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[2001] VCAT 2306
appellant. The responsible authority’s decision was set aside, a permit was granted for two double-storey dwellings subject to conditions, and the Responsible Authority was directed to issue the permit under...
VCAT reconsidered the Council’s refusal of two new dwellings behind an existing house. It concluded that this particular proposal could fit the site and respond acceptably to its surroundings, including the adjoining park. It did not accept the Council’s overdevelopment and neighbourhood-character objections as reasons to refuse. It nevertheless required changes and detailed conditions dealing with plans, parking, landscaping, drainage, flood levels and other matters. The decision is tied to the evidence and design before the Tribunal; it does not establish that similar developments will necessarily be approved.
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2,420 words · generated 02/10/2026
Con Matzaris and Danny Damato sought review of Darebin City Council’s refusal of a permit application for 108 Hutton Street, Thornbury. The application was for two double-storey dwellings behind an existing single-storey dwelling, which was to be retained. The review was brought under section 77 of the Planning and Environment Act 1987, as the decision records in its heading and at [1].
No linked legislation citations have been extracted yet.
The site was on the north-west corner of Hutton Street and the linear park developed along Bracken Avenue. The judgment makes an important factual distinction: Bracken Avenue was not a public highway or road, and the site had no existing right of carriageway over the park ([4]). The site was approximately 884 square metres, with an effective Hutton Street frontage of about 12.5 metres and a depth along the park of about 44.1 metres ([4]). The existing house contributed positively to the Hutton Street streetscape, while mature trees grew along the eastern boundary and near the north-west corner ([4]).
The proposal provided two similar dwellings at the rear. Each had living areas on the ground floor and bedrooms upstairs. They were oriented towards a new access lane along the eastern side of the site and towards Bracken Avenue. Parking was proposed for the existing dwelling and tandem parking for each new dwelling ([3]). The council’s stated refusal grounds were that the development would prejudice orderly future planning, cause a loss of garden character, and amount to overdevelopment when compared with a previous Tribunal order.
The proposal had a substantial planning history. The application was made in April 2000. Revised plans followed requests for further information and council concerns about access from the park. Notice resulted in objections, and mediation was followed by further plans and further objections. An officer report recommended approval, but the council decided to refuse the application ([6], [8]).
At the hearing on 7 May 2001, the applicants presented planning and landscape evidence. Council and Melbourne Water also appeared, as did several objectors. The Tribunal’s decision of 21 May 2001 set aside the refusal and granted a permit, subject to endorsed plans and 16 conditions. The permit required, among other matters, revised site and façade plans, changes to parking, landscaping, drainage and flood-level controls, and commencement and completion time limits.
The Tribunal’s reasoning is a site-specific planning assessment, not a broad declaration that two-storey rear development should generally be allowed in this neighbourhood. It considered the council’s grounds, the proposal’s physical design and the evidence about the site and its surroundings.
First, the Tribunal addressed the earlier decisions relied on by the council. In Seiman Constructions Pty Ltd v Darebin City Council and others, the proposal involved two attached dwellings behind a double-storey house on an 865-square-metre site. The Tribunal understood that decision to turn on concerns about building bulk and the appearance of one overly large building stepping down the site ([8]). In Fanning and others v Darebin City Council, the available area for two additional units was much more constrained because the existing dwelling occupied 55 per cent of a site of about 670 square metres ([9]). The member considered those circumstances materially different. About 508 square metres remained available for two dwellings in the present case, which he considered reasonable ([10]-[11]).
Second, the member assessed character and built form in context. He accepted that the area was predominantly single-storey, with a strong Californian bungalow character, but did not consider that the predominance of single-storey houses required this proposal also to be single-storey ([4], [15]). He regarded the proposed dwellings as reminiscent of Californian bungalow design and considered that much of their apparent height came from the roof form. In his view, that scale was not unusual for a two-storey Californian bungalow ([13]). The retention and upgrading of the existing bungalow was also a significant positive factor for streetscape and neighbourhood character ([15]).
Third, the Tribunal treated the adjoining park and its vegetation as part of the proposal’s setting. It accepted that a development could contribute to a garden setting through competent landscape design, and commended the landscape design presented by Mr Thompson ([12], [19]). It also accepted that existing vegetation along the linear park would break up the perception of visual bulk from Hutton Street and the park ([15]). The member’s reasoning therefore did not treat the park simply as an extension of the dwellings’ private open space. He expressly said the development should not use the park as its major source of open space or make the park its major address, while accepting that dwellings could face parkland in an appropriate design ([14]).
Fourth, the member considered amenity effects. Although objectors raised overlooking concerns, the Tribunal found that only one window would overlook adjoining private open space, and that it was proposed to be glazed to 1.7 metres above floor level ([17]). He acknowledged that there could be a perception of overlooking but considered that this was not factual on the evidence before him. He also considered acoustic effects could be addressed by design or insulation if necessary, although he did not consider insulation necessary here ([18]). He was not concerned about overshadowing of dwelling 1’s private open space because it had several usable areas ([21]).
Finally, the Tribunal did not treat every design shortcoming as a reason for refusal. It was not satisfied with the parking arrangements as originally proposed, particularly the open parking area for a substantial dwelling and lack of external storage ([18]). It required a clear roof over dwelling 1’s parking space, deletion of a visitor space, façade changes to allow vehicle access and an external storage shed ([2], [24]). The conditions also required a detailed landscape plan, proper construction and maintenance of parking areas, drainage connections, flood-related floor levels and other Melbourne Water requirements. The outcome reflects the Tribunal’s conclusion that the proposal could be permitted with specified amendments and controls.
The judgment records the planning framework the Tribunal applied in 2001. The land was zoned Residential 1, and a permit was required under Clause 32.01-4 for two or more dwellings on a lot ([5]). A Significant Building Overlay applied, making referral to Melbourne Water relevant for flood mitigation and drainage ([5]). The application was a review of refusal under section 77 of the Planning and Environment Act 1987, and the order directed the responsible authority to issue the permit under section 85(1)(b).
Before the review, the operative decision was the council’s refusal. Its stated grounds focused on orderly planning, garden character and overdevelopment. The Tribunal’s decision replaced that refusal with a permit, but not an unconditional one. The permit’s detailed requirements formed part of the result: the applicant’s plans had to be modified and approved, landscaping had to be carried out and maintained, parking areas had to be constructed and kept available, and flood and drainage requirements had to be met.
The reasons do not announce a new general rule or purport to change the statutory planning framework. They explain how the member weighed the relevant features of one site and proposal. In particular, the decision does not establish that proximity to the CBD always supports additional dwellings, that adjoining parkland always mitigates visual impact, or that a predominantly single-storey neighbourhood cannot accommodate a two-storey proposal. Those matters were considered alongside the available site area, the retained house, vegetation, design, privacy, parking and other evidence.
The supplied judgment contains no later legislative material or subsequent cases. Accordingly, it does not establish the current wording or operation of the planning scheme or the later legal treatment of this decision. Its value in this source is the reasoning applied to the application before the Tribunal, not proof of the law as it stands today.
At [10], the member stated that about 508 square metres remained for the two new dwellings and that this was reasonable. In plain English, the site was not assessed solely by its overall area or by the existence of the front house. The member considered how much land was actually available for the rear development and compared that with the constrained area in Fanning.
At [14], the member accepted that the Good Design Guide encouraged dwellings to face parkland, subject to limits: the proposal should not use the park as its main open-space area or make it the development’s major address. This distinguishes facing a park from relying on the park to provide the development’s private amenity. In this case, the access driveway ran alongside the park, but the member considered the dwellings still had a sense of address to Hutton Street.
At [15], the member said that the area’s predominantly single-storey character did not itself mean this proposal had to be single-storey. This was not a finding that height was irrelevant. The member also considered the roof form, bungalow design, retained dwelling and vegetation, and contrasted the current proposal with an earlier proposal for four units, three of which were two-storey.
At [16], the member observed that the site was within seven kilometres of the Central Business District and that increased density could be expected in such an area. The passage formed part of the reasoning about this site’s urban context. It should not be read as a stand-alone entitlement to develop at a particular density.
At [18], the member said there might be a perception of overlooking, but that it was not factual on the evidence. The reasons immediately refer to the limited number of windows overlooking private open space and the proposed high glazing to the relevant window ([17]). The member also identified parking and storage shortcomings, showing that the decision was not an across-the-board endorsement of every feature in the submitted plans.
The decision is most relevant as an example where a permit refusal concerns additional dwellings behind an existing house, and the review turns on the amount and configuration of rear land, existing streetscape contribution, the adjoining landscape setting and the detailed design. The facts the Tribunal relied on include the approximately 508 square metres available for two rear dwellings, retention of an existing Californian bungalow, mature vegetation, and the adjoining landscaped linear park ([10], [15]).
It may also be relevant where a decision-maker compares a current multi-dwelling proposal with earlier decisions involving different site constraints. Here, the member explained why the cited decisions did not control the outcome: one raised a building-bulk concern and the other had substantially less usable area for additional dwellings ([8]-[11]). The judgment illustrates the importance of comparing actual site dimensions and design, rather than relying only on a general resemblance between proposals.
The case also addresses proposals where the planning concerns may be capable of being managed through conditions. Parking layout, landscaping, access, drainage and flood mitigation were all addressed through requirements in the permit ([2], [3]-[15]). The reasoning may therefore be useful when examining whether a perceived deficiency was treated as fatal or as something that could be specified and controlled through approval conditions.
Its factual limits matter. The site abutted a landscaped park but had no existing right of carriageway over that park ([4]). The reasons relied on a particular landscape design and vegetation, and assessed overlooking by reference to the actual window arrangement ([15], [17]). A different access arrangement, less available rear area, materially different neighbouring private open space, or a different design could produce different planning considerations. The judgment does not say how those altered facts should be resolved.
The supplied judgment reports no later court or Tribunal decisions applying, following, distinguishing, affirming or reversing Matzaris and Damoto v Darebin CC. It therefore provides no basis for describing subsequent treatment or for claiming that its reasoning became an established general precedent.
The decision itself discusses two earlier Tribunal matters: Seiman Constructions Pty Ltd v Darebin City Council and others, decision 98/41456, and Fanning and others v Darebin City Council, decision 99/72254 ([8]-[11]). The member distinguished both on their facts. In Seiman, the concern was the bulk and appearance of a large building stepping down the site. In Fanning, the existing dwelling occupied 55 per cent of a smaller site, leaving about 295 square metres for two large units. The member considered that the present site had about 508 square metres available for the rear dwellings.
The judgment also refers to an earlier Tribunal decision by Mr Gilfillan concerning this site. The member said that decision had favoured two single-storey dwellings behind the existing house, or had considered replacing the existing dwelling with a double-storey dwelling in another scenario. The supplied text does not give a case citation for that decision. Mr Quirk explained that the earlier decision concerned four units, three of them two-storey, and said he too would have had no hesitation refusing that development ([15]). This is a comparison within the reasons, not evidence about later treatment of the present decision.
The judgment does not set out a detailed general method for measuring when rear development becomes overdevelopment. It reaches a view on the available area in this case and contrasts it with the earlier decisions, but does not state a numerical density threshold or a formula for assessing site capacity ([10]-[11]).
It also does not resolve how the cited principles and planning controls might apply to materially different neighbourhood settings. The member accepted that increased density could be expected in this location and that vegetation and parkland helped the proposal fit its context ([12], [15]-[16]). The reasons do not specify how much weight those features would carry where the park is smaller, less landscaped, or differently related to the proposed buildings.
Some details were left to later plan approval by the responsible authority. These included the final driveway alignment, fencing, lighting, mailbox and bin locations, landscaping details and other amendments required by condition 2 ([2]). The permit also imposed technical flood and drainage requirements, including minimum floor levels and Melbourne Water approvals ([7]-[15]). The judgment does not describe how those conditions were subsequently implemented or whether any later dispute arose.
Finally, the source provides no information about later appeals, subsequent permit proceedings, later legal developments, or the decision’s treatment in later cases. Any assessment of those questions would require sources beyond this judgment. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
The Application for Review by the Permit Applicant/Objector is allowed in part.
The order of the Tribunal is that the decision of the Responsible Authority is set aside.
A permit is granted for two double storey dwellings behind an existing dwelling at 108 Hutton Street, Thornbury generally in accordance with the endorsed plans and subject to the following conditions:
1. The layout of the site and the size of the proposed buildings and works as shown on the endorsed plan shall not be altered or modified (whether or not in order to comply with any Statute, Statutory Rule or By-law or for any other reasons) without the consent of the Responsible Authority.
2. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans must be drawn to scale with dimensions and four copies must be provided. The plans must generally be in accordance with the plans submitted with the application but modified to show:
* A clear material (laser light type) roofing for the car space for dwelling 1;
* The visitor car parking space at the rear of the carport to dwelling 3 deleted;
* Alterations to the front facades of both dwellings 2 and 3 to provide proper ingress and egress;
* The location and design of all mailboxes, and any garbage and recylcing areas/bins;
* The re-alignment of the driveway within the site at 108 Hutton Street to ensure landscaping can be created between the dwelling and the park in the former Bracken Avenue;
* All fencing including 1.8 metre high fencing to replace the depleted fencing along allotment boundaries;
3. Each lot shown on the endorsed plan must be drained to the satisfaction of the Responsible Authority by way of a connection to the new drain at the front of the property in Hutton Street.
4. Prior to the commencement of the development a landscaping plan generally in accord with landscape design of R. Thompson of Habitat dated April 2001 which is designed to ensure that the development contributes to the parkland adjoining dwellings 2 and 3 shall be submitted and approved by the Responsible Authority. This plan shall show a schedule of all proposed planting including container size and size at maturity and botanical names of all the proposed vegetation. This plan must also show:
* All surfaces are clearly denoted, including lawns, mulched garden beds, hard paving such as asphalt, concrete, brick or gravel;
* All existing and proposed vegetation clearly indicated, including all street trees and overhanging trees on adjacent properties, with trees identified as to genus, species, height and spread;
* Constructed items, including retaining walls, letterboxes, rubbish bin receptacles, outdoor furniture, lighting, clotheslines etc;
* Proposed planting denoted with simple and clear graphics used to demarcate trees (deciduous and evergreen), shrubs, ground covers and climbers;
* A planting schedule provided describing botanical and common names, planted sizes and ultimate sizes of plants and quantities proposed;
* The legend provided clearly indicating/denoting all the information that has been shown on the plan;
* Locations of both underground and overhead services so that conflicts with proposed and existing plant can be minimised;
* Detail information is required indicating the construction requirements of the following;
* Preparation of lawn and garden beds, ie. incorporation of gypsum, cultivation of topsoil, mulch, etc;
* Paving including base and sub-base preparation and edge treatments;
* Internal fencing including heights, materials and colours that may be used;
* Details of all access points to and through the property;
* Method of soil treatment to be used prior to planting described.
5. The landscaping of the site shall be effected in accordance with the endorsed plan and be maintained to the satisfaction of the Responsible Authority.
6. Before the use and/or development starts, areas set aside for parking vehicles and access lanes as shown on the endorsed plans must be:
(a) Constructed to the satisfaction of the Responsible Authority;
(b) Properly formed to such levels that they can be used in accordance with the plans;
(c) Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority;
(d) Drained and maintained to the satisfaction of the Responsible Authority;
(e) Line marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority;
(f) Parking areas and access lanes must be kept available for these purposes at all times.
7. The floor level for the proposed northern unit (unit A) must be constructed no lower than 47.7m AHD and the floor level for the proposed centre unit (unit B) must be constructed no lower than 47.6 m AHD, as shown on Plan B.
8. Unless otherwise agreed in writing by Melbourne Water, floor levels for any new enclosed garages must be a minimum of 300mm above the applicable flood level.
9. Floor levels for open carports and driveways are to be no lower than 350mm below the applicable flood level.
10. 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, a statement/document must be provided indicating that Council considers that it is not feasible to connect to the local drainage system.
11. The owner is to accept full risk and responsibility for any flood related damage and is to indemnify Melbourne Water, its Directors, Offices and Agents from any claims resulting from flooding.
12. Measures shall be taken during construction on site to ensure that no polluted and/or sediment laden run-off is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
13. All electricity and plumbing fittings are to the satisfaction of the relevant authority.
14. No venting is allowed below the applicable flood level.
15. Upon completion of works, a certified survey plan must be submitted to Melbourne Water showing that finished surface levels (shown reduced to the Australian Height Datum) are in accordance with Melbourne Water's conditions.
16. This permit shall expire if one of the following circumstances apply:
* The development and/or use is not commenced within 1 year of the date of this permit.
* The development is not completed within 2 years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within 3 months afterwards.
The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.
Mr Nicholas Hadjigeorgiou, Planning Consultant, for the Responsible Authority.
Mr John Cicero, lawyer of Best Hooper, for the Applicants. Mr Cicero called Mr Eddy Zagami, Planning Consultant, and Mr Robert Thompson, Landscape Architect, as witnesses.
1. The proposal will prejudice the proper and orderly future planning of the area.
2. The development would lead to a loss of the garden character of the area.
3. Based on the previous Victorian Civil and Administrative Tribunal Order for the site, the current proposal is considered to be an overdevelopment.
2. Application fully supported by City of Darebin Planning Department.
1. This is an application to review a refusal of the Darebin City Council to grant a permit for two double storey dwellings behind an existing dwelling at 108 Hutton Street, Thornbury.
2. At the commencement of the hearing Mr Cicero advised that amended drawings have been produced to meet certain comments made in the Town Planner's report to Council and the conditions recommended by Melbourne Water. He did not however request that these be substituted for the plans accompanying the application as he felt that the matter would be resolved during the hearing.
"The proposal the subject of this review hearing is to retain the existing dwelling and construct two new identical dwellings at the rear of the site. The new dwellings are each comprised of one bedroom, a sitting room, kitchen, dining/family room on the ground floor and two bedrooms on the upper level. Both of the new dwellings are orientated to face the new access lane on the east side of the site and face Bracken Avenue.
It is proposed to contain the upper level in an attic style building form which is contained primarily within a steep roof pitch.
The style of dwellings is an interpretative Californian bungalow with a projecting room on one side. The material used for wall cladding will be predominantly weatherboards with an iron roof.
Car parking is provided for each of the dwellings in the form of a single car space for the existing dwelling and a carport with tandem car parking for each of the new dwellings.
Open space areas for the new dwellings are quite generous, however, the existing dwelling's private open space appears inadequate. Deck verandahs are provided off each of the main living areas to enhance the use of the open space areas."
4. I have adopted Mr Hadjigeorgiou's detailed description of this and it reads:
"The site is located on the North West corner of Hutton St & Bracken Ave.
The site is irregular in shape with an effective width to Hutton Street of approximately 12.5m, a depth along Bracken Ave of approximately 44.1m, and a total site area of 884 sqm.
It is depicted on some maps as being on the corner of Bracken Avenue but Bracken Avenue is neither a public highway nor a road. It has been developed as part of a linear park network in this part of Thornbury. The subject site has no existing right of carriageway over this park.
The site comprises existing single storey detached dwelling set back 6.0 metres from the street frontage. There are a number of mature trees along the east boundary of the site and on the north west corner of the site. The existing dwelling on site makes a positive contribution to the Hutton Street streetscape.
Abutting the site to the north are three separate allotments with a north south alignment and a frontage to Fyffe Street to the north. These dwellings are set back a reasonable distance from the common boundary. The principal private open space of these dwellings is located to the rear of these dwellings and abuts the site. These dwellings vary in setbacks from 10 to 16 metres from the common boundary. There are a number of trees that extend along the common fence line.
Abutting the site to the west is a single storey detached dwelling set back 5.5 metres from the street frontage and 1.0 metres from the common boundary. There are a number of habitable room windows along the east elevation of this dwelling as well as the `front' entrance to the dwelling.
Land directly opposite the site to the south has been developed for a mix of single storey detached dwellings.
Most dwellings along the north and south side of Hutton Street have consistent and extensive front setbacks with well maintained landscaped front gardens. Dwellings have low front fences ranging from picket fences to brick and iron fences. Allotment sizes vary in width from 10 to 25 metres. Dwellings are predominantly single storey in height.
Of the 137 sites in Hutton Street, 135 are single storey dwellings, 116 are period homes, of which 111 are California bungalows. This is reflected in its Type D characterisation in the Council's Urban Character Study.
The streetscape represents a uniform streetscape character. The front setbacks vary from approx. 5.5 to 9.0 metres, front fences vary in height and type and front gardens are well maintained with appropriate landscaping and planting. The streetscape character is homogenous in terms of front setbacks, roof pitch, facade articulation, building styles, materials, textures and the width of the blocks.
The land is generally flat in the vicinity of the site with no noticeable difference in levels with the immediate adjoining dwellings.
The site is close to a range of facilities including schools and transport along St Georges Rd to the east and recreation facilities.
An 1.52m easement exists along the northern boundary.
Tram services are available along St Georges Rd."
5. The land is zoned Residential 1, a permit is required under Clause 32.01-4 of the planning scheme for two or more dwellings on a lot. A Significant Building Overlay Area applies to the site and this requires the application to be referred to Melbourne Water in relation to flood mitigation and drainage and this is the reason why Mr Allan attended the hearing. There seems nothing in the submissions in relation to the planning provisions that would indicate that the proposal does not meet the State and Local Planning Policies including the MSS and local policies.
6. The application was made in April 2000. Further information was requested in May and in the same month new plans and a design response were provided. Following that the responsible authority notified the applicant that it would not consent to any application that provide access off Bracken Avenue because it had been turned into a park and the Council was intending to close it as a road under the Local Government Act. The revised plans were then submitted with amended access. This occurred on several occasions and finally on 16th August notice of application was given and 52 objections were received. Mediation meetings were held in October and November and new plans were received following the mediation meetings. These were then advertised and 30 objections were received containing many grounds. In December 2000 an officer report recommended approval however, the Council determined to refuse the application on the grounds as listed.
7. At the hearing all the parties presented both written and oral submissions. Photographs, plans and other information were tabled and these together with the written submissions and witness statements are retained on the Tribunal file.
8. It is interesting to note as Mr Cicero submitted that the officer's report indicated that this proposal overwhelmingly met the parameters of the Good Design Guide. The officer involved had examined the matter in detail and had come to that conclusion. The Council, however, in exercising its democratic right determined to overturn the officer's recommendation and refused the application on the grounds as listed. In dealing with the grounds of refusal and the grounds for review Mr Hadjigeorgiou argued that the Tribunal in a number of decisions in the City of Darebin had upheld the responsible authority's decisions in matters similar to this. He tabled decision 98/41456 Seiman Constructions Pty Ltd v Darebin City Council and others and 99/72254 Fanning and others v Darebin City Council In Seiman the proposal was to construct two double attached dwellings behind a double storey detached house on the site having an area of 865 sqm. The Tribunal in that matter agreed with the responsible authority that the building bulk was of major concern as the proposal appeared to present itself as one overly large building as it stepped down the site. The Tribunal was not opposed to buildings incorporating two storey elements but believed the proposal was not an acceptable response to this site and its constraints and opportunities.
9. In the Fanning matter there was a proposal to construct two extra dwellings on a corner site. The problem for the Tribunal was that on the site of approximately 670 sq metres, the area occupied by the existing dwelling was 55% of the total area and this left approximately 295 sq metres to accommodate two large units.
10. That is not the case with the subject site because the remainder of the land that could accommodate two units is in the order of 508 sq. metres. This in itself is reasonable.
11. These matters as Mr Cicero submitted are not at all similar to the matter before me.
12. Mr Hadjigeorgiou submitted that the neighbourhood character is identified as dwellings in a garden setting and therefore this is one of the reasons why the proposal is not acceptable. However, the park itself presents a garden setting and a competent landscape architect could turn an ordinary development into a garden setting, simply by his or her design skills. This is what Mr Thompson's design attempts.
13. Mr Cicero maintained that the proposal meets the provisions of the Darebin Planning Scheme. It does meet the housing demand section of the M.S.S. As Mr Bennet proposed in his report to the responsible authority, the proposal mimics the predominant Californian bungalow style throughout the area. While this is not necessarily good planning or good response to neighbourhood character it is something that the Darebin City Council seems to have taken to heart. In my opinion the design of the dwellings is very reminiscent of the Californian bungalow style and while the objectors were concerned about the height and bulk in my opinion it is mostly in the roof form and it is not at all unusual for a two storey type of Californian bungalow to exhibit the scale and height of this proposal.
14. Much was said about the impact of the proposal on the parkland setting of Bracken Avenue/Park but Mr Cicero contended, and I support his contention, that the Good Design Guide actually encourages dwellings to face onto parkland and to use the parkland as their major feature. In my opinion this is correct provided that the proposal does not use the parkland as its major source of open space and while addressing the parkland, the parkland does not become its major address. In this case the common driveway parallels the parkland and while there is a small plantation strip between the two and the two units face the parkland, they still have a sense of address to Hutton Street.
15. I am not convinced that because the majority of the houses in the area are single storey this proposal should also be single storey. In saying that I am at odds with the previous Tribunal decision by Mr Gilfillan in which he recommended to the responsible authority and others that it would be preferable to have only two dwellings on this site, both of which should be single storey and, at another time, he suggested that it may be reasonable to remove the existing dwelling and replace it with a double storey. In his decision Mr Gilfillan was dealing with four units on this site three of which were two storey. I also would have had no hesitation in refusing that particular development. I agree with Mr Cicero and Mr Zagami that the retention and upgrading of the existing Californian bungalow at the front of the site is a significant factor in both the streetscape and the neighbourhood character. I also agree with Mr Zagami that the significant vegetation along the Bracken Avenue linear park would successfully break up any perception of visual bulk from Hutton Street and the parkland.
16. In my opinion there is nothing to preclude the development of two dwellings within this quite large space at the rear of the existing dwelling. This matter must be considered in the light of the fact that this proposal is within 7 kilometres of the Central Business District. This is not an outer suburb, it is an area in which one would expect to see increased densities. It is also a situation in which these increased densities can be reduced somewhat by the fact that they are immediately abutting a well landscaped linear park.
17. In spite of the protestations of both Ms Geddes and Ms Brondou there is only one window that will overlook any private open space of the dwellings abutting the proposal and even that window is proposed to be glazed to 1.7 metres above the floor level. This significantly reduces any aspect of any overviewing of adjoining properties.
18. As I said at the hearing there may be a perception of overlooking but this is not factual. Matters of privacy have been addressed, matters of acoustic effects on amenity can also be addressed by the design of the dwellings and the addition of acoustic insulation if it is considered necessary. I don't consider that to be necessary. I understand and accept the objectors' views that the proposal could lead to a proliferation of dwellings abutting on and drawing from the Bracken Avenue parkland. However, I can only deal with what is before me and in my opinion this proposal has certain merits. I am not however convinced that the parking arrangements are optimal and I certainly am not prepared to grant a permit for a proposal that in the year 2001 simply has an open parking area for a substantial dwelling as well as no external storage.
19. I am heartened by Mr Thompson's excellent landscape design and I accept Mr Zagami's contention that it is most likely that the second parking space for dwelling 3 would probably be in the vehicle turning area to the north-east of the site abutting Mr Brondou's property.
20. While I was critical of the positioning of the second parking space in the north-easterly aspect of dwelling 2 and dwelling 3 I have reconsidered this and agree with Mr Bennet that the parking arrangements, apart from that second space of dwelling 3, are acceptable.
21. I am not concerned about overshadowing in relation to the private open space for dwelling 1 as it has a number of spaces that can be utilised as such and therefore I agree with Mr Zagami.
22. It seems to me that there it is appropriate for some lattice work to be placed on the boundary between 108 and 110 Hutton Street so that some privacy is maintained for Ms Geddes and her partner in the active private open space area of the dwelling.
23. Mr Allan's submission in relation to the floor levels required as a result of Melbourne Water's flood studies and the proposed overlay have been accepted and adopted by both the applicant and the Council and I support these as well. The appropriate conditions will be placed on the permit.
24. Mr Zagami's evidence indicates that there are to be some changes to the front facades of dwelling 2 and 3 to enable vehicular ingress and egress to the carports. I will also insist upon a simple clear roof over the parking space for dwelling 1.
Matzaris C & Damoto D
Darebin CC [2001] VCAT 2306
The responsible authority’s decision was set aside, a permit was granted for two double-storey dwellings subject to conditions, and the Responsible Authority was directed to issue the permit under section 85(1)(b).