The decision of the responsible authority in relation to planning permit application no. KP335/06 is varied. Pursuant to section 85(1) Planning and Environment Act 1987 the tribunal grants a permit and directs that the responsible authority issue a permit for the land at 32 Hillston Road, Moorabbin (lot 23 on PS 020055) allowing:

The development of this site for the construction of a second dwelling on the land and alterations and extensions to the existing dwelling (to be retained) in accordance with plans to be submitted in accordance with condition 1 hereof.

It is directed that the permit contain the conditions set out in the notice of decision to grant a permit no. KP355/06 issued by the responsible authority dated 20 October, 2006 modified as follows:

Prior to the commencement of the development hereby permitted, an arborist report shall be submitted with regard to the existing trees located along the south and south-east boundaries of the subject site. The report shall specifically look at the retention merits of each tree which might be affected by construction, the impact of the proposed construction and whether any tree protection measures (with details) are or are not appropriate to be provided. This report must be to the satisfaction of the responsible authority and when approved will be endorsed and form part of the permit.

1 This is an application under s.82 Planning and Environment Act 1987 (PE Act) for review of the of Kingston City Council's (council) decision (in permit application no. KP335/06) to grant a permit to construct a second single storey dwelling on a lot and for extensions and alteration to the existing single storey dwelling (to be retained) on the land at 32 Hillston Road, Moorabbin.

2 The application for permit was lodged with the council on 22 May, 2006. Following the giving of notice of the application one objection was received.

3 There were no referrals of the application under s.55(1) PE Act.

4 On 20 October, 2006, council, consistent with its planning officer's recommendation, determined to grant a permit.

5 The application for review was lodged with the Tribunal on 8 November, 2006.

6 Council and the parties' representatives tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing are attached to the Tribunal's file.

7 At the commencement of the hearing it was noted that:

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in the notice of decision the lot number of the land should have been lot 23 on PS 20055; and

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the permit application was not for the construction of 2 dwellings but for the development of this site for the construction of a second dwelling on the land and alterations and extensions to the existing dwelling (to be retained).

The tribunal's order incorporates these corrections.

8 Also at the commencement of the hearing the applicant abandoned a number of her grounds of application for review nos. 2, 3, 4 and 6, which Ms Lardner submitted were irrelevant or lacking in clarity, and Mrs Murray pursued grounds 1, 5, and 7 which raised issues as to:

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the consistency of the council's decision with the tribunal's decision (myself being the sitting member) to refuse to grant a permit for a development at 7 Hillston Road, Moorabbin[1];

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whether the restrictive covenant affecting the land operated as a single dwelling covenant to prohibit the proposal; and

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issues of neighbourhood character, in particular the issues of walls on boundaries, side setbacks, additional driveways under the schedule to the Residential 3 zone and the neighbourhood character overlay, introduced into the planning scheme by Amendment C70.

9 Mr Frank Perry of F R Perry and Associates Pty Ltd gave expert evidence for the applicant as to planning. It was stated that Mr Perry was a partner in F R Perry and Associates with Mr Jack who was one of the owners of the land. No objection was taken to his evidence on this basis. No arborists' reports were produced.

10 The hearing of this proceeding occupied 1 day. Following the hearing, I inspected the land and the neighbourhood at large.

11 The land is located on the south-east corner of Hillston Road and William Street, fronting Hillston Road. It is regular in shape with the following dimensions:

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frontage of 12.19m to Hillston Road;

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a corner splay of 4.5m;

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a maximum depth/sideage to William Street of 43.71m;

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an area of 661m²;

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a fall of about 2m from the north-east corner to the rear south-west corner.

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a drainage/sewerage easement runs along the south (rear) boundary

12 The site is currently occupied by a 1940s single storey solid brick dwelling with gabled roof setback about 8.24 metres from Hillston Road.

13 It is proposed to retain the existing dwelling, construct a single storey brick veneer dwelling to the rear and make alterations to the existing dwelling by internal reconfiguration involving converting rooms on the eastern side to living/meals areas, a screened deck in the frontage for private open space, and a new doorway accessing private open space on the east (Mrs Murray's property being on the eastern side). The new dwelling would have walls on or almost on the southern and eastern boundaries at the rear, not visible from Hillston Grove.

14 The land is zoned Residential 3 under the Kingston Planning Scheme. At clause 32.06 the relevant purposes of the zone, in addition to implementing the state and local planning policy framework, are the same as the Residential 1 zone with the addition of an additional purpose: "To limit the maximum height of a dwelling or residential building".

15 In that zone a permit is required under clause 32.06-4 to construct a dwelling if there is at least one dwelling existing on a lot and to extend a dwelling if there are two or more dwellings on the lot. Such developments must meet the requirements of clause 55. The requirements of clause 55 are that a development must meet all of the objectives of that clause and should meet all of the standards of the clause. The schedule to the zone alters the requirements of clause 55 as to Standard B28 as to private open space and Standard B32 as to front fence height, which are not in issue in this case.

16 The land is also covered by Neighbourhood Character Overlay - Schedule 1 (Hillston Road, Moorabbin Precinct) (NCO1). Its purpose is to identify areas of existing or preferred neighbourhood character and to ensure that development respects the neighbourhood character. Pursuant to clause 43.05-1 a permit is required to construct a building or carry out works. The exceptions specified are not applicable to this case. The vegetation on Mrs Murray's property is not within that protection. A schedule to the overlay may modify the requirements of clause 55.

17 Clause 1.0 of NCO1's statement of neighbourhood character refers to the combination of the unusually high consistency of building form and siting reflecting the patterns of earlier development in the area and the unusual characteristic of low rock wall front fences not generally found elsewhere in the municipality. Values aspects include the predominantly single storey dwellings with complex hipped roof forms within a garden setting achieved by substantial side and front setbacks. The City's Neighbourhood Character Study 2003 (NCS) is a key reference and the distances between buildings and their front and side boundaries is emphasised.

18 Clause 4.0 of NCO1 modifies clause 55 in the following relevant aspects:

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B17 requires a new building should be set back from one side boundary a minimum of 1 metre and the other side boundary a minimum of 3 metres.

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B19 states 'buildings should not be constructed on boundaries';

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B13 (landscaping) requires landscaping layout and design should protect any predominant landscape features of the precinct;

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B15 (parking location) requires amongst other things that car parking facilities should be accessed by one crossover to the street.

19 The parties referred to other provisions of the planning scheme including:

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State Planning Policy Framework (SPPF) - clauses 12 (metropolitan development), 14.01 (planning for urban development), 16.02 (housing) and 19.03 (design and built form);

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Local Planning Policy Framework (LPPF) and the Municipal Strategic Statement (MSS), updated by Amendment C70, clauses 21.05, 22.11, 43.05 (NCO1) and its schedule 1 (Hillston Road Precinct);

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clauses 55.01-1, 55.2-1, 55.02-2, 55.02-4, 55.03-1, 55.03-3, 55.03-8, 55.03-9, 55.03-10 and 55.04-1 (Rescode) and 65 (decision guidelines);

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Neighbourhood Character Guidelines -Character Area 4.

20 I have considered the submissions of the parties, the material produced at the hearing and on VCAT's file and my inspection of the site.

21 At the commencement of the hearing Mr Fletcher explained the plans. It emerged there was uncertainty about the location of the title boundary in relation to the existing boundary fence. The plans appeared to me to show the existing paling fence slightly encroached into Mrs Murray's land and that the new dwelling would be built inside the existing fence on the title boundary, but no survey was produced, and Mr Fletcher thought the contrary may be the case and that a new fence may be built.

22 There may be a dispute between the parties as to the location of the existing fence in relation to the boundary and the construction of a new fence if the permit applicant considers the title boundary is further inside Mrs Murray's property than the existing fence. However this is not a planning matter but a fencing and common law matter outside the jurisdiction of this tribunal, I being satisfied that the plans showed the proposal was to be constructed within the title and as occupied.

23 Mrs Murray argued that the land was subject to a restrictive covenant that prohibited the construction of more than one dwelling on the land and she submitted that notice of the application should have been given to all of its beneficiaries. Council in its consideration of the permit application obtained legal advice from its solicitors supported by senior counsel's opinion to the contrary. The relevant wording of the covenant was as follows:

... ... ... that it [the owners of the subject land from time to time] will not use or permit to be used any building now or which at any time hereafter be erected on any part of the said lot ... ... ... for any purpose other than that of a private dwelling house and the usual outbuildings in connection thereof and that it will not use or permit the said lots to be used for the purposes of carrying on any trade or business whatsoever and that it will not erect or place or permit to be erected or placed on any of the said lots any hoarding or advertisement other than such as shall relate to the selling or letting of the property.

24 Covenants in similar form have been considered by the Supreme Court and the tribunal in a number of decisions, Urban Planning and Development v Boroondara City Council[2] before Deputy President Macnamara, Gubby v Mornington Peninsula Shire Council[3] before me, and in Tonks v Tonks[4] in the Supreme Court of Victoria.

25 The decisions lead to the conclusion that:

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the meaning of the covenant is determined by its language and context of the actual document;

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it must be interpreted strictly and literally because it now affects parties who were not contracting parties to the original document;

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extrinsic evidence is not relevant to the interpretation of the document;

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Section 37(1) of the Interpretation of Legislation Act which provides to the effect that words in the singular include the plural and vice versa apply to the covenant in the absence of contrary intention expressed in the document, which is not to be found in this case. Thus the reference in the covenant to 'any building now or which at any time hereafter be erected on any part of the said lot' should be read as any building or buildings.

26 The wording used is unlike that usually used in restrictive covenants specifically designed to prevent more than one dwelling house being erected, such as 'there must not be erected on the said land any more than one dwelling house'.

27 In this case the only restriction imposed is on the use of any building on the land, which does not prohibit the construction of an additional building so long as it is used in accordance with the covenant. I find the covenant does not operate as a single dwelling covenant and does not prohibit the proposal.

28 Mrs Murray argued that the council's decision was inconsistent with the tribunal decision by me in Bossak Building Supplies v Kingston City Council cited above relating to a second dwelling proposal at 7 Hillston Road.

29 However Bossak did not involve a corner site, and the principal basis for the decision was that the proposal did not respect the valued neighbourhood character and was not site responsive because it involved removal of part of the rubble fence to create a second driveway in the frontage in Hillston Road. In contrast the rubble wall at 32 Hillston Road will be retained not only in the Hillston Road frontage but also its return along part of the William Street sideage, and no driveway will be introduced into the Hillston Road frontage.

30 Another significant reason for rejecting the proposal in Bossak was a zero setback to the western lot boundary and a failure to set it back 1-3m in accordance with the NCS identification of building placement making a major contribution to neighbourhood character to reinforce the established dwelling character in the streetscape, despite the number of garages and carports on boundaries in the area. However this is distinguished from the present case as the zero setback was in the front unit visible from the street and included a garage in the front setback. In the present case the walls on boundaries are not visible from Hillston Road and will not affect its streetscape which is the main focus of protection.

31 The form of the upper level of the front unit was also in contention in Bossak. The front dwelling in the present matter is an existing single storey dwelling which will be only subject to minor alteration.

32 Accordingly I find that council's decision to approve this development is not inconsistent with the Bossak decision.

33 Mrs Murray objected to the council's decision to vary the standards of clause 55 (as varied by the Residential 1 zone and the neighbourhood character overlay) as to:

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B17 - side and rear setbacks

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B18 - no walls on boundaries

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B31 - building spacing, footprint and massing; and

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B31 - design detail.

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a 6.94m long wall on the east boundary in the rear of Mrs Murray's secluded private open space with a wall height of 2.6m above natural ground level projecting 0.8m above the existing fence height;

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a 6.34m long garage wall, 3m high, on the south boundary, abutting a large, open, well vegetated private open space area in the neighbouring property;

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the boundary walls resulted in variations to the side and rear setback requirements.

35 Mrs Murray's view was that if the standards could not be met a permit should not be allowed and she relied for her understanding of neighbourhood character on the public documents produced by the council, NCO1 and the NCS. She asserted the predominant character was one house, one lot and, on corners, one crossover, and that the view of the new dwelling from Hillston Road along the William Street sideage will be one of obtrusive visual massing with no physical detachment from the existing dwelling and not in character.

36 Mr Perry, together with Ms Mustica's submissions on behalf of the council and Ms Lardner's submissions for the permit applicant, supported council's decision that the development respected the existing and preferred neighbourhood character and that the variations should be approved.

37 I accept Mr Perry's evidence in this matter and the submissions of council and of Ms Lardner.

38 It must be commented that Mrs Murray's view that the standards must be read literally and no variation should be allowed is not an appropriate method of interpretation. The purpose of the standards is to meet the objectives set out in the relevant provisions which in this case require respect the existing and preferred neighbourhood character of the area and in particular the valued neighbourhood character elements of the streetscape of Hillston Road. It is established that for non mandatory standards variations are appropriate if the objectives of the control remain achieved.

39 Clause 11 of the planning scheme directs the council and the tribunal to consider all relevant policies, and to balance them where they may conflict or need variation to reach a good planning outcome in the net community benefit. Thus a balancing and some flexibility are essential to an effective exercise of discretion in the planning process.

40 I do not agree that the neighbourhood character is one house/one lot. The state and local planning policies and the purposes of the Residential 3 zone is to provide for residential development at a range of densities and a variety of dwellings to meet the housing needs of all households which includes a demand for medium density housing in this area.

41 The local policy in clause 22.11 has identified the area as one of incremental change and I find that this development of a single additional dwelling at the rear of an allotment which is relatively small and single storeyed falls within that requirement. As Ms Lardner submitted, it is difficult to imagine a development any more incremental than this.

42 I find the design response of the additional dwelling acknowledges the residential character of the area in single storey building height, a gabled roof shape, window patterns and articulations in front setback.

43 The essential valued characteristics of the Hillston Road streetscape are preserved and respected by the retention of the existing front dwelling with some minor alterations, and particularly the retention of the rubble wall along the whole of the frontage and where it presently exists along the William Street sideage.

44 The present sideage in William Street where the new dwelling will be placed presently is a high paling fence with a double garage and gateways and a triple crossover, and these aspects are not a part of the valued character of the Hillston Road precinct referred to in NCO1 and the NCS. I find the William Street streetscape will be improved and enlivened by the proposal.

45 I consider the modified standards for the walls on boundaries and side and rear setbacks and building spacing are appropriate as they do not affect the Hillston Road streetscape or the preferred character in any way. The boundary wall adjacent to Mrs Murray's property cannot be seen from Hillston Road, nor can the garage wall on the south boundary, and indeed garage walls on boundaries are a common feature in Hillston Road.

46 Mrs Murray referred to the issue of a toilet on her boundary being contained in the existing dwelling. This toilet will be behind a brick wall and I know of anything that would cause any adverse amenity impact of this feature to her property.

47 Mrs Murray referred to possible impacts on infrastructure. This matter was considered by council and there is nothing before the Tribunal to indicate the small additional dwelling in the area would be an undue load on the infrastructure of the area.

48 In respect of overlooking of Mrs Murray's front window and from the new door to the side open space of the front dwelling, I consider there will be no unreasonable overlooking of her property and that the 1.7 metre high screening of the small front deck meets the standard required by the overlooking provisions of clause 55 and will prevent any unreasonable overlooking of that window. I do not accept the submissions that the possibility of somebody standing on tiptoe looking over the top of the screen or lying on the deck to look through a small gap at the bottom is a reasonable apprehension.

49 The last issue is landscaping. Looking at Mrs Murray's backyard I find that the camellia bush and the shrubs adjacent to the private open space of the proposal should not be affected by the construction and that it is not necessary for the sheds (which will not be placed on concrete pads) to be moved to a different position.

50 I viewed the fruit tree on the boundary adjacent to the proposed boundary wall. Whilst it no doubt produces beautiful blossoms it is not a significant tree and appears in poor condition and towards the end of its life. I suspect it is of limited landscaping value and I note that otherwise there is minimal landscaping in Mrs Murray's ample rear yard which would provide significant opportunities for much more extensive planting and screening.

51 However I have provided in condition 4 that the arborist's report should give consideration to whether this fruit tree is worthy of protection and, if so, whether it is appropriate that any modification should be made to the works. I note in this regard that the applicant has indicated that he is willing to consider pier and beam construction of that part of the building adjacent to the boundary.

[1] Bossak Building Services v Kingston CC [2006] VCAT 1788 (30 August 2006)

[2] [2001] VCAT 224 (28 February 2001)

[3] [2002] VCAT 1344 (15 November 2002)

[4] [2003] VSC 195