To maintain and enhance the character of the City's residential areas.

To provide for a wide range of housing types to meet the changing needs of the population.

To ensure that higher density housing is directed to specific areas, including activity centres, with excellent public transport and shopping access and is integrated with existing residential areas in a form consistent with the character of neighbourhoods.

1. Related strategies include encouraging higher densities in identified areas; ensuring adequate private open space is provided in developments; and requiring adequate area of open space for the planting of upper canopy trees.
2. The Residential Development Policy[5] is a key policy in the consideration of this application. Relevant objectives are aimed at encouraging development that contributes to the neighbourhood character; minimising the loss of trees; achieving a successful co-existence of trees and new buildings; and recognising that areas of Substantial Change and Natural Change will make significant contribution to increases in municipality's housing stock.
3. The specific objective of Natural Change areas is to encourage development which responds to the prevailing neighbourhood character. The review site is within the Garden Suburban Area, to which the following Statement of Desired Future Character applies:

The openness of the Garden Suburban area is influenced by generous front and side setbacks, which should be retained in any new development. Vegetation in the Garden Suburban Area is predominantly exotic trees and gardens with some remnant indigenous trees. The retention of existing gardens and trees is encouraged and should be enhanced by further planting. Adequate space around new development is required for the planting of canopy trees. Innovative designs that provide for retention of vegetation are encouraged.

1. Clause 22.03-5.1 specifies a number of design objectives and design responses to achieve the desired future character. In summary, these include providing sufficient space within developments for the planting of trees and other vegetation; providing development that reflect the dominant building forms in the street - including articulated roof forms and wall surfaces; and using appropriate building materials and finishes that complement the dominant pattern within the streetscape.
2. Further to this, the Council's Neighbourhood Character Study[6] encourages retention of existing trees; provision of graduated front setbacks that allow for substantial garden landscaping; setbacks from at least one side boundary; and low front fencing.
3. The Tree Conservation Policy[7] seeks to minimise the loss of significant trees and to promote the regeneration of tall trees through the provision of adequate space and landscaping area in new development. In addition to articulating specific policies relating to tree conservation, this Clause also provides performance standards (such as siting and construction techniques) that are considered to satisfy the policy objectives and statements.
4. The other relevant policy consideration is in relation to the proposed form and density of the development. The land is situated approximately 500 metres from the Box Hill Central Activities District, located further to the north. Clause 22.07 and the Box Hill Activity Centre Transit City Structure Plan 2007 confirm that the review site is outside the boundaries of the activity centre. In fact, the southern boundary of the activity centre extends along the rear boundary of the review site, with the adjoining land to the north (properties fronting James Street) being within a Residential Precinct of the activity centre. The Structure Plan identifies the following envisaged outcomes for this neighbouring area:

The areas' residential role and amenity protected but medium density residential development encouraged.

New development supporting higher densities but consistent with the areas' existing built form character.

1. The associated Guidelines address the protection or replacement of existing buildings and adopting height limits and setbacks from ResCode (Clauses 54 and 55 of the Planning Scheme).
2. It appears that developments within the residential precincts of the activity centre are intended to provide a transitionary density, scale and form to that of the residential neighbourhoods that lie outside the activity centre's boundaries.
3. In this instance, the site is not within an area that is earmarked for higher density housing. It is situated in the residential hinterland of the activity centre, quite clearly outside the centre's boundaries (as identified in Clause 22.07). It is to be expected therefore that the level of change within this area will be more graduated and moderate than what will occur within the activity centre.
4. On one view, the proposed development is of a scale and density that is more in keeping with what is anticipated within the activity centre than in the surrounding residential areas. It is a relatively intense development. This is perhaps not surprising given it is to occupy a lot that is created by consolidating two relatively large parcels of land. I do not consider, however, that this is sufficient reason to reject the application. Consideration should be given to the building's response to its context. I note that this is the approach adopted by the Tribunal in Melbourne Housing Group Pty Ltd v Whitehorse CC [2008] VCAT 1974 where it stated:

[19] ...The 'areas of natural change' are where a modest level of change is anticipated to accommodate future increases in dwelling stock. We accept that this designation envisages a level of development which is less than might be anticipated in an area of 'substantial change' but we are satisfied that it does not preclude increased intensity of development provided new development responds sensitively to its context in terms of both site constraints and neighbourhood character.

1. It is conceivable that what constitutes 'Natural Change' will vary from area to area, based on the particular neighbourhood characteristics and other contextual considerations.
2. Some neighbourhoods may, due to their relatively low density nature and uniformity of dwelling stock, display a greater sensitivity to change than others. Conversely, neighbourhoods that have been modified over time by various infill developments, including development that perhaps does not display the extent of site responsive design as would be expected under contemporary planning policies and controls, may have a capacity to accommodate a greater level of change. I consider the review site to be located within such a context.

1. It does not appear to me that the policy framework of the Planning Scheme necessarily discounts the development of an apartment style building on the review site. In this respect, I note Council's submission that this form of development may be acceptable subject to the provision of adequate landscaping and a site responsive design.
2. This large site presents the opportunity to develop a building that provides generous setbacks from the property boundaries, incorporates significant landscaping to contribute to the prevailing garden character, and which adopts a transitional scale that acknowledges and responds to the built form on adjoining and nearby land.
3. The eastern end of Kent Road has a more 'robust' composition than the western end. This was fairly acknowledged by both the Council and the Applicant. While development towards the western end is principally in the form of traditional single-storey detached dwellings dating primarily from the Inter war period, the eastern end displays an evident presence of more recent multi-dwelling development, including two-storey and four-storey blocks of flats and two-storey townhouse style developments.
4. I accept that the development represents a marked change from the scale and form of the dwellings to the east. In the broader context, however, when consideration is given to the adjoining flats and to the disparate forms and scale of the multi-dwelling developments on the opposite side of the street, I do not consider that a three-storey building to be unacceptable. Although this locality is earmarked for 'Natural Change', I consider that a reasonable application of the policy could contemplate a different form of development here than that which would be expected in an environment where the dwelling style and scale is more consistent.
5. I consider that a three level building can be successfully assimilated into this context, provided (amongst others) the building envelope is sufficiently set back from the boundaries to provide for landscaping (including the planting of trees) and minimise bulk to adjoining land; the upper level is recessive; a graduation in height is provided between the single-storey dwellings to the east and the four-storey flats to the west; and an articulated facade is presented to the street.
6. I would not have formed this view had the site been located further to the west, where it would be amongst single-storey traditional housing stock. Within that context, the development would stand in marked contrast to the dwellings that characterise that portion of the street and would not represent the incremental change envisaged by the policy.
7. The proposed building displays an acknowledgement of its context as follows:
   • The highest parts of the development are located toward the western end of the site, to provide a graduated transition to the single-storey development to the east. For example, that part of the facade that is proximate to the eastern boundary has been restricted to a two-storey height by incorporating a 13.8 metre setback of the third level from this boundary.
   • Generous setbacks are provided from the property boundaries at ground level, although the efficacy of these in terms of providing a sense of space around the building is somewhat diminished by the intrusion of the upper level balconies into these areas.
   • Opportunities for the inclusion of landscaping around the perimeter of the building are provided, a matter which I will comment on in the following section of these reasons.
   • The front setback achieves a transition between the existing developments on either side.
8. A concern I have in respect of the streetscape presentation is the absence of a differential front setback between the first floor and second floor levels, and the minimal modulation of the front facade. I consider that the appearance of the south elevation would be improved by setting the second floor level further back from the street and also introducing variable setbacks and additional fenestration to the southern elevation. In my view, this would not only introduce additional visual interest, but will also assist in the development's integration into the streetscape.
9. The review site has a frontage of 32.55 metres. At its widest point, the building's south elevation has a width of 23.5 metres, representing 72% of the frontage. It will therefore have a dominant presence in the street. The further modulation of the facade by introducing variable front setbacks would reduce the apparent mass of the development in the streetscape, and reflect an acknowledgement of the more modest width of existing development.

WILL THE DEVELOPMENT CONTRIBUTE TO THE GARDEN CHARACTER OF THE NEIGHBOURHOOD?

1. The Municipal Strategic Statement and Local Planning Policies of the Planning Scheme[8] emphasise the importance of retaining existing trees and providing sufficient room in developments to plant new trees. A key concern of the Council is the ability of the development to incorporate canopy trees and other vegetation to contribute to the garden character of the neighbourhood. These concerns were focussed on the extent of the basement car parking area and the implications of this for the planting of trees throughout the site. A further related concern was the potential impact of the development on the established trees on the adjoining land to the west.
2. Neither the Council nor the Applicant called any arboricultural or landscape evidence.
3. The Council's submission included comments from its arborist. The comments addressed the impact of the proposed building on the health and stability of three trees on the western adjoining property. Recommended tree protection zones to ensure that the trees are not detrimentally affected were nominated. As proposed, the development would encroach within the recommended tree protection zones of two of the trees.
4. The Applicant submitted a report prepared by a consultant arborist[9]. That report classified the three trees in question as being of moderate arboricultural value. The tree protection zones nominated in that report are generally less than those specified by the Council.
5. I granted leave to the Applicant to provide a written statement from a suitably qualified person on the ability of the development to accommodate canopy trees. Leave was also given to the other parties to provide a written response to this statement and to the arborist's report.
6. The Applicant submitted a statement from a registered Landscape Architect[10] suggesting three alternative screen trees: Hill's Weeping Fig, Brush Box and Weeping Fig. It was stated that these evergreen trees will reach a mature height of 12 metres under conditions similar to those of this development, and that they will grow well if soil conditions are optimal. This conclusion is reached taking into account soil volume and solar access.
7. The Council response to the landscape architect's statement and arborist's report can be summarised as follows:
   • The selected tree species will create a densely planted perimeter around the boundary, with consequential impacts on light penetration into the ground level secluded private open space areas.
   • There is insufficient information regarding the volume and profile of the soil above the basement to determine whether sufficient depth is available for plant growth.
   • There is a concern regarding whether the tree planting in the frontage and its relationship to the building context and the basement further limits the potential location for planting.
   • The development's encroachment into the tree protection zones complies with the relevant Australian Standard and would not have an adverse effect on the health or stability of the trees on the adjoining property to the west.
8. The Council did not specifically comment on the adequacy or otherwise of the basement setbacks to accommodate planting adjacent to the property boundaries. The concern was more with the depth of the soil above the actual basement. I have inferred from this that Council accepts the basement setback from the side and rear boundaries as being adequate to accommodate the proposed trees species.
9. The basement setbacks are greater on the northern and eastern sides than the western side. I am generally satisfied that the 2.5 metre northern setback and the 3.3 metre eastern setback (this width applies to the majority of the eastern side, narrowing to 1.0 metre proximate to the frontage to make allowance for the basement ramp) are sufficient to support the planting of appropriate trees species.
10. While I have some reservations about the ability to accommodate substantial planting within the 1.65 metre western setback, I note that this planting will be complemented by the established vegetation on the adjoining property. Having regard to the landscape architect's statement and the comments of the Council, I am not persuaded that planting cannot be supported in this setback area. I do, however, consider that this should be carefully examined to ensure that appropriate planting can be provided adjacent to the western boundary to contribute to the landscaping of the site and broader context.
11. I share the Council's concerns in respect of the limitation placed on the planting within the front setback area by the basement (and, potentially, the underground water tanks). This requires further examination, including consideration of the soil depth and profile, to determine the nature and extent of planting that can be supported in this area. I am of the view that the planting of canopy trees within the front setback is necessary to achieve a satisfactory level of compliance with the Residential Development Policy and Tree Conservation Policy, both of which promote and encourage the planting of trees.

1. It is proposed to accommodate 27 cars spaces in the basement of the development, all of which are to be allocated to residents. The proposal therefore has a shortfall of four resident spaces and six visitor spaces when assessed against Standard B16 at Clause 55.03-11 of the Planning Scheme. That Clause specifies a number of decision guidelines to assist the exercise of discretion in determining whether the proposed car parking provision is acceptable. Relevant guidelines include the number, type and size of dwellings, and the availability of public transport and on-street parking.
2. In his evidence, Mr Turnball referred to the proximity of the site to the Box Hill railway station (600m to the north) and to the existence of three bus routes along Station Street. Reference was also made to a further 16 bus routes which operate from the Box Hill Central Terminus and to the tram route in Whitehorse Road, these being 600m and 900m from the review site respectively.
3. Mr Turnball's evidence included parking surveys of Kent Road. These surveys were undertaken at 12.30pm on a Monday, 3.30pm & 6.30pm on a Tuesday, 12.00pm on a Wednesday and 5.00pm on a Saturday. The surveys showed a maximum occupancy on 39 out of the available 58 on-street spaces in Kent Road.
4. The residents expressed concerns that surveys were not undertaken on a Friday, when a high demand for on-street parking was generated by the operations of the nearby 'Abbeys Auctions'. It was submitted that this demand also exists on Saturdays when the purchased goods are collected from the auction rooms.
5. In my view, the assessment of whether the proposed car parking provision is satisfactory should have regard to the residential context of the land, and to the fact that it lies outside the boundaries of the activity centre. It is not in an area where higher densities are specifically encouraged by the Planning Scheme. It is in a residential area which is not anticipated to undergo a substantial level of change. Accordingly, this is not a situation where an increased demand for public parking should be viewed as a 'trade-off' for increased densities to facilitate the implementation of urban consolidation policies.
6. Within the context of the review site, I do not consider a shortfall of 10 car spaces to be reasonable. It will place a notable demand on the available on-street parking and, in doing so, affect the amenity of the area. My own inspections indicate that the eastern end of Kent Road experiences a relatively higher demand for on-street parking than the western end. The development will add to this.
7. The land is not within an inner urban context where sites are constrained, public transport is readily accessible and a range of services are typically proximate. In that context, a lesser provision of on-site car parking may represent an acceptable outcome.
8. The review site is a large parcel of land which displays adequate scope to provide all the resident parking (and at least some visitor parking) on the property. The inability to do this indicates to me that the Applicant is seeking to place too much development on this site.

WILL THE DEVELOPMENT HAVE AN UNACCEPTABLE IMPACT ON THE AMENITY OF ADJOINING PROPERTIES?

1. This was not a key concern of the Council. The only off-site amenity impact referred to in the Council's submission was that of overlooking, the reference being to the need to ensure that unreasonable overlooking did not result. Screening is shown to selected balconies on the northern and eastern sides of the building. Screening is, however, also required to the first floor east facing balconies, as these are within 9 metres of the secluded private open space areas of the adjoining dwellings. An increased setback of the west facing balcony associated with Unit 109 to achieve a greater separation from a neighbouring east facing balcony will avoid the need for screening in that instance, and provide a better amenity outcome for that dwelling. A screen should be provided to the northern side of the balconies of Units 203 and 204 to protect the privacy of the neighbouring courtyard areas to the north.
2. Overall, I am satisfied that overlooking can be addressed satisfactorily. Further, it is evident that this can be achieved in a manner whereby the majority of dwellings do not require any screening, given the setbacks that are (or can be) provided from the boundaries, and thereby maintain an acceptable level of internal amenity for residents.
3. Given the orientation of the review site, the setbacks of the development from the boundaries, and the layout and size of the adjoining properties, the shadow impacts will be within the parameters of Standard B21 at Clause 55.04-5. The shadows will be largely confined to the side setback area of the neighbouring flats to the west, the review site and road reserve of Kent Road, and the western edges of the adjoining residential properties to the east. The development will not result in unreasonable overshadowing.
4. The remaining principal amenity impact is the potential presentation of visual bulk. The Council submitted that the proposed setbacks from the side and rear boundaries are well in excess of the minimum setbacks nominated under Standard B17 at Clause 55.05-1. While this is correct, I consider a greater setback should be provided at the north-west corner of the development, where the building interfaces with the small courtyard area of the adjoining multi-dwelling development to the north. The balconies extend to within 2.8 metres of the common boundary and will have an unacceptable impact on the amenity of this space. Although this setback is identical to that proposed for the balconies that face the neighbouring car parking area, it fails to acknowledge the different context and sensitivity of these adjoining areas.
5. Having regard to the layout of the adjoining properties, I consider the remaining setbacks to be sufficient to ensure that unreasonable visual bulk is not presented to these sites.

WILL THE DEVELOPMENT PROVIDE AN ACCEPTABLE LEVEL OF ON-SITE AMENITY FOR OCCUPANTS?

1. The Council's principal concern in relation to the on-site amenity for residents of the development is that of borrowed light to habitable rooms, namely the second bedroom of 14 dwellings. I share that concern. The use of borrowed light is not contemplated by Standard B27 at Clause 55.05-3. That Standard states;

A window in a habitable room should be located to face:

• An outdoor space clear to the sky or a light court with a minimum area of 3 square metres and a minimum dimensions of 1 metre clear to the sky, not including land on an abutting lot, or
• A verandah provided it is open for at least one third of its perimeter, or
• A carport provided it has two or more open sides and is open for at least one third of its perimeter.

1. The development does not comply with this Standard. The matter to be determined then is whether the proposal satisfies the objective of this Clause, which is to allow adequate daylight into new habitable room windows.
2. The matter of borrowed light has been commented on in a number Tribunal determinations[11]. Based on the findings within these decisions, some of the matters to be considered in determining whether the extent of reliance on borrowed light is acceptable are:
   • The context of the review site, as some reliance on borrowed light may be acceptable in inner city mixed use locations or within activity centres.
   • Whether the development involves the conversion of a non-residential building where the retention of part or all of the structure may restrict the ability to provide direct daylight to all proposed habitable rooms.
   • The intended use of the affected rooms, as borrowed light may be more acceptable for bedrooms than living areas, for example.
   • The percentage of rooms or dwellings within the development that will rely on borrowed light.
3. This site is not within an inner city location, mixed use area or activity centre. It is not within an area where there is a policy imperative to maximise densities. Nor does the proposal involve the reuse of a former non-residential building. It is a large, well proportioned site in an environment characterised by detached built forms that are set off the boundaries. It is, therefore, not constrained in terms of its access to daylight. There is no apparent justification for adopted design response in relation to daylight to habitable room windows.
4. Having regard to the particular circumstances of the review site and its context, there is, in my view, sufficient scope to design a building where the reliance on borrowed light is avoided (or, at best, minimised). In my view, the need for almost 50% of the dwellings to rely upon borrowed light for one of their habitable rooms is symptomatic of attempting to fit too much development on the land.

1. I have concluded that, while an apartment style development can be successfully accommodated on this land, the proposal is too large and too intensive. This manifests in inadequate setbacks from the neighbouring private open space area to the north, a significant level of reliance on borrowed light and a shortfall of on-site car parking for both residents and visitors. The presentation of the development to the street also needs to be modified to introduce further articulation to the building's facade and reduce its dominance in the streetscape. In addition, the ability to accommodate canopy trees in the western setback area and the frontage setback should be examined in further detail to determine whether trees can be successfully sustained in these locations.
2. I will therefore affirm the Council's decision and direct that a permit is not issued.

[1] I have considered all submissions and accompanying material, assisted by my inspection. I do not recite all of the material presented as all documentation is retained in the Tribunal's file.

[6] A reference document to Clauses 21.06 and 22.03

[9] A report and supplementary correspondence prepared by Tree Logic Pty Ltd

[11] See for example North and West Melbourne Association Inc & Ors (Application P367/2002); Metaxas Architects v Stonnington CC [2006] VCAT 539; PDG Corporation Pty Ltd v Yarra City Council [2009] VCAT 737; Delphic Wholesalers Pty Ltd v Yarra City Council [2005] VCAT 1607; Citi Road Apartments v Port Phillip CC [2006] VCAT 1070.