Medium Neutral Citation [2002] VCAT 808

The decision of the Responsible Authority in relation to Planning Permit Application No. 2001/6341 is affirmed.

For the applicant for review: Mr Nick Hooper, Consultant Town Planner with Taylors Land Surveyors, Town Planners and Property Consultants.

For the responsible authority: Ms Jennifer Bowdern, Legal Support Planner for the City of Bayside.

For the respondent objectors: Ms Madeline Meehan appeared in person.

Mr John McCaffrey, Consultant Town Planner, represented the respondent objectors A. & B. North, R. & G. McClymont, and R. & D. Dun.

Ms Ingrid Ashford, a member of the Beaumaris Conservation Society represented that Society.

Not withstanding their representation by Mr McCaffrey, Mr Andrew North, Mr Ross McClymont and Mr Robert Dun also made individual submissions. Mr Dun also presented a submission on behalf of a number of nearby residents and Mr Ross McClymont tabled a submission from Mr Penn Moschetti.

1. This was an application under Section 77 of the Planning and Environment Act 1987 ("the Act") to review a decision by Bayside City Council to refuse to grant a permit (in Permit Application No. 2001/634) to construct two, three storey dwellings (including a basement), on the land at 16 Coronet Grove, Beaumaris.

2. The dwellings, which would comprise three bedrooms plus a study and separate family room, (with areas of approximately 220 sq m), would replace an existing, also flat roofed, two storey dwelling. The existing dwelling is of the post-war "Modern" or international style and was apparently designed by the architectural firm Griffiths and Simpson. The existing dwelling presents a curved façade to the street and has living rooms at first floor level opening onto a balcony which is wider at its southern end adjacent to the kitchen and dining area.

3. The proposed dwellings, which would also have living rooms at first floor level and which in many respects are a mirror image of each other, would be constructed with light coloured rendered walls and aluminium frame windows. A small section of the northern side elevation would be clad at the ground level in timber boarding although this is unlikely to be very prominent from the street. The proposed dwellings would have a wall height 1.19m higher than the wall height of the existing dwelling. A roof level deck would sit above this, set in from all sides, with the greatest setbacks (4.2m to 5m) being from the side and rear respectively. A lesser setback of between 2 and 4m would be provided from the front façade. This deck would facilitate views of Port Phillip Bay to the south and east. The decks would be accessed from the living rooms below, via two skillion roofed stairways which, with the skillions placed abutting each other, would give the visual impression of a butterfly or "V" shape structure atop this otherwise flat roofed building. The dwellings would be constructed over a basement car park with generous provision for at least two cars per dwelling and with a common access ramp.

4. The focus of this application for review was on whether the proposed development, being located at a prominent ridgeline position within Coronet Grove, would appear out of scale and character with the neighbourhood and whether, due to the location of balconies to the front and rear of the development, there would be an unreasonable loss of privacy for the neighbours - most notably to the north (the North's residence) and to the east (the McClymont's residence). Also at issue was the question of whether sufficient space was available on the site for the planting of native vegetation consistent with the general landscape character of the area and as a foil to the scale and height of these two attached dwellings.

5. The application for permit was lodged with the Responsible Authority in February 2001. Following the giving of notice of the application 14 objections were received. The grounds for objection were summarised in the officer's report to Council as being overlooking and overshadowing of adjacent properties, inappropriate density, over development of the site, negative impact on neighbourhood character and increased traffic.

6. At its meeting on 17 September 2001 the Responsible Authority's delegate considered the application and, not withstanding its Planning Officer's recommendation, determined to refuse to grant a permit on the following grounds:

"1. The proposed development will detract from the existing streetscape and neighbourhood character.

2. The proposed development will result in unreasonable visual bulk to the street and adjoining properties.

3. The proposed development will result in unreasonable overlooking to adjoining properties.

4. The proposal constitutes an overdevelopment of the site.

5. The proposal is not consistent with the spirit and intent of the Good Design Guide ."

7. The stated grounds for review are essentially a rebuttal of the grounds for refusal.

8. Except for Mr McClymont, whose individual submission was made orally, those parties or their representatives that attended the hearing tabled and spoke to written submissions. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file. An exception is the model produced by Mr North, which can be retrieved after 30 days from the date of this order.

9. Following the hearing I inspected the subject land as well as the North's and the McClymont's properties and the surrounding neighbourhood in general.

10. Also following the hearing and at my direction, the permit applicant, through Mr Hooper, filed with the Tribunal, with copies served on the other parties, a landscape plan for the development as well as the plans showing the surveyed levels of the existing building, Mr North's garage, the building next door at No. 18 Coronet Grove and the height of the proposed building.

11. The only response received in relation to these plans was from Mr McCaffrey on behalf of the persons represented by him. Among other things Mr McCaffrey expressed concern about the clarity and ability to interpret the landscape plan. He also submitted that:

"Other than six eucalypts to supplement three similar existing plants there are no native plantings proposed which will attain a height of greater than 1.2m. The current screening effect of the established eucalypts is non-existent. The extent of native planting is limited to low level specimens and ground cover. ... the landscape plan offers little if any provision of screening of the proposed development from the streetscape or from adjoining neighbours. ... it should be noted that the already established Silver Birches provide no effective screening. The issue of overlooking is only avoided now because of the orientation of the existing dwelling."

12. The six eucalypts referred to by Mr McCaffrey are six specimens of Eucalyptus Caesia or Gungurru which have a height at maturity of between 5 and 6m and which, although an attractive plant are, I note, of a fairly open structure.

13. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), Mr Hooper requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

14. Notice of the revised plans had been given to all parties including original objectors to the permit application. The plans had been forwarded under cover of a letter dated 10 December 2001 detailing the changes and outlining the permit applicant's intention to seek approval for their substitution. The principal change was to move the ramp to the basement car park from the southern part of the site to a more central location, leaving the deeper, more southerly part of the frontage available for landscaping and reducing the length of the driveway.

15. Whilst there was some concern at the timing of the circulation of these plans and the fact that they resulted in an overall increase in height to the apex of the skillion roofed stairways, I was not persuaded that the parties would be unduly disadvantaged by their substitution. It was apparent that the parties had been able to make reference to the changes when preparing their submissions. Accordingly I determined to amend the application for permit in the manner requested.

16. The subject land is located on the east side of Coronet Grove, approximately mid-way along its somewhat serpentine length, between Beach Road to the south and Stawell Street to the north. The site is irregular in shape, having a kink in its front boundary with the southern part sitting further forward or westward than the more northerly part. The site has an area of approximately 612 sq m and is mostly flat although there is a slight fall from the rear to the frontage. The site has limited vegetation cover, the frontage being mostly obscured by a high paling fence set atop a bluestone retaining wall. To the rear there are some not particularly robust Silver Birch trees and on the southern side boundary, approximately half-way down the site, there is a relatively tall Eucalypt. My inspection confirmed however, that this latter tree is in a fairly poor condition.

17. I find the following description of the surrounding area taken from page 1 of Mr Hooper's written submission to be a useful one. The words in square brackets are my own and have been included for reasons of clarity:

"The surrounding area is the typical eclectic mix of dwellings that are found in Beaumaris. The majority of the dwellings in the immediate area are double storey and have mixed architectural features. Front setbacks vary, mainly due to the unusual street alignment and lot configuration. Coronet Grove is not a typical street with similarly sized lots with similar frontages. Some lots are as wide as they are deep, which creates different built form responses to the standard lot pattern of rows of 16 metre wide blocks in a straight street.

The lot to the north [owned by the Norths] is an unusual inclusion in the street. It is not only single storey in a street of mainly double storey dwellings, but it has been set down in an excavated lot. It therefore interrupts the rhythm of the streetscape in creating a `fortress-like' design behind high fencing and a garage door. It also has a swimming pool in the front setback. Its immediate abuttal is one of a garage wall on the boundary and a small service courtyard adjacent to what appears to be the laundry. The immediate interface is one of minimal impact. Living rooms and bedrooms are well separated from the common boundary.

The eastern boundary [abuts] two sites. The northern of the two (largely adjacent to proposed Unit 2), [accommodates the rear single storey unit of a two unit development. This dwelling is] set back about 2 metres from the common boundary. The space in between is best described as a service courtyard, and it is presently screened from existing windows and balconies in the subject site by vegetation and screening devices on the unit itself.

The site to the south east of the subject site, adjacent to proposed Unit 1 contains a single storey dwelling [owned by the Mc Clymonts] with a large north facing courtyard adjacent to the common boundary. There is vegetation on their side of the common boundary, and a living room and possibly bedrooms face the subject site, yet quite some distance away from the common boundary.

To the south is a double storey dwelling which presently overlooks the subject land. Whilst it has a large front setback, it will always be `in front' of the proposed dwelling by a substantial distance by virtue of the change in direction in the road.

The site is in close proximity to the beach and views are available to the bay and beyond from the existing roof (there is no formal deck at present, but is easily accessed via the carport roof)."

18. I also find this description to be generally consistent with the urban character summary statement for Character Area H of the Bayside Urban Character Report - December 1999, within which the subject land is located:

"A mixture of 1960's/1970's and contemporary brick housing on medium to large allotments and with a relatively high degree of recent architectural change, particularly in coastal locations. Gardens and street planting are important elements in establishing building settings and the overall landscape character of the setting. Landform and proximity to the coast are major variables in this area and often dramatically affect subdivision and development patterns.

The most valued attributes of the area relate to the low scale, detached building style, well-developed garden settings and the visual link between the garden and the street.

There is a significant amount of remnant coastal vegetation within private gardens, a more `informal' delineation of garden/lot boundaries and a better developed system of street tree planting and park development in the area.

The area does not have a highly valued architectural style, but the consistent building scale, lot size and level of garden development does present a recognisable and desirable image."

19. The Bayside Urban Character Report is intended to become a reference document to the Bayside Planning Scheme pursuant to proposed Amendment C2. This amendment was adopted by the Council on 7 December 2001 and is still awaiting Ministerial approval. The amendment, as adopted, also includes a local planning policy at Clause 22.06 referring to urban character. This policy adopts the same existing character description for Area H.

20. The subject land is zoned Residential 1 under the Bayside Planning Scheme. Within this zone no permit is required to use land for the purpose of a dwelling. However, pursuant to Clause 32.01-4, a permit is required in this zone to construct two or more dwellings on a lot.

21. Because the permit application was lodged prior to 24 August 2001, when the "ResCode" provisions were included in the Planning Scheme, the application is affected by Clause 52.04 which sets out transitional arrangements for residential development. This clause provides for permit applications made to the Responsible Authority before 24 August 2001 to be determined pursuant to the requirements of the Scheme as in force immediately before that date. This being the case, in addition to the matters for consideration set out at Clause 65 of the Scheme, pursuant to Clause 32.01-4 of the Scheme, the Responsible Authority must consider the Good Design Guide for Medium Density Housing (the Guide). At page 1:3 of 3 the Guide sets out the following approach to assessment:

"Following the initial site analysis, all 11 design elements should be considered when preparing and assessing the development proposal. Wherever possible, a development should satisfy the objectives and criteria of all the elements. Invariably, different weighting will be given to each of the elements for any particular proposal due to the circumstances of the site. Because of this, a responsible authority must exercise its judgment as to whether a development proposal satisfies both the spirit and intent of the Guide and enough of the design element objectives and criteria to be acceptable."

22. The land is also affected by Schedule 1 - Coastal Environs, of the Design and Development Overlay, the controls for which are set out at Clause 43.02 of the Scheme. Under these controls a permit is required to construct a building or to construct or carry out works unless the schedule to the overlay states that a permit is not required. Of relevance to this application, Clause 2 of Schedule 1 provides that a permit is not required to construct a building which, among other things, has an internal storey height (measured from floor to ceiling) of 3.5m or less. A permit is also not required, for buildings which do not exceed two storeys or 6m in overall height.

23. A storey is defined at Clause 72 of the Scheme as:

"That part of a building between floor levels. If there is no floor above, it is the part between the floor level and the ceiling. It may include an attic, basement, built over car park area and mezzanine."

Accordingly, in view of this definition, the proposed development can be described as being of three stories as it comprises two levels of living space over a basement level car-park.

24. For completeness I should record the fact that the car park level constitutes a `_basemen_t' as also defined in the Scheme as no part of it exceeds a height greater than 1.2m above natural ground level.

25. Schedule 1 to the Design and Development Overlay goes on to state that a permit cannot be granted to construct a building or to construct or carry out works which are not in accordance with the following requirements:

"* A building must not be greater than two storeys in height (excluding any attic or basement).

* A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch, roof form and materials."

Accordingly, although a permit is required, because the buildings comprise three stories, a permit may be granted as one of those stories is a basement.

26. It was asserted by Mr McCaffrey, however that the deck with its stair access structure might constitute another, or fourth storey. That is, a storey other than an attic or basement, and thus be prohibited under the Scheme. The parties gave their consent to my deciding this question in the event that it constituted a question of law. My finding in relation to this question is that the stair bulkhead does not constitute a "storey" in its own right. Rather it forms part of and shares the floor with the first floor below giving the first floor, in the area of the stairway, a higher than 3.5m ceiling height and thus involving the need for a permit, quite apart from the need based on the fact that the development is of 3 storeys. For completeness I also find that the stair bulkhead does not constitute an attic or mezzanine as it cannot be said to have a "floor" in the commonly understood sense. Rather it is a conduit between levels, namely, between the first floor below and the deck above. As the deck has no "ceiling", other than the sky, it too cannot be regarded as a storey in its own right. A permit is therefore required for the development as a whole as part of the first floor has a ceiling height in excess of 3.5m and because the development comprises three storeys. However, because the lowest storey is a basement the proposed development is not prohibited under Clause 2 of Schedule 1 to the Overlay and it is therefore open for a permit application to be made.

27. Clause 3 of Schedule 1 to the Overlay sets out decision guidelines in respect of developments that require a permit under Clause 2. The guidelines to be considered are:

"* The provision of building set backs and landscaping.

* The impact of the development on the coastal environment.

* The Bayside Coastal Strategy and the Victorian Coastal Strategy."

28. The design objectives for Schedule 1 of the Overlay refer primarily to the foreshore environment and views towards the coast from Port Phillip Bay. It was not seriously suggested that the proposed development would be likely to result in any perceptible change to such vistas. As stated earlier the principal questions relate to the impact of the development on its immediate surrounds including its immediate neighbourhood context.

Questions to be Decided and Matters for Consideration

29. Clause 65 of the Scheme sets out decision guidelines which must be considered, as appropriate, before deciding on any application for permit. This clause commences with the following statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

30. The decision guidelines relevant to this application are:

* any matter required to be considered under the zone or overlay provisions - which include the Good Design Guide;

* the matters set out at Section 60 of the Act which, as noted by Ms Bowdern include, at sub-sections (b)(ii) and (iia):

"(ii) Any strategic plan, policy statement, code or guideline which has been adopted by a Minister, Government department, public authority or municipal council; and

(iia) Any amendment to the planning scheme which has been adopted by a planning authority."

31. In this regard Ms Bowdern referred to Amendment C2 which has been adopted by the Council as the relevant planning authority. She also referred to the Urban Character Report as being a "formally adopted policy of Council" and given that it is essentially repeated in the adopted form of Amendment C2, I accept her submission.

32. Central to this application for review is the question of whether this development achieves the outcomes envisaged under the State and Local Planning Policy Framework and in the Good Design Guide, in relation to the oft quoted objective for new housing developments in established urban areas to be respectful of the character of the neighbourhood within which they sit and indeed, to make a positive contribution to that character.

33. Of necessity this outcome must be assessed also in the context of that other oft repeated objective of both the State and Local Planning Policy Framework, namely to encourage new housing to be constructed at a range of densities in order to improve housing choice, make better use of existing urban infrastructure and reduce the demand for on-going expansion at the urban fringe.

34. My principal finding in relation to this application is that while the development provides for two dwellings in lieu of one - so providing a positive response in terms of the objectives for urban consolidation - it does this in a less than successful manner in terms of its detailed response to the immediate neighbourhood context.

35. I should acknowledge at the outset, however, that this has not been an easy decision to arrive at. Central to my reasons for rejecting this proposal is my finding that the attempted mirror image approach to the development fails to acknowledge the different context and constraints at the site's northern and southern interfaces. Because of the development's exposure to the north - a result of its prominent position in the street, and the diminutive scale of the North's dwelling, Unit 2 would present as a poorly resolved and out of scale built form element within the street. A dwelling with a smaller floor area on this northern flank is more likely to provide an opportunity to "meld" the development into its context. At the same time it would allow for more substantial planting to soften the interface between it and its neighbours, so providing a gentler response to its context. Put simply the development is too "tight" on its northern side and the opportunity for landscaping, consistent with the native vegetation theme in the neighbourhood, is not available.

36. I am confident that in the hands of a skilled architect and with the careful selection of materials and landscaping, that a satisfactory solution could be achieved albeit, most likely, without the use of a roof deck. I must say that I find the two storey height limit of the Design and Development Overlay to present somewhat of a difficulty in terms of achieving an upper level structure which complements the building as a whole while otherwise avoiding the prohibitions of that clause. It seems, judging from other such structures in the area - for example those depicted on the photos submitted by Ms Bowdern - that an effect of the height control is that these structures tend to have the appearance of an "add-on" rather than an integrated design element.

37. By contrast with the existing dwelling on the land, which adopts quite slender proportions on its northern and most exposed elevation, the proposed building presents as a more elevated and considerably wider built form mass, with a not particularly attractive elevational treatment - owing to the cut back at first floor level which was seemingly introduced to reduce the visual bulk of that elevation. This impression of bulk is added to by virtue of the blank, 2.5m deep wing wall separating the two dwellings. A less mirror imaged approach could, I suggest, allow for a development which responded more sympathetically to the break front shape of this "top of ridgeline" site.

38. The relevant objective of Elements 3, 4 and 6 of the Guide, dealing with neighbourhood character, site layout and landscaping and building envelope, consistently refer to the integration of a development with its neighbourhood setting, to maintaining the garden character of neighbourhoods and to ensuring that the height and length of walls and visual bulk "are acceptable in the neighbourhood setting". Whilst achieving most of the quantifiable aspects of the Guide's techniques, on the more subjective test of compatibility with the character of the neighbourhood, I find that this development fails. Its mirror imaging doubles its visual impression, giving it an additional scale and bulk. By contrast, a design which sought to adopt a different approach to its different interfaces could well result in a less out of scale outcome. With a lesser scaled dwelling on the northern section of the land, more space would be available for planting in this more vulnerable and sensitive part of the site, where the difference in building scale is more pronounced, and where the visual prominence of the site is more manifest.

39. The other issue in contention in respect of this application was that of overlooking. The focus of concern was on views towards the North's and the McClymont's secluded private open space areas. In the case of the McClymonts the principal concern was with overlooking from rear facing balconies opening from the first floor master bedrooms. Mr McClymont also expressed concern about the additional visual bulk which this development would have, compared to the existing two storey dwelling to his rear. His property sits lower than the subject land and in his submission the greater extent of building and with it, windows, would be a detriment to his amenity. My findings in relation to Mr McClymont's concerns are firstly that any redesign of the more northerly dwelling should reduce the overall bulk of the rear elevation and secondly, it would not have been difficult to screen the rear balconies, thus affording privacy both for the future occupants of the proposed dwelling as well as for the McClymonts.

40. In relation to overlooking of the North's rear courtyard and bedroom windows I was not at all persuaded, following my site inspection, and given the distance involved and the extent of vegetation on their property, that this could possibly pose a problem. The test in the Guide is whether a development would cause "unreasonable" overlooking. On any measure I do not find that the resultant prospect of overlooking would be unreasonable. In relation to the North's swimming pool located to the front of their property, behind a high and vegetated wall, my observation is that the more northerly part of this pool area is already exposed to view from the balcony of the existing dwelling. The extent of overlooking would be increased by this development, due to the more forward location of the proposed balcony to Dwelling No. 2. However, at the distances proposed persons within the North's pool area would be in excess of 14m from these decks and I am not persuaded that the resultant outcome would have been so unreasonable as to warrant the refusal of a permit. This is, after all, a neighbourhood where two storey buildings are not uncommon. However, any redevelopment scheme, with the prospect of greater landscaping within the interface between the two properties, would ensure an improved outcome, in any case.