SITE AREA AND DIMENSIONS: The site is constituted by two allotments of land which adjoin each other along their side boundaries, each of which has a frontage to the south side of Agnes Street. No. 8 has a frontage of 15.24m and a depth of 39.62m whilst No. 10 has a frontage of 16.46m and a depth of 50.93m. The combined area is 1,537 square metres.

MEDIUM NEUTRAL CITATION [ 2003] VCAT 1129

A. This application for review is refused, the decision of the Responsible Authority to grant a permit is affirmed and a permit is granted for six dwellings on the land in accordance with the endorsed plans hereafter provided for and subject to the following conditions.

1. 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 accord with the plans submitted with the application (identified as 0206 TP1A, TP2A, TP3A dated Nov 2002 prepared by Lines, MacFarlane and Marshall Pty Ltd) but modified to show:

(a) An increased setback to the garage of Unit 6 from the north (front) boundary by 1000mm to 8800mm (with an associated rearrangement of the laundry and kitchen areas within the approved building envelope).

(b) Relocation of the boundary fence between the private open spaces of Unit 5 and Unit 6 to the south by 1000mm in order that a minimum of 32 square metres of secluded private open space is provided to the side of Unit 6.

(c) Relocation of the visitor car space from the front setback area to the south side of Unit 3 along the south boundary (above the easement in part). Such car space must be 3500mm wide and 5000mm in length, must not protrude into the accessway and must have an internal radius of 4 metres (at its entry).

(d) Rearrangement of the staircase and entry to Unit 3 at ground level to allow for the visitor car space (minimum 3500mm southern setback in part) and subsequent relocation or deletion of the south facing living room window. The upper floor may overhang this 3500mm wide space, provided a minimum height clearance of 2100mm is achieved.

(e) A reduced central driveway width at the entry to 3000mm and a subsequent extension of the front fence of Unit 1 across the frontage (maximum 1500mm high wrought iron). A minimum 1000mm wide landscaping strip must be provided along the east and west side of the 3000mm wide driveway in the front setback area.

(f) The setback of the front fence of Unit 6 increased to 1000mm from the frontage and the 1500mm high rendered front fence associated with Unit 1 reduced in length to 4500mm (commencing at the westernport side) and the balance 1500mm wrought iron fencing. A screen wall must also be constructed at a minimum 1500mm height for a minimum 2000mm length at a setback of 7800mm (projecting west from the dwelling) for additional privacy to the side courtyard.

(g) Minimum 6000mm wide accessway alongside the garages of Units 1 and 2, plus a minimum 1000mm setback from such accessway to the family room and living room windows of Unit 5 and the meals window of Unit 6. In addition, the sill height of the living room window of Unit 5 must be at least 1400mm above the accessway.

(h) Incorporation of eaves (minimum 450mm wide) to the pitched roofs of Units 1 and 6 (upper floor) and an increased setback to the north facing wall of Bedroom 2 of Unit 6 on the upper floor by 800mm to 8600mm (to be absorbed within the approved building envelope).

(i) A minimum 2000mm setback to the garage of Unit 5 from the east boundary.

(j) The doorways of the garages of Unit 2 and Unit 6 for pedestrian access must open outwards to prevent interruption with parked vehicles.

(k) An increased setback of Bedroom 3 on the upper floor of Unit 5 by a minimum of 500mm from the east boundary (to be absorbed within the approved building envelope).

(l) No part of Unit 4 (including the garage) to project over the rear 1.83 metre wide easement.

(m) The central crossing widened from 2700mm to 3600mm.

(n) Incorporation of opaque glass to the upper floor, south facing bathroom window of Unit 3.

When approved, the plans will be endorsed as evidence of their approval.

2. 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 development does not start within two (2) years from the date of this Permit; or

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

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.

4. The development must not commence until a Development Contribution Fee has been paid to the Responsible Authority. The fee payable must be calculated in accordance with the Schedule to the Development Contributions Plan Overlay of the Glen Eira Planning Scheme.

5. Before the commencement of the development and/or use Lot 1 on PS31423 & Lot 68 on PS12717 must be consolidated under the Subdivision Act 1988.

6. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.

7. Floor levels shown on the endorsed plans must be confirmed. This confirmation must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 1994. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the subfloor inspection.

8. All outdoor lighting must be baffled and/or located, to the satisfaction of the Responsible Authority, to prevent light from the site causing detriment to the locality.

9. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.

10. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

11. Adequate provision must be made, to the satisfaction of the Responsible Authority, for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles.

All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

12. Provision must be made on the site for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.

13. The walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

14. Prior to the occupation of the development, a freestanding trellis (maximum 25% opening) must be erected above the existing fence on the west boundary at a height of 2200mm for a length of 28 metres commencing at the intersection with the south boundary; east boundary at a height of 2200mm for a length of 35 metres commencing at the rear of the garage to Unit 6; and along the south boundary of Unit 3 at a height of 2200mm for an approximate length of 15 metres above natural ground level, to restrict overlooking into the adjoining residential property to the satisfaction of the Responsible Authority.

15. 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 as evidence of its approval. 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 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.

(e) Advanced canopy trees (minimum 2.0 metres tall when planted) in the following areas:

ix) or 10 advanced trees in locations to the satisfaction of the Responsible Authority.

All species selected must be to the satisfaction of the Responsible Authority.

16. 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.

17. The landscaping as shown on the endorsed Landscaping Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

18. Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

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

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

19. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing crossing or crossing opening no longer required must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

20. External lighting of the areas set aside for car parking, access lanes and driveways must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

B. The Responsible Authority is directed to issue a permit in accordance with the above order pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987.

Mr. Mark Stanojevic, of the City of Glen Eira, appeared for the Responsible Authority.

Mr. John Dikranis, of Dikranis Constructions Pty Ltd, the Respondent Company, appeared on behalf of that company.

Mr. J. Potts, the Applicant for Review, did not appear in person but participated in the hearing by means of a telephone conference line.

Mr. Stanojevic and Mr. Dikranis tendered written submissions.

Application under Section 82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.

Residential 1 under the Glen Eira Planning Scheme and subject to a development contributions plan overlay under the Glen Eira Planning Scheme

1. The number (six) of dwellings is not in keeping with existing dual occupancies in the area. The area has a maximum of two dwellings (only one block has three) on each site (see attached plan of part of the area). For example, the following blocks have only two dwellings:

The following block has three dwellings and is the only block having three in the whole neighbourhood.

2. The number of car parking spaces provided for each unit will cause a spill out of cars into the streets for visitors and/or residents, and will cause even more traffic and parking problems than we have now.

3. The vast decrease of privacy for residents living next to and near development, where the overlooking of existing residents yards and rooms will occur.

4. The Visual bulk of the development is not in keeping with the current streetscape and existing housing and neighbourhood. This will certainly detract from the 'garden' feel the Glen Eira council is trying to promote. A number of residents have moved into this area because of the lack of this type of development. The developments to date in the area have been acceptable, given they are considered to be genuine medium level density housing. To allow this development would be giving way to HIGH-DENSITY housing, and may set an unwanted precedence in the area, thereby destroying the character of the area.

5. A precedence (sic) has been set by the refusal to grant a permit for three double storey dwellings on the site of 1 Filbert Street, East Bentleigh. Refer to GE10412 dated 11/12/1998. This block was 856 square metres. This was rejected by both the Glen Eira council AND VCAT on appeal. Only two double storey dwellings have been approved to be built on that site, and one is now complete. See attached refusals for this property from Glen Eira council and VCAT.

6. The bulk of the dwellings will also create more noise due to the fact that noise will bounce off the walls and back into the neighbourhood unnecessarily. When living in such close proximity to other houses a larger number of people living in a smaller place will make noise much more difficult to control, particularly when the driveway may be alongside existing housing.

7. This development is certainly not in keeping with the intention of medium density housing nor the sub division of the blocks in the whole area.

In closing the general consensus amongst the residents contained in this objection would not have an issue with four dwellings on the blocks, and depending on the type of structure may even feel that four double storey dwellings may be in keeping with the area. However at this stage it is strongly felt that two double storey dwellings at the front and two single storey dwellings at the back would be most appropriate and in keeping with the precedence (sic) set in the area.

1. A hitch arose in relation to the hearing of this matter. At the time the hearing was to commence, there was no appearance by or on behalf of Mr. Potts, the Applicant for Review. When he did not appear, enquiries were made by Tribunal staff. Contact was made with him by telephone. He claimed not to have received notice of the hearing, although the other parties had received their notices. With the concurrence of all parties, the hearing then proceeded with Mr. Potts participating by means of a telephone conference line into the hearing room.

2. The review site is a substantial parcel of land with a total area of 1,537 square metres. It is located within a Residential 1 zone, but on the periphery of that zone. The rear boundary is to a Business 1 zone forming part of the Bentleigh East neighbourhood centre. The site is a suitable one for a medium density housing development because of its substantial size and because of its locality in proximity to public transport and the neighbourhood centre. This proposition was recognised on all sides.

3. The proposal is for an integrated development using both of the allotments as one site. The proposed six townhouses would be arranged with three on each lot, stepping back along it on either side of a common driveway at or near the common boundary between the allotments. This would be a curvilinear driveway with reasonably generous provision for landscaping. Each townhouse would be of two storeys. The presentation to the street would be substantially of one double storey house at the front of each of the allotments, set back suitably from the street frontage. The other two dwellings on each allotment would be substantially hidden behind the front dwellings, so far as views from the public street are concerned, although oblique views from further along the street would indicate development on the rear portion of the site, and this would be visible to an extent because other existing housing in the area is single storey.

4. The proposal is not for a single two storey building stretching right down each allotment, all are two storey in height. Articulation has been achieved by each dwelling being separate from the other, being joined only by garages at ground floor level. Each dwelling will have a family room, meals area, living and dining area with three upstairs bedrooms and a double garage. Each will have a double garage and there would be a further visitor car space. The central driveway would serve the garages for five of the units, with a second crossing leading to the garage for the other one.

5. The integrated nature of the proposal, and substantially common use of a single driveway, means that the proposal has more space available for other purposes than if the two lots were separate with three units on each and, of course, a driveway on each.

6. At the beginning of the hearing I said that I had read the Tribunal file, including the officer's report to the Responsible Authority and the notice of decision issued by the Responsible Authority. I had also examined the plans. I was thus familiar with the proposal, and the view that the Responsible Authority had taken in relation to.

7. Mr. Potts had been an objector to the proposal. There were some other objectors. In his application for review, he purported to represent other un-named "objectors". It appeared that some of them may not have in fact been objectors. In any event, I indicated to him that technically he was the only applicant for review, but this need not inhibit him in any way in relation to arguments that he wished to put forward on his own behalf or, for that matter, with other residents of the area in mind. The hearing proceeded on that basis. It was agreed that Mr. Potts should go first. The hearing proceeded with an examination and discussion in relation to each of the grounds of review set out in his application for review. In the course of this, he put forward his points in relation to the concerns raised in relation to the proposal. These were discussed and examined. In the course of this discussion I indicated the views I formed on the various points, thus giving him an opportunity to put forward further points or arguments against any of the points I made as we proceeded. In fact, he accepted that several of his grounds of review are not sustainable in relation to the current proposal and he withdrew his reliance upon them.

8. In the course of the hearing he demonstrated an intelligent appreciation of the issues relevant to the review.

9. At the conclusion of the presentation of his case I was in the position that I had heard all that there was to be urged against this proposal, the Responsible Authority having determined to grant the permit and the permit applicant company, of course, supporting the grant of a permit. I might add, in this connection, that the Responsible Authority, in reaching its decision to grant a permit, did not simply accept all the company had proposed. On the contrary, the decision to grant a permit was subject to a number of conditions which, amongst other things, required a number of modifications to the proposal. There was no review by the company against any of those conditions. It accepted them.

8. At the conclusion of the case put by Mr. Potts, I was in a position to announce my decision and to give oral reasons, in so far as they had not already been given in the course of the discussion of the particular points in the course of Mr. Potts' case. My decision was that I agree with the Responsible Authority that the grant of a permit, in accordance with its notice of decision to grant a permit and incorporating the conditions and alterations it required, would be appropriate. I said that the decision of the Responsible Authority would be affirmed.

9. Having given my reasons orally in the course of the hearing, I will content myself here with a brief summary.

10. Mr. Potts, in recognising the site as suitable for medium density development, argued that a maximum of four dwellings should be allowed, not the six proposed. He pointed to a number of other sites in the area and referred to other cases where an additional dwellings had been permitted making two on an allotment, but not three. In one case, three had been refused with an indication that two would be appropriate. I was not quite clear whether that case was a full hearing by the Tribunal or one that had been determined by mediation and agreement. There is one allotment he referred to as having three dwellings. He was also concerned about creating a precedent for three dwellings on an allotment.

11. The doctrine of precedent, as applied to legal questions in court, does not apply before this Tribunal. The Tribunal does pay respect to its previous decisions, but is not bound by them. Each case has its own differences and is, of course, in relation to its own site. An appropriate proposal for this site should not be refused on the basis that it might be argued to justify an inappropriate proposal, at a later stage, in relation to another site. The remedy there is to approve this one and refuse that one, if the second one is indeed inappropriate. Having regard to these circumstances, and to the size and nature of the site, not forgetting the advantages of it being an integration of two allotments, I concluded that three units on each block giving a total of six for the integrated site was acceptable and appropriate. In fact future opportunities for a consolidation of two adjoining sites, whilst not impossible, is uncommon.

12. The number of car parking spaces provided, including an on-site visitor space is in accordance with an appropriate provision of on-site parking and in accordance with the indications given in the ResCode provisions of the Planning Scheme. Whilst some people may use their garages for storage, and park on the street, that has to be a matter for themselves. That can occur in relation to detached houses, as well as to a medium density development of townhouses. Planning is concerned to ensure that suitable provision is made on site. Some people may not have two cars, or even one car. If there is some on-street parking, that is not inappropriate. It is for the Council to impose any parking restrictions it thinks necessary or appropriate. Mr. Potts pointed out that proximity to the neighbourhood centre means that there is some parking in the street attributable to the presence of the activity centre. I have no reason to doubt him as to this, but the Responsible Authority has imposed no restrictions and, having regard to the appropriate provision being made, and to the fact that the peak for activity centre related parking is during the day whereas residents need parking, generally speaking, is at night, there is no valid objection on the basis of parking. In fact this locality is in a favourable position from this point of view, compared with those suburbs developed before motor cars were common and where little or no off-street parking is provided.

13. The third point raised by Mr. Potts is in relation to privacy and the concern about overlooking neighbouring properties in relation to their windows and private open space areas. However, this was not persisted in when it was realised that the proposal as designed, and as controlled by conditions, ensures protection in this regard.

14. He is concerned about the visual bulk of the building. However, upon examination it was found that this is acceptable. As mentioned before, in substance the presentation to the front street is of two double storey houses, just as the present presentation is of two houses, although they are of one storey. This is not one of those great monolithic proposals that is objectionable from a bulk and height point of view. The degree to which some indications of further development behind the front two dwellings will be apparent, is acceptable. I am unable to accept that presence of two storey dwellings amongst single storey dwellings is inappropriate or out of scale, and I do not accept that a neighbourhood character where single storey dwellings happen to predominate is adversely affected by the introduction of some double storey dwellings. Single and double storey dwellings are correctly regarded as being appropriate together and in scale with each other. No doubt some particular proposals might be objectionable in terms of height and bulk, but this is not one of them. I am merely indicating that there is no valid principle against an appropriate two storey structure in the vicinity of single storey structures. It might well be different in relation to three or four storeys.

15. The potential for the general of noise is not a reason to refuse this proposal. It is possible to have neighbours who indulge in frequent loud parties, but that can occur in relation to detached houses, just as well as in relation to medium density townhouses. The prospect of finding oneself in close proximity to neighbours who create noise nuisances of that sort is one of the risks one takes in living in an urban area. Of course, if the noise generation amounts to a nuisance there are other laws appropriate to deal with that sort of problem. I do not accept that vehicles driving into and out of the site along the driveway and over the crossing onto the street would create an inappropriate noise. Vehicle speeds in these circumstances are necessarily low and generally quiet. There is the possibility of some high revving motor car enthusiast with an inadequate muffler, but that again is just as likely in relation to a detached house and like loud parties, is subject to the laws against creating nuisances. I recognise that nuisances of this sort can occur, but if that was a reason for refusal there would be no more residential development. Children playing, people talking, motor mowers operating and the like are all part of the ordinary incidents of life in an urban situation. They are part of the give and take of urban life that neighbours are obliged to accept (unless the problems get to the stage of being nuisances against which the law provides protection).

16. Mr. Potts' other points were really re-iterations of points already made in relation to precedent, bulk and number of dwellings on the site.

17. I indicated that I would grant a permit in accordance with the notice of decision to grant a permit issued by the Responsible Authority subject to some modifications to wording and the elimination of the notes that appear in the notice of decision. It is not that notes intended to convey information or warnings cannot be included in a permit document, but they are not strictly part of the permit and I do not propose to include them in my order.