1 Before the development can commence, 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 submitted but modified to show:

a

Unobscured windows on the western elevation of the first floor of both dwellings to have sills 1.7 metres above floor level.

b

The addition of a 1.7 metre high privacy screen to the western end of the decking of Dwelling 1.

c

Details of the fence height surrounding the property, any changes in fence height and that the fence material is to be brush;

d

The western wall of the dwelling 1 garage/store set back from the western boundary at least as far as the dwelling 2 garage/storage is set back from the western boundary;

e

That part of the dwelling 1 upper level currently shown as "wir" varied by deleting the western half of this wir area and converting the eastern half of this wir area into a conventional wardrobe;

f

That part of the dwelling 2 upper level shown as a "bedroom/wir/linen cupboard/ens" varied by increasing the setback of the western wall of this upper bedroom to four (4) metres from the western boundary, together with the associated internal reconfiguration of this southern end of the dwelling 2 upper level.

2 Before the works commence, detailed civil construction plans to the satisfaction of the Responsible Authority must be submitted for approval. All construction plans submitted for approval must be consistent with this permit and must conform to the requirements of all servicing authorities, and in particular water, sewerage, telephone and power supply authorities. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must show:

a

Drainage of the subject land. Matters for approval include:

i

I.compliance with the Best Practice Environmental Management Guidelines for Urban Stormwater and Bass Coast Shire Stormwater Management Plan (2003);

ii

any quality treatment proposed in accordance with these Guidelines;

iii

a drainage retardation system on the subject land serving each lot allowing an unrestricted flow path for 1 in 100 year extreme event storm flows. The drainage retention system must discharge to the existing underground system; and

iv

consideration of any buildings and works and landscaping in relation to any detrimental impacts to underground drainage pipes located on any existing or proposed drainage or sewerage easement.

b

Vehicle access to the site including:

i

concrete driveways to Council Standard Drawings;

ii

car parking areas and access ways to be sealed with an all-weather seal pavement to the satisfaction of the Responsible Authority; and

iii

car parking spaces and access lanes designed in accordance with the Australian Standard for off-street car parking AS 2890.1 - 2004. All works must be constructed or carried out in accordance with those plans.

3 Prior to the certification of the Plan of Subdivision, and before the commencement of any works associated with the development, an amended plan of subdivision must be submitted to and approved by the Responsible Authority. The plans must show:

4 Prior to the issue of a Statement of Compliance, the following must be completed:

a

all works required by the above conditions have been completed to the satisfaction of the Responsible Authority;

b

landscaping works as shown on the endorsed plans must be completed to the satisfaction of, the Responsible Authority; and

c

redundant vehicle crossings must be removed and the area reinstated with the appropriate kerbing and channelling and then landscaped, to the satisfaction of the Responsible Authority.

5 The layout of the development and the subdivision as shown on the endorsed plans shall not be amended, altered or modified (whether or not in order to comply with any statute, statutory rule or, or for any other reason) without the further approval (in writing) of the Responsible Authority.

6 No building shall be constructed on any existing or proposed easement without the further approval in writing of the Responsible Authority.

7 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

8 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with the authorities' requirements and relevant legislation at the time.

9 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant public authority for which the easement or site is to be created.

10 The development must be managed during the construction phase so that the amenity of the area is not detrimentally affected through the:

a

transport of materials, goods or commodities to or from the land;

b

appearance of any building, works or materials;

c

emission of noise, artificial light, vibration, smell, fumes, smoke; and

d

presence of vermin or animals.

11 The subdivision must ensure that no mud, dirt, sand, soil, clay, stones, oil, grease, scum, litter, chemicals, sediments, gross pollutants, animal waste or domestic waste shall be washed into, allowed to enter, or discharged to the stormwater drainage system, receiving waters or surrounding land, during the construction works on the land hereby approved to the satisfaction of the Responsible Authority.

12 This permit will expire if the following occurs:

•

the development is not started within two years of the date of this permit;

•

the development is not completed within four years of the date of this permit;

•

the plan of subdivision is not certified within two years of the date of this permit;

•

a Statement of Compliance is not issued within five years of the certification of the plan of subdivision.

The Responsible Authority may extend the expiry date if a request is made in writing before the permit expires or within three months afterwards.

A Road Occupation Permit shall be required for any works undertaken in any road adjoining the land subject to this permit. This includes works associated with driveway construction or service connections for drainage, power, telephone, water and sewerage or easement drainage works.

Ms Marilyn Freeman appeared in person, speaking also for her husband and Mr & Mrs O'Neil.

Ms Linda Sahhar appeared for the permit applicants.

1 This matter involves a proposal (as amended) for the construction of two double storey dwellings and subdivision of land into two lots, together with the associated removal of one tree. The land in question is at 17 Church Street, Cowes ("subject land") and the appeal is a s.82 merits appeal taken out by two side neighbours.

2 At the hearing of this matter on 12 January 2007 I heard submissions from all the parties. A copy of the relevant written submissions is retained on the Tribunal file along with the relevant photos, plans and other materials tendered during the hearing.

3 In terms of procedural matters which arose during the hearing, it became clear during the hearing that there may well be a tree which required permit for removal, pursuant to the Vegetation Protection Overlay Schedule 2 which affects the site. It was left that I would make directions after the hearing, allowing this issue to be investigated further (which I did).

4 I subsequently received a letter dated 17 January 2007 from Council, indicating that the tree in question is a Ghost Maple which is big enough to require a permit under the VPO. However, Council further indicated that as this tree is an exotic tree and Council believes its removal will not affect the amenity of the area or environment, Council confirmed that it would not object to the tree being removed.

5 In all the circumstances then, pursuant to my broad powers under the Schedule to the VCAT Act 1998, it seems fair and reasonable that I now amend the application to include the seeking of permission for removal of this tree.

6 I further note that there was some uncertainty near the end of the hearing about how large the outside courtyard is, in relation to the adjoining unit owned by Ms Freeman. My directions dated 15 January 2007 after the hearing also provided for Council to have the opportunity to properly "scale out" the area of this courtyard from the relevant plans, including that part of the courtyard extending to its southern boundary, but excluding the walkway which continues around behind the units.

7 The council letter of 17 January 2007 also confirms that council had carried out this measurement process and the result of this process indicated that the courtyard area is somewhere between 42.6 and 42.93 square metres.

8 I also received a letter from Ms Freeman dated 19 January 2007, querying the accuracy of the measurement of her courtyard (ie her belief remains that her courtyard is below 40 square metres). However, whilst acknowledging her belief that that part of the courtyard underneath her building eaves and which form part of the retaining wall should be excluded, my view remains that:

• I regard that part of the courtyard under the eaves as being just as usable for day to day purposes as the rest of the courtyard (eg someone can still sit in a chair in that part of the courtyard under the eaves); and

• It is doubtful whether I can exclude the retaining wall area from my consideration of the courtyard. The soil in the top of the retaining wall is landscaped and arguably forms part of the ambience of the courtyards, and in the alternative it is not clear to me that the retaining wall area in totality constitutes the necessary floor area to take the courtyard below 40 square metres in size.

9 For the above reasons, my assessment of Ms Freeman's courtyard has proceeded on the basis that it is over 40 square metres in size (it was beyond doubt that the private open space of the front unit is above 40 square metres in size).

10 After the hearing the Tribunal inspected the subject land and the courtyard of both the front and the rear courtyard of the adjoining units (I appreciate the assistance of Ms Freeman in this regard). I also took note of the general features of the local streetscape.

11 The subject land is on the southern side of Church Street, being located on the corner of Church Street and Monash Avenue in East Cowes. The site is located about 700 metres east of the Cowes Commercial area and roughly 600 metres south of the foreshore.

12 The site is 633 square metres in size, is rectangle in shape and is oriented on a north-south axis. The site currently features a single storey fibro dwelling and timber shed accessed from Monash Avenue. There is only sparse vegetation on the land at the moment, but recognising that there is a larger Ghost Maple tree which requires a permit for removal.

13 The buildings in the surrounding neighbourhood are mostly single storey in nature, but with a sprinkling of double storey also (eg there are double storey dwellings close by, further west on the same side of Church Street). The materials used for other dwellings range from brick to weatherboard or fibro cement material. Roof materials are generally either iron or tiles.

14 Turning to the proposal, the applicant here wishes to demolish the existing dwelling and construct two new double storey dwellings on the site, including subdividing the site into two lots (together with the associated removal of the Ghost Maple tree).

15 Each of the new dwellings would feature three bedrooms, two bathrooms and living areas, deck areas, a colourbond roof, a maximum building height of 6.8 metres, a single car garage and a single carport. The proposed materials would be "lightweight materials to external façade including weatherboards, masonry blockwork and Harditex panelling". The subdivision of the land would create a new northern and a new southern lot, plus new fencing is proposed. There would be two separate cross-overs to Monash Avenue.

16 The subject land is zoned Residential 1 and is also affected by a Vegetation Protection Overlay Schedule 2. The contents of Schedule 2 include the statement that it is important to protect all existing mature trees, both native exotic and to protect all local indigenous species. It is also necessary to encourage and facilitate the planting of vegetation indigenous to a particular locality to maintain and enhance the natural environment.

17 In the usual way, cl. 55 (ResCode) and the general decision making criteria under cl.65 apply here. The cl.56 ResCode provisions also apply to the subdivision aspect of the proposal.

18 With respect to the relevant state planning policies, Council referred me to cls.14.01-2, 16.02, 19.01-2 and 19.03.

19 Turning to the Council Municipal Strategic Statement and local policies, the Council's written submission highlighted the fact that the Council MSS picks up the planning objective of urban consolidation, so as to minimise encroachment of urban areas into the surrounding rural land. Clause 21.05-1 picks up this permit consolidation aspect.

20 Clause 21.05 also emphasises the need for new subdivision to not unduly impact upon the natural environment and the local community, together with the benefits of focusing new development in areas already zoned for residential use. There is also reference to enhancing the appearance of each town, together with acknowledgement that the municipality population is expected to continue aging over the next 15 years, with average household sizes therefore becoming smaller but more numerous. There is also policy reference to the need to provide a range of housing types and lot sizes to suit the diverse housing needs of the community, and to increase residential densities.

21 I was referred to the Phillip Island and San Remo Design Framework 2003, being a document which has been adopted by Council but which does not form part of the planning scheme. I was told that, in relation to Cowes, "... the Framework encourages consolidation within the existing residential boundaries, the maintenance and reinforcement of the traditional coastal town scale that characterises Cowes and that all new development is complied with the design guidelines set out in Section 5 of the document". At paragraph 28 and 29 of the Council written submission there is discussion of the contents of this Section 5 from The Framework. The relevant aspects here include a preferred maximum height of two storeys, a desire to conceal new buildings from views from the beach or the sea together with a preference not to conceal important vistas, together with the requirement that proposals include "... a context plan demonstrating how the building fits within the context of its surrounds and how view lines have been accommodated in all new development proposals".

22 To avoid duplication, I will not repeat the submissions of the parties but more concentrate on what I regard as the key issues. In this regard, I see the key issues to be as follows:

•

The degree of strategic policy support for the proposal.

•

The neighbourhood character aspects of the proposal.

•

Whether the proposal will cause any unacceptable external amenity impacts.

23 I am satisfied that the proposal has a good level of strategic policy support. The zoning of the site is appropriate for a dual occupancy, being Residential 1. Although there is a tree to be removed which requires a permit under the Vegetation Protection Overlay control, Council has consented to this happening. The development here of two dwellings within the established urban area of Cowes is consistent with the local policy objectives of concentrating new urban development within the established township areas, thereby avoiding further urban sprawl into rural areas. This is also consistent with the state policy objective of achieving greater urban consolidation. In addition, the site is within walking distance of both the foreshore and the retail/recreational services offered by the main street in Cowes. The development of two double storey dwellings with relatively small gardens will also contribute to having greater housing diversity in Cowes, given that the predominant form of housing in the locality is single dwellings on a lot.

24 There seem two main issues here, being "height" and whether the contemporary form of the new dwellings will be sufficiently respectful of the existing neighbourhood character.

25 In relation to "height", the objectors expressed concern that the simple fact that the new dwellings are two storey will in itself make them incompatible with the largely single storey aspect of the local streetscape. I do not accept this line of thinking. First, one needs to keep in mind that two storey dwellings are now a relatively common form of housing across Victoria, and it would be an inappropriate "knee jerk reaction" for the Tribunal to refuse the proposal simply because two storey built form is involved.

26 The more relevant issue is whether the two storey built form can acceptably sit within the existing neighbourhood character. In this regard, I am satisfied that the proposal will sit comfortably in its particular locality, for the following reasons. First, from my drive around various streets in Cowes over the January 2007 Australia Day long weekend, I agree with Council that two storey dwellings per se are more and more becoming a feature of Cowes, as part of the on-going development within the town. Second, with the site being a corner side with one side facing on to Church Street, it is reasonable for me to give some weight to the fact that there are already other examples of two storey dwellings nearby (eg further west on the same side of Church Street). Whilst it may well have been the case that new two storey built form would be more closely scrutinised if the site were further along Monash Avenue (which has quite modest existing built form), credit needs to be given for the fact that one boundary of the corner site here faces on to Church Street (which has more of a variety of existing built form).

27 In relation to the other neighbourhood character issue of how the contemporary design of the new dwellings will sit in the locality, the objectors put to me that the appearance of other dwellings in the locality is predominantly low key and more "aged", with the practical result that the very contemporary appearance of the new dwellings will make them unreasonably stand out.

28 My own view here is that the built form across Cowes is clearly in a transitional stage, with quite a few new dwellings springing up with a very modern appearance. Accordingly, I think it is reasonable for the Tribunal to anticipate that the existing built form along Church Street and Monash Avenue will similarly change over time, with a trend towards more contemporary style housing. In these circumstances, I think it would be inappropriate and overly harsh for the Tribunal to reject the proposal, simply because this is one of the first examples of more contemporary design in this particular part of Cowes. Furthermore, I consider the design response here (whilst contemporary) to still be fairly polite and restrained, with sensible articulation and use of materials. This is not one of those projects where it can be said that the designer has "run amuck" in terms of using an outlandish design and/or strange use of materials.

29 We now come to the most relevant of the planning considerations here, being whether the proposal will have any unacceptable external amenity impacts on the two units which sit west of the subject land. The two objectors live in these two units, which are both single storey. This unit development involves a north-south side driveway on the western side of the site. The front unit has private open space in both the front yard and a side-courtyard on the eastern side of the front unit. The only private open space ("POS") of the rear unit (owned by Ms Freeman) is a courtyard on the eastern side of her unit. In addition, the main natural light for Ms Freeman's living area and kitchen are east-facing windows.

30 Another important difference between the front and rear adjoining units is that the front unit already features the existing dwelling on the subject land sitting immediately to the east of its side courtyard. In other words, the amenity of the side courtyard of the front adjoining unit is already compromised by the close proximity of the existing dwelling on the subject land, whereas this is not a problem in relation to the rear courtyard of Ms Freeman.

31 Turning to my assessment of the proposal, I am satisfied that the window and balcony treatment of the upper level of the new dwellings (when combined with the relevant permit conditions) will suitably deal with any privacy issues. What this leaves us is the question of whether the "visual bulk" and "overshadowing" aspects of the upper level of the proposed new dwellings is acceptable, in terms of the interface with the existing units to the west of the subject land.

32 In relation to overshadowing issues, my finding is that the relevant ResCode standard for "minimum sunlight in adjoining private open spaces" is comfortably met in relation to the adjoining front unit, but is only barely met in relation to Ms Freeman's courtyard (ie I consider Ms Freeman's courtyard is only barely over 40 square metres). If I had found that Ms Freeman's courtyard was under 40 square metres in size, then a tougher standard would have applied, in that ResCode states that the preferred position is that there be no additional overshadowing at all of Ms Freeman's courtyard.

33 This brings me to the critical issue, being the acceptability or otherwise of the visual bulk of each of the new double storey dwellings, when viewed from the side courtyard of each of the adjacent courtyards.

Tribunal's visual bulk findings regarding new dwelling 1

34 In relation to the adjacent front unit's side courtyard, my consideration of the situation here has to take into account the fact that the are already substantial "visual bulk" issues involved in the use of this courtyard, given the close proximity of the existing dwelling to the east (ie just off the common boundary). Given that this existing dwelling has a pitched roof and sits uniformly close to the common boundary whereas the replacement dwelling 1 (albeit two storey) will have a relatively flat roof and (from my observations) will be sited a little further back from the common boundary, I consider that (with two provisos) the new dwelling will not involve any real change to the amenity status quo for the use of the adjoining courtyard.

35 The first proviso is that the new dwelling 1 curiously has a garage and store extending to the common boundary, whereas the new dwelling 2 further south has its garage/store offset from the boundary. It is not obvious to me what the justification is for this built form extending to the boundary for the new dwelling 1 but not dwelling 2. I see the better approach as being that the approach taken for the new dwelling 2 (ie an offset garage and store) needs to apply here as well, as a minimum setback from the western boundary.

36 The second proviso is that I consider the proposed walk-in-robe for the upper level of the new dwelling 2 to present an excessive level of visual bulk vis-a-viz the courtyard of the existing unit to the west. Accordingly, I see the better outcome as being that the western half of what is current shown as "WIR" should be deleted, and the balance of this space used instead for a conventional built in wardrobe. This will also make the western upper wall of this new dwelling more articulated when viewed from further west and possibly marginally reduce the morning overshadowing of this courtyard.

37 While I would have been unlikely to have included these provisos if the adjoining property to the west of the subject land was a single conventional residential property with a bigger back yard, I consider the amenity situation here to be more sensitive due to there being two units to the west, each of which has a modest sized courtyard sited next to the common boundary.

Tribunal's findings regarding visual bulk of new dwelling 2

38 Turning now to the visual bulk implications of the proposed new dwelling 2 (which sits further south), I am satisfied with the ground level treatment of the western wall of this new dwelling. None of this ground level will be built to the boundary and there is reasonable articulation of the wall rather than it presenting as one long "slab".

39 With respect to the upper level of the new dwelling 2, the dining/kitchen wall is offset from the common boundary by a bit over two and a half metres, which I consider to ultimately be acceptable. In reaching this finding, I note that Ms Freemans adjoining courtyard already has the privacy benefit of a trellis on top of the fence on the common boundary. It also follows that there is also a significant degree of overshadowing of the morning sun from this fence and trellis (as I observed during my inspection).

40 However, the western wall of the upper bedroom cantilevers further west compared to the ground level western wall, with the result that the upper bedroom western wall is only set back from the common boundary by about one and three quarter metres. I consider this cantilevering effect to be excessive and (in relation to this bedroom) I accept Ms Freeman's submissions that this section of the western upper wall of the new dwelling 2 is likely to be overbearing and unduly visually dominant when viewed from her courtyard.

41 On balance, I see a fairer outcome (which is more respectful of the amenity of Ms Freeman's courtyard) as being that the setback of the western wall of the dwelling 2 upper bedroom from the western boundary is increased to 4 metres. I would expect that this will still leave sufficient room for at least a double bedroom and some form of toilet/shower in this southern end of the upper level of this new dwelling 2.

42 Looking at the upper floor plan of both new dwellings, I consider the modifications which I am making to still be acceptable in terms of the internal amenity offered to the future occupants of these new dwellings.

43 For the reasons set out above, I consider the overall proposal to be fair and reasonable and I affirm Council's support for the proposal, subject to various permit conditions. In particular, I have added some new Condition 1 sub-clauses which I consider achieve a better result, in terms of finding a fair balance between the internal amenity of the new dwellings and the amenity concerns of the existing neighbours to the west (recognising the more sensitive situation because of there being two units with relatively modest courtyards that sit next to the common boundary).

44 In relation to the necessary permit approval for the removal of the tree, from my observations during my inspection and in light of Council's approval for this to occur, I have no problem with this tree being removed.