With respect to planning permit application no. 5.2006.151.1, the responsible authority's decision to refuse the grant of a permit is affirmed. A permit must not be issued.

Mr and Mrs McTigue appeared in person. Mr S Thomas, solicitor, Fetter Gdanski, appeared for Ms A Hudghton.

1 McGann Carr Architects are requesting that I set aside the Bayside City Council's decision to refuse a permit for the construction of 5 double storey dwellings on land known as 88 Bay Road Sandringham [the site] and direct that a permit be issued.

2 McGann Carr lodged the permit application with the council on 28 February 2006. The council required the application be advertised to the neighbours. Mr and Mrs McTigue, Ms Hudghton and 2 other neighbours lodged objections against the proposal. In general terms the objectors contend that the proposed development would have a range of unreasonable impacts on their amenity including visual bulk, loss of vegetation, overshadowing, overlooking, extra traffic and inadequate car parking. VicRoads has offered no objection subject to conditions being included on any permit that should issue.

3 The council did not make a decision within the prescribed 60 day time period and the applicant lodged an application with the tribunal against the council's failure to make a decision. Subsequent to this, the council decided that it would refuse the application on 15 grounds. In general terms, the grounds of refusal say that the proposal is not respectful of neighbourhood character for various reasons [setbacks, visual bulk, lack of landscaping opportunities including the retention of a large brush cherry, front fence too high]; the proposal fails to comply with the provisions of the Design and Development Overlay schedule 6; unreasonable impacts on the amenity of neighbours and due to overlooking, overshadowing, walls on boundaries; and the failure to provide satisfactory parking and storage areas. The council considers that the proposal is an overdevelopment of the site.

4 The site is located on the south side of Bay Road, to the east of Fernhill Road. This square shaped site has a frontage of about 40 metres and an overall area of 1623 square metres. The site is occupied by a single storey dwelling and a garage/workshop. The site is well vegetated, supporting 47 trees as well as a number of shrubs and smaller plants. The site is set on sloping terrain which, based on the contour information on the demolition plan, presents a fall of about 2 metres from the northeast corner down to the southwest.

5 Contextually the site is located within an established residential area and about 500 metres from the centre of the Sandringham Shopping Centre. Properties around the site are occupied by a mix of single dwellings and medium density housing developments. The property immediately to the west is occupied by a dwelling while a medium density development exists to the east. Medium density development comprising buildings up to 4 storeys and dwellings exist on the opposite side of Bay Road.

6 Mr and Mrs McTigue's property has part of its side boundary in common with the site's rear boundary while Ms Hudghton's property is located to the southeast. The north side of Mr and Mrs McTigue's dwelling is located adjacent to the site. A north facing bay window within that dwelling has an outlook directly onto the site. There is a somewhat unusual relationship between the site and the McTigue's property. Rather than a typical paling fence, a low picket style fence defines the boundary between the site and the McTigue's property creating a somewhat open feel between the 2 properties.

7 The proposal, as amended at the commencement of the hearing[2], seeks permission for the construction of 5 attached dwellings on the site that would create a continuous 2 storey "U-shaped" building. The dwellings are, for the most part, 2 storeys in height. The most notable exception to the 2 storey height is a turret like structure to be provided over the roof deck to Dwelling D that technically creates a third storey. Dwellings generally provide for main living areas at ground level with bedrooms at first floor level.

8 Dwellings A and D are designed to front onto Bay Road. They are separated by a central driveway that would provide vehicle access to the garages for all dwellings as well as the pedestrian entry for Dwellings B, C and E.

9 The southern part of the building is connected by Dwellings C and E. The ground floor to these dwellings is partly built to the rear boundary and setback 2 metres in other parts while the upper level would be setback about 4.15 metres.

10 Open space is to be provided in the form of ground floor courtyards, balconies facing into the internal driveway and roof decks above the second floor level. Notably, a large Brush Cheery on the site is to be retained and incorporated into the courtyard for Dwelling E.

11 A double car garage is to be provided for each dwelling as well as a car space for visitors at the driveway entry.

12 Under the planning scheme, the site is zoned Residential 1. The provisions for this zone say that a permit is required to construct more than 1 dwelling on a lot. Further, proposals must comply with the requirements of clause 55.

13 The site is also affected by the Design and Development Overlay Schedule 6 [DDO6] provisions that were introduced into the planning scheme a few months ago. A permit is required for development on land covered by this overlay unless the schedule says otherwise. Under the schedule, the site is located within Area D of the Sandringham Village Built form precincts[3]. The schedule's provisions say that the maximum building height in Area D is 7.5 metres for walls and 9 metres overall. Further, the maximum height is specified as 2 storeys and the requirements of Standard B17 at clause 55 are to be applied for side and rear setbacks. The schedule also says that a permit is required to construct a roof deck above the second storey of a building.

14 The various decision guidelines require that consideration be given to, amongst other things, planning policy, the purpose of the zone and overlay, orderly planning and the impact on the amenity of the area. I will refer to these as appropriate.

15 After having considered the submissions presented by the parties, the details of the proposal and the relevant matters under the planning scheme and legislation, it seems to me that the key issues in this matter are:

• Does the proposal represent a satisfactory response to neighbourhood character?

• Would the proposal cause unreasonable impacts on the amenity of the neighbouring properties?

16 While these are the key issues, it is relevant that I first make some observations with respect to a range of matters that are relevant to the consideration of these issues and the merits of the proposal as a whole.

17 The first of these is that there was no real dispute about the site's suitability for medium density redevelopment. Although the site is well vegetated and in a residential area, the council and the objectors did not submit that the site should not be redeveloped for medium density housing.

18 On reviewing the site's attributes it is clear that it is suited to being redeveloped for medium density housing. It is a reasonably large site, with a double block width and regular shape. While the council's urban character study encourages the retention of existing dwellings, nothing was presented to show why the demolition of the existing dwelling would be inappropriate. In any event, there is no planning control over its demolition. I was not advised of any difficult or awkwardly positioned easements. All infrastructure services are available. Further, the site is well located in close proximity to the commercial heart of the Sandringham Village with its shops and public transport.

19 Although the site is well vegetated, the council did not submit that excessive or unreasonable tree removal is to occur. The only concern related to whether the proposal properly allows for the retention of a large Brush Cherry, a tree that all the parties agree is significant and should be retained.

20 It is not difficult for me to conclude that the site has the physical attributes suitable for medium density housing.

21 It is also worth observing that there was no suggestion from the council and the objectors that the redevelopment of the site for medium density housing would be contrary to the planning scheme's housing and urban consolidation policies. While the Metropolitan Strategy Melbourne 2030 supports the higher densities in and around activity centres, it is also relevant that this is also encouraged in the council's own MSS. Specifically, the MSS housing objectives include accommodating for increases in residential population and changes in demographics[4]. The first strategy to facilitate the achievement of this objective is to encourage higher density housing principally in activity centres and residential opportunity areas, particularly those with good access to public transport. The site is clearly located within an area where council's local policy directs higher densities. It is an area where higher densities will cause "change".

22 It is also fair to say that the Metropolitan Strategy, the Council's local policies and clause 55 require that development be respectful of neighbourhood character. However, in assessing whether a proposal is "respectful", consideration needs to be given to the context, the thrust of the planning scheme's other policies such as those that call for higher densities in some locations and any special provisions that apply. In a location like this, the notion of what constitutes "respectful" development needs to embrace the "change" that is encouraged by metropolitan and local policy as well as the type of outcome that is envisaged by the design objectives set out in DDO6.

23 Having made those observations, I now turn to the key issues. The first of these is whether the proposal has been designed to be respectful of neighbourhood character.

24 Mr Hobson submitted that the proposal has been designed to be sufficiently respectful of the neighbourhood character when consideration is given to the policy context that applies.

25 For reasons outlined earlier, I accept that in a location like this, it would be reasonable to anticipate that more intense forms of development would be acceptable compared to a situation where the site is located in the residential hinterland. I agree that several aspects of the design have responded in a satisfactory way to neighbourhood character issues bearing in mind the policy context.

26 In particular, I agree with Mr Hobson that the division of the development into 2 blocks at the front creates a sense of building spacing that responds positively to the rhythm of development that would typically be found in a residential streetscape. I accept that the building height is appropriate. Two storey buildings are not out of place in a location like this where there is a mix of building heights. Although the turret over the roof deck to Dwelling D creates a third storey, I agree with Mr Hobson that this is a relatively small feature that serves an architectural purpose that adds to the visual interest presented by the development. In overall, terns, I conclude that the proposal would meet the DDO6 objective of maintaining streetscape rhythm, building scale and height of the centre.

27 I am also not concerned about what appears to be a relatively minor non-compliance with the front setback standard. The facades of the 2 front dwellings would have a reasonable relationship with the line of the developments on the neighbouring properties.

28 Mr Truong, however, also submitted that the visual bulk presented by the proposal is excessive and inadequate landscaping opportunities have been provided. In this regard I note that the DDO6 objectives include maintaining a strong landscape character with residential buildings set within vegetated surrounds.

29 A landscape plan was not submitted as part of the proposal. Despite this I agree with Mr Hobson that the spaces provided within the frontage and the side setbacks provide reasonable landscaping opportunities. I do not however, accept that the landscape opportunities within the central part of the development and along the south side boundary are appropriate.

30 The central driveway services 5 double garages. It includes substantial paved areas which by necessity extend from one building to another. Some limited opportunities for landscaping are shown on the plans and I accept that there is scope for some others. But overall, I consider that the central driveway will present occupants with a somewhat harsh internal environment dominated by walls and paving. I do not accept that it would provide a pleasant outlook for persons using the first floor balconies facing out onto it.

31 I also do not accept that the design response along the southern boundary accords with the outcome sought by DDO6. The southern part of the proposed development has been designed to be either constructed on the boundary or setback 2 metres. There are 3 observations to be made about this.

32 The first is that the proposal would result in a substantial change in the relationship between the site and the neighbouring properties to the south. At present the relationship is one where vegetation plays a substantial role. This would change substantially.

33 Second, the space provided for landscaping along the southern boundary is modest in size and narrow. While some forms of narrow landscaping can be put in place, I do not accept that the space provided would be sufficient to meet the DDO6 design objective of maintaining buildings set within vegetated surrounds insofar as the relationship with the properties to the south is concerned. The expectation within the DDO6 requirements is that the rear setback should be greater. An approach that is similar to that taken with respect to the west setback is reasonable and more appropriate.

34 Third, even if the property to the south is redeveloped at some time in the future in accordance with policies that encourage higher densities, this proposal needs to make a better contribution to the space and landscaping that would be provided between the 2 adjoining developments.

35 In my view, the design response at the southern end of the development has not responded appropriately to the policy context and the DDO6 requirements.

36 The second key issue in this case is whether the proposal would result in unreasonable impact on neighbouring properties.

37 For reasons that are not dissimilar to those set out earlier, I am of the view that the separation between the proposed development and the properties to the south is not adequate. Greater setbacks and more opportunity for landscaping in line with the expectations set out in DDO6 should be provided.

38 I agree with the submissions made by the council, Mr McTigue and Mr Thomas that the relationship between the proposed development and the neighbouring properties to the south would be inappropriate. The change from Mr and Mr McTigue's property would be extremely dramatic. Mr McTigue correctly acknowledged that it would be unrealistic to expect that the status quo would be maintained; however, I agree with him that the severity and harshness of the built form presented by this proposal would be overly intrusive.

39 The impact on the amenity of the properties to the south is not acceptable.

40 Mr Thomas asserted that the proposal would cause other amenity problems for Mrs Hudghton and the area generally. However, I am satisfied that the impacts with respect to overlooking, overshadowing, traffic and parking are within acceptable parameters based on the standards set out in clause 55. I consider that there is no need for the on-site space for visitors given the council traffic engineer's view that there is plenty of parking in the street to accommodate this demand.

41 The site is suited to being redeveloped for medium density housing and the planning scheme's policies provide "in principle" support for higher densities in this area. However, in this case, I am not satisfied that the design response has properly balanced these policies against the need to be respectful of neighbourhood character bearing in mind the expectation set by DDO6. Further, I am of the view that the southern end of the proposed development has not been designed to have an appropriate relationship with its neighbours thus resulting in unreasonable amenity impacts.

42 I will affirm the council's decision. No permit is granted.

43 Other issues were raised during the course of the hearing which I have not made findings on. In particular I have declined to make a finding as to whether the space around the Brush Cherry is sufficient given the conflicting expert evidence. With neither the council nor applicant's arborist giving evidence at the hearing, I consider that this is a matter that should be resolved with better evidence than that available to me.

[1] Ms Hudghton was joined as a party at the commencement of the hearing.

[2] At the commencement of the hearing I allowed the substitution of amended plans under clause 64 in schedule 1 of the VCAT Act.

[3] The precincts are defined in Map 4 of the schedule.