To the immediate north of the site is a more recently constructed three storey apartment building. Planning permit 652/98 was issued for the demolition of the front building on this site (a non-contributory building in the Heritage Overlay) and for the redevelopment of the site to facilitate the construction of a double and triple storey building comprising 7 dwellings. This building is also visually dominant in the streetscape.

On the western side of the streetscape is an intact row of heritage buildings, including single and double storey building form, with heavily landscaped front and rear back yards. The buildings are visually separated from each other through side setbacks.

In relation to the broader context of neighbourhood character a mix of residential buildings including single and dual occupancy residences, and apartment buildings of varying styles influence the streetscape. As discussed by the applicant in their written site analysis, the predominant style of the dwellings is that of the inter-war Bungalo (sic) era, with some larger scale residential buildings, many on corner allotments, dating back to the 1930s.

11 The review site is zoned Residential 1 under the Port Phillip Planning Scheme. The purpose of the zone is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

12 A permit is required to construct two or more dwellings on a lot pursuant to clause 32.01-4. A development must meet the requirements of Clause 55 and decision guidelines requires consideration to be given as appropriate to the State and Local Planning Policy Frameworks and the objectives, standards and decision guidelines of Clause 55.

13 The property is located within Heritage Overlay HO8 - Elwood/Glenhuntly Road, Ormond Road, Ormond Road Heritage Precinct. A permit is required pursuant to Clause 43.01-1 to:

14 The relevant purposes of the Heritage Overlay are:

* To conserve and enhance those elements which contribute to the significance of heritage places;

* To ensure that development does not adversely affect the significance of heritage places;

* To conserve and enhance heritage places of natural or cultural significance;

15 Decision Guidelines (in addition to clause 65) are contained in Clause 43.01-5.

16 The Statement of Significance for the HO8 area is as follows;

"The Elwood Glenhuntly and Ormond Roads Area has historical value (Criterion A) for its capacity to demonstrate the attraction of the Port Phillip coastline as a location for marine villas during the mid-late Victorian period. In this respect it compares with nearby St Kilda, Brighton and Sandringham which sustained similar coastal development from an early date. It is important also as an Area founded on the first of the Victorian Railways' tow "electric street railways" promoted by the premier and minister of Railways Thomas (later Sir Thomas) Bent. The area has aesthetic value of the diversity of its villas and inter-war apartments often evoking romantic images of the period. Its tree-lined streets are also a distinctive characteristic. The juxtaposition of fine commercial and public buildings and spaces at the former Elwood Junction centre has landmark value. The Ormond Road centre assists to underscore the Area's distinctive inter-war character, the former "Broadway theatre" recalling the importance of the suburban picture theatre prior to the advent of television in 1956."

17 The Port Phillip Heritage Review classifies the existing buildings on the review site as contributory heritage places. At clause 22.04-2 a contributory heritage place is defined as including;

.............buildings and surrounds that are representative heritage places of local significance which contribute to the significance of the Heritage Overlay area. They may have been considerably altered but have the potential to be conserved.

18 The property is also located within a Special Building Overlay which require planning approval for the erection of buildings and works in this area. The Referral Authority has deemed it necessary for the ground floor level to be at least 300mm above the Australian Height Datum for this site (1.7 metres AHD).

19 With respect to the State Planning Policy Framework (SPPF) Clauses 14 and 16 are relevant. These clauses encourage the consolidation of urban development within existing urban areas and the encouragement of higher residential densities in locations with access to physical and community infrastructure. Medium density developments within established areas are also required to be respectful of the character of those areas. The provision of a diversity of housing styles is also encouraged through the development of well designed medium density housing which is intended to improve housing choice, make better use of existing infrastructure and improve energy efficiency of housing.

20 Clause 15.11 of the SPPF relates to Heritage and the objective is;

To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria's image and making a contribution to the economic and cultural growth of the State.

21 The principles of the SPPF have been reinforced by the Metropolitan Policy Melbourne 2030 - Planning for Sustainable Growth which emphasises the need for a more compact city to accommodate forecast housing needs while optimising existing infrastructure and protecting metropolitan green wedges. The importance of strategic redevelopment sites abutting public transport routes and close to activity centres is also emphasised in terms of their contribution to the achievement of sustainable growth objectives.

22 The relevant provisions of the Local Planning Policy Framework (LPPF) are contained within those clauses of the planning scheme which deal with housing, neighbourhood character and heritage.

23 At a municipal level, Clause 21.03 states that maintaining a diverse population mix is a key issue for the municipality with this being contingent upon retaining and encouraging housing diversity including large dwellings suitable for families, affordable housing, housing for elderly and singles and non-traditional and non suburban housing alternatives. Concerns are expressed about the pressure for higher density and multi unit and multi storey development that does not reflect the existing built form and scale and which contributes to adverse amenity impacts.

24 The municipality is then divided into a series of neighbourhoods within which specific objectives or planning outcomes are identified. At Clause 21.04-3 the Elwood and Ripponlea neighbourhoods are described as established residential areas within which established homes are encouraged to be retained and refurbished to ensure that a range of housing choices are available. The loss of existing single dwellings on larger garden allotments that are an important component of the suburban character of Elwood and Ripponlea is identified as a key issue at clause 21.03.3.

25 The Strategic Land Use Framework Plan at clause 21.04-8 identifies specific areas in which residential growth opportunities exist and in which higher density residential development is encouraged.

26 Residential land use objectives are at Clause 21.05-1 and these emphasise both the protection of the heritage and character of established residential areas and the need to achieve a constant residential population level by compensating for losses caused by declining household sizes with population growth. Strategies encourage new development which increases density ".....in established areas only takes place where it can be achieved without adversely affecting the amenity and character of the neighbourhood". Medium density development is encouraged to be located on sites with a frontage to a main road or public transport routes or are located within residential growth areas identified in the Strategic Framework Plan. .

27 The municipal wide strategies are supplemented by neighbourhood strategies. The strategies for the Elwood and Ripponlea neighbourhood are;

* Discourage new medium density development in established residential areas, except in appropriate locations such as on main roads or public transport routes if no other constraints exist such as heritage considerations.

* Protect the remaining stock of large dwellings and single dwelling lots in order to offer a range of housing options to the community.

* Protect the residential character of Marine Parade and Ormond Esplanade.

28 A neighbourhood character policy is at clause 22.01. The review site is located within Character Area No. 6 under the Council's Urban Character Study. The policy repeats much of the material referred to above but in relation to the Elwood and Ripponlea neighbourhood it is policy for all new developments to respect and, where possible, enhance the following elements which contribute to its individual character:

* Detached dwellings on large allotments with generous front, rear and side setbacks that allow for attractively landscaped large open space areas with established trees.

* The consistent architectural character of many areas created by the predominance of Federation and inter-war dwellings with hip or gable roof forms.

* Low building heights ranging from 1-2 storey for single residences and 2-3 storey for flats.

* The highly consistent and intact inter-war streetscapes in the `Poets' streets in the part streets of Elwood generally bounded by Barkly, Dickens, Mitford and Shelley Streets.

* The mature street trees in almost all areas, particularly the `boulevard' planting in streets such as Brighton Road and the Broadway.

29 Clause 22.04 is a Heritage Policy which contains policies for demolition of buildings and new development in areas affected by heritage overlays. It is policy not to support the demolition of a contributory building unless and only to the extent that the building is structurally unsound or cannot be feasibly reused, and either the replacement building and/or works displays design excellence which clearly and positively supports the ongoing heritage significance of the area, or in exceptional circumstances where the streetscape is not considered intact or consistent in heritage terms.

30 In broad terms this policy also encourages a contextual design approach for new development. Such an approach may include contemporary architecture and innovative design, and accurate reproduction. New development "..should sit comfortably and harmoniously integrate with the site and within the streetscape and not diminish, detract from or compete with the significance of the heritage place, or streetscape character of adjoining or nearby buildings.....".

31 Specific policies for new development relate to setbacks, building siting scale and massing ,door and window openings and materials, surface finishes and fences. Performance Measures are specified and developments which comply with these may satisfy nominated aspects of the policy

Previous Decision of the Victorian Civil and Administrative Tribunal

32 The application before us is the second proposal which has been the subject of a Council refusal and subsequent hearing by the Tribunal. Application for Review No. P465/2003 was an application to review a decision of the Council to refuse a proposal for the demolition of the two dwellings on the site and the construction of fifteen dwellings.

33 The Tribunal in that case constituted by Member O'Leary affirmed the Council's decision and directed that no permit issue. In arriving at his decision however, Member O'Leary found that the demolition of the two dwellings was justified but that the replacement building did not succeed in passing the test of design excellence, did not respect the character of the area and would have adverse amenity impacts on adjoining and nearby properties.

34 Member O'Leary made the following specific findings with respect to the approach which ought to be taken to the consideration of the demolition issues and to the application of the Council's policy at Clause 22.04;

I agree with Mr Bissett's submission that an examination of the ambit of discretion under Clause 43.01 requires an assessment of the purpose of the Heritage Overlay which includes "To conserve and enhance those elements which contribute to the significance of heritage places" and more particularly in the Decision Guidelines in Clause 43.01-5 requires the Tribunal to consider the significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place, and also whether the demolition, removal or external alteration will adversely affect the significance of the heritage place...........

In this case there was no evidence to suggest either building was structurally unsound. A reading of Clause 22.04-4 of the Planning Scheme seems to mean that if the buildings are structurally sound, or cannot feasibly be reused that is the end of the examination. This seems to be the approach taken by Mr Westmore. Assuming the applicant can overcome the first bar in the policy then a determination can be made about whether the building displays design excellence which clearly and positively supports the ongoing heritage significance of the area, or whether there are exceptional circumstances in this streetscape which has rendered it as not being an intact streetscape or consistent in heritage terms.

On the face of it this policy would ( if it was a statutory rule) prevent examination of a development proposal, irrespective of how good or bad it was. It would also seem to confine assessment to the structural integrity of the building or assessment of its ability to be viably reused, rather than to a rigorous examination of the level of contribution the buildings make in the HO8 area. I have some difficulty with the placement of so much emphasis on this arm of the policy, having regard to the purposes and decision guidelines in Clause 43.01. Firstly because this is a policy and not a statutory rule and there fore it should be capable of flexibility in its application. Secondly, if it was taken literally demolition of a contributory building, unless structurally unsound or incapable of viable reuse, would seem to seek a prohibition of demolition of any contributory buildings, irrespective of the level of contribution. This approach would therefore be seen to be elevating the importance of demolition controls for contributory buildings to a status akin to or greater than existed for a building on the Victorian Register (see J Harding v Port Phillip City Council & Schroders Australia Property Nominees & Ors (2002) 11VPR at para 22) and would seem to undermine the usual discretion available to a responsible Authority in Clause 43.01 of the Planning Scheme.

35 Member O'Leary then proceeded to review the evidence presented to him and to assess the affect of the demolition of the two buildings on the significance of the heritage place, and concluded that ;

..........From my observation the two buildings make a small contribution to the streetscape and to the HO8 overlay area. It is not so much that there have been alterations to the external appearance of these two buildings which has diminished their value in the streetscape, rather much of their context has been obscured due to the erection of the two three storey non-contributory buildings, which when viewed from various positions in Addison Street, tend to visually dominate the two contributory buildings and limit a reading of them with other contributory buildings. The presence of two relatively large intrusive three storey non-contributory buildings in the Heritage Overlay diminish the intactness of the streetscape and the consistency of the heritage area. From my observation of Addison Street and the HO8 the area in general it seems that the loss in pure heritage terms is a marginal issue.

36 With respect to the replacement building Member O'Leary concluded as follows;

I consider there are a number of shortcomings to this development proposal some of which, in themselves, would not warrant refusal, but when assessed collectively, point to an overdevelopment of the site and a conclusion that the building did not meet the test of being an excellent design. The building in the form presented would not adequately respect the character of the area when viewed in totality. It would have an adverse impact on adjoining and nearby properties, whether by increased visual bulk and massing, over reliance on screening to either prevent overlooking, or to limit views of adjoining properties and insufficient opportunities for planting.

37 Member O"Leary suggested a number of design improvements to provide direction to the applicants, and also I suggest to the Council and it's officers in formulating and assessing an appropriate design response for the site.

38 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

39 All witnesses were made available for cross examination.

40 We inspected the subject site and its locality unaccompanied by the parties, after the hearing

41 The starting point for the assessment of this proposal is the determination of the demolition issue and in terms of our consideration of this issue it is very relevant that the demolition of these buildings was found to be acceptable by the Tribunal in Application for Review No. P465/2003 which was handed down in July, 2003, after a four day hearing in which evidence was led by two heritage conservation experts, both of whom also gave evidence in the present hearing.

42 Mr Bisset referred us to a long line of decisions of the Tribunal which have established the principles which ought to be applied in the consideration of repeat appeals. In general terms, these principles establish that while the previous decision of the Tribunal is not binding, the determination of the Tribunal should be taken into account and given great weight in the consideration of a subsequent appeal in relation to the same land. In Amoco (Australia) Ltd v City of Berwick (1983)1 PABR 166,169, the Planning Appeals Board held that an earlier decision should not be reversed unless the applicant can show a change in circumstances which warrants a different view.

43 The proposed replacement building which is before the Tribunal in this application is significantly different from the proposal previously considered by Member O'Leary (the extent to which it is sufficiently different from the earlier proposal which Member O'Leary found to be unacceptable, is a matter considered by us below) but with respect to those matters relating to the demolition of the buildings, we were not presented with any submissions or evidence to the effect that there has occurred any change in the conditions or characteristics of the site and surrounds or of the subject buildings, or any change in the zoning, overlay controls or policy framework, which would substantiate a different finding on the issue of demolition to that arrived at by Member O'Leary.

44 It would seem that the principal basis upon which the Council and the objectors continue to oppose the demolition of the buildings following the Tribunal's earlier findings on the matter is that they do not agree with or accept the Tribunal's earlier findings.

45 It is appropriate therefore that we record our findings that we agree with and adopt the approach taken by Member O'Leary in assessing the extent to which the demolition of these buildings will adversely affect the significance of the heritage place. We also agree with the observations made concerning the application of the Council's policy at clause 22.04 relating to the demolition of contributory buildings.

46 As we have indicated above we were assisted in our deliberations on this matter by the evidence of both Mr Westmore and Mr Raworth, both of whom gave evidence in the previous matter. Mr Westmore'e evidence was predicated on his view that the affect of the policy at clause 22.04-4 is that no contributory building in a heritage overlay can be demolished unless it is structurally unsound. He went further in his evidence by stating that the application of a heritage overlay has the affect of preventing any further change in the built form of the area affected by the overlay. It was Mr Westmore's evidence that the review sites are located in an intact streetscape and that the loss of the two buildings would lead to a profound change to the values of the heritage place, and that the retention of the buildings is necessary as a defensive mechanism to prevent further erosion of these values.

47 Mr Raworth on the other hand provided an assessment of the level of contribution to the significance of the heritage place provided by the two subject buildings and concluded that;

Neither of the buildings has any individual merit as an exemplar of their period, and they are only of the most minor interest as representatives of their period and style. The bungalow at 109 Addison Street is so altered as to fall almost below the typical threshold for contributory buildings within the City of Port Phillip. Both buildings appear to have lost some of the bungalow detailing to their gables and eaves, and today present to the street in a quite bland and unimpressive manner.

48 Mr Raworth further concluded that the sites sit within an altered streetscape with the modern flat development immediately to the north and the three storey, 1960's, brown brick flats immediately to the south having a profound effect on the character of this section of the street and substantially obscuring 109 and 111 Addison Street from the north and south along the street.

49 Mr Raworth concluded that the two buildings have the lowest contributory value as individual buildings and do not contribute to a valued streetscape in this section of Addison Street. We agree with that evidence and in particular we are simply unable to ignore the existence of the two apartment buildings flanking the review site in forming our view about the extent to which this is an altered streetscape and the extent to which the adjoining apartment buildings diminish the contribution of the two dwellings to the heritage place.

50 The fact that the Council policy at clause 22.04 does not support the demolition of contributory buildings unless they are structurally unsound, does not abrogate the Council from its responsibility to undertake an assessment of the level of significance of the subject buildings and the affect of their loss on the heritage place in determining whether or not demolition ought to be permitted. Notwithstanding Mr Rantino's submissions to the contrary, it seems to us that the Council's approach to the assessment of the proposed demolition of the two buildings has been to apply the policy at clause 22.04 in a highly prescriptive manner and to go no further in its assessment than determining whether the buildings are structurally sound or not. The application of the policy in this manner effectively removes the discretion which exists under the heritage overlay to permit the demolition of buildings and is in our view a flawed approach.

51 Mr Rantino also submitted that no sound reasons exist which warrant the demolition of the buildings in order to construct the proposed development. On this point Mr Rantino seemed to draw in the broader local policy objectives of the planning scheme for the Elwood Ripponlea neighbourhood into the consideration of the demolition issue. In effect it was Mr Rantino's submission that this locality is not the preferred location for medium density housing and the demolition of the buildings is not therefore required to achieve local policy outcomes and is contrary to those outcomes for this area.

52 We acknowledge that there are circumstances in which those seeking to demolish a building in a heritage overlay often enlist the support of policies other than those relating specifically to heritage matters, usually those policies which encourage urban consolidation and increased densities in established residential areas, in order to justify the intended demolition. In the context of this case, the Council's submission is that the planning objectives for the Elwood Ripponlea neighbourhood are, as we have previously detailed, clearly concerned with retaining the status quo, discouraging redevelopment and retaining "family homes".

53 To what extent should these policy outcomes influence our determination of the demolition issue?

54 We are conscious of the fact that the need to obtain a permit for the demolition of these buildings derives from the heritage overlay, and the purpose and decision guidelines of the overlay require us to consider the extent to which the demolition of the buildings will adversely affect the significance of the heritage place. As we have stated above, our findings on this matter is that the two buildings make a very low contribution to the significance of the heritage place and as a consequence their loss will not have an adverse affect on the significance of the place. In the context of these findings, it is not open to us to find that the demolition of these buildings ought not be permitted on the basis that the demolition would offend other policies which are not related to heritage matters.

55 Both Mr Bisset and Mr Rantino referred to the difficulties associated with achieving the policy outcome of preserving family homes especially where demolition controls are not available. We were referred to a number of earlier Tribunal decisions which deal specifically with this issue. In this case a permit is required for demolition but the demolition control derives from the heritage overlay and as we have stated above, we have not been persuaded that there are sufficient heritage grounds to retain these buildings and the heritage overlay is not intended to achieve social or housing choice objectives.

56 We now turn to a consideration of the merits of the proposed replacement building.

57 Mr Rantino submitted that the development of the review site for 13 dwellings is not an outcome which is supported by the Council's policy framework because this is not a site where the planning scheme envisages change through the encouragement of higher density residential development and this is not a site which Melbourne 2030 would regard as a strategic redevelopment site. The proposed development is, in Mr Rantino's submission contrary to the preferred outcomes for this neighbourhood contained within the policy framework. It was put to us by the Council and objectors that under the Council's policy framework, a development of the scale proposed here ought to be located in those areas or on those sites specifically identified for higher density development.

58 The Council's LPPF clearly influences the scale, form and intensity of development which ought to be capable of being accommodated on this site, but it cannot be applied in such a way as to prohibit medium density housing from locating within the Elwood Ripponlea neighbourhood. The effect of the policy framework is to ensure that the scale, form and intensity of new development represents an appropriate response to the significance of the heritage place, is respectful of the character of the neighbourhood and protects the amenity of the neighbours from unacceptable impacts.

59 The manner in which the policy outcomes for this neighbourhood were presented to us by the Council, minimises the importance of site context considerations in determining what is an acceptable development form on any given site. On this site, the site context is heavily influenced by the existence of the modern apartment building abutting to the north and the 1960's apartment building abutting to the south, and a submission that this context does not lend support to the suitability of this site for medium density housing, is simply not tenable.

60 Mr Rantino was critical of the built form of the proposed development and submitted that it failed to meet the design excellence test of clause 22.04. Mr Rantino adopted the following findings of the Tribunal in Evangelidis v Port Phillip CC in defining what is meant to be achieved by the term design excellence, a term which is not defined in the planning scheme.

..........a building that is a good fit and of architectural quality is sought having regard to the heritage policies relating to this locality at Clause 22.04 and Clause 43.01 (as well as the DDO7 and Good Design Guide, as I address below). While that may typically desired (sic) by most permit applications, often `acceptable' or `good' rather than `high quality' outcomes are produced. In addition, as I said in the Levin case adverse impacts need to be avoided:

To be `excellent', I consider that I must be persuaded that the proposal will not have unreasonable adverse impacts in all its facets despite the fact that it will obviously bring change........

61 Mr Westmore placed a higher meaning on the term. He said that;

.......the design values of the replacement must reach a threshold of design excellence which clearly and positively supports the ongoing heritage significance of the area. This can be taken to mean a level of design excellence that could be expected to cause the building to be valued in the future as a representative of its own period.

Such a building must clearly be of its period .......... But the clause does not simply seek any old modern, it seeks excellent modern. This is clearly a difficult judgement to make, particularly as what will be valued in the future can only be determined in the future. However, the judgement is obliged by the Policy because design excellence is the quid pro quo for the loss of heritage ......

62 The notion of design excellence as proposed by Mr Westmore is a difficult concept to apply because it necessitates value judgements to be made which are by their nature subjective and can degenerate into statements of personal taste. We also think that the need to make a judgement about whether a building will be valued by future generations or not, is simply too speculative to play any role in the consideration of the merits of this proposal.

63 We think that the approach urged on us by Mr Rantino is the appropriate one and is consistent with the evidence presented to us by the other witnesses who gave evidence in this case.

64 Mr Westmore went on to criticise the replacement building on the basis that its general character would be obtrusive, the strong horizontal emphasis of its openings are alien to the context, the selection of materials would make the building too dominant visually, and the stylistic references are inappropriate and derivative.

65 However it was Mr Westmore's evidence that in terms of the proposal's impact on the heritage place, the replacement can be tolerated on its own but similar proposals repeated on other sites in the area would critically diminish the heritage place. Mr Sands expressed a similar view that the site represents an opportunity for medium density housing (if demolition was approved) of possibly up to three storeys, and that the proposed building would sit well amongst its immediate neighbours. Mr Sands was however concerned that the proposal did not respond well to the wider area and that the side elevations presented an unacceptable mass and solidity which ought to be broken up by increased setbacks at upper levels.

66 Mr Raworth and Mr Borelli emphasised the changes which have been made to the proposal considered by Member O'Leary in support of their evidence that the proposal has responded to the Tribunal's criticisms of the earlier proposal and is now acceptable.

67 The major changes which have been incorporated into the current proposal include a reduction in the site coverage, increased setback from the northern boundary, reduction in the floor space of the upper level, reduction in the number of dwellings, improved private open space provision, provision of visitor parking, removal of the front stairway feature, and changes to the internal access arrangements.

68 We are satisfied that these changes go a long way to addressing the concerns raised by Member O'Leary and that the proposed building does achieve the appropriate test of design excellence in that it will be a building of good fit and architectural quality which responds appropriately to its context. In forming our view on this matter, we agree with Mr Sand's concession (and indeed that of Mr Westmore) that the building will sit comfortably between its two immediate neighbours in terms of style, scale, height and streetscape presentation.

69 Mr Bisset rhetorically asked the question how far does one have to go to assess the character of an area to which a proposal must be respectful? There is of course no definitive answer to that question other than to note that the context of each site will vary from case to case and judgements will need to be made in each instance. This is an important point especially having regard to Mr Westmore's evidence that his opposition to this proposal stems from a concern about the repetition of this type of development on other sites in the heritage overlay area. In this case, we have formed the view that because the impact of the two adjoining apartment buildings is so profound on both the streetscape and on the amenity of the review site, a more contextual design response to that which is currently proposed, is not necessary to meet the design excellence test. In a different site context a very different conclusion can be contemplated.

70 We are also influenced in our findings by the fact that this is not an area in which apartment buildings are unknown. They are in fact quite common and there are several which are appropriately acknowledged as being contributory to this heritage place, including two located within the immediate vicinity of the review site. Indeed on inspection we were not persuaded by comparisons made in many submissions between this section of streetscape and the highly consistent, intact interwar streetscapes in Elwood's "Poet's streets" identified as an important element of the Elwood and Ripponlea neighbourhood in clause 22.01-3. We note that the Poet's streets precinct is specifically identified as being that area "....generally bounded by Barkly, Dickens, Mitford and Shelley Streets", and the review site is not located within that precinct.

71 We also received submissions with respect to the impacts of the proposed development on the amenity of neighbouring properties. We note that notwithstanding some grounds of refusal which raised neighbour amenity issues, these were not pursued by the Council at the hearing.

72 The review site has sensitive interfaces with the apartment buildings to the north and south and to the rear with the dwellings which face Ruskin Street and which are separated from the review site by Rosetti Lane.

73 Mr Borelli provided detailed evidence about the impact of the proposal with respect to access to daylight, overshadowing and access to sunlight, visual bulk and overlooking, and was able to demonstrate that the proposal achieves a high degree of compliance with the standards of Clause 55 as they relate to these matters. We also note Mr Borelli's evidence concerning the limited opportunities for overlooking presented by the proposal and the changes to the proposed screening of windows as shown on the amended plans and which in his view are excessive.

74 We agree with Mr Borelli's evidence on these matters and in particular we note that the proposal does provide setbacks from boundaries and habitable room windows which meet or exceed Clause 55 standards. Similarly, where windows or balconies are not offset from windows in the adjoining apartments, screening or the use of opaque glass is proposed. The proposed side boundary setbacks also provide adequate opportunity for the provision of landscaping which will also assist in softening the interface with the adjoining apartment buildings. We accept the evidence of Ms Frank Mas with respect to the suitability of the landscape treatment in achieving this outcome. We think these are appropriate responses to the side interface issues.

75 With respect to the impact of the development on the properties to the rear, we acknowledge that the building will be visible from the rear yards of these dwellings but it will not be a development which imposes an excessive or domineering built form. The development will be viewed over and between rear fencing and outbuildings and the upper level of the proposal is setback 12.9 metres from Rosetti Lane (with balconies intruding 2 metres into that setback). The use of planter boxes as screening devices for the upper level balconies is an appropriate method of containing potential overlooking, given the significant distances involved.

76 Concerns were raised by resident objectors about the provision of car parking and the reliance on Rosetti Lane for access to and egress from the car park. These concerns were not shared by the Council and we do not believe that the use of Rosetti Lane for access and egress will generate any significant traffic related or safety difficulties.

77 The proposal provides for 16 on site car parking spaces which complies with the Clause 55 standard, although three visitor parking spaces are not provided on site. Mr Bisset relied on the evidence of Mr Symons in support of his submission that the provision of parking is adequate. We note that Member O'Leary did not regard car parking as a matter of concern with respect to the previous proposal and we are similarly satisfied that adequate parking is provided on site and that visitor parking can be accommodated by on street parking.

78 During the course of the hearing Mr Bisset tabled a plan depicting an alternative Addison Street elevation treatment which, it was submitted, was intended to address the Council's concerns about the stylistic elements of the proposal. The Council advised that the alternative plan did not address its concerns to any great degree and was not prepared to indicate that either option was satisfactory.

79 For the reasons we have detailed in this decision we are satisfied that the proposal as originally presented (option 1 as it became known during the hearing) is acceptable and we are not of a mind to require any changes to that elevation.

80 We received submissions from the parties with respect to permit conditions. The conditions we have imposed are consistent with the findings we have made in this matter and it is not necessary for us to further detail our reasons for imposing those conditions.

81 The decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached order.