1. As indicated, the No. 38 Donald Street lot already has the benefit of a planning permit allowing a two storey dual occupancy with a rear courtyard and a rear garage providing car parking off the rear laneway for two vehicles. The proposal builds on this situation by proposing to develop two more double storey dwellings on the No. 36 lot plus a 5th proposed dwelling at the rear, up above the parking spaces (ie straddling the rear of both lots).
2. Looking at the proposed new double storey dwellings on the No. 36 Donald Street lot, they both are accessed via a common pedestrian walkway along the southern boundary. The new dwelling facing Donald Street would have a single car space available from Donald Street, whereas the fourth and fifth dwellings proposed in the rear half of the No. 36 lot would use a car space accessed from the rear laneway. The proposed new double storey dwellings at No. 36 essentially have the same floor plan, being an open plan lower level living/dining/kitchen area and toilet, together with two bedrooms, a main bathroom and a balcony area at the upper level. The proposed car space off Donald Street involves a cantilevered roof over the top of the car space.
3. The new double storey dwellings at No. 36 would have a ground level deck area, plus the new dwelling facing Donald Street would have a private open space area adjacent to the single carpark. At the upper level, there would be balcony areas. With respect to the proposed new dwelling at the rear above the car spaces, private open space would be provided by way of an upper north facing balcony, including a privacy screen.
4. Turning to the planning controls and policies, the site is zoned Residential 1. A planning permit is required here under cl.32.01-4 of the planning scheme due to there being two dwellings proposed to be constructed on the No. 36 lot, plus the proposed rear dwelling which would straddle both titles. The site is not subject to any overlay controls.
5. Council referred me to the following relevant state planning policies - clauses 12, 14, 15.12, 16.01 and 19.03, plus the Melbourne 2030 Metropolitan Strategy. With respect to council's Municipal Strategic Statement and local policies, I have had particular regard to clauses 21.03 and 22.02. I note that the objective of cl.21.03-2 (residential areas) is "To maintain the distinctive character of Stonnington residential areas and ensure that use and development is consistent with the character, scale, appearance and amenity of the area". There are also some useful objectives set out at cl.22.06 which is council's "Residential character, amenity and interface" policies.

1. I will not repeat the submissions put to me, but concentrate more on what I see as the key issues. A copy of the written submissions and other tendered materials are retained on the Tribunal file.

1. Before proceeding further, it is appropriate that I deal with the preliminary issue of the contentious "extended laneway area" at the rear of the appeal site. In this regard, I have taken into account the submissions circulated before the 23 October 2007 hearing, together with the verbal presentations made to me at that hearing, regarding the legality or otherwise of the future occupants of the new dwellings needing to traverse over a small part of this "extended laneway area" lying south of the south-west corner of the appeal site, so as to be able to manoeuvre their vehicles into the four proposed rear garages.
2. I have only used the term "extended laneway area" loosely, recognising that it is common ground that this contentious area in fact forms part of the title to the No. 31 Greville Street property and that the status of this contentious area is very much in dispute. However, it is also the case that this contentious area is paved in the same manner as the rest of the laneway, and includes a light pole such as one might expect to find in a public laneway.
3. The current owner of the No. 31 property submits that both she and the previous owner of the No. 31 property have at all times objected to the previous owner of the 36 Donald Street property using the contentious area as part of rear access to the laneway. On the other hand, Mr Scally provided me with some affidavit material prior to the 23 October 2007 hearing, with this material being prima facie evidence that the previous owner of No. 36 utilised the contentious extended laneway area for access purposes for a period of over 20 years. Relying on this evidence, Mr Scally urged me to find that:
   • at the very least, there is a respectable argument that an "easement of long user" has been established, bearing in mind that s.42(1)(d) of the Transfer of Land Act 1958 provides that the freehold title to any land in Victoria is subject to "... any easements howsoever acquired subsisting over or upon or affecting the land"; or
   • taking Mr Scally's argument at its highest, this affidavit material relied upon by Mr Scally provides sufficient evidence for the Tribunal to in fact make a ruling that an "easement by long user" has been created.
4. In response to my questions at the 23 October 2007 hearing, Mr Scally clarified that he did not necessarily request that I make any specific finding that the alleged easement of long user has actually arisen, provided that the Tribunal is satisfied that it is at least in a position to proceed with making a finding on the other planning merits. In other words, Mr Scally was content that this easement issue be separately resolved on another day and in a different form as a property law issue, provided that the Tribunal did not see the overall situation as so futile as to justify refusing the proposal. In terms of how the Tribunal has previously dealt with this "futility issue", Mr Scally relied on the previous decisions of Pattison v. Port Phillip City Council [2001] VCAT 1275, together with my previous decision in Genber v. Bayside City Council (VCAT P2964/2006 & P3177/2006).
5. In turning to my finding on this "futility issue", I am satisfied that Mr Scally has provided sufficient affidavit evidence for the permit applicant to at least have a legitimate arguable case that an easement of long user has arisen due to the long period of alleged access over the contentious "extended laneway area" purportedly enjoyed by the previous owner of the No. 36 Donald Street property. While the position might have been different if the alleged previous period of access over the contentious area only ran to a handful of years, it is in Mr Scally's favour that the affidavit material points to the previous owner of the No. 36 Donald Street property enjoying access over the contentious area for more than 20 years.
6. Accordingly, I see no basis for rejecting the proposal due to the futility of the proposed rear car access arrangement.
7. With respect to Mr Scally's invitation for the Tribunal (if it was so minded) to make an actual ruling on this easement issue, I take the same position here that I did in the Genber v. Bayside CC decision. That is, the resolution of these type of easement disputes are a property law matter that are properly resolved on another occasion in the court system.

1. I turn now to my ordinary consideration of the key planning issues which have arisen in this appeal. In summary, having considered all the evidence and information, the submissions of the parties and having conducted an inspection of the subject land, I am not satisfied that the proposal is an acceptable planning outcome. Rather I see several major problems with the proposal which require re-thinking and a better design approach.

1. The proposal has an unusual element to it, in the form of a proposed fifth dwelling oriented in a north-south manner alongside the rear laneway. As mentioned, this fifth dwelling would straddle the rear part of both titles involved and sit on top of the rear car parking spaces. There would be two bedrooms at the south end, a central kitchen/bathroom/ living area, together with a north facing upper level deck.
2. On the one hand, I think there are plenty of precedents in inner city Melbourne for this type of development site to potentially include a double storey rear studio or loft. On the other hand, this is a much more ambitious proposed design feature, in that the new built form at the rear will constitute a complete separate dwelling, which in turn requires its own private open space. In addition, whilst it is true that the rear dwelling would have two rather than three bedrooms, there is still a minimal level of floor and private open space that must reasonably be provided, with the practical result that the proposed rear dwelling occupies virtually the full length (ie. in a north-south direction) the available upper level space at the rear.
3. My first concern here is that the proposed rear dwelling will in my view create an excessive level of visual bulk, when viewed from the rear laneway/or from any accessible viewing areas of the backyards of the other neighbouring properties. Whereas in my experience a new studio or loft at the rear of an inner city lot usually involves a pitched roof or other similar feature to make the upper level more recessive, I am concerned that the rather "boxy" upper level built form proposed here will unreasonably dominate its location.
4. With respect to any potential external amenity impacts on the neighbouring properties, the main problem I see here is the likelihood of the proposed northern upper level deck unreasonably impacting on the amenity of the adjoining No. 40 Donald Street property. In other words, a person wishing to use the backyard of the No. 40 Donald Street property would (if the proposal went ahead) face the prospect of dealing with a new adjoining deck area that is considerably higher and likely to be visually very imposing, combined with the risk that there will be significant noise impacts from users of the deck. In this regard, while I appreciate that the proposed upper level deck includes a privacy screen, the privacy benefits that this would bring needs to be balanced against the visual bulk implications of this screen when viewed from the backyard of the No. 40 Donald Street property. In addition, the privacy screen would not be a panacea for any noise problems.
5. Finally, I also have some real "internal amenity" concerns about how the rear courtyard of the No. 38 Donald Street dwellings (which are under construction) will interface with the proposed new upper level rear dwelling. A future occupant of the rear No. 38 dwelling faces the prospect (ie. when using their rear courtyard) of looking upwards and in an easterly direction towards the western wall of the upper rear dwelling living area, plus the privacy screen of the rear dwelling upper deck area. I see a real risk here that any occupant who uses the No. 38 rear courtyard will feel unduly "boxed in" by the new built form further to the east. In addition, I similarly see potential for noise problems, in terms of the interaction between the rear courtyard of the No. 38 Donald Street rear dwelling vis-a-viz the upper deck of the new rear dwelling.

Visual bulk implications of proposed new central dwelling

1. In terms of the location of the two new 36 Donald Street double storey dwellings compared to the existing dwellings to the south, the proposed new dwelling facing Donald Street will sit to the north of an existing two storey brick dwelling which extends close to the common boundary. Given the fairly imposing visual presence of this existing two storey dwelling to the south, I am more comfortable (subject to my comments further below about design detail issues) with the fairly expansive floor plan for the new double storey dwelling facing on to Donald Street. In addition, in my experience it is a common and reasonable design approach to concentrate on the more imposing new built form on that part of the site closer to the main street frontage.
2. On the other hand, I am conscious that the rear half of the No. 36 lot has a direct abuttal with the backyard of the No. 31 Greville Street property, together with a close proximity to the backyard of the No. 33 Greville Street property. The owners of both of these Greville Street properties were parties to the appeal and opposed the proposal.
3. Given the encouragement under Melbourne 2030 and cl.12 of the planning scheme towards achieving greater urban consolidation and better utilisation of well serviced locations, it is true that the Tribunal (with the right design) can support new residential development in a former backyard area of a residential lot. By way of example, see my decision in Metaxas Architects Pty Ltd v. Bayside CC (VCAT Reference P3123/2005), where I approved two new double storey dwellings in a former backyard area in Brighton, with these new dwellings utilising a suitably recessive attic style. On the other hand, it is also clear from decisions such as Alsocan Architects v. Yarra CC [2004] VCAT 1890 and S.R. and K.L. Brown v. Bayside CC (VCAT Reference P664/2005) that the Tribunal is conscious of the residential amenity sensitivities associated with developing former backyard areas, and accordingly looks to the designer to come up with a suitably recessive and sensitive design response.
4. Coming back to the site context here, I see one of the main site constraints as being that any development of the rear part of the No. 36 Donald Street lot needs to be suitably respectful of the interface with the backyards of the No. 31 and No. 33 Greville Street properties. Whilst on the one hand I do not see this as ruling out the potential for two storey development on the rear half of the No. 36 Donald Street lot, the point is that any such double storey development needs to be a well crafted rather than a bland design response.
5. By contrast, I regard it as being a fatal feature of the proposal that the upper level floor plan of the proposed new central double storey dwelling at 36 Donald Street largely copies the upper level floor plan of the adjoining new double storey dwelling at No. 36 which will face towards Donald Street. In particular, this leaves us with a situation where there would be two upper level bedrooms for the new central double storey dwelling that can only be described as "huge". In addition, there was criticism that one of these two bedrooms (ie. the one with a north-south orientation) could fairly easily be separated off to create a third bedroom by itself.
6. In these circumstances, I agree with the owners of the No. 31 and No. 33 Greville Street properties that there will be an excessive level of visual bulk, when standing in the backyards of these neighbouring properties and looking across to the southern wall of the new central double storey dwelling at No. 36. Whilst noting that the planning evidence from Mr. Linke included his view that there is sufficient articulation in the upper southern façade of this new central dwelling, I find this aspect of his evidence unconvincing. My finding is that there has been minimal attempt made to provide any articulation and visual relief in terms of the upper southern façade of the new central dwelling, and this façade is likely to be unreasonably bland and overbearing when viewed from the backyards of the adjoining properties to the south.
7. Whilst it is now an issue for another day as to what the appropriate design response here is, my initial impression is that a suitably skilled designer may well be able to redesign the upper level of the new "unit 2", using a much more economical upper floor plan to create a design that is suitably respectful of the neighbours to the south. For example, a re-design could more take a "pop up" approach to the bedrooms at the upper level.

1. Whilst the two issues raised above have been my fundamental basis for refusing the proposal, I also consider there to have been a lack of attention to certain design detail, which became evident over the course of the hearing.
2. The most obvious example of this was the confusion regarding the correct dimensions of the rear laneway, compared to the proposed rear garages. In other words, even with the benefit of Mr Walley having visited the site in the lead up to the 23 October 2007 hearing, I agree with the objectors that there was still some degree of confusion regarding what corrections are needed to the application plans, to correctly show the dimensions of the rear garages compared to the correct boundary of the rear laneway.
3. Some other design detail issues which came out during the hearing included the strange situation where the entry doors for the two new double storey dwellings at No. 36 lead straight towards a toilet, a lack of detail about the proposed kitchen layout in both of these new dwellings, problems with getting the rubbish bins from the central and rear No. 36 Donald Street dwellings wheeled out to Donald Street, confusion regarding how the upper balcony of the new No. 36 double storey dwelling facing Donald Street would operate in practice, together with the lack of any credible explanation why the upper north-south oriented bedrooms of the two new double storey dwellings at No. 36 need to be so large and include two built-in wardrobes.
4. It was also conceded by Mr Scally that there is a correction needed for the floor levels for the upper level of the proposed rear dwelling, with the information shown on the elevation plans being wrong but the correct information shown on the floor plans. Furthermore, Mr Lenke conceded in the course of his evidence that it might well be better to amend the proposed southern walkway by removing the walkway roof, together with using external screening for privacy protection rather than the existing approach of using upper planter boxes.
5. Whilst it may well be that most if not all of these design detail points can be readily addressed, it is hard to avoid the conclusion that there has been a lack of preparation here, together with a degree of "design on the run" in terms of how these issues were tackled at the hearing. A better approach seems for this type of design detail to be properly and thoroughly re-worked, so as to give everyone confidence that any fresh plans produced are comprehensive and have addressed these types of criticism. In addition, if any revised proposal still involves a new dwelling which straddles the two titles, it would be much more helpful and sensible for the fresh application plans to properly show the details of the two units which have already been approved and which are being constructed on the 38 Donald Street lot.

1. For the reasons set out above, the appeal against council's failure to make a decision in the statutory period is refused, and no permit is to issue.
2. Apart from the key planning issues which I have dealt with above, I note that there is an ongoing property law issue in terms of the dispute whether the development of the appeal site can include vehicles traversing a small area of the contentious "extended laneway area". Assuming there will be a re-design period that will occur now arise anyway as a result of my refusal of the proposal, it would seem a preferable outcome that the permit applicant resolve on an up-front basis whether any alleged easement of long user has arisen. However, I acknowledge that there is also a legitimate argument that either council or the Tribunal could in the future potentially approve a more appropriate development of the appeal site, subject to a "the development cannot proceed until the rear access issue is resolved" type of permit condition. This was the approach I took in somewhat comparable circumstances in Genber Pty Ltd v. Bayside City Council. Another potential "check and balance" would be an additional new permit condition requiring the current owner to bring this "rear access issue" to the attention of any new purchaser before any contact of sale is signed, if the site is on-sold prior to the approved development being completed. However these are now issues for another day.
3. In relation to rear vehicle access, I acknowledge Mr Scally's point that there are other residential properties located further along the rear laneway, which will also be affected by any future changes to the 36 Donald Street rear vehicle access. In particular, there was some debate on the second day's hearing that if the owners of the six pack building lying adjacent to the "elbow" of the rear laneway ever intended to re-build on their land up to the edge of the spare parking apron area which I understand currently all drivers informally utilise, then this might to some extent threaten on-going viable vehicle access for any neighbouring who needs to traverse the laneway elbow. This reinforces the need for a holistic approach to this issue.
4. As a starting point, I recommend that all adjacent owners who utilise the rear laneway be given the opportunity to be involved, if the owner of No. 36 re-applies for planning approval to build car access via the rear laneway. At a broader level, there might also be the opportunity for Council to proactively consult with the stakeholders and exercise leadership in terms of how best to address the uncertainty regarding these rear vehicle access issues and achieve a sensible outcome.
5. To the extent that "visitor parking" was raised during the hearing, I note that the proposal involves five dwellings but no visitor parking space being provided. Whilst the provision of a visitor space would be preferable, I do not regard any failure to do this as a fatal flaw with the proposal.
6. Where the proposal involved a new crossover for the 36 Donald Street front new dwelling, my view is that there are enough existing crossovers in Donald Street for this outcome to be acceptable. Whilst I agree with Council that a conventional carport in association with this new crossover would be a poor planning outcome, I was quite taken by the proposed cantilevered/floating roof over this car space, which Mr Linke supported as an interesting design feature. Provided this cantilevered feature is retained and there is appropriate use of materials and colour, I think this floating roof could be a quite funky and worthwhile design feature. However the other option here is simply to delete the roof, with Mr Linke offering only muted opposition to such removal.
7. In relation to the debate whether the large existing orange tree in the 38 Donald Street rear courtyard is worth preserving, whilst it is a pleasant looking tree, on balance I support its removal, but subject to a suitable replacement canopy tree being planted in this rear courtyard prior to the new No. 38 dwellings being occupied (assuming this has not happened already). A suitable replacement deciduous canopy tree would probably be a more functional outcome.