Princess Lodge [2001] VCAT 785 (31 May 2001)

Planning List; Banyule Planning Scheme; Residential 1 Zone; Vegetation Protection Overlay; Design and Development Overlay; Good Design Guide; Bush Garden Character; Construct three dwellings; Remove native vegetation; Construct development within drip-line of native vegetation

Respondents Banyule City Council, P & D Bysouth and Others

Before Judge Strong, Acting Vice President, and

The decision of the responsible authority is affirmed and it is directed that no permit issue in relation to planning permit application No. P 534/00 for the land at 6 Sylvan Street, Montmorency.

For the applicant for review: Mr Martin Verhoeven, town planning consultant

For the respondent, Banyule City Council: Ms Frances Hoban, town planner

1. This was an application under Section 77 of the Planning and Environment Act 1987 (P & E Act) to review a decision by Banyule City Council to refuse to grant a permit (in Permit Application No. P534/00) to construct three dwellings on the land at 6 Sylvan Street, Montmorency. The plans accompanying the application show the dwellings sited one behind the other with the front dwelling being two storey and the two to the rear being single storey.

2. At the commencement of the hearing Mr Verhoeven advised that an amendment to the Banyule Planning Scheme (Amendment C1) was likely to be approved by the Minister for Planning in the next few days. Once approved, the removal of native vegetation and the construction of buildings and works with a site cover in excess of 50% or within the drip-line of native trees would require planning permission under schedules to the Vegetation Protection Overlay and the Design and Development Overlay, respectively.

3. Mr Verhoeven asked that the application for permit be amended pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) to include permission under these provisions, should the amendment come into operation prior to our determination of this proceeding.

4. Ms Hoban, on behalf of the Responsible Authority, raised no objection to such an amendment being made and it was acknowledged by both representatives that the issues of vegetation removal, a site cover in excess of 50% and construction within the drip-line of native trees had been matters which the Responsible Authority had taken into consideration in any event. Both representatives were therefore in a position to present argument on those matters that day.

5. Given these particular circumstances, we saw no reason to not allow such an amendment. We have since been advised by the Responsible Authority that the amendment came into operation on 10 May 2001. Accordingly the application for permit has been amended to read:

"To construct three dwellings on the land in accordance with the endorsed plans and to remove the Eucalyptus Melliodora (Yellow Box) shown as Tree No. 5 on the endorsed plans. To construct a building within the drip-line of the Eucalyptus Melliodora (Yellow Box) shown as Tree No. 4 on the endorsed plans and to construct buildings and works with a site cover in excess of fifty percent of the site area of the land."

6. The permit application was lodged with the Responsible Authority in August 2000. The application was accompanied by the report of an aboriculturalist. This report identified and described the condition of the various trees which exist on the site. Following a preliminary assessment of the application by Council Officers, which highlighted concerns in relation to vegetation protection in particular, and which sought further information in respect of the application, the plans were amended. On receipt of the amended plans and the further information the application was directed to be advertised and five objections were received. Two of these, from the immediately abutting residences to the south, were later withdrawn. The grounds for objection were summarised by Ms Hoban as follows:

"* Double storey dwelling at the front of the block is not in the best interest of Sylvan Street residents.

* The proposal is an overdevelopment of the site. Sufficient pervious surface has not been provided.

* The proposed development does not respect the character of the neighbourhood. A more respectful development would have a setback of at least 10 metres.

* Previous double storey proposals have been rejected, possibly because they are out of character.

* Given the topography of the area, which has about a 5 mere fall from the rear to the front of 6 Sylvan Street and a further 5 metres fall to the middle of No. 5 and 7 Sylvan, it does not lead itself to such a development on the high side of the street.

* The proposal envisages the removal of 4 trees from the site. In addition, the proximity of the proposed building to some of the more sizeable trees does not take into consideration their root systems and canopy.

* The proposed 2 storey at the front of the site is not in sympathy with the visual outlook and skyline of the area."

7. On 8 December 2000 the Responsible Authority's delegate considered the application for permit and, consistent with the Planning Officer's recommendation, determined to refuse a permit for the following reasons:

"* The proposed development is out of character with existing residential development in the area.

* The provision of land for tree retention, tree planting and landscaping purposes is inadequate.

* The proposed development fails to achieve a satisfactory level of compliance with the objectives of the Good Design Guide for Medium Density Housing and the Banyule Neighbourhood Character Strategy."

8. The subject application for review was lodged on 14 December 2000. The stated grounds for review are:

"1. The proposal is consistent with the established dwelling types in the area as regards building style, front setbacks, and building materials. In addition, the proposal compliments the existing streetscape character.

2. The proposal provides the opportunity to retain existing trees and for additional landscaping. The setbacks between existing trees and new dwellings are provided generously.

3. The development complies and exceeds all the requirements of the Good Design Guide for Medium Density Housing and the Banyule Neighbourhood Character Strategy."

9. Ms Hoban and Mr Verhoeven both tabled and spoke to written submissions. These, together with the plans, photographs and other documents tendered in the course of the hearing have been attached to the Tribunal file. Mr and Mrs Bysouth and Ms Riley, all of whom were objectors to the application for permit and who forwarded grounds contesting the application for review, advised the Tribunal in writing that they would be unable to attend the hearing. They asked that we have regard to their statements of grounds when considering this application. This we have done.

10. Prior to making our determination we inspected the subject land and surrounding neighbourhood in order to better understand the submissions and evidence presented to us.

11. The subject land is located on the east side of Sylvan Street in Montmorency, approximately 200m from its intersection with Rattray Road. The site is rectangular in shape having a frontage of 18.29m, a depth of 50.29m and an area of 919.8sq m. The site rises to its rear by approximately 6.6m.

12. The site, along with other properties on the east side of Sylvan Street is elevated above footpath level. A 1.1m high stone retaining wall, broken only by driveways to each lot, extends across the frontage to each lot. This wall separates the footpath from a 3m wide nature strip above the wall. As most lots are without a front fence, the nature strip and front gardens above the retaining wall tend to merge together.

13. The site is currently occupied by a weatherboard dwelling in poor condition. This dwelling is set back 7.6m from the frontage. The site also supports a number of well established native and exotic trees, both within the frontage setback and to the rear of the dwelling. The more significant include an Oak towards the centre of the frontage, two Ash Trees along the rear boundary and a Yellow Box (Eucalyptus Melliodora) closer to the side boundary, to the rear of the existing dwelling.

14. Sylvan Street forms part of an established residential area notable for its undulating topography and remnant, native vegetation. Dwellings comprise a mix of styles and materials and are mostly detached and single storey, set within the canopy of indigenous trees. A relatively large proportion of the dwellings are constructed of timber. There is evidence also of recent two-dwelling developments, including next door to the south at No. 4 Sylvan Street and at Nos. 2A, 10 and 12 Sylvan Street.

15. It was submitted by Ms Hoban that whilst the majority of dwellings on the east side of Sylvan Street have setbacks of 7.6m, a not insignificant number have setbacks of between 16m and 17m.

16. The subject land is not particularly well served by shops, public transport and other community services. This is not to say however it is any more isolated than most outer suburban areas. It is within 2.5km of the Greensborough District Centre and the Montmorency Primary School and railway station are within easy walking distance.

17. The three dwellings would be constructed one behind the other up the block, with the existing driveway along the north side of the allotment maintained for access to all three properties. The front dwelling would be two storey and in what might be described as an attic style. Its two, first floor bedrooms and a bathroom would be contained within a steeply pitched, gable roofline. The gable would attain a ridge height of 8m above ground level on its front facing façade and the building would be set back 8m from the frontage with a porch or entry area extending to within 7m.

18. The two front dwellings would provide two bedrooms and the rear dwelling, No. 3, would provide three bedrooms. Double garages would be provided for the front and rear dwellings with a single car garage for the centre dwelling, No. 2. The development would achieve a site density of 1:306.5sq m and the plans accompanying the application indicate that the development would have a site coverage of 41% and a hard surface area, including driveways, of 59.6%.

19. With the driveway extending along the northern side of the property, the private open space areas would be located on the southern side or, in the case of the rear dwelling, on the eastern side of the land. These private open space areas would range in size from 41.1sq m for the front dwelling to 67.5sq m and 84sq m for the central and rear dwellings respectively. Consistent with a majority of properties in the neighbourhood, it is not proposed to construct any front fence.

20. It is proposed to retain all but one of the more substantial trees located on the property. These include the Oak at the front as well as a Black Wattle and a Red Flowering Gum in the front, south-western corner. The two Ash Trees along the rear boundary would be incorporated into the courtyard to the rear dwelling and the Yellow Box, shown as tree No 4 in the arboriculturalist's report, would occupy the courtyard to the central dwelling. This Yellow Box would be located 2.6m from the southern wall to the family room and its canopy would extend across part of the roof of the dwelling. The only native tree to be removed is another Yellow Box shown on the arboriculturalist's report as Tree No. 5. This latter tree stands close to tree No 4 in the courtyard to Dwelling No. 2. It exhibits significant die back of its canopy and it would be fair to say that its removal was not contested with any vigour by Ms Hoban.

21. The subject land is zoned Residential 1 under the Banyule Planning Scheme. Within this zone a permit is required pursuant to Clause 32.01-4 to construct two or more dwellings on a lot.

22. Following the gazettal of Amendment C1 to the Banyule Planning Scheme the land is now covered by Schedule 1 to the Vegetation Protection Overlay and Schedule 8 to the Design and Development Overlay. Pursuant to Clause 42.02-2 on land covered by the Vegetation Protection Overlay a permit is required to remove, destroy or lop any vegetation specified in the relevant schedule to the Overlay. Schedule No. 1 deals with the Plenty River East Area and the vegetation requiring a permit to be removed, destroyed or lopped is "any native vegetation". Accordingly a permit is required to remove the Yellow Box, tree No 5. It is relevant however that among other things, the requirement for a permit does not apply:

"* To pruning of vegetation to remove any part which overhangs an existing dwelling or is within 2m of an existing dwelling."

23. As Ms Hoban correctly observed, if this development proceeded the Yellow Box to be retained in the courtyard to Dwelling No. 2 could be pruned to within 0.5m of its trunk without the need for a further permit.

24. The Schedule provides the following description of the nature and significance of the vegetation to be protected by the Overlay:

"The area contains developed and developing urban areas which have significant natural, habitat and environmental qualities. In recent studies the area has been identified as including areas of State Regional and local fauna and habitat significance. It includes predominantly residential areas supporting substantial remnants of indigenous vegetation of at least local conservation significance, providing habitat for a variety of native birds and arboreal mammals threatened with local extinction. The native vegetation is also recognised as a major contributor to the landscape of the area, its distinctive local character and visual amenity.

The continued viability of the area as a significant environmental resource is under threat from the continued urban development of the area_. Many areas of vegetation have been lost or radically altered, despite tree protection covenants in the most recently subdivided area. The remaining areas of native vegetation have become increasingly fragmented and their habitat value is threatened. Accordingly, the_ protection of the native vegetation and maintenance and enhancement of the habitat for indigenous fauna are of vital importance_."_ (emphasis added)

25. Pursuant to Clause 43.02-2 a permit is required to construct a building or to carry out works unless otherwise provided for under the relevant schedule to the Design and Development Overlay. Schedule 8 provides that a permit is not required for the following:

"* Buildings where the height of any part of the building is less than 8m above the natural surface of the ground directly below that part; or

* Buildings and works located outside the drip line of a tree for which a permit is required to remove, destroy or lop under any Vegetation Protection Overlay or Environmental Significance Overlay also affecting the land."

26. The plans indicate that whilst the height of the two storey dwelling would not exceed 8m above natural ground level, it having a height of exactly 8.0m, parts of Dwellings 2 and 3 would lie within the drip-line of the Yellow Box to be retained in the courtyard to Dwelling 2. Accordingly permission is required under the Design and Development Overlay to construct the buildings and works located within the drip line of tree No 4.

27. The Planning Scheme at Clause 65 sets out guidelines for decision which the Responsible Authority and this Tribunal on review must consider, "as appropriate", when deciding about an application. Clause 65 commences with the following statement:

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

28. The relevant matters to consider under Clause 65 can be summarised as:

* The State and Local Planning Policy Framework including the Municipal Strategic Statement (MSS) and local policies.

* The purpose of the zone or overlay and any matter required to be considered under the zone or overlay control.

* The orderly planning of the area and the amenity of the area.

29. The relevant purpose of the Residential 1 Zone is to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. The subject proposal provides for a type of accommodation, namely small sized dwellings with small courtyard gardens, which could be said to contrast with the majority of dwellings in the wider neighbourhood. As such the development could be said to respond positively to this Residential 1 Zone purpose.

30. At Clause 32.01-4 another relevant matter to be considered under the Residential 1 Zone controls is the Good Design Guide for Medium Density Housing. At page 1:3 of 3 the Guide sets out the following approach to assessment:

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

31. As with Clause 65, an emphasis of the Guide is on "acceptable" outcomes in terms of the objectives and criteria set out within it.

32. The State Planning Policies most relevant to this proposal are at:

* Clause 14.02, referring to general implementation measures for metropolitan development;

* Clause 15.09, dealing with conservation of native flora and fauna;

* Clause 16.02, dealing with medium density housing; and

* Clause 19.03, dealing with design and built form.

33. Taken together the above policies encourage the further consolidation of urban areas, in order to make more efficient and integrated use of land, transport and infrastructure. At the same time the State Policy Framework also seeks to ensure that new infill housing, aimed at implementing these urban consolidation policies, is both well designed, improves housing choice, respects the character of existing neighbourhoods and does not adversely affect the conservation and habitat value of areas of significant vegetation, or bio-diversity.

34. The Local Planing Policy Framework reinforces the State policies. The Municipal Strategic Statement identifies "nine key elements" including objectives, strategies and methods for implementation in relation to each element. Taken together these elements are said to "form the strategic land use and development framework plan for Banyule". The key elements relevant to this application are the Residential, Natural Environment and Built Environment Elements.

35. The objectives for the Residential Land Use Element are:

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

* Additional dwellings to stabilise Banyule's residential population.

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

36. Strategies for achieving these objectives include:

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

* Encouraging greater diversity of housing in terms of style, size, affordability and tenure.

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

* Encouraging high quality architecture and urban design."

37. Objectives for the Natural Environment Element include:

"* An environment whose distinctive characteristics are protected and enhanced, in which bio-diversity is maintained and which is ecologically sustainable into the future.

* Protection and enhancement of areas of floral, faunal or habitat significance.

* Protection and enhancement of Banyule's natural environment as habitat for indigenous wildlife."

38. Strategies to achieve these objectives include:

"* Discouraging land use and development which would have a detrimental effect on Banyule's environmental or conservation values.

* Ensuring that areas supporting remnant vegetation and natural habitat are protected.

* Encouraging the enhancement of natural habitat and areas supporting remnant vegetation."

39. Finally, in relation to Element 6, the Built Environment, objectives to be achieved include:

"* A safe, attractive and high quality built environment.

* New buildings whose design, form and bulk are consistent with or make a positive contribution to the character of an area.

* Protection and enhancement of the amenity of Banyule's diverse landscape values."

40. Strategies for achieving the above objectives include:

"* Protecting and enhancing residential streetscape.

* Encouraging additional or replacement planting consistent with the landscape character of the area in association with new development or redevelopment.

* Encouraging dwelling designs, densities and site layouts which will ensure the protection and enhancement of neighbourhood and landscape character.

* Discouraging architecture and urban design which would be detrimental to identified streetscape and neighbourhood character."

41. The local planning policy at Clause 22.07, referring to Residential Neighbourhood Character, and which was introduced by Amendment C1, has as its objectives:

"To ensure that development complements and respects the desired future character of the area.

To retain and enhance the identified elements that contribute to the desired future character of the area."

42. The subject land is located within a Bush Garden Area - Precinct 1 of this policy. The policy objectives for Bush Garden Areas and statements of desired future character for the various precincts are set out at Clause 22.07-5. The desired future character for Precinct 1 reads as follows:

"The area's valued tree dominated character, is to be retained and enhanced by:

* designing new buildings and extensions in a scale and style sympathetic with existing dwellings.

* ensuring buildings do not penetrate the predominant tree canopy height.

* positioning new dwellings in keeping with the setbacks of nearby dwellings.

* retaining existing high canopy trees, and space around them to ensure survival.

* minimising the excavation and site coverage of buildings and paving of sites.

* discouraging the construction of front fences where few exist at present."

43. We believe the principal question to be answered in this proceeding is whether the proposed development represents an acceptable balance between the clear policy support for increased densities and greater diversity of accommodation in established urban areas and the equally clear encouragement for new development to respect and make a positive contribution to the identified bush garden character of this neighbourhood and to avoid having a detrimental effect on remnant native vegetation and its habitat values.

44. The most important issues in contention were whether the development made sufficient provision for the planting of native vegetation and for the on-going health and maintenance of the Yellow Box in the private open space area to Dwelling No. 2 and whether the design and scale of the two storey front dwelling would be dominant in the streetscape and thereby detract from the character of the neighbourhood.

45. There was no real suggestion that the proposed development would have any direct amenity impacts on abutting land, or perhaps more correctly, no impacts that could not otherwise be addressed through permit conditions. Ms Hoban expressed some concern in relation to the potential for overlooking from two, south facing windows in the front dwelling but accepted that a permit condition requiring screening along the fence line could address this issue.

46. Turning then to the question of the Yellow Box Tree in the private courtyard of Dwelling 2.

47. According to the report of Mr Steven Frank, the arborist retained by the applicant, this tree is in "fair health, has a useful life expectancy of between 20 and 50 years and is a reasonable specimen of high landscape value".

48. This tree is approximately 11m high. It has a breast height diameter (DBH) of 47cm. The bulk of the foliage is about 6m above ground level and there is no foliage to speak of below 3m. With a life expectancy of another 20 to 50 years we must assume that it can be expected to increase in size significantly.

49. The courtyard to Dwelling No 2 would be 9m x 7.2m. The Yellow Box would occupy a central position in the courtyard on its east-west axis. On the north-south axis it would be approximately 2.6m from the south facing double doors leading from the meals area to the courtyard and approximately 4.1m from the boundary fence.

50. The Arborist refers to optimum and critical root zones. These are based on research by N. Matheny and J. Clark (1998) and C. Mattheck and H. Breloer (1997). According to Mr Frank an optimal root zone will provide a tree with "enough space to be sustained in the landscape". For a tree of this size the optimal root zone is 4.2m measured to the outside of the trunk. The southern wall of Unit No. 2 is 2.6m from the outer face of the Yellow Box. This development does not allow for an optimal root zone.

51. The critical root zone for a tree of this size is 2.3m. Mr Frank advises that the critical root zone "might maintain the structural integrity however the tree's health and longevity in the landscape could be compromised". The Council Policy Framework requires not only the retention but also the enhancement of landscape values. To this end the future character statement speaks of retaining existing high canopy trees and "enough space around them to ensure survival". We agree with the Responsible Authority that the objective in relation to significant trees, such as this Yellow Box, must be to provide optimal root zone protection.

52. The Arborist, noting that an optimal root zone cannot be provided for this development, is nevertheless of the opinion that with pier and beam foundations and with special care during construction, there will be sufficient space to "sustain the tree into the future". Unfortunately the Arborist was not made available for cross-examination so we are unclear about what he means as to "future". We note also that in his report he based his opinion on a setback of 3m to the southern wall whereas our reading of the plans reveals a setback of 2.6m.

53. We have not been able to be persuaded by the evidence that the measures proposed by Mr Frank "will sustain" this tree in the landscape. We accept his opinion that the tree is a "reasonable specimen of high landscape value". Having regard to this and the clear policy imperative for such trees to be maintained we do not believe that its future should be put at risk if at all possible.

54. We also agree with the Responsible Authority's submission (paragraph 6.10) that-

"The majority of the private open space of dwelling 2 is occupied by the existing Eucalyptus Melliodora (Yellow Box) (tree 4). The useability for functions normally associated with such areas is, therefore, severely restricted. Given the proximity of the tree to the dwelling it is not unreasonable to anticipate that future inhabitants will seek its removal to improve the useability of this space and avoid possible danger that the tree may pose."

55. Being directly in front of and approximately 2.6m distant from the rear double doors, we think that with time, if not immediately, the tree will dominate the courtyard.

56. Ms Hoban also noted that once Unit 2 was constructed, the provisions of the Vegetation Protection Overlay would not prevent the pruning of any part of the tree that lay within 2m of the dwelling. We think that this is a very relevant matter to have regard to. It confirms the very real need for there to be harmony between the size, shape and location of this tree and any dwelling built on this land. As presently configured, the proposed development would be the source of near certain tension between the tree, Dwelling No. 2 and its occupants.

57. Mr Verhoeven, on behalf of the applicant, sought to answer this criticism. He said anyone who purchases Unit 2 will do so knowing the tree is there. Indeed, the tree may be one of the very attractions which induces the purchase. We are not persuaded that this always holds true. The fact that someone purchases a house next to a freeway doesn't mean they don't resent the noise. A purchaser is not to be taken to embrace every undesirable feature of a dwelling he or she buys. Moreover, the habits of gum trees and the implications and difficulties of having branches lopped may not be fully appreciated by a prospective purchaser. We repeat, locating this substantial tree in a small inaccessible courtyard is simply a recipe for trouble.

58. As it happens, the Yellow Box is in an ideal position for a two-unit development on this site. In such a development it could be centrally located between the front and rear dwelling, with clearance from buildings appropriate to its size and shape, readily accessible for maintenance and as the focal point for a common garden area. Instead of the inevitable tension which would arise from its current proposed location, it could be the jewel in the crown in the landscaping of this site. A two-unit development would effectively double the occupancy potential of this site and would be responsive to the State and local policy objectives for greater housing diversity and increased densities in established residential areas.

59. Ms Hoban also expressed concern about the extent of hard paving necessitated by this development. She submitted that this could have an adverse impact on rainwater penetration to sustain the existing vegetation as well as on the provision of landscape planting opportunities to maintain and enhance the character of the area.

60. The proposed development achieves a site cover of 59% and this does not include courtyard paving which we have noted from the suggested landscape plan would be in addition to driveways and building cover.

61. We were not provided with any evidence either way to suggest whether the extent of site cover generated by this development would impact unacceptably on surface water penetration. Whilst being reasonably confident that with careful drainage design this issue could be addressed - for example by directing stormwater to planter beds and lawn areas - we nevertheless accept that it is an important matter which requires proper consideration at the planning permit assessment stage. We are not confident that this has occurred to date.

62. We also find that the design of the driveway area on the northern side of the site, provides a very meagre opportunity for landscaping. For the most part a strip of only half a metre is proposed abutting the boundary fenceline - this widens in part to 1m - and there is provision for a 1.0m to 1.5m strip between the buildings and the driveway. In our opinion it is very doubtful whether planter strips of these dimensions can ensure that landscaping makes a positive contribution to the identified, native vegetation character of this area.

63. In the course of our inspection we noted how the two dwelling development next door to the south achieves a far more positive result - albeit with a somewhat incompatible choice of Silver Birch trees. This result is achieved by a more substantial widening of the landscaping buffer on the northern side of the driveway, abutting the boundary fence and also by the use of a garden area between the two dwellings. The latter provides an attractive setting for the rear dwelling and makes a positive contribution to the vegetated appearance of the area. With this degree of vegetation the dwellings blend in rather than dominate their landscape setting. We find the subject development provides no such opportunity.

64. We turn then to the final question for determination, which is whether the siting and two storey scale of the front dwelling respects or could be said to make a positive contribution to the character of the neighbourhood. The front dwelling would have a frontage width of 12.5m with a front eaves height of 5.1m. From here the roof would rise steeply to a central gable with a height of 8.0m The dwelling would be set back 8.0m from the frontage with a porch area extending to within 7.0m of the frontage. This set back is similar to that of the existing dwelling on the land although the existing dwelling has a staggered setback with the more southerly portion set further from the frontage than the more northerly portion. No such asymmetry is provided with the proposed building.

65. The existing Oak Tree within the front setback is estimated by Mr Frank to have a height of 9m and a spread of 10m. It was Mr Verhoeven's submission that for the most part this Oak Tree would screen the new dwelling and prevent it from being visually dominant within the streetscape. He also submitted that the adoption of an attic style, with the first floor being mostly concealed within the gable roofline, would also ensure that the dwelling sat reasonably comfortably in what is otherwise a predominantly single storey neighbourhood.

66. We accept Mr Verhoeven's submissions. In reaching this finding we have had particular regard to the relatively small size of this two bedroom dwelling, in particular the modest depth of only 5.7m on its northern elevation to the driveway. We have also taken into account the generally simple detailing of the front façade and side walls. We find this lack of ostentation to be generally in keeping with the built form character of what is in fact a quite diverse architectural mix within the neighbourhood. This diversity is generally concealed or given some sense of cohesion by the unifying qualities of the vegetation. Given the screening effect of the Oak Tree we think that this will prevail for the subject land. This is not to say the siting of the front dwelling is ideal. Obviously, it would be less dominant if it weer set back further from Sylvan Street.

67. Notwithstanding the quite modest proportions of the central dwelling, we have nevertheless found that it stands as the Achilles heel in this development. Not only does it put at risk the safe useful life expectancy of the Yellow Box, which has been identified as a tree that makes a significant contribution to the landscape character and habitat values of this area, it also results in the driveway area having a built form dominance that is inconsistent with the objective of the overlay controls and of the Local Policy Framework.

68. We are confident that a reconfiguration of this site as a two dwelling site (with further recession of the two storey element) could not only achieve the policy objectives for increased densities in established urban areas but also those which encourage new development to make a positive contribution to the significant landscape and habitat values of this neighbourhood.