1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

Twelve sheets - Nos A01 to A012 - all dated 03.05.2023

1. In application P1635/2022 the decision of the responsible authority is varied.
2. In planning permit application 329/2021/P a permit is granted and directed to be issued for the land at 9 Bayview Road, Frankston in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
   • Construction of two double storey dwellings on a lot in the General Residential Zone Schedule 1.
3. No costs are awarded.

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Development Contributions Plan Overlay - Schedule 2 ('DCPO2').

Clause 32.08-6 (Construct two or more dwellings on a lot in GRZ1).

Clauses 02.03-2, 02.03-5, 02.03-6, 11, 15, 16, 32.08, 52.06, 55, 65 and 71.02.

The site is located on the northern side of the street. The site of 650.29 square metres is rectangular in shape with a frontage of 15.24 metres and a depth of 42.67 metres.

The site is currently occupied by a single storey dwelling and small outbuilding in the north west corner. A crossover and driveway are located in the south east corner and the site has a fall of 1.5 metres towards the rear.

An unaccompanied inspection of the locality and the yard of 11 Bayview Road was undertaken after the hearing on 16 November 2023.

1. Frankston City Council ('council') has supported an application to construct two double storey dwellings in a residential area in Frankston. The neighbour who lives in the dwelling on the lot adjoining to the east has appealed that decision for the reasons which I discuss in my assessment.
2. By way of background, I record that the application has had a complex history which I outline and discuss in the section of my reasons dealing with the costs application made by Mr Oechsle.
3. The overall site layout is depicted in the following proposed ground and first floor plans.

1. Dwelling 1 at the front of the site contains a guest bedroom, bathroom/ensuite, living areas, laundry and a double car garage at ground level and four bedrooms and three bathrooms/ensuites at first floor. North facing secluded open space accessed from the living areas has an area of 85 square metres with a further 48 square metres of open space in the front setback.
2. Dwelling 2 at the rear has living areas, laundry and double car garage at ground level and three bedrooms and two ensuites at first floor. Secluded open space on the northern, eastern and southern sides has an area of 91.72 square metres.
3. The garden area at 35.10% exceeds the mandatory minimum of 35% for a lot of 650 square metres or more in area.
4. Two car spaces per dwelling complies with the rates in clause 52.06 and no permit is required to reduce the required number of spaces.
5. The design is contemporary with flat roofs, exposed brick cladding at ground level and light weight cladding to the first floor.
6. For the reasons which follow, I support Council's decision and will grant a permit.

Is an intensification of housing consistent with planning policy?

1. This part of Frankston has been identified as being in an incremental change area in the Frankston Housing Strategy 2013. These areas are established residential areas which provide some opportunities for housing growth and change over time, including some dispersed medium density dwellings, provided developments are well designed and have regard to neighbourhood character.
2. The land is in the GRZ1 which has purposes that seek to encourage a diversity of housing types and housing growth particularly in locations offering good access to services and transport. Purposes also include implementing the Municipal Planning Strategy and the Planning Policy Framework and encouraging development that respects the neighbourhood character of the area. Respecting existing or preferred neighbourhood character also appears in some of the objectives of clause 55 (ResCode) and in planning policy.
3. Clause 15.01-5L is policy for preferred neighbourhood character areas. The subject land and surrounding area are in Frankston Precinct F3. I note that there is overlap in the strategies and policy guidelines for the different Frankston precincts. Strategies specific to Precinct F3 are to:
   • Strengthen the garden setting.
   • Ensure buildings do not dominate the streetscape.
   • Preserve the rhythm of existing dwelling spacing.
4. Policy guidelines for Precinct F3 are to consider as relevant:
   • Providing low maintenance vegetation species as part of development.
   • Providing for building heights that reflect the predominant existing building heights in the street and nearby properties.
   • Recessing two storey elements from front facades.
   • Providing low or open style front fences, other than along heavily trafficked roads.
   • Providing setbacks on at least one side boundary.
5. I consider that constructing two dwellings on a lot of 650.29 square metres represents a modest, or incremental, intensification of housing in an established urban area. There is a consistently expressed intention in planning policy that locations such as this will contribute to urban consolidation by allowing for a limited increase in the number of dwellings on lots already developed with single dwellings.
6. There was no dispute amongst the parties that additional dwellings can be supported from a strategic planning or planning policy perspective. As submitted by Mr Oechsle:

we recognise that our neighbourhood is earmarked for plenty of development in the coming years. We know that dual occupancy development will be a part of that and we appreciate the need for more well designed and affordable housing in our community.

1. I agree with parties that the site can accommodate two dwellings, subject to an acceptable and contextually appropriate design response.

Is the design an acceptable response to the physical site context and policies and decision guidelines designed to guide built form, along with the requirements of clause 55?

1. Whilst acknowledging the support in planning policy for additional housing in this neighbourhood, Mr Oechsle submits that the plans are neither well designed, nor an appropriate response to their context. He is concerned that:
   • Insufficient setbacks and recession, excessive building mass and a lack of meaningful landscaping toward the rear will result in excessive visual bulk presenting to neighbouring houses and backyards.
   • The boxy, unarticulated form, a lack of pitched roofing and limited first floor setbacks and recession will dominate the streetscape, and is contrary to the preferred future character sought for the F3 precinct under Clause 15.01-5L.
2. Except for the front setback, the proposal complies with the numeric standards in clause 55 against which the proposal must be assessed.
3. These include, but are not confined to the following:
   • The maximum building height at 6.15 metres is significantly less than the 11 metres maximum in standard B7 for the GRZ1.
   • Site coverage of 34.98% is well below the maximum 60% in standard B8.
   • Permeability of 65.02% is far greater than the 20% minimum in standard B9.
   • Side and rear setbacks comply with standard B17.
   • The two garage walls on the side boundaries do not meet standard B18 which requires an average height of 3.2 metres. However, the Notice of Decision to Grant a Permit includes a condition requiring a lowering in height of these walls to achieve the standard.
   • Overshadowing complies with standard B21. Whilst there is some additional shadowing to the backyard at No 11 Bayview Road at 3pm, the area still receives five hours of sunlight between 9am and 3pm. The back yard also has an area in excess of 40 square metres which is not shadowed.
   • The overlooking standard B22 is complied with for all windows. Council submits that the ground floor east facing window in Dwelling 2 requires the fitting of a lattice to prevent overlooking. However, the east elevation on sheet A06 shows this window is fitted with obscure glazing.
   • Secluded and total open space far exceeds the requirements of standard B28.
4. As a result of the changes introduced to clause 55 by Amendment VC243 gazetted on 22 September 2023:
   • If a development meets standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32, it is deemed to meet the objective for that standard.
   • Where standard B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 is met the decision guidelines for that standard do not apply to the application.
5. I note that the objectives for standards B6, B7, B8, B17, B18 and B32 include reference to respecting existing or preferred neighbourhood character. It would therefore be an error for me to refuse the application because of non-compliance with the specific standard or the related objective referencing neighbourhood character for those six standards. Nor could I refuse the application in relation to the other seven standards if they are met.
6. Consequently, I do not agree with Mr Oechsle that the proposal should be refused because of what are submitted to be unacceptable setbacks, excessive overshadowing and other built form aspects of the proposal assessed under the standards set out above in paragraph 20.
7. The one standard included in paragraph 20 that is not met is that for the front setback (B6). The proposed front setback of Dwelling 1 at ground level is 5.3 metres which is less than the average setback of 6.99 metres based on the setbacks of two adjoining dwellings.[2] I note that the proposed setback is the same setback as the existing dwelling and that it is the proposed single storey garage for dwelling 1 that extends closer to the street. The remainder of the front wall has increased setbacks towards the dwelling at No 7 Bayview Road. First floor is recessed behind the first floor and also has a staggered setback towards No 7 Bayview Road.
8. In considering whether a reduced setback is acceptable I have to be satisfied that the related objective is met. The objective has two components. One concerns respecting the existing or preferred neighbourhood character and the other making efficient use of the site.
9. In neighbourhood character terms, it is my observation that setbacks in the neighbourhood do vary but that most are greater than the 5.3 metres of the existing dwelling. It is often the case that neighbourhood policy, and guidelines such as those in clause 15.01-5L for Precinct F3, will refer to existing and preferred front setbacks and provide guidance as to what might be acceptable.
10. But that is not the case for Precinct F3 which is silent about front setbacks. In part this could be recognition that front setbacks are not homogenous in the precinct and that variation is not a key element in respecting existing and preferred neighbourhood character. When considered in that context I am of the opinion that the proposed staggered front setbacks are acceptable.
11. I also need to consider the other component of the street setback objective which seeks to ensure that setbacks make efficient use of the site. A reduced setback provides more space for buildings on the remainder of the land. In this proposal, the reduced front setback allows for the provision of more generous areas of secluded open space for both dwellings that far exceed the minimum required in clause 55. This is even more evident for dwelling 1.
12. In simple terms, this is not a development that is squeezing so much built form on the site that multiple variations are being sought to the standards in clause 55.
13. Having regard to my assessment of the site context and relevant provisions, I consider that the front setback does meet the two components of the street setback objective.
14. However, I acknowledge that even if all the requirements in clause 55 relating to standards B6, B7, B8, B17, B18, B19, B20, B21, B22, B27, B28, B30 or B32 are met, an application could still be refused on neighbourhood character grounds. That is because clause 55 contains qualitative standards that require a judgement call as to whether the related objective is met.
15. For example, standard B31 concerning detailed design is a qualitative standard dealing with the design of buildings. The objective encourages design detail that respects existing and preferred neighbourhood character. The decision guidelines state that the responsible authority must consider:
    • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
    • The design response.
    • The effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting.
    • Whether the design is innovative and of a high architectural standard.
16. In relation to the first dot point, I have previously made mention of the policy for Precinct F3. Each of the three objectives include policy guidelines to consider as relevant. Four are relevant and my response to each is as follows:
    1. The low site coverage and relatively large areas of open space provide plenty of scope for the planting of vegetation. The Notice of Decision to Grant a Permit includes a detailed landscaping condition which will allow council to assess the extent to which low maintenance vegetation species are provided as part of the development. It is common for such a condition to be included on permits and it will provide council with the opportunity to review and recommend any proposed landscaping, including any changes to the species to be planted.
    2. The two double storey dwellings are not excessive in height and well below the mandatory 11 metre height limit in GRZ1. The neighbourhood may have originally comprised mostly single storey dwellings, but double storey dwellings are becoming commonplace throughout this precinct. I consider that the notion of constructing two double storey dwellings is consistent with the evolving character of this precinct. My inspection enabled me to verify that there are a growing number of developments comprising two dwellings on a lot. Some contain a mix of single and double storey dwellings, some contain single storey dwellings and others contain two double storey dwellings.
    3. The ground and first floor plans for dwelling 1 show that the first floor is recessed from the front façade. The staggering of setbacks and use of different materials also serves to articulate and add visual interest to dwelling 1 when viewed from the street.
    4. No front fencing is proposed.
    5. Each dwelling is setback from one side boundary. In addition, dwelling 1 has maintained the single dwelling rhythm in the streetscape unlike, for example, a side-by-side dual occupancy.
17. The need to consider the design response, the effect of visual bulk and the desire for innovation and high architectural standard speak to the design philosophy. The design philosophy would include but not be confined to site layout (dwellings one behind the other or side-by-side), location of driveways and crossovers, extent of cut and fill, roof pitch, building materials and colours, and window shapes and placement.
18. In the absence of detailed policies or controls found in various built form overlays, such as Design and Development or Neighbourhood Character overlays, an assessment of the design response and architectural standard is essentially a matter of judgement by an expert Tribunal.
19. Given my earlier discussion about clause 55 and the guidelines for Precinct F3, I am not persuaded that the detailed design is such that it is so visually discordant or unacceptable in this neighbourhood or site context that it should be refused. I am not persuaded by Mr Oechsle that the layout is so unacceptable it should be substantially modified by, for example, flipping the layout so that dwelling 1 is relocated to the western side of the land.

1. Mr Oechsle continues to have concerns about the quality of the plans and the absence of required information. He acknowledges that improvements have been made on the substituted plans but that some information is still missing based on the Frankston City Council Planning Permit Checklist and Multi Dwelling Checklist.
2. I am not sure of the status of those checklists, but they are not statutory documents included in the planning scheme. Instead, clause 32.08-11 sets out the application requirements and it is those that I must consider as relevant. As in all applications, I have to be satisfied that I have sufficient information to make an informed decision.
3. Based on the information available to me, including elevations showing levels to AHD and materials (but not specific colours), I do not agree with Mr Oechsle that the plans still lack 'mandatory/threshold information'.
4. I record that Mr Oechsle also remains concerned about the non-compliant garden area issue dealt with by Senior Member Martin earlier in 2023 and his decision to remit the application to Council. It is not my task to revisit that matter but instead make a decision on the proposal now before me.

1. Planning policy supports a modest increase in the number of dwellings within incremental change areas. A development comprising two dwellings over the one that exists on the site is a modest level of change for a site in the GRZ1.
2. I understand that Mr Oechsle highly values his neighbourhood and current living environment and does not support this particular proposal to construct two new double storey dwellings next door at No 9 Bayview Road.
3. However, when assessed against the GRZ1, relevant policy and those requirements in clause 55 that have not been amended by Amendment VC243, I consider that the proposal to construct two dwellings as shown on the substituted plans is an acceptable outcome in the terms set out in clause 65.
4. Although the development only results in a net increase of one dwelling, the construction of two modern dwellings is a positive addition to the housing stock in this precinct and, on balance, results in a net community benefit in accordance with clause 71.02-3.
5. The decision of the responsible authority is therefore varied, and a permit is to be issued. The decision is varied as I have made some alterations to incorporate the changes included in the draft conditions circulated by council, as well as amending the words in what the permit allows to 'in the General Residential Zone Schedule 1' and referencing the substituted plans dated 3 May 2023 in the preamble to condition 1.
6. I have also included some additional requirements in condition 1 having regard to discussions at the hearing.

1. At the conclusion of the hearing on 23 October 2023, Mr Oechsle made a written request that Frankston City Council pay costs to him. He did not specify the sum sought.
2. 2On 23 October 2023 I issued an order requiring him to prepare a written statement specifying what costs he is seeking, from which party and the reasons for that request. A copy was to be provided to the Tribunal (Senior Member Bennett, Frankston City Council (Oliver Rees) and Low Cost Draftsman (Roy Barovich).
3. My order also required that the party or parties whom the cost application was made against to lodge with the Tribunal and all other parties a written response to the costs application setting out why costs should not be awarded.
4. As required by the Tribunal's order, Mr Oechsle prepared a written statement seeking costs of $3,412.60 from Frankston City Council. It was in two parts - VCAT lodgement fee of $899.10 and a planning consultant fee of $2,513.50.
5. In response, Council has provided a detailed written response to the costs application made by Mr Oechsle and asked that the Tribunal refuse the request to award costs against the Frankston City Council.

1. Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) requires parties to bear their own costs, but sub-section (3) provides that the Tribunal may make an order for costs if it is satisfied that it is fair to do so and having regard to a number of listed matters.
2. These listed matters are:

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

Background as to what has transpired since December 2022

1. In its submission on the costs application, council outlined the various steps which have occurred since the Tribunal's initiating order dated 19 December 2022.
2. These steps included listing a practice day hearing ('PDH') in February 2023 to respond to Mr Oechsle's statement that the permit application did not provide the information required by the Frankston Planning Scheme and that the application did not meet the mandatory minimum garden area requirements.
3. Following the PDH, the Tribunal noted that the garden area was not met and that the applicant needed to prepare amended plans satisfying the 35% requirement. The council was then invited to reconsider the decision based on amended plans, including council potentially requesting further information and readvertising the proposal.
4. Parties were also asked to notify the Tribunal if the compulsory conference listed for the 29 May 2023 and the hearing listed on 15 August 2023 needed to be rescheduled. Both were subsequently vacated and rescheduled.
5. On 28 July 2023 council advised that it had reconsidered the application and had determined to support the application subject to revised conditions.
6. A rescheduled compulsory conference was conducted on 4 August 2023, but no settlement was reached.

What are the reasons for and against costs being awarded?

1. I do not intend to repeat in full the written submission made by Mr Oechsle but in essence he claims that:
   1. Because the permit application lacked mandatory threshold information and contained major material inaccuracies, he was prevented from an informed assessment of the proposal and its impact on his property.
   2. He had no choice to lodge a VCAT application to rectify many issues including the fact that the garden area did not meet the mandatory minimum area.
   3. A planning consultant (ASK Planning) was engaged to provide advice up to the point when the adjusted plans were remitted to council.
   4. The issue of the garden area needed to be addressed at a PDH. ASK Planning was involved in the PDH but was also involved in liaising with the respondent (permit applicant) in an effort to rectify deficiencies with the plans.
   5. None of the expenses would have been necessary if the plans met mandatory standards from the beginning. As applicants for review they have paid a consultant to rectify what should have been a potentially prohibited application to begin with.

1. A detailed written response was received from council. I do not intend to repeat in full the submission, but the key points are as follows:
   1. Mr Oechsle has not specified which sub-section of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) he relies on to seek costs.
   2. In relation to the various sub-sections of s109 of the Victorian Civil and Administrative Act 1997 (Vic) (Act), council:
      • - did not conduct the proceeding in a way that unnecessarily disadvantaged another party to the proceeding - s109(3)(a)(i) to (iv).
      • - was not responsible for prolonging unreasonably the time take to complete the proceeding - s103(3)(b).
      • - its position is not said to have no tenable basis in law of fact or based on having regard to the relative strengths of its position - 109(3)(c).
      • - the proceeding by nature or complexity are in no way unusual -s109(3)(d).
      • - the only head of power under which the Tribunal might award costs is any other matter the Tribunal considers relevant - s109(3)(e).
2. Council denies there is a proper basis to award costs against it because of its decision to grant a permit where the mandatory garden area requirement was not satisfied. Council submits that when the application was assessed, it was reasonably entitled to rely on the measurements contained in the plans accompanying the permit application. Furthermore, the officer assessing the proposal was honestly unaware of the inaccurate area calculation. No one, including Mr Oechsle identified this discrepancy.
3. Condition 1(f) requiring landscape areas to be removed from the garden area plan was to delete the garden areas erroneously shown on the proposed ground and first floor plans. It was not included to achieve minimum garden area compliance. Council agrees that compliance with the garden area requirements cannot be achieved by permit condition. To suggest otherwise is misconceived.
4. Council independently calculated the garden areas shown on the architectural plans using its internal software, having regard to the site area shown on the Plan of Survey accompanying the permit application. Council submits it would be an unreasonable administrative burden if council was to independently calculate garden areas based on a professionally prepared survey plan accompanying a permit application.
5. Council accepts that it is regrettable that some of the architectural plans refer to a different site area, but that the council officer assessing the application honestly did not notice this discrepancy.
6. This discrepancy was not identified by Mr Oechsle until the application for review was lodged on 6 December 2022, after council had issued the Notice of Decision to Grant a Permit. The inaccuracy was not brought to council's attention during the processing of the application. Consequently, it cannot be said that council then intentionally overlooked or disregarded the error. As such council did not act in a deliberate, reckless or otherwise cavalier fashion.
7. At all times when processing the application, the council followed the statutory processes in the Planning and Environment Act 1987 (Vic). Once council was aware of the error it promptly advised the Tribunal and parties including proposing a remedy to the problem.
8. Council referred to three Tribunal decisions where costs were awarded against a council. It is submitted they involved different circumstances to this case.[3]
9. The applicant engaged ASK Planning to review the proposal and lodge the application for review. It was not only based on alleged inaccuracies or insufficient information. It also included two planning merit issues dealing with visual bulk and neighbourhood character (which I have quoted earlier in paragraph 17 of my reasons).
10. Council submits that ASK Planning was engaged to review the merits of the proposal and that those costs would have been incurred irrespective of the minimum garden area discrepancy. As such the costs of engaging ASK Planning was not occasioned by Council's conduct.
11. Cost associated with the PDH did not result from council's conduct and was one which the permit applicant's surveyor was responsible.
12. Council rejects the suggestion that mandatory/threshold information was missing having regard to council's planning permit checklist and multi dwelling checklists. Neither form part of the Planning Scheme. Instead, the applicable application requirements are set out in clause 32.08-11 of the GRZ. These requirements may be waived or reduced if in the opinion of the council they are not relevant to the evaluation of the application.
13. The council officer assessing the application considered the concerns raised about the elevations but decided the architectural plans contained sufficient information to assess and determine the application.
14. It is noted that permit conditions sought to deal with any unreasonable off-site amenity impacts and there is no requirement in the GRZ at clause 32.08-11 for a schedule of materials to accompany a permit application.
15. Council also notes that Mr Oechsle concedes that the amended plans were of 'an acceptable standard'.

1. Although Mr Oechsle did not specify under which sub-section of s109 he sought costs, I agree with council that the only basis to award costs is s109(3)(e) - any other matter the Tribunal considers relevant.
2. In the original objection lodged with council by Mr Oechsle and Ms Szafranski the following eight items were listed:
   1. Loss of enjoyment of our property and quality of life. Unit 2 will entirely block our ocean views and remove a huge portion of the visible sky from our rear decking area - a private outdoor space in which we spend much of summer with young children.
   2. Most similar developments in the immediate neighbourhood only have single story rear dwellings. We assume this is to give some common-sense consideration for the privacy and atmosphere of neighbouring yards. A courtesy which we feel has been overlooked in our situation. The proposal itself highlights existing developments at No.4, No.10 and No. 17 Bayview road - all of which have single storey rear dwellings!
   3. Very few, if any dwellings in the area have high walls on boundaries that impose on a neighbouring house so directly. This is out of character with the 'suburban' feel of the neighbourhood. It should be noted that the application is missing the required streetscape elevations, which would make this context obvious. The variations requested for the eastern side setback of Unit 2 also highlight how much the proposal is pushing the limits of the site in proximity to our property. It is also puzzling why the plan doesn't place the driveway on the eastern side given our house is so close to this boundary.

At nearly all times of the day the current proposal will heavily shadow our home office and kitchen areas in particular. We would also like reassurance that the shadow diagrams supplied have been properly considered, as the 9am diagram doesn't seem to be accurate.

1. The detailed design of the structures (Clause 55.06-1) by 'Low Cost Draftsmen' is far from 'sophisticated and stylish'. The materials, colours and forms (bulky, black and grey, complete with screened windows) are out of character with the neighbourhood. No nearby buildings have such flat, 'apartment style' roofs. Again, the missing streetscape elevation would make this obvious. There is also no evidence of appropriate landscaping beyond 'grass patches' in the driveway.
2. The elevation orientations are mislabelled and do not adequately address the natural slope of the surrounds and the relative building heights (Clause 55.03-2). Being on the crest of a hill, and surrounded by low dwellings and trees will further enhance how much the units stand out and loom over our property and neighbours. There has been no consideration for the graduation of the streetscape.
3. The proposal and elevations supplied do not address the slope of the site itself and ground levels of each unit. This will have a big impact on the effective height of each building relative to our property, the level of privacy to / from our windows and decking area, and the effect of shadowing on our property.
4. The application lists $650 under "Estimated cost of development for which the permit is required". Given that this is obviously a mistake, we would also like reassurance that the project is legitimate, can be adequately funded and completed, and that construction will not drag on for an extended period. No.55A/B on Bayview Rd has become an eyesore on the street as a similar development that has never been finished. Given the current climate and soaring building/supply chain costs we feel that this is a legitimate concern.
5. We also have concerns about increased traffic on Bayview road due to overdevelopment, given that the street is currently already used as a thoroughfare to Foot St.

1. Council subsequently determined to Issue a Notice of Decision to Grant a Permit. ASK Planning was engaged to lodge the application for review on behalf of Mr Oechsle. Five reasons were given for the appeal:
   1. The plans lacking mandatory/threshold information.
   2. The garden area plan is incorrect.
   3. The boxy unarticulated built form, lack of pitched roofs, limited first floor recession and being contrary to preferred future character.
   4. Insufficient setbacks and recession, excessive building mass and lack of meaningful landscaping resulting in excessive visual bulk to neighbouring backyards.
   5. No natural ground levels are shown on the plans making it difficult to determine if any opportunities exist for overlooking. Lack of detail on first floor plans creates the same difficulty.
2. I have already explained earlier in my reasons at paragraphs 36-39 that I do not agree that the plans lack mandatory/ threshold information given the Frankston City Council's Planning Permit Checklist and Multi Dwelling Checklist are not statutory documents included in the planning scheme. Instead, it is clause 32.08-11 that sets out the application requirements.
3. As to the other reasons listed in the application for review, all but the incorrect garden area requirement are matters that go to the planning merits of the proposal. There is nothing controversial or unusual about them and they are legitimate reasons for an objector seeking to review a decision by the council.
4. I acknowledge that the incorrect garden area requirement ultimately resulted in the application being remitted and amended plans prepared. However, despite that error being corrected on the amended plans, Mr Oechsle still opposes the proposal for planning merits reasons including those related to built form, setbacks, overshadowing and the like.
5. It indicates to me that the initial decision to lodge the application for review was necessary irrespective of the garden area shortcoming, as these planning merits issues were still to be determined by the Tribunal following the hearing on 25 October 2023.
6. I therefore do not intend to award costs in relation to the VCAT lodgement fee of $899.10.
7. The costs associated with Mr Oechsle engaging ASK Planning to act on his behalf involve both the planning merits based reasons and those associated with the incorrect garden area calculation.
8. I have already made comment and disagreed about the suggested lack of mandatory/ threshold information.
9. The planning merits reasons included in the application for review by ASK Planning are relevant considerations for the Tribunal. These are reasons commonly listed by consultants lodging an application for review on behalf of a client, and are not so unusual that they would justify awarding costs.
10. Which brings me to the question of the incorrect garden area requirement. The error was on the original plans and no one, including the applicant, council or Mr Oechsle detected the error until ASK Planning were engaged by Mr Oechsle to lodge the application for review.
11. The PDH convened on 24 February 2023 before Senior Member Martin was at the request of ASK Planning. I understand that it was at the suggestion of ASK Planning that the matter was remitted back to council so that the garden area requirement could be corrected and amended plans prepared.
12. Whilst the involvement of ASK Planning in sorting out the garden area and other issues with the plans, and attending the PDH, were a cost incurred by Mr Oechsle, those actions were primarily aimed at trying to resolve in the most efficient manner the fundamental dispute about the planning merits of the proposal.
13. The process put in place by Senior Member Martin at the PDH sought to do that by providing an opportunity for the garden area requirement to be corrected. Once that had been done, and amended plans prepared, it allowed parties to concentrate on the fundamental planning merits issues in dispute.
14. In that sense, the involvement of ASK Planning was not wasted or unnecessary as it enabled Mr Oechsle to pursue the fundamental planning merits objections without concern about the garden area requirement. It may also have allowed the matter to be resolved prior to the compulsory conference on 4 August 2023 or the hearing on 25 October 2023.
15. Whilst I acknowledge that the involvement of ASK Planning in resolving the garden area requirement was part of the fee charged by ASK Planning, their involvement also went to the fundamental planning merits in dispute.
16. Given all the above, I am not persuaded that costs should be awarded in this application.

• Construction of two double storey dwellings on a lot in the General Residential Zone Schedule 1.

1. Before the development starts, 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. The plans must be generally in accordance with the plans submitted with the application Planning drawing AO1-A012 prepared by Low Cost Draftsman and dated 3 May 2023, but modified to show:

(a) The finished floor level to AHD to be shown on the ground and first floors of each dwelling.

(b) The internal dimension of the garage for Dwelling 1 to be 6 metres.

(c) All windows shown on plans to be shown correctly on elevations (example west facing ground level window of Dwelling 2).

(d) The streetscape elevation to be amended to properly reflect the lower height of dwelling 2 behind and to the side of Dwelling 1.

(e) All trees growing on the site and on the adjoining properties within 3m of the boundaries must be clearly illustrated on all relevant plans to demonstrate canopy width, trunk location and clearly labelled in accordance with the Tree Assessment Report prepared by Nick Collet dated 29th June 2021 and clearly state whether the tree is to be retained or removed to the satisfaction of the Responsible Authority.

(f) The Tree Protection Zone (TPZ), Structural Root Zone (SRZ) and the tree protection fence locations for all trees to be retained must be illustrated on all relevant plans to the satisfaction of the Responsible Authority.

(g) Tree protection conditions noted in accordance with Conditions 6-8.

(h) The access way to Dwelling 2 must be constructed above the existing soil grade and with permeable materials where it is located within the tree protection zone of any trees to be retained.

(i) Pedestrian visibility splays clearly notated on the plans in accordance with Design Standard 1 of Clause 52.06-9 of the Frankston Planning Scheme to the west side of the access way to Dwelling 1 and the east side of the access way to Dwelling 2.

(j) The proposed materials and colour schedule (including samples) to be provided and annotated on the elevation plan.

(k) Location of habitable and non-habitable room windows on adjoining properties to be shown on all relevant plans.

(l) Freestanding trellis to a height of 1.7 metres above the finished floor level of the dwellings must be erected on eastern boundary to avoid overlooking from the ground level of Dwelling 2 into adjoining habitable room windows and secluded private open space areas and framed and maintained to the satisfaction of the Responsible Authority.

(m) Site plan to show crossover location and width for Dwelling 2, nature strip and road.

(n) Water tanks for both dwellings.

(o) External storage to Dwelling 2 deleted.

(p) Garage length of Dwelling 1 to be consistent with measurements on plans.

(q) Mailbox to Dwelling 2 to be relocated to west side of access way.

(r) Access way width to Dwelling 1 to be consistent with measurements on plans.

(s) A garden bed within a minimum width of 500mm to be provided between the western boundary of the secluded private open space to Dwelling 2 and the access way.

(t) The garage walls where located on the site boundaries for both dwellings modified to comply with Standard B18 of Clause 55.04-2 of the Frankston Planning Scheme. The walls are to have an average height of no greater than 3.2 metres.

(u) Bollard lighting in accordance with Condition 19.

(v) Landscape Plan in accordance with Condition 3.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

1. Before the commencement of buildings and works, a landscape plan in accordance with the submitted development plan, prepared by a suitably qualified landscape professional must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions. The plan must show:

(a) A survey (including botanical names) of all existing vegetation on the site and those located within three (3) metres of the boundary of the site on adjoining properties, accurately illustrated to represent canopy width and labelled with botanical name, height and whether the tree is proposed to be retained and/or removed.

(b) The tree number, TPZ, SRZ and notations regarding protection methods during construction of retained trees.

(c) Buildings on neighbouring properties within three metres of the boundary.

(d) The delineation and details of surface finishes of all garden beds, grassed areas, pathways, driveways, retaining walls and other landscape works including areas of cut and fill throughout the development site.

(e) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, size at maturity and quantities of each plant.

(f) A range of plant types from ground covers to large shrubs and trees.

(g) Landscaping and planting within all open areas of the site.

(h) Adequate planting densities (e.g.: plants with a mature width of 1 metre, planted at 1 metre intervals).

(i) The provision of screen planting (minimum mature height of 1.5m) within a landscape strip at the interface of the property boundary and driveway.

(j) Planting within corner splay/areas to have a maximum height of 900mm.

(k) A planting theme of a minimum 50% indigenous and 50% native within each plant group.

(l) All existing environmental weed species are to be removed from the site and environmental and noxious weeds found in the 'Frankston Invasive species guide (2019) are not to be planted.

(m) The provision of suitable canopy trees (minimum two metres tall when planted) in the areas specified below (trees are not to be sited over easements) with species chosen to be approved by the Responsible Authority:

1. Two (2) canopy trees within the front setback of Dwelling 1 with a minimum mature height of 8m.
2. Two (2) canopy trees within the private open space of both dwellings with a minimum mature height 6m.

(n) The provision of notes on the landscape plan regarding site preparation, including in-ground irrigation system to be provided to all landscaped areas, removal of all weeds, proposed mulch, soil types and thickness, subsoil preparation and any specific maintenance requirements.

(o) All tree stock used must be in accordance with AS2303-2015 Tree stock for Landscape Use.

1. The landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or commencement of the use or at such later date as is approved by the Responsible Authority in writing.
2. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged trees are to be replaced.

1. Tree protection must be carried out in accordance with the Australian Standard AS 4970-2009 Protection of trees on development sites to the satisfaction of the Responsible Authority.
2. Prior to the commencement of the development (including vegetation removal), a Tree Protection Fence defined by a 1.8 metre high (minimum) temporary fence constructed using steel or timber posts fixed in the ground or to a concrete pad, with the fence's panels to be constructed of cyclone mesh wire or similar strong metal mesh or netting with a high visibility plastic hazard tape, must be installed at the TPZ of trees to be retained on site (and the nature strip) to the satisfaction of the Responsible Authority. A fixed sign is to be provided on all visible sides of the Tree Preservation Fencing, stating "Tree Preservation Zone - No entry without permission from Frankston City Council".

The requirements below must be observed within this area -

(a) Coarse mulch laid to a depth of 50-100 mm (excluding street trees).

(b) No vehicular or pedestrian access.

(c) The existing soil level must not be altered either by fill or excavation.

(d) The soil must not be compacted or the soil's drainage changed.

(e) No fuels, oils, chemicals, poisons, rubbish or other materials harmful to trees are to be disposed of or stored.

(f) No storage of equipment, machinery or material is to occur.

(g) Open trenching to lay underground services e.g.: drainage, water, gas, etc. must not be used unless approved by the Responsible authority to tunnel beneath.

(h) Nothing whatsoever, including temporary services wires, nails, screws or any other fixing device, is to be attached to any tree.

(i) Tree roots must not be severed or injured.

(j) Machinery must not be used to remove any existing concrete, bricks or other materials.

The tree protection fence must remain in place for the duration of building and works to the satisfaction of the Responsible Authority

1. All tree pruning is to be carried out by a qualified and experienced Arborist who has thorough knowledge of tree physiology and pruning methods. Pruning must be carried out in accordance with Australian Standard AS4373-2007 Pruning of Amenity Trees. Any pruning works required are to be undertaken prior to any construction works beginning on site. Any pruning of trees located on a neighbouring property should be undertaken in consultation with the property owner.

1. Provision of a Stormwater Detention System with a volume capable of retarding the 10 year ARI flow from the development site back to a 5 year ARI pre-development value to the satisfaction of the Responsible Authority.
2. Prior to commencement of development construction detailed design plans and drainage computations of the internal stormwater drainage system including the method of connection to the existing Council drainage infrastructure must be submitted and approved to the satisfaction of the Responsible Authority.
3. Water Sensitive Urban Design principles (WSUD) are to be incorporated into the drainage design, which may include but not be limited to the following components or a combination thereof:

(a) On-site stormwater detention and rainwater tanks.

(b) Soil percolation.

(c) Stormwater harvesting and Re-use of stormwater for garden watering, toilet flushing, etc.

(d) On-site 'bio-treatment' to reduce dissolved contaminants and suspended solids.

1. The stormwater management system be designed to meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999) in compliance with Standard B9-Permeability and stormwater management objectives.
2. Vehicle crossing must be constructed to Frankston City Council's standards and specifications to the satisfaction of the Responsible Authority.
3. Prior to occupation of the dwellings hereby permitted by this permit starts, areas set aside for parking vehicles, loading bays, access lanes and paths as shown on the endorsed plans must be:

(a) Constructed to the satisfaction of the Responsible Authority;

(b) Properly formed to such levels that they can be used in accordance with the plans;

(c) Surfaced with an all-weather sealcoat; and

(d) Drained and maintained to the satisfaction of the Responsible Authority.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. Where the development involves work on or access to Council controlled land including roads, reserves and right of way, the owner, operator and their agents under this permit must at all times take adequate precautions to maintain works to the highest public safety standards, to the satisfaction of the Responsible Authority.

Precautions must include, appropriate signage to AS 1743 Road Works Signing Code of Practice, the provision of adequate barricading of works, including trenches of Service Authorities and any other road openings, sufficient to ensure public safety.

All relevant permits must be obtained from Council for works within the existing road reserves, in addition to the planning permit.

1. All works on or facing the boundaries of adjoining properties must be finished and surface cleaned to a standard that is well presented to neighbouring properties in a manner to the satisfaction of the Responsible Authority.
2. Mailboxes shall be provided to the proposed dwelling/s to the satisfaction of the Responsible Authority and Australia Post.
3. All plumbing work, sewer pipes etc. (except for spouting and stormwater pipes) associated with the new dwelling shall be concealed from general view.
4. Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

(a) The development has not started within two (2) years of the date of this permit; or

(b) The development is not completed within four (4) years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] The submissions, any supporting exhibits given at the hearing, and the statements of grounds filed, have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Council's submission a paragraph 72 states the average setback as 8.2 metres but this does not reflect the setbacks of the adjoining dwellings shown on the design response plan (A02).

[3] Springer v Glenelg SC [2009] VCAT 1114; Moorabool Wind Farm Pty Ltd v Moorabool SC [2012] VCAT 1393; Crothers v Moira SC [2019] VCAT 1375.