The decision of the Responsible Authority is varied. A permit is granted for the development of three double storey dwellings at 33 Dowling Avenue, Hoppers Crossing, generally in accordance with the endorsed plans and subject to the conditions contained in the Notice of Decision to Grant a Permit No. WYP1360/07 issued by the Responsible Authority on 18 September 2007 modified by:

1. The following additional requirements to Condition 1 as follows:

(h) Without extending the proposed ground and first floor footprints, reduction in the size of the first floor of Dwelling 3 so that it is setback a minimum of 6 metres from the northern boundary and a minimum of 3 metres from the southern boundary.

(i) A minimum setback of 6 metres from the street."

1. An additional condition to be added to the permit. This condition is to read:

"All external service pipes excepting drainage downpipes above the ground floor must be concealed from external view and to the satisfaction of the Responsible Authority."

1. Condition 1a) amended to substitute the word "eastern" with the word "northern".

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Ms. Kirstien Vanden Bossche, Town Planner, City of Wyndham

Mark Ribarsky appeared in person but did not make a submission.

1. This is an application under Section 82 of the Planning and Environment Act 1987 against Council's Notice of Decision to Grant a Permit to develop three double storey dwellings at 33 Dowling Avenue, Hoppers Crossing.

1. Ms. Bossche advised that there was a clerical error in Condition 1a) of the Notice of Decision to Grant a Permit, that the word "eastern" should be replaced with "northern" for the boundary fence between Unit 1 and the front boundary. This condition will be amended as requested.

1. The review site is located on the west side of Dowling Avenue, a street south of Hogans Road, Hoppers Crossing. It is regular in shape, with a frontage of 18 metres, a depth of 40.05 metres, and a site area of 744 sq m. It is vacant land. To the rear of the site is a drainage reserve which is used as public open space. There is a shared pedestrian and bicycle path in the reserve along the rear of the site.
2. The site is part of a residential estate developed in the early 1990s. To the north at No. 35 Dowling Street is a part two storey house. On the south side at No. 31 is a single storey house. The review applicants are residents of No. 35 to the north. The owner of No. 31 was an objector but not party to the proceeding.
3. This part of Hoppers Crossing is a well established residential area developed with single dwellings in both single and two storey heights.
4. Parties brought to the attention of the Tribunal that the residential estate of the review site was once affected by a single dwelling covenant. This covenant has since expired.

1. The proposal is to construct three double storey dwellings in a tandem fashion. Each dwelling provides three bedrooms and a single garage. There is a tandem car space in front of each garage. Vehicular access is by means of two crossovers: a new crossover for the garage of the front dwelling Unit 1, and the existing crossover and a common driveway for Units 2 and 3.
2. The development is constructed to the northern and southern boundaries for the garages. It is setback 6 metres from the street, less when measured from the front wall of the entry. The maximum height of the building is 6.9 metres at the apex of the hopped roof, with the wall height of the development at 5.4 metres.

1. The review site is in the Residential 1 Zone of the Wyndham Planning Scheme ("the Scheme"). A permit is required to develop two or more dwellings on a lot. The provisions of Clause 55 apply.
2. Other relevant provisions and policies from the Scheme are Clauses 11, 12, 14, 15.12, 16.02, 21.02-5 Future Housing Needs, 21.05 Managing Urban Growth, and 65.

1. At the hearing, Council and Mr. Smith spoke to written submissions. Mr. Ribarsky, although present at the hearing, did not make a submission.
2. The Tribunal explained to the parties that its decision will be based on the planning merits of the proposal and not personal expectations or circumstances.
3. Decision was reserved. The Tribunal indicated that it would inspect the site before doing so. It inspected the site on 27 January 2008.

1. The Tribunal's decision is based on reviewing the submissions of the parties, inspection of the site and examination of the Scheme.
2. As a start, the development of the site for a medium density development is consistent with the zoning of the land and the general policy direction of urban consolidation and increasing housing choice. The issues of this review are the expectation of development potential for the site in an estate where a single dwelling covenant was in force but expired; the design response of the proposal to the immediate neighbourhood character of the area; and the amenity impact of the proposal on adjoining dwellings.

A Single Dwelling Covenant that Affected the Site and Area

1. The lots in this estate were once burdened by a single dwelling covenant. This covenant has an expiry date. That was 28 February 1999. The Tribunal understands from the parties that there was an obligation to construct a house on a lot within 12 months of settlement.
2. As a result of this covenant, there is a general expectation by residents of the area, including the review applicant, that the site would be developed for a single dwelling. It is Mr. Smith's submission that this is the reason why he moved to No. 35 Dowling Avenue.
3. However, for some reason, the review site was never developed. No beneficiary of the covenant has either individually or collectively taken action against the relevant owner of the review site for not constructing a single dwelling within 12 months of settlement, if the site was sold prior to the lapse of the covenant. This covenant has now lapsed, and has been so since 1999. The site is no longer constrained from being developed for more than one dwelling.
4. In fact, medium density development in the estate is now possible if owners of land decide to redevelop their land.

Design Response to Existing Neighbourhood Character

1. The estate in which the site is located is a fairly recent one. Development in the estate is single dwellings on a lot in single and double storey buildings.
2. The adjoining dwelling to the north at No. 35 is part two storeys, and the dwelling to the south at No. 33 is single storey. The site backs onto a reserve which is used for open space purposes.
3. In terms of design response to the neighbourhood character of the area, the Tribunal notes that there is no preferred neighbourhood character formulated for the area. The relevant consideration is how the design of the proposal responds to the existing neighbourhood character of the area.
4. With regard to the proposal's response to the existing character of the area, the Tribunal is of the view that the proposed two storey scale at the front for Unit 1 is an appropriate response to the two storey buildings in the area. An immediate two storey building can be found to the north of the site.
5. Notwithstanding the appropriateness of the two storey scale at the front of the site and Council's understanding that the front setback of the development has been increased from 5.5 metres to 6 metres, the Tribunal notes that Standard B6 would required a front setback of 6.2 metres. Although it accepts Council's argument that the difference between the proposed 6 metres and 6.2 metres required is minor, the front facade is in fact forward of the 6 metres at the front wall of the entry, making the building having a setback that is less than 6 metres. The Tribunal considers a minimum of 6 metres warranted. It will require the building to be setback to this depth, including the front wall of the entry.
6. Next, the Tribunal turns its mind to the design response and interface of the development with its adjoining properties.
7. Generally, the back of a property in a single dwelling area is surrounded by the open backyards of adjoining properties on its side and rear boundaries. These backyards are usually open in character, private and sensitive in use. This is referred to by the review applicant as "openness of character". To the Tribunal, a medium density development of a site should respect this character and the sensitivity of the space. As a design principle, a development abutting these spaces should be a transition in built form and building mass.
8. The situation in this review is that there is open backyards on the side boundaries of the review site. There is no secluded private open space at the rear of the site. There is the extensive and expansive reserve used as public open space.
9. The Tribunal considers the two storey scale of Units 1 and 2 an appropriate transition of built form from the single and two storey massing of buildings at Nos. 31 and 35. Whilst the Tribunal would have considered a single storey built form for Unit 3 appropriate if the site is surrounded by open secluded private open space, this is not warranted in this case. The rear of the site is the extensive public reserve used by the public where a two storey built form and windows looking into the reserve would not be out of place. In fact, first floor windows in the development would have the benefit of providing surveillance of the public open space.
10. The issue is how to ensure a transition of built form between the development and the backyards of Nos. 31 and 35. In that, the Tribunal is of the view that the extent of two storey massing of Unit 3 against these two properties not sufficiently respectful. It is of the view that the first floor should be reduced in size by setting back further from the side boundaries. That would achieve a smaller footprint for the floor and reduce the extent of two storey building mass to the side boundaries. This would also ensure a break in the two storey walls facing these properties, achieving a reasonable stepping back of the wall.
11. The Tribunal will therefore impose a permit condition requiring the modification of the first floor of Unit 3. It is possible that this condition would convert Unit 3 from a three-bedroom dwelling to a two-bedroom dwelling. That would in turn reduce the parking demand on the land and area.

1. Mr. Smith is particularly concerned with amenity impact on the enjoyment of his residence, such as overlooking from the development and from their property to the development, overshadowing by their house on the secluded private open space in the development, and increased noise.
2. The Tribunal accepts Council's submission that the proposal meets all the prescriptive amenity impact standards of Clause 55.04. This means the level of amenity impact caused by the development to No. 35 is acceptable in a statutory planning sense.
3. With regard to the review applicants' concern of overlooking from their property into the development and overshadowing of their house on the secluded private open space in the development, the Tribunal notes that overlooking control in the Scheme is about amenity impact on existing dwelling and not the other way round.
4. With regard to overshadowing of the private open space of the front unit from the house at No. 35, the relevant assessment standard is B29 of Clause 55.05-5 Solar Access to Open Space and not B21 as Mr. Smith preferred. The depth of the secluded private open space meets the dimensions required by B29.
5. With regard to increased noise, the site is in an urban residential zone. Noise from the new dwellings will be those associated with dwellings, a use that is as-of-right in the zone.

1. The Review applicant has other concerns in the loss of view, unappealing views into the review site, and possible overspill of parking into the street. His view is that tandem parking space is unlikely to be used and will cause residents in the development to park in the street. He also submitted that the design of the development would defeat some of the deliberate design features of his house, such as orienting his bedrooms to the quiet (south) side of their house.
2. The Tribunal observed at the hearing that there is no guarantee of retention of views, particularly when there is no protection of views in the Scheme. It also observed that the review applicant's view over the reserve at the rear is not obstructed by the development as the reserve is to the rear of his property. The panoramic view of the reserve may be disrupted when viewed across the review site at an angle on the side.
3. The review applicant has so far enjoyed no disruption or impact from the review site because it is a vacant site. This cannot be expected to continue when the site is development, whether it is for a single dwelling or more than one dwelling. Given Mr. Smith's house at No. 35 is a two storey house and the ground floor elevated, there will inevitably be some overlooking into the development. That is not unusual and not something that should be dealt with by planning.
4. Mr. Smith advised that he has a particular health problem with his leg that he relies on on-street parking instead of parking in the garage or the driveway of his house. He was concerned that the tandem parking provided by the development would not be preferred by the residents and there will be spill over parking into the street, taking over the on-street space he relies on.
5. The Tribunal notes that the proposal provides a level of car parking satisfactory to Clause 55. There is no traffic or parking circumstances that this development should be treated differently from Clause 55. Further, the permit condition imposed by the Tribunal may reduce Unit 3 from a three bedroom to a two bedroom dwelling, reducing the pressure on parking on site and on the street. There is no planning reason to require either more parking or a different manner of providing parking spaces on site.

1. The proposal is to develop three double storey dwellings in an area of single dwellings. The estate was previously affected by a single dwelling covenant which has lapsed in February 1999. The proposal will be the first medium density development in the area.
2. The proposal meets all the prescriptive standards of Clause 55.
3. The Tribunal finds that, subject to further modifications of the design of the development, it is an acceptable design response to the existing neighbourhood character of the area. It supports Council's decision to grant a permit.

1. The decision of the Responsible Authority to grant a permit is varied.