a)

The first floor of Unit 3 be deleted;

b)

The lounge room of Unit 3 be set 4.5 metres from Through Road;

c)

The ground floor of Unit 3 be redesigned as a two bedroom unit;

d)

The double garage of this Unit be redesigned as a single garage, with the internal space from the freed up space of the garage and stairwell of this unit on the ground floor to accommodate a second bedroom;

e)

The external area outside the converted garage landscaped;

f)

The width of the proposed crossover for Units 2 and 3 be reduced to reflect the single garage nature of Unit 3;

g)

Bedroom 3 window of Unit 2 to have a sill height of 1.7 metres above the finished floor level;

h)

The brick piers of all fencing facing Through Road to be no higher than 1.5 metres, and infill panel no higher than 1.2 metres;

i)

The provision of a minimum of one canopy tree within the private open space areas of Units 1, 2 and 3 and within the Toorak Road frontage setback;

j)

Each dwelling is to be provided with storage lockers within the private open spaces and service yards (particularly for Unit 1), with a storage volume of not less than 6 cubic metres; and

k)

All elevations to clearly show all materials and finishes.

The layout of the site and the size, levels, design and location of building sand works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

a) An accurate survey of all existing vegetation to be removed and retained and other natural features;

b) The area(s) set aside for landscaping;

c) A schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants. The botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

d) Planting required by any other condition of this permit; and

e) Paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

f) Planting and landscaping of the island between the garages of Units 2 NS 3;

g) Landscaping and planting outside the deleted garage of Unit 3;

h) Planting of a medium sized canopy tree in the increased front setback of Unit 3.

Must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

All landscaping works shown on the endorsed landscape plan must be maintained and any deceased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

Temporary barricades to protect trees to be retained must be erected around such trees, to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

Contractors to be Advised of Trees to be Retained

The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained prior to the commencement of the related construction tasks.

Measures to Minimise Compaction and Damage to Tree Roots

Without the prior written consent of the Responsible Authority:

a) No goods, materials or stockpiling of fill is to be stored or vehicles parked within the drip line of any tree to be retained;

b) No excavation, trenching or soil removal is permitted within 3 metres of any tree to be retained.

The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Construction of Driveways and Car Parking Areas

Before any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

Car spaces must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.

Any new vehicle crossover or modification to an existing vehicle crossover must be constructed in accordance with Council's standard details. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channelling and the affected nature strip, to the satisfaction of the Responsible Authority.

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

Garbage containers must be stored out of general view, to the satisfaction of the Responsible Authority.

All clotheslines must be positioned so as not to be visible from any nearby street, to the satisfaction of the Responsible Authority.

Reticulated Electricity to be Provided Underground

Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

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

Any air conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

Prior to the issue of a building permit, the owner must obtain the consents of all relevant authorities for any buildings or works, including any paving, fences and landscaping, over any easement or underground services under the control of a public authority including sewers, drains, pipes, wires or cables, to the satisfaction of the Responsible Authority and relevant Authority.

The owner must accept all reinstatement costs in carrying out repairs to any buildings, works or landscaping over the easements should such buildings, work or landscaping be disturbed by any works undertaken by Council in the future.

a) The development does not start within two (2) years of the issue date of this permit; or

b) The development is not completed within four (4) years of the issue date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr. Adrian Atkins, Planning Consultant. He called Ms. L. Garnett, Landscape Architect to give evidence.

Mr. Murray Ness, Cityplan appeared on behalf of the City of Boroondara

Mr. D. Fargher and Ms. R. Loyer appeared in person.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 against the Boroondara City Council's refusal to grant a permit for the development of three double storey dwellings at 1291 Toorak Road, Camberwell. The grounds of refusal were:

• The proposal represents an overdevelopment of the site.

• The proposal fails to respond to the falling slope of the land towards the west which accentuates the overall height of the building resulting in a dominating impact on the streetscape.

• The scale of the building and extent of hard paving at the expense of landscaping will have a detrimental impact on the neighbourhood character.

• The proposed development fails to address the principal frontage of the site being Toorak Road.

• Double garages located side by side together with extensive paving will have a dominating impact on the streetscape.

• The proposed development will have an adverse impact on the amenity of the adjoining property to the east due to the impact of visual bulk.

• Vehicles access to the northernmost garage is unacceptable.

• Private open space provision is inadequate and there is no provision for external storage.

2 The review site is a corner lot at the north east corner of Toorak Road and Through Road, Camberwell. It is regular in shape with the following dimensions:

Frontage (Toorak Road): 13.71 metres (plus 3.05 m splay)

Depth (Through Road): 53.34 metres

Site area: 889 square metres.

3 It is developed with a split level single storey dwelling set at an angle to Toorak Road. The front of the site is heavily vegetated with a 4 metre high hedge.

4 Developments to the east are single storey detached dwellings for Nos. 1293 and 1295, and then double-storey detached houses further east. To the west of the site on the opposite side of Through Road in Toorak Road are single storey dwellings. North of the site along Through Road are single storey dwellings, with No. 1 Through Road developed for four single-storey units.

5 Through Road is tree lined and curves to the east beyond Merton Street.

6 The proposal is to construct three double storey attached dwellings, all facing Through Road. Each dwelling is provided with three bedrooms plus study and a double garage. All garages are accessed from Through Road, with a new crossing for Unit 1, and widening of the existing double crossing for the garages of Units 2 and 3.

7 The development is set 8.995 metres from Toorak Road, and a minimum of 3 metres from Through Road. The appearance of the development is contemporary, adopting traditional features such as recessed first floors from ground floors, and hipped roofs with eaves.

8 All trees on the land are proposed to be removed, except the 4-metre hedge at the front and the western boundary, and tree No. 4 (a Crepe Myrtle) at the front.

9 Secluded private open space is provided along the setback areas along the eastern boundary of the site.

10 The review site is located in the Residential 1 Zone of the Boroondara Planning scheme. Pursuant to Clause 32.01-4, a planning permit is required for the development of more than one dwelling. The provisions of Clause 55 apply.

11 The site is not affected by any overlay.

12 Relevant Planning Policies:

•

Clause 21.05 MSS - Urban Character

•

Clause 21.07 MSS - Residential land Use

•

Clause 22.07 Local Policy - Neighbourhood Character Policy

13 At the hearing, parties made written and/oral submissions. Ms. Garnett, called by Mr. Atkins to give landscaping evidence, was made available for cross-examination. At the conclusion of the hearing, I reserved my decision and indicated that I would inspect the site. This I have done.

14 Having heard the submissions and evidence, inspected the site and reviewed the Boroondara Planning Scheme, I do not share Council's decision to refuse the application. However, I agree with Council that the extent of development, particularly the extent of two storey massing, not sympathetic to the neighbourhood character of the area, but one that can be modified by permit conditions.

15 The main issue is the scale and massing of the proposal in a single storey area, and whether the three double storey scale in a continuous building responsive to its setting. The issue of protection of existing trees in the neighbouring properties has in a sense sorted itself out as most of trees in the neighbouring properties in contention have been removed or to be removed on health and safety grounds.

16 Clause 22.07 is the local neighbourhood character policy. This policy refers to Council's Urban Character Study 1996. Under this study, the site is Character Area 134. The character statement of this character area reads:

This is a large area which follows the form of the valley, with large areas of local open space on drainage lines providing a focus for this area. The grid layout of lots and roads adjusts along drainage lines.

The area was initially developed in the inter-war period with mostly modest and often timber houses. There has been moderate redevelopment of sites for single storey multi-dwelling developments since the 1960s.

There is a wide range in the age and scale of street tree planting.

17 Mr. Ness advised that Council has a public available policy, its Residential Design Policy, one that recommended the scale of new development to respond to the prevailing building scale of the area, incorporating building heights, roof forms, roof pitch and building mass found in the immediate locality, and that the first floor of dwellings to be designed to minimise overlooking and overshadowing and bulk when viewed from backyards. It also seeks to encourage open space larger than private open space of Clause 55.

18 He submitted that the neighbourhood is characterised by predominantly single storey dwellings with some two-storey development redevelopment in an area of dense vegetation both in the public and private realms. The proposal would remove all trees except the Crepe Maple at the south-east (front) corner. The extent of site coverage including driveway, limits the capacity to replant sufficiently to established vegetation cover and canopy trees consistent with surrounding properties and the locality. The continuous built form running from the northern boundary (laneway) to the front setback area, despite some articulation, presents an overwhelming presence to the Through Road streetscape.

19 It is Council's contention that the proposal fails to respond to the falling slope of the land. The uninterrupted building form across the length of the site is accentuated by the increase in the floor levels above natural ground level. This increases the impact of the proposal to the streetscape and to the adjoining properties at 1 Through Road and 1293 Toorak Road. The height and bulk of the dwellings are also prominent from the west and north. The proposed two storey scale is inconsistent with the single storey scale of development in the area. The extent of site coverage and hard paved surface means a lack of opportunity to plant canopy trees. The orientation of dwellings to Through Road means the frontage of Toorak Road not addressed. The visual impact of two pairs of double garages and two single garages on Through Road totals 17.5 metres. Clause 55 envisages a transition between single storey and two-storey development and a graduation change in height (Standard B7). The extent of first floor means it is prominent and not the gradual transition.

20 The continuous built form and two-storey scale are also objectors' concern. Ms. Loyer from No. 1293 Toorak Road, advised that such a scale will be prominent from her property, given that a number of the trees along the common boundary have either been removed at the time or have been removed since because of their conditions. The proposal needs to provide its own landscaping rather than borrowing from trees in neighbour's property.

21 Mr. Fargher from 1 Through Road submitted that the proposed three double storey units are too crowded. The Tribunal ruling on another three double storey dwellings at 1295 Toorak Road said that that proposal has just made it and that was under The Good Design Guide. He echoed Ms. Loyer's concern of the development relying on neighbour's vegetation for landscaping.

22 On the other hand, Mr. Atkins submitted that the proposal is consistent with the existing neighbourhood character, which he identified as:

•

The existing one and two storey scale buildings in the neighbourhood;

•

The consistent front setback;

•

Dominant features of pitched roof, brick construction and gable ends;

•

Good level of articulation;

•

Open space around the buildings allowing for landscaping;

•

Front fence as commonplace;

•

Proposed scale and massing appropriate for Through Road, given the level of redevelopment that has occurred in the immediate vicinity and the size and scale of existing built form.

23 As for the presentation of the development to Through Road, the existing development is dominated by a double roller door on the street boundary, a wide crossover and fencing. The proposal is for three dwellings facing Through Road and would open this elevation to the street. The proposed landscaping is to retain the existing 4-metre hedge facing Toorak Road and part of Through Road and to replace vegetation removed.

24 As far as the scale and massing of the proposal is concerned, to him, a two storey scale on Toorak Road is acceptable because such a scale is common in Toorak Road (houses beyond 1295 Toorak Road are two storey), given the volume of traffic and activities of the main road in Toorak Road, and the screening effects of the 4 metre high front hedge.

25 Contrary to Mr. Atkins' observation of building scale in Through Road, I can find no immediate two storey scale in Through Road, until No.8, and then Nos. 24 and 25 Through Road. I agree with respondent objectors that three double storey bulk down the site not sensitive to the single storey scale of Through Road (where the front unit of 1 Through Road is set 9.5 metres from the street) and the garden of 1293 Toorak Road. Unit 3 also sits elevated above the Through Road footpath level. This extent of two storey scale should be modified by reducing the bulk of Unit 3, the unit furthest away from Toorak Road and closest to the garden of 1293 Toorak Road. The previous expectation of screening and softening of the proposed development by the vegetation in 1293 Toorak Road cannot be relied on because those mature trees are either gone or dead.

26 In order to achieve a graduated scale of development from Toorak Road to the single storey scale development of Through Road and the open backyard of 1293 Toorak Road, it is appropriate that Unit 3 is single storey.

27 By converting this unit to single storey, there would not be enough floor area on the ground floor to provide for a three-bedroom dwelling but a two-bedroom dwelling. If this dwelling becomes two bedroom, it is no longer necessary to provide two parking spaces. This in turn gives rise to an opportunity to increase the ground floor area to accommodate a second bedroom. The other benefit of a single garage is the reduction in the width of crossover and the dominance of car access and garage openings on the streetscape of Through Road. This is despite Mr. Atkins' submission the Through Street streetscape of the site is currently dominated by the double driveway and double roller door. I do not see that the existing double roller door as a design justification for another two sets of garage openings.

28 When Unit 3 is converted to a two bedroom dwelling, it follows that the landscaping outside the garage of Unit 3 can be increased, further softening the development when viewed from Through Road.

29 An arborist report was submitted as part of the application, surveying the conditions of trees both within the review site and at 1293 Toorak Road. It appears that there were a number of mature trees along the common boundary. They would have provided an effective softening and screening of the proposal when viewed from the backyard of 1293 Toorak Road.

30 However, many of these trees have been removed or have to be removed because of their conditions: tree no. 13 an 8 metre high Box Elder (gone), no.16, a 9 metre high Camphor Laurel (dead), no. 18, a 6 metre high desert ash (dead), no.19, a 6 metre high Cherry plum (gone), and no. 20, a 14 metre high native Southern Mahogany (gone). The proposed landscaping plan tabled as evidence by Ms. Garnett would rely heavily on Pittosporum as screening along this common boundary and Through Road. Given the removal of these trees, I am confident that there is now opportunity for other planting that would allow interesting planting to replace the lost softening effects of the removed or dead trees in the review site and 1293 Toorak Road. The increased setback of Unit 3 from the current 3 metres to 4.5 metres closest to 1 Through Road would allow the planting of at least a medium sized canopy tree to provide a transition between the hard edge treatment on the review site with the 9.5 metre setback of the front unit of 1 Through Road.

31 The amenity impact brought to my attention is the overlooking of 1293 Toorak Road. Mr. Atkins submitted that first floor windows facing that residence are bedroom windows and secondary rooms. However, I find the extent of overlooking from first floor windows directly at the series of habitable room windows at 1293 Toorak Road should be reduced. I would require the first floor bedroom 3 window of Unit 2 to be screened, accepting that the first floor window of Unit 1 is towards the front of the 1293 Toorak Road. With the conversion of Unit 3 to a single storey building, there is no issue with overlooking from the first floor of that unit.

32 Both Mr. Fargher and Ms. Loyer commented about the traffic and safety at the intersection of Toorak Road and Through Road. Tripling the number of vehicle trips would worsen the safety problem. I do not gather from Council's engineer that there is a traffic capacity problem. There is no evidence that this corner is unsafe that should preclude the development of the site.

33 As for the access to the garages, Council pointed out the difficulty of accessing the northern most garage of Unit 3. It is now no longer a problem, as one of the permit conditions is to delete that garage.

34 The proposal to construct three double storey three-bedroom plus dwellings as proposed, in my view not a sensitive response to the single storey scale and deep setback of development in Through Road and the garden of 1293 Toorak Road. Accepting the location of the site on a busy road and that a three unit development is not unreasonable for this corner site, it is appropriate to reduce the bulk of and increase the front setback of part of unit 3.

35 There are other conditions of permit to respond to the reduced vegetation along the common boundary with 1293 Toorak Road and protection of privacy of 1293 Toorak Road.

36 For the above reasons, the Application for Review is allowed. I will order that permit, subject to the conditions stated in the order, is to issue.