Mrs M Heydon and Mrs E. McIlwain appeared in person

1. By letter of 26 February 2008, the applicant for review advised of her intention to substitute amended plans for the plans submitted with the original application. The request was accompanied by a set of amended plans which highlighted the following modifications (in summary):-
   • deletion of the 3m high pedestrian portico from the western side of Dwelling 1 (adjacent to the ROW);
   • deletion of the paved pedestrian pathway along the western boundary of the subject site adjacent to Dwellings 1, 2 & 3 and replacement with landscape planting;
   • reduction of the maximum floor to ceiling heights at 1st floor level of Dwellings 1, 2 & 3 from 3m down to 2.7m;
   • Dwelling 1 height reduced by 900mm, Dwelling 2 height reduced by 730mm and Dwelling 3 height reduced by 760mm;
   • roof pitch of Dwellings 1, 2 & 3 reduced from 35º angle down to 25º angle;
   • bathroom of Dwelling 3 reduced in width by 1m in order to increase the 1st floor southern boundary setback from 2.55m to 3.55m, to prevent overshadowing into north facing secluded POS yard of the adjoining single storey villa unit of Mrs. McIlwain to the south.
2. The request was forwarded to Council and to all parties to the application. At the hearing neither Mr Cover, Mrs Heydon nor Mrs McIlwain objected to the plans being modified. Accordingly, I ordered that the plans dated 12 February 2008 (VCAT Submission) be substituted for the original plans.

1. Application No. P281/2007 was lodged with Banyule City Council on 26 April 2007 for the purposes of erecting three double storey dwellings at No. 81 May Street, Macleod.
2. Each dwelling will have a basement store, living areas and a bedroom at ground floor level, and two bedrooms, bathroom, ensuite and study at first floor level. Ground floor living areas will have direct access to areas of private open space along the eastern boundary.
3. Car parking will be provided in the form of a single car garage and tandem car space for each dwelling with direct access from the laneway that runs along the western boundary. The dwellings will have a contemporary style with the use of render and brick cladding, metal and timber features, and colorbond pitched roof.
4. Open space areas are provided at ground level (courtyard) and at the upper level (terrace or balcony). Total open space areas for each unit vary between 55m2 and 64m2.

1. The subject site is on the south side of May Street between Aberdeen Road and Carwarp Street and has a frontage of 15.24m, a depth of 44.2m and an area of 673.6m2.
2. I have inspected the site and the surrounding area and I note the following description as contained in the Council Officer report:-

The site slopes by 1.5 metres from the front towards the rear. The site is occupied by a single storey weatherboard dwelling located towards the front of the lot, with driveway access from May Street along the western boundary and a steel garage close to the western boundary at the rear of the site. Existing vegetation is mainly deciduous trees except for a single indigenous Red Gum located between the garage and the western boundary at the rear of the site.

The surrounding area is characterised by residential development to the east and south comprising detached dwellings and multi unit developments on similar sized lots. Opposite to the north is the Macleod Secondary College and Netball Centre, and to the west is the Macleod Shopping Centre separated from this site by a constructed 4 metre wide laneway.

1. While I will return to discuss this in greater detail below, I think that the above description undervalues the proximity of the site to the Macleod railway station and Shopping Centre. I regard the context of the site, right on the doorstep of a small activity centre and fixed rail station as a crucial ingredient in the assessment of this application.

1. The subject site is contained within the Residential 1 zone under the Banyule Planning Scheme. A permit is required for the development of the land for more than one dwelling. Clause 55 (ResCode) is the principal assessment tool.

1. Upon receipt of the application Council sought further information. Once received, the application was advertised by notices to neighbours prompting three objections, being:-
   • Loss of privacy and overlooking
   • Overshadowing and loss of sunlight from two storey development
   • Loss of trees and habitat for birds
   • Will add to the existing traffic problems caused by the college, sporting complex, shops and commuters
   • Mass and density of development
   • Access via laneway a danger to people using laneway and increased noise
   • Danger from vehicles reversing into narrow laneway
   • Excavations will cause damage to adjoining properties
   • Loss of amenity and quiet enjoyment
2. Council also sought comment from its internal officers and no objections were received.
3. Council considered the application on 2 October 2007, and resolved to refuse the proposal on two grounds, being:-
   1. The proposed development is not consistent with the character of the neighbourhood, and does not meet the objectives of the Neighbourhood Character Strategy with regard to design approach for new construction, position on site, height and building form and vegetation cover.
      1. The proposed development does not meet the objectives of ResCode with regard to neighbourhood character, residential policy, street setbacks, building height, site coverage, landscaping, side and rear setbacks, north facing windows, accessibility, and design detail.
4. The permit applicant lodged an application for review on 27 November 2007, noting:-
   1. The proposal is consistent with the preferred neighbourhood character as defined in the Banyule Neighbourhood Character Strategy and Clause 22.07 Residential neighbourhood Character Policy of the Banyule Planning Scheme.
   2. The proposal fully complies with the Objectives and Standards of Clause 55 of the Banyule Planning Scheme, particularly in respect of neighbourhood character, street setbacks, building height, site coverage, landscaping, side & rear setbacks, north facing windows, accessibility and design detail.
   3. The proposal does not represent an over development of the site and will not cause a detrimental impact on the amenity of adjoining properties or the area, as evidenced by full compliance with the relevant Clause 55 Standards.
   4. The proposal represents an innovative, well designed and highly respectful built planning outcome that has full regard to site opportunities/constraints and has effectively and specifically responded to the adjacent site context.
   5. The proposal is consistent with the built form and housing diversity outcomes sought under the SPPF & LPPF of the Banyule Planning Scheme.

1. The issues in dispute in the application are reasonably confined and can be summarised as:-
   • Compliance with the strategic direction of the planning scheme;
   • Neighbourhood character;
   • Off-site amenity impacts.

1. There are a number of levels to the question of compliance with the direction of the planning scheme. As noted, the site is within a Residential 1 zone and is also affected by Design and Development Overlay (Schedule 9). To some extent, Council "skated over" the relevance of this control noting that planning permission was not triggered by the overlay. However, the objectives and permit requirements of the overlay go to the heart of the principal complaint that Council has with this proposal, being height and its relationship with character.
2. The design objective for DDO9 is:-

To ensure that the height of new development is compatible with the character of the neighbourhood centre and adjacent areas.

The maximum building height must not exceed 9 metres, unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the maximum building height must not exceed 10 metres.

1. Ignoring the reference to a sloping site, the permit requirement in the DDO suggests to me that anything less than 9 m in height will not be in issue and any such development can be taken as being compatible with the character of the area in a 'height' sense. If that were not the case then presumably Council would require a permit. As I read the DDO control, Council is saying that, having taken character and height into account, no building less than 9m will offend that character and as a result, Council doesn't even want an application lodged under the overlay.
2. Apart from the zone and overlay, there are also an array of strategic controls which are very relevant to the application including (at the state level):-

Locate a substantial proportion of new housing in or close to activity centres and other strategic redevelopment sites that offer good access to services and transport by:-

• Increasing the proportion of housing to be developed within the established urban area, particularly at activity centres and other strategic sites, and reduce the share of new dwellings in greenfield and dispersed development areas. (Tribunal emphasis)
• Ensuring an adequate supply of redevelopment opportunities within the established urban area to reduce the pressure for fringe development.
• Ensuring all new development appropriately responds to its landscape, valued built form and cultural context.

• • Promote good urban design to make the environment more liveable and attractive.
  • Recognise and protect cultural identity, neighbourhood character and sense of place. (Tribunal emphasis)
  • Promote excellent neighbourhood design to create attractive, walkable and diverse communities.

To encourage the development of well designed medium density housing which:

• Respects the neighbourhood character.
• Improves housing choice.
• Makes better use of existing infrastructure.
• Improves energy efficiency of housing.

1. At the local level Council (via its MSS) also has strong strategic policy direction including:-

• A high quality living environment, including a high level of amenity and high quality residential character.
• Additional dwellings to stabilise Banyule's residential population.

• Facilitating and encouraging higher-density housing close to public transport, commercial and community facilities, without impacting adversely on the amenity or character of the surrounding areas. (Tribunal emphasis).
• Encouraging greater diversity of housing in terms of style, size, affordability and tenure, having regard to the Banyule Housing Statement.
• Protecting and enhancing residential streetscapes and the character, amenity and safety of residential neighbourhoods.

• A safe, attractive and high-quality built environment.
• New buildings whose design, form and bulk are consistent with or make a positive contribution to the character of an area. (Tribunal emphasis)
• Protection and enhancement of the amenity of Banyule's diverse landscape values.
• Efficient and effective use of all infrastructure.
• Efficient and sustainable use of resources.

• Protection and enhancing residential streetscapes.
• Encouraging additional or replacement planting consistent with the landscape character of the area in association with new development or redevelopment.
• Encouraging dwelling designs, densities and site layouts which will ensure the protection and enhancement of neighbourhood and landscape character.
• Discouraging architecture and urban design which would be detrimental to identified streetscape and neighbourhood character.

• Increased accessibility for all those who work or reside in Banyule.
• Increased use of public transport and reduced dependency on private vehicles.

• Encouraging intensive land uses, including medium-density residential development, community facilities and commercial activity, in areas of high accessibility by public transport. (Tribunal emphasis)

1. I note that Clause 21.04-1 is accompanied by a Residential Framework Plan which shows the area surrounding Macleod Station as an area for "...encouragement of medium density housing close to public transport and commercial/community facilities."
2. Finally, Council has two relevant local policies at Clause 22 being its Housing policy (22.06) and its Neighbourhood Character policy (22.07). The Housing policy has the following objectives:-
   • • To promote appropriate residential redevelopment (especially dual occupancy and multi-dwellings) in order to counter population losses
     • To encourage a greater diversity of housing style, size, affordability and tenure to meet the varied needs and preferences of existing and future residents.
     • To encourage the maintenance of the existing diversity of residential areas.
     • To encourage the maintenance of the current rate of multi unit development to achieve a greater mix of housing.
     • To conserve and enhance residential character and amenity.
     • To protect and enhance residential streetscapes.
3. In terms of Neighbourhood Character, the site is contained within the "Garden Suburban 3" (GS3) precinct which has a desired future character "...to retain and enhance the area's valued low scale residential character."
4. The objectives for this precinct are:-
   • • Ensure new buildings and extensions are sympathetic to the current building form and style.
     • Ensure dwellings do not dominate the streetscape, landscape and/or the building.
     • Maintain consistency of current front setbacks, where present.
     • Maintain the rhythm of dwelling spacing.
     • Minimise loss of front garden space and dominance of car storage facilities.
     • Maintain the openness of front boundary treatments due to a lack of front fencing in GS3.
5. Two very strong, and potentially irreconcilable, themes emerge from my analysis of the strategic direction in the planning scheme. On the one hand, at both the state and local level, there is explicit encouragement for the encouragement of medium density housing close to the train station and shopping centre. On the other hand the Council requires that such redevelopment retain the low scale residential character of the area. While never articulating what "low scale" might mean the issue is further complicated by the DDO which effectively states that Council is only interested in applications in excess of 9m in height.
6. To be fair, I note that Council acknowledged compliance with urban consolidation policy noting:-

The site is well located for medium density development in terms of proximity to transport and community facilities and contributes to increased housing choice. It is consistent with the state planning objective to achieve increased density in established residential areas, and is within the area identified in the MSS for encouragement of medium density housing.

1. However Council then added that the caveat in the MSS is that development must respect the character of the residential neighbourhood and in its view, it fails this test.
2. While I will address this aspect of 'character' in a moment, I am satisfied that the proposal is overwhelmingly in accordance with state and local strategic directions for urban consolidation. It is a site less than 5 metres from a neighbourhood activity centre and about 100 metres from a rail station. It is as good a site as there is for a modest redevelopment in accordance with state, metropolitan and local policy.

1. The case against the application essentially charges that the character of this area will be diminished if these three dwellings proceed. Specifically, the three dwellings will not deliver the preferred future character which is the retention of the "low scale residential character" of the area.
2. A couple of things need to be said about this. Firstly, I do not agree that the proposal will offend the preferred character statement. Secondly, it seems problematic to insist on benchmarking character to a 'scale' which is at odds with Council's other ambitions for the area which include the encouragement of medium density housing.
3. As to the first point, I am at a bit of a loss to understand what Council want to achieve so as to satisfy "low scale". I regard double storey dwellings as such a perfectly normal and acceptable scale of building throughout metropolitan Melbourne, Banyule and even Macleod, that they would surely qualify as "low scale". I am assisted in this view by reference to Council's own DDO9 for the area which, in an objective sense relates height to character, and in a requirement sense deems anything less than 9m as not even being worthy of an application.
4. Mr Cover conceded that the two storey height was not so much of the problem as was the "contemporary design". I must say that I don't find the design offensive at all and I note the degree to which it attempts to incorporate design characteristics of residential buildings in the area including front setbacks, spacious side setbacks emphasising the rhythm of the street, sloping roofs and a landscaped front garden retaining some existing trees. The dwellings are very well articulated, especially at first floor level and incorporate a nice mix of brick, render, timber and glazing. Lest it be thought that this is some sort of a "way out" design, I regard the outcome as quite a modest and reserved interpretation of some of the character elements in the area.
5. I have said on other occasions that I struggle with "preferred character statements" that do no more than seek to perpetuate what is there regardless of other policy imperatives. Implicit in this is that what is there is good, and that nothing should be contemplated which might modify this. I have a problem with this approach especially in areas where Council is promoting land use changes that must inevitably affect built form. I also have a problem with this approach in a more localised sense and just one example from this application illustrates this point. One of the characteristics of this part of Macleod, unsurprisingly, is the existence of a vehicular crossover leading to a side driveway. Most houses from this era in Macleod have this as a characteristic. The subject application abandons this as it has the benefit of a side lane from which all access will be achieved. The end result is that instead of a crossover, driveway and visible garage, the appearance from May Street will be of the front unit and of landscaping. There will be no crossover, no driveway and no visible garage. But that is not characteristic of this area and so should the application be "marked down" because it does not perpetuate the status quo? Clearly not.
6. I also have great trouble with character statements that cover such a broad area that they cannot help but be ignorant of site context. This is a property fronting onto a laneway; backing onto the rear yards of shops from which loading and storage takes place; and across the road from a major school enclosed by a high cyclone wire fence. None of this is reflected at all in the character statement. There is a world of difference between applying the character elements of the precinct on this site as opposed to other more remote sites in the same precinct.
7. As to the second point, I am again frustrated by a decision which is dismissive of the higher order housing policy position in preference for a focus on the fine detail, in this case 'character'. This Tribunal has commented often enough on the fact that suburbs will physically change as state and local policy on encouraging medium density housing takes effect. That physical change will vary from area to area but it means that some areas will change. Banyule has nominated the area around Macleod station as one such area and so reliance on a "status quo" preferred character statement seems both contradictory and confusing.
8. Having looked at the site and the area on my inspections, I think that the 'character' of this part of Macleod is of post war dwellings set on large sites with a strong vegetation characteristic. But the 'character' in the immediate area is also strongly influenced by the proximity of the shops and the train station. The built form in the area is typically detached housing and there are signs that this housing is being replaced and renovated. None of this is a surprise given the proximity of the precinct to commercial, community and transport facilities. While I am concerned that Council has ignored this second aspect in preference for retention of the 'status quo', I am still able to conclude that this two level development of three units incorporating landscaping, setbacks and design elements which are common to the area dovetails with the character elements that are apparent in this area.

1. Of most relevance to Mrs Heydon and Mrs McIlwain was the impact of the proposal on their amenity. Both were concerned about the use (and increased use) of the laneway for vehicular and pedestrian traffic and the likelihood of conflict between pedestrians and cars. I had a close look at this on my inspection and while I agree that there is likely to be increased use of the lane, I do not regard this as fatal to the application. Indeed, I find it a positive feature of the proposal that an existing community asset in the way of a sealed lane can be utilised for access to the new units thereby returning part of May Street to a roadside nature strip with an extra kerbside car park. In the event that the lane is becoming overused or that speeds become excessive, Council has a range of "traffic calming" measures which it could adopt to redress this.
2. Mrs McIlwain was also justifiably concerned about the potential loss of light (both sunlight and daylight) into her small north-facing courtyard and her kitchen and living room windows. Again, while I appreciate the concern and had a close look at this on inspection I feel that the amended plans (with one extra condition) are a significant improvement for her on what was originally lodged. The proposed rear unit (No.3) has been modified at the upper level so that is over 3.5m from the mutual boundary with Mrs. McIlwain. The shadow diagrams illustrate that any shade from this level will fall within the subject site. At the lower level the garage wall is marginally closer than that allowed by ResCode and I propose to include a condition requiring compliance with Clause 55 thereby further minimising any impacts. I appreciate that there will still be shade into the courtyard of Mrs McIlwain however this is already caused by the fence, the trellis and an existing tree on the review site. It may well transpire that the removal of this tree in the course of redevelopment may actually improve sunlight penetration into her courtyard.
3. Other than these aspects, it was common ground that the amenity objectives and standards of Clause 55 had been met, which indicates to me that this is quite a modest redevelopment of a well-located site.

1. One of the tasks of a responsible authority (and on review, this Tribunal) is to "...balance conflicting objectives in favour of net community benefit and sustainable development" (Clause 11.01). Having done so I conclude that the objective of encouraging medium density housing on this site will deliver a net benefit leading to a sustainable development outcome. I have not ignored neighbourhood character (despite my reservations about the Council policy) and I believe that the proposal easily incorporates the dominant characteristics of the area into its design.
2. It is directed that a conditional permit be issued.

(1) Before the development permitted by this permit starts, amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the amended plans submitted to the Tribunal (Bagnato Marian Guarino Architects (SA01; DRO1; TPO1; TPO2; TPO3; SDO1; SDO2 - Revision B -12 February 2008 - VCAT Submission) but modified to show:

(a) The landscape plan to show the location of temporary tree protection fencing to be erected prior to the commencement of development to protect existing trees from damage during construction;

(b) Engineering plans showing a properly prepared design with computations for the internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system;

(c) The garage height for dwelling 3 to be lowered to be a maximum of 3.6m in height.

(2) The development as shown on the endorsed plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

(3) Unless otherwise agreed in writing by the Responsible Authority, the development permitted by this permit must not be commenced until the tree protection measures required by Condition 1(a) are installed to the satisfaction of the Responsible Authority.

(4) Unless otherwise agreed in writing by the Responsible Authority the development permitted by this permit must not be occupied until:-

(a) The parking areas shown on the endorsed plans have been constructed to the requirements and satisfaction of the Responsible Authority.

(b) The garden and landscape areas shown on the endorsed plans have been planted to the requirements and satisfaction of the Responsible Authority.

(c) Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority.

(d) The dwellings are numbered in accordance with Council's allocation of street numbers.

(5) Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

(6) Areas set aside for the parking and movement of vehicles as shown on the endorsed plans must be made available for such use and must not be used for any other purpose.

(7) No structure is to be built over any easement except with the consent of the Responsible Authority.

(8) In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

• The development is not commenced within two years of the date of this permit; or
• The development is not completed within four years of the date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing along with payment of relevant fee before the permit expires, or within three months afterwards.