It is ordered that the decision of the Responsible Authority is set aside, and a permit granted for two dwellings at 7 Helen Street Frankston, subject to the following conditions:

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 generally in accordance with the plans reference 010215TP/2 Sheets 1 to 4 inclusive and noted amended 9 August 2002, but modified to show:

c) A landscape plan and associated planting schedule prepared by a qualified landscape architect or designer.

d) The upper level bedroom 1 and living room windows and deck on the west side of Dwelling 1 screened, or have other appropriate treatment, to a height of 1.6 metres above floor level.

2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

4. Before the dwellings are occupied areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

b) Properly formed to such levels that they can be used in accordance with the plans.

These areas must be kept available for these purposes at all times, and must be maintained to the satisfaction of the Responsible Authority.

5. Vehicle crossings are to be constructed to Council standards and specifications to the satisfaction of the Council Infrastructure Manager.

6. Before the development starts, drainage 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 show the detailed design (including drainage computations) of the internal stormwater drainage system.

7. Where the development involves work on, or access to, Council controlled land including roads, reserves and rights of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards. Precautions must include, appropriate signage to AS 1743 road works signing code of practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings sufficient to ensure public safety. All relevant permits must be obtained from Council for works within the existing road reserves in addition to the planning permit.

8. Before the dwellings are occupied landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority, and must then be maintained to the satisfaction of the Responsible Authority.

9. All existing vegetation shown on the endorsed plans to be retained must be suitably marked before any development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

10. Power and telephone lines to all units must be placed underground from the main points of service outside the boundaries of the site.

11. All brickwork facing property boundaries must be cleaned and raked to the satisfaction of the Responsible Authority.

12. All plumbing work, sewer pipes, etc (except for spouting and stormwater downpipes) associated with the building must be concealed from general view.

13. All outdoor lighting of the site must be baffled to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

14. Street and unit numbers must be displayed to the satisfaction of the Responsible Authority.

13. All outdoor lighting of the site must be baffled to prevent light from the site causing any detriment to the locality.

14. Street and unit numbers must be displayed to the satisfaction of the Responsible Authority.

15. This permit will expire if one of the following circumstances applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four 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 three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b)of the Planning and Environment Act 1987.

For the Responsible Authority: Mr N Modica, Consultant Planner

Respondents/Objectors: Ms P Bentley, Mr M Ursic, Mrs F Ursic,

Permit Applicants: Mr R Umbers, Consultant Planner

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicants for review of a decision of the Frankston City Council ("the Responsible Authority") to refuse to grant a permit.

2. There being no objection I ordered that Mr M Shankie be joined as a party, pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998.

3. Mr Umbers, for the Applicants for Review/Permit Applicants, by letter dated 23 October 2002 advised the Tribunal as follows:

"We act for the Permit Applicant and Owner of the land with regard to this Application for Review.

We hereby make application to amend the plans in the permit application.

In accordance with General Practice Note we enclose Statement of Service of relevant documents an copy of the amended plans."

4. Mr Umbers provided a summary of changes which read as follows:

* The provision of a detailed Landscape Plan prepared by Wallbrink Consulting Landscape Architects.

* The provision of an additional non-tandem visitor car parking space.

* The ground floor of Dwelling One modified to reduce the setback of the 3.5 metre long study wall from the east boundary from 1.175 metres to 0.150 metres and increase the setback of the family room from the east boundary from 1.175 metres to 3.15 metres.

* Reduce the ground floor, floor area of Dwelling One from 65.0 square metres to 60.27 square metres.

* Reduce ground level private open space for Dwelling One from 57.14 square metres to 42.94 square metres.

* Reduce the overall height of Dwelling One from 7.3 metres to 6.730 metres by reducing the pitch of the roof from 25 to 15 degrees.

5. There being no objection I amended the permit application pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

6. Mr Umbers, in his written submission for the Applicants for Review/Permit Applicants, described the proposal as set out in the revised plan as follows:

* The construction of one (1) dwelling of two storeys with two (2) bedrooms and study to replace the existing double storey dwelling and one (1) single storey dwelling with two (2) bedrooms.

* The dwellings will be positioned one behind the other down the length of the site arranged to have double storey replacing the existing dwelling and positioned behind the double storey dwelling at No. 7A Helen Street, followed by the single storey dwelling.

* Dwelling 1 will comprise family room, laundry, bathroom , one (1) bedroom and study at ground floor level with living room, kitchen, dining room, one (1) bathroom, one (1) bedroom and external deck facing north accessed from the living room at first floor level.

* Dwelling 2 will comprise living room, dining room, kitchen, laundry, bathroom and two (2) bedrooms.

* Dwelling 1 will not be visible from the street frontage at both the ground and first floor level. It will be setback 5.0 metres from the west boundary and between 1.815 and 3.15 metres from the east boundary at ground floor level, except for the study, which will be setback 150mm from the east boundary for a distance of 3.5 metres. The first floor level will be setback between 4.4 and 6.2 metres from the west boundary and between 1.1825 and 1.975 metres from the east boundary.

* Dwelling 2 will be setback between 3.395 and 5.775 metres from the west boundary, between 2.65 and 4.185 metres of the north boundary, except for the garage, which will be built to the west and north boundaries. The dwelling will be set back 150mm from the east boundary for a 7.4 metre long wall.

* Dwelling 1 will have a maximum wad height of 6.0 metres to the east and west elevations and overall height of 6.73 metres. The dwelling will exceed the overall height of the existing dwelling to be removed by 0.395 metres.

* Dwelling 2 will have a minimum wall height of 2.985 metres to the east elevation and 2.895 metres to the west elevation with an overall building height of 4.4 metres.

* Upstairs windows are positioned, glazed, screened and setback to address potential overlooking to the west and east.

* The provision of single car garages for each dwelling with two (2) non-tandem car parking spaces. Access is provided from the existing driveway located along the western boundary.

* Provision of accessible areas of secluded principle private open space of 42.94 square metres for Dwelling 1 at ground floor level and 12 square metre first floor deck, or a total of 55 square metres and 40.3 square metres for Dwelling 2.

* Dwelling 1 will have a floor area of 131.78 square metres and Dwelling 2, 83.75 square metres.

7. Mr Modica, in his written submission for the Responsible Authority, described the subject land and surrounds as follows:

"The subject site is located on the north side of Helen Street, Frankston. It is a battleaxe allotment with a frontage of 4.2 metres, a depth of 41.28 metres, a width of 15.24 metres, and an overall area of 519 square metres.

The site is currently occupied by a double storey dwelling, a garage and a variety of fruit trees. The site has a fall of about 3.55 metres from the front of the site to the rear. A 1.22 metre wide drainage easement and 1.28 metre wide sewerage easement run along the rear (northern) boundary of the site.

Helen Street is an unmade, no through road that runs east-west with access gained to it from Cliff Road. Dwellings with a Helen Street address are located on the north side of the street, with the rear of dwellings from Gweno Avenue occupying the other side. The Helen Street dwellings comprise a mixture of older modest single storey dwellings and larger modem two storey homes, in a variety of architectural styles. The south side of the street comprises the rear of' Gweno Avenue properties with dwellings that are orientated to front Helen Street in order to gain bay views. Large dwellings with balconies therefore look over Helen Street, and vehicle access for many of these dwellings is from Helen Street There is scattered vegetation in the street, both within properties and on the road reserve, made up mainly of coastal natives.

Properties immediately surrounding the site can be described as follows:

* No. 7A is directly in front of the subject site, and contains a two storey rendered brick dwelling with basement car parking (approved under Planning Permit 9575 as previously outlined). The front setback of the dwelling from Helen Street is 3.6 metres. The dwelling has minimal open space in the form of decks and balconies, and directly abuts the existing dwelling on the subject site.

* No. 5 Helen Street is a single storey brick veneer dwelling with tiled roof. It has a setback of 8.8 metres from the front of the site, has a well vegetated front garden and a high front fence.

* No. 9 Helen Street is a brick dwelling with has a small timber second storey addition. The dwelling has a front setback of 7.2 metres, and also has a well vegetated front garden and high front fence.

* Dwellings to the rear consists of No. 25 Cliff Road which is a single storey rendered brick dwelling with tiled roof, and No. 2 Edna Street which is a weatherboard dwelling with iron roof.

The dwellings surrounding the site, with the exception of No. 7A Helen Street, have large front and rear areas of open space which contribute to the relatively low density, open feel of the street. Site coverage is low and car parking for all dwellings is accommodated on site. It should be noted that there are no other unit developments in the vicinity of the site."

8. The subject land is covered by the Frankston Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct two or more dwellings on a lot, pursuant to Clause 32.01-4. The Good Design Guide applies to the proposal because the permit application was lodged prior to 24 August 2001.

9. The subject land is covered by Schedule 6, Frankston-Seaford Coastal Strip, to Clause 43.02, Design and Development Overlay. Mr Modica submitted:

"The overlay restricts development to a maximum of two storeys (excluding any basement) or six metres in height. The maximum height of a storey must not exceed 3.5 metres."

10. Reference was made to the following planning policies:

* Clause 18.02 State Planning Policy for Car parking and Public

* Clause 21.04 Municipal Strategic Statement, Housing

1. The proposal does not meet the requirements of the Good Design Guide for Medium Density Housing.

2. The proposal is an overdevelopment of the site.

3. The proposal is not in keeping with the neighbourhood character of the area.

4. The proposal is contrary to the orderly and proper planning of the area

1. Frankston Town Planning recommended the proposal with conditions.

2. We feel objectors' presentations to the Council were misleading and not focussed on the current application.

3. We have lived here (Helen Street) for over 30 years and all proposals have been well forecast and not "development by stealth" as objectors implied.

13. Mr Modica set out the history of the subject land as follows:

No. 7 Helen Street was subdivided into two lots to form No. 7 and No. 7A Helen Street in 1995. Prior to the subdivision, the site was a regularly shaped block with a frontage of 15.24 metres to Helen Street and was occupied by a single storey dwelling. The title to the site was encumbered with a restrictive covenant which allowed only one dwelling to be constructed on the land.

A town planning application to remove the covenant was lodged in June 1994. As notification of the proposed removal of the restrictive covenant was required to be given to the beneficiaries of the restrictive covenant, Council conducted a title search to determine which land owners this related to. There were found to be no beneficiaries as the subject land was the last tide to be transferred out of the parent title Certificate of Title Volume 4063 Folio 812448. Nevertheless, Council required notice of the application to be given to adjoining owners and occupiers and a public notice was displayed on the land for fourteen (14) days. No objections to the application were received. The application was subsequently determined by Council under delegated powers, and Planning Permit No. 94-155 was issued on 5 August, 1994.

An application to construct a second dwelling on the site was lodged in March, 1995. The proposal was to erect a two storey dwelling in front of the existing dwelling, and for the dwellings to directly abut one another. The application was advertised to adjoining owners and occupiers and a sign was displayed on site for fourteen (14) days. No objections were received.

Planning Permit 95293 was issued on 1 November 1995 for the subdivision of the site into two lots. Lot 1, which is now known as 7A Helen Street, contains the second dwelling, and Lot 2, known as 7 Helen Street (the subject site), contains the original dwelling."

"It is considered that the proposed development is contrary to and not respectful of the character of residential development in this locality. Element 3 Neighbourhood Character of the Good Design Guide has the following objectives:

* To achieve medium density development which is respectful of its neighbourhood.

* To encourage innovative contemporary designs which make a positive contribution to the character of the neighbourhood.

* To maintain the garden character of neighbourhoods.

* To incorporate trees with spreading crowns into developments.

It is submitted that the proposed development does not meet these objectives.

The character of Helen Street is unique. It is a no through road which is unmade, has no footpaths, and dwellings from an adjoining street back onto the southern side of it. There are no other multi dwelling developments in the street as a result of an existing covenant which covers the surrounding area, restricting development to one dwelling only per allotment. Front setbacks of dwellings are generous and well landscaped, adding to the garden character of the area.

The Character Statement for Precinct Frankston 11, which forms part of Council's Neighbourhood Character Study, extends from High Street in the north to Warringa Road in the south, and runs between Kars Street and Cliff Road. Helen Street is in the southern -end of the precinct. The following is a list relevant characteristics for the preferred neighbourhood character outlined for the area:

"The spacious coastal garden setting of dwellings is to be maintained, and expression of the area's coastal location is to be strengthened, by:

* Encouraging planting of trees native to this coastal environment.

* Ensuring sufficient space is available for planting.

* Ensuring that building height is limited to maximise impact on the wider landscape setting.

* Ensuring buildings respect the neighbouring front setback and are setback from both side boundaries.

* Siting development in a way that minimises its impact on the landscape.

* Encouraging. innovative, architecture that reflects the coastal setting"

In order to achieve the preferred neighbourhood character, the following design responses are required:

The objective for this character element is to reflect the rhythm of existing dwelling spacing. This is to be achieved by setting back buildings from both side boundaries. It is submitted that the proposed development does not achieve this objective with dwelling 2 proposed to be built to both the eastern and western boundaries. The wall associated with the two bedrooms would be built to the eastern boundary for a length of 7.4 metres, and the garage wall would be located on the western boundary for a length of 6.4 metres. This boundary to boundary construction is out of character with the identified building form in the precinct, and is noted as a construction style that should be avoided in the Neighbourhood Character Study.

Dwellings in the area are set back from boundaries and often have landscaping between the dwelling and the boundary fence. This is not possible for Dwelling 2. The dwelling does not address the "spacious coastal garden setting" in which surrounding dwellings sit, and which must be maintained as an important characteristic of the area."

15. Ms Bentley, a Respondent/Objector, spoke to a written submission and submitted:

"My first concern is about the processes that have taken place in regard to this development. I suspect that this development has and consequently is going through without following the correct processes.

It can be seen from the plan illustrating the variety of flats, units and town houses, that medium density housing is already well catered for in this area. There is an adequate supply of rental properties. The submitted photographs taken July 2002 verify this.

Further developments such as that proposed for 7 Helen Street mean we are in danger of losing our neighbourhood character. The residents of Precinct 11 are trying so hard to preserve the character of this area.

The predominant feature of the whole area is one of mainly single dwellings with generous setbacks on all sides. Such setbacks allow trees with spreading crown's to dominate. There is now a pleasing combination of single and two storey dwellings developing. Any bulk is softened because these dwellings have been built with garden open space to allow for visual softening by way of appropriate vegetation.

The proposal as it stands, cannot contribute to the much-loved character of Precinct 11 because there is simply insufficient space available. This development can only detract from our neighbourhood character.

5. The Good Design Elements particularly in relation to neighbourhood character."

16. Mr Modica summarised the history of the subject land, and this summary is set out at paragraph 13 above. I explained that my discretion was limited to whether or not a permit should be granted to these dwellings. Matters relating to lifting a restrictive covenant or subdivision were not before me.

17. Mr Ursic made an oral submission in which he criticised the proposal, and in particular the double storey component. Mr Ursic also made submissions with the respect to process.

18. Mr I Horsburgh, a Respondent/Objector, spoke to a written submission, and submitted:

Helen St is part of a 37 lot subdivision which occurred in the 1950's. Each block was covered by a protective covenant that limited the number of dwellings per block to one. The question of overdevelopment to lots from this sub division has never been an issue due to this protection. In November 1995 lot 7 was subdivided into two lots being number 7 and 7A Helen St. The area of 7A Helen St is only 112 square meters which is much less than the 300 Square meters recommended in the Good Design Guide. The proposed development of number 7 Helen Street has a density of 1 dwelling per 259.5 square meters which again is less than the good design guide recommends. When considering the combined density of number 7 and 7A Helen St the density is one dwelling per 210 square meters. Clearly this development represents over development of the lot.

An increase in the number of dwellings will have a detrimental effect on the existing services and infrastructure, including electricity and drainage.

A unique characteristic of Helen St is the narrow, slightly curved, unsealed no through road which gives the street a country lone type feeling. There ore approximately 16 children who live in houses that have direct access to Helen St. There is no doubt that the higher density of unit developments will result in an increase in traffic f low and on street parking which is noisy, will be dangerous to children playing in the Street, and will further degrade Helen Street which is an unmade road.

Under the new RES code neighborhood character is the mandatory starting point when considering new proposed developments. The Good Design Guide states that neighborhood character should be taken into account when considering new developments. This proposal is out of character with the area because:

The surrounding area is dominated by single detached houses with relatively large landscaped backyards. In fact number 7 Helen street is the only lot from the initial sub division to break from the protective covenant. Therefore all the other lots from the initial sub-division still have only one dwelling per block. Whilst the surrounding houses have rear yards to create a buffer between dwellings this proposal abuts side and rear boundaries, removes established trees and destroys the open/landscaped feel of the area.'

19. Mrs T Horsburgh, a Respondent/Objector, made an oral submission. Mrs Horsburgh expressed concern about processes with the respect to the earlier lifting of the restrictive covenant and subdivision.

20. Mr M Shankie, a Respondent/Objector, made an oral submission. Mr Shankie made reference to the earlier subdivision into 7A and 7 Helen Street. Mr Shankie expressed concern about the vehicular crossing to 7A. He submitted there seemed to be no provision for mail boxes and the proposal would be an overdevelopment.

21. Mr Umbers spoke to a written submission for the Applicants for Review/Permit Applicants. Mr Umbers assessed the proposal against the elements of the Good Design Guide and submitted:

* The proposed double storey dwelling will be located in the same location as the existing dwelling to be removed. However, it will occupy less land than the existing dwelling, reducing the footprint of the building from 112 square metres to 60.27 square metres or a 42% reduction in the floor area of the ground floor footprint. This significantly increases setbacks from side boundaries providing significantly improved amenity for the adjoining properties to the east and west. In addition, the overall height of the double storey dwelling will be only 0.395 metres more than the existing dwelling.

* The second dwelling at the rear of the site is single storey of modest size with a floor area of only 84 square metres, with low wall heights and overall building height. Although twenty (20) objections were received, no objection was received from the two (2) properties adjoining the rear boundary to the north and the property adjoining to the east.

* Both dwellings are not visible from Helen Street and will have no effect on streetscape character.

* The provision of a comprehensive landscape design for the site that incorporates trees with spreading crowns to enhance the site and character of the area.

It is considered that the proposed development complements the existing diverse neighbourhood character, and will enhance a site and area that requires a well-designed, well-landscaped, articulated development.

Earlier in this report it was identified that there are no relevant local policies in the Frankston Planning Scheme. However, Council is carrying out a Neighbourhood Character Study which is still in Draft Form. The aim of the Neighbourhood Character Study is to ensure that residential development respects and enhances the future preferred character of the City.

At this stage it needs to be emphasised that the Study has not been through a formal statutory pubic exhibition to form part of the Frankston Planning Scheme.

At this stage the subject site will be included in Precinct 11 of the Study. Description of the Precinct is as follows:

The setbacks to all property boundaries have been designed to respect existing development on adjacent properties and generally significantly exceed the requirements of the Guide for single and double storey construction. For example, the Guide allows zero lot line or 1 metre setback for a 3.6 metre high wall to the west, east and north boundaries. It is proposed to set 2.63 to 3.17 metre high walls back between 3.15 metres and 5.0 metres of the east and west boundaries and set a 3.1 metre high wall back 2.65 metres from the north boundary. The exception to these set backs would be the short study wall of 3.5 metres in length that would be built to the east boundary, the bedroom walls of Dwelling 2 with a length of 7.4 metres built to the east boundary, a short garage wall of 6.8 metres in length towards the rear of the site will be built to the west boundary and a short garage wall of 4.0 metres in length at the rear of the site would be built to the north boundary.

The Guide allows the second storey component to be setback 1.72 metres for 6.0 metre high walls (as proposed). However, it is proposed to set the walls back between 1.825 metres of the east boundary and 5.6 metres of the west boundary. This ensures that the proposed dwellings do not generate significant overlooking or overshadowing of adjoining properties. Where building walls are proposed to be close to boundaries to the west and east, it is considered that the proposal wig cause little loss of amenity to neighbouring properties.

The length of walls on respective property boundaries is less than the maximum of 50% permitted by E6.T3 of the Guide.

Shadow diagram prepared for 22 September as required by the Guide, demonstrate that the proposal fully satisfies the requirements of Element 6, Technique 10.

Typical of a location where views are available the main living areas of Dwelling 1 have been located at floor level. However, east facing windows are restricted outlook whilst the west facing living room windows may be obscured to 1.65 metres above finished floor level, although they are setback 5.6 metres from the west boundary to minimize overlooking into adjacent properties. First floor windows of bedrooms and non-habitable room have been appropriately orientated and screened to ensure that continued privacy of adjacent dwellings is maintained.

The guide suggests a maximum site coverage of 60%; the development proposes a site cover of 38.8%.

The Guide requires a total of 3.0 car parking spaces to be provided for the development. A total of 4 spaces are proposed. They have been provided in the form of a single car garage for each dwelling and two (2) non-tandem parking spaces with access off a common driveway located along the western side of the site. This driveway utilises the existing site crossover, which is set back 0.6 metres from the west boundary to allow for the driveway alignment to include landscaping against the western property boundary.

All garages are appropriately located to reflect the dwelling to serve. The garages are designed to form part of the dwelling elevation and are not visible from Helen Street.

The dimensions of the garages, non-tandem parking spaces and driveways satisfy the requirements of the Guide and the development is not expected to have a significant impact on traffic flow in the immediate area given that the proposal is a net increase of one (1) dwelling."

22. Mr Umbers also responded to the Grounds of Refusal.

23. I have considered the submissions, have conducted an inspection and have had regard to the relevant planning provisions and planning policies. I consider that a permit should be granted for the proposal, for reasons discussed below.

24. What is before me is the proposal for two dwellings on 7 Helen Street. It is not for me to consider whether or not, if the subject land had not been subdivided into 7A Helen Street and 7 Helen Street, a permit should be granted for three dwellings, including the existing dwelling on 7A Helen Street and the proposed two dwellings.

25. The proposed dwellings are relatively modest and I do not consider that they would represent an overdevelopment of 7 Helen Street. The benchmark density suggested by Technique 1 of Element 1, Density, of the Good Design Guide would be exceeded, but a note to Technique 1 provides that densities may be increased where it can be demonstrated that the objectives and criteria of the Guide as a whole will be met. I consider that this is one such proposal, and that the proposed density is appropriate.

26. The neighbourhood character of Helen Street would be barely impacted on, as the proposed two dwellings are set behind the existing dwelling at 7A Helen Street.

27. There was concern about overlooking from the upper level of the proposed double storey dwelling. This can be dealt with by appropriate measures.

28. I do not consider that the proposal will result in any significant increase in traffic in Helen Street. Adequate parking is proposed, and it satisfies the Good Design Guide in this respect.

29. For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.