appellant. The decision of Glen Eira City Council was set aside. A permit was directed to be issued for construction of a single dwelling on a lot under 300 m2 at 2A Fallon Street, Caulfield, in accordance...
Key principles
The application required an individual assessment under the Glen Eira Planning Scheme, taking account of the site’s unusual location and existing long-standing non-residential...
Neighbourhood character assessment was not confined to comparing building heights and setbacks. The Member considered the wider physical context, including the juxtaposition of...
For the Clause 54 assessment, compliance with a relevant standard was treated as compliance with its related objective, while the ultimate assessment remained whether the...
The proposal was acceptable subject to conditions addressing identified amenity and design issues, including relocating external steps, screening or treating windows, adjusting...
Issues before the court
How should neighbourhood character and the Minimal Change Area policy apply to this rear-lot site?
Did the dwelling comply with Clause 54 and provide acceptable off-site amenity?
Plain English Summary
The Tribunal approved a dwelling on a small rear site that Council had refused. The Member considered the site unusual because it had a long-standing storage use, sat behind a street-front dwelling, adjoined commercial activity to the south and had access from laneways. The Member found that general Minimal Change Area descriptions did not fit this site particularly well and that the proposal’s scale was acceptable in context. Some design details were changed by conditions to address privacy and landscaping, including moving the dwelling, relocating steps, screening or treating windows, and planting along boundaries. The permit proceeded on the basis that the southern laneway could be lowered, subject to separate Council approval for that work.
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Deep Dive
2,202 words · generated 29/09/2026
What happened
In [2008] VCAT 2379, Port Phillip Building Services sought review under section 77 of the of Glen Eira City Council’s decision concerning a proposed dwelling at 2A Fallon Street, Caulfield. The Tribunal’s order set aside the responsible authority’s decision and directed that a permit issue for a single dwelling on a lot less than 300 m2.
Could the southern laneway be lowered to provide access to the basement garage?
Was the landscaping adequate for the site and its surroundings?
Cited legislation
1 cited instrument linked from this judgment.
Port Phillip Building Services v Glen Eira CC
Planning and Environment Act 1987
The site measured 240 m2 and was then used for storage associated with a business across the laneway. It sat behind a single-storey dwelling on Fallon Street. A three-metre-wide laneway bounded it to the south, and another laneway bounded it to the north. Residential land lay to the north and east, while commercial premises were nearby to the south and west. Those circumstances shaped the Tribunal’s assessment: this was not a conventional street-front allotment in a uniform residential street.
The Tribunal considered revised plans circulated before the hearing and substituted those plans for the application plans. The Member, J A Bennett, heard evidence from an urban designer, a town-planning consultant and a consulting engineer for the applicant. Council and neighbouring respondents also participated. The Member inspected the site and locality twice after the hearing and before finalising the decision.
The application raised concerns about the building’s size, neighbourhood character, overlooking, overshadowing, landscaping, laneway access, drainage and the site’s sense of address. The Tribunal did not simply accept or reject the design as a whole. It concluded that revised plans had addressed the earlier concern about the large basement area and that remaining concerns could be managed through permit conditions. The conditions required, among other things, a 250 mm southward shift of the dwelling, changes to steps and screens, a landscape plan, specified privacy glazing and completion of landscaping before occupation or commencement of use.
The permit also depended on the southern laneway being lowered to provide access to the basement garage. The Tribunal accepted the engineering evidence that there were no technical reasons preventing that work. It acknowledged, however, that the laneway works required separate Council approval and that affected owners’ support would be needed.
Why the court decided this way
The key feature of the reasoning was the site-specific assessment. The Member said that “every permit application involves different and often peculiar circumstances needing individual assessment” ([1]). The judgment treated the site’s rear-lot configuration, historic storage use, commercial interface and laneway access as material differences from the more typical residential properties described by the Minimal Change Area policy.
The site was within the Residential 1 Zone and the Minimal Change Area, near the boundary of the Housing Diversity Area along Glenhuntly Road. The Member considered that much of Clause 22.08’s general description of residential character and development pressures did not fit this unusual location. In particular, the policy’s discussion of standard suburban subdivisions, grid layouts and lots with a street frontage did not closely describe this site.
The Member’s approach to neighbourhood character was broader than a comparison of building heights or setbacks. The judgment states that neighbourhood character involves factors such as the juxtaposition of heights, front and side setbacks, landscape character, rear-yard form, slope, driveway and parking locations, fences, and the public realm ([4]). Applying that approach, the Member found that a taller and more substantial building could be acceptable in this context than it might be in a more homogeneous low-scale residential area. The proposed dwelling would also be largely hidden from view behind buildings facing Fallon Street.
The Member did not treat “respecting” neighbourhood character as requiring a new dwelling to replicate existing housing. The reasons note that new development need not reproduce existing design and scale, and that modern materials and roof forms are not necessarily unacceptable merely because they differ from existing buildings. The decision’s conclusion was specific to this locality and proposal: the Member rejected neighbourhood-character objections to the dwelling.
Clause 54 framed the assessment of the proposed dwelling on a small lot. The reasons explain that compliance with a relevant standard is deemed compliance with the related objective, but that the ultimate question is whether impacts are reasonable or unreasonable. For land in a Minimal Change Area, the Member identified modified standards for site coverage, rear setback and private open space. The judgment then assessed the physical effects on adjoining properties rather than treating a single design feature as determinative.
The western interface was the most difficult relationship. The site was elevated relative to the dwelling and yard at No 2 Fallon Street. The Member considered that external steps and a landing beside the western boundary could create overlooking and other amenity effects. The conditions therefore required the steps to be moved inside the garage, the vacated strip to be landscaped with screening shrubs, the western side of the entry porch to be screened, and west-facing windows within nine metres of the boundary to be fixed and obscure-glazed to the specified height.
The Member treated the south-eastern interface differently. Although a neighbour raised concerns about overlooking and bulk, the Member considered the relevant Clause 54 standards and the physical relationship between the properties. Views in that direction were partly obscured by a fence and were directed towards a bungalow, much of which was outside the stated nine-metre standard. The Member did not require further screening there and reduced the southern balcony screen to 1.2 metres.
The Tribunal also accepted that additional shadowing would occur at certain times, but found that the relevant shadow diagrams met the applicable standard. It considered that some early-morning or late-afternoon shadow did not, by itself, establish unacceptable overshadowing. Landscaping was addressed through detailed requirements, including a raised planting strip along part of the eastern boundary, permeable paving and a canopy tree.
Before and after state of the law
The judgment records the planning controls and policy provisions that governed this application. It identifies the Residential 1 Zone, the Development Contributions Plan Overlay, Clause 54, Clause 65, local policies including Clauses 22.08 and 22.07, and other scheme provisions. It also identifies section 77 of the Planning and Environment Act 1987 as the basis of the review application.
The reasons do not purport to amend those provisions or announce a new statutory test. Instead, the Member explains how the provisions were applied to the particular site. The decision’s central interpretive point is that a policy description for a broad residential area does not necessarily resolve the character question for every parcel within that area. The site’s unusual location and surrounding uses informed the weight the Member gave to aspects of Clause 22.08.
The judgment also states an approach to Clause 54: its standards provide guidance, compliance with a standard is deemed compliance with its related objective, and the assessment still involves deciding whether the effects are reasonable in context. The decision does not set out the full wording of each relevant standard, nor does it provide a general account of how every Clause 54 application must be decided. Its reasoning is tied to this proposal and its neighbours.
The supplied judgment contains no later decisions or citations showing how subsequent courts or tribunals treated this case. Accordingly, it is not possible from this source alone to describe a later state of the law or claim that later decisions adopted or departed from its reasoning. The decision is a VCAT determination applying the planning scheme to the facts before it. Its fact-specific reasoning should not be presented as a later appellate ruling or as a universal rule for rear-lot development.
Key passages with plain-English translation
The Member’s opening observation was: “every permit application involves different and often peculiar circumstances needing individual assessment” ([1]). In plain English, the site’s particular shape, use and surroundings mattered. The Member did not regard a general policy label as a complete answer to whether this dwelling fitted.
The Member said that assessing neighbourhood character involves more than existing building heights and setbacks ([4]). The passage lists matters such as landscaping, rear yards, slope, driveways, car parking, fences and public streetscape. In practical terms, the character assessment considered the combined setting, not just whether the proposed dwelling was taller than nearby houses.
The Member also explained that Clause 54 provides guidance, while the ultimate issue is whether effects are reasonable or unreasonable. The supplied text does not display a continuous paragraph number for this passage. In plain English, the design was assessed through the applicable standards and objectives, but the Member also considered how the proposal would actually affect neighbours.
On overlooking to the west, the Member was “not satisfied that the western interface protects the amenity of the residents to the west”. The response was not to reject the whole proposal. Instead, the Tribunal imposed design changes intended to remove a potential overlooking point and create a planted buffer. That illustrates how the reasons linked identified impacts to specific permit conditions.
On the southern laneway, the Member said the permit was being granted on the basis that the laneway would be lowered to allow access to the driveway and basement garage. The Member also recognised that separate approval was required and that the development might need amendment if the proposed lowering could not occur. In plain English, the permit resolved the planning application on an assumed access arrangement, but did not itself authorise all laneway works.
What fact patterns trigger this precedent
The decision is most closely relevant to planning applications involving a small residential lot that is physically and functionally unlike the typical street-front lots described in broad neighbourhood-character policy. Features comparable to this case include a rear site, an existing non-residential use, laneway boundaries, a nearby commercial interface, and a surrounding area whose general policy description only partly matches the site.
It is also relevant where the design raises distinct amenity questions for different neighbours. Here, the Tribunal did not treat all adjoining interfaces alike. The western interface required substantial design conditions, while the south-eastern interface did not lead to further screening. A comparable application would need careful attention to actual sightlines, levels, fences, windows, paths, balconies and the location of secluded open space.
The decision may also be useful where a permit proposal depends on works outside the lot, such as changing the level of a laneway. The reasons distinguish between granting the planning permit on the basis of a proposed arrangement and obtaining separate approval for the physical works. The Member relied on engineering evidence and recognised that access, drainage and the position of other laneway users remained relevant.
The decision does not establish that rear-lot dwellings, basement garages, laneway access, or taller buildings will generally be acceptable. Its reasoning expressly depended on the particular location, surrounding development, revised plans, evidence and conditions. Comparisons should therefore focus on those features rather than the outcome alone.
How later courts have treated it
The supplied judgment provides no later case citations, treatment history, appeal information or subsequent planning decisions. It is therefore not possible, on the provided source, to say whether later courts or tribunals followed, distinguished, explained, criticised or otherwise treated this decision.
The judgment itself refers generally to previous Tribunal decisions about neighbourhood character, including observations that new dwellings need not replicate existing buildings and that a two-storey dwelling is not automatically unacceptable in a predominantly single-storey area. But it gives no case names or citations for those observations in the supplied text. They cannot be identified as particular precedents from this source.
For research purposes, the safe source-grounded description is that this is a 2008 VCAT decision applying the Glen Eira Planning Scheme to a particular small, unusual rear site. Any account of its later status or influence would require sources beyond the judgment provided here.
Still-open questions
The decision leaves several matters unresolved in the supplied text. First, it does not state whether the proposed lowering of the southern laneway was ultimately approved or carried out. The Member acknowledged that the works required separate Council approval and that support from owners using the laneway would be needed.
Second, the reasons do not give the final outcome of the detailed landscape-plan process or the environmental audit condition. The permit required a certificate of environmental audit or an environmental auditor’s statement before most construction, and required a landscape plan to be approved and implemented. The judgment does not show whether those later steps occurred.
Third, the supplied text does not include the full Council refusal grounds, the complete revised plans, the full wording of the cited planning scheme provisions, or a continuous paragraph numbering system for most of the reasons. Those omissions limit close verification of some detailed interpretations and paragraph references.
Finally, the decision does not answer how the same policy analysis would apply to a different rear site, a different local character context, or a design with materially different impacts. It repeatedly relies on the unusual features of this site. The scope of any broader application therefore remains dependent on the governing scheme provisions and the facts of the later proposal.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (32 paragraphs)
[1]
Port Phillip Building Services v Glen Eira CC [2008] VCAT 2379 (28 November 2008)
[2]
Glen Eira Planning Scheme; Application pursuant to Section 77 of the Planning and Environment Act 1987; Residential 1 Zone; Single dwelling; Minimal change area; Interface site; Neighbourhood character; Compliance with Clause 54; Laneway access; Impacts on neighbours; Landscaping.
[3]
Satoshi Kobayashi, Andrew Mouchacca, Mirsing & Persefoni Apostolellis
Plans being TP02, TP-05 toTP-14 (all marked Scheme 10) are substituted for the application plans.
The decision of the Responsible Authority is set aside.
In permit application PP07/01332 a permit is granted and directed to be issued for the land at 2A Fallon Street, Caulfield. The permit will allow:
Construction of a single dwelling on a lot less than 300m2 in area
[6]
in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.
[7]
Mr Andrew Hooper, Barrister. He called written and oral evidence from Mr Jim Holdsworth, Urban Designer of Planning Collaborative (Vic) Pty Ltd; Mr Matt Ryan, Town Planning Consultant; and Mr David Fairbairn, Consulting Engineer.
[8]
Mr Lofting, Solicitor of Best Hooper Solicitors for Satoshi Kobayashi.
[9]
Ms Persefoni Apostolellis for herself and Mirsing Apostolellis.
[10]
Construction of 2/3 storey dwelling on land currently used for storage in association with a business on the opposite side of the laneway. The site sits behind a single storey dwelling located on the eastern side of Fallon Street. Laneways to the north and south provide access to the site.
[11]
(This is the revised proposal shown on amended plans which were circulated to parties on 12 September 2008 in accordance with the relevant VCAT Practice Note and which we substituted for the application plans at the commencement of the hearing).
I inspected the site and locality on two occasions after the hearing but prior to finalising my decision.
[16]
The site has an area of 240 m2 and is located behind and to the east of a single storey dwelling located on the eastern side of Fallon Street, one lot north of Glenhuntly Road. It is currently used for storage. The review site and No 2 Fallon Street are separated from the commercial buildings facing Glenhuntly Road by a 3 metre wide bluestone and concrete surfaced laneway that terminates near the eastern edge of the review site. The commercial buildings are used for a variety of business/service activities including plumbing, and sales of bikes, cakes and take away food.
[17]
The review site is also bounded by a gravelled and asphalted laneway on its northern side which provides rear access to residential properties to the north and north east. Land to the east and north, including abutting land to the east, is used for residential purposes. The western side of Fallon Street to a point well north west of the northern laneway is developed for larger commercial buildings and at-grade car parking.
[18]
Let me say at the outset that I agree with Council officers who expressed dissatisfaction with the design presented to them in the application plans. I share their concerns that the large basement area could have been used for purposes other than those associated with the dwelling above.
However the substitute plans offer a different design which in my view has overcome those concerns about the basement space. Although Council does not support the revised design, I am satisfied that subject to some further relatively minor changes, the design now offers an acceptable development for this site.
Despite submissions from Ms Apostolellis about unacceptable overlooking and bulk impacts on her property to the south east, an assessment against the ResCode standards and objectives, together with an appreciation of the physical relationship between the review site and her property, satisfies me that any impacts are not unreasonable or of a magnitude that would warrant changes to the design.
The relationship with the nearest neighbour to the west is more problematic. Not only is the review site more elevated than the dwelling and yard to the west at No 2 Fallon Street, but elevated paths and decks have the potential to create overlooking and other unacceptable amenity impacts. I explored these matters with witnesses and parties at the hearing in an effort to understand whether some relatively minor changes to the design could reduce these impacts.
Council also highlighted potential problems with using the southern laneway to provide access to the dwelling including the impact of lowering the laneway on adjoining properties, the ability to use the laneway for drainage and the poor sense of address for future residents.
However before dealing with these matters I firstly want to say something about planning policy, the Council's minimal change area and neighbourhood character.
[19]
Neighbourhood character and local policy for minimal change areas
[20]
This case highlights yet again that every permit application involves different and often peculiar circumstances needing individual assessment. I am reluctant to classify this as a unique site, but its current and long standing non-residential use and abuttal to commercial activities to the south clearly distinguish it from the vast majority of properties in Glen Eira that are also zoned Residential 1 and within the minimal change area.
The Planning Scheme provides discretion as to whether permits are granted and gives guidance through zone objectives, decision guidelines, overlay controls and State and local policy as to how that assessment should be undertaken. The starting point for any assessment is an appreciation of the relevant zone and overlay controls. The review site and surrounding land to the west, north and east is zoned Residential 1 and the area does not have any heritage, built form or neighbourhood character overlays. The use of the land for a dwelling does not require a permit - only buildings and works.
In the case of residential development, local policy at Clauses 22.07 (Housing Diversity Area) and 22.08 (Minimal Change Area) identifies this site as within a minimal change area but on the boundary of land within the housing diversity area along Glenhuntly Road. Because of its existing use and unusual location, much of the description in Clause 22.08-1 about Glen Eira's residential character is irrelevant, as are the comments about development pressures which principally relate to development on lots within standard 'suburban style subdivisions' where roads and lots are laid out in a grid fashion and where each lot, other than corner lots, have a single frontage to a street and three sides bounded by similarly sized lots. Indeed the predominance of a grid subdivision pattern is a character feature referenced across the whole municipality in Clause 22.08-3.4.
Because of the peculiar locational attributes of the review site I am not convinced that policy set out in Clause 22.08-3 is of great relevance, particularly the list of neighbourhood character elements listed in Clause 22.08-3.4, even though inappropriate massing, bulk and scale formed one of Council's three grounds of refusal. In this particular site context the massing, bulk and scale can be more 'robust' and a taller more substantial building is not disrespectful of the prevailing character in the way it would be, for example, in more homogenous, low scale residential areas elsewhere in the minimal change area. Establishing the character of a neighbourhood involves more than assessing existing building heights and setbacks of adjoining or nearby dwellings and requires consideration of more intangible factors created by the juxtaposition of building heights, front and side setbacks, landscape character and styles, size and style of rear yards, land slope, position of driveways and car parking areas, front fences and the public realm including road and footpath design.
[21]
Compliance with Clause 54 and off site amenity impacts
[22]
Clause 54 is specifically designed for the assessment of applications for single dwellings on lots less than 500m2 in area. Clause 54 provides guidance as to what is acceptable but ultimately it is a question of determining whether the impacts are reasonable or unreasonable. Compliance with the relevant standard is deemed to be compliance with the related objective. Three of these standards are varied for land in minimal change areas - site coverage is set at 50% as against the normal 60%, rear setback is set at 4 metres and private open space is set at 60m2 and 40m2 as against the normal 40m2 and 25m2.
Apart from the unusual location, the site itself has some particular characteristics that influence how a dwelling may be designed. Firstly, it has frontage to two laneways - to the south by a 3 metre wide bluestone and concrete surfaced laneway that terminates near the eastern edge of the review site and to the north by a gravelled and asphalted laneway which provides access to residential properties to the north and north. Secondly, the site has a 1.5 metre height differential between the north east and south west corners which enables a basement to be provided below the dwelling while allowing it to sit at ground level on its northern side. The dwelling therefore appears to be of two storeys when viewed from the more sensitive residential areas to the north and east. From the south and west it appears as a two/three storey dwelling but even from this perspective I find there is no justification for refusing approval because of its scale or overall height.
I now want to comment on some particular aspects of the proposal raised as concerns by Council, Ms Apostolellis and Mr Lofting.
[23]
Mr Ryan addressed the possibility of overlooking from the south facing balcony and west facing windows. There are opportunities for oblique views to secluded open space to the south east and to the west, although the views to the south east are towards a bungalow, largely outside the 9 metre standard included in Clause 54 and partly obscured by the intervening side fence. In my view there is no need to further screen those views and I agree with Mr Ryan that the south side of the balcony should not be fitted with a 1.7 metre high screen and that it should instead be fitted with an opaque balustrade 1.2 metres high. This will provide some privacy on the balcony while allowing outward views to the south.
As discussed at the hearing, I am not satisfied that the western interface protects the amenity of the residents to the west. Although overlooking from windows can be overcome by ensuring that all windows within 9 metres of the boundary are fixed and opaque to at least 1.7 metre above floor level, I do not support the location of steps and a landing between the building and the side fence. Relocating the steps internally within the garage and converting this area to a landscaped garden not only removes a potential point of overlooking but it also provides the ability to visually filter views of the western elevation of the dwelling. I consider this provides a great improvement over what is shown on the substitute plans and have included conditions to give effect to these changes.
Despite submissions about unreasonable overshadowing into yards to the west and south east, shadow diagrams indicate that the relevant standard is easily met in both cases. While I accept that there will be some additional shadowing in the early morning and late afternoon that is not the test as to whether overshadowing is unacceptable.
[24]
Landscaping opportunities are limited save for within the northern and western setbacks. As discussed at the hearing I consider there are benefits in providing a landscaping strip along the eastern boundary between the dwelling and the laneway to provide a softening to the property to the east. However expansive gardens such as are found in parts of Toorak or Kew are not common in the immediate area and many properties appear to have limited areas for landscaping to the sides and to the rear. I am satisfied that landscaping can be provided at an acceptable level for the site context and I note that Council has proposed a condition requiring the submission of a landscape plan. I also note and support Mr Ryan's suggestion that the dwelling be moved further away from the northern boundary to increase the setback to 1 metre. I have included a condition requiring the setback of the whole building to be increased by 250mm so that the 1 metre setback will be achieved. I am satisfied that relocating the dwelling in this manner will not cause adverse impacts on properties to the east, west and south.
Mr Ryan recommended that the 26m2 paved area south of the dwelling, east of the driveway, could be provided with permeable paving and a small landscape strip along the eastern boundary. At the hearing I explored the possibility of landscaping the whole of this area to provide a green landscape buffer between the basement of the dwelling, and the laneway and commercial activities to the south. On reflection, and having regard to the character of this area and the three small obscured basement windows facing onto this area, I agree with Mr Ryan that the area should be instead provided with permeable paving but with a raised landscaping strip along the eastern boundary. The strip should be 1 metre wide and set behind a retaining wall so that the soil level is similar to that on the adjoining property to the east. Elevating the landscaping strip has the added benefit of protecting plants from accidental damage and also allows plants to provide screening at a younger age.
[25]
Council was concerned about the poor sense of address caused by access off two relatively narrow laneways. This site exhibits the same problems faced with any development off a laneway or at the rear of sites - an inherent inability to provide the same sense of address as dwellings facing directly onto a street. Although I accept that dwellings with primary access from laneways may be relatively uncommon in this part of Glen Eira, it is unavoidable if this site is to be developed for residential purposes. While the condition of the northern laneway and the narrow width of the southern laneway may be less than ideal, they are not factors that would cause me to refuse this permit application. Indeed having two points of access is an advantage in that it provides options as to how the site will be accessed - perhaps depending on who is seeking entry and at what time of the day or night.
[26]
Laneway access and southern laneway drainage and level changes
[27]
The proposal to provide a basement with access from the southern laneway requires the surface to be lowered by around 800mm at its eastern end and tapering to its existing level towards Fallon Street. Council's Traffic Department and Assets Department expressed concern about the impact of lowering the laneway on the ability to access properties on the southern side of the laneway and whether the owners of those properties would agree to the proposal. Concern was also expressed about whether the review site could be satisfactorily drained once the laneway surface was lowered.
Mr Fairbairn gave evidence about the practical ability of lowering the laneway while still maintaining access to the properties on the southern side of the laneway and the feasibility of providing drainage once the laneway was lowered.
On the basis of his evidence I am satisfied that there are no technical reasons why the laneway should not be lowered, although I accept that owners accessing the laneway will need to give their support for such work. I am therefore granting the permit on the basis that the laneway will be lowered so that access can be gained to the driveway and basement garage on the review site. I acknowledge that the works within the laneway will require separate approval from Council and that final details concerning levels, materials and construction can be determined at that time. If for some reason the laneway cannot be lowered in the manner suggested by Mr Fairbairn then the development may have to be amended to take account of those changed circumstances.
[28]
Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.
[29]
Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans with the application / considered by VCAT (identified as 0624Fallo TP-06 to TP-08 & TP-10 to TP-12 & TP-14 - Scheme 10 prepared by Port Philip Building Services) but modified to show:
(a) The whole dwelling (all floor levels) moved southwards by 250mm so that the minimum setback at ground level to the northern boundary exceeds 1 metre. The southern boundary setback will therefore reduce by 250mm for all levels.
(b) Introduction of a 1 metre wide, elevated landscape strip along the eastern boundary of the site between the southern wall of the dwelling and the southern property boundary. The landscape strip is to be elevated behind a retaining wall, set at a height to match the height of the existing retaining wall along the property boundary.
(c) The external steps and landing along the western side of the garage are to be relocated inside the garage along the western wall in the area shown for storage. A pedestrian entrance door, separate to the garage door, is to provide access to these internal steps from the southern paved area. The steps must still provide access to the entry porch at ground floor and the western walls of the dwelling must not be relocated westward.
(d) The area between the western wall of the dwelling and the western property boundary now occupied by the external steps and landing is to be landscaped with screening shrubs.
(e) The western side of the entry porch is to be fitted with a screen at least 1.7 metres high above finished floor level to prevent overlooking into the adjoining property to the west (No 2 Fallon Street).
(f) The steps leading to the porch from the northern courtyard are to be relocated to the northern side of the porch.
(g) The southern opaque privacy screen on the first floor balcony is to be reduced to 1.2 metres in height above finished floor level.
(h) All south facing windows and the balcony screen to be fitted with glazing of a width (12mm minimum) to reduce noise intrusion.
(i) All west facing windows within 9 metres of the property boundary are to be fixed and fitted with obscure glazing to a height of at least 1.7 metres above finished floor level.
[30]
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
Before the commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit. The Landscape Plan must incorporate:
(a) A survey, including botanical names, of all existing vegetation to be retained.
(b) Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.
(c) A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.
(d) Landscaping and planting within all open space areas of the site, including the provision of taller screening shrubs in the area between the western wall of the dwelling and the western property boundary.
(e) A 1 metre wide, elevated landscape strip along the eastern boundary of the site between the southern wall of the dwelling and the southern property boundary. The landscape strip is to be elevated behind a retaining wall, set at a height to match the height of the existing retaining wall along the property boundary.
(f) With the exception of the 1 metre wide raised planting area referred to in (e) above, the area east of the driveway area is to be provided with permeable paving.
(g) One advanced canopy tree (minimum 2.0 metres tall when planted) in the north western courtyard.
(h) Trees are not to be sited over easements.
(i) All species selected must be to the satisfaction of the Responsible Authority.
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 the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
Vehicular crossings must be constructed to the 'Right of Way to suit the proposed driveway to the satisfaction of the Responsible Authority.
[31]
The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.
The decision of Glen Eira City Council was set aside. A permit was directed to be issued for construction of a single dwelling on a lot under 300 m2 at 2A Fallon Street, Caulfield, in accordance with endorsed plans and subject to conditions. The conditions required amended plans and addressed setbacks, landscaping, overlooking, glazing, drainage, environmental audit requirements, access and permit expiry.
ResCode (Clause 54) which I discuss later in relation to amenity impacts, and against which this proposal must be assessed, places great emphasis on designs respecting existing or preferred neighbourhood character. Council's second ground of refusal specifically included the objectives and standards of Clause 54.02 as not being satisfied. In addition to the concerns I have already expressed about applying neighbourhood character descriptions and policy to this unusual site, I also note that various divisions of the Tribunal have in many decisions commented that respecting neighbourhood character does not mean, for example, that new dwellings must replicate the design and scale of existing dwellings, that two storey dwellings are unacceptable just because the existing housing stock is primarily single storey, or that modern designs and materials should be rejected because they introduce new materials or different roof shapes. Change within our urban areas will occur as matter of course and the quite varied character of development that is occurring in the locality is indicative of the ongoing and widespread change that has and is occurring within our residential areas.
Although this is a relatively large dwelling, it will be largely hidden from view behind buildings facing Fallon Street and I am not convinced that it should be refused or altered significantly because it is so discordant or 'disrespectful' to the character of this area of Caulfield. Based on submissions, evidence and my own assessment of the neighbourhood character and the particular site context I do not accept submissions by Council, Ms Apostolellis and Mr Lofting that the proposed dwelling should be refused for reasons concerning neighbourhood character.
Suitably baffled external lighting must be provided at the entrance points/doors to each 'Right of Way' and maintained to the satisfaction of and at no cost to the Responsible Authority.
All piping and ducting, other than for drainage above the ground floor storey of the building must be concealed.
The drainage of the site must be to the requirements of and to the satisfaction of the Responsible Authority. The discharge of water from the land affected by this permit must be controlled around its limits to prevent any uncontrolled discharge onto any adjacent property, street or right of way to the satisfaction of the Responsible Authority.
With the exception of works required for basement excavation and construction, no construction or carrying out of buildings and works must occur until, to the satisfaction of the Responsible Authority:
(b) An environmental auditor appointed under the Environment Protection Act1970 makes a statement in accordance with Part IXD of that Act that the environmental conditions of the land are suitable for the sensitive use.
(c) A copy of the certificate or statement must be supplied to the Responsible Authority.
(d) The certificate or statement must be read in conjunction with this Permit and all conditions of the certificate or statement must form part of this permit.
When approved, the plans will be endorsed and will then form part of this Permit.
The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
The walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a) constructed;
(b) properly formed to such levels that they can be used in accordance with the plans;
(c) surfaced with an all weather seal coat;
(d) drained;
This Permit will expire if:
(a) The development does not start within two (2) years from the date of this Permit; or
(b) The development is not completed within four (4) years of the date of this Permit.