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Mr J Rantino, Solicitor of Maddocks represented the Responsible Authority.

Mr R Hopkins represented himself and all other respondents.

Mr T Ludeman, Planning Consultant of the RPD Group represented the permit/review applicant.

Planning Controls: Port Phillip Planning Scheme

* The proposal is not in accordance with Council's Residential Neighbourhood Character Policy.

* The proposal is not in accordance with Council's Municipal Strategic Statement (MSS) and Local Planning Policy Framework (LPPF).

* The proposal is out of keeping with the neighbourhood character of the surrounding area.

* The proposal fails to provide suitable on-site resident and visitor car parking.

* The proposal fails to satisfy objectives, techniques and criteria of the Good Design Guide for Medium Density Housing including Element 9, Element 8, Element 6, Element 3 and Element 1.

* The proposal represents an overdevelopment of the site.

* The proposal will not affect the neighbourhood character of the surrounding area.

* The proposal satisfies the objectives, techniques and criteria of Element 1, 3, 6, 8 and 9 of the Good Design Guide.

* The proposal does not represent an overdevelopment of the site.

* The proposal accords with Council's Municipal Strategic Statement and Local Planning Policy Framework.

* The proposal accords with Council's residential neighbourhood character policy.

1. Application No. 955/2001 was lodged with the City of Port Phillip on 17 July 2001 for the purpose of erecting four double storey attached dwellings at No. 38 Foam Street, Elwood.

2. The proposal was accurately described in the planning officer report as follows:

* Demolition of existing single storey 'contributory' dwelling.

* Development of a double storey building comprising four (4) attached townhouses. Pedestrian access to all units is via a walkway along the southern side of the subject property.

* Unit 1 includes kitchen, meals, lounge, powder room, laundry and one bedroom at ground level, and main bedroom, ensuite and retreat area at first floor level.

* Units 2, 3 and 4 include kitchen, meals, lounge, powder room and laundry at ground level, and two bedrooms and two bathrooms at first floor level.

* Unit 1 is provided with approximately 92m² of open space located primarily within the street frontage setback.

* Units 2, 3 and 4 are provided with approximately 25m² of private open space to the north-east of the dwelling, accessed from the lounge areas. Units 2 and 3 are provided with small first floor balconies of approximately 4m² accessed from the main bedroom, whilst Unit 4 is provided with a larger first floor deck of approximately 25m² above the proposed car parking area, accessed from both bedrooms.

* Proposed car parking for six (6) vehicles at the rear of the subject site, accessed from the Right of Way (ROW) abutting the rear (north-west) boundary. Two of the spaces are proposed to be parked in tandem, with five of the six spaces proposed to be covered by a carport structure, with individual roller door access to each space.

* Proposed frontage setback of 6.0m from Foam Street. Existing dwelling has a frontage setback of 7.5m. Proposed setback of 2.1m from southern boundary 2.5m to 3.9m from the northern boundary, and 1.8m from the rear western boundary to the proposed roller doors.

* Proposed building incorporates face brickwork to the lower level, with rendered material to upper levels. Terracotta roof tiles are proposed to the roof of the development, which incorporates 30° pitched hipped roof forms to Units 2, 3 and 4, and a 40° pitch, with dormer window projections to the front elevation of Unit 1.

* Proposal incorporates the retention of four (4) trees on the subject site.

3. The application was advertised by Council and, as a result, seven objections were received one of which contained ten signatures. The main issues raised in the objections were:

* Increased on-street car parking problems as a result of the development.

* Significant overshadowing of existing single storey residence to the south of the site, particularly the side northern garden.

* Loss of privacy to adjoining properties from windows at second level. Impact on privacy of No. 40 from the walkway and deck from the south facing windows of the proposed development which will overlook the northern side of the adjoining dwelling.

* Noise intrusion from the pedestrian pathway to all four units on the southern side of the proposed building.

* Size and layout of the parking spaces is insufficient, resulting in cars being parked on Foam Street.

* Loss of housing stock, in particular the older style architecture in Foam Street.

* Design not respectful of the neighbourhood character

* Frontage setback of 6 metres is inconsistent with the adjacent housing that is approximately 9 metres. Setback should be similar.

* Four private open spaces located adjacent to bedrooms of adjoining dwelling, which will have detrimental noise impacts.

4. Council also sought comments on the application from their internal advisors although it was not referred to Council's Heritage advisor owing to the fact that the site is not in a heritage overlay and as the existing building was not regarded as significant.

5. Council's urban design manager expressed concerns with the design in terms of its roof form not responding to the Foam Street streetscape; and the overuse of screens and opaque glazing suggesting an overdevelopment of the site in the context of its neighbours.

6. Council's traffic engineers were satisfied with the amount of parking (6 spaces) as well as the width of the rear access lane. They expressed some concerns with the width of the carports depending on whether they were to be hampered by structural columns.

7. A very detailed officer report dated 20 November 2001 recommended that the application be refused. This recommendation was supported and the proposal was rejected on the grounds cited above.

8. The Tribunal has inspected the subject site and the surrounding area. The Tribunal adopts the following description of the area as presented in Council's submission:

The subject land has a frontage of 15.30 metres and a depth of 39.70 metres, giving a total on-site area of approximately 607 square metres. The dwelling currently on the site is a single storey brick bungalow, with vehicular access via a rear right of way (ROW) that runs parallel to Foam Street. The building has a frontage setback of 7.5m. The existing dwelling is listed in Council's Heritage Review (an incorporated document) as a Contributory Building, albeit outside the application of the Heritage Overlay. The dwelling is located between two other Contributory buildings and in an immediate environment where the majority of buildings are similarly designated.

Foam Street runs between Ormond Road and Ormond Esplanade (foreshore). The building is a short walk to Elwood Village. Elwood Village is a bustling local strip shopping centre, which has become very popular in recent years and draws from an almost regional catchment. The subject land has an adjoining right of way (ROW). The ROW abuts the rear (north-west) boundary and is constructed of bluestone. It is approximately 4.5 metres wide.

Directly opposite the subject site is a duplex Edwardian house at No. 41, a Californian brick bungalow at No. 43 and Shoreram flats at No. 45 Foam Street. A solid brick Edwardian bungalow (No.36) abuts the subject land to the east and a timber Victorian house (No.40) abuts the subject land to the west. On the north side of Foam Street, there is a triple fronted cream brick veneer house (No. 34), and two storey walk-up flats at No. 42 and No. 46. Recent contemporary styles are represented in Foam Street at No. 44 and No. 49.

..................this part of Foam Street does not have a consistent built form or architectural character. Dwellings vary from Edwardian, Federation and Californian bungalow derived styles to 1960 tripled fronted cream brick veneer. Well established street trees and well landscaped front gardens predominate and provide the street with a "treed suburban character" which has become identified as typifying Elwood.

10. The Tribunal confirmed this view on its inspection. Foam Street comprises such a variety of built form and design types that it is not possible to identify a defining or unifying built form feature. That is not to say that the area is devoid of character. On the contrary, it is the immediate impression to the casual observer of the public realm elements, especially the street trees, which dominate the "character" of this area. The Tribunal believes, on the basis of its inspections that built form on private land plays more of a "support" role to the public domain in defining the character of Foam Street.

11. The subject land is within a Residential 1 zone under the Port Phillip Planning Scheme. A planning permit is required to construct two or more dwellings on a lot pursuant to Clause 32.01-4.

13. As the application was lodged prior to August 2001, the "Good Design Guide" remains the relevant assessment tool for medium density housing applications.

14. The strategic directions in the Port Phillip Planning Scheme are to be found in the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF). Council conveniently summarised the relevant features of both and this is explored in greater detail below.

15. It is sufficient at this stage to observe that state policy supports urban consolidation and that the local strategy refines that principle by applying it throughout Port Phillip. As a consequence, there are areas of Port Phillip which are targeted for accelerated growth, and areas nominated for more modest change.

16. The Tribunal regards the fact that the state government has sanctioned this local strategy (by virtue of its approval) is an indication that Council has addressed and satisfied its "urban consolidation" obligations. The Tribunal therefore does not regard it as an opportunity to now retreat to the SPPF and simply observe that "urban consolidation" supports the proposal, exclusive of the strategy contained in the LPPF. The Tribunal believes that the proper construction of new format planning schemes is that one can go to the LPPF safe in the knowledge that the state government believes that the local strategy has addressed and implemented state policy in respect of (in this instance) urban consolidation. The Tribunal therefore endorses the comments of an early VPP review decision by this Tribunal in Buckerfield Pty.Ltd. vs. Port Phillip City Council (1999/101844) where it was stated:

It is to be assumed that the local planning policy component of the Scheme has been assessed during the Scheme approval process, as consistent with the broad brush State Planning Policy Framework, and given state level approval. Thus it would seem that the structure of policies in the Scheme accept that the achievement of the broad State framework can occur despite the fact that there are certain areas where medium density housing is not encouraged. In the City of Port Phillip, at least, the acceptability of this approach perhaps is partly determined by the fact that there are other areas where the development of medium density housing is promoted.

17. The Tribunal believes that there are three issues in the application which need to be addressed:

* Are there any negative amenity impacts as a result of the application?

* Does the proposal sit comfortably with the character of the area?

18. The Tribunal will deal with each of these in turn.

19. The starting point for any assessment in the new format planning schemes is strategy. Every zone and every overlay in all Victorian planning schemes has the same first purpose being:

To implement the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies.

20. That it is to say that the zones and overlays now merely provide a framework for assessment; the source of the decision lies in the state and local strategy. Both Council and the applicant framed their submissions accordingly.

21. The starting point is the State Planning Policy Framework (SPPF). Without repeating this policy in full, it effectively asks, as Council properly noted, that the principle of urban consolidation be supported subject to considerations of neighbourhood character, design and location.

22. The City of Port Phillip has then sought to give effect to this principle at the local level. Council's strategy (as embodied in their MSS at Clause 21) includes the following relevant issues (among others):

* Maintaining a diverse population mix. This is contingent upon retaining and encouraging housing diversity including large dwellings suitable for families, affordable housing, housing of elderly and singles and non-traditional and non suburban housing alternatives. (21.03) (Tribunal emphasis)

* The continued loss of single dwellings on large lots that are an important part of the suburban character of parts of the municipality, in particular Elwood, East St Kilda and Port Melbourne, and provide housing choice and opportunities for larger households, shared housing and traditional family lifestyles and life cycles. This is particularly important given that over 70% of the municipality's housing stock is medium density and most new unit developments provide smaller units catering to only one or two person households. (21.03-1). (Tribunal emphasis)

* The loss of existing single dwellings on larger garden allotments that are an important component of the suburban character of Elwood and Ripponlea. (21.03-3)

* Established residential areas retain their distinctive suburban character including large front and rear setbacks, established gardens and low rise building form. There is limited new development and established homes are encouraged to be retained and refurbished to ensure that a range of housing choices are available. (21.03-4)

* To protect the important heritage and streetscape characteristics of the established residential areas.

* To ensure a high level of amenity for residents...

* To encourage the retention and construction of larger dwellings to cater for larger households. (21.05-1) (Tribunal emphasis)

* Ensure new development (particularly that which will increase density) in established residential areas only takes place where it can be achieved without adversely affecting the amenity and character of the neighbourhood. (Clause 21.05-1)

23. Specifically for the Elwood and Ripponlea neighbourhoods, Clause 21.05-1 also provides:

* Discourage new medium density development in established residential areas, except in appropriate locations such as on main roads or public transport routes if no other constraints exist such as heritage considerations.

* Protect the remaining stock of large dwellings and single dwelling lots in order to offer a range of housing options to the community...

24. Clause 22 (Local Policies) refine this broad strategic direction and focus (at 22.01) on Residential Neighbourhood Character. It is policy to:

* Discourage new development ... that cannot be achieved without adversely affecting the character of the surrounding area or the amenity of adjoining properties.

* Encourage design responses that show how contributory heritage buildings outside the Heritage Overlay have been considered, where they form part of the neighbourhood character. These buildings are shown in the City of Port Phillip Neighbourhood Character Policy Map that forms part of the Port Phillip Heritage Review, Version 2, 2000, which is an incorporated document in this scheme.

25. The same policy identifies the following important character elements for Elwood and Ripponlea:

* Detached dwellings on large allotments with generous front, rear and side setbacks that allow for attractively landscaped large open space areas with established trees.

* Low building heights ranging from 1-2 storey for single residences and 2-3 storeys for flats.

* The mature street trees in almost all areas, particularly the `boulevard' planting in streets such as Brighton Road and the Broadway.

26. Elsewhere, the scheme actively encourages new residential growth in identified locations. (Residential Land Use Framework Plan - 21.05)

27. Mr Rantino attempted to draw together the different policy strands and submitted that, read as a whole,

What distinguishes the Port Phillip Planning Scheme is that a reader is left in no doubt about the planning outcomes the Council is seeking to achieve within its municipality.

The scheme identifies where higher density residential development is encouraged and where it is discouraged.

It identifies what is encouraged and discouraged at the local neighbourhood level. One part of Port Phillip is not the same as another part - and these differences are recognised. This is the core of neighbourhood policy.

In the neighbourhood of Elwood, the further loss of larger single dwellings is positively discouraged.

In the neighbourhood of Elwood, a demand is placed on a developer to show how a development responds to an identified contributory heritage building even where the building is outside a Heritage Overlay.

In the neighbourhood of Elwood, new medium density development is discouraged in established residential areas except in appropriate locations such as main roads or public transport routes.

These are not mere statements of principle - they are clear directions to the decision-maker as to what is encouraged and what is discouraged.

28. The Tribunal agrees with this assessment, but only up to a point. The policy position, for instance, of discouraging the loss of large single dwellings is not followed through in the implementation tools available to Council. If Council "positively discourage" the further loss of single dwellings then they have to implement this via an appropriate planning control. Clearly, this hasn't been justified. The Tribunal is concerned therefore that there is a yawning gap in Council's strategic ambitions of retaining large dwellings on the one hand, but having no statutory teeth to implement that ambition on the other. This "gap" has been brought to the attention of Council on at least two other occasions. (Hoc Group Pty Ltd v Port Phillip City Council & Others 2000/098303; and Buckerfield Pty Ltd v Port Phillip City Council (1999/101844).

29. Having said that however, the Tribunal believes that the rest of Council's strategy suggests that there are areas of their municipality where Council is either encouraging or discouraging varying levels of density in order to meet their state level "urban consolidation" obligations. This part of Port Phillip happens to be an area where they have expressed (in the words of this Tribunal in PLVM Developments v Port Phillip City Council and Foster (P50979/2001) "...... a policy preference for somewhat larger dwellings with larger areas of open space which might be attractive to households other than single persons or couples". The Tribunal believes that Council is entitled to have that strategic view. It is a view which has been publicly tested. It is a view which has been considered by a Planning Panel. It is a view now sanctioned by the State Government. Under new format planning schemes therefore it is a policy position of some importance which should only be overturned for very good reason. The Tribunal is not in a position of reviewing the merits of that policy; it is simply trying to implement it.

30. The Tribunal believes that there is no persuasive reason to abandon Council's unambiguous strategy in this instance. Council clearly want "larger" dwellings in this locale. However, that does not mean that the existing building must remain. Indeed, the absence of any demolition controls severely weakens that objective. Rather, it means that any dwelling(s) which are to go on this site should be "larger" with larger areas of open space sufficient to attract persons other than singles or couples. "Larger" is, of course, a relative term however in the context in which it is used in the MSS it clearly means "large" enough to accommodate the modern family which presumably requires three bedrooms at least. The Tribunal notes Mr Ludeman's reference to statistical data for this immediate collector district suggesting that average household size is 1.8 persons per household. Council clearly want something "larger" than this. According to Clause 21.02-4, Elwood has a slightly larger proportion of detached dwellings on large lots than the rest of Port Phillip and Council wants this to continue so as to help deliver a ".... diverse population mix".

31. In the end the Tribunal believes that the policy, read in its entirety, can allow for new residential development on this site, but that such development should ideally be large enough, with enough on-site amenities to accommodate households of a size greater than one or two persons. This will help achieve the first key issue nominated in the MSS at Clause 21.03 which is:

Maintaining a diverse population mix. This is contingent upon retaining and encouraging housing diversity including large dwellings suitable for families, affordable housing, housing for elderly and singles and non-traditional and non-suburban housing alternatives.

32. The Tribunal now turns to the detailed consideration of the application to see whether this proposal has satisfied that objective.

33. Unusually for an application proposing a density of about 1 dwelling per 150m² of site area, there were few amenity complaints about the proposal. Notwithstanding the strong objections of nearby residents, it seems that the major off-site impacts in amenity terms is on No. 40 Foam Street which abuts to the south west.

34. Despite the objections, the Tribunal believes that the design has enabled most amenity impacts to be retained on-site. The use of the recessed upper level has minimised overlooking and overshadowing. The sunlight analysis not only suggests that the Good Design Guide is easily satisfied, but it suggests that, at the equinox after 9am, the new proposal will have no effect on shade. Privacy is addressed by non see-through glass in upper level windows facing the Hopkins property. The rear deck also avoids overlooking by use of screening.

35. The site greatly benefits from a wide rear right-of-way which avoids the need for wasteful street crossings off Foam Street and wasteful paved accessways within the site. The site fortuitously benefits from the right-of-way and this opportunity is well exploited in the design.

36. However, there is still the inescapable feeling that the site has been squeezed by at least one unit too many. Open space areas of only 25m² for two of the units is just too tight and is well below the 40m² threshold of the Good Design Guide. Given that this small area in Units 2 and 3 will be the only place for clothes drying, storage and the like, it would be a cramped amenity area for the end users of these middle units.

37. The addition of the sixth (tandem) car space so as to achieve the Good Design Guide technique also unnecessarily compromises the design of Unit 4. This unit "loses" valuable floor area to a car space and, as a consequence, it is forced to have hi-lite windows into a meals area. This is not an ideal design solution and one which suggests something of an overdevelopment. Finally, reliance on a tandem car space in a modern development is further evidence of what the Tribunal referred to in Hoc Group as a very "....... tight fit".

38. It seems to the Tribunal that, while not fatal, cramped open space, awkward car parking and some compromised internal layout means that at least one dwelling too many has been proposed for this site.

39. The Tribunal is much less concerned with the character impacts of this development than Council is. As noted above, the "character" of this area appeared to the Tribunal on its inspection to be made up of two elements. Firstly, there was a variety in the style, height and density of housing. This proposal sits comfortably with that. Secondly, and as noted earlier, the public domain elements of the street trees and nature strips make the dominant impression on the observer, much more than the built form.

40. In the proposed case, no street tree is to be touched, no access crossing is to puncture the nature strip at the front, and the most dominant visible vegetation on the site (in the front yard) is to be retained.

41. Finally, in terms of its appearance the Tribunal is satisfied that the design elements do not strike a discordant note with other design elements found nearby. The Tribunal does not believe that the proposal offends neighbourhood character.

42. In the result, the application comes down to Council's local planning policy framework. The policy position discouraging the loss of existing dwellings is of little practical assistance given the lack of statutory control to implement the objective. The Tribunal believes that Council's other main strategic ambition for larger dwellings in this area can be achieved by allowing for the redevelopment of this site so as to provide "larger" dwellings. As proposed however, the application merely adds to the pool of "smaller" two bedroom dwellings in the area. The application does not provide for "larger dwellings" in this part of Port Phillip which is what Council policy unambiguously asks for. Council is entitled to have that strategic view and it is a view which has been tested and sanctioned by the State government. The Tribunal regards its approval at the state level as evidence of it having satisfied Council's SPPF urban consolidation obligations. The Tribunal therefore concludes that the proposal is inconsistent with Council's clear strategic ambitions for Elwood.

43. While the proposal satisfactorily dovetails with the character of the area and has little off-site amenity impacts, it does provide a compromised on-site amenity which enables the Tribunal to conclude that the site has been slightly overdeveloped.

44. In the opinion of the Tribunal at least one less dwelling on the site will enable the Council policy to be achieved while improving on-site amenity. While the Tribunal has attempted to work with the design to achieve an acceptable outcome (as was done in PLVM Developments), the proposed layout does not lend itself to an easy redesign to delete a dwelling. Accordingly, the Tribunal believes that the process needs to start again to achieve a site responsive design which satisfies Council's local policy of larger dwellings in this part of Port Phillip.

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