1. The decision of the responsible authority in relation to permit application no. WH/2009/102 is varied:
2. A permit is granted in relation to land at 2 Middleborough Road, East Burwood. The permit will allow the construction of a medium density development of 15 dwellings with semi-basement car park together with access to a road in Road Zone 1 generally in accordance with the Notice of Decision to Grant a Permit issued by Whitehorse City Council on 28 May 2010 but modified as follows:
   1. The following condition to be substituted for condition 1(a):
      • The notation of all windows, terraces and balconies to be screened in accordance with the provisions of Standard B22.

Construction of 2/3 storey apartment building including a semi-basement together with access to Middleborough Road which is in a Road Zone 1 category.

Application under Section 82 of the Planning and Environment Act 1987

Clauses 11, 15, 18, 21.01, 21.03, 21.05, 21.06, 22.03, 22.04, 55 and 65

Subject site is located on the eastern side of Middleborough Road some 40m north of the intersection with Highbury Road. Dimensions are 15.3m wide x 43.7m deep with a total area of some 665 sq.m. The site is currently occupied by a single weatherboard dwelling. Adjoining development is a medium density development of four individual single-storey dwellings in an L-shaped development which wraps around the north and east boundaries of the site. The southern boundary abuts a 3.6m wide gravel right-of-way.

The development is a contemporary apartment building with two levels of accommodation on top of a semi-basement. Ground floor provides six (6) single bedroom and one two (2) bedroom apartment. The upper floor includes seven (7) single bedroom and one two (2) bedroom apartments.

Site lies close to a small neighbourhood centre on the corner of Middleborough and Highbury Roads and is within walking distance of a larger centre on Burwood Highway some 450m to the north. Burwood Highway provides access to a major city tram route which complements bus services on Middleborough Road and Highbury Road.

The surrounding area contains a variety of dwelling stock consisting generally of single detached dwellings of the 1950s and 1960s periods, but with a number of small scale medium density developments including that at No 4 Middleborough Road. A new two-storey residential development is currently under construction on the north-west corner of Middleborough Road and Highbury Road.

I carried out an unaccompanied inspection on Tuesday 18 January.

Potts v Glen Eira CC [2003] VCAT 1129 (1 September 2003)

1. Resident objectors living at No. 4 Middleborough Road, immediately adjoining the subject land, object to the issue of a Notice of Decision to Grant a Permit by Whitehorse City Council. Issues raised by objectors focussed mainly on the protection of amenity together with suggestions that the physical structure of the carpark was inadequate to accommodate the number of cars required.

1. The general location of this site as described above means that it complies well with State and local policies which seek an increased variety and density of dwelling stock in areas well served by community facilities and public transport. This was not disputed by objectors.
2. I believe that the key issues for determination in this case are
   • Does the proposal respect neighbourhood character?
   • Will the proposal result in unreasonable impacts on the amenity of adjoining properties?
   • Are the carparking provisions adequate?
3. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Whitehorse Planning Scheme, I have decided that a permit should issue generally in accordance with the Council's decision.

1. Clauses 21.06 and 22.03 of the Whitehorse Planning Scheme set an overall strategy for residential development in the city. Areas are targeted for substantial change while others are within minimal or natural change areas. The review site is within an area designated as natural change. While substantial changes areas are intended to make significant contributions to increases in housing stock, areas of natural change should also provide for an increase in dwelling stock albeit at a more modest level.
2. Specific objectives of clause 21.06 include:
   • 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.
3. These are tempered by the complementary objectives of Clause 22.03 which place this site in a Garden Suburban Area 10. The objectives for this Precinct seek to encourage the retention of existing vegetation with the development design incorporating adequate space for new planting.
4. This is a very large area covering most of the land between Gardiner's Creek to the west, Springvale Road to the east, Highbury Road to the south and Canterbury Road to the north - an area of significantly varying topography and character. The description of existing character in that area identifies:

pockets of newer development where brick is constantly used and the dwellings are two-storey with prominent garages.

1. The development does add to the variety of dwelling stock in the general area and a two-storey built form is compatible with the general level of development in the surrounding area. The adjoining commercial development on the corner of Middleborough and Highbury Roads is two storey and built directly to the footpath while the development currently under construction on the west side of Middleborough Road is also two-storeys.
2. The building incorporates angled roof forms and articulated facades incorporating balconies. Presentation to the street will be of a two-storey building with low masonry fence. Maximum height above natural ground level will be 8.45 metres at the peak of the roof with a general overall height of 7.0 metres - a design response which is compatible with the overall neighbourhood character.
3. With a front setback of 5.0 metres from the street, the apartment building will provide a transition between the commercial buildings to the south, which are built to the footpath, and No. 4 to the north as well as incorporating space for four (4) canopy trees within the frontage. Extensive screening vegetation along the northern and eastern boundaries is also proposed.
4. Given these provisions, I find that the proposal will result in an acceptable outcome in relation to neighbourhood character.

Will the proposal result in unreasonable impacts on the amenity of adjoining properties?

1. The key issues identified by the objectors relate to the potential for overlooking of their dwelling which is the front dwelling at No. 4 Middleborough Road.
2. The secluded open space of No. 4 lies to the front of the dwelling and is faced by two west-facing windows from the main living area. The principal outlook from the nearest unit in the apartment block - Unit G1 - will be to a balcony in the front of the unit also facing west to Middleborough Road, which will be screened on its northern side to minimise any impact on No. 4. Unit 1 on the first floor also has a balcony which faces Middleborough Road and is thus not directly overlooking the adjoining property. Both balconies incorporate full height screens on their northern side to minimise any opportunity for overlooking into No.4. Long narrow windows in the main living area and bedroom on the northern elevation will be fully glazed to 1.7 metres with obscure glazing.
3. The combination of the screening described above and the 1.9 metre high timber fence and planting to be provided in the side setback between the new development and No. 4, will, in my view, ensure that there is no unreasonable overlooking of the secluded open space of the front dwelling of No. 4 Middleborough Road.
4. A 1.9 metre high fence is to be provided at ground floor level on the northern and eastern boundaries while each private terrace in the apartment building will be provided with timber screening and incorporate planter boxes on the north side of all terraces. Together these will effectively screen any habitable room windows in the north-facing ground floor units to ensure compliance with Standard B22 in relation to the bedrooms of No. 4. At first floor level all balconies are to be fully screened to 1.7 metres and habitable room windows glazed with obscure glass to the same height to ensure compliance with Standard B22.
5. At ground level to the rear, the main private terraces for Units G4 and G5 will face north to an open carport area and south to the rear of the commercial buildings on Highbury Road respectively with no off-site amenity impacts. At the upper level, the main balcony for Unit 1.4 will also face over the adjoining open carport area while bedroom windows facing east will be glazed with obscure glass.
6. At the rear the overall height of the apartment building will have reduced to 6.2 metres and there will be a setback of some 2.0 metres at ground level and 4.0 metres at the upper level from the boundary. Together with the planting of a screen of trees, this will provide an appropriate level of protection for the visual amenity of the adjoining property.
7. The objectors also raised issues of noise and the likelihood of people smoking on balconies as another potential loss of amenity. The issue of noise is dealt with comprehensively in the Potts case[2] which made it clear that noise is an issue faced by all residents in an urban environment and that there are other more relevant regulations for dealing with it. And the same principles apply to smoking.
8. The objectors also submitted that their view would be obstructed by the proposed development. It is well accepted in Tribunal decisions that there is no 'right to a view' although a planning scheme may make provision for views to be taken into account. The Whitehorse Planning Scheme makes no such provision.
9. Apart from the fact that the Whitehorse Planning Scheme makes no provision for consideration of views, the main living areas of the objectors' residence face west into their private open space and not to the south where the new building will be located. Accordingly, I do not accept that there will be any disruption to their views.

1. The objectors attempted to submit that the proposed basement carpark was inadequately designed in that the walls should be 600mm of concrete instead of 200mm as shown and that this would render the carpark incapable of containing the requisite number of cars. In support of their submissions they sought to table a one-page letter from a Mr Richard Guo, a structural engineer of T.D. & C. Pty Ltd, consulting engineers.
2. In ruling that the letter was inadmissible as it had not been circulated to give other parties an appropriate time to respond to its contents, I also ruled that the issue raised was not relevant as it was essentially a building matter to be resolved under the Building Act and Regulations if a permit was granted and a building permit sought for the development.
3. The car parking to be provided includes one space per dwelling and two visitor spaces which complies with the provisions of the planning scheme.
4. There were no objections from VicRoads as the main roads authority responsible for Middleborough Road, provided that conditions were applied to the permit and consequently I am satisfied that with the addition of these conditions, the parking and access arrangements are satisfactory.

1. I am satisfied that this development will provide a contribution to the housing strategies of Whitehorse City Council while ensuring that there is an acceptable level of amenity for adjoining properties in accordance with the provisions and policies of the planning scheme.
2. The notice of Decision to Grant a Permit by Whitehorse City Council effectively deals with the issues of concern except that there is a need to fully annotate the windows, terraces and balconies to demonstrate compliance with the provisions of clause 55 in terms of off-site impacts. I will order that the decision of the Responsible Authority be varied to accommodate a condition to that effect.

[1] I/we have considered all submissions presented by the parties although I/we do not recite all of the contents in these reasons.

[2] Potts v Glen Eira CC [2003] VCAT 1129 ( 1 September 2003)