The order of the Tribunal is that the Responsible Authority's decision is affirmed and no permit is granted in relation to Permit Application No. 099/5005.

Mr N.J. Tweedie, Barrister, instructed by Gadens, Lawyers, appeared for the Responsible Authority.

Mr S. Stewart, Solicitor of the firm Minter Ellison, appeared for the Permit Applicant. He called Mr Vaughan Connor, Town Planner of Contour Consultants (Australia) Pty Ltd to give expert evidence.

Mr R. and Mrs L. Hill, objectors, appeared in person.

Dr A. Skoutarides spoke on behalf of O. McGee and the Black Rock Association for Responsible Development Inc. (BARD).

A written submission was also made by Mrs A. and Mr L. Morgiewicz.

1. This application for review is one brought pursuant to Section 77 of the Planning and Environment Act 1987. It seeks a review of the decision by the City of Bayside to refuse to grant planning permission for the development of the subject land for two double storey dwellings. The Council's permit application number is 99/5005.

2. The subject land is situated on the south-eastern corner of the intersection of Central Avenue and First Street, Black Rock. The site is regular in shape with a frontage to the eastern side of Central Avenue of 17.68m and a sideage to First Street of 34.75m. The site has a total area of 610sq m. The site is developed with a single storey dwelling set back approximately 12m from Central Avenue and 3.5m from First Street. Vehicle access to an open car port located forward of the dwelling is available at the south-western corner of the site. A high capped timber fence runs along the First Street frontage.

3. The property falls some 2.58m between the north-west and the south-eastern corner. Existing vegetation comprises a variety of trees and other landscaping both within the Central Avenue and First Street setback areas. To the east of the subject site is a double storey rendered dwelling at No. 28A First Avenue. That dwelling was constructed as the rear (or second) dwelling of a dual occupancy development that included the existing house on the subject site, when the subject site and the property at 28A comprised the one allotment. The land has since been subdivided. The double storey dwelling at 28A is set back approximately 3m from the First Street frontage and the garage of the dwelling abuts the eastern boundary of the subject site. The main area of private open space for this dwelling is located in the south-eastern corner of the property.

4. To the south of the site is a single storey brick dwelling at 5 Central Avenue. Somewhat unusually, the dwelling is set back approximately 20m from its frontage and 4.5m from the common boundary with the subject land. The driveway for this dwelling runs along the northern boundary adjacent to the subject land. There are also several large trees located adjacent to the subject site. The rear yard and main area of private open space is to the east of the dwelling, though the front yard of the dwelling is also used as a children's play area.

5. The subject site and the abutting properties form part of an established residential area in which housing stock comprises a mix of single and double storey dwellings interspersed with attached and detached medium density housing. Most of the development is from the post-war period and there is a variety of fencing types and building setbacks. Most of the properties, however, have well planted informal front gardens and large mature trees are common. There are double storey dwellings located opposite the site in First Street on both the north-eastern and north-western corners of its intersection with Central Avenue. To the east of the subject land double storey dwellings also extend along the northern side of First Street which is elevated above the roadway.

6. Mr Tweedie advised that under the Urban Character Report of 1999 which formed the basis of proposed Amendment C2 to the Planning Scheme, the subject site was included within Character Area 8. The Report says of Character Area 8:

"The most valued attributes of the area relate to the low scale, detached building style, well developed garden settings and the visual link between the garden and the street.

The area does not have a highly valued architectural style, but the consistent building scale, lot size and level of garden development does present a recognisable and desirable image."

7. It is pertinent to the issues in this hearing that Planning Permit 97/3210 allowing the two lot subdivision of the subject land and 28A First Street, included a condition requiring the applicant to enter into an agreement made pursuant to Section 173 of the Planning and Environment Act 1987. The Section 173 agreement was entered into and it requires that:

"The developments of Lots 1 and 2 indicated on the endorsed plans shall be in accordance with approved plans forming part of Planning Permit No. 96/2420, issued on the 1st of May 1997 or any amendment to the plans approved by the Responsible Authority."

8. In other words, the Section 173 agreement requires the development on 28A and the subject land to comply with the approved plans for the dual occupancy permit which was issued on the 1st of May 1997. The plans forming part of that dual occupancy permit indicate the new dwelling on the land now known as 28A First Street, and the existing dwelling on the subject land.

9. It is proposed to demolish the existing dwelling on the land and develop two double storey detached dwellings on the site. Unit 1 would be oriented to Central Avenue with Unit 2 addressing First Street. Both dwellings would be of three bedroom construction with downstairs living areas, and double garages. Proposed density of development is one dwelling per 205sq m of site area and the site coverage proposed is 53%. The dwellings are proposed to be set back 6m from Central Avenue and 3 to 4.5m from First Street.

10. The architectural style is conservative and typical of the newer housing styles found in the area. Rendered walls and slate type concrete roof tiles are the dominant materials.

11. The open space areas for the proposed dwellings would be provided by a fencing in of the setback of Unit 1 to First Street - providing a 35sq m northern oriented open space area adjacent to the family room and living room. The private open space area for Unit 2 would be provided to the south-west of that unit. It would have an area of 47sq m and be again accessible from the family and living rooms of the dwelling.

12. The garage for Unit 1 would be constructed to the southern boundary of the site with the unit itself being set back 1.2m at the ground floor level and 2m at upper floor level from that boundary. Unit 2 would be set back 2m from the southern boundary of the site at both upper and lower levels. The garage to that unit would be constructed to the eastern boundary of the site and the unit itself would be set back approximately 1m at ground floor level and 2m at upper floor level from that boundary.

13. At the hearing of the application for review, a landscape concept plan was submitted on behalf of the permit applicant. It was not accompanied by any written report. In terms of substantial trees the proposed landscaping incorporates two Chinese Elms at the Central Avenue frontage and two Persian Witch Hazels along the First Avenue frontage. There is also a Mochelia at the south-eastern corner of the site and three Pencil Pines at the entrance to the Central Avenue garage. An assortment of exotic shrubs, bushes and ground covers is proposed.

14. The plans lodged with the application indicated a 1.8m high rendered brick fence occupying part of the First Street frontage (surrounding the private open space for Unit 1) , though Mr Connor in his evidence suggested that this might be changed to hedging. The remaining parts of the site's street abuttals are proposed to be fenced with 0.45m high brick walls. Because of the late tabling of this landscape concept plan, written submissions in relation to it were permitted from the other parties.

15. The subject land is zoned Residential 1 under the Bayside Planning Scheme. Planning permission is required for the construction of more than one dwelling on a lot. The zone provisions require the assessment of the application against the Good Design Guide for Medium Density Housing. Clause 65 generally guides the exercise of the discretion and requires consideration of relevant State and local planning policies, the orderly planning of the area and the effect of the proposal upon the amenity of the area.

16. At State level, the relevant housing policies balance the need for an increased variety and density of housing throughout the metropolitan area with the retention of neighbourhood character. At local level, the Council seeks to create and facilitate a high quality urban environment, respecting heritage, streetscapes and neighbourhood character. The subject site and surrounds are currently affected by the Bayside Urban Character and Streetscape Study of 1998 which is a reference document in the Municipal Strategic Statement under Clause 21.05-3 of the Scheme. Area 8 is an area of quiet and scenic streets where native vegetation is dominant, and the street layout is rectilinear for the most part.

17. Mr Tweedie also advised that the subject site would be affected by Amendment C2 to the Planning Scheme, which as well as introducing the Bayside Urban Character Report of 1999 (to which earlier reference has been made) would introduce new local planning policy relating to housing, a new Design and Development Overlay introducing controls over front set backs and front fences, and variations to the Good Design Guide for Medium Density Housing, including the substitution or introduction of various techniques relating to density and neighbourhood character.

18. Upon receipt of the application, the Responsible Authority required it to be advertised and in response five letters of objection were received. Mr Tweedie's submission to the hearing of the application for review described the objections as follows:

"* The proposal is an over development of the site;

* The development is out of character with the streetscape of the area due to the visual bulk;

* The density of the development will not allow the growing of any significant trees;

* The proposal does not meet the objectives of the Good Design Guide;

* Noise pollution and increased demand on local services;

* The development will be detrimental to the amenity of the area."

19. The application was also referred to the Council's arborist who commented that there should be a minimum setback of 2.5m from the Liquidambar at the rear of proposed Unit 1 and a minimum setback of 3m from the Willow also adjacent to that unit. These recommendations were later amended to the incorporation of pier and beam footing for the adjacent buildings and a 2m setback to the southern boundary for Unit 2.

20. Referral to the Council's Traffic Engineer also occurred, who commented that the garage abutting First Street should be set back a minimum of 5m from the property boundary and the proposed crossover should be separated by a minimum of 1.5m from the neighbouring crossover. It was also recommended that the crossover in Central Avenue be widened to 4.5m with a 1.2m separation from the neighbouring crossover.

21. On the 14th of March 2000 the Responsible Authority determined to refuse the application on the following grounds:

"- The proposal creates unreasonable visual bulk;

- The proposal is not in keeping with the streetscape or neighbourhood character;

- The proposal is an overdevelopment of the site;

- The proposal is not in keeping with the spirit and intent of the Good Design Guide;

- The trees on the adjoining land to the south will be adversely affected by the development; and

- The proposal will cause unreasonable over shadowing of neighbouring property."

22. The applicant for permit then sought a review of that decision, essentially on the obverse of the grounds of review.

23. At the hearing of the application for review I was presented with oral and written submissions on behalf of all parties, except for the neighbours to the south who presented written submissions only. Mr Stewart also called upon the expert evidence of Mr Connor concerning the town planning appropriateness of the proposal.

24. Following their submissions and evidence, I indicated to the parties that I intended to make an inspection of the subject site, and arrangements were made for access to the adjoining property to the south.

25. It is recorded here that upon my first inspection First Avenue was heavily parked with vehicles. Mr Stewart for the permit applicant wrote subsequently indicating that the applicant believed that the objectors had arranged for an excessive amount of parking for the morning of my inspection and requested that I re-inspect the site. I did so and found the street to be almost devoid of any vehicles, at the same time of day. The matter of on-street parking, however, has not been determinative in this appeal.

26. On the 30th of August I provided the following statement of oral reasons for my decision in this proceeding to the parties. The statement has been slightly amended to better convey my meaning.

"I have considered the submissions and evidence presented to me and have twice inspected the subject site and surrounds to better understand the issues raised in the hearing.

I have formed the view that the permit should be refused. My reasons are as follows.

1. The outcome of this case has turned principally on the matter of neighbourhood character.

This is a neighbourhood for which the Responsible Authority, in its most recent Urban Character Study of 1999, recognises as valued elements, low scale buildings in garden settings.

This character is apparent when one visits the locality. It is acknowledged that there are some older properties with reduced setbacks to the street and lesser garden settings such as on the western side of Central Avenue, but they tend to be mostly modest homes which do not appear out of context. There are also a number of older properties without leafy natural gardens, especially in First Street west of Central Avenue, but here the dwellings are well set back from the street, as are the double storey houses on the elevated northern side of First Street east of Central Avenue. There is, to my mind, a general cohesion of styles amongst the older housing and an apparent consistency with the neighbourhood character as identified in the Council's 1999 Study.

Some of the new housing in the immediate vicinity of the subject land - apparently constructed in the last two or three years - is not in accordance with the valued characteristics of the locality, however, - it has a verticality of form, and a scarcity and formality of landscaping. This includes the new units on the north-western corner of the intersection of Central Avenue and First Street. It also includes the house at 28A First Street which has a small (3m) setback to the street, which setback supports only a line of James Sterling Pittosporums, box hedging and two tubs of Camellias.

This sort of landscaping and presentation of built form to the street is a major departure from the valued character elements of the area - dwellings of natural colour face brickwork with gardens mainly dominated by native trees. The new dwellings have a formality rather than an informality of building style. The higher fencing incorporated in such developments is also not typical.

I think that to approve the subject development would be to compound the existing departures at this street intersection from the valued neighbourhood character.

I would observe that until recent times, when assessments were required of the character of a neighbourhood, the Tribunal took the view that it was appropriate to consider all elements of the built form of an area, whether or not they were complementary. All of the features of an area then set the benchmark for the new development. This was contrasted to the assessment to be made in heritage areas in terms of identifying features to be reflected in new development. In the latter areas only the elements contributing to the heritage values were considered, and other discordant elements discounted.

Such past assessments of character were made, however, in the absence of identified valued elements in a study such as has been undertaken in the City of Bayside. Given that such a study has been undertaken, I believe that it is appropriate to generally follow the Council's intents for the achievement of development consistent with the valued character of the area, and set aside the influence of the inappropriate new developments from which the subject development derives its style.

Of course, if the valued character had been substantially eroded, there may have been reasons to depart from the Council's recommended approach. However, I think that in the area around the intersection of Central Avenue and First Street, there is sufficient of the valued character remaining to support its retention and not to allow a further erosion.

The approach taken here in relation to valued urban character is consistent with that taken in Application for Review 2000/030701 A. & H. McDonald v City of Bayside (unreported) which related to a multi-dwelling proposal two blocks to the south in Central Avenue.

In relation to streetscape also, I acknowledge that the Good Design Guide allows dwellings where they face a side street to have lesser setbacks, such as are proposed here, but I believe that in this case the upright two storey nature of the dwellings and the use of light coloured render, would lead to them being unacceptably prominent in the neighbourhood. I acknowledge that Mr Connor's suggestions to paint the upper and lower parts of the buildings differently would assist in breaking down the bulk, but it would not be sufficient in my view to overcome the essential scale problem. If built, the dwellings would also appear to be part of a three unit development in combination with No. 28A. I also do not believe that the siting of the houses on the low side of First Street would be sufficient to offset their prominence.

I also agree with the objectors' submissions made in response to the landscaping plan, that the proposed landscaping would not be sufficient to integrate the development with the surrounding area: it is neither native in emphasis, encouraging of retention of trees, and is not informal in style.

2. I also believe that the visual bulk as presented to the property to the immediate south would be excessive. Already the dwelling at No. 28A and that on the subject land sit relatively close to the boundary of that property. There nevertheless would be an increment in terms of built scale as presented to the neighbours, I believe, albeit that there would be an indent in the southern wall of that built form. The scale is excentuated by the slightly higher elevation of the subject site.

Also, while I do not believe that overshadowing of the property to the south would be sufficient in itself to refuse planning permission for this development, and indeed the equinox overshadowing is not substantial, it is a dwelling which has been carefully designed with a north facing courtyard and extensive glazing designed to allow internal access to light and energy. The loss of those aspects of the amenity of that dwelling is a further minor disadvantage of the proposed development.

3. I find the overshadowing of the open space for proposed Unit 2 unacceptable, especially given the restricted area of open space available to that three to four bedroom dwelling - being only some 47sq m in area.

4. The above three factors are to my mind sufficient to disallow the application for review. I would add, however, that I have concerns about the Tribunal being requested to approve a two unit development in contravention of a Section 173 agreement applying to the land.

The parties have all been somewhat reticent about the purpose of the Section 173 agreement which ties development on 28A and the subject land to the plans for the dual occupancy for that land earlier approved - the dual occupancy included the existing dwelling on the subject site. It may have been that the purpose of the Section 173 agreement was to only ensure that the new dwelling constructed on that portion of the land which is now 28A proceeded in accordance with the plans. However, the driving force of the agreement might equally have been that the new dwelling at 28A was seen as acceptable in streetscape and in other terms only if the existing dwelling was retained.

Irrespective of the motive of the requirement for the Section 173 agreement, I do not believe that it is appropriate for me to proceed to grant a planning permit in conflict with another planning instrument affecting the subject land. Amongst the responsibilities of this Tribunal, is the enforcement of permits and agreements. Without amendment of the agreement, a breach of that agreement would occur.

It was submitted to me that this difficulty could be resolved by including a condition on any permit granted for these two dwellings to the effect that before the development would begin, the Section 173 agreement would have to be removed from the land or varied.

This to my mind, however, is an inappropriate piecemeal course to the processing of planing approvals for this land, which flies directly in the face of the recommendations of the High Court in Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council [1980] HCA 1; (1979-80) 145 CLR 485. At page 500 of that decision, Stephen J. said that "no piecemeal series of applications is permissible ... instead, that use must be stated in appropriate detail in one application and all the land involved and the use must be the subject of the application".

"Such piecemeal applications are likely to place planning authorities and Review Tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is to be properly disposed of: yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination of the first application, whether by the Tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; and when the second application is heard it is likely to be much dominated by the outcome of the first."

It is my approach that to proceed with this dual occupancy in the absence of a consideration of the removal of the Section 173 agreement would prejudice the subsequent decision on the Section 173 variation or removal.

Also, the inclusion of a condition on any permit granted for this dual occupancy which would say that the development could not proceed until the Section 173 agreement were removed, might be said to represent or effect an amendment to the earlier planning permissions granted for the land. Is there a change of circumstances then to warrant such an alteration of that earlier permission? It was Mr Connor's submission that the change of circumstances was that the house on 28A had been constructed. This of course is only relevant if the purpose of the restriction is solely to guarantee its construction. As earlier noted this is not clear. Mr Tweedie said that there would otherwise be no change of circumstances. It is my view, however, that if there is any change of circumstances it is that the Responsible Authority have undertaken a new urban character study for this locality - which would recommend in favour of the retention of the existing dwelling and garden rather than the construction of these two dwellings, which are not reflective of the valued neighbourhood character."

27. I propose to make an order giving effect to my decision.