1. Pursuant to sec. 126 of the Victorian Civil and Administrative Tribunal Act 1998, leave was granted to include in this proceeding an application to extend Permit KP857/2007.
2. Permit KP857/2007 is extended for a further two years from the date of issue: time limit is 19 February 2012 to commence and 19 February 2014 to complete development.
3. Condition 1b) be amended by deleting the word "2" following the words "the first floor east facing walls of Dwellings".
4. The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

The permit issued for the development of the land was for three double storey dwellings in additional to the existing dwelling. The endorsed plans of the permit show the first floors of the new dwellings separated from each other and smaller in footprint than the ground floors, not including garages. The proposal is to amend the design by extending the first floors of these new dwellings so that they are attached forming a continuous building mass. There are other amendments to the endorsed plans which have been approved and not part of the dispute in this proceeding.

This proceeding is also to extend the permit issued on 19 February 2008, which expired on 19 February 2010 while this review was awaiting hearing.

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

Site located at the end of Bardoel Court, Dingley, a short dead street that backs onto the future Dingley By-pass which is to connect to the Mornington Peninsula Freeway. It is comprised of two allotments with a total site area of 1478 sq m. It is developed with a single storey brick veneer house with an undercroft garage described in the submitted plans as storage.

Development in Bardoel Court is single dwellings, some having a two storey appearance facing the street.

1. The permit applicant has sought to amend the permit issued to construct three double storey dwellings in additional to the existing dwelling on the land. Council has granted approval for the amendments subject to several further modifications to the design. This review is against two of these modifications as specified in Conditions 1 a) and 1b), which are:
   1. The first floor south facing wall of bedroom 1 of dwelling 3 separated from the north facing wall of bedroom 1 of dwelling 4 by a minimum of 2 metres;
   2. The first floor east facings of Dwellings 2, 3 and 4 set back at least 1 metre from their respective ground floor components, excluding bedroom 1 of dwelling 3 and bedroom 1 of dwelling 4;
2. The permit applicant has lodged an application to review these conditions. Further, while this proceeding is to come before the Tribunal, this permit, issued on 19 February 2008, has expired on 19 February 2010. A request dated 25 June 2010 was lodged to extend the permit, although the request was made on the wrong form.
3. Council did not oppose the request to extend the permit for another two years.
4. As there is no change in circumstances since the issue of the permit and no objection to the proposal, I agreed to extend the time to consider the request pursuant to Sec. 126 of the Victorian Civil and Administrative Tribunal Act 1998, and extend the permit for a further two years from the date of issue pursuant to Sec. 68 of the Planning and Environment Act 1987. The permit will now expire on 19 February 2012 for commencement, and 19 February 2014 for completion.
5. Having considered the submissions of the parties, having regard to the provisions and policies of the Kingston Planning Scheme ("the Scheme"), and assisted by my inspection of the site and area, I agree with Council the reasons for the required modifications. Except for the required recess for the east facing first floor wall of Dwelling 2 under Condition 1b), I uphold Council's conditions.
6. As the merits of the overall proposal has been determined resulting in the issue of permit, it is not necessary for me to provide a comprehensive review of the merits of the development, but confining myself to the matters of dispute: the two storey built form of the development.
7. The issue in this review is neighbourhood character consideration.
8. Mr. Mitchell justified his opposition to condition 1a) on the basis of wind velocity and thermal loss created by the 2 metres gap required by the condition. This argument was not backed by evidence. I am not persuaded that a gap of two metres between the first floor walls of two dwellings of a height less than three metres for a depth of 5 metres would create such adverse wind conditions that would jeopardise the use of the building as a dwelling. Besides, the area concerned is the garage roof which is not trafficable and not used for any purpose. As for thermal loss, it is again not demonstrated that the gap would cause energy efficiency problems, considering that that part of the wall is for the walk-in-robe and bathrooms of the dwelling, of brick veneer construction and subject to standard insulation.
9. At the hearing, Mr. Mitchell relied on other people's alleged advice as justification for his opposition to the contested conditions. For example, he submitted that his draftsperson's advice was that the amended plans comply, presumably with Building Regulations, which has nothing to do with neighbourhood character or planning consideration. This alleged advice and his professed expertise in wind tunnelling effect carry no technical weight in the proceeding as these opinions cannot be tested as evidence.

Whether the required modifications to require a two metre gap between the first floors of Dwellings 3 and 4 pursuant to Condition 1a) and a recessing of the eastern elevations of the first floors required by Condition 1b) justifiable?

1. With regard to the two metres gap required, Mr. Hamilton submitted that the purpose of this condition is to provide a break in the upper floor building footprint which is proposed to extend through the site in one attached upper storey mass from Dwelling 2 at the front to the end of Dwelling 4. In Council's opinion, this gap will produce a greater sense of individual identity for each dwelling, achieve an improved relationship with the modest detached built form character in the neighbourhood, and produce an identifiable distinction between Dwellings 3 and 4. It submitted that the proposed continuous built form for the first floors of the three dwellings is inconsistent with the prevailing built form character in the area, particularly that the area is located in the Incremental Change area pursuant to Clause 21.05 where it is policy to retain the predominantly single dwelling character and incremental change to occur in the form of single dwellings or the equivalent of dual occupancy on an averaged sized lot.
2. With regard to Mr. Mitchell's argument that the dwellings will not have a presence in Bardoel Court, Mr. Hamilton commented that this continuous built form is visible from within the site (the existing house at No. 6) and the other dwellings in Bardoel Court.
3. Mr. Mitchell's argument against this requirement was, as referred to earlier in these reasons, because of high wind velocity, wind tunnelling effect and thermal loss, and because the gap is not visible from Bardoel Court. He tabled a development in Tennyson Street, Highett, of a row of terrace type town houses as examples of Council approving a continuous built form, inferring that the continuous built form of this development should also be approved.
4. Neighbourhood character is not just about whether a development is visible from the street, or just about streetscape.
5. The site is located in the Incremental Change area of Clause 21.05. An incremental change area is one that is identified to be not within walking distance of public transport (particularly fixed rail varieties) and activity centres and where a lower housing form with predominance of single dwelling and the equivalent of a dual occupancy in an average sized lot is encouraged.
6. The site is located in the Residential 3 Zone of the Scheme. By variations to standards to Clause 55, such as lower site coverage and increased minimum size and dimensions for private open space, the intensity of development is not anticipated to be as intense as those in the Residential 1 or 2 zones.
7. For a site in an incremental change area, it is policy under Clause 22.11 to ensure that new housing development "is responsive to maintaining the existing and preferred single dwelling/lower density nature of these areas"[1]. This policy went on to make recommendations on landscaping, built form, siting and scale of development.
8. For 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.
   • Ensure that any upper storey components towards the rear of sites are sensitively designed to avoid unreasonable adverse amenity impacts on neighbours.
   • Encourage well articulated and graduated elevations in order to avoid 'box like' double storey designs, thus reducing visual bulk.
   • Ensure 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.
9. As can be gauged from this policy and the general understanding that neighbourhood character is not just about streetscape, two storey building masses beyond the street front has to be sensitive for an area earmarked for incremental change.
10. The approved version of the new three double storey dwellings exhibit good separation among buildings and the first floors are well separated from each other. The gap between Dwellings 2 and 3 was 4 metres, and 14 metres between Dwellings 3 and 4. The proposed amendment is to have these three building masses in a continuous manner. This is contrary to policy and the existing neighbourhood character of detached houses in Bardoel Court, even having regard to the future unlikely sensitive development of land to the rear, which is the new freeway.
11. Having regard to the housing policy of the Scheme and the existing neighbourhood character, I form the view that the proposed continuous built form of the first floors an inappropriate design response to the existing character of single dwelling and detached house building rhythm of the neighbourhood.
12. With regard to the cited example of Council approving continuous built form in Tennyson Street, that development is in a completely different context. That site is opposite the vast Southland shopping centre. Tennyson Street is a wide street with that part of the road connecting Chesterville Road and Nepean Highway, both busy roads. The zoning of that land is Residential 1 Zone which is not subject to the variations of Clause 55 standards as Residential 3 Zone which is the zoning of the land. There is no comparison between the two sites.
13. The second required modification (Condition 1b) is recessing the first floor eastern elevations of the new dwellings by 1 metre. The amended plans are already proposing a 600mm recess for Dwelling 2, and 900mm for Dwellings 3 and 4. Council's justification was that recessing these elevations to 1 metre would reduce the prominent double storey vertical aspects and increase the separation between the ground and upper floors to reduce bulk and mass.
14. Mr. Mitchell's argument against recessing the first floors was that the size of the bedrooms would have to be reduced to 3.3 metres, which would be useless.
15. The approved proposal shows three bedrooms and a bathroom on the first floors for each new dwelling. The amended design is for either four bedrooms (Dwelling 2) or three bedrooms plus computer or entertainment rooms (Dwellings 3 and 4) with a larger first floor as follows:

1. The size of the proposed first floors is generous and ambitious for a medium density development in a suburban setting and a single dwelling area with open backyards. I am of the view that Council's condition requiring a metre recessing of the first floor relative to the ground floor not excessive at all.
2. Indeed, the required recessing of the first floors of Dwellings 3 and 4 is marginal, an increase of 100mm from the proposed. For the first floor to have an effective recess, I would have supported a deeper recess. Since Council has made a decision to require a total of 1 metre, I accept this decision. The condition requiring a recess of 1 metre for Dwellings 3 and 4 will stay.
3. With regard to Dwelling 2 which is shown to be recessed 600mm and required to be recessed 1 metre, I have a different view from Council.
4. An up-front two storey built form facing the street is not out of character with the other dwellings in Bardoel Court. If there is to be a two storey built form, and as expressed in Clause22.11, it should be at the front. Thus, there is no need to require further recessing of this dwelling from the current 600mm.

1. The proposed changes subject of this review are reasonable against the neighbourhood character of the site. In fact, I would consider the originally approved version showing more recessive first floors as more responsive to the character of the area.
2. The contested conditions are retained except a minor variation to 1b) by not requiring the eastern first floor wall of Dwelling 2 to be recessed 1 metre.

[1] Clause 22.11-3, Residential Development Policy on neighbourhood character for Incremental Change area, Page 3 of 5.