The construction of a two storey dwelling at the rear of an existing single storey dwelling with associated car parking and landscaping in accordance with the endorsed plans.

1. Prior to the use and development hereby permitted commencing, amended plans shall be submitted for endorsement. Such plans shall generally accord with the plans tabled at VCAT Application for Review 2001/005735 heard on 2 April 2001 but modified to show:

(a) a solid fence enclosing the private open space of Unit 1, terminating with a gateway set back at least one metre west of the driveway on the east side of the north facing lounge window;

(b) the provision of appropriate screening vegetation in the south-west corner of the site to the satisfaction of the Responsible Authority.

2. The layout of the site and size, design and location of the buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3. 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.

4. Before the use and/or development starts (or at a later date approved by the Responsible Authority in writing) a landscape plan prepared by a suitably qualified and experienced person or firm incorporating:

(a) a survey of all existing vegetation and natural features;

(c) a schedule of all proposed trees, shrubs and ground cover, which will include the location and size 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) paving, retaining walls, fence design details and other landscape works including areas of cut and fill must be submitted to the satisfaction of the Responsible Authority. When the plan is to the satisfaction of the Responsible Authority it will be endorsed and form part of this permit.

5. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before occupation of the development and/or commencement of the use.

6. All existing vegetation shown on the endorsed plans must be suitably marked before any development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

7. All work within the drip line of any tree to be retained must be supervised by a qualified landscape architect or horticulturist to ensure that the works are done in a manner which protects and minimises damage to those trees.

8. Temporary barricades to protect trees to be retained shall be erected to the satisfaction of the Council prior to the commencement of any works.

9. No goods or materials shall be stored or vehicles parked within the drip line of any tree to be retained.

10. All landscaping works shown on the endorsed landscape plans must be carried out and completed to the satisfaction of the Responsible Authority and any dead, diseased or damaged plant replaced.

* the development does not start within two years of the date of this permit; or

* the development is not completed within four (4) years of the 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 three (3) months afterwards.

A building permit must be obtained before commencing construction of the development.

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For the Applicant for Review: Mr Philip Barnes, Planning Consultant of Barnes Planning Pty Ltd.

For the Responsible Authority Mr Martyn Thompson, Planning Consultant of Peyton Waite.

1. This decision concerns two applications under Sections 77 and 79 of the Planning and Environment Act 1987 to review a decision by the City of Boroondara to refuse to grant a permit (in Application No BOR99/262) and the failure of the Council to determine a second application (No BOR00/225) for the land at 110 Belmore Road, Balwyn to be used/developed for the construction of a double storey dwelling at the rear of an existing single storey dwelling.

2. Application for Review 1999/101193 was placed on hold pending the determination of Application for Review 2001/005735. At a directions hearing held on 24 January 2001 it was resolved to hear both matters together.

3. At the commencement of the hearing Mr Barnes stated that the Applicant wished to run the appeal on the basis of Application for Review 2001/005735, being the application for failure to determine. Application for Review 1999/101193 was therefore withdrawn.

4. Mr Thompson advised that the Council had no objection to the matter proceeding on that basis.

5. The subject site is located on the south side of Belmore Road one allotment east of the intersection with Hilda Street, Balwyn. The site is regular in shape and has a frontage of 16.76 metres to Belmore Road, a depth of 42.67 metres and an area of 715 square metres.

6. The Tribunal finds the following description of the site and locality, taken from Mr Thompson's written submission, to be an appropriate one:

A single-storey post Second World War detached rendered brick dwelling currently occupies the site, which is set back 8.8 metres from Belmore Road.

A 1.6m high picket fence is located along Belmore Road and is proposed to remain unchanged. There is no significant vegetation within the rear yard.

Immediately opposite the subject site, to the north, across Belmore Road is a mixture of double and single storey brick dwellings. Some of these are obscured from the street through the use of high brick fences (ie 2.0m) and therefore provide very little interface with Belmore Road.

The subject site has an abuttal with No 108 Belmore Road to the west. A single-storey brick detached dwelling set back 9.0m from the frontage occupies this site. The driveway is located along its common boundary with the subject site and a carport is located adjacent to the dwelling. The property is unoccupied and is in an unkempt state. This site has also been the subject of an application for planning permit for dual occupancy but was unsuccessful, ie BOR 99/772.

To the east is a single storey detached brick dwelling located at 112 Belmore Road. The dwelling has a setback of some 9.2 metres and is offset 2 metres from its common boundary with the subject site. Three windows, two of, which are habitable, are located along the west elevation facing the subject site.

To the rear are more single storey detached brick dwellings with frontage onto Stroud Street. Immediately to the southwest is the single storey brick unit developed as a dual occupancy on the corner of Stroud and Hilda Streets. This unit has its frontage onto Hilda Street (i.e. No 3) and its private open space area is located in the north east corner of the lot with abuttal to the subject site.

An inspection of the wider area confirms the existence of a number of dual occupancy developments on and near Belmore Road. In particular the example at 116 Belmore Road also utilises a second single dwelling behind the existing home.

7. The Tribunal adopts the following description of the proposal, taken from Mr Thompson's written submission:

The proposal is the construction of a second, double storey dwelling at the rear of the existing dwelling.

Key design elements of the plans proposed include:

* Is to be setback 1.82 to 3.05 metres from the rear (southern) boundary

* 3.05 metres at its nearest point increasing to 4.79 metres rear boundary

The dwelling includes at the ground floor, kitchen, meals, dining and lounge room, toilet and laundry. First floor is to be used for three bedrooms and en-suite.

The existing dwelling shall remain largely unchanged except for the removal of the existing carport and deck and verandah at the rear. It is intended to utilise the frontage setback as an enclosed private open space. The area immediately behind the dwelling is to be converted into a double carport and vehicle hard stand area for the existing home.

Design includes pitched tiled roofing with eaves to the upper floor, vertically orientated windows, cement sheeting at the upper floor level and rendered brickwork at ground level.

8. The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Boroondara Planning Scheme. Within this zone no permit is required to use land for the purpose of a dwelling. However, pursuant to Clause 32.01-4, a permit is required in this zone to construct two or more dwellings on a lot.

9. In addition to the matters for consideration set out at Clause 65 of the Scheme including; the State and local planning policy framework, the matters set out at Section 60 of the Planning and Environment Act 1987 (`P&E Act'), and any effect on the amenity of the area, pursuant to Clause 32.01-4 of the Scheme, the Responsible Authority must consider the Good Design Guide for Medium Density Housing (`the Guide'). At page 1:3 of 3, the Guide sets out the following approach to assessment:

Following the initial site analysis, all eleven design elements should be considered when preparing and assessing the development proposal. Wherever possible, a development should satisfy the objectives and criteria of all the elements. Invariably, different weighting will be given to each of the elements for any particular proposal due to the circumstances of the site. Because of this, a responsible authority must exercise its judgement as to whether a development proposal satisfies both the spirit and intent of the Guide and enough of the design element objectives and criteria to be acceptable.

10. Under the Local Planning Policy Framework of the Scheme, the Municipal Strategic Statement at Clause 21 identifies the eight key strategic issue areas for Boroondara, of which urban character, residential land use and infrastructure are relevant to this application.

11. The City of Boroondara Residential Urban Character Study is incorporated in the Planning Scheme and is utilised in the assessment of neighbourhood character in the various areas of the city. The Neighbourhood Character Policy is set out in Clause 22.07 of the Planning Scheme. The objective of the policy is:

To encourage design solutions, which enhance and respond positively and creatively to the existing neighbourhood character of the residential areas within the city.

12. The subject site is located within Urban Character Area No 35. The Character Statement for this area notes that:

This elevated small area has panoramic views from many lots. It consists of two main east-west streets, which parallel Belmore Road on the northern boundary. The area was originally subdivided during the 1920's into quite large lots, mostly north-south in orientation.

Construction of houses did not occur until post-World War II, when the area was developed for public housing. The homes are modest and a number have been redeveloped.

13. Within the Statement no elements of character are ranked as being `very important', but features which are considered `important' include: views, and the building style which is characteristic of the post-war modest brick public housing.

14. The subject application for permit (No BOR/00225) was lodged with the Responsible Authority on 6 March 2000. Council requested further information and a series of meetings between the Applicant's representative and Council took place in the period up until the end of January 2001.

15. The subject application for review was lodged on 24 January 2001. No grounds of review were required to be circulated because of the nature of the application for review under Section 79 of the Planning and Environment Act 1987.

16. The application was not required to be advertised in light of Council's reluctance to approve the proposal and the knowledge that both applications for review had been lodged with VCAT.

17. At its meeting on 27 February 2001 the Council's delegate resolved to refuse to grant a permit on the following grounds:

1. The proposal fails to achieve a satisfactory level of compliance with the Good Design Guide for Medium Density Housing in relation to Element 4 - Site Layout and Landscaping, Element 3 - Neighbourhood Character, Element 6 - Building Envelope, Element 9 - Open Space, and Element 7 - Visual Privacy.

2. The proposal would have a detrimental impact on the neighbourhood character in terms of building scale and restricted landscaping opportunities.

3. The proposal would have an adverse impact on the amenity on the adjoining properties in terms of visual bulk impacts to the south.

4. The proposal will cause a decline in the level of amenity of the existing dwelling resulting from the construction of the additional dwelling in terms of the location of the open space in the frontage setback.

5. The location and amenity of open space for both units is unsatisfactory.

6. The proposal is an overdevelopment of the site.

18. Subsequent to the hearing the Tribunal inspected the subject site as well as the surrounding area.

19. The principal issues for consideration in respect of this application for review fall into three categories:

20. There was no dispute between the parties that the site is suitable for medium density housing being in close proximity to public and community amenities, commercial facilities and good public transport.

21. Retention of the existing brick dwelling, while presenting some constraints ensures that the character of the street and the neighbourhood will be largely unaffected by the proposed development. From a streetscape point of view, the effect of developing a two storey dwelling at the rear of the existing house will be reduced by the slope of the land to the rear.

22. The Tribunal's inspection of the area confirmed that there are a number of dual occupancy and double storey developments nearby, including a proposal for two double storey dwellings on the adjoining allotment on the west side of the subject property, at the corner of Belmore Road and Hilda Street. On the south-west corner of the site, two single storey attached units have a frontage to Hilda Street. The proposal exhibits a high degree of compliance with the provisions of the Good Design Guide and is in accord with the Municipal Strategic Statement objectives of increasing housing choice and diversity in existing residential areas of the City.

23. The Council's submission was critical of the fact that private open space for Dwelling 1, the existing house, is situated in the frontage setback of the site and that direct access is not provided from the living room. The proposed space has an area of 121.35 square metres enclosed by the existing open picket fence 1.5 metres high. The space has a minimum dimension of 8 metres, being the setback of the existing house from the frontage.

24. The area is on the north side of the dwelling and is clearly an important part of the amenity of the dwelling in its present use. The draft landscaping proposal calls for the use of creeper vegetation on the picket fence to create a semi-permeable view and increase the privacy of the private open space. Access to the open space is from the porch at the front door of the dwelling which opens directly into the lounge. Thus a person may pass from the living room to the open space in two or three steps. However, a more limiting fact is that the fencing, as drawn on the concept landscape plan, cuts off the view of the front garden from the window of the lounge, in effect negating the impression of the room having direct access as required by the Guide.

25. The Tribunal considers that it is sensible to use the north facing open space in the manner proposed but that to provide the necessary degree of privacy and improved buffering from traffic noise, the fence should be constructed as a solid timber fence rather than the existing open pickets. Such a fence should be terminated at a gateway on the east end of the north facing lounge window to retain the benefit of the garden setting.

26. In relation to the proposed dwelling, the Tribunal is of the view that the 45.34 square metres of private open space on the north side of the dwelling having a minimum dimension of 5 metres, supplemented by the 19.2 square metres on the south side of the dwelling, represents a satisfactory provision.

27. The slope of the land to the rear of the site results in the ground floor of the proposed dwelling being elevated in the south-west corner. While the residence immediately south of the subject property is situated some 20.8 metres from the common boundary and therefore is unlikely to be unreasonably affected, the Council expressed concern that overlooking could occur from the kitchen of the dwelling into the private open space of the rear unit of the property at 3 Hilda Street to the south-west. Given that a 1.95 metre paling fence is in place on the south and west boundaries and that the view from the kitchen is indirect, the Tribunal considers that the matter can be satisfactorily addressed by the provision of appropriate screening vegetation as part of a more fully developed landscape plan that will be required for the project.

28. Elsewhere, the setback of the upper floor elements and the location of windows in the design have ensured that the visual and acoustic privacy of neighbouring properties has been adequately considered. Both the Council and Applicant's submissions agreed that the effects of overshadowing are within acceptable limits.

29. The Tribunal notes that no resident objections were lodged in response to advertising of the initial proposal.

30. In summary I have found that the proposed development of a two storey dwelling and the refurbishment of the existing dwelling on the subject site is an appropriate development of the land in conformity with the provisions of the Planning Scheme and the Good Design Guide for Medium Density Housing.

31. Accordingly the Tribunal will direct that a permit issue.

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