey dwellings sit within the topography and informal landscaped surrounds, including remnant and indigenous coastal trees. The variety of dwelling styles reflect the coastal setting through their design, details and finishes. An informal feel to the streetscapes is achieved by spaces around buildings, the lack of or unobtrusive style of front fencing and informal street treatments. Along Beach Road, development responds to its highly visible location on the edge of the coast by providing visually interesting forms and facades. Informal street treatments remain in those streets with no kerbing and remnant street tree planting is retained.

1. In many respects the proposal is respectful of the emerging character along Beach Road within the H4 character area, because it is a substantial building focussed on taking advantage of views to the bay. utilising contemporary architecture. The issue is the scale of the building in its streetscape context.
2. The application has sought to manage the scale of the proposed building built across a double lot by:
   • Substantial compliance with the Bayside variation of ResCode standards in respect of boundary setabcks setbacks; and
   • By articulation of the front façade to create a rhythm in the massing of the building which respects the rhythm evident in the underlying subdivision pattern.
3. The issue is how successful have these measures been to manage the scale of the building both within the streetscape, and as it relates to immediately adjoining properties. In respect of this question I make the following observations:
   • In relation to the streetscape the location of the basement entry ramp immediately adjoining the south west boundary of the land limits the possibility of establishing a landscape along this boundary more consistent with the character to be found within the immediate environs of the land
   • The division of the front façade of the building into two wings, is not sufficiently strongly emphasises to be truly responsive to the rhythm of buildings and spaces between buildings evident in the area. The council proposed an additional 3 metre setback between the projecting winds at attic floor level. This was an approach supported by Mr Holdsworth while giving evidence. I accept this conclusion, but do not believe it goes far enough.
   • In relation to the interface between the proposed building and adjoining neighbours, I generally accept that compliance with the varied Bayside setback requirement is sufficient, except in relation to the north corner of the proposed building. The unusual topography of the land has the effect that it is this north corner which is the most prominent, and which has the greatest impact on, the outlook from and the amenity of, the adjoining rear gardens of 18 Beach Road and 2 Deauville Street.
4. In my opinion a suitably respectful outcome is obtained if the plans are amended to show:
   • The frontage setbacks to all elements of the building between the projecting wings being generally increased by 3 metres;
   • The setbacks of all elements of the building, including the basement entry ramp, from the south west boundary of the land being increased by 700 millimetres, and;
   • The north west facing wall of the proposed building, within 14 metres of the north eastern boundary of the land being setback not less than 7 metres from the north west boundary of the land[2].

These changes will require a redesign of the basement layout possibly including the abandonment of individual garages and the resiting of stair and lift wells. Consequentially I anticipate there may also be small changes to the number of dwelling within the building.

1. None of the existing trees on site are to be retained, either because they are affected by the proposed building or are considered unsuitable from an arboricultural perspective. Nevertheless Mr Patrick has proposed a new landscape which will in time provide an appropriate landscape setting for the proposed building if established and maintained in accordance with the requirements of the permit. The plan utilises mixed species, including indigenous coastal trees were suitable. Side boundary setbacks are in most cases generous enabling effective planting spaces, the proposed permit conditions will overcome any deficiencies in this regard.

1. The proposed attic floor area is more than 50% of the floor area of the floor below, and is to that extent inconsistent with the indicators of what constitutes an attic under the provisions of DDO1.
2. The size of the attic floor space is largely a consequence of the large scale of the proposed building developed as it is across two lots. An attic developed over a larger floor plan such as this is inherently more efficient, the percentage of floor space lost because of the raking roof form reduces as the area of the floor plan increases.
3. The design does not employ obviously artificial measures[3] to increase the attic floors space. I do not think this non compliance is a significant shortcoming, in any event, the changes I have proposed to the building will reduce the floor area of the proposed attic to an acceptable degree.

1. Lots within the Deauville Estate are affected by a restrictive covenant the terms which are essentially identical to the covenant considered by the Supreme Court in Tonks v Tonks [2003] VSC 195. The court in that case found that the covenant was not a single dwelling covenant. The Tribunal in Wilson v Bayside CC [2006] VCAT 1954, constituted by Senior Member Komesaroff applied the conclusion of Tonks to the covenant which has effect within the Deauville Estate. I am satisfied on the basis of these decisions that the covenant does not prevent the development proposed in this application.

1. It is the case, that at the time of the hearing, the applicant did not have legal control over the disused laneway, notwithstanding the fact that the laneway had been incorporated within the boundaries of 17 Beach Road for a very long time. The application proceeds on the basis that the disused laneway forms part of the subject land, development of the land in accordance with the permit I propose to issue, would only be possible when the land is vested in the applicant. Permit conditions should prohibit the development of the land in accordance with the permit until the permit holder controls all of the land the subject of the permit application.

1. The development proposes on site car parking both for residents and visitors in excess of the ResCode requirements. While it is true that car parking along the frontage of the site is prohibited, I do not accept that it is reasonable to expect a development of this type to provide car parking in excess of the standard set down in ResCode. Given that the provision for car parking does exceed the standard cannot be a basis for refusal of the application.
2. Beach Road is undoubtedly a busy arterial road, and therefore, properties fronting onto Beach Road will from time to time experience delay in leaving the land and joining the arterial road. The application proposes separate entry and exit ramps. All vehicles leaving the site leave in a forward direction. The design affords future residents and their visitors the best possible solution for vehicular entry and exit to and from the land. I note that neither VicRoads nor council's traffic engineers oppose this particular design outcome[4].

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

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 TPO1-TPI3.of Premier Projects Pty Ltd dated September 2009 but modified to show:
   • (a) The frontage setbacks to all elements of the building between the projecting wings being generally increased by 3 metres;
   • (b) The setbacks of all elements of the building, including the basement entry ramp, from the south west boundary of the land being increased by 700 millimetres;
   • (c) The north west facing wall of the proposed building, within 14 metres of the north eastern boundary of the land being setback not less than 7 metres from the north west boundary of the land;
   • (d) The location and screening of air conditioning units;
   • (e) All wall heights above ground level being nominated on the plans;
   • (f) All paving (except driveways) to being permeable;
   • (g) A schedule (including two colour samples) of all external materials, colours and finishes;
   • (h) Screening, where required, to all first floor and attic windows and terraces being in accordance with the requirements of Clause 55.04-6 Standard B22 of the Bayside Planning Scheme;
   • (i) The removal and relocation of the power pole (at the, permit holder's expense) to enable access to the car park ;
   • (j) Alterations as required by VicRoads conditions.

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
2. Development hereby permitted must not commence until all of the land, the subject of this permit, is vested in or controlled by the permit holder to the satisfaction of the responsible authority.

1. All pipes, fixtures, fillings 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. .

1. No plant, equipment, services, or architectural features other than those shown on the endorsed plans are. permitted above the roof level of the building without the written consent of the responsible authority

1. All disused or redundant vehicle crossings must be removed and the area reinstated to kerb and channel to the satisfaction of the responsible authority.

1. Before the occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be constructed' and properly formed to such levels that 'they can. be used in accordance with the plans. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. Before the development starts, 'a landscape plan 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. The plan must be generally in accordance with the plan by John Patrick P/L (Drawing 08-317LP01A) The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
   • (a) a survey (including botanical names) of all existing vegetation to be retained and/or removed;
   • (b) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary;
   • (c) details of surface finishes of pathways and driveways;
   • (d) the addition of canopy trees along the rear setback at ground level;
   • (e) 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 plant;
   • (f) landscaping and planting within all open areas of the site.
   • (g) The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

1. Before the occupation of the development starts, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction. of the Responsible Authority.

1. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

1. Before the development (including demolition) starts, a tree protection fence must be erected around Tree 12 (Brush Cherry) located at

2 Deauville Street at a radius of 2.5 metres from the base of the trunk/s to define a 'Tree Protection Zone'. The fence must be constructed of chain mesh or similar to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until construction is completed.

The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the Responsible Authority.

The above condition may be modified to require protection of other types of vegetation.

1. No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone without the written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone. (To be used in conjunction with previous condition.)

1. Any pruning that is required to be done to the canopy of any tree to be retained, Tree 12 (Brush Cherry), located at 2 Deauville Street is to be done by a qualified arborist to Australian Standard Pruning of Amenity Trees AS4373-1 996. Any pruning of the root system of Tree 12 (Brush Cherry) is to be done by hand by a qualified Arborist

1. The proposed internal drainage must be connected to the existing legal point of discharge. The applicant may apply for legal point of discharge and local drain information, if available; otherwise on site verification should be undertaken by the applicant.
2. 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 directed otherwise.
3. Before the development begins, detailed plans (3 sets) indicating the method of . stormwater discharge to the nominated 'Legal Point of Discharge' (and Stormwater Detention . Systems where applicable), must be lodged with Council's Engineering Services department for approval.
4. The driveway / Parking areas I paved courtyards / paths and 'pervious' pavements must be graded/drained to prevent stormwater discharge neither onto front footpath nor into adjacent properties.

1. Before the occupation of the development starts, a waste management plan must be submitted to and approved by the Responsible Authority. Three copies of the plan must be submitted. The plan can include reliance on the council's domestic waste collection service. When approved, the plan will be endorsed and will then form part of the permit.

1. Before demolition and construction commences a Construction 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. Construction operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans submitted but must include:
   • (a) All traffic management plans for the site demolition, excavation, deliveries and other construction related activities that will affect vehicle and pedestrian traffic using Beach Road. .
   • (b) The location of all areas on-and/or off-site to be used for staff parking.
   • (c) A parking management plan for all associated construction vehicles.
   • (d) Pedestrian access along the Beach Road footpaths must be maintained at all times. Any damage to the footpaths must be repaired immediately.
   • (e) All site sheds, portable toilet, storage and materials, etc must be confined to the site,

1. The proposed western (entry) vehicular crossover mUst be at lease 3.5 metres wide, as measured at the property boundary, to the satisfaction of the Responsible Authority. The crossover must be constructed such that the western edge is flared at 60 degrees to the road reserve boundary to improve the entry condition.
2. Existing vehicle crossovers must be removed and the footpath, nature strip and kerbing reinstated to the satisfaction of the Responsible Authority.
3. All car parking spaces shall be designed to allow all vehicles to drive forwards when both entering and leaving the property to the satisfaction of the Responsible Authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the date of this permit.
   • (b) the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] The applicant will need to secure ownership of the right of way for the implementation of the development.

[2] An increase of 2 metres vis a vis the proposed setback of 5 metres

[3] Such as an inordinately steep roof pitch.

[4] Concern was expressed during the hearing in relation to the impact of the proposed landscaping on the sight distances available to motorist entering and leaving the property, I am satisfied by Mr Patrick's evidence that the landscape can be establish and maintained to avoid adverse effects.