Mr Gobbo called expert evidence from David Crowder (town planner) of Ratio Consultants and John Patrick (landscape architect) of John Patrick Pty Ltd.

Jennifer Bowdern, Legal Support Planner of Bayside City Council.

Peter Barber, Director, Urban Edge Consultants Pty Ltd represented all respondents.

Mr & Mrs Cyglere and Phillip Riggio also appeared in person.

Development of the land with 13 dwellings in the form of an apartment style development, comprising a two storey plus attic building over a basement car park.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01-4 to develop more than one dwelling on land within the Residential 1 Zone.

Clause 43.02-2 to construct buildings and works on land within the Design and Development Overlay.

Clauses 11, 12, 15, 16, 21, 22.06, 32.01, 43.02, 55 and 65.

The land is a corner rectangular allotment of some 987 square metres, with a frontage to St Kilda Street of 21.59 metres and a sideage to Martin Street of 45.72 metres. The land presently supports three dwellings, consisting of a single storey dwelling and two apartments within a double storey building, both of which are attached to each other.

Access to the site is currently gained off Martin Street. The intersection of St Kilda and Martin Streets is signalised.

The Tribunal inspected the site and surrounding context on 31 May 2012.

RJL Properties Pty Ltd v Bayside CC [2012] VCAT 302.

1. Bayside City Council has determined to refuse the grant a permit for the development of a two storey plus attic building comprising 13 apartments above a basement garage. It made this decision having regard to the requirements of its Design and Development Overlay, the character of the surrounding area, the scale and bulk of the proposed development and its level of compliance with various ResCode standards. The Council has also raised a ground in relation to the ability of the site to achieve water sensitive urban design.
2. The Applicant has sought a review of the Council's decision. It contends that the proposal is an appropriate response to the surrounding neighbourhood character, which they say comprises a variety of robust building forms. They also oppose all of the Council's grounds of refusal.
3. A number of nearby residents support the Council's decision primarily expressing similar concerns to those identified by Council. In addition they set out grounds relating to the extent of traffic and car parking difficulties experienced in the local area, in particular Martin Street, and the impact this development will have on the nearby streets. A series of direct amenity impacts are also raised by the immediately adjacent land owners.
4. The key issues or questions for determination therefore are:
   • (a) Is the proposed built form an appropriate response to the neighbourhood character?
   • (b) Is the proposed built form an appropriate response to the Design and Development Overlay?
   • (c) Does the proposal achieve appropriate compliance with the Rescode Standards and Objectives?
   • (d) Are the potential off-site amenity impacts appropriately addressed?
   • (e) Will the development cause unreasonable traffic and car parking impacts in the neighbourhood?
   • (f) Can the proposal achieve an appropriate water sensitive urban design?
5. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, I have decided to set aside the Council's decision and direct the grant of a permit. My reasons follow.

Is the proposed built form an appropriate response to the neighbourhood character?

1. Ms Bowdern and Mr Barber submitted that as the site was not within a Residential Opportunity Area pursuant to Clause 21.02 of the Bayside Planning Scheme, that there was a heightened expectation that the proposal would implement the Preferred Future Character Statement (PFCS) and Precinct Guidelines for this area. They argued that there was a number of differences between this policy statement and the proposed development, namely the desire for: a spacious garden setting; well articulated facades and roof forms which minimise the dominance of buildings in the street; the use of a variety of building materials; and, provision of open style fencing.
2. Ms Bowdern and Mr Barber were both particularly critical of the Martin Street presentation, with its large built form and roof form, lack of variety in materials, minimal setbacks, high solid fencing, lack of visible garden and wide basement access ramp with little landscaping either side.

1. Council's Neighbourhood Character Policy is contained at Clause 22.06 of the Bayside Planning Scheme. Within it the site is identified as being within Character Area C1, which is provided with a PFCS and a comprehensive series of Precinct Guidelines consisting of Objectives, Design Responses to achieve those Objectives, and things to Avoid.
2. Before we go on, it is important at this point to recognise a key difference between this policy and others that are often found in metropolitan planning schemes. While the Bayside Neighbourhood Character Policy follows a usual and common format, it differs in that the Preferred Future Character Statements are written in a style of identifying and describing the existing neighbourhood character. This is evident in the PFCS which applies to Precinct C1:

The mix of dwelling styles, including a substantial presence of pre WW2 dwellings, sit within spacious gardens and do not dominate or overwhelm the streetscape. Garden plantings, and well-articulated façades and roof forms, assist in minimising the dominance of buildings from within the street space, as well as providing visual interest. Front setbacks allow planting of substantial trees and shrubs and side setbacks on both sides maintain a sense of spaciousness in the area. Trees are a mixture of exotic and natives, with an increasing frequency of traditional coastal and indigenous species, strengthening the visual connection of the area with the coast. Open style front fences retain an ability to view buildings from the street. Buildings fronting the foreshore reflect their setting and provide a visually attractive built form interface with the reserve.

1. Therefore, while they are called PFCS, in fact what is sought by policy is adherence to the policy description of the existing character.
2. The introduction to the Neighbourhood Character Policy contains the following statements on Exercising Discretion at Clause 22.06-3.

Where a permit is required to develop or subdivide land in residential areas it is policy to take into account:

• The preferred future character and the precinct guidelines including objectives, design responses and avoid statements for each precinct as described in this policy.
• The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.
• Whether the site is located within a residential opportunity area as shown on the Strategic Framework Plan of the Municipal Strategic Statement and the extent to which this may alter the relevance of the design responses to consideration of the proposal.

1. The first dot point is the analysis that Ms Bowdern and Mr Barber took me to. I will come to the relevance of that analysis later. The site is not within a residential opportunity area and so the third dot point does not apply. The second dot point requires an analysis as to whether the character of the area surrounding the review site is consistent with the PFCS, remembering that the PFCS is really just an identification of what the authors recognised as being the existing character within the precinct.
2. Precinct C1 is a large area. It covers a strip of land orientated north/south between New Street to the east and the Port Phillip Bay to the west[2]. From north to south Precinct C1 extends for some four kilometres. It is therefore not unreasonable to expect that some parts of this Precinct may exhibit a different residential character to the statement adopted in the planning scheme.
3. As one resident was at pains to point out, the review site is located within a part of Brighton known as the Golden Mile. This is a residential area located between St Kilda Street and the Port Phillip Bay. For many people, it is a desirable place to live. It is well known for its grand dwellings and high levels of residential amenity.
4. In characterising this neighbourhood I have focussed primarily on the properties fronting Martin Street between the Bay and Drake Street, and those fronting St Kilda Street for a short distance either side of the review site. I do however recognise that properties and streets more distant from the review site also contribute to the character of this neighbourhood.
5. I find that many components of this neighbourhood's character differ substantially to the PFCS that applies to Precinct C1. Firstly, the dwellings are quite grand in their proportions, many can rightly be called mansions, and they often dominate the streetscape. Secondly, many of the dwellings, in maximising the potential floorspace, are not located in spacious garden settings. They do not contain substantial trees nor setbacks from side boundaries to create a sense of spaciousness. Thirdly, many dwellings are constructed in a limited number of materials, and with a relatively low degree of façade articulation, considering the relative sizes of the facades. Finally, a number of dwellings are provided with high solid front fences, and not only those that front the busier St Kilda Street.
6. I therefore find that these four key facets of the PFCS for Precinct C1 are not replicated in the character of the neighbourhood that surrounds the review site. I must be clear here. I am not saying that these qualities are not found in any dwelling that is located in the surrounding neighbourhood. To the contrary, there are a number of older style dwellings that are more modest when viewed from the streetscape, and which are located in spacious garden settings. The dwelling immediately across Martin Street from the review site is one such example. However the time when this neighbourhood was characterised by such dwellings has come and gone, and now the neighbourhood is characterised by more grand homes that represent an entirely different character.
7. I will not even call this new character an emerging character, as that gives some impression that there might be some balance between the old and new characters in this neighbourhood. In my view that type of balance has been passed some time ago. The surrounding neighbourhood character is now dominated by larger built forms with little variation in building materials, limited landscaping and high solid fences.
8. That finding has some significant implications for the application of policy. It means that Clause 22.06-3 is directing me, in my exercise of discretion, to be guided by to the existing neighbourhood character, as I have described above, rather than the PFCS and the associated Precinct Guidelines. Having regard to this policy guidance, I therefore find that I need to assess the proposed development against the existing neighbourhood character as I find it surrounding the review site.

1. It was conceded by all parties that the presentation to St Kilda Street was appropriate, and reflective of the style of presentation commonly found along this main road. Having inspected the site and surrounding area, I endorse those submissions, as it applies to the eastern façade of the proposed development.
2. However, oblique views will also be gained from St Kilda Street to the northern elevation of the proposed building. Views to this elevation are available across the currently vacant parcel of land immediately to the north of the review site. I was provided by Council with a set of endorsed plans for the construction of a nine bedroom dwelling that has been approved for that vacant allotment. That dwelling is sited such that these oblique views to the northern elevation of the proposed development from St Kilda Street will be maintained.
3. The northern elevation in the substituted plans contains a 36 metre long presentation of a 4.5 metre high ground floor wall setback 2.5 metres, which is of such a height as it also acts as a balustrade to the first floor balconies. Above that sits trellis as screening to balconies, above which sits a first floor wall setback 4.1 metres, capped by the attic roof. It is, in my view, a monotonous and uninteresting elevation.
4. During the course of the hearing I expressed my concerns about this elevation to Mr Gobbo, who responded by producing plans demonstrating how the elevation can be provided with variation and relief. This is primarily achieved by providing breaks in the first floor balconies, and projecting Apartment 9 towards the northern boundary by 300mm, in order to achieve a variation in roof form.
5. I am generally satisfied with these suggestions, save for one item that I discuss below. I am also satisfied that the suggestions can be endorsed without further reference back to the adjoining property owner to the north, who is not a party to these proceedings. While Apartment 9 steps ever so slightly closer to this adjoining property, the difference in setback of 300mm will not cause any unreasonable amenity impacts, and indeed the breadth of changes will vastly improve the presentation to the adjoining property to the north.
6. The plans presented by Mr Gobbo did not seek to reduce the height of the ground floor wall where it no longer needed to serve as a balustrade to balconies at either end of the northern façade. I raised this with Mr Gobbo on receipt of the plans, and after receiving instructions he advised that the ground floor wall in these locations can be reduced by 750mm. I am satisfied that these changes will achieve a northern elevation with some variety and interest that will present appropriately to the adjoining property to the north and on oblique views to St Kilda Street. I will provide for these changes by way of conditions.

1. Despite the significant criticisms of Council and the residents, I find that the Martin Street elevation is an appropriate contextual response to the review site and surrounding neighbourhood character. I make this finding for the following reasons:
   • (a) The scale of the building will be commensurate with the larger homes found in the surrounding neighbourhood, which represent the prevailing neighbourhood character. The two storey scale is consistent in height with other surrounding two storey dwellings, and the roof pitch is not that unlike that found on many surrounding dwellings. While I accept that the width of the façade to Martin Street is somewhat unusual in this neighbourhood (although not that dissimilar to that found at 13-15 Martin Street and collectively at 24, 24A & 24B Martin Street) that is not an unexpected outcome for a medium density development on a corner allotment. Further, I am of the opinion that a relatively high degree of articulation and architectural merit accompanies the wider façade, and thus an appropriate outcome in character terms is achieved.
   • (b) For the reasons which I provide below in relation to my analysis of Standard B6, the setbacks to Martin Street are an appropriate response to the character of corner allotments in this neighbourhood.
   • (c) The extent of high front fencing is consistent with the broader character of the neighbourhood, particularly the properties along Martin Street where high solid front fences providing a high degree of security is a common feature of the newer dwellings, of which there are many.
   • (d) While I accept the submissions put to me that the building has a distinct lack of variety of materials (it consists entirely of the one color render) that is not unusual for this neighbourhood nor for this neo-classical style of building. In this case, articulation is provided not through the use of varying materials, but rather through changes in the setbacks to walls, regular window insertions, projecting Juliet balconies at first floor and horizontal banding to some wall planes. In all the composition of the building is one of variety which does not need to rely on variation in materials.
   • (e) The proposed basement access ramp is not a foreign element in this neighbourhood, indeed many of the newer dwellings have a ramp accessing a basement. The parties were critical of the lack of landscaping either side of the ramp. In my view this has partly been resolved by Mr Patrick's recommendation of another tree to be included to the eastern side of the ramp, which I discuss below. In terms of the lack of landscaping between the ramp and the laneway, this replicates the existing condition on site where a driveway and garage exists hard against the western boundary of the site. Further, I do not consider the laneway to be an interface that requires a landscaped setback.
   • (f) The extent of landscaping opportunities visible from the public realm will be similar to those created on other allotments with high solid front fences. Mr Patrick in his evidence statement detailed the opportunities to establish a further two trees along this frontage, in addition to the landscaping detailed in his landscaping plan. I consider that the overall palette of landscaping will present an appropriate outcome and will actually be more visually appealing than many of the newer dwellings in Martin Street which present little visible landscaping to the public realm.
2. I also find that the proposal is an appropriate character response when viewed from the adjoining property to the west, at 17 Martin Street. It is not uncommon in this neighbourhood for views from dwellings and secluded private open space to take in substantial built forms. This is already evident in relation to this adjoining property which has views to the existing duplex on the review site, albeit at longer distances. If the property at 391 St Kilda Street were to be developed with the approved 9 bedroom dwelling, this would be visible on much closer setbacks from 17 Martin Street as well.
3. The proposed development on the review site is predominantly sited adjacent to the driveway, carport and garage at 17 Martin Street, with a right of way separating the two properties. In my view the relationship of built form between the two properties will be consistent with the character of the surrounding neighbourhood, which often consists of large built forms located in fairly close proximity side by side.
4. I therefore consider that the proposal is an appropriate response to the surrounding neighbourhood character and the Neighbourhood Character Policy at Clause 22.06 of the Bayside Planning Scheme.

Is the proposed built form an appropriate response to the Design and Development Overlay?

1. Ms Bowdern and Mr Barber were both critical of the proposed attic which they submitted did not conform to the requirements of Schedule 1 to the Design and Development Overlay. This is an important matter as if the attic does not comply with definition and guidance provided in the Schedule, then it is considered a third storey rather than an attic, and three storey buildings are prohibited in this area by the Schedule to the DDO.
2. In particular, Ms Bowdern and Mr Barber collectively raised the following concerns with regards to the attic:
   • (a) That the proposed attic floor space was not contained within a roof pitch as required, given that the majority of the floor space essentially had a flat roof;
   • (b) That the proposed attic floor space was greater than 50% of the floor area of the level below, which is listed as a factor indicative of an attic;
   • (c) That the proposed attic contributed materially to the scale and mass of the building form;
   • (d) That the dormer windows contributed materially to the scale and mass of the building form, and are not of minimal dimensions.
   • (e) That because of these factors, the attic failed to meet the design objective, which is, "To protect the amenity and privacy of residential properties."

1. The schedule to the DDO contains a mixture of mandatory and non-mandatory requirements. It is important to understand the difference between the two in order to correctly apply the Schedule. In relation to attics, the following mandatory provision applies:

A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows in the roof must be dormer windows, mounted flush to the roof, recessed or of minimal dimensions.

1. The following definition is then provided for an attic[3]:

A space within a building, contained wholly within the roof pitch, that is not immediately enclosed by vertical external walls and may contain dormer windows, recessed windows, or skylights and does not contribute materially to the scale and mass of the building form.

1. The schedule then provides the following further information:

For the purpose of this Schedule the following factors are indicative of an attic:

• A space which is wholly contained / enclosed within a roof space.
• A space which is not bordered by any vertical external walls except gable walls.
• A space which is relatively small in scale in relation to the scale of the remaining built form.
• The presence of dormer style windows or skylights.
• Does not contribute significantly to the building form.
• A space or series of spaces which in total occupy and area no greater than half the floor area of the storey below.

1. The parties agreed that the factors that are indicative of an attic are not mandatory requirements per se, but are useful tools to determine if a floor is either an attic, or potentially a prohibited third storey.
2. In response to the concerns raised by the parties I find the following:
   • (a) The attic floor is consistent with the definition that is provided of an attic. I find the intention behind the reference to containing the attic wholly within the roof pitch is provided within the definition, in that a space that is enclosed by vertical external walls is not supported. This attic is contained within a pitched roof, which is then flattened at the top in a mansard style so as to reduce the overall height of the building. This does not detract from the fact that the attic floor level is still contained to its outer boundaries within the pitch of the roof, even though part of the roof beyond the pitch is almost flat.
   • (b) The 50% guide is provided as a tool to assist consideration of whether an attic is truly an attic for the purpose of this Schedule. It is one of six such guides that are provided, and there is nothing within the Schedule to say that each of the guides must be met by each and every attic. In my view, a reasonable proportion for an attic depends on a number of factors, one of which is the size of the building as a whole. That is, a larger building will be able to support a larger attic, on a proportional floor basis, than a smaller building. In this case, I find that the extent of the attic, albeit some 59%[4] of the area of the floor below, is designed to have the appearance of a much smaller area and of a true attic. I am therefore not concerned by the failure to achieve the 50% guide.
   • (c) In a recent decision of RJL Properties Pty Ltd v Bayside CC [2012] VCAT 302 I considered a similar proposal for a building with an attic in the same schedule of the DDO but another part of the Bayside municipality. In that decision I had this to say about the scale and mass of an attic.

In terms of the scale added by the attic, which is a factor that was contested by the parties, I find that it is not dissimilar to a pitched roof form one would normally expect to find on a building of this size. It is not obvious that the roof form has been enlarged or provided with an unusually steeper pitch to accommodate the proposed floor plate in the attic. Rather the design achieves an understated approach that confuses the viewer as to the actual size of the dwelling that is contained in the attic. Again the outcome is entirely consistent with the schedule to the DDO, and is precisely the outcome that it contemplates for this location.

Likewise in this proposal, I consider that the roof form proposed for the building is not that dissimilar to a roof form one would expect to find on a building of this size which does not contain an attic, save for the dormer windows. It is of a pitch and style that is common in this area. I therefore find that the attic does not contribute materially to the scale and mass of the building form.

(d) Under the Schedule a dormer window is defined[5] as follows:

A projecting construction to provide natural lighting to attic spaces, comprising a vertical window with its own pitched roof, gable and side walls, framed into a larger sloping roof. Usually several dormers are used for balanced design.

The definition identifies that dormer windows project, that is they are set forward of the pitch of the roof. I therefore find the fact that they project not to be an indication that they are in any way inappropriate. Further, I find that the dormer windows are relatively small in size, being only 1.2 metres in width and not quite floor to ceiling height, and therefore do not add materially to the mass and scale of the building.

(e) Having regard to all of these factors, I therefore consider that the proposed attic will not unreasonably impact the amenity and privacy of residential properties. It was not put to me that the attic will result in any unreasonable overshadowing. I find, for the reasons set out later in this decision, that the attic will also not result in any unreasonable levels of overlooking. While there is some form associated with the attic, I have found that it does not add materially to the scale and bulk of the building. I have viewed the review site from the adjoining property at 17 Martin Street, and I consider that the proposed attic will not cause unreasonable bulk impacts on that property, nor those others that surround it, given the setbacks involved, and the comparative heights of other buildings and roof forms in this neighbourhood. I therefore find that the purpose of the Schedule to the DDO which I was referred to has been achieved.

1. For these reasons I find that the attic satisfies the expectations outlined in the Schedule to the DDO, and is an attic for the purpose of that Schedule. More to the point, the proposed attic is a suitable architectural feature that integrates with the character of the surrounding area and will be a positive design feature of this development.

Does the proposal achieve appropriate compliance with the Rescode Standards and Objectives?

1. While Rescode contains a variety of Standard and Objectives, I was specifically taken to concerns with compliance in relation to:
   • (a) Integration with the street
   • (b) Front setbacks (as they applied to Martin Street)
   • (c) Building height
   • (d) Site coverage
   • (e) Side and rear setbacks
   • (f) Overlooking
   • (g) Internal views
2. I will deal with each of these matters in turn.

1. Ms Bowdern was critical of the extent of high front fencing to Martin Street in that it limited the interaction of the ground floor of the development with the street. I have already found that the extent of solid front fences are consistent with the character of the surrounding area. But this Standard raises a different matter, one that relates to public safety and surveillance of the street.
2. I agree with Ms Bowdern that the extent of high solid fencing to Martin Street is an undesirable outcome in terms of the interaction that results with the street. However, I consider there to be an easy solution to the concern. I will require by way of condition the provision of a permeable fence with rendered piers to the parts of the Martin Street setback adjacent to the main bedrooms of Apartments 1 & 6. In my view this approach will achieve an appropriate balance between providing privacy to the secluded private open space areas for these apartments, while providing opportunities for greater surveillance and interaction with the street.

1. Standard B6 identifies Martin Street as being a side street to which the proposed development will present its front wall. A setback of 3.0 metres therefore applies under this Standard. The proposed development fails to achieve the Standard as parts of the wall facing Martin Street are setback 2.5 metres. Both Ms Bowdern and Mr Barber stated that the non-compliance with the Standard resulted in a development that was in contrast to the surrounding neighbourhood character, and therefore the Objective was also not met.
2. As illustrated in the site context plans submitted as part of the permit application, it is evident that the three other corner allotments at the intersection of Martin and St Kilda Streets each have relatively small setbacks to the side street, being between 1.84 and 2.4 metres. There is therefore an established character of corner allotments having small setbacks to the side street, specifically Martin Street.
3. The proposed development, at a minimum setback of 2.5 metres, will therefore have the largest setbacks of all of these four corner allotments to this intersection. While the proposed building will also be the largest of those on the four corner allotments, it is also highly articulated with setbacks ranging from 2.5 to 3.6 metres. Further the landscaping and fencing treatments within the setback to Martin Street will be reflective of those found on the other corner allotments in this neighbourhood.
4. I therefore find that while Standard B6 is not achieved, the applicable Objective is achieved as the setbacks respect the neighbourhood character.

1. Standard B7 sets a maximum building height of 9.0 metres for the review site. The proposed height is 10.33 metres. According to Ms Bowdern and Mr Barber, this was indicative of an outcome inconsistent with the surrounding neighbourhood character.
2. I have already noted above my observations of the surrounding neighbourhood, it being characterised by rather large and grand dwellings. A number of these are two storeys in height, appear to be of generous ceiling heights, and some are raised above a basement car park. This is therefore not a neighbourhood which will be detrimentally affected by a development of some height.
3. The proposal involves a two storey building of similar heights to many surrounding dwellings, with a roof form of a typical pitch for this area that happens to breach the height limit under Standard B7. For these reasons, and having regard to the height of the surrounding residential development, I find that the overall built form is respectful of the character of this area, and therefore the relevant objective is achieved.

1. Standard B8 for site coverage has been amended by the Schedule to the Residential 1 Zone in the Bayside Planning Scheme to 50%. The proposed development has a site coverage of 58.38%. Ms Bowdern submitted that the purpose of the lower site coverage standard is to ensure that development provide appropriate garden settings, in accordance with the neighbourhood character policies.
2. However, I have already noted that the neighbourhood character policy provides for discretion when the character of an area is different from that described in policy. Further I have found that this neighbourhood is different in a number of ways, including in terms of the spaciousness of its gardens. I therefore consider that a site coverage of 50% should not be strictly applied in a situation such as this.
3. In this case, what the planning scheme requires is not a strict assessment against a quantitative number but rather a qualitative assessment of whether a proposed development is an appropriate fit. In making that assessment one is to consider the character of an area and a number of other relevant factors, including the impacts on adjoining properties. I have undertaken that qualitative assessment and I have found, for the reasons already expanded upon, that the proposal is an appropriate outcome and response to the character of the surrounding area. I also find, later in this decision, that the off-site amenity impacts have been appropriately managed.
4. I further note, that corner allotments are often more intensely developed then mid-block locations, due to their reduced immediate interfaces to adjoining properties. That opportunity is increased in this case as one of the usual direct interfaces to a corner allotment, to the rear, is in this case an interface to a laneway.
5. I therefore find that the objective of ensuring the site coverage respects the neighbourhood character has been achieved.

1. Standard B17 for side and rear setbacks has also been amended by the Schedule to the Residential 1 Zone in the Bayside Planning Scheme. Some of the setbacks to minor projections and part of the attic roofline do not comply with the varied Standard. Ms Bowdern and Mr Barber submitted that the non-compliance with these setback standards was representative of the fact that the proposal was not an appropriate response to the context of the review site.
2. The relevant objective is:

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.

1. I have already made a finding above that the proposal is consistent and respectful of the character of the surrounding area, and given reasons for that finding which includes an analysis of the setbacks to adjoining properties. I do not intend to repeat that analysis here. I also find, later in these reasons, that the proposal will not cause unreasonable off-site amenity impacts as a result of the side and rear setbacks. For these reasons, I find that the objective is achieved.

1. Ms Bowdern was critical of the dormer windows to the attics which she submitted could allow views into the surrounding properties. There are five dormer windows proposed to habitable rooms in the attic. Two face Martin Street and therefore cause no potential unreasonable overlooking. To the extent that Mr Riggio at 387 St Kilda Road raised a concern regarding overlooking to his property to the south of the review site, the separation distance which includes a twenty metre wide road reserve surpasses the nine metre separation within which Standard B22 requires some screening measures.
2. Another dormer window faces west, but is setback 9.4 metres from the nearest property due to the intervening right of way. This window therefore does not need to be screened.
3. The other two dormer windows face north, to the adjoining vacant allotment. Setting aside any argument about whether one screens windows to a vacant allotment, both of these north facing windows are to narrow projections to master bedrooms. Notwistanding that these windows do not serve living areas, they also are designed in a manner where a person within the bedroom itself, and therefore some 2.0 metres away from the windows, could not reasonably overlook the adjoining property. I therefore find that these windows do not need to be screened.

1. Ms Bowdern rightly pointed out that the plans did not show screening between balconies where they abutted one another. It was agreed by all parties that such screening could be required as a condition of permit. I will include such a condition.
2. I therefore find that the proposal is an appropriate response to the Standards and Objectives of Rescode, including those that are varied by the Schedule to the Residential 1 Zone in the Bayside Planning Scheme.

Are the potential off-site amenity impacts appropriately addressed?

1. Off-site amenity impacts are usually measured in terms of overshadowing, overlooking and visual bulk. No party advanced any concerns in relation to overshadowing, which is sensible given the orientation of the review site on the northern side of Martin Street. The relatively minor concern that was raised in relation to overlooking I have addressed already. That leaves the issue of visual bulk.
2. The adjoining owner to the north of the review site was not a party to these proceedings. However Council tabled endorsed plans of an approved dwelling for that site. It was the view of Mr Crowder under cross examination that the proposed development will not cause unreasonable visual bulk to the adjoining property to the north, given the proposed placement of windows and living rooms, and the location of their main area of secluded private open space to their north and therefore away from the review site. I concur with this evidence.
3. I recognise that the adjoining property to the north will not necessarily be developed in accordance with the plans I was presented. However I am satisfied that if it were, then the outcome in terms of visual bulk would be reasonable. If the adjoining owners wished to pursue an alternative proposal, they can now do so in response to this approved development on the review site. The proposed development will not unreasonably restrict the development of the adjoining property to the north for residential purposes. I am of the view that this is an appropriate outcome.
4. During my site visit I inspected the rear yard and main living areas at 17 Martin Street that have an outlook to the review site. As identified in the photographs in Mr Barber's submission, these areas will have a clear view to the review site and the proposed development. However, the fact that the proposed building will be visible is not a fatal outcome of itself. I need to form the opinion that the extent of built form, or the setbacks to that form, or a combination of both will be unreasonable.
5. The proposed development sits adjacent to the carport and garage on the adjoining property, separated by a laneway. Further setbacks of two metres to the ground floor and four metres to the first floor are provided within the review site. The areas of secluded private open space and living areas at 17 Martin Street, while they will have an available view to the review site, are primarily orientated towards the vacant allotment at 391 St Kilda Street and to the north. The tennis court to the north of the dwelling also has views to the sizeable dwelling under construction at 13-15 Martin Street, and views to other large residential buildings are also possible.
6. In my view, the view that will occur to the proposed development will become just one of the many large residential buildings that will be able to be viewed from the property at 17 Martin Street. The proposal employs appropriate setbacks, considering the heights involved, and an appropriate level of articulation, to ensure that the view to it will not be overwhelming, or unusual for this neighbourhood.
7. I therefore find that there will not be unreasonable levels of visual bulk to adjoining properties, and that there will be no unreasonable off-site amenity impacts.

Will the development cause unreasonable traffic and car parking impacts in the neighbourhood?

1. None of the parties argued that the surrounding street network would be impacted by the projected additional traffic that will result from the proposed development.
2. Mr & Mrs Cyglere submitted that, given the average car ownership of Brighton, the proposed supply of resident car parking spaces in the basement will be insufficient. As a result there will be a detrimental impact on the availability of on street car parking.

1. Clause 52.06[6] requires the provision of one resident car parking space for one and two bedroom dwellings and two spaces for three bedroom dwellings. The proposal provides this rate of car parking for residents, and therefore no permit is required to reduce or waive the car parking requirement.
2. I also observe that the average house in Brighton will probably be much larger than the majority of two bedroom apartments that are proposed here. There is every likelihood, therefore, that a lower car ownership rate will apply to the residents of this development.
3. Ms Bowdern raised a number of design concerns with the ramp and other facets of the basement layout. During the course of the hearing Mr Gobbo submitted advice from a traffic engineer which proposed changes to deal with the matters raised. None of the parties opposed the changes proposed by the traffic engineer.
4. I confirm that I consider that the basement layout, with the changes proposed by the Applicant's traffic engineer, will achieve an appropriate car parking provision and access arrangement. I am therefore satisfied in relation to the car parking issues associated with the development.

Can the proposal achieve an appropriate water sensitive urban design?

1. Ms Bowdern for the Council stated that Council's concerns relating to the achievement of an appropriate water sensitive urban design outcome was not sufficient to warrant refusal of the application. Rather, the Council sought for specific conditions to be included on the permit to ensure that an appropriate water sensitive urban design was achieved for the site.
2. Mr Gobbo opposed some of these conditions on the basis that they were prescriptive, and did not allow for a responsive approach to be undertaken to the satisfaction of the responsible authority. He opposed other parts of the conditions on the basis that they provided for plans to be endorsed other than the plans which are the subject of the Condition 1 amendments.
3. I endorse Mr Gobbo's submissions regarding the conditions. I have reworded the conditions to simplify them, and to provide a flexible approach which is to be to the satisfaction of the responsible authority. I consider that this is the correct approach for such conditions, as to specify standards to be met may lock the parties into an outcome when a more appropriate approach may be equally appealing to all parties.

1. I have addressed a number of changes to the proposal above and I will include those in the Conditions in Appendix 1.
2. There was agreement between the parties that a tree management plan should be required in respect of the liquid amber on the adjoining property to the north, but disagreement as to the extent of detail required in the Condition. I have decided to remove much of the detail from the Condition as drafted by Council, and instead require a tree management plan which, based on the basement setback shown on the plans, ensures that the remainder of the tree protection zone is protected from the construction activity on site. This approach was supported by Mr Patrick and I endorse his opinion on this matter.
3. The adequacy of the bin storage area within the basement was addressed by a number of parties. These submissions took on added importance when the Applicant's traffic engineer made recommendations for changes to the basement layout that further reduced the width of the proposed bin storage area. The area nominated on the plans is likely to be too narrow for the necessary storage, but I am satisfied that there remains sufficient flexibility within the basement layout to achieve an appropriate storage area. I will require one to be designed as part of the Condition 1 amendments to the plans.
4. I have also deleted a number of parts of Condition 1 as drafted by the Council which sought substantial changes to be made to the plans of the proposed development. For the reasons set out in this decision I have not accepted many of the Council's arguments that the proposal has significant failings, and therefore have not endorsed many of their proposed conditions.

1. For the forgoing reasons, the decision of the Responsible Authority will be set aside.

Development of the land with thirteen dwellings generally in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans dated 12 April 2012 prepared by Premier Projects Pty Ltd but modified to show:
   • (a) A schedule of all external materials and finishes to be provided to the buildings and works on the land. The schedule must show the materials, colour and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing). The schedule must confirm that the roof is to be of a non-reflective material.
   • (b) Any changes to the plans consequential from the Water Sensitive Urban Design Stormwater Treatment Measures in accordance with Condition 11 of this permit.
   • (c) The proposed landscape treatment for the site in accordance with the requirements of Condition 5 of this permit.
   • (d) All plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally identified on the plans.
   • (e) A notation to confirm that the lift and any lift overrun is to be entirely contained within the roof form of the building.
   • (f) All first floor windows and attic level windows to comply with Standard B22 of the Planning Scheme.
   • (g) A revised bin storage area and any other changes to the plans consequential from the Waste Management Plan in accordance with Condition 12 of this permit.
   • (h) A notation to confirm that the relevant visitor car spaces must be clearly signed as such.
   • (i) Redesign of the northern elevation of the building in accordance with the plans amended 29 May 2012, except that the ground floor wall height to the east of the terrace for Apartment 8 and to the west of the terrace for Apartment 10 must be reduced by 750mm, including where these ground floor walls wrap around parts of the western and eastern elevations respectively.
   • (j) Rationalisation of the structural columns within the basement in accordance with the recommendation of Mr Russell Fairlie in his letter dated 30 May 2012.
   • (k) Amendments to the basement ramp grades and entry to the basement level in accordance with the recommendation of Mr Russell Fairlie in his letter dated 30 May 2012.
   • (l) The replacement of the proposed solid fence with a permeable fence with rendered piers to Martin Street in front of the main bedrooms to Apartments 1 & 6 respectively.
   • (m) A notation that the solid front fence to both St Kilda Street and Martin Street is not to be constructed with strip footings, but rather be of a pier and beam construction so as to allow the root systems of trees to grow under the fence.
   • (n) The provision of an intercom device to allow visitor entry into the basement car park.
   • (o) Provision of a 150mm dimension to the landscaping setback between the fence facing Martin Street and the southern boundary of the review site.
   • (p) The provision of 1700mm high screening to prevent views between the balconies to Apartments 8, 9, 10 & 11 respectively.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. All pipes with the exception of downpipes , 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
4. 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 written consent of the Responsible Authority.
5. Before the development starts, a Landscape Plan generally in accordance with the Landscape Plan (John Patrick Pty Ltd dated April 2012) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
   • (a) The addition of a Crepe Myrtle in the south-western corner of the secluded private open space for Apartment 6 to grow to a height of around 4-5 metres in height at maturity.
   • (b) The addition of an evergreen tree in the south-eastern corner of the site, external to the front fence, to grow to a height of around 7 metres at maturity.
   • (c) Provision of an in ground irrigation system to all landscaped areas.

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

1. Before the occupation of the development starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
2. Prior to the commencement of any buildings and works, a Tree Management Plan must be prepared by a suitably qualified arborist and submitted to and approved by the Responsible Authority. The Tree Management Plan should, by adopting the setbacks depicted in the plans dated 24 November 2011 prepared by Premier Projects Pty Ltd, set the measures required to ensure the on-going protection of the Liquid amber located on the adjoining property to the north, through the consideration of the following:
   • (a) Reduction in the extent of paving within the tree protection zone of this tree outside of the footprint of the basement;
   • (b) Mulching and irrigation of the tree protection zone;
   • (c) Establishment of protective fencing.

When the plan is prepared to the satisfaction of the Responsible Authority, the plan will be endorsed by the Responsible Authority and will then form part of the permit. All directions/recommendations of the report must be adhered to.

1. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority.
2. Before the development begins, three sets of detailed plans indicating the method of stormwater discharge to the nominated Legal Point of Discharge (and Stormwater Detention Systems where applicable) must be lodged with Council's Engineering Services department for approval.
3. Prior to the commencement of any works, a Construction Management Plan must be submitted to and approved by the Responsible Authority. The Construction Management Plan must address, but is not limited to:
   • (a) Hours of construction, control of noise and airborne matter, deliveries, vehicle access, worker car parking, damage to public assets, and contact numbers for complaints.
   • (b) Provision of a truck wheel-wash so that vehicles leaving the site do not deposit mud or other materials on roadways.
   • (c) The covering and maintenance of all roads/storage areas/external stockpiles/or vacant areas to avoid dust nuisance to any residential and commercial premises.
   • (d) All works must accord with the approved construction management plan to the satisfaction of the Responsible Authority.
4. Prior to the commencement of works, a water sensitive urban design report from an industry accepted performance measurement tool must be prepared, submitted to and approved by the Responsible Authority. The report must detail the treatment performance achieved, and demonstrate the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999 and Clause 22.08 of the Bayside Planning Scheme. The Water Sensitive Urban Design Stormwater Treatment System as shown on the endorsed plasn must be retained and maintained at all times in accordance with the Urban Stormwater - Best Practice Environmental Management Guidelines, CSIRO 1999, to the satisfaction of the Responsible Authority.
5. Before the occupation of the development starts, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. Three copies of the plan must be submitted. The plan must include but is not limited to:
   • (a) Provision on the land for the storage of garbage and other solid waste. This area must be graded and drained and screened from public view to the satisfaction of the Responsible Authority.

All waste material must be regularly removed from the site. All vehicles removing waste must have fully secured and contained loads so that no wastes are spilled or dust or odour is created. The Waste Management Plan must be implemented to the satisfaction of the Responsible Authority. The Waste Management Plan must not be modified unless with the written consent of the Responsible Authority.

1. Tree protection fencing must be established around the street tree prior to commencement of any works and maintained until all works on site are complete. The fencing is to be constructed and secured so its position cannot be modified by site workers. The fencing is to encompass the entire nature strip adjacent the works site with the exception of the crossovers. The Tree Protection Zone is to be established and maintained in accordance with Australian Standards 4970 Protection of trees on development sites.
2. This permit will expire if one of the following circumstances applies:
   • (a) the development is not started within two years of the issued date of this permit.
   • (b) the development is not completed within four years of the issued date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Some of the properties immediately along the coast are within a different Character Area.

[3] In actual fact this description is not called a definition but rather it is stated that an attic is identified by that description.

[4] The actual proportion of the attic floorspace compared to the floor below varied with each submission.

[5] Again this is not called a definition in the Schedule but rather acts like one.

[6] During the hearing the operative car parking provision was Clause 55.03-11 or Standard B16. As a result of Amendment VC90 to the Bayside Planning Scheme, on 5 June 2012 Clause 55.03-11 was deleted and Clause 52.06 became the operative provision for car parking for this development. I did not ask for further submissions from the parties in relation to Amendment VC90, as it has no impact on the applicable car parking rates for this development, and no permit is required under the revised Clause 52.06.