Pursuant to the provisions of Section 85(1)(a) of the Planning and Environment Act 1987, it is directed that a permit must not be granted.

Mr Peter Newman, Planning Consultant of PLN Planning Pty Ltd

Mr Nick Tweedie Counsel instructed by Coadys Barristers and Solicitors. He called Mr Andrew Biacsi, Town Planner of Contour Consultants Aust Pty Ltd

1 This was an application under Section 79 of the Planning and Environment Act 1987 for review of the Mornington Peninsula Shire Council's failure to grant a permit within the prescribed time in permit application No P03/0948 for the subdivision of the land into two lots and construction of a second dwelling on land at 33 Canadian Bay Road, Mt Eliza.

2 The site, which is located on the eastern side of Canadian Bay Road, is currently occupied by a single dwelling located some 52 metres from the frontage with a garage some 38 metres from the frontage. These are largely screened from the street by well-established vegetation and a brush fence. The site has an area of 2,704 square metres and slopes from the road towards the rear. The site and surrounding land is zoned Residential 1. The site and adjoining land are affected by a Design and Development Overlay Schedule 4 (Environmental Design), a Vegetation Protection Overlay - Schedule 1 (Township Vegetation) and an Erosion Management Overlay - Schedule 3.

3 The proposal involves the subdivision of a second lot of 681 square metres - with the balance of the land having an area of 2,023 square metres and containing the existing dwelling. A new two-storey dwelling is to be constructed on the newly created lot.

4 Mr Newman outlined the subject land, immediate environs, request for further information, the proposal, history of application, referrals, notifications, and matters considered by the Responsible Authority in its assessment of the application including neighbourhood character, the proposal, planning controls and policy context. He also referred me to a previous decision of the Tribunal (2000/88348) concerning the construction of a second dwelling and vegetation removal. I refer to this in more detail later in my decision.

5 Mr Lawrence, Mr McIntyre, Mr Griffiths and Mr Purcell raised concerns about the development being out of character with the existing low scale development - particularly on the east side of Canadian Bay Road, the excessive bulk and mass of the development, excessive height breaching the vegetation canopy, inadequate boundary setbacks, overlooking and the building setting an undesirable precedent.

6 Mr Tweedie together with Mr Biacsi then made a submission and gave evidence in support of the proposal. They dealt with the review site and surrounds, proposal, relevant planning controls and policies, consideration of planning issues including policy, streetscape and urban character and off-site amenity impacts. They also discussed the earlier decision of the Tribunal.

7 The Tribunal's decision in 2000/88348 was to disallow the Application For Review and affirm the decision of the Responsible Authority to refuse to grant a permit. In considering the current proposal I have had regard to comments expressed by the Tribunal in its previous determination and note that it was an application assessed against the now redundant Good Design Guide. In rejecting the previous proposal, Member Baird concluded that:

the Tribunal supports the construction of a second dwelling on this site as that is entirely appropriate in terms of the purpose of the Residential 1 Zone and the policies of the Mornington Peninsula Planning Scheme. Where this proposal fails to be supported by the Tribunal is in relation to the lack of responsiveness of the proposed dwelling to the site and locality. The proposal is one that may be able to be scaled down and modified to produce a better design response.

8 I note however that although the previous dwelling was clearly more bulky than the new proposal, the actual size of the dwelling has hardly changed - 241 square metres now (plus garage of 42 square metres) compared to 248 square metres (plus garage of 39.6 square metres). The upper floor was 117 square metres and is now 99 square metres, which reflects the greater setbacks and somewhat smaller upper level footprint. This hardly seems to address the Tribunal's comment about scaling back and modifying the proposal to achieve a better design response.

9 Having regard to my consideration of State and local policy and submissions made at the Review Hearing, I consider that the proposal is generally consistent in terms of various state and local policies and that a second dwelling on the site will achieve broad State and local planning policy objectives. The site is reasonably well located in terms of parkland, shops and other facilities at Mt Eliza to the south. I agree with Member Baird that construction of a second dwelling on this site is entirely appropriate in terms of the purpose of the Residential 1 Zone and the policies of the Mornington Peninsula Planning Scheme. However I am less enthusiastic about how practical it is to actually place a second house on this site. If the existing lot could be subdivided almost equally into similar sized lots each of around 1000 square metres, then the second dwelling could be readily sited on the lot with generous boundary setbacks, large areas for landscaping and minimal adverse impacts on existing character or on neighbouring properties. However because of the siting of the existing house around the middle of the lot, it is not possible to do this. The result is a small second lot that is unable to provide satisfactory siting for a relatively large dwelling without adverse impacts on neighbourhood character and on neighbouring properties because of excessive visual bulk and scale. The issue of neighbourhood character is a major theme running through planning policy and in Clause 54, and I now turn to discuss that issue.

10 In relation to neighbourhood character, I am of the opinion that the proposal does not fully respond to the character of the neighbourhood. Establishing the character of the neighbourhood involves more than assessing existing building heights and setbacks and requires consideration of more intangible factors created by the juxtaposition of building heights, front and side setbacks, landscape character and styles, size and style of rear yards and the public realm including road and footpath design. I agree with residents and with Council that the east and west sides of Canadian Bay Road exhibit different characters and that this difference is largely a result of the two very different subdivision patterns; Smaller more suburban sized lots on the west side within the Ranelagh Estate and much larger lots on the east side which, although not rural residential, are more akin to the old two thirds of an acre from the former Residential D zone in the Melbourne Metropolitan Planning Scheme. If my memory serves me correctly the Residential D zone existed around Baden Powell Drive and may have also applied as far as to the east side of Canadian Bay Road.

11 Although the new design has attempted to respond to some of the specific criticisms made by the Tribunal at the previous hearing, the proposal is still fundamentally the same. The floor area is almost identical and although the upper floor has been reduced slightly and recessed from the ground floor, it has been made up almost entirely by a larger ground floor footprint. Setbacks have also been increased although not dramatically. This is hardly a scaling down as suggested by Ms Baird. In my view a scaling down would be a significant reduction in size - perhaps to as low as 150 square metres, a much reduced ground floor footprint and maybe single storey or with an attic style upper level. Because of issues such as neighbourhood character and visual bulk and scale, the new lot cannot sustain a large two storey dwelling as represented in both this and the previous design. If the owners cannot temper their expectations about the size of the dwelling they want to build then perhaps a second dwelling is not possible on this site. I do not agree with Mr Biacsi that the design has responded positively to the concerns expressed by the Tribunal. The new design is different but not nearly as significantly as is necessary to make the proposal acceptable. Although Mr Biacsi noted that the Council Planning Officer recommended approval, the officer also recommended greater setbacks, smaller first floor footprint and other changes. Mr Biacsi did not support making such changes by way of condition and I consider that they do not go far enough to improve the design.

12 In general terms I consider that the site layout is inadequate and does not respond to a relatively small site compared to others on the eastern side of Canadian Bay Road. The front street setback is around 11 to 12 metres. Ground floor side setbacks are just 2 metres - on the south by a wall 16.8 metres long and on the north by a wall 6 metres long. The upper floor is now recessed further than before (from the southern boundary by 4 metres except for the stairwell which sits flush with the ground floor and 7.2 metres from the northern boundary). I note that the DDO requires a side setback of 5 metres and a front setback of 15 metres, although these can be reduced by permit. In a more intensive urban setting such setbacks and building bulk would be the norm and the neighbourhood character would be formed by such building forms and siting. However the character in and around the review site is quite different, with very few instances of such intensive built form. Generally houses are set well back from boundaries with significant areas of landscaping screening the often single storey dwellings.

13 These minimal side setbacks are inevitably reflected in the landscaping proposal with quite narrow landscape buffers along the boundaries. These provide limited opportunities for effective screening landscaping. Because of the long driveway just within the property boundary to the south there is very little space for effective screening along the boundary of that property, so that when combined with the narrow strip available on the review site (together with the long ground and first floor walls), the visual impression when viewed from Canadian Bay Road is one of intensive bulk and form, despite that the upper floor is recessed two metres behind the ground floor. I do not find this an acceptable outcome and one that is at odds with the existing character.

14 In relation to vegetation clearance I note that only one smallish tree is to be removed. Although residents raised concerns I am unable to comment on whether or not other trees have been removed in the past. However I note the site for the dwelling is largely cleared of any significant vegetation and that little additional vegetation clearance has to take place.

15 Neighbouring residents were concerned about overlooking across the street from upper floor windows. The new dwelling is very well separated from existing residences in terms of the 9 metres standard adopted in Clause 54. Standards and objectives are not designed to prevent all overlooking between neighbours, but only unreasonable and potentially invasive overlooking at close range. I would therefore not require changes to the proposal or screening for reasons of overlooking.

16 In relation to residents concerns about the proposal setting a precedent if it were approved, each proposal must be judged separately on its merits. Invariably each site and each design is different and no two circumstances are the same. It is true that the cumulative approval of a certain type of development will change the character of an area to the point where something which may not allowed now because it is completely out of character may, in the longer term and with intervening changes, be considered respectful of that now changed character.

17 In making my assessment of the proposal I have weighed up the various competing factors concerning the suitability of the site for a second house on a separate lot, neighbourhood character and the specific requirements and policies within the Planning Scheme. I have found that the proposal to construct an additional dwelling as proposed is not acceptable in terms of the neighbourhood character. Although the character of the neighbourhood is changing, with some newer double storey housing appearing, the neighbourhood (particularly on the eastern side of Canadian Bay Road) consists largely of single large houses on large lots. From the street, the neighbourhood is characterised by houses (often well screened or invisible) nestled in and surrounded by vegetation. This is reinforced by the lack of footpaths and the mature vegetation hanging into the road reserve.

18 Approval of the current proposal would effectively create a visually bulky dwelling with the setback from northern and southern side boundaries being a narrow 2 metres. Although the upper level has been recessed compared to the previous proposal, the overall size of the dwelling has been largely unchanged from the proposal considered by Member Baird. I find this unacceptable in the neighbourhood context and consider that a much smaller dwelling perhaps of only one storey or with an 'attic style' upper level would allow for a second dwelling while still respecting the neighbourhood character.

19 Given that this is the second time that a proposal for this site has been considered by the Tribunal, I have considered the option of granting a conditional permit requiring revised plans for a much smaller dwelling as set out above. However I am of the opinion that such a modification will require the complete redesign of the development and should be considered as a fresh application.

20 While in principal I have no difficulty with the creation of a second lot of the size proposed, I consider that is should not be approved before plans are approved for a much smaller dwelling as there may still need to be further refinement of lot boundaries.

21 For the above reasons, the Application for Review is disallowed and I will order that no permit issue.