With respect to permit application no P8268, the responsible authority's decision to refuse the grant of a permit is set aside.

A permit is granted for the construction of 23 dwellings in accordance with the endorsed plans at 6-12 Pascoe Street Westmeadows.

1 Before the development permitted by this permit commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans identified as Drawing No 0390-TP01 (marked Revision A dated November 2002), Drawing Nos. 0390-TP02 to 0390-TP08 inclusive (all marked Revision C dated December 2003), but modified to show:

(a) The rear courtyard to dwellings 6, 7, 8 and 9 increased to provide for an area of 25 square metres of open space that meets Standard B29 in clause 55 of the planning scheme.

(b) The provision of not less than 11 "visitor" car spaces generally as shown on No. 0390-TP03 Revision D.

(c) A note must be included on the plans stating that the existing kerb and channelling will be re-instated and redundant vehicle crossings are to be removed.

(e) Measures to prevent direct views from the property to the south to the private courtyards of dwellings 1, 14 and 15.

(f) Engineering plans showing a properly prepared design with computations for:

(i) The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including the use of an on-site detention system if required.

(ii) The drainage works necessary to connect the subject land to the Council nominated point of discharge.

(iii) Full construction details of the extension to Black Street including the intersection treatments with Pascoe Street and internal roadways. The pavement and intersections must be designed to accommodate garbage collection vehicles.

2 That part of Black Street that is adjacent to the land's north boundary and any intersection treatment works required at Pascoe Street shown on the approved engineering plans under condition 1(f) must be fully constructed to the satisfaction of the Responsible Authority at the full cost of the developer prior to the occupation of the dwellings allowed by this permit unless otherwise agreed by the Responsible Authority.

3 Before the dwellings are occupied, arrangements must be made for the collection of garbage and recycled materials, to the satisfaction of the Responsible Authority.

4 Each dwelling must be designed to achieve an energy rating of at least 4 stars using the Sustainable Energy Authority of Victoria First Rate System or equivalent.

5 The development shown on the endorsed. plans or described in the endorsed documents must not be altered or modified except with the written consent of the Responsible Authority.

6 The development permitted by this permit must not be commenced until a detailed landscaping plan to the satisfaction of the Responsible Authority is submitted to and approved by the Responsible Authority.

(a) Details of planting within the whole of the site.

(b) The identification of existing vegetation (which is not intended to be removed), and nomination of vegetation for removal throughout the site.

(d) A schedule of all proposed trees, shrubs and ground cover, which includes the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified.

(e) Location and details of paving, steps, retaining walls, fence design details and other landscape works including cut and fill.

An endorsed copy of the plan must form part of this permit

7 Before the dwellings are occupied, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority.

8 The owner must enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system. (Melbourne Water Condition)

9 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses. (Melbourne Water Condition)

10 Any vehicular and or pedestrian access must be designed and constructed to comply with the following safety criteria associated with the applicable flood level. (A) Depth of flow does not exceed 0.35 m; (B) Velocity of flow does not exceed 1.5 m/s; (C) The Depth x Velocity product does not exceed 0.35 sq.m/s. (Melbourne Water Condition)

11 Any new garage, carport or vehicle parking area must be constructed with finished floor or surface levels a minimum of 300mm above the applicable flood level. (Melbourne Water Condition)

12 Any earthworks must be done such that the volume of cutting within the floodplain is equivalent or greater than the volume of filling. Prior to the commencement of works, volume calculations must be submitted to Melbourne Water demonstrating that the volume of filling does not exceed the volume of cutting. (Melbourne Water Condition)

13 Prior to commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council has considered that it is not feasible to connect to the local drainage system. (Melbourne Water Condition)

14 Finished floor levels must be a minimum of 600mm above the applicable flood level. (Melbourne Water Condition)

15 Any new fences must be of an open style of construction to allow for the passage of floodwaters/overland flow. (Melbourne Water Condition)

16 At least 14 days prior to the commencement of construction, a Site Management Plan, detailing pollution and sediment control measures, must be submitted to Melbourne Water and Council. (Melbourne Water Condition).

17 The landscape areas shown on the endorsed plans must be planted and maintained to the satisfaction of the Responsible Authority. Maintenance must include the removal of weeds and the replacement of any dead plants in accordance with the endorsed landscape planting schedule.

18 The walls of the development on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

19 Areas set aside for the parking of vehicles together with the aisles and access lanes must be properly formed to such levels that they can be utilised in accordance with the endorsed plans and must be drained and provided with an all weather seal coat. The areas must be constructed, drained and provided and maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

20 Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

21 Vehicle access to and from the subject land from any roadway or service lane must be by way of a vehicle crossing constructed in accordance with Councils Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossings. The location, design and construction of the vehicle crossings must be approved by the Responsible Authority.

22 Any existing unused vehicle crossings not required as part of the development hereby permitted must be removed and replaced with kerb and channel, footpath and nature strip to the satisfaction of the Responsible Authority.

23 The whole of the subject land including any landscaped and paved areas must be graded and drained to the satisfaction of the Responsible Authority so as to prevent the discharge of stormwater from the subject land across any road or footpath or onto adjoining land.

24 This permit will expire if one of the following circumstances applies:

(a) The development and use is/are not commenced within two years of the date of this permit.

(b) The development is not completed within two years of the date of commencement.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

Mr Hoctor appeared for N and C Glover, M and R Preston, T and V Johnston, D White, L Robertshawe, G Maughan, T Lojko, G and L Paslowski, G Hodgson, L Deutscher, G and L Prow, M and J Pallet, J Widdison, R and M Cannatella and M Palone.

Ms L Deutscher; Mr T and Mrs V Johnston; Ms T Lojko; Mr G Hodgson; Mr and Mrs Glover; Mr G Prow; Mr G Widdison and Mr M and Mrs J Pallett.

Ms Vaszolyi and Ms M Taube appeared for the Moonee Ponds Creek Co-ordinating Committee Inc.

1 This was an application under s 79 of the Planning and Environment Act 1987 against the Hume City Council's failure to grant a permit within the prescribed time with respect to permit application no. P8268. The permit application, as submitted to the council, sought permission to develop 24 dwellings on land at 6-12 Pascoe Street, Westmeadows.

2 The permit application was lodged with the council on 13 December 2002. After the application was received, the council officers wrote to the applicant requesting further information. In addition, they advised the applicant of concerns with the design and indicated that they would not support the proposal. Before notice of the application was given, the applicant agreed to make some changes to the plans and requested that the council direct that notice of the application be given.

3 On the 6 June 2003 the council required notice of the permit application to be given and in response, received 70 objections. The grounds of objection were summarised as follows by Mr Evans in the council's submission:

* The proposal is out of character with surrounds.

* Two storey element of development inappropriate.

4 The council also referred the permit application to Melbourne Water and the Moonee Ponds Creek Co-ordinating Committee Inc [MPCCC]. By letter dated 14 April 2003 Melbourne Water responded by stating that it did not object to the proposal subject to conditions being imposed on the permit. By letter dated 13 June 2003 the MPCCC advised that it objected to the proposal expressing concerns about several aspects of the design and requested that several amendments be made to the scheme.

5 On the 11 September 2003, the application for review was filed with the tribunal against the council's failure to grant a permit within the prescribed time.

6 On the 22 September 2003, the council made its decision to refuse the permit application on the following grounds:

1. The proposal constitutes an overdevelopment of the site.

2. The proposal fails to take advantage of the northern orientation.

3. The proposal fails to respect the neighbourhood character.

4. The proposal fails to meet the provisions of Clause 55, in particular, Standards B1, B2, B10, B11, B22, B23, B29 and B31.

7 At the hearing Mr Southall QC and Mr Evans tabled and spoke to written submissions whilst the representatives of the MPCCC, Mr Hoctor and a number of respondents represented by Mr Hoctor made oral submissions. In addition I was presented with an array of other material to assist my consideration of the proposal. This material included plans, maps, diagrams, photographs of the subject land and surrounding area as well as samples of external materials and colours proposed for the dwellings.

8 Mr Southall also called expert evidence from Mr P Dalton, a town planner, Mr S Green a landscape architect and Mr N Sideridis, a traffic engineer. Mr Evans and the respondent objectors were given the opportunity to question these witnesses.

9 At the commencement of the hearing the MPCCC and a number of residents who had not filed objections or statements of grounds [Mr Widdison, Mr Palone and Mr and Mrs Cannatella] applied to be joined as parties to the proceeding. Mr Southall, Mr Evans and the other respondent objectors offered no objection to this. I allowed the MPCCC and the residents to be joined under s 60 of the Victorian Civil and Administrative Tribunal Act 1998.

10 Mr Southall applied to amend the permit application by changing the name of the applicant to Lindstrand Pty Ltd and by substituting amended plans. Before I considered these amendments to the permit application, Mr Johnston played and gave a narration a video showing the subject land and surrounding. In addition Mr Southall called Mr Camenzulli, the project architect to explain the changes to the plans. Mr Evans and the other respondents offered no objection to the amendments requested by Mr Southall. I allowed the amendments under cl. 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

11 I also record that I have inspected the subject land and surrounding area on 2 occasions, before and after the hearing.

12 The subject land is located on the south-east corner of Pascoe Street and Black Street Westmeadows. It comprises 2 adjoining lots which, in combination, create a rectangular shaped redevelopment site with a frontage of 80.46 metres, a depth of 100.58 metres and an overall area of about 8092 square metres. The land appears to be relatively flat, however it fall moderately by about 2.5 metres from its Pascoe Street frontage to its rear north-east corner. The land is not affected by easements or covenants.

13 Each of the 2 lots that comprise the subject land is occupied by a detached dwelling set within relatively generous front and rear garden spaces. The dwelling at 6-8 Pascoe Street is double storey in height whilst the dwelling at 10-12 Pascoe Street is single storey. Both dwellings appear to date from about the 1970's-80's and they are not remarkable in terms of their appearance or design. The garden areas support a number of trees including a stand of mature trees along the land's Black Street frontage and several trees within the setback to Pascoe Street.

14 Contextually the subject land is located at the south-east edge of an established residential area with surrounding properties to the north, south, and east used and developed for residential purposes. The land has a direct abuttal with 1 residential property located to the south which is occupied by a single storey "attached" dwelling that formed part of a 4 unit development. Essentially the north side of this dwelling together with its open spaces to the side and rear exist directly adjacent to the subject land.

15 This abutting property to the south is not as deep as the subject land and, as such, the balance of the subject land's southern side boundary adjoins part of the open space corridor that runs along the Moonee Ponds Creek. The Moonee Ponds Creek curved alignment varies, however, it runs roughly parallel to the subject land's rear boundary. The space between the bank and subject land's boundaries comprises land that that is reserved for public open space. The open space is not well developed with parts of it overgrown with plants regarded as noxious weeds.

16 Properties directly to the west of the subject land front onto that section of Pascoe Street directly south of Black Street. These properties are much smaller than either lot comprising the subject land, each having an area of about 1000 square metres. They are occupied by single storey detached dwellings well setback from the frontage and within established gardens.

17 Properties to the north, beyond the Black Street, mainly comprise single storey detached houses of various styles constructed in both brick and weatherboard. Dwellings in the wider area are mainly from the post World War 2 period, with examples of dwellings constructed during the course of a number of decades being found. As is the case in most residential areas, there is also a sprinkling of double storey dwellings and unit developments within the neighbourhood.

18 Pascoe Street is a local residential street that extends in a southward direction from Raleigh Street and then ends in a "T" shaped court layout at its southern end. Black Street is constructed to a residential local street standard to the west of Pascoe Street, however, it remains as an un-constructed "grassed" road reserve to the east adjacent to the subject land.

19 Pascoe Street and the constructed section of Black Street create a "T" intersection. The existing intersection treatment has a small outstand that creates a quasi curved intersection to facilitate southbound vehicle movements from Pascoe Street into Black Street and vice versa. Vehicles travelling north from the southern section of Pascoe Street are required to "give way" to other vehicles at the intersection.

20 Notable features of the neighbourhood are the relatively wide grassed verges that exist between property frontages and the constructed road pavement. There are no footpaths. In most cases these grassed verges flow into the front gardens of the adjacent residential properties creating a sense of substantial front setbacks and large gardens in front of dwellings.

21 The proposal, as amended, involves the construction of 23 dwellings on the land with 2 of these being single storey and the remainder double storey. The existing dwellings and vegetation are to be removed.

22 The site layout is based around the construction of Black Street, east of Pascoe Street, and the creation of a new "loop" road. The loop road extends through the subject land and connects to the east side of Pascoe Street south of Black Street. The proposed proposed dwellings will front onto either the newly constructed section of Black Street, the internal loop road or the east side of Pascoe Street. I understand that the applicant is willing to construct the internal road to a standard, to council's satisfaction, that would enable public and garbage vehicle access.

23 It is proposed that 5 dwellings [units 1-5] would front Pascoe Street with the northernmost and southernmost being single storey in height and the 3 middle dwellings being double storey. Four double storey dwellings [units 6-9 are to front onto Black Street with the other dwellings fronting the internal road. Three dwellings [units 21, 22 and 23] have been oriented to front onto the internal road and to address the open space adjacent to the creek. The design style is contemporary with materials comprising a mix of brick, render, timber and metal.

24 The double storey dwellings are designed to have main living areas, kitchen, 1 bedroom/study and a single car garage at ground level. The first floor level comprises 2 bedrooms and a bathroom. The dwellings fronting Pascoe Street have a minimum setback of about 7.4 metres from the frontage whilst the dwellings fronting Black Street and internal road have frontage setbacks varying between 4 and 8.3 metres.

25 Each dwelling is provided with open space in the form of a front garden space and rear secluded courtyard. Open spaces are to be landscaped in accordance with the landscaping theme shown on the plan prepared by Mr Green.

26 Each dwelling will have access to 2 on site car spaces, 1 within the garage with the opportunity to park a second car in tandem. Five "visitor" car spaces were shown on the amended plans substituted at the commencement of the hearing. However, on hearing the various submissions presented by objectors and discussion during the hearing, Mr Southall indicated that up to 11 "visitor" spaces could be provided on the land. The layout was shown on a plan 9 No. 0390-TP03 Revision D) tabled by Mr Southall on the 13 February.

27 Pursuant to the Hume Planning Scheme, the subject land is located within the Residential 1 zone [clause 32.01]. The purpose of the Residential 1 zone is:

To implement the State Planning Policy Framework and 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.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

28 "Dwelling" is an as of right or no permit required use within the zone, however, under clause 32.01-4, a permit is required to construct more than 1 dwelling on a lot. The relevant decision guidelines require consideration be given to, amongst other things, the provisions of the State Planning Policy Framework [SPPF], the Local Planning Policy Framework [LPPF], the purpose of the zone, orderly planning and the impact on amenity. Applications must also be considered against the provisions of clause 55 and compliance must be achieved with respect to all the objectives set out in that clause.

30 In relation to planning policy, there are a raft of policies, objectives and strategies within the scheme that are in some way relevant to the consideration of the proposal. The SPPF sets out general policies for planning in Victoria, with those relating to Settlement, Housing and Design and Built Form relevant to the consideration of this proposal. The general thrust of these policies, at clauses 14 and 16, is to encourage the consolidation of existing urban areas to make better use of infrastructure and to provide for a wider variety of housing that better meets the needs of the community. Planning policy also calls for medium density housing which is designed to be respectful of the character of established neighbourhoods. The policy for Design and Built Form at clause 19.03 encourages development that achieves architectural and urban design outcomes that make a positive contribution to neighbourhood character and enhances the public realm. The policies at clause 15.01[Protection of catchments, waterways and groundwater] and clause 15.10 [Open space] are also relevant to the consideration of the matters pertaining to the proposed development's relationship with the creek and open space.

31 By and large the relevant matters to be considered under the LPPF were set out in some detail in Mr Evans' submission and Mr Dalton's report. I do not propose to set out the details of all of the policies in these reasons as to do so would lengthen them unnecessarily.

32 In relation to the Municipal Strategic Statement [MSS], I note that the land is located within the Greenvale, Attwood and Westmeadows neighbourhood. The objectives for this neighbourhood, as set out at clause 21.03-5 are:

To continue to plan for Greenvale, Attwood and Westmeadows as high quality urban environments with convenient access to a range of social and physical infrastructure and services that area linked by attractive open space networks and streetscapes.

To protect the open, rural character of the area by limiting new urban development to designated areas, and by protecting and maintaining the significant heritage and environmental features of the area.

33 I will refer to the various strategies set out at clause 21.03-5 as appropriate later in these reasons.

34 Mr Evans and Mr Dalton also referred the Metropolitan Strategy "Melbourne 2030". It is also relevant to consider the proposal against Melbourne 2030 which, as the tribunal found in O'Connell Street Developments Pty Ltd v Yarra City Council and Ors [2003] VCAT 448 is "a final Strategy adopted by the Minister which the tribunal may consider and if the circumstances so require, must consider under Section 60(1)(b)(ii)".

35 Having set out the background to this matter including the details of the subject land, the proposal and the planning scheme controls, I now turn to the consideration of the merits of the proposal as amended.

36 The parties raised many issues during the course of the hearing with most of the objectors sharing common concerns. In this document, I do not propose to recite all that was said during the hearing, rather, I will set out my findings on the various issues raised having regard to the comprehensive submissions and evidence presented.

37 After having considered the matters raised in the submissions, the details of the proposal and the relevant provisions in the planning scheme and legislation, it seems to me that the various matters raised fall within the following key issues:

1 Is the subject land a suitable candidate site for medium density housing?

2. Is the redevelopment of the land for medium density housing supported by the purpose of the zone and planning policy?

3. Has the proposed development been designed to be respectful of neighbourhood character?

4 Will the proposed development have unreasonable detrimental impacts on the amenity of adjoining properties and the surrounding area generally?

Is the subject land a suitable candidate site for medium density housing?

38 It seems to me that the starting point in considering the merits of this proposal is to assess the suitability of the subject land for redevelopment.

39 On this point, I note that the council's position is not that, as a matter of principle, the land is unsuitable for medium density housing. Based on the submissions presented by Mr Evans', it seems that the council's difficulties with the proposal arise from the specifics of the design, not the notion of the land being redeveloped for medium density housing.

40 I also note that a number of objectors did not say that the land cannot or should not be redeveloped to accommodate more than the currently existing 2 dwellings. For example, it was submitted that a subdivision of the land into a number of suburban sized lots each with the capacity to accommodate a dwelling would be a more appropriate response when consideration is given to the character of the neighbourhood.

41 On reviewing the attributes of the subject land, it is very clear to me that it presents a substantial redevelopment opportunity within an established urban area. In particular, the land is regular in shape, has 2 long street frontages and a substantial overall area; the 2 existing dwellings are not significant or remarkable in terms of their design or appearance and they can be demolished; there was no evidence presented to support the view that existing vegetation is remarkable or significant and the land is serviced with all infrastructure services available. The land is also relatively flat and there are no awkward or difficult easements to contend with nor are there any covenants to consider. The availability of an undeveloped road reserve also presents an opportunity that favours the land's redevelopment potential.

42 All of these factors support the contention that the land presents an opportunity for more intense development.

43 It was submitted that the land's potential to be redeveloped is constrained by the potential for flooding. The evidence before me does not suggest that this is so.

44 First, the land is not covered by one of the planning scheme's flooding controls, such as the Urban Floodway Zone or Land Subject to Inundation Overlay.

45 Second, the strategies at clause 21.03-5 of the MSS include the identification of land with flood and drainage constraints, however, there was nothing in the council's submission to indicate that it is of the view that flooding is a concern in this case.

46 Third, I note that the proposal was referred to Melbourne Water and that this authority did not object to the grant of a permit. In its letter to the council, Melbourne Water advised that the applicable flood level for the property is RL 69.6 AHD. The plans show that the low point of the land, the north-east corner, is at RL 70.66 which about 1 metre above the flood level. Further, the floor level of all the proposed dwellings is well above this. Although Melbourne Water's position is subject to conditions, the applicant has not resisted any of these nor was there any evidence presented to show that they cannot be complied with.

47 Based on this evidence, I am unable to find that the land's potential for flooding would constrain its potential to be redeveloped as proposed.

48 In relation to drainage infrastructure in the area, Mr Evans advised that the proposal was referred to the council's engineering department for assessment. The council's engineers did not conclude that the land should not be redeveloped, rather, it was indicated that some upgrading of infrastructure at the applicant's expense might need to occur. This suggests that any deficiencies in the ability for existing drainage infrastructure to cope with the additional demand generated by the proposal are not insurmountable.

49 It was also submitted that the land's redevelopment potential might be limited by heritage constraints. Mr Hodgson presented a detailed submission setting out the history of the Westmeadows area (the original Broadmeadows) which is one of Victoria's oldest settlements dating back to the mid 19th century. A number of the older buildings still exist and are depicted in the "Hume City Heritage Study: former Broadmeadows and Environs" 2000, a copy of which was tabled by Mr Evans.

50 Whilst it is clear that a number of buildings of heritage value exist in the Westmeadows area, I agree with Mr Dalton's view that these are a considerable distance from the subject land and too remote to be affected by the proposal. There are no properties affected by the heritage overlay or identified as being of individual significance in the study in close proximity to the subject land. The context of many of the heritage buildings has already altered by nearby mid to late 20th century development. I am unable to find that the redevelopment of the subject land would affect the heritage of Westmeadows.

51 When consideration is given to the land's attributes as a whole, I am of the view that it clearly has the potential to be redeveloped for medium density housing.

Is the redevelopment of the land for medium density housing supported by the purpose of the zone and planning policy?

52 The purpose of the Residential 1 Zone and the planning scheme's decision guidelines require consideration to be given to the provisions of the policy frameworks.

53 On reviewing the SPPF, it seems clear to me that the policies at clauses 14.01 and 16.02 provide substantial support for the redevelopment of the subject land for well designed medium density housing. It is a large site and only supports 2 dwellings. The land is an under-utilised resource located within an established urban area where all infrastructure services are available.

54 As a general proposition, the SPPF policies support the redevelopment of a parcel of land like this for housing given that it adds to the diversity and "choice" of housing as well as making more effective and efficient use of urban infrastructure.

55 The council's own MSS also lends support to this proposal.

56 At clause 21.01-5, the MSS recognises that the average household is projected to decrease over time and that one of the challenges for council is "to increase the range of housing types available to meet the changing accommodation and lifestyle needs of the community." It also acknowledges that there is a "considerable lack of rental housing_"_ in the municipality which minimises "choice" and that by comparison to inner to middle ring municipalities, "the amount of medium density development and site redevelopment is considerably less".

57 In response to this, the broad planning objectives in the vision for the municipality at clause 21.02-4 include:

* [providing] access to a range and quality of housing opportunities that meet the varied needs of existing and future residents.

58 At clause 21.03-5, the MSS recognises that "limited potential exists for new urban residential development beyond land that has already been zoned for this purpose" within the Greenvale, Attwood and Westmeadows neighbourhood. The MSS goes on to say that:

Residential environments in the neighbourhood area of high quality and offer diversity in lot size. The choice in housing size and tenure, and the availability of alternative housing however, is poor. [my emphasis]

Contain new urban development to existing and future residential designated areas shown on the Greenvale, Attwood and Westmeadows Structure Plan. [my emphasis]

60 The MSS goes on to say that the Residential 1 Zone is applied to existing, infill and future urban residential areas and the subject land and surrounding residential area has been included within this zone.

61 Based on the above, it seems to me that the MSS is clearly calling for new development to be contained on land that is either already zoned or designated for urban purposes. The subject land is within such a zone.

62 Further, there is an acknowledgment within the MSS that there are deficiencies in the existing housing stock, in terms of its ability to meet future needs and to provide sufficient choice, that need to be addressed. The clear objective of the MSS is to provide for a range of housing opportunities to meet the needs of existing and future residents. In seeking to achieve these outcomes, it is inevitable that housing forms that are different to what already exists, specifically in terms of size, type and density, will need to be provided. The policies in the SPPF and the MSS are not calling for more of the same or the status quo to be maintained in terms of the housing that is needed or to be provided.

63 In relation to the area within which the subject land lies, there is nothing in the scheme's policies and strategies that leads me to the view that the development comprised of more conventional suburban 600 - 800 metre lots with 1 dwelling on each lot is what is being called for.

64 The purpose of the Residential 1 Zone is not limited to providing to providing for single detached dwellings on the quarter acre block. Rather the purpose of the zone includes providing for a variety of dwellings that meet the needs of diverse households that we have within the community and, specifically, at a range of densities.

65 Although the policies and strategies within the SPPF, MSS and Melbourne 2030 encourage higher density development near and around public transport and activity centres, this does not mean that policy discourages suitable land within residential hinterland areas that may not be within walking distance of public transport or local shops from being redeveloped for medium density housing. On this point I refer to the tribunal's comments in Sinn v Moira SC [2004] VCAT 75 (29 January 2004) when it said:

The site is not immediately proximate to the town centre or business areas shown on the Cobram Development Options Plan included in Clause 22.01, although there is a small shopping precinct to the west (including a larger two storey building). That does not exclude the subject site from consideration for medium density housing as the Residential 1 Zone encourages a diversity of dwelling types within residential areas.

66 It is desirable for housing to be located in close proximity to such services. However, arresting urban sprawl, making effective and efficient use of existing infrastructure as well as providing communities with more "choice" in terms of the housing options available are also important outcomes to be achieved.

67 Whilst Mr Evans questioned aspects of the design, I think that it is significant he did not express concern about the density of the proposal per se. If there was argument in favour of fewer dwellings, this was based on design factors, not density. It is not difficult to see why given that the redevelopment of scarce urban resources such as this land in a more intensive way is, as a matter of principle, consistent with both state and local policy. This is a factor that weighs significantly in favour of the grant of a permit.

68 Whilst still on the issue of policy, in light of matters raised in submissions by some objectors, I consider it necessary to say something about concerns that were raised in relation to the possibility that some of the proposed dwellings could become rental housing. Concerns were raised that persons who rent would not integrate at a social level with other residents and that they would bring with them a range of problems. One objector went as far as saying that the proposed development would create a "social disaster".

69 On this issue, it is necessary for me to recite the comments of the former Administrative Appeals Tribunal in L and A Gugliotti and Others v City of Preston [Appeal No. P88/0782 2AATR 97] when similar concerns were raised by objectors. In Gugliotti, the tribunal made a number of statements which, in my view, represent an appropriate response to the concerns raised by some objectors in this case. In particular the tribunal stated:

There are several observations that should be made regarding the circumstances of this case and the arguments advanced by Mr Stewart.

First, as the Tribunal has been at pains to emphasize, strategic objectives for the metropolitan area are directed specifically towards the diversification of dwelling stock including the erection of units.

Second, the Planning Scheme draws no distinction between rental and owner-occupied accommodation. The argument that such distinction ought to be drawn is discriminatory and suggests a form of social apartheid based on economic standing which should be abhorrent in today's society.

Third, there is no empirical evidence (either in this appeal or any other in the Tribunal's experience) which could lead to the conclusion that occupiers of flats, be they owners or tenants, are any more prone to anti-social, illegal, noisy or insensitive behaviour than any other sector of the community.

Finally, the stated intention of the Applicant is to strata-subdivide the units. Therefore, they will not be occupied by "itinerants" in the sense that Mr Stewart used the word. Faced with that argument, Mr Stewart contended that even if the units were strata-subdivided, they could still be let. That contention, however, is equally applicable to any detached dwelling in Sturdee Street which may be tenanted without the need for planning permission. For reasons previously given, the Tribunal regards this argument as both discriminatory and fallacious.

It has long been held by various divisions of this Tribunal that the mere perception of loss of amenity by objectors is insufficient reason to deny a permit. There must be a real and genuine prospect that the apprehensions expressed in objections are more likely than not to eventuate. In the present circumstances, the basis for the objections stems from a fear that the units will be tenanted by a particular social class, and those tenants will behave badly. There is however, not one shred of credible evidence to support either claim.

70 I agree with the above sentiments. There is nothing in the planning scheme to suggest that there is a difference between the provision of dwellings that are to be owner occupied or made available as part of the rental housing stock. Rather, I would have thought that the provision of housing that could add to the rental stock available would go some way to responding to one of the issues raised in the council's MSS.

71 In my view, there is support for the redevelopment of the subject land for medium density housing in both the purpose of the zone and policy. Under the scheme's policies and Melbourne 2030, it is clear that virtually all parts of the existing urban area will need to make some contribution towards the achievement of urban consolidation objectives where appropriate opportunities arise. More intense development is directed towards locations such as within and around activity centres, however, increased housing is also required within existing residential hinterland areas. In circumstances where urban expansion needs to be contained, it is inevitable that there will be a need to locate appropriately designed medium density housing within existing residential hinterland areas to make efficient use of existing urban land and resources.

Has the proposed development been designed to be respectful of neighbourhood character?

72 Although the purpose of the zone and planning policy would, in principle, support the redevelopment of the subject land for medium density housing, the planning scheme's provisions do not support this form of development at all cost. In particular, a consistent theme running through the various layers of policy in the planning scheme is that development be designed in a manner that is "respectful" of neighbourhood character. This is also reflected in the purpose of the zone and a requirement that must be met having regard to the objectives at clause 55.02-1 of the planning scheme.

The proposed development is generally considered acceptable in terms of neighbourhood character. However, dwellings 2, 3 and 4 are 'boxy' in light of the predominant single storey forms that characterise Pascoe Street. These dwellings sit uncomfortably within the streetscape, are bulky and do not respect the single storey form that characterises the area.

74 Mr Evans went on to say that when consideration is given to the Neighbourhood Character Study [Westmeadows 1 precinct], that the 3 double storey dwellings fronting Pascoe Street are not reflective of the form of surrounding development and that "the double storey bulk, limited setback of the first floor and lack of articulation interrupt the rhythm of the streetscape."

75 Most of the objectors also submitted that the proposed development is not respectful of neighbourhood character. In particular, concerns were expressed about the density of development which Mr Hodgson described as presenting a "claustrophobic" or "squashed" environment that is at odds with the feeling of openness and spaciousness that currently exists; the incompatibility of the double storey height of the proposed dwellings within a predominantly single storey area; the contemporary nature of the architecture which was described by Mr Hoctor as being "boxy" and "garish" as well as concerns about the adequacy of landscaping opportunities.

76 Mr Dalton's evidence was that on his examination of the neighbourhood, the area contains a broad range of architectural styles rather than a consistent theme. He expressed the view that this provides "flexibility" in preparing a suitable design response. On the issue of height and bulk, Mr Dalton disagreed with the views of the council and the objectors. Mr Dalton expressed the view that the design avoids the creation of excessive building bulk as the first floor levels of the dwellings are less than half the area of the ground floor level, articulated and well setback from boundaries.

77 In considering this issue, it seems to me that the first point to be made is that the notion of requiring new development to be "respectful" of neighbourhood character does not imply that it must be the same as what already exists. This is clearly articulated in the practice note titled "Understanding Neighbourhood Character", produced by the Department of Infrastructure dated December 2001, which states:

"Respecting character does not mean preventing change. The neighbourhood character standard [in clause 55] is not intended to result in the replication of existing building stock or stop change.........

Respecting neighbourhood character does not mean limiting the scope of design interpretation and innovation, or mimicry or pattern book design. Instead it means designing the development to respond to the features and characteristics of the neighbourhood."

78 This view is also consistent with the approach that has been taken by the tribunal in cases involving new medium density housing within established residential areas. In Sinn v Moira SC the tribunal observed that:

However, Residential 1 Zone, the policies at Clauses 16 and 21.04 and Clauses 55 and 56 all emphasise the need for new development to respect neighbourhood character. That does not mean more of the same, nor does it preclude double storey dwellings, unit development or smaller lots.

79 In Iloray Pty Ltd v Darebin CC and Ors [2003] VCAT 692, the tribunal stated::

53. In considering this issue, the first point to be made is that the notion of development which is "respectful" of neighbourhood character does not imply that such development must be the same as what already exists. If policy, the purpose of the zone and the objectives of clause 55 were calling for the development that is more of the same, then they would say so. Rather, the notion of "respectful" development must embrace the need for change and diversity in the type of dwellings that are provided and an increase in the intensity of development in circumstances where this is encouraged by planning policy and the purpose of the zone.

80 The conclusion to be drawn from the above is that because development, in terms of its appearance and density, does not replicate what already exists, this does not necessarily mean that it is unacceptable from a neighbourhood character viewpoint. The task at hand is more complex and, as noted in the case of A_ustraland Holdings Pty Ltd v Boroondara CC_ (1997/47741 cited 21AATR 3) referred to by Mr Southall, requires a balance to be struck between competing policies, namely, those calling for urban consolidation and those that require neighbourhood character to be respected.

81 Turning to the consideration of the proposal, I think it relevant to note that the council's criticism of the proposal is mainly limited to the double storey dwellings along Pascoe Street. The objectors however, expressed concerns about the extent of double storey development proposed throughout the site.

82 I accept that most dwellings within the neighbourhood area single storey in height, however, I do not agree that this in itself makes double storey development unacceptable. As noted by the tribunal in Rendevski v City of Greater Geelong [1999] VCAT 1886:

What is alien, however, according to Council and the neighbours, is that this will be the first incidence of multi-unit dwellings at two storeys. Whilst there is some truth in this argument it is tantamount to prohibiting any two storey proposal because it represents the "first intrusion". Leaving aside the fact that this would not be the first two storey "intrusion" (either for a single home or multi unit), the Tribunal would be reluctant to reject what is a perfectly normal and acceptable form and height of development right throughout our urban areas, except if the neighbourhood characteristics were so pristine and important so as to make a two storey proposal unacceptable. In the Tribunal's opinion those circumstances are not evident within the neighbourhood around the subject site.

83 Like most residential areas, there is also a sprinkling of double storey dwellings in Pascoe Street and in other locations in the neighbourhood. Double storey development is part of the make up of most neighbourhoods and is part of this neighbourhood.

84 Interestingly, Mr Evans did not go as far as saying that there should be no double storey development fronting Pascoe Street, rather, he submitted that "a double storey design with a minimal first floor area would provide a more suitable outcome". However, the first floor components of the 3 dwellings fronting Pascoe Street are limited to 2 bedrooms and a bathroom. They are already modest or relatively `minimal' in size. I do not think there would be much benefit in reducing them to 1 bedroom as he suggested.

85 I consider Mr Evans criticisms of the extent of bulk presented by the 3 double storey dwellings fronting Pascoe Street to be unjustified. This is not a case that involves a long continuous mass of double storey terrace style housing. The first floor component of these dwellings is modest in size, articulated and well setback from the street at about 9 metres. Further, there are gaps in between the first floor elements.

86 I also note that the 2 dwellings at either end have been kept to single storey, thus providing a transition in height, particularly with the property to the south. The provision of 5 dwellings across a frontage of about 80 metres is not unreasonable nor will it be out of keeping with the rhythm of development along Pascoe Street. The front setback allows substantial opportunity for landscaping along the Pascoe Street frontage. In my view, this is a satisfactory response to the streetscape.

87 It is not surprising that the council has not expressed concern in its submission about the extent of double storey development elsewhere on the land. Essentially the upper levels of the other dwellings are modest in size. The dwellings have not been designed in a 'boxy' style, rather, there is a considerable degree of building articulation that is enhanced through the use of varied colours and materials. The design style is clearly contemporary, however, it is a relatively simple, uncomplicated and draws on various built form elements found in the area such as pitched roof forms, eaves and materials.

88 I note that the objectors expressed some concerns about the palette of materials and colours shown on the photomontages, however, the colours displayed on the materials panel provided by Mr Camenzuli were subdued and a better representation of what is proposed. I do not find the architecture and materials to be 'garish', rather, the design reflects a contemporary response to neighbourhood character. I agree with Mr Dalton's view that there is variation in design styles of buildings in the neighbourhood and I note that this is consistent with the Neighbourhood Character Study which acknowledges that that there is "an eclectic mix of buildings style ranging from early settlement of the area to recent development." In such a context it is difficult to see why buildings to be constructed in the early 21st century should not be allowed to be of an architectural style of the era when they are to be built. Other buildings from various decades reflecting the design style in vogue at the time they were built exist in the neighbourhood and these buildings will do nothing different. I find the design style to be acceptable.

89 In relation to landscaping, I am satisfied that Mr Green's concept plan provides satisfactory opportunity for landscaping both within the public and private spaces on the land.

90 It is clear that the proposed development is not the same as what already exists; however, the test to be met is not that new development replicate what exists or that the style of heritage buildings is copied. In this case, the proposal provides for a site layout that responds to the site's features and its context. Dwellings front streets. The site layout utilizes an existing road reserve and has dwellings with a direct outlook towards the creek. The upper level components have been kept to a modest size, they are not intrusive or bulky. A greater front setback has been provided to Pascoe Street which together with the wide verge grassed will maintain the feeling of spaciousness along the streetscape. Although a contemporary design style is being used, it incorporates elements of the dwellings stock found in the area. On closer scrutiny, the palette materials and colours are not inappropriate or loud. Adequate opportunity for landscaping is provided. In my view, these features fit in well with the preferred neighbourhood character statement for the area.

91 The subject land is a very large site. It is in an urban area, not rural. It is inevitable that its redevelopment will create a great deal of change. Even if redeveloped for conventional residential lots, there would be a great deal of change. However, when consideration is given to the site layout and design, I find that the proposal is acceptable having regard to neighbourhood character considerations.

Will the proposed development have unreasonable detrimental impacts on the amenity of adjoining properties and the surrounding area generally?

92 During the course of the hearing a number of specific amenity issues were raised by the parties. I set out my views with respect to the matters raised below.

93 One of the concerns raised in response to the original site layout was the intention to develop dwellings backing onto the creek reserve. The MPCCC had advised the council that a better outcome would be for the development to address or have a frontage to the creek reserve.

94 The proposal has been modified to provide 3 dwellings with a direct outlook towards the creek reserve with the proposed road providing better public access to the creek. The representatives of the MPCCC and council acknowledged that this is appropriate.

95 Although some objectors expressed concerns about opening up the creek frontage, current planning practice encourages development that facilitates a more responsive interface with waterways and their open spaces through development fronting such spaces. Further to this, Mr Evans conceded that the proposal now accords with standard B11 as the layout allows for the appropriate integration of the development with adjoining public open space.

96 The council and MPCCC submitted that the relationship between dwellings 17-20 also requires improvement to achieve a similar outcome. I was not persuaded that this is necessary given that opportunities for the surveillance of the open space adjacent to the creek are available from the upper level of dwellings. Further, it would compromise the seclusion and amenity of the rear private open space of these dwellings. I consider the solution put forward in the amended plans is acceptable and consistent with the aim of policy.

97 I note that the revised site layout results in the proposed internal road and public open space area at the north-east corner of the land providing a substantial distance between the creek banks and the proposed dwellings. By and large, most dwellings will be well over 20 metres from the creek bank, with the closest point being the interface with dwelling 17 which is marginally less than this. The MPCCC representative indicated that this is an acceptable distance.

98 Despite concerns raised by the MPCCC representatives in relation to the double storey height of the dwellings, when consideration is given to the modest size and space in between individual upper levels, the setback from the creek, the potential for landscaping and surveillance, I do not consider that the unreasonable bulk is presented to the creek.

99 When these factors are considered together with the intended landscape treatment including the removal of weeds, I consider that the proposal provides a satisfactory response to the land's abuttal to the creek and its open space.

100 The MPCCC have suggested conditions requiring different species to form part of the detailed landscaping plans for the site and that stormwater treatments be designed in accordance with best practice environmental guidelines. These matters can be dealt with as permit conditions.

101 A number of residents raised concerns about increased traffic in Pascoe Street and Black Street. Both these streets are classified as local streets with pavement widths of about 5.6 metres.

102 In his evidence, Mr Sideridis expressed the view that each dwelling within the proposed development could be expected to generate about 8 vehicle trips per day. This would equate to about 168 extra vehicle trips being generated from the subject land when the traffic generated by the existing dwellings is taken into account. Mr Sideridis went on to say that surveys carried out by the council in June 2000 showed that about 116 vehicles/day travelled in Pascoe Street between Raleigh Street to the north and Black Street.

103 Mr Sideridis expressed the view that with the introduction of the proposed development, this would increase traffic volumes to about 300 vehicles per day if all access were obtained via Pascoe Street. Assuming that about half the traffic would use Black Street, then the increase in Pascoe Street would be in the order of about 84 vehicle trips.

104 A number of the objectors took issue with the conclusions reached by Mr Sideridis, particularly given they had doubts about the accuracy of the council traffic counts and that no counts had been taken in Black Street. Mr Sideridis explained that counts had not been taken because on his observation, traffic volumes in both these streets are low and compatible with the results that arose from the council's survey.

105 In reviewing the submissions and evidence on this issue, it is inevitable that the proposal will result in increased traffic in both Pascoe Street and Black Street. However, when consideration is given to the attributes of this large parcel of land, the planning scheme's policies and the encouragement of more intense development, it is unrealistic to expect that there would be no potential for further development in this area and no increase in traffic.

106 I can appreciate the apprehensions that residents have when a development of this size and type is proposed. However, in overall terms, the level of additional traffic proposed is well within the design capacity of both Pascoe Street and Black Street. From a design viewpoint, both streets are capable of accommodating about 1000 vehicle trips each if the standards at clause 56 of the planning scheme are applied. If traffic associated with the subject land is equally divided, then based on the traffic counts taken by the council, the level of traffic in Pascoe Street and Black Street can be expected to rise by about 84 trips per day. This will be noticeable, but not excessively so. Whilst there can be conjecture as to whether the council's traffic counts are accurate, even if it is assumed that the existing traffic is double that recorded in the council survey, this still leaves a scenario where both streets would probably carry about 300 vehicle trips each on the basis of the additional traffic generated being divided equally between them. This is still a low traffic volume environment in a suburban context.

107 Some residents criticised Mr Sideridis' evidence because he had not taken his own traffic counts whilst Mr Johnston expressed some regret that he had not arranged for counts to be taken. Whilst this may be so, on inspecting the area, including one carried out during the Friday morning peak period, I am unable to form the view that the results of the surveys are significantly wrong. Rather, I observed low traffic volumes typical of a local residential street. I was unable to conclude that the counts relied on by both the council's traffic engineer and Mr Sideridis were inconsistent with what I observed.

108 Whilst there will be additional traffic, I agree with Mr Sideridis and the council's traffic engineer that the increase would clearly keep traffic levels to within the design capacity of both streets. From an amenity viewpoint, there will be a noticeable increase, however, the extent of the increase is not so great to be unreasonable when considered in the context of planning policy that calls for more intense development.

109 Despite the concerns about safety raised by objectors, I note that the council did not express any concern on this issue. Mr Sideridis explained that the construction of the east end of Black Street will require a modified intersection treatment, a view shared by the council's traffic engineer. This is a matter that can be resolved in the course of the preparation of engineering designs for the construction of Black Street.

110 Mr Hodgson suggested that the internal loop road might become a speedway. I do not accept this. If the council accepts responsibility for the internal road, then the design can incorporate measures to reduce the potential for high speed. If the road remains body corporate land, then it is private property and not accessible to the public at large. When consideration is given to the width of the road pavement and the short lengths of road, I consider that there is ample scope to ensure that it will not be used as feared by Mr Hodgson.

111 Other issues raised by the council's engineer and Mr Sideridis can be dealt with by conditions.

112 Overall I find the road layout and traffic impacts acceptable.

113 The proposal provides for 2 car parking spaces for each dwelling, 1 within a garage and the other in tandem. Mr Southall indicated that although 5 "visitor" spaces are provided, this could be increased to 11 as shown on the plan which he tabled on the 13 February 2004. Further, Mr Southall submitted that more kerbside parking would be available in the newly constructed section of Black Street.

114 The overall amount of parking to be provided on the land, as shown on the amended plans exceeds the requirements of clause 55, visitor spaces are distributed throughout the site and more parking could be provided in Black Street, east of Pascoe Street.

115 I note the concerns raised about tandem spaces in front of garages, however, this is not an unusual arrangement and has been accepted by the council in the past, including on the land to the south. Further, most garages have been designed to provide for some storage space in addition to that required to accommodate a car.

116 The objectors referred to other medium density developments in the area where residents and visitors park on grass verges. However the distinction to be drawn in this case is that unlike those examples, this proposal provides 11 spaces over and above the 2 spaces required for each dwelling. This equates to just under 1 space per dwellings, which is well above 1 space per 5 dwellings required by Clause 55. Further these spaces are provided on the subject land itself.

117 When consideration is given to the overall number of spaces to be provided, that 11 spaces are to be provided in the public areas of the land and the potential for more parking to be accommodated in the extension to Black Street, I find the overall parking provision acceptable.

118 Concerns were raised about garbage collection with potentially the need for bins associated with the proposed dwellings being left along Pascoe Street or within a large enclosure on the land. I agree that these outcomes would be undesirable.

119 The applicant has indicated that the internal loop road could be constructed to a standard to council's satisfaction. This would allow garbage trucks to move through the land and collect garbage bins in front of individual properties like they do elsewhere throughout the municipality. This would be an ideal arrangement.

120 Mr Evans indicated he had been instructed that council would be unwilling to take over the new internal road even if constructed to an appropriate standard, however he was unable to explain with conviction why the council would adopt such a position.

121 Councils all over Victoria, including the City of Hume, take over new roads created at subdivision as a matter of course. Although subdivision is not proposed as part of this application, it is likely to follow this process. If it achieves a better outcome for the community, I am at a loss to understand why the council would not take over this road if it were constructed to a standard to its satisfaction. This is particularly so in light of Mr Evans' submission that the internal road, in terms of width and layout can accommodate garbage trucks.

122 In any event even if the council does not accept the road, I agree with Mr Southall that other arrangements can be made with garbage collection contractors to enter the land for collection.

123 It was asserted that the proposed development would increase noise in the area. No evidence was presented to show how any increase in noise would be unreasonable having regard to the land's location within an urban area. On this point, I cite and express my agreement with the views of another division of the Tribunal in Potts v Glen Eira CC [2003] VCAT 1129 (1 September 2003) when it said:

"The potential for the generation of noise is not a reason to refuse this proposal. It is possible to have neighbours who indulge in frequent loud parties, but that can occur in relation to detached houses, just as well as in relation to medium density townhouses. The prospect of finding oneself in close proximity to neighbours who create noise nuisances of that sort is one of the risks one takes in living in an urban area. Of course, if the noise generation amounts to a nuisance there are other laws appropriate to deal with that sort of problem.........Children playing, people talking, motor mowers operating and the like are all part of the ordinary incidents of life in an urban situation. They are part of the give and take of urban life that neighbours are obliged to accept (unless the problems get to the stage of being nuisances against which the law provides protection)."

124 Potential for overlooking from the proposed development into the adjoining property to the south has been addressed by the use of high sill windows on the "Type 2" dwellings.

125 A concern was raised about the potential for overlooking from the property to the south into the secluded open spaces of dwellings 1, 14 and 15. This matter can be dealt with by permit conditions requiring an extension to the fence, a free standing trellis and/or landscaping.

126 Mr Pallett expressed concern about the garage wall to dwelling 1 extending beyond the line of the garage wall on his property. It does so by about 1.5 metres. It is not unusual for a garage wall to be located on a boundary. The length of the garage could be reduced, however, this would be at the expense of internal storage space. The extent to which the wall goes beyond that of the garage to the south is minor and not unreasonable.

127 I now turn to the last of the key issues, namely, whether satisfactory compliance has been achieved with clause 55. Some of the matters to be considered under clause 55, such as neighbourhood character, landscaping and parking and overlooking have already been covered in earlier sections of this decision and I do not propose to go over this ground again.

128 I now turn to other specific concerns raised by Mr Evans. Before doing so it is relevant that I note Mr Evans's concession that a number of the concerns originally identified by the council have been overcome in the amended plans. I agree that this is so. I set out my views on the other matters which the council does not consider acceptable below.

129 Mr Evans queried whether the open space for dwellings 1, 2 and 3 meets Standard B28. He submitted that the standard is not met because about 25 square metres with a minimum dimension of 3 metres is provided at the rear of the dwelling. Essentially he was arguing that the full 40 square metres at a minimum width of 3 metres must be provided to the side or rear of a dwelling for Standard B28 to be met. This is not correct.

130 Standard B28 requires that an overall area of 40 square metres of private open space be provided of which 25 square metres with a minimum dimension of 3 metres should be at the side or rear. This requirement has been complied with for dwellings 1, 2 and 3. This is the secluded component of the private open space required by the standard. The other areas of private open space include the front garden and other areas in the rear courtyard. All these areas easily add up to, and indeed exceed, the requirement for 40 square metres of private open space to be provided for each dwelling.

131 This is not to say that simply meeting the standard is always enough. But in this case, a variety of dwellings and open space layouts are provided. The open space for dwellings 1, 2 and 3 is well proportioned and accessible from a living room. In a development comprising many dwellings, it is not inappropriate to have some dwellings with open space areas towards the minimum amount. I am satisfied that the objective at clause 55.05-4 is met.

132 Mr Evans submitted that 11 of the 23 dwellings have poor northern orientation and as such, compliance is not achieved with Standard B10. I do not agree with this assessment.

133 Essentially, most dwellings have been oriented in a north-south direction. This is not inappropriate as it reduces the exposure to the impacts of west facing sun. As a matter of practicality, it is not always going to be possible to have every dwelling oriented in the ideal way. It is difficult to avoid some dwellings with south facing open space in a development of this size. However, what is important in this case is that these south facing open spaces have single storey walls to the north and their depth, generally achieves compliance with Standard B29. Dwellings 6-9 however, show marginal non-compliance.

134 Some small pockets of the rear open spaces may not achieve compliance with Standard B29, but most of it does. For example, if the rear open space to dwellings 14 - 20 is examined, an area of 35 square metres with a depth of 5 metres by 7 metres is provided. Given that the first floor is setback from the ground floor alignment, this area exceeds the requirement for 25 square metres of open space to be provided in a secluded location to the side or rear of the dwelling [see Standard B28] and meets Standard B29. In the case of dwellings 6-9, the provision of 25 square metre area that meets Standard B29 can be achieved by relatively minor changes that can be required as permit conditions.

135 I also note that there was no indication that windows will not receive adequate daylight and the design of virtually all the dwellings provides a north facing window to a main living area which, in some cases, is achieved via a central courtyard. I would not envisage much difficult in the 4 star energy rating being achieved and the applicant has accepted a condition to this effect. I find that the proposed dwellings have been designed in a satisfactory way having regard to energy efficiency principles.

136 Mr Evans submitted that the proposal does not provide sufficient variation dwelling types provided. In particular he criticised the proposal on the basis that "standard" deigns have been employed.

137 Standard B3 requires dwellings with different numbers of bedrooms and the provision of at least 1 single storey dwelling to be provided.

138 Although most dwellings technically have 3 bedrooms, the size of the third bedroom varies. In many cases, it comprises small area with no built in robe that more suitable for a study. Dwelling types 1 and 5 fit into this category. Further, 2 single storey dwellings are provided. I consider that the dwellings provide opportunities for many types of households and are acceptable.

139 Despite Mr Evans assertions, there was no evidence presented to show that the proposed dwellings are based on "off the shelf" designs "parachuted" down on this site. I am satisfied that the various dwelling modules shown by the architect are suitable for this site. For reasons set out earlier under the discussion on neighbourhood character, the design detail of the dwellings is acceptable.

140 The subject land is substantial in size, being much larger than surrounding properties. It has attributes that make it suitable for medium density housing. Planning policy and the purpose of the zone support its development for medium density housing.

141 I find that the proposal has been designed to be responsive to the site context and respectful of neighbourhood character. Interface issues with surrounding residential properties and the Moonee Ponds Creek have been handled in an acceptable way.

142 The proposal will bring about a great deal of change, something which is inevitable if sites like this are to be redeveloped in a manner that is supported by state and local policy. This change will result in greater level of activity in the area, however, on reviewing the impacts, they are within acceptable parameters.

143 Further, I find that the proposal achieves compliance with clause 55.

144 On considering the merits of the proposal, I find that a permit should be granted subject to conditions. I have settled the form of the conditions after having heard from the parties. In relation to the final landscape plan, the onus is with the council to consider and approve it. It may wish to consult with the MPCCC in this regard. In relation to stormwater treatments, these are to be to the satisfaction of the council and Melbourne Water who are responsible for their approval. Advisory notes do not form part of my order, however, the council may include them on the permit.