1. Pursuant to Section 85 of the Planning and Environment Act 1987, the decision of the Responsible Authority is set aside.

2. A permit is not granted and no permit is to issue.

3. The Applicants for Review are ordered to pay $238 to Cr T Morrissey, within one calendar month of the date of this order, pursuant to the provisions of Section 104 of the Victorian Civil and Administrative Tribunal Act 1998.

Mr P Lucarelli appeared on behalf of the Applicants for Review. Cr T Morrissey, Mayor of the City of Monash, was called (via summons) to give sworn evidence.

Mr M Townsend of Counsel, instructed by Maddock Lonie & Chisholm Solicitors, appeared on behalf of the Responsible Authority.

Mr W Chow of Zoneworks appeared on behalf of the Respondent/permit applicant.

The parties presented written and oral submissions. A number of plans, photographs and other documents were tendered to the Tribunal. A video was shown. All material has been considered by the Tribunal and is retained on file. The site, properties at Nos. 55 William Street and No. 24 Beverley Street, and locality were inspected by the Tribunal between the first and second days of the Hearing.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Ms D Roberts and others to review a decision of the Monash City Council ("the Council") to grant a permit in application no. TPA/28280. A Notice of Decision was issued by the Council on 24 October 2001, subject to a number of conditions including modifications to the proposal. The Application for Review was lodged on 8 November 2001 with a detailed statement of grounds.

2. A Directions Hearing was held on 4 February 2002 wherein a Summons to Appear issued to Cr T Morrissey, Mayor of the City of Monash, was challenged. That Hearing was conducted before a legal member and directions were issued.

3. At the commencement of the Hearing, Mr Chow sought leave to amend the name of the Applicant for Review from "J Kromidas" to "A & V Pastras". There being no objection, the Tribunal granted leave in accordance with the Victorian Civil and Administrative Tribunal Act 1998 for this to occur.

4. Mr Chow also sought leave to amend the plans submitted with the application with a plan submitted to the Tribunal by letter from A & V Pastras received by the Tribunal dated 14 January 2002. It seeks to address most of the conditions set out in the Notice of Decision (except Condition 1h) as well as showing some other variations to the original proposal. There being no objection, the Tribunal granted leave in accordance with Schedule 1 of Clause 64 of the Victorian Civil and Administrative Tribunal Act 1998 to substitute the plans as requested.

5. Mr Lucarelli explained that he had sought further and better particulars from the Applicant in relation to matters set out in a letter to A & V Pastras dated 21 January 2002 but that information had not been forthcoming. After Hearing from the parties, the Tribunal indicated that the matter should proceed, on the basis that a statement of grounds had been provided by the permit applicant, but that Mr Lucarelli would be able to seek leave to make further submissions after Mr Chow's submissions if new matters arose.

6. The subject site is located at the north-east corner of William Street and Beverley Grove. It is slightly irregular in shape. It has as a frontage of approximately 19.87 metres to William Street (including splay), a frontage to Beverley Grove of 39.59 metres and a total site area of approximately 785 square metres. The land falls by around 0.4 metres from north (rear) to south (front).

7. The site is occupied by a single storey dwelling setback some 7.6 metres from the William Street frontage and 7.05 metres from Beverley Grove. Access is provided to a garage off Beverley Grove. A 1.8 metre high fence extends around most of both street frontages. The existing dwelling comprises four bedrooms.

8. The adjoining property to the east, at No. 55 William Street, is developed with a single storey detached dwelling. It has a driveway to its east and an otherwise open rear yard with low plantings. To the north, at No. 24 Beverley Grove, is a single storey detached dwelling with a driveway along the common boundary with the subject site. It is setback by some 11-16 metres from the street. There is a large tree adjacent to the boundary, near to the Beverley Grove frontage of the subject site (ie. north-west corner). A park is located on the opposite (west) side of Beverley Grove together with a single storey residence.

9. William Street and Beverley Grove are local streets with no parking restrictions.

10. It is proposed to demolish the existing garage on the site and construct a second dwelling to the rear (north) of the existing residence. Each dwelling is proposed to be provided with a single carport and second tandem car space.

11. The proposed dwelling comprises 3 bedrooms and a study within a double storey building. It is setback by around 3-3.1 metres from the north boundary (I note that the Notice of Decision requires a 3.2 metre setback), between 3 and 5.5 metres from Beverley Grove, 3.1 metres from the rear of the existing dwelling (excluding car port) and between 3 and 5 metres from the east boundary. The proposed carport to the existing house abuts both dwellings. The upper level contains two bedrooms and a bathroom, and is recessed on all sides from the lower level. The new dwelling has a pitched roof and eaves. Materials include brick veneer and roof tiles. The existing cross-over is to be removed and two new cross-overs provided.

13. The subject site is located in a Residential 1 Zone under the provisions of Clause 32.01 of the Monash Planning Scheme. A permit is required to construct a second dwelling on the land pursuant to Clause 32.01-4. The decision guidelines of Clause 32.01-4 require consideration of the State and Local Planning Policy Frameworks and the Good Design Guide for Medium Density Housing. The transitional provisions of Clause 52.04 apply as at 24 August 2001. A local variation to the Guide is at Clause 22.06.

14. I record that during the course of the Hearing, Mr Lucarelli submitted that Rescode applies to this Application, rather than the Good Design Guide, for reasons which he detailed. With the agreement of all parties, the Tribunal ruled on this matter. The ruling of the Tribunal was that the transitional provisions of the Scheme, at Clause 52.04, make clear that the provisions of the Scheme prior to 24 August 2001 apply given that the permit application was lodged with the Council in June 2001. That requires an application to be assessed against the Good Design Guide.

15. In addition to Clauses 14, 15, 16, 19 and 65 of the State Planning Policy Framework, a number of provisions of Clause 21 (Municipal Strategic Statement) and several local policies are relevant to the consideration of the proposal. The local policies include Clause 22.01 (Residential Development and Character) which shows the subject site within Character Area Type C. A Stormwater Management Policy is set out at Clause 22.04.

16. I have reviewed submissions presented by the parties, inspected the site and abutting properties, and assessed the proposal in terms of the policies and guidelines of the Planning Scheme. I do not intend reciting the detailed submissions of the parties, which are retained on file. The key matters in contention relate to neighbourhood character, potential off-site amenity impacts and internal amenity considerations. Some other issues, relating to parking and traffic, were also raised.

17. I find that the proposal is not acceptable in the context of this site having regard to the policies and decision guidelines of the Monash Planning Scheme. My conclusion can be simply summarised that I consider that the dwelling is too large for this part of the site, which results from the desire to construct a potentially four bedroom house to the rear of the existing dwelling.

18. I have no difficulty with the siting of a second dwelling to the rear of the existing residence, in principle, even though I accept submissions that this is not a pattern evident in the area. The policies of the Planning Scheme encourage diversity in housing styles and types. Moreover, this is a corner site where there is an opportunity for a modest second dwelling, although the building area available is restricted if the existing dwelling is to be retained.

19. Key issues raised in the Scheme relate to the integration of new development into existing residential areas and off-site amenity considerations.

20. The Scheme encourages new development to achieve positive outcomes in terms of a contribution to the neighbourhood. The local policies include Clause 22.01 (Residential Development and Character) include the subject site within Character Area Type C. Of the policies set out which are relevant to the issues raised in submissions, I note that development should complement the current character statement and satisfy the intent of the desired character statement, buildings should be setback from street frontages "in context with the surrounding environment", car parking and accessways are discouraged from fragmenting the streetscape, the height and scale of existing dwellings should be respected, a high degree of articulation in designs shown, and high front fences minimised.

21. The desired character statement for Character Area Type C states in part:

The neighbourhood character of this area will develop within a pleasant leafy framework of well planted front gardens and large canopy trees.

Architecture, including new buildings and extensions, will, in the majority of cases, be secondary in visual significance to the landscape of the Character Type from the street. However, in neighbourhoods that currently have a large proportion of two storey houses, the architecture will gradually become more dominant, although it will always be buffered from the street by a well planted front garden that will ensure the soft leafy nature of the street will be perpetuated.

Setbacks will be generous and consistent within individual streets.

Building heights will vary between neighbourhoods. Those neighbourhoods where the diverse topography and well developed mature tree canopy provide a framework within which redevelopment can occur will have a larger proportion of two storey houses. In the lower, less wooded areas, buildings will be mainly low rise unless existing vegetation or a gradation in height softens the scale contrasts between buildings.

The built-form will be visually unified by well planted front gardens that contain large trees and shrubs and street tree planting. Neighbourhoods that are influenced by the naturalistic landscape of the creek valleys or on highpoints and ridges will have a predominance of native trees in both the public and private realm. Trees within lots to be redeveloped will be retained wherever possible in order to maintain the established leafy character.

Streets which have a majority of gardens currently lacking fences will continue to do so. Walls and fences in other streets will be low to allow plants in the front garden to be visible from the street....

22. The Applicants sought to define the relevant neighbourhood as the five properties on either side of the development on both sides of the street as well as the properties to the rear. Mr Chow also referred to the character of a wider neighbourhood.

23. My observations are that the immediate area in the vicinity of the subject site is predominantly single storey with some two storey dwellings (attic style and double storey). Most of those two storey forms in the vicinity are well setback from the street. Setbacks can vary in the locality, although they are often at 7 or more metres, and some corner sites have high fences and narrower setbacks. The presence of vegetation is well evident. There are some new dwellings, and I was advised by Mr Chow that a building permit has issued for a substantial two storey house at Nos. 68-70 William Street, opposite the subject site.

25. In the context I have described, I have no difficulty with the architectural form of the proposed dwelling, which adopts a style and materials that are acceptable. I also have no issue with a dwelling including a second storey element despite the predominance of single storey dwellings abutting the site - upper storeys are not foreign in this neighbourhood whether examining dwellings near to or further from the site. There is nothing in terms of the Scheme's policies or any special design considerations that cause a second level to be precluded as a matter of principle.

26. I have concerns about the front setback, at 3-5.5 metres, having regard to the policy direction set out in the Scheme. The existing conditions on the site include a 1.8 metre high fence to Beverley Grove, a deep setback to No. 24 Beverley Grove and a 7 metre setback to the existing residence. For a single storey building in a similar setting, a 3 metre setback may arguably be acceptable, however, despite the articulation to the proposed dwelling, the upper storey will sit well forward of the existing dwelling with relatively limited planting opportunities available to the proposed house given driveways and pathways. The position of the dwelling, on a bend in the road with a driveway along the north side, will accentuate the presence of the structure. A tree within No. 24, abutting the corner of the subject site, could be significant in softening the impact of the proposed development in the streetscape, however, that is on adjacent land.

27. A further concern is that the tandem car space sits forward of the unit and, for a four bedroom house, I do not consider that a single car garage and tandem space is reasonable on-site provision, even being mindful of the availability of unrestricted on-street parking.

28. The separation of cross-overs minimises the disruption to the streetscape. The internal layout of the proposed residence includes adequate private open space with sunlight access.

29. The extent of southern wall is substantial and could benefit from some articulation.

30. In terms of off-site impacts, I consider that:

s the potential for overlooking from the upper level has been adequately addressed.

s overshadowing of adjacent properties falls within reasonable limits in terms of the tests of the Good Design Guide.

s the proposed dwelling would present a quite significant bulk to the private open space of the dwelling to the east in particular, having regard to the low fence and limited vegetation within that adjacent property. The lack of a landscaped edge along the whole of the driveway (north boundary) limits opportunities for screening to the dwelling to the north. That is a further concern.

31. In relation to the existing residence, I refer first to private open space. The principal private open space is shown within an enclosed area to the street. That is not a solution I would find acceptable if two new residences were being proposed, however, I accept in this case that the amount of fencing around the street frontages will be significantly reduced by this proposal. While I note that a second area of secluded open space is to the north of the family/dining room, it will be significantly shaded by the wall of the proposed dwelling.

32. The living room window to the existing residence faces north and this is proposed to view into a new carport. That is not acceptable and I do not consider that a highlight window above the garage is an adequate alternative. A window could be placed in the western elevation (as per Condition 1h on the Notice of Decision) and that would be necessary regardless of the need to relocate the gas furnace.

33. I do find that the proposal should be rejected because of the potential for some additional on-street parking to result or for reasons that the safety of pedestrian or traffic movement will be jeopardised.

34. In conclusion, my main concerns are that a large dwelling is proposed on a relatively small part of the site requiring a narrow front setback, and resulting in limited planting opportunities, inadequate on-site parking and quite significant visual bulk both to the street and to neighbouring properties. A second dwelling may be acceptable, however, a smaller building footprint is necessary, with a consequential reduction in the upper level. That is, the second dwelling needs to be scaled-down in size. Issues relating to the amenity of the existing dwelling can be readily overcome.

35. Cr Morrissey had been summons to give evidence. Mr Townsend raised the issue of his costs for attendance being paid by the Applicants for Review, pursuant to Section 104(5) of the Victorian Civil and Administrative Tribunal Act 1998.

36. A schedule of costs was tendered by Mr Townsend. The three items scheduled related to time taken to attend, loss of private business time, and cost of parking. The first and third items were challenged by Mr Lucarelli following his cross-examination of Cr Morrissey.

37. I consider that the fair and reasonable costs for Cr Morrissey's attendance relate to the loss of private business time ($220) and car parking (being $28 less $10 which was said to have already been made available to Cr Morrissey). I do not consider time in attendance to be reasonable, as Cr Morrissey indicated he would seek reimbursement through the Council in association with his role as Mayor.

For the above reasons, the Application for Review is allowed, and I will order that the decision of the Responsible Authority be set aside.