1. Leave granted to amend the application by substituting the plans Sheets 02 to 06 and dated 20.7.11.
2. The decision of the Responsible Authority is set aside. A permit is to be granted. This permit allows for the development of three additional dwellings (two double storeys and one single storey) at the rear of the existing single dwelling at 88 Grandview Grove, Rosanna, and subject to the conditions contained in Appendix A.

Andrew Crack, Town Planner, Andrew Crack and Associates Pty Ltd

Three new dwellings at the rear of the existing single storey dwelling. The new dwellings are attached and in a tandem arrangement behind the existing dwelling: the front two new dwellings two storeys (Units 2 and 3) and the rearmost single storey (Unit 4). Units 2 and 3 provide three bedrooms and Unit 4 provides 2 bedrooms. Units 2 and 3 provide a single width garage and rely on the driveway for a second open car space. Car parking for the existing dwelling will be a new carport from a new crossover and driveway. An open visitor car space is located between this dwelling and Unit 2.

Vehicular access for the new dwellings and the visitor space will be from the existing driveway and crossover.

Residential 1 Zone; Vegetation Protection Overlay Schedule 5 (Significant Tree Protection Area).

The site is on the east side of Grandview Grove between Davies and Darvall Street, Rosanna. It is regular in shape, with a frontage of 22.86 metres, a depth of 62.6 metres, and a site area of 1449.76 sq m. It is developed with a single storey brick veneer house. The site slopes towards the rear with a fall of approximately 7 metres. Development in the street is mostly single dwellings with a sprinkling of medium density development.

1. The permit applicant proposes to develop three additional dwellings in addition to the existing single storey dwelling at the front. As the permit applicant has lodged an application to review the responsible authority's failure to grant a permit within the prescribed time, the Tribunal must decide whether to grant a permit, and if so, subject to what conditions.
2. Were Council in a position to determine the application, it would have issued a notice of refusal on the grounds of neighbourhood character, the proposal not meeting several Clause 55 objectives, and inadequate replacement planting.
3. I have reviewed the submissions of the parties and had regard to the Banyule Planning Scheme ("the Scheme"). Assisted by my inspection of the site and area, I conclude that a permit subject to conditions is worth supporting.
4. The issue of this review is the design response to the neighbourhood character for a site in an accessible area and affected by a Vegetation Protection Overlay.

1. The site is in the 'accessible' residential areas in the Housing Framework Map of Clause 21.06-2. The residential areas of Banyule are graded in a hierarchy of intensity of development, depending on a site's location and attributes. It ranges from diversity, accessible, incremental, limited incremental, limited, to low density residential areas. An accessible area typically has the following attributes:
   • Within convenient walking distance to the business core of an Activity Centre.
   • Are within convenient walking distance to the highest priority sections of the Principal Public Transport Network where higher frequency and quality of public transport services in operation.
2. Development in such a residential area will

...... provide town house and other medium density living and some dispersed single dwellings. Some opportunities for higher density housing will also exist. These areas include strategic redevelopment sites that provide for medium density housing and a higher density housing component. Development must make a positive contribution to the desired future neighbourhood character, including opportunities for tree protection and planting.

1. Since the site in an accessible area, I gather that a medium density development with a built form and mass above the suburban single dwelling profile can be anticipated.
2. The next relevant policy is Clause 22.02, Residential Neighbourhood Character Policy. Under this policy, the site is in the Garden Suburban 4 Precinct (GS4).
3. The site is also affected by in the Vegetation Protection Overlay (Schedule 5), under which a permit is required for the removal of two trees: (Tree 7, a flowering Ash, and Tree 11, an English Oak Cross). Both trees have been removed without a permit. Both were identified to be of no or low retention value respectively. Council's arborist did not oppose the removal of these two trees and those others also to be removed, and was not concerned that the development would affect the viability of trees in the neighbouring properties near the common boundaries.
4. Council's opposition to the proposal is its design, which it does not consider as contributing to the neighbourhood character, and that there is not enough opportunity to replace the vegetation lost. It listed the following design features as unsatisfactory:
   • two storey building scale mid block and towards the rear of the site as not sympathetic to the current building form in the area,
   • a second crossover to access for the replacement carport for the existing dwelling;
   • The front garden reduced in openness by the enclosure of a 28.42 sq m area accessible from the living room of the existing dwelling with a fence that is 1.8 metres in height; and
   • The secluded private open space of the proposed dwellings not capable of meaningful landscaping.
5. On the other hand, Mr. Gray submitted that the proposal is an appropriate response to the preferred neighbourhood character as described in Clause 22.02 in the following ways:
   • Retention of the existing dwelling means little change to the streetscape;
   • The new carport for the existing dwelling is sited behind the building and modest in scale and style;
   • The first floors of Units 2 and 3 are recessed from the ground floor, well articulated and graduated in height, typical of medium density development in the area, including those at No. 64, 66 and 129 Grandview Grove;
   • The amount of frontage occupied by crossovers meet Standard B14 as it is 26% and under the 33% of the standard;
   • With regard to vegetation retention, those trees removed without a permit were of no or low retention value, and a matter already dealt with by Council in its enforcement action; and
   • There is an opportunity for replacement planting through a landscaping plan.
6. My inspection of the site and area confirmed the existing conditions as described by the parties.
7. The removal of trees requiring a permit has been dealt with by Council. I understand that the owner has been fined. Notwithstanding the fine, if the trees removed are of retention value, there is scope in the Vegetation Protection Overlay and Clause 55 to ensure that replacement planting of similar value is factored into the design. The trees removed (tree 7 and 11) are not of retention value, a situation acknowledged by Council's arborist. In that sense, I am satisfied that their loss is not fatal to the proposal.
8. The proposal is to retain the existing dwelling and develop three additional dwellings, two of which are two storeys. They are Units 2 and 3 which are located mid-block. The rearmost dwelling (Unit 4) is single storey.
9. The scale and bulk of the development, including the two storey built form of Units 2 and 3, meet the setback recommendations of StandardsB17 and B18. On that score, the proposal meets the visual bulk tests of Clause 55 as an amenity impact consideration.
10. With regard to the amount of built form near the backyards of adjoining properties, the only guidance from Clause 22.02 is for the first floor to be recessed from ground level and minimised in height. In the proposal, the first floors of Units 2 and 3 are recessed on all elevations from the ground floors. The amount of recessing varies between 1 and 2 metres from the ground floor. Given that the ground floors are setback between 3 and over 4 metres from common boundaries, it means the first floors are recessed over 6 metres from these boundaries. This is not a mean setback from the backyards of adjoining dwelling.
11. With regard to Council's opposition to a second crossover and as a streetscape and neighbourhood character consideration, the frontage of the land is generous at 22.86 metres. Without a specific policy to say why a second crossover should not be permitted, it is a width that can accommodate a second single width crossover.
12. I have previously noted that the site is in an accessible area where the degree of change would be higher than an incremental change or limited incremental change area in Banyule. The proposed degree of change is not excessive in the circumstances. The land is a generous lot 1449 sq m. The design is able to accommodate a development that manages to provide the setbacks recommended in ResCode, it has and a single storey building at the rear. In all, the proposal is an acceptable response to the character of the area for a site in an accessible area.

1. The proposal is not without some deficiencies that warrant improvements for the tandem car spaces of Units 2 and 3. Council's submission was that only the turning circle for Unit 2 is problematic. I note that its 'without prejudice' conditions contain one that requires this to be resolved. I have adopted this condition.
2. Related to parking is the need to delineate the parking spaces for Units 2 and 3. The tandem spaces of these two dwellings abut each other and located in the driveway. I would require a condition requiring these spaces to be marked on the driveway as part of the proposed landscaping design so that it is clear a second car space is provided in the accessway and to reduce conflict among neighbours. In addition, there is the part of the driveway to facilitate turning movement which should be reviewed. As discussed at the hearing, I will be requiring the eastern end of the driveway to be reduced and realigned so that there is room for a canopy tree to be planted at the northeastern corner of Unit 4to improve the landscaping of the site as a neighbourhood character and Vegetation Protection Overlay consideration.
3. One of Council's criticisms of the proposal is the lack of north facing windows of the living rooms and the secluded private open spaces of Units 2 and 3. It would be ideal if both living rooms and secluded private open spaces have a northern orientation. Under the current design, to do so would mean a disconnection between the living rooms and the secluded private open spaces of these two dwellings. Under the circumstances that the living rooms have windows facing other than the south, I accept that the lack of north facing windows for these rooms acceptable. I also understand that the depth of the secluded private open spaces of these two dwellings meet (although just for the single storey wall section, just under for the two storey wall section and well over where the single storey wall is setback much deeper than the 4.7 metres from the southern boundary) Standard B29 with regard to solar access to private open space. This aspect of the proposal was not a concern in Council's submission.
4. Another concern is Council's view that the carport for the existing dwelling is unable to meet Standard B17 because it has a height of over 3.6 metres and an average over 3 metres. It is true that the height of the carport exceeds 3 metres. However, it is an carport supported by posts with no solid wall facing 86 Grandview Grove, causing visual bulk. The resident[1] of the neighbouring property in fact, in his statement of grounds, requested a new paling fence to match the height of an existing brick wall on the boundary. He also requested timber screens to be constructed on the ground floor roofs to screen the first floor windows facing the common boundary. The requested solid paling fence would in fact exacerbate the visual bulk of the carport.
5. With regard to the timber screen requested, this resident did not explain why that is justified, since these windows have been designed to meet Standard B22 of Clause 55, apart from the issue of the visual bulk of such structures, scaling at 2.6 x 2.4 metres. If these modifications are justified on planning grounds, I would consider the recommendations, notwithstanding that this resident is not a party to the proceeding.
6. The proposal is to enclose part of the front setback area to provide for a secluded area as private open space off the living room of the existing dwelling. To facilitate this, the living room windows facing the front garden are to be extended to become full height sliding doors. This is by means of a 1.8 metre high paling fence enclosure. The submitted drawings are misleading in the sense that the paling fence scales at 2.5 metres and the paling fence comes across as an open fence with wide timber column/posts (250mm) (living room window frames visible through the fence). This fence, if of paling construction and 2.5 metres high, will screen and conceal that part of the building from the street. I will require the design of this fence to be lowered to 1.7 metres and with a transparency of no more than 25%.

1. Overall, I find the scale and intensity of development an acceptable response for a site in an accessible area where a higher level of development above an incremental degree of change is targeted. With improvements to the design of the development as stated in the permit conditions, it is an appropriate response to the planning objectives for the site in the Scheme.

(1) Before the development permitted by this permits starts, 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans considered by the Tribunal (substituted plans dated 20.7.2011 but modified to show:

• (a) Improved vehicle turning areas to enable efficient egress from Dwelling 2 tandem car space;
• (b) Reversing area next to Unit 4 modified and reduced to enable the planting of a canopy tree at the north east corner of the dwelling;
• (c) The height of the paling fence enclosing the private open space of Unit 1 in the front setback area reduced to a maximum height of 1.7 metres and no more than 25% transparent.
• (d) The tandem car spaces of Units 2 and 3 marked on the pavement as part of the proposed landscaping required by Condition 2;
• (e) A schedule of external building materials and colours, including details of cladding and roofing materials; the schedule should be presented on a separate sheet and must include colour samples.
• (f) Engineering plans showing a properly prepared design with computations for:
  1. The internal drainage and method of disposal of stormwater from all roofed areas and sealed areas including on-site detention;
  2. The drainage works necessary to connect the subject land to the Council nominated point of discharge.

Please note the Engineering plans must show all protected and/or retained trees north on the site and on adjoining properties where within 5m of the boundary and every effort must be made to locate services away from the canopy drip line of trees and where unavoidable, details of boring must be provided.

Landscaping as required by Condition 2 of this permit.

(g) Layout plans to match elevation plans for front fence and porch, with the height of the front porch no higher than 3.6 metres;

(h) The east facing full height study window of Unit 2 to meet Standard B15;

(i) Landscaping as required by Condition 2 of this permit; and

(j) A redesigned driveway to Dwelling 1 involving a reduction in the paved area such that the minimum extent of paving necessary to achieve safe and efficient vehicle movements is provided.

(2) The development permitted by this permit must not commence until a satisfactorily detailed landscape plan is submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and shall include:

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

• (b) Provision of replacement planting for vegetation that is to be removed.

• (c) A minimum of four canopy trees planted throughout the site comprising of at least two 92) large trees (mature height of at least 12 m_ planted at a semi-advanced state (minimum pot size 40 litres); two (2) medium canopy trees (mature height of at least 8 m) planted at a semi-advanced state (minimum pot size 40 litres); plus shrubs.

• (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 materials s specified;

• (e) Location and details of paving, steps, retaining walls, fence design details and other landscape works including cut and fill, consistent with the site plans and Condition 1 of this permit.

(3) The development as 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.

(4) Unless otherwise agreed in writing by the Responsible Authority the proposed dwelling permitted by this permit must not be occupied until:-

• (a) The parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority.
• (b) The garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.
• (c) Drainage works have been undertaken and completed to the requirements and satisfaction of the Responsible Authority.
• (d) The dwellings are numbered in accordance with Council's allocation of street numbers.

(5) 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 maintained in a continuously useable condition to the satisfaction of the Responsible Authority.

(6) 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.

(7) In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:

• The development is not commenced within two years of the date of this permit; or
• The development is not completed within four years of the date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, the Responsible Authority may extend the periods referred to if a request is made in writing along with payment of relevant fee before the permit expires, or within three months afterwards.

[1] Mr. Andrew Chmielewski lodged a statement of grounds out of date. The Registrar advised him to make a formal application to be joined as party at the commencement of the hearing. Mr. Chmielewski did not appear at the hearing to make such an application.