1. It was really common ground in this case that the site is an excellent one for at least some form of multiple dwelling development. It is located on the north-west corner of the intersection of Clynden Avenue with Illowa Street. This means that it has two frontages. This is an advantage for a multiple dwelling development as it enables some to front each street and affords considerable economies in terms of space needed for vehicle driveways. In this case there is also a rear laneway paved in concrete which gives rear access and drainage opportunities.
2. The review site already has a two storey brick block of flats containing two dwellings. This building is favourably placed from the point of view of constructing an extension to the rear (taking it that the frontage is to Clynden Avenue) with new dwellings able to front Illowa Street.
3. The site is a very short walk to the west of the Darling railway station and a similarly short walk to the east of a shopping centre based on Malvern Road, and partly turning the corner into Illowa Street.
4. Just beyond the railway line, and accessible by means of an overhead pedestrian bridge, there is a substantial linear public open space area running in both directions along the course of Gardiners Creek.

1. The land is subject to flooding and is consequently covered by a Special Building Overlay. Melbourne Water is the referral authority in this respect. It does not object to the proposal. It has some specifications as to conditions.

1. The responsible authority referred the proposal to several of its departments or officers. Although some comments were received none objected to the proposal or recommended its refusal, except in relation to urban design.
2. Mr English quoted the comments from that quarter in full. The comments contained some passages descriptive of the proposal. I suppose some comments made are not wholly favourable. They did not indicate refusal of the proposal except for criticism of the south elevation. The criticism here was that the ground floor elevations facing Illowa Street are dominated by car parking and garage doors which is said to be undesirable and productive of "non-active frontages" to a side street. This was said to be utterly unnecessary as there is a rear laneway which could be utilised.
3. I would share this concern if it was true that this frontage was to be dominated by car parking and garage doors. However, I am satisfied, after examining the plans myself, that these criticisms are misconceived being based on a misreading of the plans. This frontage and the front setback will not be dominated by car parking or garage doors. There is one driveway to lead into the ground floor car park. I think this is quite reasonable in the circumstances. It will, in fact, be suitably active.
4. Furthermore, I am not satisfied that even the one vehicle entry on that side is "unnecessary". Although it is true that there is a rear lane, and that some access could be obtained from that rear lane, the shape and orientation of the site is such that access from there, and access within the site for vehicles from there, would be much less satisfactory and much less workable than the current proposal.

1. Mr English redefined and restated the grounds of refusal relied on by the responsible authority. Although he did so in a single sentence he then proceeded to deal with the case of the responsible authority under four subheadings. They are:
   1. Impacts of bulk and scale on the streetscape
   2. Impacts on adjoining properties (in fact the adjoining property of Ms Schiller at 29 Clynden Avenue)
   3. Internal amenity
   4. Infrastructure
2. I find it convenient to deal with them in the reverse order.

1. This is a concern about possible adverse affects on drainage due to the increased roof area. Mr English conceded that this is not a primary ground of refusal and, standing alone, would not justify a refusal. It does not in fact support a refusal at all. The relevant referral authority is happy with the proposal, subject to the imposition of suitable conditions. In other words, any perceived problems of this sort can be dealt with by conditions, and should be. It amounts to a ground for imposing conditions, not a ground for refusal.
2. Ms Schiller also had apprehensions in relation to drainage, but as I have said, I am satisfied that this issue does not warrant refusal.

1. The three proposed new dwellings will not have usable private open space separate to each dwelling, except for reliance on first and second floor balconies. Such reliance is quite common enough in relation to apartments like those proposed in this case.
2. Two of these units have second floor balconies facing north (or what we are calling north but which is really north-west). These are secondary balconies serving bedrooms. The third of the new dwellings will have a second floor bedrooms served by a west (really south-west) facing balcony.
3. The main private open space areas for the three new dwellings are balconies facing south, which is really south-east. These are substantial in area, at first floor level and serve living rooms at that level.
4. It is fair to say, as the responsible authority maintains, that it would be preferable to have balconies serving living areas having northern orientation and solar access accordingly. It is much less favourable to have them facing to the south, although these ones really face south-east and are consequently not quite so unfavourable.
5. Whilst I recognise, and agree, that this is less than ideal; I also recognise that the ideal is not always attainable. Less than ideal should not necessarily be equated with unacceptable. All in all, in the particular circumstances of this case, I consider the proposal acceptable in relation to this question.
6. I note that Ms Schiller also had concerns in this regard.

Impact on the Adjoining Property at 29 Clynden Avenue

1. There are several aspects under this sub-heading. One is the question of daylight to some habitable room windows at the ground floor of 29 Clynden Avenue. I agree with Mr Crawford, who appeared for the Applicants, that the major aspects or views from within the adjoining building are those to the front street, and those, through the bay window at the rear of the property at ground floor level. Nevertheless, in the middle of the building at ground floor level, there are habitable rooms with south facing windows. They look out onto what is already, in effect, a courtyard. They cannot receive direct sunlight as they are on the south side of their host building and are overhung by first floor features above them. The existing two storey building on the review site blocks them in, to some extent, on the southern side. The proposal would extend to two storey construction further to the west, past those windows although the existing structure extends across most of their aspect. When I say two storey here, the proposal in fact envisages three storeys, although having regard to ceiling heights, the actual height is only slightly and insignificantly higher than the top of the roof of the existing building and, indeed, the top of the roof at 29 Clynden Avenue.
2. Direct sunlight to the windows concerned, and substantially to the courtyard in any event, is not possible. Direct sunlight is not the same thing as daylight. I consider that the effect on daylight, in the courtyard area, and through those windows, will not significantly change. I say this in spite of the concerns and apprehensions expressed by Ms Schiller.
3. The other aspect is the extent of the extension to the building in terms of height and bulk, and the degree to which is might be said to dominate the rear secluded private open space area at the back of Ms Schiller's house. There are no overlooking concerns in this respect, as all windows and balconies facing that way will be adequately screened.
4. The building is designed to reduce somewhat, the impact of building bulk in relation to the rear yard. Nevertheless it is undeniable that this proposed development would change the view to the south from within the adjoining backyard by placing increased building in that view. This represents some screening of view that might otherwise be had to vegetation in the current vacant backyard, and some minor reduction of view of the sky in a southerly direction. I can well understand that Ms Schiller much prefers the present situation, and would wish it to remain.
5. Nevertheless, this backyard, and the bay window that protrudes into it, look more to the west, and have quite good prospects in that direction, and to the north. To the west there is the laneway and beyond that an outdoor carpark which would not be visible from within the yard.
6. Of course planning does not necessarily prevent new development, or prevent new development from altering views to some extent. It is more a question of whether this backyard would become unduly and unreasonably enclosed and over-dominated by the proposal. Whilst recognising that this disagrees with the responsible authority, and will disappoint Ms Schiller, I have come to the conclusion that these effects are not unreasonable in the circumstances.

1. The point emphasised in this respect by Mr English is to point out that the proposal to extend the existing two storey building almost to the rear of the site presenting a continuous built form, whether considered to be of two or three storeys, to a height of over 8 metres.
2. This is a concern, although the design is modern and innovative, and features considerable and suitable articulation. Imaginative use of materials and shapes are also involved. The property is a corner site, and the three new dwellings, although contained within the one building, will be arrayed down the site, and so as to face onto the side street. I have concluded that this is acceptable in the present case. In saying this I consider it to be acceptable from the various points of view available in the public realm, including the carpark opposite, the rear lane, various points in Illowa Street and also to the east in Clynden Avenue and beyond. I consider the same to be true in relation to the adjoining property to the north.
3. In terms of neighbourhood character, which received some attention in the course of the hearing, I note that it is recognised that this is an area in transition. The existing building on the land dates from the late interwar period as do other single storey dwellings in the locality. Although some mention could be made of existing neighbourhood character, it nevertheless has to be recognised that this area is in transition, and its prospective future neighbourhood character is more to the point. This immediate locality is such a prime one for multi dwelling redevelopment that it is not realistic to suppose that it will not be transformed with such redevelopment within the next decade or two. The relationship to the existing neighbourhood character is of more considerable significance where such character can be expected to remain unchanged into the future.
4. The immediate locality, even today, includes not only existing residential development in the residential area but also the nearby commercial area with single and two storey commercial buildings in close proximity, including in Illowa Street. The site can be said to be at the interface.
5. The existing building is bland and unprepossessing. It is not much in keeping, in terms of scale or style, with nearby residential buildings in Clynden Avenue. I agree that Illowa Street, in this proximity, is much more mixed. I consider the proposed extensions to be well designed and well thought out. They would made a positive contribution to the streetscape in relation to both streets and even the lane and the adjoining car park. The new extension will be more interesting and attractive. This is not to say that it would be immensely beautiful, or even that it could not be marginally improved upon, but I consider it to be acceptable, indeed, rather good. The whole site, in its streetscapes, will be improved compared to the current situation. The existing building makes little contribution to either streetscape, and the long "sideage" to Illowa Street with its paling fence is bland, boring and makes little contribution.
6. The site and its frontage to the street will be more alive, and I do not accept that this is defeated by the habitable rooms being at first and second floor above the ground floor carpark.
7. The carpark will be separated from the street by its curving driveway and entrance, and metal picketing or perforated wall covering that will allow natural ventilation of the carpark. I do not regard the ground floor aspect along Illowa Street as being, by any means, the high point of the proposal. I regard it as merely acceptable.

1. The so called "ResCode" provisions found in Clause 55 of the planning scheme are applicable to this case because it involves more than one dwelling on the lot. These ResCode provisions, with their various objectives and standards, are intended to guide and inform judgements in relation to various aspects of amenity including internal and external amenity, and amenity of neighbouring properties. It is conceded that the objectives and standards are met, save for an argument about neighbourhood character which does not have measurable standards, and which, for the reasons I have already given, I reject.
2. Ms Schiller points out that some of these guidelines are only just met, as if this is a reason for rejection. I am afraid it is not.
3. It is perfectly understandable that those proposing this development will seek to maximise the yield of dwellings reasonably possible of achievement on this site. That is, no doubt, in their financial interests. They are entitled to pursue those interests, but not beyond the limits of reasonable planning concerns.
4. It should not be supposed that good planning involves forever trying to minimise proposals. Various significant planning policies and purposes, including that metropolitan document known as Melbourne 2030, look for urban consolidation as well as the provision of a variety of styles and size of dwellings to meet various needs. They particularly look for such development in close proximity to shops and stations and the like; and to capitalise on existing infrastructure by making fuller use of it. Whilst it is right to say that overdevelopment represents bad planning, it can equally be said that underdevelopment compromises many important planning purposes, and is also bad planning. It is the optimum or best balance between these competing considerations that should be sought. This certainly does not mean development that underutilises the potential of a site.
5. A further comment in relation to neighbourhood character is, perhaps, in order. New development should respect neighbourhood character, in this case particularly the emerging neighbourhood character. This does not necessarily mean copying it. Contrasts can complement. It is also true that some contrasts can do the opposite and be quite out of place. In this case, although there is some reflection of the immediate locality in terms of colouring, I do not think that the variations in style including the curved roof of the new section or the modern style articulation and materials of the new structure are detrimental to the existing building or the locality. On the contrary, I consider them to be suitable.

1. The question of conditions was considered, in the course of the hearing, in terms of a set of draft conditions submitted by the responsible authority. Various possible modifications were discussed. I consider myself free, in circumstances like this, to make my own decisions to what conditions are appropriate, and to reword and alter the arrangement of conditions to improve English expression, understandability and style. I can put them into what I consider to be the appropriate form.

1. For the reasons given I consider that the Applicants, and, for that matter, the officers of the responsible authority, are right in saying that the decision of the responsible authority to refuse to grant this permit should not be affirmed but that a permit should be granted, subject to conditions.