1. Leave was granted to amend the application by substituting the name of the permit applicant from Neil Fletcher Design Pty Ltd to Andrew McDonald, c/o Best Hooper, 563 Little Lonsdale Street, Melbourne.
2. In permit application KP882/08, the decision of the Responsible Authority is set aside. A permit is granted and is to be issued. The permit relates to the land at 42-44 Westley Street, Carrum. The permit will allow the development of six dwellings in accordance with endorsed plans.
3. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Approval is sought to develop the land for six dwellings, four of which are double storeys. The four double storey dwellings provide three bedrooms, and except Dwelling 2, also provide a study. The two single storey dwelling at the rear of the land provides two bedrooms. Each dwelling is provided with a single width garage plus a tandem car space. A visitor car space is located near the centre of the site. There will be three crossovers: one for each of the dwellings having direct frontage to Westley Street (Dwellings 1 and 4), and a central driveway for the four dwellings arranged around this driveway.

The development is constructed to the boundaries along the side and rear boundaries for garages and parts of the dwellings. It presents two double storey single dwellings to the street. The design of the development adopts commonly found features of face brickwork for ground floor walls, lightweight rendered surface for first floor walls, and hipped roofs with eaves. The dwellings are either detached (Dwellings 1, 4 and 2) or attached by garages.

Residential 3 Zone. Special Building Overlay. The application was referred to Melbourne Water because of the overlay, which did not object subject to conditions. These conditions have been included in the permit.

Clauses 11, 12, 14, 16.2, 19.03, 21.05, 22.11, 55 and 65.

The site is located on the west (west south west) side of Westley Street, Carrum. Westley Street is one the dead end streets between the Patterson River and McLeod Road, Carrum.

The site is made up of two lots (42 and 44 Westley Street) and a strip of unused land indentified as a right-of-way adjoining the southern boundary. It has a combined width of 27.4 metres, a depth of 56.3 metres, and a total site area of 1542 sq m. It is vacant land. The issue of the ROW is a contention of this review.

Westley Street is a residential street of single dwellings and unit development of one and two storey heights. The site is close to the southern end of the street near McLeod Road. Development in McLeod Road near the site is a mixture of single dwellings and medium density development. Nos. 71, 75 and 77 McLeod Street which have direct abuttal to the site are unit development. At the rear of the site are single dwellings at 25 and 27 Riversdale Avenue.

1. The permit applicant proposes to develop the site for six dwellings, four of which are double storeys. Two of these are single storey and they are the rearmost dwellings.
2. Council has failed to issue a permit within the prescribed time. Were it in a position to determine the application, it would have refused it on the grounds of adverse effects on the amenity of an established residential neighbourhood, overdevelopment, excessive bulk and scale, not satisfying all the requirements of Clause 55, and using a laneway that should not be built on due to the presence of a sewerage pipe.
3. My perusal of Council documents revealed that Council officer made a favourable recommendation to approve the proposal subject to conditions. However, this report also provided a number of grounds of refusal, "in the event that Council wish to oppose the application ...)[1].
4. The issues raised by this review are whether the scale of development is an appropriate response to the context of the site, being in an incremental housing change area; and whether the status of the ROW within the site an obstruction to the development.

1. Whilst the state and local planning policy frameworks have a general policy direction for urban consolidation, the Scheme has set out a framework for residential development depending on their proximity to services.
2. Clause 21.05 sets out the levels of intensity of development, such as increased housing diversity area, incremental housing change area, minimal housing change area, residential renewal area, and areas of special character.
3. The review site is in the Incremental Change Housing Area. Such an area is:

The type of housing change anticipated in these areas will take the form of extensions to existing houses, new single dwellings or the equivalent of new two dwelling developments on average size lots. The existing single dwelling character of this area is to be retained.

1. In Clause 22.11 Residential Development Policy, Incremental Housing Change areas are to:

In suburban locations which are not within convenient walking distance of public transport and activities centres, encourage lower density housing forms with a predominance of single dwelling and the equivalent of dual occupancy developments on average sized lots.

1. With regard to neighbourhood character, it is policy to apply the Kingston Neighbourhood Character Guidelines 2007. For Incremental Housing Change areas, it is policy to ensure that new housing development is responsive to maintaining the existing and preferred single dwelling/lower density nature of these areas.
2. In terms of built form, siting and scale of development, it is policy to:
   • Encourage the two storey component of new medium density housing to be located towards the front of a site.
   • Ensure that two storey dwellings are designed to respond to the character of the local neighbourhood. Where the local neighbourhood is characterised by single storey development and this characteristic makes a major or critical contribution to neighbourhood character, new two storey development should incorporate rooms within the roof form of attic style dwellings, and should set the second storey building envelope back from the ground level envelope.
   • Ensure that any upper storey components towards the rear of the sites are sensitively designed to avoid unreasonable adverse amenity impacts on neighbours.
   • Encourage well articulated and gradated elevations in order to avoid 'box-like' double storey designs, thus reducing visual bulk
   • Ensue that the siting of new buildings respects the amenity of adjoining neighbours with regard to rear yards and garden outlooks from habitable living room windows.
   • Ensure that the design and layout of new dwellings incorporate features which minimise overlooking of adjacent properties.
   • Address potential overlooking through site layout planning as well as individual dwelling planning.
3. In terms of car parking, it is policy that carports and garages are located at the rear of dwellings fronting a street wherever possible. If they face the street, they are to be set back a greater distance than the front wall of the building. It is also policy that tandem parking arrangement is encouraged.
4. Against such a policy background, Council argued that the extent of change should be limited, and that six dwellings on the land represent a higher density form that is contrary to the desired single dwelling character. It also argued that the proposal is excessive in bulk and the extent of double storey built form, that such an extent of built form exceeds the scale of any other existing development in the street. It contended that six dwellings is not the equivalent of a dual occupancy on an average sized lot and it is not the 'lower density housing form' the Scheme seeks. If the Tribunal were to issue a permit, it would recommend Dwellings 2 and 5 (the middle two dwellings) to become single storeys.
5. As for the principle of a dual occupancy on an average sized lot, Council submitted that the average size of each lot in the area is 770 sq m. The proposal, the equivalent of three dwellings on a lot, exceeds this average.
6. Another design criticism is the proposed setback of the development. According to Standard B6, the setback of the development should be 7.7 metres, being an average of the 3 metre setback of No. 46 Westley Street (which is the second dwelling of the dual occupancy development at 77 McLeod Road) and the 12.56 metre setback of the house at No. 40 Westley Street. Council submitted that the proposed front setback of 6.42 metres fails to meet this standard. It, however, acknowledges that there is a large carport with a gabled roof across the front facade of the house at No. 40 Westley Street. If the setback of the carport is used to calculate the front setback of the development, the proposed setback would meet the standard.
7. Mr. Sherwan, on behalf of the respondent objectors, highlighted their concerns of the extent of double storey construction, that the development is a "high density, multi unit development which is only suited to an area such as an Activity Centre Zone, definitely not an Incremental Change Zone", that the proposed density of one dwelling per 257 sq m exceeds the one per 289 sq m for this area, resulting in significant impact on the neighbourhood character.
8. On the other hand, Mr. Crawford submitted that the design is respectful of the character of the area and that it complies with ResCode. He noted that the two storey elements are to the street as encouraged by Clause 22.11 and towards the middle of the site with the rear most dwellings single storeys.
9. With regard to the proposed density of 1 dwelling per 257 sq m, he noted that the nominated average sized lot of 286 sq m is not far off the 257 sq m. proposed. He calculated the density yield according to this formula at 5.5 dwellings for the land. He submitted that the land, being a double lot, is rare. It offers an opportunity for development not commonly found in the area. He pointed out a development of 10 dwellings in the street[2].
10. As far as density of the proposal is concerned, it is for six dwellings on a double lot on a density of 257 sq m where the formula for calculating development is 289 sq m per dwelling based on an average lot size for the area (Area 6). I agree with Mr. Crawford that this density is not far from the recommended 289 sq m, with the advantage of the site being a double lot.
11. The relevant consideration is whether the scale of development and amount of built form, including the two storey building mass, fit in the ambit of an Incremental Change area.
12. Policies for an incremental change area allows for development of more than one dwelling on a lot, and made recommendation for two storey built form. Clause 22.11 recommended two storey built form to be attic style if the area is identified to be a single storey area which makes a critical or major contribution to the character of the area. It is not the case for the land. The only design elements nominated in the neighbourhood character study to make a major contribution are roof form and external materials.
13. A two storey built form is hence not contrary to design policies. These policies also prefer the two storey section towards the front of the land. They do not say only the front dwellings can be two storeys. The proposed two double storey built form at the front, presenting one dwelling on one lot, reinforces the single dwelling streetscape presentation of the street. The next set of double storey built form is Dwellings 2 and 5.
14. Council officer recommended that these two dwellings be converted to single storey dwellings. I do not see the need to do so. Dwelling 5 is opposite the two storey building mass of No. 40 to the north. The extent of the two storey built form in that dwelling is quite close to the common boundary at 1.4 metres. The first floor footprint of Dwelling 5 has a deeper setback from the common boundary at a minimum of 2.035 metres and for a much shorter length than that building. In other words, the two storey building mass at No. 40 is much greater than the proposed two storey building mass of Dwelling 5. The proposed two storey built form of this unit compares favourably with its northern neighbour.
15. It is a different story with Dwelling 2 which faces the open backyard of No. 73 McLeod Road. No. 71 McLeod Road is developed with a dual occupancy. So is No. 75, which is a medium density development with the rear unit having a second storey. The impact of Dwelling 2 is towards No. 73 which is developed with a single storey dwelling with its expansive backyard facing the two storey built form of the proposed dwelling. If there is to be a reduction in the building mass, it would be the first floor of this dwelling. The first floor of this dwelling is setback back 5.265 metres from the common boundary of No. 73 McLeod Street, marginally recessed from the ground floor setback of 4.38 metres at the family room and 5 metres at the living room. There is a reason to reduce the bulk of this floor opposite that backyard. To do so, I would require the deletion of Bed 1 and its en-suite. This means the dwelling will become a two bedroom dwelling instead of a dwelling with no bedroom if the first floor is to be deleted and as recommended in Council officer's report. It manages to provide a smaller first floor bulk to the backyard of that property and reduces the need to rely on a second car space which is in a tandem arrangement in close proximity to the common driveway. I note that the owner and resident of No. 73 did not object to the proposal and is not party to the proceeding.
16. With regard to the rear most pair of dwellings in Dwellings 3 and 6, they are single storeys. I am satisfied that they are an appropriate transition in built form between the site and the open backyards of Nos. 25 and 27 Riversdale Street.
17. Subject to the modifications of reducing the first floor of Dwelling 2, I consider the design an acceptable response to the context of the site and its location in an Incremental Change area.

Is the ROW an impediment to the development of the site?

1. Part of the southern edge of the site is a 3.05 metre wide ROW. It is fenced off as part of the land. There is no visual evidence of this ROW.
2. There is a history to this strip of land. It does not appear on Council Road Register as a road. It is vested in the original subdivider of land who is long gone. It is currently the subject of a separate proceeding for adverse possession by the permit applicant.
3. According to a report by Council's Property Manager dated 1 July 2009, this strip of land was allowed to be fenced by the former City of Chelsea in 1978 which was over 30 years ago. The title of the road remains in the name of the original subdivider. Negotiation was entered into in 2007 to dispose of the strip of land to the former permit applicant who wished to develop the land for a child care centre. This manager made clear to the other interested parties that the owner of 42-44 will be given first opportunity to purchase. The price, including a discount for discontinued laneway, has been determined.
4. The possibility of sale of the strip of land has been renewed by the current owner, pending on the outcome of the permit application. Council's property manager recommended the following permit condition:

Prior to the commencement of development and/or use approved by this permit, the 3/05 metre wide right-of-way along the south-east property boundary of No. 44 Westley Street must be purchased from Council by the developer/site owner, to Council's satisfaction."

1. The matter of whether this strip of land should be included in the review site has been considered by the Tribunal that heard the earlier application to develop the land as a child care centre[3]. In that decision, Member O'Leary said:

1. There was also detailed debate about the appropriateness or otherwise of acquiring the laneway for this site. I am satisfied that the laneway can be included in the application site and it seems to be consistent with the findings of Member Martin in Octopus Media Pty Ltd v Port Phillip City Council(footnote 7).
2. Based on the information presented at the hearing, the Council is now embarking on a consultation program with all abutting landowners and about an interest in purchasing part or all of this laneway. Whilst the applicant may have instigated this process there is no guarantees that part of all of the right-of-way will in fact be sold to the applicant.
3. This issue is not critical in my determination other than to note that if a permit had issued there would be prospect the applicant may need to seek amendment to the permit to reduce the size of the site and possibly the building, delete at least two car parking spaces, and alter the vehicular access.
4. I agree and adopt his finding. If the land does not become part of the site if the purchase of land or adverse possession failed, the development will have to be redesigned or abandoned to take account of that.

Are there any other issues that prevent the development?

1. Respondents raised amenity issues in overshadowing particularly in winter months, increased traffic and parking pressure on the area as the proposed mode of parking is single garage and tandem car space whilst Council stipulates double garages.
2. In terms of overshadowing, the proposal meets Standard B21 of Clause 55.04-5. I must therefore accept that the objectives of this clause are met. In terms of the mode of provision of parking, there is no policy that stipulates double garages for dwellings. Instead, Clause 22.11 with regard to car parking specifically discourages dominance of car parking. Dot point 3 of the performance measures for car parking cites:
   • Ensuring that garages and carports are sited so that a tandem car parking space can be provided in front of the garage or carport.

1. The proposal is to develop a double lot for six dwellings in an Incremental Change area. I have considered the policies for the area and conclude that subject to a reduction in the building mass of one of the double storey dwellings, the proposal comprising of a mix of detached and attached built form, of a low scale of two storeys with one storey at the rear, meets the neighbourhood character policy and the requirements of Clause 55.
2. I have adopted most of the 'without prejudice' conditions submitted by Council, with the notable exception of those requiring Dwellings 2 and 5 to become single storeys, external building materials which have already been submitted, height of front fence which has been nominated, building and structure to keep clear of the ROW, and the purchase of the ROW from Council. Rather than a purchase, as long as the land is available to the development, it is not critical and does have to be specific that it has to be a purchase.

1. Before the development starts, amended plans to the satisfaction of the

Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the plans submitted to Council but modified to show: * (a) The provision of a landscape plan in accordance with the submitted development plan and the City of Kingston Landscape Land Checklist, with such plans to be prepared by a suitably qualified landscape profession. * (i) An associated planting schedule showing the proposed, species type, mature height and width, pot sizes and number of species to be planted on the site; * (ii) The delineation of all garden beds, paving and grassed areas throughout the development; * (iii) All existing trees on the site and within three (3) metres to the boundary of the site on adjoining properties, accurately illustrated to represent actual canopy width and labelled with botanical name, height and whether the tree is proposed to be retained or removed; * (iv) A range of plant types from ground covers to large shrubs and trees. * (v) Adequate planting densities (i.e. plants with a mature width of 1 metre, planted at 1 metre intervals); * (vi) The provision of two (20 suitable medium sized (at maturity) canopy trees within the front setback of the property and one (1) small (at maturity) tree within the rear private open space area of each dwelling, with species chosen to be approved by the Responsible Authority; * (vii) Sustainable lawn areas and plant species taking water restrictions into consideration all trees provided at a minimum of two (2) metres in height at time of planting; * (viii) All trees provided at a minimum of two (2) metres in height at the time of planting; * (ix) Medium to large shrubs to be provided at a minimum pot size of 200mm; * (x) The provision of notes on the landscape plan regarding site preparation, including the removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and specific maintenance requirements; * (b) The minimum floor levels for Dwellings 1-5 (inclusive) nominated as 1.96 metres AHD (note: the applicable flood level for the property is 1.66 metres AHD); * (c) The minimum floor level for the garages of dwellings 1-5 (inclusive) nominated as 1.81 metres AHD (note: the applicable flood level for the property is 1.66 metres AGD); * (d) The driveway, from near the front of the sit through the rear of Dwelling 1, reduced to 2.6 metres in width, with the additional areas created provided as landscaping; * (e) The guttering pertaining to all garages on a site property boundary nominated as being contained wholly within the title property boundary of the subject land; * (f) The location of mailboxes and external air conditioning units clearly nominated for each dwelling; * (g) The driveway for each dwelling clearly delineated, and the surface material of all driveways/accessways and car parking spaces nominated as being coloured concrete; * (h) All boundary walls nominated as no higher than an average 3 metres; * (i) All dwellings provided with 450 mm wide eaves; * (j) The provision of fully workable turning/reversing areas for all car parking spaces; * (k) The front 1.2 metre high picket fences for Dwellings 1 and 4 to be painted in a colour complimentary to the dwellings, with these fences to be on the site's front property boundary. 2. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority. 3. Prior to the commencement of development, permit holder/owner must demonstrate to the satisfaction of the Responsible Authority that the 3.05 metre ROW forms part of the title of the land.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Before occupation of the dwellings hereby permitted, the landscaping works as shown the endorsed plans must be completed to the satisfaction of the Responsible Authority. The landscaping must then be maintained to the satisfaction of the Responsible Authority.
3. Before occupation of the dwellings hereby permitted, all buildings and works and the conditions of this permit must be complied with, unless with the further prior written consent of the Responsible Authority.
4. The development of the site must be provided with stormwater works which incorporates the use of water sensitive urban design principles to improve stormwater runoff quality and which also retains on site any increase in runoff as a result of the approved development. The system must be maintained to the satisfaction of the Responsible Authority. Council's Development Engineer can advise on satisfactory options to achieve these desired outcomes which may include the use of an infiltration system or bioretention system, rainwater tanks connected for reuse and a detention system.
5. Before the development commences, a Stormwater Management Plan showing the stormwater works to the nominated point of discharge must be prepared to the satisfaction of the Responsible Authority. The Stormwater Management Plan must be prepared by a qualified person and show all details of the proposed stormwater works including al existing and proposed features that may have impact (e.g. trees to be retained, crossings, services, fences, abutting buildings, exiting boundary, surface levels, etc.).
6. Stormwater works must be provided on the site so as to prevent overflows onto adjacent properties.
7. Before the occupation of the dwellings hereby permitted starts, or by such later date as is approved by the Responsible Authority In writing, the nature strip, kern and channel, vehicle crossover and footpath must be reinstated to the satisfaction of the Responsible Authority.
8. Any existing vehicular crossing not in accordance with the endorsed plan must be removed and the kerb reinstated in a manner satisfactory to the Responsible Authority and any proposed vehicular crossing must be fully constructed to the Responsible Authority's standard specification.
9. Convenient taps or fixed sprinklers system must be provided to the satisfaction of the Responsible Authority capable of watering all communal and private land and landscaped areas, including turf block visitor car parking where provided.
10. A street number of 100mm minimum height and contrasting in colour to its background, must be fixed at the front boundary of the property and as near as practicable to, or on the letterboxes with such numbering to be in accordance with Council's Street Number Policy. Separate unit numbers of 75mm minimum height must be placed adjacent to the front entrance of each dwelling. Such numbers must be clearly legible from the access driveway.
11. Prior to the occupation of the dwellings hereby permitted, all boundary fences must be repaired and/or replaced as necessary to the satisfaction of the Responsible Authority, at the cost of the applicant/owner.
12. Exterior lights must be installed in such positions as to effectively illuminate all pathway and porch areas. Such lighting must be controlled by a time clock or sensor unit, and must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.
13. Prior to the occupation of the dwellings hereby permitted, areas set aside for parking vehicles, access lanes and paths as shown on the endorsed plans must be:

1. Constructed to the satisfaction of the Responsible Authority. 2. Properly formed to such levels that they can be used in accordance with the plans.

1. Surfaced with an all-weather coloured sealcoat to the satisfaction of the Responsible Authority.

1. Drained and maintained to the satisfaction of the Responsible Authority.

1. Parking areas and access lanes must be kept available for these purposes at all times and maintained to the satisfaction of the Responsible Authority.
2. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
3. All piping and ducting above the ground floor storey of the development (other than rainwater guttering and downpipes) must be concealed to the satisfaction of the Responsible Authority.
4. Finished Floor Levels shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
5. External clothes drying facilities must be provided for each dwelling/
6. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
7. In accordance with section 68 of the Planning and Environment Act 1987, this permit will expire if one of the following circumstances applies:
   • The development is not started before two (2) years from the date of this permit.

• The development is not completed before four (4) years from the commencement of works.

In accordance with section 69 of the Planning and Environment Act 1987, the responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] Page 202 of Council Minutes, City of Kingston Ordinary Council Meeting 27 July 2009.

[2] There is a medium density development at No. 7 Westley Street of what looks like eight dwellings on a double lot.

[3] Symbiotic Investments Pty Ltd v Kingston CC [2008] VCAT 1154.