1. In permit application no. PA1225692, the decision of the Responsible Authority is set aside.
2. A permit is not granted and no permit is to issue.

Section 82 of the Planning and Environment Act 1987.

The review site is on the south side of Queen Street, east of Romawi Street, in an established residential area. The land has an area of 754 square metres and is irregular in shape. The common boundary with No. 144A Queen Street, to the east, is around 51.5 metres. The dwelling to the east is one of a pair. The pair of dwellings comprises single storey, side by side, houses. No. 144A has a courtyard with west-facing windows servicing kitchen, meals and lounge areas. There is a well maintained rear open space stepping down from the living room.

Construct two, two storey, attached side by side dwellings. The dwellings are a mirrored-image with three bedrooms, living areas and a theatre room. Roof decks, notated as equipment decks, are proposed to both dwellings.

Residential 1 Zone. Design and Development Overlay Schedule 4.

Clause 32.01 to construct more than one dwelling on the land. Clause 43.02 (Schedule 4 - Foreshore Height Limitation) to construct buildings and works.

Clauses 10, 11, 15, 19, 21, 32.01, 43.02, 52.06, 55 & 65.

The Tribunal inspected the site, No. 144A Queen Street, and locality after the hearing.

1. Ms Stein has asked the Tribunal to review a decision made by the Hobsons Bay City Council to determine to grant a permit for a pair of side-by-side, double storey, dwellings on a property abutting her western boundary. She is concerned about the impact of the proposal on her amenity. I must decide whether to grant a permit and, if so, what conditions should apply.
2. Having considered all of the written statements of grounds, written and oral submissions presented, I have decided to set aside the Council's decision for the reasons that follow. The material before me includes additional submissions I invited subsequent to the Hearing (by 4 October 2013 for the Council and Applicant and by 21 October 2013 for the Respondent) to address several Tribunal decisions that are relevant to the question of the compliance of the proposed roof decks with the mandatory requirement in Design and Development Overlay Schedule 4 (DDO4).

1. This is the most recent of a series of proposals for the land at No. 146 Queen Street. A permit was issued for a very similar proposal as now before me with various requests for amendments and extensions of time being sought to that permit. The permit expired in May 2012. Ms Stein is keen for a final resolution of the future of the land abutting her western boundary but is concerned that the current permit application will unreasonably and adversely affect her amenity particularly through the inclusion of an equipment/roof deck, overshadowing and visual bulk.

1. DDO4 limits development to two storeys and this cannot be varied with a permit. While Ms Stein's principal concerns about the equipment deck adjacent to her home are the degree of visual bulk, overshadowing and the potential for overlooking, she also questioned whether the decks can be allowed given the mandatory two storey DDO4 requirement. She submitted that although they are annotated on the plan as "equipment decking", their size and position mean that they are most likely to be used as private open space. Ms Stein observed that the Council's Residential Design Policy for Multi Unit Development does not support roof decks outside activity centres. Ms Stein also referred to the Altona Beach Activity Centre Urban Design Framework - October 2008 - that refers to two storeys as 6 metres, although this Framework does not include the review site.
2. In response, the Council and Respondent both sought to explain how the proposed decks have been designed to appear as part of the second level of the development with the walls forming screening to 1.7 metres in height above the floor level of the decks. They submitted the proposed decks would not appear as a third level. Ms Lunn stated that the Residential Design Policy for Multi Unit Development carry no statutory weight (notwithstanding that the document is referred to in the officer's assessment of the current application).
3. I invited the parties to address several Tribunal decisions dealing with the inclusion of roof decks in DDO4 in Hobsons Bay:
   • Misquitta v Hobsons Bay CC [2012] VCAT 1775; and
   • Cosgrave v Hobsons Bay CC [2011] VCAT 519 referring to:
     • Cope v Hobsons Bay CC [2004] VCAT 2487; and
     • Poci Brothers Pty Ltd v Bayside CC [2003] VCAT 1884.
4. I have considered all of the submissions on these matters as presented at the Hearing and in subsequent submissions allowed with my leave. I note that the Council and Respondent sought to distinguish the current proposal from the Tribunal's findings in Misquitta and Cosgrave on the basis of the proposed design. Specific reference was made in the submission by Best Hooper solicitors for the Respondent to the degree to which the roof decks and staircase enclosure would be hidden from the street and that neither would be visible from the street directly opposite or in front of the site. The design was described in the submission as not comprising screening and balustrades that were the case in the other decisions.
5. The aim of the DDO4 is to limit development to two storeys and, having regard to the approaches adopted in Misquitta and Cosgrave, the intent or purpose of the Overlay is to ensure that development has the visual appearance of, or can be characterised, as being two storeys. These decisions are decided on the facts in each case where the Tribunal formed the view that the proposed roof decks would appear as a third level and would for this reason be contrary to DDO4.
6. I have various inter-related concerns about the proposed equipment decks in this case (as also elaborated upon later in these reasons):
   • The form of the proposed equipment decks is such that the enclosed stairwell will read as a third level, sitting above the roof line, albeit it is not habitable space. Views to this element would be apparent from the public realm notably on oblique angles given the low rise form and open driveway/garden of Nos. 144 and 144A Queen Street. The situation is akin to the roof top plant at No. 142 Queen Street that is clearly seen in views from the west in Queen Street.
   • The decking plus stairwell are some 10.2 metres in length and 4.92 metres in width. They are, therefore, sizeable spaces.
   • Condition 2(i) requires the southern side of the roof decks to be screened and it is likely that such screening to around 1.7 metres in height would give the appearance of a third level. It may be seen from the public realm and private properties to the south.
   • The solid surrounds are an extension of the second floor and aim to appear visually as two storeys. However, the bulk created by the high side wall to proposed Unit 2 would affect the amenity of the west-facing dwelling at No. 144A Queen Street particularly its western courtyard as discussed below. This could potentially be addressed through increased setbacks to the deck. However, and importantly, a revised building form would adopt the presence of a third level because the wall plane would become stepped rather than continue from the level below as shown in the application plans.
7. As a consequence, I do not consider the mandatory requirement of DDO4 would be met.
8. I record that I do not consider influential weight can be given to the Residential Design Policy for Multi Unit Development or the Altona Beach Activity Centre Urban Design Framework in deciding this matter. However, I note the Policy suggests a different outcome with respect to roof decks when compared what has been supported by the Council here.

1. The review site is located on the south side of Queen Street and proximate to the foreshore. The area is undergoing a significant level of change with some large detached dwellings, such as along Esplanade facing the Bay, and pairs of new dwellings. There are, however, some older dwellings. In the case of No. 144 Queen Street, there are also some modest single storey units. In the context of large two storey dwellings to the east of No. 144/114A and new dwellings in construction further to the west of the review site, the houses at No. 144 are a fairly diminutive element.
2. There are also large new units and houses north of Queen Street but it is relevant that the planning context applying to the north side of Queen Street is not the same as the south side. All of the area is part of an established residential precinct that is near to a major activity centre. However, the controls applying through DDO4 are more restrictive with respect to new development compared with the north side where no DDO applies.
3. In this evolving area, the concept of a pair of side by side, two storey, dwellings is appropriate in principle. The contemporary styling is also acceptable.
4. The wall height of the proposed east elevation is nearly 8 metres. There is a minor non-compliance with Standard B17 as Ms Plakidis identified (190mm) although there would be a greater non-compliance with the Council's Residential Design Policy for Multi Unit Development if that was applied.
5. I have noted the minor non-compliance but the main issue in my view is that the perceived height of this elevation is accentuated by two key factors. These are firstly, the very low scale of the single storey, single fronted, unit at No. 144A Queen Street and secondly, the profile of the butterfly roof form of the proposed development that rises to the east (with the lower point associated with the central party wall of the proposed pair). The high wall plane, to provide wall screening to accommodate the equipment decks, gives a somewhat top-heavy presence to the upper floor of the proposed dwellings. While this, alone, may not be problematic from a character perspective, it is the impact of this interface on the amenity of No. 144A Queen Street that is a concern, as I discuss next.

1. One of Ms Stein's main concerns about this permit application is the impact on her west-facing courtyard. This courtyard is associated with a kitchen and living area and forms what she described as "an outdoor room" that is enjoyed as part of the lounge and dining area. There are rear windows/doors leading into a secluded private open space to the rear or south. With its central party wall with No. 144 Queen Street, this unit is substantially oriented to the west.
2. The Council and Respondent submitted that Standard B21 would be met with respect to overshadowing of the secluded private open space at No. 144A Queen Street. Ms Stein questioned this with respect to her courtyard. Ms Plakidis described the courtyard as a service area and said that when considering open space as a whole the Standard is easily complied with.
3. When considered overall, I agree with the Council and Respondent that Standard B21 would be met. This Standard addresses the equinox and deals with sunlight access between 9am and 3pm, not later in the day. However, there is no doubt that the proposal will have a significant impact on sunlight access to the courtyard and windows to this courtyard. My assessment is that this would commence between 1 and 2pm at the equinox noting that the area is shaded in the morning by the dwelling itself. I do not consider that it can be characterised as a service area - it is secluded open space conveniently accessed from the main lounge/kitchen although I agree that there is also the larger rear open space as well.
4. Given the discussion above resulting in the removal of the equipment deck, a revised elevation treatment lowering the wall height would in turn reduce the impacts on the courtyard area (because the raised wall height extends through the whole of the upper level even though the deck is at the rear).

1. Another concern is the bulk presented by the high eastern wall plane and roof form. A related issue raised by Ms Stein was in terms of the energy efficiency of her dwelling given a loss of sunlight.
2. As noted, Ms Plakidis identified a small area of non-compliance with Standard B17 along this elevation although this was not indicated in the Council's assessment. I consider it is appropriate for Standard B17 to be complied with - there is no reason why it cannot be achieved and the extent of visual impact arising from the inclusion of the deck level is significant for the property to the east. As noted, the same floor level for the deck is carried through the balance of the design as it extends to the street. This part of the development adds to bulk and shadowing impacts and should be setback and/or lowered for the entire first floor level to reduce that bulk.
3. Windows in the adjacent dwelling may experience increased shadowing but the relevant standards of Clause 55, such as B19, appear to be complied with.

1. Ms Stein raised concerns about the potential for overlooking from the southern elevation of the equipment deck. With its removal, this would no longer be an issue.
2. Ms Stein also referred to the glazing of east side windows within the proposed development and sought clarification that they are obscure glass. Ms Plakidis explained the proposal. I am satisfied that the habitable room windows would comply with Standard B22. Two others are non-habitable with openable obscure glazing below 1.7 metres but these do not require screening based on Standard B22.
3. Ms Stein also expressed concern about noise from the proposed deck. There may be some noise but that would not be a reason to refuse a permit relating to two dwellings or a reason to remove the deck in this case.

1. The courtyard associated with No. 144A Queen Street has been landscaped with paving and a planter box with fountain. Elements are attached to the side wall and Ms Stein claimed that she had adverse possession to some land although the land is not part of her title.
2. I cannot give weight to submissions claiming adverse possession - this is a matter that must be taken up privately and/or through other legal processes.
3. As I understand it from Ms Lunn's submission, on the earlier permit, a condition (1v) had been agreed to by the then permit applicant requiring a rendered brick wall of approximately 3.4 metres in height adjacent to the courtyard on the boundary at the permit applicant's cost. Ms Stein requested a similar condition with respect to the current application including her approval of the final render colour. That was not agreed by Ms Plakidis but she did offer a permit condition that the permit holder, at its cost, replace the existing boundary wall opposite the courtyard in No. 144A Queen Street with a 2 metre wall extending south from the rear of the proposed garage of Unit 2 for a length of 6 metres. Ms Stein accepted that suggestion.
4. A further matter with respect to fencing raised by Ms Stein related to her concern about the timing and form of temporary fencing. She sought a condition addressing this matter to ensure the fence is erected immediately on demolition of the existing fence and walls. While I appreciate this concern, I would find no reason to direct additional conditions to address this request. It could be taken up privately between neighbours but it is not a relevant planning matter with respect to this application.
5. Ms Stein presented submissions with respect to the treatment of the front, side, boundary fence that she sought to be tapered toward the street for a shorter distance (2.5 metres) than the 5 metres shown as an annotation on the plans. I note this preference but do not consider there to be a specific planning issue with the fence as proposed. The 5 metre taper will occur well forward of the tandem car spaces and garage of proposed Unit 2.

1. At the hearing, I observed that the plans show three tandem car spaces for Unit 1 and four tandem car spaces for Unit 2. This is unnecessary and I do not consider it should be part of an endorsed plan. One tandem space in addition to the garaged space would accord with Clause 52.06.

1. For the above reasons, I am concerned about the inclusion of the equipment decks that, with changes to ensure an acceptable level of visual bulk to the dwelling to the east, will result in part of the development reading as three storeys including from Queen Street. This would not accord with the intent of DDO4. Moreover, I consider that removing the equipment deck needs to be undertaken in conjunction with a lowered wall height for the whole of the upper level (as the deck floor level extends through the whole top floor). The necessary changes have significant implications for the architectural composition that relies on a mirrored-image.
2. On balance, I have decided that it would be appropriate to set aside the Council's decision for the matters identified in this decision to be reconsidered. I appreciate the desire of the parties for the future of the site to be resolved but a development that has been modified in part would not be an acceptable outcome mindful of the design that is based on a symmetrical response. A fresh application would also enable further consideration of any impact on the new dwelling in construction to the west of the review site.

[1] To the extent that this is a question of law, no party objected to the Tribunal as constituted determining the question.