Mr Phil Bisset of the firm Minter Ellison Lawyers, represented the permit applicant. He called Mr Timothy Biles, Town Planner of Contour Consultants (Australia) Pty Ltd to give expert evidence.

Mr Peter McCartney and Ms Linda Cuthbertson both being objectors, appeared in person.

1. This application for review is one brought by a firm of architects acting for a client in response to the decision by the City of Banyule to refuse planning permission for the construction of a dual occupancy on the a lot on the northern side of Odenwald Road, Eaglemont.

2. The Council's permit application number is P208/99.

3. At the outset of the hearing of the application for review, I advised the parties to the proceeding that my brother, Oliver Moles, who is also a town planner, was one of the Panellists appointed by the Minister to consider the City of Banyule's Amendment C1, which inter alia would introduce additional controls affecting the subject land. No party objected to me proceeding with the hearing.

4. The subject site is an irregularly shaped lot with a frontage of 22.2m, a maximum depth of 42.96m and a total area of 786.4sq m. The land falls by 4.7m from the south-west corner to the north-east corner. This represents an average gradient of 13% or one in 7.6. However, there is a noticeable break in slope running diagonally across the middle of the lot. The site is vacant and cleared of vegetation. The site formerly supported an inter-war dwelling of weatherboard construction built at the same time as the property to the west.

5. Abutting the northern or rear boundary of the site is an unconstructed and overgrown right of way which gives access to Mount Street. It is in useable condition further to the east and services the rear of a number of properties including the property to the immediate east of the subject land.

6. The Eaglemont locality is characterised by undulating topography with residential dwellings set amongst well established gardens. There is a curvilinear street pattern and the streets are lined with large deciduous canopy trees. Property sizes general range from 500 to 1000sq m in area with frontages of between 15 and 20m. Typically the housing is a mix of inter-war and post-war eras, interspersed with some instances by modern infill redevelopment. Front fences are generally low or non-existent.

7. The property to the west of the subject land is developed with an inter-war timber dwelling set back 8.5m from the street frontage. This property is well vegetated with a driveway running along the eastern boundary abutting the subject land. Because of the fall of the land, this dwelling is elevated at the rear with its floor level and balcony above the height of the existing fence along the common boundary. The property enjoys views generally to the north-east. A hedge of light trees and shrubs has been developed along the front part of the common boundary with the subject land.

8. To the east of the subject site is a brick veneer dual occupancy comprising a dwelling fronting Odenwald Road and the second dwelling at the rear. Vehicle access to the rear dwelling is available via the right of way that abuts the northern boundary of the subject land. The dual occupancy dwellings are developed in such a way that they "turn their back" on the subject site: their open space areas are located towards the east of the rear allotment.

9. Across the unconstructed right of way to the north is a large residential property which is the subject of a planning permit issued on the 28th of September 1999 for a six lot subdivision. Access to four small lots immediately across the right of way from the subject land is proposed from the right of way. The construction of the right of way is required prior to the issue of a statement of compliance for the subdivision.

10. Odenwald Road itself comprises a 20m road reserve with an 8.5m wide carriageway. There is a footpath and nature strip on either side. As noted the roadway is lined with substantial deciduous canopy trees. Across Odenwald Road on the south-eastern corner of Thomas Court is a substantial 1950's cream brick dwelling which his oriented to the north-east with the closest part of that building being setback 8.5m from Odenwald Road. The dwelling is elevated above the road and set within a well landscaped garden. Directly opposite the subject land lots along the right of way to the west of Thomas Court have recently been subdivided and at present there is a double storey dwelling under construction at the street frontage. Generally to the east of Thomas Court, properties on the southern side of Oldenwald Road are of double storey construction and set well back from the street. Generally to the west of the subject land properties are of more modest single storey construction set closer to the street frontage.

11. The following description of the proposed developed is drawn from Mr Patterson's written submission to the hearing of the application for review. It describes the proposal in its amended form - amended plans which had been circulated to the parties and the Registrar on the 10th of May prior to the hearing were substituted for the plans which had been considered by the Responsible Authority, at the outset of the hearing of the review. There was no opposition by any other party.

"It is proposed to construct two double storey dwellings on the site. These dwellings will each be constructed to front Odenwald Road with a central shared party wall running on a north to south axis. Dwelling 1 is sited on the west (higher) side of the site with the ground floor set approximately 2.0 metres higher than that of dwelling 2.

Dwelling 1 will be setback 5.8 metres at its closest point with a double garage protruding forward 0.5 metre. Having regard to the angle of the front boundary however, the front setback of the garage is maintained at a minimum of 5.8 metres.

The entrance to this dwelling is on the west side of the garage. The ground floor comprises a floor area of 141.5 square metres (excluding garage) and comprises a lounge, study/bedroom , kitchen, amenities and open family and meals area. Coming [out] of the rear of the dwelling is a 25.2 square metre balcony.

The first storey level of this dwelling comprises an area of 98.4 square metres and includes three bedrooms, sitting area, ensuite and shared bathroom.

Private open space will be located to the rear of the dwelling and comprise an on ground area of 131.4 square metres.

Dwelling 2 will be setback 5.0 metres from the front boundary at its closest point with the ground floor cut into the slope of the site. The ground floor will comprise a floor area of 109.7 square metres (excluding garage) and comprise a bedroom, bathroom, laundry and family room.

Entrance to the dwelling is achieved via a stairway leading to the first storey level above. The first storey will comprise a floor area of 180.1 square metres and include a lounge, three bedrooms, ensuite, shared bathroom, amenities, kitchen, and open meals and family room. Leading from the meals area at the rear will be a 20.5 square metre balcony.

The dwellings will be constructed in face brickwork with terracotta tiled roofs.

Private open space will be located at the rear of this dwelling and comprise an on ground area of 80.7 square metres.

Each dwelling will be provided with a double garage with provision for a tandem car parking space at the front. Access to the garages will be achieved via two separate driveways.

A summary of the development details is provided in the following table:

13. Mr Biles' evidence was that as a consequence of discussions with the Councillors of the City of Banyule it was decided to pursue a building style that was "conservative" and influenced in part by elements that can be found in buildings designed by Walter Burley Griffin. Solid rendered forms, high windows and pitched tiled roof lines and wall articulation are utilised in the design.

14. The subject site and surrounds are zoned Residential 1 under the Banyule Planning Scheme. The purposes of that zone include:

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

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households."

15. The site is not affected by any overlay of the Scheme at present.

16. Pursuant to Clause 32.01-4, a permit is required to construct two or more dwellings on a lot.

17. Clause 65 of the Scheme generally guides the exercise of the discretion in relation to this application and requires consideration of the State and Local Planning Policy Frameworks, the orderly planning of the area and the effect of the proposal on the amenity of the neighbourhood. Clause 32 of the Scheme also requires assessment of the application against the Good Design Guide for Medium Density Housing Revision No. 2 April 1998 and any local variations incorporated in the Scheme.

18. Some of the relevant components of the Municipal Strategic Statement which forms part of the Local Planning Policy Framework are as follows:

* Element 1 relating to residential development includes that:

"In relation to residential land use and development Banyule wants to achieve:

* a high quality living environment including a high level of amenity and high quality residential character.

* additional dwellings to stabilise Banyule's residential population.

* a greater diversity of affordable housing opportunities in appropriate locations to address the needs of those seeking to reside in Banyule."

Some of the strategies recommended to improve the objectives are:

"* Facilitating and encouraging higher density housing close to public transport, commercial and community facilities without impacting adversely on the amenity or character of the surrounding areas.

* Encouraging greater diversity of housing in terms of style, size, affordability and tenure having regard to the Banyule Housing Statement.

* Protecting and enhancing residential streetscapes and the character, amenity and safety of residential neighbourhoods.

* Encouraging high quality architecture and urban design."

Implementation measures include incorporation within the Scheme of a Neighbourhood Character Strategy and a Street Tree Strategy.

Under the incorporated diagram of Clause 21.04 the site is included within an area where medium density housing is encouraged.

* Banyule's Neighbourhood Character Strategy was adopted by the Council on the 15th of March 1999. It is a reference document under Clause 21.04-1 of the Scheme, but is proposed under Amendment C1 to become an incorporated document of the Scheme. Under the Urban Character Study the area falls within a Garden Suburban GS6 Area. The key characteristics of this area include inter-war housing styles (Californian Bungalow, Spanish Mission and Centenary) with areas containing large portions of Edwardian in the south and post-war styles in the east. It is said that dwellings are generally set on generous allotments in an undulating landscape with established gardens. The principles for development in the Garden Suburban Area are identified as:

"* To retain buildings that contribute to the valued character of the area;

* To ensure new buildings and extensions are sympathetic to the current building form and style.

* To maintain the consistency of the current building setbacks;

* To ensure that buildings and extensions do not dominate the streetscape and/or the building;

* To minimise loss of garden space and the dominance of car storage facilities;

* To maintain the view of established front gardens from the street and to reflect the predominant era of the dwellings."

* The Environment and Housing Policies contained within Clauses 22.04 and 22.06 respectively of the Scheme.

The Environment Policy seeks to "ensure the protection and enhancement of the environment of the City of Banyule" and the Housing Policy seeks to ensure that population decline, ageing and changing structure of households is recognised and responded to.

* The following components of the State Planning Policy Framework are particularly relevant:

- The policies relating to metropolitan development at Clause 14.02 which inter alia seek to achieve enhanced environmental quality and liveability for the metropolitan population and improved functioning through best practice management of its infrastructure and urban development.

- Policies relating to medium density housing at Clause 16.02-1, including:

"To encourage the development of well designed medium density housing to improve housing choice, and make better use of existing infrastructure and improve the energy efficiency of housing."

That policy has recently been extended to make reference to the desirability of maintaining and enhancing neighbourhood character.

- The State Policy relating to design and built form at Clause 19.03-1 which is expressed as:

"To achieve high quality urban design and architecture that:

* reflects the particular characteristics, aspirations and cultural identity of the community.

* enhances liveability, diversity, amenity and safety of the public realm.

* promotes attractiveness of towns and cities within broader strategic contexts."

19. Upon receipt of the application, the Responsible Authority required it to be advertised and four objections were received. Mr Patterson's submission to the hearing of the application for review summarised the grounds of objection as follows:

"* development is too large and dense and there is not sufficient space for trees and gardens;

* development is out of character with neighbourhood and will detract from the ambience of Odenwald Road;

* damage caused to adjacent properties during the construction process."

20. As a consequence of these objections a mediation meeting was held in September 1999 between the applicant and objectors which examined the relationship of the proposal to the western boundary of the site, building setbacks, and general neighbourhood character issues. Revised plans were subsequently prepared and re-advertised with three of the original four objectors reiterating their concerns. The objectors expressed the view that there was no improvement to the bulk of the proposal, which was still viewed as an overdevelopment; single storey at the front and double storey at the rear was an appropriate form of development; the elevations and setbacks were not compatible with the Neighbourhood Character Study; the use of brick rather than timber was inappropriate; and the scale and mass of the building would lead to further loss of Eaglemont's distant views to hills and the city which contribute to the amenity of the neighbourhood.

21. The application was also referred to the Council's Engineering Department who inter alia would require that the garage door for Dwelling 2 be moved further to the east to provide for a smoother turning path for 5m in width.

22. On the 23rd of February 2000 the Responsible Authority determined to refuse a permit on the following grounds:

"1. The mass, scale and setbacks of the proposed development does not respect the neighbourhood character.

2. The proposed development will result in a loss of amenity to surrounding properties due to visual bulk.

3. The proposed development does not sufficiently comply with the Good Design Guide for Medium Density Housing.

4. The proposed development is contrary to the Banyule Neighbourhood Character Study."

23. The permit applicant subsequently sought a review of that decision. The grounds for the review are as follows:

"1. The form of the proposed development will respect and enhance the neighbourhood character.

2. The proposal will not unreasonably impact on the amenity of nearby uses and will not result in unreasonable visual intrusion.

3. The proposal is consistent with the objectives and strategies of the Banyule Planning Scheme.

4. The proposal substantially complies with the objectives of the Good Design Guide for Medium Density Housing and is proper and appropriate for the locality."

24. At the hearing of the application for review, I was presented with oral and written submissions by the parties, and the expert planning evidence of Mr Biles was called on behalf of the permit applicant. Since the hearing I have twice inspected the subject site and surrounds. I have also considered the suggested conditions by the Responsible Authority and the comments on them by the objectors which were received after the hearing. I have determined to refuse the application for permit and uphold the Responsible Authority's decision.

25. The essential questions in the assessment of any proposal for medium density housing are whether the proposal is appropriate in terms of neighbourhood character, amenity impacts for neighbours, and future on-site liveability for residents of the proposed development.

26. The case for the permit applicant in this review was essentially that an appropriate balance of the first two features were achieved. There was little argument about the on-site liveability offered by the subject development, with the only matter of the amenity of a bedroom in the eastern dwelling being resolved by the possible introduction of a conventional height window.

27. I find, however, the proposed development to be overscaled, inappropriately designed and sited in terms of streetscape.

28. It is acknowledged that the subject dwellings are sited generally in the same location as the former dwelling on the subject land. It is also acknowledged that the proposed development is both stepped back from the street at upper floor level at least for the westernmost of the two dwellings and the dwellings are quiet well articulated. It is also accepted that the architectural style is one reflective of other dwellings in the area. However, given the larger width and height of the built form proposed when compared to the modest dwelling which formerly occupied the site and those on either side, the siting of the development forward of adjoining dwellings would make it unacceptably bulky when viewed from the streetscape. Also, as earlier noted the subject site sits in an area of transition between more modest houses to the west and more substantial housing to the east. To the extent that it might be argued that the scale of this proposal relates to the larger scale dwellings to the east, and in particular those across Odenwald Road, the proposed dwellings remains inappropriate as they would not be set in large landscaped grounds and would fail to integrate well with neighbourhood character in this respect.

29. Further, the streetscape appropriateness of the development is reduced by the extent of driveways and garages located at the front of the site. While the double garages would be overhung in part by the level above and vertical panelling in their doors would be employed, this would be inadequate to sufficiently alleviate the prominence of those features in the front elevation of the development. The garages occupy an excessively large part of the ground floor of the lowest level of the two dwellings.

30. Moreover, the two crossovers from the street and associated driveways in combination with the limited setback would restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape.

31. I believe that the dominance of vehicle access and garaging and the absence of adequate landscaping at the site's frontage could be improved if at least one of the garages for the dwellings were relocated to the rear of the land. I was advised that the Responsible Authority had not favoured this option as they were concerned about the noise of vehicles using the rear laneway affecting neighbours' amenity. Given that the laneway is apparently already used by vehicles further to the east, and certainly would be much more heavily used if the approved subdivision on the northern side of the laneway proceeded, I do not believe that the marginal change brought about by the vehicle usage associated with only one dwelling would be significant.

32. Before leaving the matter of streetscape and neighbourhood character, however, I would like to observe that the architects have gone to great length to attempt to integrate the architectural style of the development with the inter-war style characteristic of this area of Eaglemont. They have adopted what might be best described as "mock Griffin", which if this had been a heritage area, may have been problematic. The problem arising would have been that history would have been distorted by a Walter Burley Griffin style building being introduced to a locality with which he was associated for subdivision plans, but not architecture. Nevertheless, given the absence of a heritage overlay and the diversity of inter-war housing styles and more recent developments, I believe that the proposed architectural style is an appropriate one.

33. Turning now to direct off-site amenity impacts, it is acknowledged that the proposed development has gone to some length to reduce the impact on the property to the west in particular. The development has been designed in such a way that the rear portion of the western dwelling has been reduced in height so as to assist in retaining views from the McCartneys' dwelling. The applicant was also prepared to enter into an agreement made pursuant to Section 173 to ensure that no roof would go over the rear balcony space on the subject development thus retaining those views.

34. I nevertheless believe that despite the subject building being located in a position where a single dwelling on the subject land would conventionally be located, the extent of building bulk as presented to the neighbour to the west is unacceptable, given that the neighbours' dwelling is oriented towards the east. What is proposed is a substantial brick building which extends for 21m down the depth of the allotment (exclusive of the front porch and rear porch - the latter extending the building by another 5m). That building, which is a relatively "heavy" masonry building with prominent roofline, the ground floor level of which sits in part on the common boundary with the property to the west, and in part is set back between 1m and 1.8m. It is acknowledged that the upper floor level is set back a greater distance of 1.95m, but the differential between that setback and the ground floor setback is not substantial, particularly towards the rear of the upper level.

35. Also, while the rear deck is proposed not to be roofed to help ensure the retention of the views from the property to the west, the proposed planting along the western side of that deck which is necessary to ensure privacy between the two properties could well negate the intentions for view retention. Further, I was not satisfied with the evidence presented that the existing screening vegetation planted along the eastern boundary of the neighbour's property would not be adversely affected by the development on the subject land, even if the development were to be set further off the boundary in places.

36. So far as the visual impact on the property to the east is concerned, I accept the submissions made on behalf of the permit applicant that because of the orientation of the dwelling to the east, visual impacts will be significantly reduced.

37. In summary, I agree with the Responsible Authority's submission that having regard to the established character of this area, a more responsive design would be smaller in scale, relocate the dwellings back in line with dwellings on adjacent properties and reduce the visibility of the garages at the front, as well as the first storey levels. This is clearly a difficult site to develop having regard to the topography and the nature of surrounding development, and the permit applicant has chosen to attempt to develop two substantial three bedroom dwellings with double carports. Not only does this fail to introduce the required diversity of housing type into the locality, as was submitted by the Responsible Authority, but it results in a form of development which is excessive for this site. Mr Bisset's submission to the hearing recognised the need to balance aspects of the site context and aspects of the broader neighbourhood context. He submitted it would be inappropriate if elements represented in the broader context were elevated to a status which determined a design response which was not sympathetic or responsive to the land form or the arrangement of buildings and outdoor areas on neighbouring properties. I find that the subject development does not suffer that particular problem alone, but rather fails to respond adequately to both factors.