Subdivision of the land into two lots in accordance with the endorsed plan.

The Tribunal directs that the permit must contain the following conditions:

1. Prior to the certification of the Plan of Subdivision the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. Such agreement shall require, to the satisfaction of the Responsible Authority, that:

(a) a memorandum of the agreement is to be entered on title and the cost of the preparation and execution of the agreement and entry of the memorandum on title is to be paid by the owner.

(b) the owner will not build, construct or erect or cause or permit to be built, constructed or erected any building or part of a building on the subject land or any part of the subject land other than the development shown on the development plans prepared by A.L. Drafting and Design (Reference Sheet Nos. 2, 3, 5, 6, 7, 8 and 0 - Revision A, dated 7.02.01) but amended to the satisfaction of the Responsible Authority to show:

i. a layout for the existing dwelling as depicted on the plan (Sheet No. X Revision B, dated 15.08.01) tabled at the hearing of Application for Review No. P50212/2001;

ii. a ground floor footprint for the dwelling on Lot 2 which shows the deletion of the wing containing the kitchen, meals and family room area;

iii. a reconfiguration of the first floor and roof design of the dwelling on Lot 2 to present as an attic style, with no more than one bedroom, a bathroom and landing/study alcove;

iv. a reconfiguration of the driveway to enable the planting of at least two canopy trees (ie. with a height at maturity of at least 8m) adjacent to the southern boundary. Such trees to be installed prior to occupation of any dwelling on Lot 2 and at an advanced height of at least 3m.

2. The subdivision as shown on the endorsed plan being the plan substituted by the Tribunal in Application for Review No. P50212/2001 (Reference 7733/ZL Revision 3 dated 24.8.01), must not be altered without the prior written consent of the Responsible Authority.

3. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.

4. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

5. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

For the applicants for review: Mr Nick Hooper of Taylors Surveyors and Planners.

For the responsible authority: Mr Scott Taylor, town planning consultant.

For the respondent objectors: Ms Susan Brennan of counsel, instructed by Mallesons. Ms Brennan called Mr Tim Blythe, town planner and Associate Director of Urbis Pty Ltd, to give expert evidence.

1. This was an application under Section 79 of the Planning and Environment Act 1987 (P & E Act) to review the failure of the Responsible Authority to grant a permit (in Permit Application No. BOR/99/0544) within the prescribed time to subdivide the land at 22 Edward Street, Kew into two lots.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) Mr Hooper requested the Tribunal to amend the application for permit by substituting a revised plan of subdivision for that which had originally accompanied the application. The only revision was that of adding a carriageway easement across what would be a common driveway area. This would have a modest effect on the area of the lots, changing the two between 4 and 5 sq m. The amendment was made following the permit applicant's consideration of Mr Blythe's witness statement, which had been circulated prior to the hearing.

3. Mr Hooper also foreshadowed that a plan for the future development of Lot 2, which his clients had indicated they would agree to be bound to construct should the two lot subdivision be approved, would also be amended in response to concerns raised by Mr Blythe. The principal amendment was in relation to the provision for off-street parking for Lot 1. Rather than a single car garage with a tandem space to the front as originally shown, the amendment foreshadowed by Mr Hooper and illustrated on a plan tabled by him, would provide for a carport with a tandem space behind the building line.

4. Notwithstanding the last minute nature of these amendments the other parties were prepared to proceed on the basis of the changes. Accordingly, and being of the opinion that it would be appropriate to do so, I amended the plan of subdivision by substituting the plan Reference 7733/2L Version 3 dated 24 August 01, for that which originally accompanied the application. I also made a formal note in relation to the development plan that Mr Hooper's clients were prepared to be bound to a plan which showed a car arrangement as depicted on the plans tabled at the hearing.

5. Also at the commencement of the hearing Ms Brennan sought leave pursuant to Clause 56(4) of Schedule 1 of the VCAT Act for a Ms Phillipa Pattison to be heard along with the other respondent objectors to the application. Ms Pattison had been an original objector to the permit application but had failed to lodge grounds for contesting the application for review within the required period. There was no objection from either Mr Taylor or Mr Hooper to Ms Pattison being heard, given that she was to be represented by Ms Brennan. Accordingly and pursuant to Clause 56(4) of Schedule 1 of the VCAT Act I allowed her to be heard.

6. The following description of the subject land and the surrounding environment is taken from Mr Blythe's witness statement. I inspected the land and surrounding area following the hearing and consider it to be an appropriate description to adopt as my own:

"The subject land is located on the east side of Edward Street, to the south of Cotham Road and directly opposite the intersection of Edward Street and Alfred Street. The land is a regular shape with a frontage to Edward Street of 22.92 metres, a depth of 52.4 metres and a total site area of 1,201 square metres.

The land is occupied by a large and relatively contemporary two storey brick dwelling. The dwelling is setback approximately 9 metres from the street frontage. A two car garage attached to the dwelling is constructed to the south boundary. Vehicle access to the site is via a crossing located close to the southern boundary. The area at the front of the site, with the exception of the driveway is landscaped, with the garden being relatively immature in contrast to the surrounding area.

The rear half of the site comprises a garden area with lawn, small trees and shrubs. A garden shed is located in the south-east corner of the site.

There is a slight fall in the land from the east to the west.

The surrounding locality forms part of an established and highly attractive residential area generally developed in the early part of the twentieth century. The area consists of large two storey dwellings set within large and well established gardens. Edward Street also comprises mature Plane trees within the road reserve which re-inforce the strong garden character of the neighbourhood.

Adjoining allotments are of similar size to the subject land and reflect the general pattern of development in the area. There are examples of more contemporary multi unit development, such as opposite the site on the corner of Alfred Street and to the north near the intersection of Cotham Road. These tend to be the exception, rather than the rule.

The immediate property interfaces are described as follows:

The adjoining property to the south at No. 20 Edward Street is occupied by a large two storey Edwardian dwelling. This dwelling is well setback from the street frontage and is set within an attractive and well landscaped front garden area.

Car access for this dwelling is provided via a laneway that runs along the south boundary of this property.

The rear section of the property contains a mature garden with landscaping located along the northern boundary adjacent to the subject site. An outbuilding is located within the rear garden area along the southern side of the property.

The adjoining property to the north at No. 24 Edward Street is also occupied by a large two storey dwelling well setback from Edward Street. Typical of all properties within the vicinity of the site, the rear section of the property comprises a garden area including a pool.

The site adjoins the rear of three properties fronting Grange Road, Nos. 21, 23 and 25. These properties are all occupied by two storey dwellings, set within well-landscaped gardens. The immediate interface with the subject site is one of private open space, which provides an outlook towards the subject land. I note in particular the presence of a substantial peppermint gum tree in the garden of No. 23 Grange Road, close to the boundary with the subject site."

7. It is proposed to subdivide the land into two lots adopting what is referred to as a battle-axe layout. Lot 1, at the front of the land, would contain the existing dwelling and with the amendments made by me would have an area of 663 sq m.

8. Lot 2 to the rear would be a battle-axe shaped lot with an area as amended of 537 sq m. With the 3m wide driveway excluded from the site, area a developable area of approximately 463 sq m results.

9. As already noted detailed development plans have been prepared for the development of Lot 2 and the permit applicants have agreed to be bound by these plans via a Section 173 agreement to be included as a condition on any permit granted. The development plans provide for the construction of a part one and part two storey dwelling of approximately 36 squares and comprising two bedrooms, a study, rumpus room, living room, kitchen and combined family meals area plus a double garage downstairs and two bedrooms, a bathroom and a substantial "gallery" or landing at first floor level.

10. Except for the double garage, which would be constructed to both the southern and eastern boundaries, the dwelling would be set back approximately 1m from the eastern boundary abutting rear of properties facing Grange Road and to within approximately 1m of the northern boundary in the north-eastern corner of Lot 2. The first floor level will be set in 5.2 m from the eastern boundary, 5.6m from the southern boundary and 7.5m from the northern boundary.

11. The subject land is located within the Residential 1 Zone of the Boroondara Planning Scheme. Relevant purposes of this zone at Clause 32.01 are:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households."

12. Pursuant to Clause 32.01-02 a planning permit is required to subdivide land. The decision guidelines of that clause require that before deciding about an application to subdivide land into residential lots of between 300 and 4000 sq m, the Responsible Authority must consider, in addition to the State and Local Planning Policy Framework, the Victorian Code for Residential Development - Subdivision and Single Dwellings April 1992. The Code is divided into a number of elements which each have their own objectives, performance criteria and performance measures. An exception is Element 0 in relation to community design, which does not include performance measures. At page 10, dealing with how the Code works, it is suggested that proponents can follow the performance criteria for each of the elements and use innovative and imaginative solutions as long as they can demonstrate that these will achieve relevant element objectives. "Alternatively builders and developers can follow the detailed performance measures which ensure compliance with the objectives and consequentially expedite approval." Element 0 whilst arguably being more targeted towards broadscale subdivisions, emphasises the need for the development of stimulating environments which can incorporate a sense of place and Objective 01 is "to provide residential areas that encourage community development through neighbourhood focal points and special character and identity". Performance Criteria PC10 and PC11 refer to layouts that retain significant vegetation and which incorporate natural and cultural features and to layouts that "integrate with the surrounding urban environment".

13. In addition to VicCode 1, applications for the subdivision of land must be considered having regard to the decision guidelines for subdivision at Clause 65.02. Of particular relevance to this application are the following:

* The existing use and possible future development of the land and nearby land.

* The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.

* The provision and location of common property."

14. More general decision guidelines applicable to all applications as appropriate are set out at Clause 65.01 and include:

15. There are no overlay controls that affect the subject land.

16. All three representatives of the parties referred to what they considered to be the relevant provisions of the State and Local Planning Policy Framework. Clauses 14, 16 and 19 of the State Planning Policy dealing respectively with settlement, housing and subdivision were referred to. Perhaps of most interest is Clause 14.02-2 which states that:

"Consolidation of residential and employment activities is encouraged within urban areas and designated growth areas. Development in existing residential areas should be respectful of neighbourhood character_."_ (emphasis added)

17. The State Planning Policy Framework also encourages maximum use to be made of VicCode 1 in the planning of subdivision and the development of single houses on lots between 300 sq m and 4000 sq m.

18. The Municipal Strategic Statement, whilst recognising the need for higher density development in areas that are well serviced by public transport and other community facilities is also very clear about ensuring that the city's own distinctive urban character, which sets it apart from other areas of Melbourne, is maintained. In particular its treed and leafy environment is singled out for particular importance where this contributes to the character of the city.

19. There is a specific local planning policy at Clause 22.07 dealing with neighbourhood character. This policy applies among other things to land subdivision within the Residential 1 Zone and the objective of the policy is:

"To encourage design solutions which enhance and respond positively and creatively to the existing neighbourhood character of residential areas in the city."

20. The policy basis arises from the Municipal Strategic Statement's acknowledgement of the city's high quality residential environment and the need in this context for new development to provide "creative and site responsive design solutions".

21. The policy sets out a number of requirements, some of which are applicable to subdivision as listed below:

"* The relevant neighbourhood character statement be considered.

* The design responds to the identified land form.

* The creation of more than one lot respects the prevailing subdivision patterns of the street.

* A landscape plan be submitted and reflect the garden character of the area.

* The landscape plan shows new canopy trees and other vegetation characteristic of the neighbourhood."

22. Following the giving of notice of the application pursuant to Section 52 of the P & E Act 11 objections were received. The application was required to be advertised a second time, following submission of amended plans. In response to this further notice 18 objections were received. The grounds for objection were summarised in Mr Taylor's submission as follows:

Hidden nature of dwelling and therefore target for theft.

Contrary to neighbourhood character, loss of open outlook decline in green character of the area, loss of screen trees to No. 20 Edward Street.

Additional traffic problems in street, increase on street parking, insufficient parking for the existing dwelling.

23. Following the lodgement of the subject application for review, the Council's delegate considered the application on 15 June 2001 and, consistent with its officer's report, determined that it would have refused a permit on the following grounds:

"1. The setbacks of the east elevation of the building envelope of Lot 2 will cause visual bulk impacts to the secluded open space of the property to the east.

2. The part demolition of the garage for the existing dwelling will necessitate the permanent use of the frontage driveway setback for uncovered car parking for residents' vehicles.

3. The location of the uncovered car space for the existing dwelling will impede access to Lot 2.

4. The proposed subdivision fails to achieve a satisfactory level of compliance against the provisions of the Victorian Code for Residential Development Subdivision and Single Dwellings - April, 1992.

5. The proposed building envelope for Lot 2 is an overdevelopment of the site."

24. This application for review raises the following questions

* Firstly whether it is appropriate to permit a two lot subdivision without any building envelope.

* Secondly whether a building envelope in the form of the development plan which the proponents agree to be bound to, is an appropriate planning outcome.

* And thirdly, if it is not an appropriate outcome, whether it could be required to be amended.

25. Reference was made by both Ms Brennan and Mr Taylor to the recent decision of the Supreme Court of Victoria in Charnley Glen Pty Ltd v Boroondara City Council (2000) 6 VPR 93. In that case the Court found that the Tribunal decision in relation to a proposed two lot subdivision was vitiated by the following errors of law:

"* The finding that an application seeking to subdivide land into two lots each having an area of more than 300 sq m should apply for a permit to erect dwellings on the lots rather than a permit for subdivision.

* The finding that in the circumstances of this case the application for a permit to subdivide rather than a permit to erect the dwellings constituted a piecemeal or partial application.

* The finding that a permit would not be necessary to subdivide the land once the houses had been erected.

* The taking into account of an irrelevant consideration, namely the procedure adopted by the applicant; and the failure to take into account relevant considerations being:

the considerations applicable to an application to subdivide land into two lots each having an area of more than 300 sq m and

* The power of the Tribunal to impose conditions on the permit."

26. Her Honour did not find that the Tribunal was prevented from finding that in appropriate circumstances a permit could be refused for a two lot subdivision or that a permit including conditions tying the subdivision to a particular building envelope might be inappropriate. Rather, she found that the Tribunal's failure to consider the possibility of such outcomes meant that it had misdirected itself in its consideration of the application before it.

27. In the subject application there was no real disagreement about the site's suitability for subdivision into two lots, with a layout along the lines shown on the amended plans. What was more at stake was the question of what conditions might be appropriate to include on any such permit, in order that the outcomes envisaged by the Local Planning Policy Framework might be achieved.

28. It was contended by both respondent parties that to grant a permit with no restrictions in relation to the future development of the land, once subdivided, would be entirely inappropriate for this particular site, having regard to its multiple abuttals and partly landlocked nature. The fact that the permit applicants have agreed to be bound to a building envelope constituted by the submitted development plan confirms, I suggest, their acceptance or part acceptance of this argument.

29. Without a building envelope, only the siting and design standards called up by the Building Act would apply. These refer, but do not fully refer, to VicCode 1. They can also be said to assume a fairly typical subdivisional layout - not one that has as many existing abuttals and which is partly land locked, as is the case here.

30. In view of the requirement at Clause 65(2) of the Scheme, to have regard to the existing use and possible future development of the land and nearby land, I find it entirely appropriate to take cognisance of the fairly limited nature of the Building Act provisions. I think it relevant therefore to ask whether, given the particular circumstances of this site, it is sufficient to rely on these limited standards. I find that it is not sufficient, given the matters to be considered under the decision guidelines at Clause 65, including the existing use of nearby land, the effect on the amenity of the area and the local policy objective at Clause 22.07 - for subdivision design solutions which enhance and respond positively and creatively to the existing neighbourhood character of Boroondara's residential areas.

31. What then of the proposed building envelope as encapsulated in the development plans which the permit applicants have agreed to be bound by? I have not been able to be persuaded that a subdivision conditional upon this development being constructed could be said to be one that was consistent with the local planning policy objective at Clause 22.07 for subdivision design solutions which enhance and responded positively and creatively to existing neighbourhood character.

32. I agree with the opinions expressed by Mr Blythe that the principal failure lies with the siting of a substantial building in what could be described as a corridor of open space that constitutes the rear garden area of dwellings fronting both Edward Street and Grange Road, as noted by Mr Blythe at page 8 of his submission:

"While the first floor sections of the proposed building will be centralised within the rear part of the site, inevitably this two storey building envelope will be clearly apparent from the rear gardens of the adjoining properties and contrasts with the current open landscape character. The bulk of the building cannot be ameliorated by landscaping on the site as there is simply no meaningful opportunity for planting along either the southern or eastern boundaries.

The proposed building envelope development is for an extremely substantial building which makes no allowance for landscaping along the southern boundary due to the existence of the proposed driveway. More importantly even it makes no viable provision along the eastern boundary where there is an abuttal to the very attractive rear gardens of dwellings facing Grange Road. The setback proposed also places in some considerable jeopardy Eucalypt which makes a significant contribution to the landscape character of the surrounding area.

A more site responsive outcome would be one which, for example, significantly reduced or eliminated the wing containing the kitchen meals area, in order to reduce the length of development along the eastern boundary and to protect the Eucalypt. It would also provide for some opportunity to introduce canopy trees within the driveway precinct and which substantially reduced the floor area and visual impact of the first floor of this on any measure substantial 36 square dwelling."

33. In the course of the hearing changes such as those outlined above were discussed briefly including the prospect of the upper level being substantially reduced in area and re-configured as an attic style. Having given some considerable thought to this matter I have reached the conclusion that it would be appropriate to grant a permit for this subdivision provided any future development was reduced in scope to that suggested by Mr Blythe, including the adoption of only a very limited first floor area, in an attic style. I am confident that the Responsible Authority would be able to ensure that an appropriate plan incorporating those amendments was approved.