Mr Cicero called expert evidence from Mr David Crowder (town planner) of Ratio Consultants, Mr Robert Galbraith (arborist) of Galbraith & Associates and Mr John Patrick (landscape architect) of John Patrick Pty Ltd.

Mr Kane called expert evidence from Mr Terry Bourke, Senior Investigations Arborist of Bayside City Council.

Ms Sophie Melis, Mr Malcolm Taylor, Mr Clarke Martin, Mr Robert Goode, and Mr David Taylor all appeared in person.

Development of the land with six dwellings in a two storey plus attic building above a basement car park. A large Coast Banksia is proposed to be retained in the front setback to Beach Road.

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

Clause 32.01-4 to develop more than one dwelling on a lot in a Residential 1 Zone

Clause 32.01-4 to construct a front fence within 3 metres of the street on land within the Residential 1 Zone

Clause 42.02-2 to remove vegetation from land within a Vegetation Protection Overlay

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

Clauses 11, 12, 15, 16, 21, 22.06, 22.10, 32.01, 42.02, 43.02, 55 and 65.

The land is a corner allotment of some 1045 square metres, with a frontage to Beach Road of 22.86 metres and a sideage to Cliff Grove of 45.72 metres. The land presently supports a two storey dwelling that is located centrally on the site.

Surrounding dwellings are predominantly double storey with a range of quite large buildings having been constructed along Beach Road to capture the water views.

The Tribunal inspected the site prior to the hearing, on 14 March 2012.

HMDB Constructions PL v Bayside CC [2010] VCAT 2; Ammache Architects v Bayside CC [2008] VCAT 2232.

1. This is an Application for Review of a decision of Bayside City Council to refuse to grant a permit for the development of six dwellings on land at 29 Beach Road, Beaumaris. Approvals are also sought for the removal of native vegetation and construction of a front fence.
2. Reasons for the decision were given orally at the conclusion of the hearing. Below is an edited version of those reasons.

1. This is an oral decision in relation to Application for Review P3048/2011 concerning a site at 29 Beach Road, Beaumaris.
2. I advised the parties at the commencement of the hearing that I had conducted a site inspection prior to the hearing. This inspection has assisted in my understanding of the submissions that have been made by all parties, and the expert evidence.
3. I have heard submissions from the parties in relation to a proposed development of the land with six dwellings. Approvals are also required for the removal of native vegetation and a front fence. The proposed dwellings are in the form of a two storey building plus a third level attic, above a basement car park. The site is located along Beach Road, Beaumaris where buildings of this scale are commonly found, to capitalise on the available views to Port Phillip Bay.
4. Having heard the submissions and evidence, I consider there to be four key issues or questions that I must determine:

1. Is the proposal an appropriate response to the policy guidance of the Bayside Planning Scheme? 2. Is the built form appropriate, having regard among other matters to the DDO1?

1. Is the proposal an appropriate response to the existing Coast Banksia?

1. Will the proposal achieve appropriate amenity outcomes?
2. I will then deal with some other matters.

1. Both State and local policy encourage the achievement of medium density development in a location such as this, which is accessible to a range of services and facilities. The residents took me to an analysis of the surrounding facilities, attempting to show that the site was not sufficiently proximate to services to support a development of this nature. While I accept that the site is not within walking distance of an activity centre, that is not the sole criteria under policy for such a development. This is a locality that enjoys a high level of access to a range of services and facilities, not least so the foreshore which is an area of open space of regional significance and which is directly across the road from the review site.
2. I therefore find that the proposed development of medium density housing is encouraged on the review site.
3. I note that other divisions of this Tribunal have formed the same view, having recently approved medium density developments at 16-17 Beach Road[2] and 3 Charman Road[3]. Both of these developments comprise two storeys plus an attic, and the approved development at 16-17 Beach Road is similar in scale and form that the proposal that is before me.
4. I accept the submissions from Council and residents that as this is not a preferred area under the local policy for medium and higher density housing, the expectations in this area must be appropriately tempered. New development should respect and integrate with the surrounding neighbourhood character. Further, certain limitations are placed on development as a result of the DDO. I come to this issue later.
5. Mr Martin made submissions that the proposal was contrary to policy which encouraged housing for all aged groups, as the site is located in a precinct that is heavily populated by families with children. I consider those submissions to identify a need for more diversity in housing, and thus support the proposed development. I don't consider that this type of proposal will in any way impact on the 'family' community that Mr Martin described. However it will allow for some members of the community who wish to 'downsize' to remain within the community, and that is precisely the outcome that is sought by policy.
6. Mr Kane for the Council in submissions undertook a thorough analysis of the Local Planning Policy Framework, which I have considered in my analysis.
7. One of the policies I was taken to is the Neighbourhood Character Policy at Clause 22.06. It is instructive that under this policy, the site is located within a precinct that contains almost exclusively the Beach Road properties in this part of the municipality. That indicates to me that strategically, the Council recognises that properties along Beach Road form a different character to those in the residential hinterland, if I can use that term. That is borne out on the ground. Properties fronting Beach Road are often developed with a larger built form than those in the other surrounding streets, although often dwellings in other streets can also be described as large and bold.
8. I consider the proposed development to be respectful of neighbourhood character and responsive to the guidance provided in the policy. The development, while having a long sideage to Cliff Grove, needs to primarily be assessed in the context of the character along Beach Road. I find that there is a wide diversity of building styles along this part of Beach Road, with the unifying characteristic being their general two storey scale, with or without an attic above that. I find that the scale of the proposed development will complement these surrounding building forms, and will be read as part of a consistent streetscape of bold buildings clamouring for a view of the Bay.
9. In terms of the presentation to Cliff Grove, I acknowledge that this side street has a different built form character, but nonetheless contains some large upright two storey forms, both in Cliff Grove and Bonanza Road. This development will be larger than the existing built forms in these non-Beach Road locations, but will be read as part of the larger buildings that present to Beach Road within this residential neighbourhood. The building has increased setbacks along the northern part of the sideage to Cliff Grove, and adopts a façade composition that seeks to respond to the rhythm of the single detached housing. A landscaped setback is also provided as a clear break to the adjoining property to the north. I therefore consider that the proposal is also an appropriate response to the character in Cliff Grove.
10. In terms of the proposed roof form, Mr Kane put to me that the predominant character was for flat roofs and that this proposal would be contrary to this character. While I acknowledge the number of buildings with flat roofs, I consider the overall character to be mixed, and that this development will complement that mixed character.
11. Mr Kane also made submissions against the boundary construction to the west in that it did not reflect the policy objective of providing separation between dwellings. I am satisfied that due to the retention of the Coast Banksia, and the large front setback, that the boundary development will not cause any offense in streetscape views. Due to the retention of the tree, high front fence and large setback it may not even be noticeable to the passer-by that part of the wall is constructed to the western boundary of the review site.
12. I therefore find that the proposal is an appropriate response to policy guidance and to the surrounding neighbourhood character and the preferred character statement. It strikes the right balance between achieving urban consolidation and responding to its context.

1. Mr Kane for the Council criticised the proposed attic as adding scale and bulk to the development, and being of such a size that it constitutes a third storey. These submissions were supported by the residents.
2. Schedule 1 to the DDO specifically contemplates the construction of buildings comprising of two storeys plus an attic. It sets out a definition and characteristics of an attic. I am of the opinion that the proposal satisfies completely the Schedule to the DDO. In respect of the factors that are indicative of an attic under the Schedule, it was not contested by the parties that the design meets a number of these factors, including being enclosed by the roof, not bordered by vertical walls, and less than half of the floorspace of the level below.
3. 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.

1. Both Council and the residents submitted that the Coast Banksia was of such rarity and size that every precaution should be taken to ensure its long term survival. I was taken to its significance particularly by Mr Kane.
2. I heard evidence from Mr Bourke for the Council and Mr Galbriath for the Applicant. In the end both witnesses agreed that the proposed basement would not impact on the tree, and that the proposed paving and fences would also have no impact if they were carried out in an appropriate manner. Mr Bourke drafted some conditions that he thought was sufficient to achieve that objective. Not being satisfied with their drafting and format, I redrafted them prior to the hearing and presented them to Mr Burke. Mr Burke's evidence was that he was satisfied the redrafted conditions would achieve the desired outcome.
3. Given the evidence of both arborists, I consider there to be no need to make additional changes to further reduce the risk to the Coast Banksia, as I was urged to do by the Council and the objectors. In particular, I consider there to be no need to reduce the extent of paving, or to require its replacement with a deck. The evidence of both arborists was that paving constructed in a correct manner will have no effect on the tree. I will therefore implement the conditions agreed to by Mr Bourke, with the addition of a tree management plan condition as discussed with the parties.

1. No concerns regarding overlooking from the development to the adjoining properties was raised with the Tribunal. Mr Goode, who lives across Cliff Grove at 30 Beach Road, did raise a concern about overlooking and overshadowing, but the distance between the two properties means that there will be no unreasonable overlooking. Further, there will be no shadow impact at the equinox, which is the primary consideration.
2. Mr Goode also raised a concern about headlights from cars exiting up the ramp shining in his bedroom windows. A closer inspection of the plans revealed that such headlights will be directed to his garage, and that cars will only shine headlights towards the bedroom windows once they are within Cliff Grove itself, and then only for a very short period of time. I note also that there is currently a low brush fence, and opportunity for landscaping, between Cliff Grove and the windows. I consider this not to be a sufficient concern to warrant changes to the proposed development.
3. Mr Kane raised a concern about the height of the wall proposed along the western boundary of the site. The wall height is a maximum of 3.4 metres. It is located adjacent to a two storey dwelling next door and a small courtyard that is viewed by some ground floor windows. I consider that the proposed wall is appropriate in the context of the large built forms along Beach Road. I also note that the wall is set back behind the façade of the adjoining building, and so will not have an impact on oblique views from the street. I am therefore satisfied that this wall will comply with the relevant objective.
4. Finally a concern was also raised in relation to the amenity of the accommodation proposed at basement level, which comprises a theatre room for apartment 2 and a theatre room and bedroom for apartment 1. Both rooms are provided with light courts which measure some 1.5 to 1.3 metres in width and at least 6.4 metres in length. I consider that the size of the light courts will ensure sufficient daylight is enjoyed by these spaces, and therefore consider that they provide an appropriate level of internal amenity. In terms of the light court to apartment 2, I will require the size of the light court shown on the ground floor plan to match that shown on the basement plan.
5. I find that the proposed development will achieve appropriate amenity outcomes, both on and off site.

1. There are a few other matters that were raised in this hearing that I should also address. The residents raised concerns with the number of car parking spaces provided on site, particularly in the context of the small amount of on-street car parking opportunities that exist. The proposal provides the required amount of car parking under Standard B16[4]. I consider this standard of provision to be appropriate in this context where some bus services are available but it is likely that most trips will be conducted by private vehicle. It is also instructive that the Council did not oppose the development on the basis of the number of car parking spaces. I therefore find the level of car parking provided on site to be appropriate.
2. A landscape plan has been prepared by Mr John Patrick, and I am satisfied that the landscape outcomes he has recommended will produce an appropriate landscape outcome for the site. I will give effect to the changes he has recommended to the plans of the proposed development.
3. A number of the residents raised concern with the ability for garbage bins to be manoeuvred up and down the basement ramp for collection. The provision of a basement for car parking and bin storage facilities in apartment developments is now commonplace throughout Melbourne. I am satisfied that a private contractor will be able to collect rubbish from this facility, including moving the bins out of the basement.

1. It follows from this analysis that I will set aside the Council's decision, and direct that a permit with conditions be issued.
2. Those conditions will generally follow the draft conditions circulated by Council, but modified as indicated in my reasons, and otherwise with the following changes:
   • (a) Deletion of Conditions 1 (c), (e), (h) & (l). I find these conditions to be unnecessary, and Condition (c) to effectively prohibit reasonable vehicular access into the basement.
   • (b) Rewording of Condition 1(a) to require the same outcome by nominating a different car space as the visitor car parking space.
   • (c) Deletion of the second part of Condition 1(g). There is no need to concrete the corner splay in the absence of a footpath in Cliff Grove.
   • (d) Addition of a condition requiring a more articulated outcome to the first floor of the north-west elevation.
   • (e) Addition of Conditions that require changes as recommended by the expert witnesses.
   • (f) General editing of changes as is appropriate.

The development of the land with six dwellings, construction of a front fence and removal of native vegetation in accordance with the endorsed plans

1. Before the development starts three copies of revised plans drawn to scale and dimensioned, 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 generally in accordance with the plans received with the application but modified to show to the satisfaction of the Responsible Authority:

1. The reallocation of car space 9 as the visitor car parking space. 2. Car parking space 11 and the storage area A4 are to be allocated to the use of the same apartment.

1. A longitudinal section of the basement access ramp from the centre line of the road to the parking area that shows proposed grades, lengths of grades and levels.

1. All car parking spaces are to be clearly linemarked or signed with unit numbers. The visitor car park is also to be clearly linemarked. 2. Provide a minimum 2 by 2 metre corner splay at the south east corner of the property. 3. A schedule of all external materials and finishes to be provided to the buildings and works on the land, showing the materials, colour and finish of all external walls, roof, fascias, window frames and paving. 4. 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. 5. Water sensitive urban design stormwater treatment measures providing a rating of a minimum of 100% in accordance with Condition 16 of this permit. 6. Landscaping Plan (prepared by Simon Howe of John Patrick Architects) as per the evidence to the Tribunal and dated February 2012. 7. The provision of a larger planter box to the Cliff Grove setback and reduction in the width of the light well to Apartment 1, as recommended in the evidence of Mr John Patrick and detailed in the landscape plan dated February 2012. 8. Removal of the high fence to the Cliff Grove frontage in front of Apartment 1 as recommended in the evidence of Mr John Patrick and detailed in the landscape plan dated February 2012.

1. The relocation of the garbage storage area to the basement, and dedication of the area at ground level along the north elevation to landscaping as recommended in the evidence of Mr John Patrick and detailed in the landscape plan dated February 2012.

1. A correction to the ground floor plan to ensure that the light court for apartment 2 on ground floor matches the size of the light court shown on the basement floor plan. 2. Changes to the first floor of the north-west elevation by opening up the end of the balcony, except for a balustrade, and by providing a full height window in the eastern end of this elevation at a minimum width of 2.0 metres. 3. Notation that the proposed front fence to Beach Road is to be constructed using the footings of the existing fence or other measure with the written consent of the responsible authority to ensure no impact on the roots of the Coast Banksia. 4. Notation that all paving within the area of secluded private open space to Apartment 3 is to be constructed above grade and on a permeable base, with no impacts on the roots of the Coast Banksia. 5. Provision of an access door from one of the bedrooms in Apartment 3 to the adjacent planter box.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. 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
4. The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority. Any dead or diseased plants must be replaced to the satisfaction of the Responsible Authority.
5. Before the commencement of any works associated with the development hereby approved (including demolition), a tree protection fence must be erected inside the property from the centre of the Bankisa integrifolia (Coast Banksia) being retained at the front of the site to the existing south and west boundaries of the site, and extending 7.5 metres to the east and north of the trunk of the tree. This area is to be known as the Tree Protection Zone. The tree protection fence must be maintained throughout the construction phase of the project, until the landscaping of the site commences. The following must be undertaken within that Tree Protection Zone:

1. Coverage of 100mm of mulch and covered with a solid board, or by a structure that will provide protection from compaction; 2. No operation of any heavy machinery, excavator or similar;

1. No storage or dumping of tools, equipment or waste;
2. The section between the tree protection fence and the building envelope must be covered by a 150mm layer of mulch and protective boarding or similar walkway that will facilitate construction activity whilst avoiding compaction.
3. Without the further written consent of the Responsible Authority, any excavation undertaken within 8.0 metres of the centre of the Bankisa integrifolia (Coast Banksia) being retained at the front of the site must be undertaken in accordance with the following:

1. All excavation is to be done by hand to a minimum depth of 500mm below surface level and in the presence of a qualified arborist; 2. Any roots encountered must be cut cleanly with a sharp implement by a qualified arborist;

1. Excavations may continue with machinery below the 500mm minimum depth of digging by hand;

1. Excavations must be documented (photographs and notes) and documentation must be submitted to Council within 28 days of the request for such documentation.
2. Any pruning that is required to be done to the canopy of the Bankisa integrifolia (Coast Banksia) being retained at the front of the site is to be done by a qualified arborist to Australian Standard - Pruning of Amenity Trees AS4373-1996.
3. Prior to the commencement of the development hereby approved, a Tree Management Plan must be submitted to and approved by the Responsible Authority. The Tree Management Plan is to detail measures both during and after construction to provide for the health of the Bankisa integrifolia (Coast Banksia) being retained at the front of the site. These measures are to include:

1. Drip irrigation; 2. The provision of mulch;

1. Any other relevant matters.
2. The proposed internal drainage must be connected to the existing legal point of discharge. The applicant may apply for legal point of discharge and local drain information, if available; otherwise on site verification should be undertaken by the applicant.
3. Drainage associated with basement during construction (seepage and agricultural waters are to be filtered to rain water clarity) must be pumped to the nearest Council Drain /Pit and not be discharged to the kerb and channel unless directed otherwise.
4. Before the development begins, detailed plans (3 sets) 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.
5. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
6. No plant, equipment, services, or architectural features other than those shown on the endorsed plans are. permitted above the roof level of the building without the written consent of the responsible authority
7. The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
8. Before the commencement of works, detailed plans to the satisfaction of the Responsible Authority must be submitted to and be 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 in accordance with the guidelines outlined in Clause 22.08 of the Bayside Planning Scheme and must show:-

1. The type of water sensitive urban design stormwater treatment measures to be used; 2. The location of the water sensitive urban design stormwater treatment measures in relation to buildings, sealed surfaces and landscaping areas;

1. Design details of the water sensitive urban design stormwater treatment measures, including cross sections;

1. These plans must be accompanied by a report from an industry accepted performance measurement tool, which details the treatment performance achieved and demonstrates the level of compliance with the Urban Stormwater Best Practice Environmental Management Guidelines, CSIRO 1999.

The water sensitive urban design stormwater treatment system as shown on the endorsed plan 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.

1. Before the occupation of the development, areas set aside for the parking of vehicles and access ramps as shown on the endorsed plans must be constructed' and properly formed to such levels that they can be used in accordance with the plans. Car spaces, access ramp and driveways must be kept available for these purposes at all times.
2. Before the commencement of works the recommendations contained within the Cultural Heritage Management Plan, prepared by Andrew Long Associates, dated the 29th July 2011, and approved by Aboriginal Affairs, Victoria on the 2nd August 2011, must be completed to the satisfaction of Aboriginal Affairs, Victoria.
3. Before the occupation of the development starts, a waste management plan must be submitted to and approved by the Responsible Authority. Three copies of the plan must be submitted. The plan can include reliance on the council's domestic waste collection service. If reliance is made on a private contractor, the plan must detail the hours that collection will occur. When approved, the plan will be endorsed and will then form part of the permit.
4. Before demolition and construction commences a Construction 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. Construction operations on and adjacent to the site must conform to this endorsed plan. Three copies of the plan must be submitted. The plan must be generally in accordance with the plans submitted but must include:

1. All traffic management plans for the site demolition, excavation, deliveries and other construction related activities that will affect vehicle and pedestrian traffic using Beach Road and Cliff Grove. 2. The location of all areas on-and/or off-site to be used for staff parking.

1. A parking management plan for all associated construction vehicles.

1. Pedestrian access along the Beach Road and Cliff Grove footpaths must be maintained at all times. Any damage to the footpaths must be repaired immediately. 2. All site sheds, portable toilet, storage and materials, etc must be confined to the site.
2. Before the occupation of the site commences or by such later date as is approved in writing by the responsible authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the responsible authority.
3. This permit will expire if one of the following circumstances applies:
   1. the development is not started within two years of the date of this permit.
   2. the development is not completed within four years of the 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] HMDB Constructions PL v Bayside CC [2010] VCAT 2

[3] Ammache Architects v Bayside CC [2008] VCAT 2232