1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1987, Graham Kirkwood and Elizabeth Boros of 2/6 Myrnong Crescent, Toorak, are joined as parties to the proceeding.
2. Leave granted to amend the application by substituting plans prepared by Kennedy Nolan Architects, TP00 to TP14, Revision D and dated 04.3.11.
3. The decision of the Responsible Authority is set aside. A permit is granted for the alterations and additions to the existing single dwelling on a lot less than 500 sq m at 1/6 Myrnong Crescent, Toorak, generally in accordance with the endorsed plans and subject to the conditions contained in the Appendix to this order.
4. The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Susan Brennan, by direct brief. She called Amanda Ring, Town Planner, SJB Planning, to give evidence.

Extension to the existing single dwelling on a lot less than 500 sq m. It involves refurbishment of the lower ground floor and the ground floor, and constructing a new first floor for a master bedroom and study with a terrace. The renovation and extension will transform the appearance of the building.

The land is the front unit of a Strata Plan of two dwellings. It is located on the east side of Myrnong Crescent approximately 42.06 metres north of Glen Road, Toorak. It has a frontage of 18.6 metres to Myrnong Crescent, a depth of 23.5 metres, and a site area of 489 sq m. At the rear of the land to the northeast is 2/6 Myrnong Crescent, a single dwelling and the respondents' property. The land slopes steeply from front to rear and towards River Yarra.

The review site is developed with a single storey dwelling with a lower ground floor. Its garage is set forward of the house at 4.1 metres from the street.

2/6 Myrnong Crescent is a part two storey house on the low side of 1/6 Myrnong Crescent. It has its primary private open space to the north of the dwelling.

1/6 and 2/6 Myrnong Crescent share the same driveway.

Development in Myrnong Crescent is mostly substantial houses on generous lots. Due to the fall of land from the north towards the Yarra, it is not uncommon for buildings to have multiple levels.

1. The permit applicant proposes to make alterations and additions to the existing single dwelling on the land which involves an additional floor above the building. Council has refused it on the grounds of neighbourhood character in terms of Clauses 22.02 and 54, and failure for the design to integrate with the street.
2. As the permit applicant has lodged an application to review this refusal, the Tribunal must decide whether to affirm or set aside this decision, and decide on permit conditions were a permit to issue. In doing so, it must give effect to the Stonnington Planning Scheme ("the Scheme").
3. I record leave granted to amend the application by substituting the plans marked as Revision D and dated March 2011, a set of which has been filed and circulated in accordance with the Tribunal's Practice Note. I also record joining Graham Kirkwood and Elizabeth Boros of 2/6 Myrnong Crescent, Toorak, as parties to the proceeding.
4. As a result of the revised design depicted in the amended plans, Council has revised its position from a refusal to one of support subject to the draft conditions it prepared. Respondent objectors, however, remain opposed to the proposal.
5. I have considered the submissions of the parties, Ms. Ring's evidence, and assisted by my inspection of the site and area, find the proposal, subject to a further minor adjustment of the design, an appropriate response to the context of the site and satisfactory against the amenity impact provisions of Clause 55.04. The issues of this review are neighbourhood character and amenity impact on the respondents' dwelling.

Design Response to Neighbourhood Character and Context of Site

1. The main ground of refusing the application of the initial design was neighbourhood character, including failure of the design to integrate with the streetscape of Myrnong Crescent. In the revised design, Council submitted that significant modifications have been made to improve the built form and reduce the impact of the previous solid blue stone wall on the street. It was now satisfied that the contemporary presentation of the building to Myrnong Crescent, with a mixture of modern building materials and finishes and the incorporation of a well articulated modern facade, will present a respectful and contemporary layer to the streetscape. It submitted that it is now consistent with its Urban Design Policy at Clause 22.02 which encourages innovation, good design and high standards in the construction of new buildings.
2. With regard to the height of the proposed extension, which is to add another floor to the building, Council was satisfied that the overall height at around 9 metres above the natural ground level is acceptable. It considers this height as a graduated change and not dissimilar to other dwellings in the area.
3. Respondents, however, submitted that the site is different from other properties in Myrnong Crescent, that it and their property are part of an Owners Corporation that share one common driveway and essential services. The site should be considered differently from other generous lots with stand-alone houses. They pointed out that their land and house are on the low side of the land and therefore located closer to the proposed extension than would otherwise be with other lots. They submitted that the slope of land at over 10o has already resulted in a single storey building at Unit 1 presenting as a two storey building to their property, and that the proposal would present another floor with extensive glazing and a large mass close to their property.
4. As a matter of neighbourhood character, my inspection of the site and area confirms the sloping nature of Myrnong Crescent, that buildings acquire a multi-level presentation due to the significant fall of land. The proposed two storey height to the street and three levels at the rear is consistent with this character.
5. I accept Council's assessment that the proposed modern architecture of the building adds a layer of design to the current mixture of traditional mansion design and recent contemporary architecture of later developments. I note the front setback of the house at the garage at just over 4 metres is less than the front setback of most other houses. This setback is, however, an existing condition. I thus agree with Council that the proposed design is consistent with the existing neighbourhood character of the area.

1. This is the main issue with the respondents, particularly in privacy and visual bulk.
2. Due to the fall of land, the current ground floor is equivalent to a first floor at the rear facing 2/Myrnong Crescent. There are currently windows on this elevation overlooking into the first floor balcony and study of 2/Myrnong Crescent. There is a high boundary wall/fence between the two properties.
3. The potential for new overlooking is from the new first floor where the terrace off the study is within 1.5 metres of the common boundary, and the full height glazed windows of the study and master bedroom within 3.7 metres and 4.14 metres of the common boundary, all within the 9 metre viewing arc of Standard A15. These two rooms face the direction of the secluded private open space of 2/Myrnong Crescent.
4. These windows and the terrace for the study are proposed to be screened: by a curved timber clad wall around the terrace of the study at 1.75 metres height, and a metal (bronze and aluminium) framed Brise Soliel screen for the two rooms. A Brise Soliel screen is a screen within a frame that has vertical and horizontal dividers to obstruct and block views downwards and side views without blocking views to the horizon.
5. Ms. Ring, called to give town planning evidence, pointed out that Clause 54.04-6 does not seek to provide complete protection from overlooking but to "limit views into existing secluded private open space and habitable room windows". Her reading of the viewing sections plans prepared by the project architect was that there is either more than 9 metres separation or the downward views towards 2/6 Myrnong Crescent blocked. She observed that the Brise Soliel screen will continue to be effective beyond 9 metres from the face of the new windows. She also gave evidence that there is no need to retain the translucent glazing for the master bedroom as proposed, as it compromises the appearance of the facade and that room's amenity.
6. Her opinion was that the new overlooking is not unreasonable as it is from bedrooms and study windows, rooms that are not often used. To her, the master bedroom is a sensitive room that there is the potential of reverse overlooking. She also observed that there is a row of silver birch trees within 2/6 Myrnong Crescent near the common boundary that filters the outlook from the site to the private open space at 2/6 Myrnong Crescent.
7. Overlooking is the respondents' prime concern. They submitted that the secluded private open space and habitable rooms in their house currently enjoy total privacy. They pointed out that the 9 metre distance separating between windows in the extension and their private open space is only marginally exceeded. They questioned the effectiveness of the proposed screen and the different levels of screening (such as the bedroom having translucent glazing and the study does not have translucent glazing). They argued that irrespective of the extent of actual overlooking, there is perceived overlooking, particularly in evening and night time when the new floor is illuminated, creating a visually dominant structure and giving it the appearance of a corporate viewing box. They were concerned with the permit conditions regarding overlooking which may not be effective.
8. As far as overlooking is concerned, the test is Clause 54.04-6. The operation of Clause 54 is such that when a standard is met, the objectives of the clause are met[1]. By having a 9 metre distance separation or screening in accordance with Standard A15, the objectives of privacy protection are deemed to be met. The Tribunal is not in a position to require more protection or refuse the application on the basis of overlooking. The proposal meets the standard
9. However, I do not necessarily agree totally with Ms. Ring regarding the translucent glazing for the lower 1.5 metres for the master bedroom, that it is not necessary. I doubt whether the translucent glazing along the lower reaches of the bedroom is to prevent overlooking but to reduce reverse overlooking. I do not propose to change this part of the design.
10. The second amenity issue is visual bulk. The one area where the proposal fails to meet Standard A10 is the curved timber cladding wall around the terrace of the study on the new floor.
11. Ms. Ring was satisfied that this non-compliance is acceptable because this part of the extension is comparable if not less than what exists at present.
12. I disagree. The building mass of this part of the building is now closer to the common boundary and higher than the existing building. It is opposite the first floor balcony and the study of the first floor of 2/6 Myrnong Crescent. The view from this balcony and study, to a much lesser extent from the forecourt of 2/6 Myrnong Crescent, is towards this structure. I am not satisfied that this standard should be varied, having considered the decision guidelines for Clause 54.04. A permit condition will be imposed to require the proposal to meet this standard. This means a further setback of the curved wall resulting in a reduction in the size of the terrace.

1. The proposal is to extend the existing dwelling by an additional floor and giving the house a general make-over.
2. I form the view that subject to the permit conditions proposed by Council, the proposal is an acceptable response to the neighbourhood character and context of the site, and subject to a further modification to the design to meet Standard A10, satisfactory to meet the amenity impact objectives of Clause 54.04.

1. Before the commencement of the development, three (3) copies of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the VCAT amended plans, revision D and Council date stamped 8 march 2011, but modified to show:

1. The ground floor east facing window to Bedroom 2 must be screened generally in accordance with Standard A15 of Clause 54 to reduce unreasonably overlooking to the private open space of the adjoining eastern property to the satisfaction of the Responsible Authority. 2. The ground floor eat facing window to the dining area must be screened generally in accordance with Standard A15 of Clause 54 to reduce unreasonable overlooking to the private open space of the adjoining eastern property to the satisfaction of the Responsible Authority.

1. The part of the building wall and timber screen enclosing the first floor gravel terrace off the study and en-suite bathroom to be further setback to meet Standard A10 of Clause 54.04-1.
2. The plans endorsed to accompany the permit must not be amended without the written consent of the Responsible Authority.
3. Prior to the occupation of the building, all screening devices designed to limit overlooking hereby approved must be fixed to a height of 1.7m, and have no more than 25% openings or an alternative to the satisfaction of the Responsible Authority.
4. This permit will expire if one of the following circumstances apply:
   1. The development is not started within two years of the date of this permit.
   2. 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.

• Objectives. An objective described the desired outcome to be achieved in the completed development.

• Standards. A standard contains the requirements to meet the objectives.