[ORAL DECISION WITH MINOR EDITING AND ADDENDUM]**

1. This proceeding involves the land at 111 Taylor Road in Mooroolbark, in relation to which is proposed to build a second dwelling behind the existing dwelling on the land. The existing dwelling is single storey and there is a single crossover allowing vehicle access onto the subject land. The owner has recently constructed a separate front carport, which the owner apparently is informally using via a second informal crossover. In relation to the two side neighbouring properties, No.113 Taylor Road to the east features a double storey dwelling in the front section of that land plus a large backyard area. No.109 to the west is in the process of being developed as a dual occupancy ie there is a new single storey dwelling being constructed at the rear of that land, as well as the existing single storey dwelling at the front.
2. The review site is zoned Residential 1, with no overlay controls. The permit triggers here are Clause 32.01-4 (ie the construction of two or more dwellings on a lot) plus Clause 53 of the Planning Scheme.
3. In response to the advertising of the proposal, no objections have been received. However Council has issued a Notice of Refusal to Grant a Permit. In simple terms, Council's main concerns are that the proposal would be a poor neighbourhood character outcome, and lack planning policy support.
4. The hearing of this proceeding came before the Tribunal on 21 May 2012. During the hearing I heard submissions on behalf of the Applicant from Mr Neofitou, plus submissions for Council from Ms Hartley.
5. At the end of the hearing, I indicated that I was in a position to give a form of oral decision, which would narrow down the issues in dispute, while still leaving a final aspect for resolution where the Tribunal would be reserving its decision. I have set out below a summary of the comments and findings which I made at this stage.
6. The first part of my oral decision summarised the context in which the dispute had risen and the main background circumstances. As this is non-contentious, I do not need to repeat same for the purposes of this written decision.
7. I then summarised those features of the proposal which it is important to recognise have not been in dispute, as follows:
   • There is substantial strategic policy support per se for a second dwelling on the lot. Apart from some degree of State planning policy support for the better utilisation of this type of larger and relatively well serviced lot, it is important that the local policy framework is encouraging higher density and greater housing diversity in this type of location. In particular, we know that the subject land falls within the "Metropolitan Residential Area" under Council's local policies, with it being expected that this is the preferred location for medium density housing within the municipality.
   • Ms Hartley in the course of the hearing conceded that Council (with the right design) did not contest that the site was big enough to accommodate a second dwelling per se.
   • There were no neighbours involved in the hearing and Council did not pursue any argument that the proposal has unacceptable external amenity impacts.
   • At the hearing Council did not pursue that there was any significant internal amenity problems with the proposal.
   • Whilst there was some discussion at the hearing regarding the fact that the proposal involves the removal of most of the existing vegetation on the site, I agree with Neofitou that the important point here is that not only the Applicant's arborist but also the Council arborist have assessed the situation and provided an opinion that this wide spread removal is acceptable, given that most if not all of the trees in question are exotics and many are in a poor to poor-to-fair condition. It is also a factor in favour of the Application that the Grounds of Refusal raised by Council make no reference to "vegetation removal" issues, plus this issue rated barely any discussion in the Council Delegate Report.
8. In the next part of my oral decision I indicated that I regard this as one of those planning appeals where the Tribunal's finding really turns on the design approach which has been taken by the project designer. In particular, a judgement call needs to be made whether or not the proposal is seeking to place too much built form on the site, in a situation where the proposed design is double storey and provides for two bedrooms, a bathroom and a modest living area at the upper level. In this regard, I advised the parties that my conclusion was that the proposal is acceptable in this regard. In particular, a major positive feature of the proposal is that there is a variety of styles and size of built form in this locality, including a double storey dwelling to the east and a "front and back" dual occupancy to the west. This in turn creates a greater level of flexibility, in terms of the capacity of the review site to accommodate a double storey building per se to the rear of the existing one. It is also a worthy feature of the proposal that the proposed upper level floor area is well modulated and articulated, and the extent of the upper level floor area is substantially smaller than the lower level (which in totality will make the upper level quite recessive when viewed by the neighbours).
9. The final issue is as follows. The proposal involves utilising the existing front carport by way of creating a new/second crossover. This would enable the existing front dwelling to have one under cover car space plus an open tandem space, accessed via the new crossover. The new rear new dwelling would use the existing crossover and have a new rear garage accessed via a side driveway. This proposed arrangement was opposed by Council, with Ms Hartley arguing that the recently constructed front carport was unsightly and a poor neighbourhood character outcome. Following this line of thinking, the better approach would be to use some of the rear area for a single carport or dwelling to service the existing dwelling, which would avoid the need of a second crossover and presumably result in the front carport being removed. This alternative design arrangement was opposed by Mr Neofitou.
10. It was common ground at the hearing that whilst the new front car port has been legally built with the benefit of a building permit:
    • No planning or local laws approval has been obtained for the proposed second dwelling.
    • Consistent with the legal opinion by Senior Member Byard in the decision of Umesh Munjal v Casey CC [2010] VCAT 1026, I can still consider whether or not the use of the front car port and proposed 2nd crossover would or would not be an acceptable planning outcome as part of the overall merits assessment.
11. Since the hearing, I have considered this final issue further. On reflection, I am satisfied that the proposed second crossover and use of the recently constructed carport is an acceptable outcome in the particular circumstances here. In reaching this finding, I wish to make it clear that at an in-principle level, I have real sympathy for the line of thinking that seeking to retro-fit new carports into the front yard areas of established residential properties usually is a poor planning outcome. My concerns are all the more where the proposed car port would be mounted on or sit very close to a front-facing window of the existing dwelling and therefore compromise daylight getting into the front of the existing house.
12. However in the particular and more unusual circumstances here, I am satisfied that there will be an acceptable planning outcome, as follows. Because the existing dwelling does not sit at right angles to the front boundary but is more off-set, this in turn creates some spare space for the new front carport to partially sit alongside the front section of the existing dwelling. The practical result then is that the leading section of the new carport only extends marginally further forward, compared to the front wall of the existing dwelling. The new car port does not block any nearby window of the existing dwelling and most of the new carport sits well away from the existing dwelling.
13. Furthermore, I agree with Mr Neofitou that it is an unusual and significant factor that both of the neighbouring dwellings immediately to the west also have carports extending into their front yard areas, and that both of these neighbouring carports sit closer to the front boundary compared to the proposed situation with the review site. In all the circumstances, I accept that a reasonable case has been made out that in the more unusual situation here, the use of a second crossover and the recently constructed carport is an appropriate outcome.
14. Where Council opposed there being more than one crossover for the review site, I endorse Mr Neofitou's submission that this seems a strange position for Council to have taken, given that in reality a number of nearby neighbouring properties along this section of Taylors Road already have double crossovers themselves[1].
15. In summary then, I consider most aspects of the proposal to be straight forward, but I acknowledge that there was a legitimate debate to be had regarding the proposed vehicle access arrangements, and whether having a double storey dwelling at the rear is an acceptable neighbourhood character outcome. In the final result, I see the proposal as an acceptable neighbourhood character outcome, and I find that there are some particular contextual circumstances here which make the proposed second crossover/front carport arrangement acceptable. Hence I made orders above approving the proposal, subject to the final version of the draft permit conditions set out in the Annexure to this decision.
16. Given my overall findings, I have removed nearly all of the proposed Condition 1 sub-clauses, but I have included a new sub-clause requiring the retention of tree #5 with the consequential reduction of the size of the rear alfresco area (noting that Mr Neofitou indicated that his client could live with this modification). I agree with Mr Neofitou that tree #9 does not seem worth retaining, and I can indicate that I am generally satisfied with the proposed landscaping approach of focusing on a new planting regime rather than seeking to retain the existing vegetation. A new planting regime will for instance enable more native plants to be restored to the review site.
17. I note that Mr Neofitou provided me with a follow up letter after the hearing, relating to a concern about the practicalities of the "compromise re-design" option put forward by Mr Hartley. I can indicate that by the time I received this letter from Mr Neofitou, I had already in preparing this written decision made my basic finding that the proposed second crossover and carport is in order. However even if I was to consider the contents of Mr Neofitou's follow up letter, in my view it adds little to what was already discussed at the hearing.

1. Before the use and/or development start(s), including the removal of any trees or other vegetation, amended plans (2 copies) must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:
   • (a) The retention of the existing tree #5, including the consequential reduction of the alfresco area so that tree #5 is retained in accordance with the relevant requirements of the Australian Standard for tree protection.
   • (b) A new shrub/smaller tree located in the mini-garden bed area at the northern end of the eastern side of the new side driveway.
2. The layout of the site and the size of any proposed buildings and works shown on the endorsed plans shall not be altered or modified without the written consent of the Responsible Authority.
3. This permit will expire if one of the following circumstances apply:
   • (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. As part of the preparation of the architectural plans for endorsement, the permit holder must also provide a landscaping plan to the satisfaction of the Responsible Authority. This plan must be prepared by a suitably qualified an experienced landscape designer and drawn to scale/dimensioned. It must show the proposed landscape treatment of the site. Three copies must be provided and once approved, it will form part of this permit. The landscaping plan must show/deal with:
   • (a) The changes required by Conditions 1(a) and (b) above.
   • (b) The replacement planting of at least two new canopy trees in the front yard area of the existing dwelling, one new canopy tree to replace the existing tree #9 and at least one new canopy tree at the rear of the land.
   • (c) The requirements of Conditions 6, 7 and 8 below.
   • (d) All trees to be removed.
   • (e) The location and extent of all replacement trees, shrubs and plantings.
   • (f) The chosen species for the re-vegetation, and their height at maturity.
2. The landscape works as shown on the approved landscaping plan/endorsed plan must be carried out prior to the occupation of the new dwelling, or otherwise within three months of its completion (whichever occurs sooner).

The new plantings must then be maintained or replaced as necessary to the satisfaction of the Responsible Authority. 3. Prior to the commencement of buildings and works (including demolition), a tree protection fence must be erected around tree 4 at a distance from the trunk defined by the report by All Trees Consulting Services dated August 2011 to define a "Tree Protection Zone". The fence must be constructed of wire mesh and star pickets to a height of 1.5 metres. The fence must remain in place until construction is completed. The areas enclosed by the tree protection fencing must be treated as follows: * (a) Mulching across the surface of the Tree Protection Zone to a depth of 100mm. * (b) No roots greater than 40 mm in diameter are to be cut or damaged during any part of the construction process. * (c) All works are undertaken with care to minimise damage to roots located within the area of trees to be retained, whether on the subject site or adjacent properties. * (d) Where the tree is located adjacent to fencing, it is to be erected from the property boundary at the required distance to achieve the necessary tree protection zone. * (e) Signage placed around the perimeter of the fencing identifying the area as a Tree Protection Zone. The signage should be visible from within the development, with the lettering complying with Australian Standard AS 1319. * (f) Unless approved, no excavation, constructions works or activities, grade changes, surface treatments or storage of materials of any kind are permitted within the Tree Protection Zone. * (g) No persons are permitted to enter the Tree Protection Zone. 4. Storm water drains and other underground services must be diverted around the TPZs of trees #1 and 4. In addition where trucks or heavy machinery must access the site for construction purposes, this must to the satisfaction of the Responsible Authority be carried out as far as practicable so as to minimise movement above the critical root zone ("CRZ") area of tree #1 and/or with some form of protective covering above the soil in this CRZ area. 5. Any works to the driveway adjacent to tree #1 must be carried out at or above existing grade, with no further disturbance to roots within the SRZ or TPZ. 6. Prior to the occupation of the permitted development piped drainage must be constructed to drain all impervious areas to the satisfaction of the Responsible Authority. 7. Prior to the occupation of the permitted development the parking areas and vehicular access ways shown on the endorsed plan must be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority. 8. Prior to the occupation of the permitted development the construction of all internal civil works, including car parking, vehicular access ways and drainage is to be inspected and approved by a suitably experienced civil engineer or person. This person must supply written certification that the works have been constructed in accordance with the approved plans, to the satisfaction of the Responsible Authority.

[1] Where the Delegate Report claims otherwise, I agree with Mr Neofitou that this is an unfortunate error.