1. The Application for Review by the Objector is disallowed.

2. The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

3. A permit is granted in accordance with the direction set out below.

4. The Responsible Authority is directed under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 to issue a permit for 4 Dwellings at 1066 Burke Road, North Balwyn generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. 98/1078 issued by the Responsible Authority on 13 April 1999.

5. The Applicant is ordered to pay the costs of the Respondent and the Responsible Authority, the amounts of which are to be assessed by the Principal Registrar of the Tribunal.

6. The Responsible Authority has made application for costs of $360, a copy of which has been sent to the Applicant.

7. The Respondent has made application for costs of $1,280.

8. Within 14 days of receipt of details of claims under paragraphs (6) and (7), the Applicant may file and serve on the Principal Registrar and the other parties, any objections, together with reasons, which he may wish to make to the amounts claimed.

9. Following assessment, the amounts of costs assessed are to be paid by the Applicant within 30 days of the date of the Principal Registrar's order.

Mrs Jane Tait appeared for the Responsible Authority at the first hearing and Mr Matthew Astill at the second hearing.

Mr Nick Drougas of Axicon Design appeared for the Applicant at both hearings.

The Objector, Mr Robert Mastromateo did not appear at the first hearing and when telephoned by a Registry staff member during the appointed hearing time stated he would not be attending the hearing. Mr Mastromateo had provided a brief statement of reasons with his application for review.

At the second hearing a telephone link was used to connect to Mr Mastromateo who again did not appear in person.

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Boroondara Planning Scheme Camberwell Residential Zone

"The main grounds for my objection are as follows:

At many thousands of dollars in costs to myself, I have planned and executed the construction of an inground heated spa area to enjoy in the privacy of our own home. The concept of the area was to be able to bath day or night clothed or naked, whichever combination was appropriate. This alone knowing that you can be viewed by strangers while trying to enjoy our quality of life.

As a married couple and also as a family it poses a huge concern to us. The area adjoining the spa is our entertaining area which is already limited by a unit development on the northern boundary of our property. I have made provision to block their view with trees which will be implemented in July.

The advanced trees recommended for the permit need to be placed at set internals from the corner of the existing dwelling, all the way down to the line of my garage. The recommended height needs to be increased to 4.5 metres high and existing trees need to be removed and replaced with the new (evergreen) substitute. The tree planting wood need to be covered by the HIA for the guarantee of their growth and maintenance for the continued privacy over many years and not just planted and forgotten.

The reasoning for the extra height is so the trees can be pruned in time and it will not affect the screen. The second item which needs to be addressed is the northern facing upper windows, the windows need to be constructed with obscure glass and be fixed in place so as not to be openable, rendering the obscure glass useless. The entire window should be constructed in this manner, not just anything below 1.6 metres high. The average male is taller than that and a young child can reach that height with a chair. If this option seems impractical then perhaps angled solid screens can be constructed to prevent a view.

Any solution to the problem of my privacy would be acceptable as long as it gives me unconditional privacy in my own home, after spending as much money as I have, I feel this is not too much to ask."

1. The non appearance of an applicant for review at the first hearing on 2nd August 1999 is explicitly covered by Section 51(5) of the Victorian Civil and Administrative Tribunal Act 1998 The Tribunal accordingly confirmed the decision of the Responsible Authority.

2. However, under clause 120 of the Victorian Civil and Administrative Tribunal Act the Applicant for Review (Objector) was given leave to apply within 12 days to have the Order re-opened on substantive grounds and appear in person before the Tribunal.

3. The other parties indicated they may make application for costs.

4. A new hearing date was set for 21st September 1999 following an application by facsimile on 23rd August 1999 for the hearing to be re-opened.

5. On 20th September, Mr Mastromateo by telephone contacted Tribunal staff to say that he was unable to attend the hearing because of his wife's illness and asked for an adjournment which was denied. However, arrangements were made for him to be linked to the hearing by telephone.

6. The open telephone link allowed all parties to participate in the hearing.

7. At the commencement of the hearing Mr Mastromateo was asked to explain his absence from both hearings. I relation to the first, he said he had intended to appear, but got caught up in a concrete pour, because "my staff did not turn up to work that day." He forgot about the hearing until he received a telephone call from a Tribunal staff member. It was then too late to attempt to attend.

8. In relation to the second he submitted that his wife was suffering from post natal problems and their two other small children and the new baby required constant attention. He was advised that the Tribunal accepted his second reason but not the first.

"The site is located one property north of the intersection of Belmore Road and Burke Road (western side).

The site is rectangular in shape and has the following dimensions:

The land has a fall from the south-west to the north-east of 2.4 metres. The site currently supports a 1950s two-storey building that is used as two flats (Unit 1 at ground floor, Unit 2 at first floor). Two tandem garages provide vehicle accommodation for the existing dwelling with a large grassed area to the rear. A high red brick fence exists along the frontage of the site which acts as a visual and acoustic buffer to Burke Road.

The site has 8.0m high mature trees within the frontage setback and deciduous trees in the rear yard around the periphery of the site.

The main vehicle entrance to the site is from Burke Road. However, there is a second crossover in the east (rear) boundary which abuts a public car park. A 3.05m wide carriageway easement abuts the west boundary of the car park in favour of the review site.

An Ampol service station is located on the corner of Burke and Belmore Road at No. 1062 Burke Road.

On the east side of Burke Road is car park associated with Stradbroke Park. A football oval and passive recreation activities are located in the park.

To the northeast is parkland which extends further eastward to Nicholson Street.

Directly west is a public car park at No. 1 Belmore Road. The car park contains 30 spaces with a two (2) hour parking limit. There is a 1.0m landscape buffer along the west side of the car park abutting the review site.

The appellant's site is located to the north at No 1068 Burke Road. The site is occupied by a 1940's single storey detached house which is setback 7.6m from the frontage. There are two driveways onto Burke Road and the existing garage is setback 1.8m from the common boundary. A newer double car garage abuts the east (rear) boundary and is accessed off the main driveway abutting the north boundary. The configuration of the dwelling includes the main living areas facing onto a courtyard located within the southern setback. This courtyard includes a outdoor spa. There is an existing 1.95m high paling fence and 15.0m of the fence abutting the courtyard has a 600mm high trellis fence extension (adjacent to the appellant's)."

10. This was also described in Mrs Tait's submission:

"The proposal is to construct two additional dwellings to the rear of the existing units. Minor works are proposed to the existing units to provide privacy screening measures within the site layout. The proposal includes the following key design elements:

(a) Units 1 & 2 will have unchanged floor areas of 110.54 square metres (excluding garages). Units 3 & 4 will have floor areas of 176 square metres and 188 square metres respectively (excluding garages).

(c) Units 3 & 4 include ground floor living, dining, kitchen, meals, family room, master bedroom, service areas and study and first floor use as two bedrooms and bathroom.

(d) Garaging for all four units will be in the form of single car garages with a vehicle space in tandem. Storage areas are provided in each of the garages. Units 1 & 2 will utilise the existing garages off Burke Road whilst Unit 3 & 4 will access the site from the rear car park containing the carriageway easement.

(e) Units 3 & 4 will be constructed of a two-storey style to match some of the features of the existing building.

(f) Private open space for Unit 1 is located to the east of the dwelling and is 74 square metres. Unit 2 has an area to the west of the existing dwelling (104 square metres) within the existing frontage setback of the flats. Unit 3 has areas to be north and south of 45 square metres and 52 square metres respectively. Unit 4 also has areas located to the north and south of 67 square metres and 32 square metres respectively.

(g) Site coverage is 42.7 per cent (58.7% including hard surface area).

* the removal of the east elevation stairs to Unit 2.

* the construction of a staircase in the west elevation to Unit 2.

* screening to the first floor east windows of Unit 2 to a height of 1600mm above floor level."

11. Mr Mastromateo was given the opportunity to provide his reasons for his application for review. These can be summarised as follows:

(i) Overlooking of his premises from upper floor windows of the proposal.

(ii) Possible drainage problems created by the proposed development.

12. Mr Mastromateo objected to the proposal to extend the trellis on the fence separating the property. He was critical of the size of the trees (advanced 3.6 metres high) to be used in screen planting on the boundary. He also required obscure glass in all windows on the second storey which overlook his property.

13. With regard to drainage Mr Mastromateo said he had replaced the barrel drain through his property and was concerned that the system did not have the capacity to carry the increased discharge from the proposed development. He had obtained computations to support his claim.

14. Mr Astill said the Council would require appropriate upgrading of the drainage by condition.

15. Mr Astill submitted that it was not the intention fo the Good Design Guide or responsible authorities to prohibit all overlooking from unit developments but only unreasonable overlooking. His opinion was supported by Mr Drougas.

16. There are many Tribunal decisions about overlooking and Mr Astil is correct in his assertion that, particularly from bedroom windows, only unreasonable overlooking is screened. I support that approach.

17. The Tribunal advised Mr Mastromateo that it was satisfied with the Council's proposed conditions in relation to both drainage and overlooking.

18. Mr Mastromateo was asked to comment on costs and why they should not be awarded against him.

19. He reiterated his reasons for not attending the first hearing.

20. The Responsible Authority and the Respondent have made applications for costs of. their consultants' preparation for and appearance at the first hearing of the application for review. The Responsible Authority has claimed $360 and the Respondent $1280 (attached).

21. The applicant for review did not appear at the first hearing and when contacted by telephone by a Tribunal clerk indicated that he would not be attending the Tribunal.

22. The Tribunal, Permit Applicant and the Responsible Authority were all put to unnecessary time wasting efforts by Mr Mastromateo at the first hearing.

23. At the end of the hearing, after consideration of Mr Mastromateo's submissions I advised the parties I would be confirming the decision of the Responsible Authority and would be awarding costs as detailed.