The proposal does not provide an acceptable response to the neighbourhood character or site context

1. Various policies and provisions of the planning scheme seek to ensure development responds to its context and neighbourhood character. These include clauses 15 (Built environment and heritage),[8] the purpose of the GRZ2 at clause 32.08, and the neighbourhood character objectives and Standard B1 at Clause 55.02-1.
2. The site is in neighbourhood character Precinct F5 (Post-war) under the local 'Neighbourhood Character in Darebin' policy at clause 15.01-5L. Under this policy, development that is consistent with the preferred character statement and design guidelines in the Darebin Neighbourhood Character Study Precinct Guidelines (Planisphere, 2007) ('Precinct F5 Guidelines') is supported.
3. The preferred character statement for Precinct F5 includes:

The residential character of this area will renovation of older Postwar homes and the addition of new dwellings and renovation of older Postwar homes and the addition of new dwellings and landscaping. In parts of the area, the existing character may be changed over time and a new character created. There are opportunities to introduce well time and a new character created. There are opportunities to introduce well designed, contemporary architectural styles that adopt the established front and side setbacks to ensure consistency of dwelling spacing and adequate garden areas. In addition to sympathetic building form and siting, new development will use materials and colours that blend in with the predominant character of the streetscape, ensuring that incremental change does not conflict with the existing character. Additional planting of substantial vegetation in private gardens and street reserves will eventually give the streetscapes a more leafy quality. The spacious appearance of the area will be sustained by the use of low and transparent front fencing.

1. The preferred character statement specifies how this will be achieved, and includes Design Guidelines ('Precinct F5 Design Guidelines'), with design objectives, design responses, and outcomes to be avoided, for various character elements. I refer to these in my findings below.
2. The Council submits that the two-storey building form is an appropriate scale that is permitted in the area, and the contemporary building form suitably references existing built form without seeking to replicate traditional dwellings. It also submits that, given the width of the site and massing of the two building blocks across the frontage, and side setbacks, the proposal is an acceptable outcome that maintains the predominant rhythm of spacing of dwellings along the street.
3. The respondent submits that the two storey building forms are both unremarkable and fair, and the proposal has not sought to 'push the envelope' with respect to extent of scale, especially in consideration of the three-storey building height limit in the GRZ. The respondent argues that while the dwellings are attached, they are considerably broken down in the form through a variety of mechanisms, including pitched roof forms, variations in the front setback, variations in colours and materials, setbacks from side boundaries, and the separation into two main building forms fronting Kilmore Avenue.

The siting, form, & scale of the buildings is not acceptable in the streetscape context

1. I am not persuaded that the siting, form, and scale of the proposed buildings provides an acceptable response to the preferred neighbourhood character or the site context.
2. The preferred character statement for Precinct F5 includes:

Encouraging more contemporary architectural styles in streets that have few period dwellings. These buildings must adopt the predominant scale, form and setbacks of their streetscape context, while showing design innovation.

1. The local Urban Design policy at clause 15.01-1L-01 and the design guidelines of the Precinct F5 Guidelines seek to:
   • Encourage development that responds to the predominant rhythm of the streetscape.
   • Maintain and reinforce the side boundary setback pattern and the dwellings.
   • To ensure that buildings and extensions respect the predominant height and form of buildings in the streetscape.
   • Avoid buildings that are out of scale with adjoining buildings or that appear to dominate the streetscape.
   • Avoid large, bulky buildings with unarticulated wall surfaces.
2. I am not persuaded by the Council's submissions that:

The proposed development is a contextual response that provides a high quality outcome in terms of neighbourhood character. The layout of the building blocks maintains a sense of space between buildings, .... No walls are proposed on existing boundaries, to ensure the side setback rhythm of the street is protected and a single storey built form is provided to the south-west site interface to provide a transition to the existing single storey dwelling that is built to the boundary. Overall, the layout maintains an openness across the site.[9]

1. Rather, I am persuaded by the applicant that, rather than responding to the existing context, the design has little reference to the existing siting, setbacks, rhythm, and form of surrounding development.
2. I find that the attached form of the dwellings arranged in two buildings across the width of the site frontage does not reflect or respect the scale and form of the streetscape context or the pattern or rhythm of buildings within the streetscape. The proposal will introduce an attached, two-storey terrace form. It will present two, two-storey horizontal masses within a streetscape which has a consistent pattern and rhythm of one-storey detached houses, or pairs of small semi-detached houses. This is evident in Figures 1 and 2.
3. I am persuaded by the applicant that while separation is proposed between dwellings 3 and 4, and a break provided between dwelling 1 and the south-western boundary, neither the siting, rhythm, or extent of attached construction bears any resemblance or response to surrounding development.
4. The approximately 5.5 metre setback of dwelling 1 from the south-western side boundary results in a substantial gap in the presentation of the development within the streetscape, which disrupts the consistent rhythm. Although the bin storage and services area are located in this area, set back 1 metre from that side boundary, I am not persuaded this is sufficient to off-set the impact of the substantial setback of dwelling 1 on the pattern and rhythm of the streetscape. The setback along the south-western side is inconsistent with the Precinct F5 Design Guidelines that seek 'To maintain and reinforce the side boundary setback pattern and the existing rhythm of spacing between dwellings'.
5. While I agree with the Council that the development pattern is evolving and several multi-unit developments are evident in the area, those developments do not reflect the building form, scale or siting of this proposal. Existing multi-dwelling developments are typically on single lots, with dwellings arranged one behind the other down the length of lots. They maintain the pattern and rhythm of single dwellings facing the street, with side setbacks between individual dwellings in the streetscape.
6. Although the facades of the proposed dwellings are articulated with a variety of setbacks, materials, and colours, I am not satisfied this reflects or responds to the rhythm of the streetscape in an acceptable way. The variations in the setbacks from the front boundary are shallow and the articulation of the front facades creates a series of narrow and sheer vertical forms that accentuate the two-storey height and overall mass of the buildings. This is evident in the perspective image in Figure 2.
7. The form and scale of the proposed buildings is exacerbated by the encroachment of the front walls forward of the setbacks of the dwellings on the adjoining properties. In the context of the dwellings on the adjoining properties, the proposal requires a front setback of 7.2 metres under Standard B6 at clause 55.03-1. The proposed building setbacks range between 5.0 metres and 6.0 metres at ground floor level and 5.0 metres and 6.6 metres at first floor level. These reduced setbacks will accentuate the building form and scale of the two buildings in the streetscape.
8. The visual impact of the proposal on the streetscape and neighbourhood character will also be exacerbated by the site being located mid-way along the street. It will be a significant visual element that is discordant with and disruptive in the streetscape.
9. While the proposal has been included in the Council's Design Excellence Program 'Case Studies' (April 2023), this does not persuade me that the proposal provides an acceptable response to the neighbourhood character provisions and policies in the Scheme. The case study does not address the provisions and policies of the Scheme. Rather, it compares the proposal against earlier designs for the site and appears to assess the development in isolation of its context and interfaces to the streetscape and surrounding properties.

The siting, form & scale of the building is not acceptable at the rear boundary interface

1. The applicant is concerned about the impact of building bulk and massing when viewed from the rear yards of 14, 16 and 18 Kyneton Avenue.
2. The Council submits that although the dwellings are attached there is sufficient separation incorporated to ensure any impacts of visual bulk are minimal.
3. The respondent submits that while the rear building form is attached, it is highly articulated through differing boundary setbacks, materiality, form, and colours. It also argues that the proposal allows for continuous landscaping along the rear boundary.
4. The proposal complies with the 'rear setback' standard B17 at clause 55.04-1, which has the effect that the proposal is deemed to meet the associated objective[10]-

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

However, this does not mean that other aspects of the building design and siting are acceptable.

1. I rely on the findings of Member Deidun in D'Andrea v Boroondara CC[11] that-

1. ...the effect of Amendment VC243 is to mandate that compliance with Standard B17, achieves acceptable amenity outcomes for existing dwellings, in relation to the height and setback of a building from a side or rear boundary.

2. However, this does not mean that there can be no further assessment of the visual bulk impact of a proposal on its context. That is because it still remains the case that Standard B17 only deals with the height and setback of walls from a side or rear boundary, it does not deal with all matters or relevant considerations that influences visual bulk. ... other matters that relate to the visual amenity impact of a building are not addressed by the Side and rear setbacks objective, and are therefore still before me. These include building length, articulation, colors and materials, which are not covered by Standard B17 or the Side and rear setbacks objective.

1. I also rely on the findings of Senior Member Bennett in Oechsle v Frankston CC[12] as follows-
   1. However, I acknowledge that even if all the requirements in clause 55 relating to standards B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 are met, an application could still be refused on neighbourhood character grounds. That is because clause 55 contains qualitative standards that require a judgement call as to whether the related objective is met.
   2. For example, standard B31 concerning detailed design is a qualitative standard dealing with the design of buildings. The objective encourages design detail that respects existing and preferred neighbourhood character. The decision guidelines state that the responsible authority must consider:
      • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
      • The design response.
      • The effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting.
      • Whether the design is innovative and of a high architectural standard.

1. I find that the form and scale of the building in the rear portion of the site is inconsistent with the siting, form, scale, and rhythm of buildings in the neighbourhood. The proposal presents a row of seven attached townhouse forms across a length of 40 metres. The building form will extend across the full width of 14 and 16 Kyneton Avenue to the rear and will be visible from the properties either side of those. I find that the extent of the single continuous building form and mass across the rear portion of the site will present an unacceptable visual impact on the character of the area as viewed from these properties. The visual impact is intensified by the upper levels of the proposed dwellings cantilevering over the ground levels. I am not persuaded that the articulation of the upper level, through windows, and variations in setbacks, materials and finishes, similar to the front elevations, lessens the visual bulk impact.
2. For these same reasons I find that the proposal will present an unacceptable visual impact on the amenity of the properties at 14 and 16 Kyneton Avenue.

Other elements of the siting and design of the proposal are not acceptable

1. Other elements of the proposal that do not respond to or respect the neighbourhood character include the following:
   1. The siting and design of the bin storage area, services cabinets, and covered bicycle storage area, forward of the front walls of the dwelling on the adjoining property at no. 7 to the south-west, will be a discordant feature in the streetscape. They are not integrated into the overall design of the proposal, but stand alone, isolated between the driveway and south-western side of the site within the streetscape setting. The visual impact of the bin storage, service cabinets, and bicycle storage, will be accentuated by their flat roofed, boxy form adjacent to and forward of the dwelling at no. 7, which is the pair of the semi-detached dwelling on the lot at no. 9 that is to be demolished as part of the proposal.
   2. The visual impact of the sheer two storey form of the south-western wall of dwelling 1, and the sheer horizontal wall of the upper storey of dwelling 7 (to the north-east). These walls lack articulation and will be highly visible within the streetscape due to their siting close to the street frontage, setbacks from side boundaries, the low scale of adjacent buildings, and lack of landscaping to filter views to these walls.
2. The location and expanse of the ground level car park in the rear western corner of the site creates a substantial area devoid of landscaping opportunities at the interface with the rear yards of adjoining properties. This is inconsistent with the Precinct F5 Design Guidelines that seek to 'Set new development back from side or rear boundaries to provide a generous space for landscaping' and avoid 'Lack of rear garden space for landscaping'. The landscaping plan[13] shows a row of shrubs with a potential mature height of 2.5 metres, in the 1.0 -1.395 metre setback along the south-western side boundary. No landscaping is proposed along the north-western boundary to the rear of the car park. While there may be an opportunity for planting some narrow growing trees along this side boundary, the siting of the car park does not provide opportunities for landscaping along the rear of the car park at the interface with the properties at 10 and 12 Kyneton Avenue.

1. For these reasons, I find that the proposal does not provide an acceptable response to the neighbourhood character or site context.

The reduction in car parking is not acceptable

1. The application seeks a reduction in the car parking spaces that are required to be provided on the site under the car parking provisions of clause 52.06.
2. Under these provisions, each two bedroom dwelling requires one car parking space, and each three bedroom dwelling requires two car parking spaces. Because the site is within the PPTN area, no visitor car parking is required to be provided on the site.
3. All the two bedroom dwellings (dwellings 7, 8, 10 12, and 14) will each have one car space. Dwellings 3 and 4, which are three-bedroom dwellings, will each have two car spaces. The car parking allocated to these dwellings complies with the clause 52.06 requirement. However, the seven other three-bedroom dwellings (dwellings 1, 2, 5, 6, 9, 11, and 13) will have only one car parking space each, and do not meet the car parking requirement. The proposal requires a reduction of seven car parking spaces for these dwellings.
4. The applicant submits that the proposal will result in an unacceptable impact on the surrounding area given what they say is the reasonably extensive reduction in carparking proposed. They argue that it is unusual for an application to seek reductions in the resident parking provision in residential hinterland areas such as this.
5. The Council submits that an assessment of the car parking has been undertaken and the proposal is considered an acceptable outcome. It argues that all dwellings will have access to at least one car parking space, are provided with bicycle parking, and are located close to services, retail, and public transport.
6. The respondent submits that the shortfall in parking is supported by, in summary:
   • the frontage of the site providing nine on-street carparking spaces;
   • according to Australian Bureau of Statistics ('ABS') data cited in its traffic report,[14] 40% of three-bedrooms dwellings within the City of Darebin have two cars, and 9% have no cars; applying the 40% rate 3.6 of the nine three-bedroom dwellings would have two cars;
   • the site is in the PPTN suggesting it has good access to high-quality and regular public transport;
   • the site is proximate to services and facilities, including schools and childcare centres, reducing the need for a second car;
   • eight bicycle spaces for private use and four bicycle spaces for visitor use, are provided;
   • the local 'Car parking' policy at clause 18.02-4L supports these points.

1. Having regard to the decision guidelines for applications to reduce the carparking requirement at clause 52.06-7, I am satisfied that several aspects of the site's location and the proposal provide some support for a reduction in the standard car parking requirement. These include:
   1. the site's location in proximity to services and facilities, its location in the PPTN, and provision of bicycle parking, provide the potential for alternative transport modes of walking, public transport, and cycling, to be used by residents and visitors;
   2. the increase in the number of on-street parking spaces in Kilmore Avenue, due to the removal of the existing vehicle crossovers to the properties at 11, 13, and 15 Kilmore Avenue.
2. However, I am not persuaded that the amount of the car parking reduction sought by this proposal is acceptable. This is because:
   1. The ratio of three-bedroom dwellings that will have only one car parking space substantially exceeds the vehicle ownership ratios on which the traffic report is based. The ABS data indicates that 40.6% of three-bedroom dwellings in the municipality and 39.4% of three-bedroom dwellings in Reservoir have only one vehicle. However, the proposal for seven of the nine three-bedroom dwellings that will have only once car parking space equates to a ratio of approximately 77%, which is substantially greater than the ABS rates.
   2. The site is not so proximate to the retail core of the Reservoir Activity Centre and train station to support a finding that alternative modes of transport will substantially replace or reduce demand for car transport. The site is about 1 kilometre from the edge of the Reservoir Activity Centre, and 1.5 kilometres from the train station.
   3. I am not persuaded by the traffic report's statement that 'the parking near the site frontage currently experiences a low demand for on-street carparking and is able to readily accommodate an increase in parking demand in the event the site generates an off-site parking demand'. This assessment relies on a parking survey that is based on aerial photographs between October 2021 and September 2022. The reliability of this method and data has not been tested, as the person who prepared the traffic report was not called to give evidence at the hearing. My concerns with the assessment include that the times of day the photographs were taken is not included in the report, so it is unclear whether the parking demand and available car parking spaces is reflective of peak demand periods.
   4. The circumstances of the site and the proposal do not create a situation where it is impractical to provide the required car parking spaces on the site. The site is a regular shape, flat, with a wide frontage to the street, and no buildings or trees to be retained that may impact the ability to provide car parking on the site.
3. For these reasons, on the information before me, I find that the proposed reduction of the requirement for seven car parking spaces to be provided on the site is not an acceptable outcome.

1. Dwellings 8 to 13 are not provided with the minimum area of private open space required under Standard B28 at clause 55.05-4 'Private open space objective'. Under the standard these dwellings require an overall area of 40 square metres with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 25 square metres. While these dwellings each have a rear courtyard secluded private open space of either 25 or 26 square metres, they do not achieve the overall area of 40 square meters.
2. I am satisfied that some aspects of the proposal's design and the site's location support a reduction in the private open space for these dwellings. This includes the northern orientation of the secluded private open spaces, the provision of a communal open space area as part of the proposal, and the site's location in proximity to the extensive open space along the Darebin Creek, to the east.
3. However, I am not satisfied that the proposal provides adequate private open spaces to meet the reasonable recreation and service needs of the residents of these dwellings. This is because:
   1. The rear courtyard secluded private open spaces for dwellings 8 to 13 also need to contain all the services for each dwelling, including hot water services, water storage tanks, clotheslines, and storage sheds. This reduces the area available for recreational purposes.
   2. While the communal open space provides an alternative space, it offers little more than a shared courtyard space with seating that is only marginally larger than the secluded private open spaces, being about 35 square metres.
   3. The communal open space is substantially overshadowed from 12 noon, and completely overshadowed from 2:00pm during the September equinox. The rear courtyards of dwellings 8 to 13 are also overshadowed (by the boundary fences) at the same times.
4. I am persuaded by the applicant that the reduced open space areas for so many of the dwellings is symptomatic of the overdevelopment of the site.

1. For the reasons I have outlined, I find that the proposal does not provide an acceptable outcome regarding the neighbourhood character, car parking, or provision of open space for residents.
2. These issues are the result of the proposal prioritising the number of dwellings over providing an acceptable design response to the provisions and policies relating to neighbourhood character, car parking, and open space.
3. These are not minor matters that can be readily addressed by permit conditions. Rather, I consider that more substantial changes to the plans would be required. Such changes may necessitate the number of dwellings or the number of bedrooms in some dwellings being reduced, and/or the siting and design of the proposed dwellings being changed.
4. For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.

[1] Source: Plan no. A07, prepared by C. Kairouz Architects & Associates, Job No. SKA 17-071, Amendment No. TP-7 'VCAT Substituted documents', dated 22/12/2023.

[2] Source: Plan no. A16, prepared by C. Kairouz Architects & Associates, Job No. SKA 17-071, Amendment No. TP-7 'VCAT Substituted documents', dated 22/12/2023.

[3] Source: Nearmap (Photo dated 15 May 2024). The review site is identified by a red boundary and shading.

[4] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[5] Standard B6 at clause 55.03-1 of the Darebin Planning Scheme.

[6] Having regard to Clause 71.02-3 of the Darebin Planning Scheme.

[7] For example, clauses 16.01-1S Housing supply, 16.01-1R Housing supply - Metropolitan Melbourne, 16.01-2S Housing affordability.

[8] For example, clauses 15.01-1S and 15.01-1L-01 (Urban design), 15.01-2S (Building design), 15.01-5S (Neighbourhood character), and 15.01-5L (Neighbourhood character in Darebin).

[9] Council's written submission [114].

[13] The landscape plan on which the respondent relies is the landscape plan prepared by Infinity Landscape Architects, Project No. 109.2020, Revision E, dated 13 February 2023. That plan formed part of the permit application documents that precede the amended plans that have been substituted for the permit application plans.

[14] Car Parking Assessment prepared by Amber Organisation, 1 December 2022.