Ms Carolyn Mentiplay, for Ms Sheila Sheehan. Ms Carolyn Mentiplay, Mr David Mentiplay and Mr Stan Watson all appeared in person. There was no appearance by other respondents.[1]

Alterations and extensions to an existing dwelling to provide two dwellings

Application under s 77 of the Planning and Environment Act 1987

Clause 32.01-4 (construction of two or more dwellings in R1Z)

The land is part of an estate bounded by East Malvern golf course (to the north and west), Warrigal Road (to the east) and the Glen Waverley railway line (to the south). Vehicle entry and exit to the estate is via a single point to Warrigal Road. The land is on the south side of Argyll Street, about 15 m east of Stirling Avenue. It is rectangular, with a frontage of about 15.2 m and a depth of about 42.7 m, and an area of about 650 sq m. It is flat across the land from east to west, but it falls about 2 m from the rear to the front. A very large single dwelling exists on the land.

Elcheikh v Banyule CC [2010] VCAT 404

Fisher v Glen Eira CC [2001] VCAT 576

Munjal v Casey CC [2010] VCAT 444

Liveriadis v Stonnington CC (VCAT, unreported, Baird SM, 28 January 2011)

1. I gave oral reasons for this order given at the conclusion of the hearing on 8 April 2011 and subsequently issued.
2. The Applicant, later that day, requested written reasons, in accordance with s 117 of the Victorian Civil and Administrative Tribunal Act 1998.
3. This order, together with written reasons, is a reissue of the order previously made in this proceeding.

1. Coeve Design Pty Ltd, on behalf of Maroubra House Pty Ltd (the Applicant) applied to the Stonnington City Council (the Council) for a permit to alter and extend an existing dwelling to create two dwellings (the proposal) at 88 Argyll Street, Malvern East (the land).
2. The Council refused to grant a planning permit. The Applicant has applied to the Tribunal to review the Council's decision. The Respondents are opposed to the grant of a permit.

1. The existing dwelling is an unusual one. At the front of the land is the original 1950s, triple-fronted, single-storey, brick veneer dwelling (the original dwelling). It is setback a minimum of 9.2 m. In 2004, a large, double-storey, brick and render extension (the extension) was constructed to the rear of the original dwelling, with minimal setbacks to the rear and side boundaries. Now, the dwelling has about nineteen habitable rooms (including fifteen bedrooms), a number of bathrooms and laundries, and over 500 sq m of total floor area.
2. The land is located in a residential estate located between East Malvern golf course (to the north and west), Warrigal Road (to the east) and the Glen Waverley railway line (to the south). Abutting the rear of the land is the Holmesglen Station car park. To the south of the car park and railway line is Holmesglen TAFE. Vehicular access to and from the station car park is via Stirling Avenue, about 15 m to the west of the land. On the east and west sides of the land are single-storey brick veneer dwellings, also from the 1950s.
3. The proposal is for two double-storey, 'side by side' dwellings. The built form is essentially the existing dwelling. There is some additions to the existing dwelling, mainly the two proposed single garages (one for each dwelling) on the east and west side of the original dwelling. The east side garage is built to the boundary and the west side garage is setback about 1 m. There is a new driveway and crossover proposed along the east boundary.
4. There are many internal modifications, including a new dividing wall between the two dwellings, new room configurations, entry porches, patios, internal stairs, windows and doors. Each dwelling is relatively large (about 250 sq m, excluding garages) and has three bedrooms and two living rooms. About 5 sq m of the dwelling is proposed to be removed on the east side, behind the original dwelling at both ground and first floor level, to provide additional outdoor area for dwelling 2.
5. The use of the dwelling, after it was extended, has been contentious. There was an investigation by the Building Control Commission about whether the extension complied with building law. After the Council notified the Applicant in 2009 that the Council considered the dwelling was being unlawfully used for student accommodation, the Applicant applied for a permit for student accommodation. The Council refused a permit. The Respondents are concerned the two dwellings, if established, will be used for student accommodation.
6. The lawfulness of the extension, the lawfulness of any previous use of the dwelling, and concerns that the two dwellings will or may be used for student accommodation are all irrelevant to this proceeding.[2] I must decide only whether a permit should be granted to establish two dwellings in accordance with the amended plans.

1. The proposal does not involve the removal of an existing building and construction of two new dwellings. Nor does it involve the retention of an existing building and construction of a new and second dwelling also on the land. The proposal is mainly, but not totally, the conversion of an existing dwelling. To what extent can the Council, or the Tribunal on review, consider the existing building in determining the application?
2. In Elcheikh v Banyule CC,[3] the Tribunal considered a proposal to construct four dwellings on land. The Council in that case characterised and assessed the proposal as five dwellings. The Tribunal held the application was for four dwellings, and hence to be assessed as four dwellings, because the existing dwelling had 'no design or functional relationship' with the other dwellings. The approach in Elcheikh does not apply here. It cannot be said that any part of the proposal does not have such a relationship. There are no independent parts of the proposal. It is an integrated proposal.
3. The Applicant urged me to apply the principle in Fisher v Glen Eira CC.[4] In that case, the Tribunal considered a proposal to construct a dwelling on a lot to the rear of an existing dwelling and held:

In considering a proposal for the construction of a single storey dwelling to the rear of an existing completed lawful constructed double storey dwelling, the Responsible Authority is not entitled to consider the impact of the double storey dwelling on the elements of neighbourhood character, streetscape character and visual bulk, except insofar as the existing building is impacted upon by the development of the new single storey dwelling and that impact is manifested by changes in respect of the established character of the neighbourhood and a perception of visual bulk.[5]

1. The principle in this case applies to a new dwelling behind an existing dwelling and so it does not apply in this case.
2. I prefer the approach adopted by the Tribunal in Munjal v Casey CC.[6] In that case, the Tribunal considered a proposal to construct a dwelling behind an existing dwelling. The Council opposed the retention of a carport used in conjunction with the existing dwelling. The Tribunal considered whether it could assess the existing dwelling, and in particular its carport, in determining the Application.
3. In Munjal, the Tribunal stated:

[20] As long as the owner is content with the existing single detached dwelling on the land, there is not much the responsible authority or the neighbours or anyone else can do about it, even if they consider the carport to be a blight in terms of planning merits. However, the situation changes once there is an application for a planning permit for a second dwelling. When such a proposal is assessed, the assessment must be made in relation to the whole of the allotment, and not just part of it or the rear part or the part where the second dwelling is proposed. The proposal involves the whole of the allotment including the existing house and what is on the land, as well as the proposed new buildings and works. In my opinion, this can give rise to a refusal, or requirement for modifications including the deletion of a front garden carport.

[22] In my opinion, the front garden carport is relevant in assessing the second dwelling application, and it is entirely proper for that to be taken into consideration. I do not think that doing so would be to take into account of an irrelevant matter or to act for an ulterior purpose.

[24] The assertion that the new 'development' namely the proposed new house is prospective is all very well, but the proposal for it must be considered in relation to the existing context in which it is proposed to be constructed. In other words, it is necessary to consider the site as a whole. In that light the whole site, including the front garden carport can be seen as things that fairly and reasonably relate to the prospective development.

1. Although the facts in that case concerned a second dwelling at the rear of an existing dwelling, I would adopt the principle broadly expressed in that case that existing development of the site as a whole (in this case, the whole of the existing dwelling) must be considered in assessing the proposal.
2. The application of the principle in Munjal does not mean the proposal must be assessed as if the land is vacant or, in this case, as if only the original dwelling (and not the extension) existed.[7]
3. If I had decided to grant a permit, I could have included conditions requiring that some of the internal or external changes not be made or be modified. I could also have included conditions requiring some changes to the existing building, not included in the proposal, be made.
4. The latter kind of changes would normally have to be limited in scope, otherwise there would probably be significant consequential effects and a significant redesign of the proposal may be required. For example, I could require changes to the size or location of windows that were not proposed to be changed. If I were to consider requiring changes that involved demolition of part of the existing building (for example, replacing the roof or requiring removal of some of the floor area in the extension), I would take into account the practicability of those changes, but ultimately that would not determine whether those changes should be made.
5. I have not had to consider these questions in this case because I have decided that a permit is not to be granted.

1. The quality of the application has not assisted the Applicant's case. I granted leave to amend the plans. The amended plans are sub-standard.
2. For example, the first floor plans do not accord with the ground floor plans showing the two additional garages. The changes to the single storey roof at the front of the building are unresolved. The applicant tendered at the hearing a different north elevation to that shown on the amended plans, showing a flat roof for the garage on the east side. The tendered plan did not enable me to assess what changes if any were proposed on the west side. The landscape plan was inconsistent with the layout plans in the amended plans. A shadow plan was not included with the amended plans but was tendered at the hearing. Mr Mentiplay pointed to different floor levels in the garage and laundry in dwelling 2 and to the absence of required steps.
3. I suspect the Applicant was aware the plans were unresolved. I have already expressed my concern that the Applicant sought, and I will be charitable and say I hope unwittingly sought, to substitute different plans at the hearing to those included in the application to amend plans, and that fact was not disclosed to the Tribunal. Ms Moser has appropriately apologised to the Tribunal. She submitted that, by accident, the wrong plans were included in the application to amend the plans.
4. If the Tribunal cannot be confident about the accuracy or reliability of the plans, it makes it very difficult to consider whether changes could be made by way of permit conditions to make it acceptable.

1. On the submissions and tendered documents, I find that the proposal is inconsistent with local policy in clause 22.06-3 of the scheme. The proposal does not reflect the predominant scale and built form character of the surrounding area. It also represents unreasonable adverse effects to the amenity of the surrounding area. It therefore does not respect the prevailing character of the neighbourhood as required by standard B1.
2. I do not make a finding about the proposed two 'side by side' dwellings approach. In Liveriadis v Stonnington CC,[8] the Tribunal considered a proposal for seven dwellings, two of which were 'side by side' and fronting Argyll Street, not far from the subject land. The Tribunal found the design response in that case was not acceptable and commented that, in relation to the two 'side by side' dwellings, that the 'boundary to boundary form is not typical of the predominant pattern of development'.
3. The proposal in this case is not exactly boundary to boundary. It is close to being boundary to boundary, there being just a one metre gap on the west side. If the Applicant intends to prepare a new application, that issue will need further consideration. On the submissions, I would not refuse a new driveway on the east side on the basis of possible damage to the street tree.
4. I make two further brief comments about the side by side approach. First, I do not think much of the flat roof attached to the existing hipped roof for the east side garage. My inspection confirmed my impression that that approach is contrary to prevailing streetscape character. Second, the size and shape of the private open space for dwelling 1 appearse unsatisfactory for a large dwelling with three bedrooms and two living rooms.
5. I agree with the Council and the thrust of recent Tribunal decisions concerning land in this neighbourhood that, on a strategic level, the land is suitable for some form of medium density housing project that respects its surroundings. I would find that, in this case, the lack of respect for prevailing character outweighs the strategic justification or benefit of an additional dwelling.
6. I do not make any finding that the whole of the existing building must be removed before a permit could be granted for two dwellings. That is illogical and is premature given the site analysis approach that the council correctly states is critical element of ResCode. I also do not make a finding that the whole of the extension must be removed, for the same reason.
7. However, I suspect the Applicant realises that it is going to be very difficult for the whole of the extension to be retained in a two dwelling proposal that ultimately meets with the approval of the Council or this Tribunal. My evidence for this is the fact that the proposal includes the removal or demolition of a small section of the extension of about 5 sq m on the both the ground and first floor on the east side. It follows from my decision that I think that removal of more of the extension may be necessary.

1. I conclude these reasons by commenting briefly on three of the grounds on which the Respondent's relied.
2. The first ground is heritage. The Council's Draft Heritage Citation of 2010 for the Green Gables Avenue Precinct refers to the 'integrity and consistency of built form' in the Malvern Meadows estate and Argyll Street in particular. The estate is not subject or proposed to be subject to a heritage overlay and so I can give this issue little weight.
3. The second ground is traffic. The only access to nearby Holmesglen station car park is via nearby Stirling Avenue. The argument, as I understood it, was that the proposal would unreasonably increase resident and commuter traffic in Argyll Street and cause unreasonable congestion at the estate's sole access point on Warrigal Road. I do not accept, in the absence of expert evidence, that one additional dwelling will create unreasonable traffic problems.
4. The third ground is flooding. It was claimed that overland stormwater flow from the station car park is not adequately addressed in the proposal, leading to likely damage to adjoining land. This can be resolved at the building stage and is no grounds to refuse a permit. Related to this was a concern that an additional dwelling should not be permitted on safety grounds when a part of the Boulevard near Warrigal Road may be subject to flooding and restrict access to and from Argyll Street. The issue is hypothetical and is no grounds to refuse a permit.

1. For the above reasons, I will affirm the Council's decision. No permit is granted.

[1] The statements of grounds by respondents who did not appear have been taken into account by the Tribunal in accordance with s 98 of the Victorian Civil and Administrative Tribunal Act 1998.

[2] Consequently, the refusal of a permit in this case does not affect the lawfulness or otherwise of the use or development of the existing building.

[3] [2010] VCAT 404.

[4] [2001] VCAT 576.

[5] [2001] VCAT 576 at [52].

[6] [2010] VCAT 444.

[7] I will proceed on the basis that the extension was lawfully constructed for a single dwelling. Some of the Respondents maintain the extension was unlawful, but I do not have to decide that question in this proceeding.

[8] Unreported, Baird SM, 28 January 2011 at [18].