(a) Levels to A.H.D. and finished floor levels, confirming that no part of the finished floor levels exceed 500mm above natural ground measured directly below.

(b) Retention of the existing evergreen tree at the front of the site.

(c) The front fence not exceeding a height of 1.3m.

(e) All paving (except driveways) to be porous - pavers to be laid on a compacted sand base.

(f) A schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing).

2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. Before any development starts, a site layout plan drawn to scale and dimensioned must be approved by a building practitioner registered under the Building Act 1993 and submitted to the Responsible Authority.

(a) a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to Council's nominated point of discharge to the satisfaction of the Responsible Authority.

4. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

5. This permit will expire if one of the following circumstances applies:

* The development is not started within two years of the date of this permit.

* The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

6. Street numbers contrasting in colour to the background shall be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers shall be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.

7. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

8. The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the developer.

9. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.

10. The finished floor level of the proposed dwelling must not exceed a height of 500mm above natural ground level, at any point.

11. All plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally shall be identified on plans and located to the satisfaction of the Responsible Authority and an endorsed copy of such plan shall form part of this permit. Such plan must be endorsed prior to commencement of construction and shall include plan and elevation details.

12. Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:

(a) constructed to the satisfaction of the Responsible Authority;

(b) properly formed to such levels that they can be used in accordance with the plans;

(c) surfaced with an all weather sealcoat to the satisfaction of the Responsible Authority;

Thereafter such areas must be drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority.

13. Before the development hereby permitted starts three copies of a landscape plan to the satisfaction of the Responsible Authority and drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority. The plan must be generally in accordance with the landscape plan tendered at the hearing of Application for Review No. 2000/7747 (Reference 178LC1, 17/4/00) but modified to reduce the height and density of screen planting along the western boundary. When approved the landscape plan will be endorsed and will then form part of the permit.

14. Prior to the occupation of the building hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

15. All existing vegetation shown on the endorsed plans as to be retained must be suitably marked before any development starts on the site. This vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

16. All basic services, including water, electricity, gas, sewerage and telephone shall be installed underground and located to the satisfaction of the Responsible Authority.

Mr I. McP. Pitt of Best Hooper, Solicitors represented the applicant for review. He called the following persons to give expert evidence:

Mr Colin Taylor of Russell Kennedy Solicitors, represented the respondent responsible authority, Bayside City Council.

Messrs N. Collins and G. Cuttler, both respondent objectors, appeared in person.

1. This was an application under Section 79 of the Planning and Environment Act 1987 (P & E Act) for review of the failure by Bayside City Council to determine an application within the prescribed time to construct a second dwelling on the land at 52 Were Street, Brighton.

2. At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), Mr Pitt requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

3. Copies of the revised plans had been forwarded to all parties under cover of a letter dated 13 April 2000, detailing the changes and outlining the permit applicant's intention to seek approval for their substitution.

4. The extent of the changes were relatively minor. They included elimination of a study projecting into the frontage setback, reduction of the front facing balcony and incorporation of a 1.6m high screen on the south-west corner of the rear facing balcony. A landscape plan was also circulated with these amending plans. Among other things the landscape plan confirmed retention of an existing evergreen tree within the frontage setback.

5. There were no objections to the substitution of these amended plans. Being also of the opinion that such substitution was appropriate, I made the amendment in the manner requested.

6. During the course of the hearing I also further amended the application for permit by clarifying the nature of the permission being sought. The application for permit had been couched in the following terms:

"Development and use of the land for the purpose of a second dwelling"

7. Pursuant to Clause 32.01-4 of the new format Bayside Planning Scheme, which came into operation following the lodgment of this application for review, a permit is required to "construct a dwelling if there is at least one dwelling on the lot".

8. The subject site is located on the south side of Were Street approximately 120m west of New Street and one lot east of Hartley Street. The site is regular in shape and has a frontage of 17.4m, a depth of 42.7m and an area of approximately 741sq m.

9. For many years the subject land was occupied by a single storey detached dwelling. This dwelling was demolished in 1999 and in September of that year having obtained a building permit from a private building surveyor, construction of a two storey dwelling, located at the rear of the land, commenced. At the time of the hearing of this application for review the dwelling was at or approaching lock-up stage. At the time of the Tribunal's inspection the dwelling had the appearance of completion although seemingly not as yet occupied. Access to the site is via an existing crossover located at the western side of the frontage.

10. Adjoining the subject site to the west, at No. 46 to 50 Were Street, is a relatively large, one and two storey apartment style building divided into three flats. This building is set back 3.6m from the subject site except for a small projection which comes to within 2.4m. Four windows face east towards the subject land, one of which is at first floor level. A large, evergreen, Camphor Laurel Tree (approximately 12m high) is located on the common boundary with the subject site, approximately 15m back from the street frontage. The apartments each have their own separately fenced ground level courtyard gardens located to the rear, adjacent to the recently constructed dwelling. The apartments also have a side boundary to Hartley Street.

11. No. 54 Were Street, to the east of the subject site, is occupied by a large single storey brick dwelling which appears to date from the 1970s. This house is set back approximately 5m from the side boundary with the site. A double carport with a brick wall is constructed to the common boundary for a length of 6m commencing approximately 8m from the property frontage. A single car garage is also located to the rear of the carport beyond the intervening main entry porch. The principal private open space area to this dwelling is located to the rear, adjacent to the newly constructed dwelling, and comprises a large timber deck and in-ground swimming pool.

12. To the south of the subject site and its neighbours to the east and west is the Xavier Preparatory School's sportsground. Cricket practice nets are located close to the rear fence of No. 48 to 50 Were Street. A row of relatively large canopy trees is located along the northern edge of the sportsground providing a buffer to the residential properties fronting Were Street.

13. Mr Borelli, in a statement endorsed by Mr Taylor as being "generally accepted as a correct description" described Were Street as:

"A wide residential street that contains a consistent pattern of well established street trees. Architectural styles in the area are quite varied with no architectural style dominating, although the majority of dwellings in the area are large two storey buildings."

14. My inspection of the subject land and the surrounding neighbourhood also confirms this description. A distinguishing feature of this section of Were Street is also its mature Plane Tree, street trees which, despite the variety of architectural styles, provide a unifying element which draws the street together.

15. It is proposed to construct a second dwelling to the front of the existing, recently constructed two storey dwelling.

16. The proposed dwelling would also comprise two levels. It would have formal and informal living areas as well as a double garage at ground floor level. The upper level would contain a sitting room, three bedrooms, and a second bathroom.

17. The house would be constructed of a combination of rendered masonry and face brickwork with a pitched tiled roof. I accept the description of Mr Borelli that "the style is contemporary but conservative".

18. At ground level the building would be setback 6.2m from the site frontage increasing to 7m at first floor level. A ground level porch with balcony above would project to within 5m of the frontage.

19. A second driveway would be constructed at the eastern side of the property frontage to provide access to the proposed double garage. This driveway would reduce in width to 3m at the property boundary. The proposed dwelling would have a floor area of 255sq m and the resultant site density would be 1:370sq m with a site coverage of 46.8%.

20. In addition to a 33sq m landscaped area within the frontage setback - between the two driveway crossovers - the proposed dwelling would be provided with a 32sq m secluded rear courtyard as well as two balconies one at the north-east corner of the dwelling overlooking the street and one to the rear accessed via a bedroom. A 1.6m high screen is proposed along part of the rear balcony to reduce any perception of overlooking towards the new dwelling to the rear and the side facing windows of No. 50 Were Street.

21. The land is zoned Residential 1 under the Bayside Planning Scheme. Within this zone no permit is required to use land for the purpose of a dwelling. However, as noted earlier, pursuant to Clause 32.01-4 a permit is required to construct a dwelling if there is at least one dwelling on the lot. It is pursuant to this provision that the subject application for permit is made.

22. Pursuant to Clause 32.01-4 such applications must be considered having regard to the Good Design Guide and must be accompanied by a site analysis and design response as described in Clause 52.04. It is also State planning policy, pursuant to Clause 16.02-2, that such applications must be assessed having regard to the Good Design Guide.

23. It is also the case that, pursuant to Clause 32.01-4, a permit is required to "construct two or more dwellings on a lot". Such applications must also be accompanied by a site analysis and design response assessed having regard to the Good Design Guide.

24. The subject application was not made pursuant to this latter provision albeit that it was lodged within days of commencement of construction of the first dwelling. Mr Pitt argued and indeed Mr Taylor conceded that having obtained building approval for the first dwelling its construction as a single dwelling did not require planning permission. It is also the case that assessment. for building approval does not require consideration against the Good Design Guide.

25. It was clear during the hearing that the Responsible Authority and respondent objectors were bitterly disappointed by the approach adopted by the permit applicant in this case whereby the first dwelling was able to be constructed without invoking the consultation and design assessment criteria which would have applied if the application had been made for the construction of two dwellings pursuant to Clause 32.01-4.

26. Not withstanding that the respondent objectors appeared to be in possession of evidence suggesting that it was always the applicant's intention to construct two dwellings rather than a single dwelling development, neither they nor the Responsible Authority chose to instigate enforcement proceedings against a breach of the Scheme. The matter properly before the Tribunal is for construction of a second dwelling where one already exists on the site and it is in this context that I must make my determination.

27. The subject application for permit was lodged with the Responsible Authority on 27th of September 1999. Following the giving of notice of the application three objections were received. The grounds for objection were summarised by Mr Taylor in his written submission as follows:

"* The proposed development is out of character with the area.

* The proposed development is a pseudo dual-occupancy.

* The proposed development will cause detriment to the amenity of the streetscape.

* The proposed development will cause detriment to the amenity of the adjoining properties in regards to visual bulk.

* The proposed development will cause detriment to the amenity of the adjoining properties in regards to overlooking.

* The proposed development will cause detriment to the amenity of the adjoining properties in regards to overshadowing.

* The proposed development will cause detriment to the amenity of the adjoining properties in regards to increased noise.

* The proposed development has inappropriate setbacks.

* The proposed development is an overdevelopment of the site.

* The proposed development is not in accordance with Council policy.

* Two crossovers are inappropriate and will reduce on-street parking possibilities."

28. The subject application to review the Councils failure to determine the application within the prescribed time was lodged on 2nd of February 2000. Shortly before, on 19 January 2000, a consultation meeting called by the Responsible Authority failed to resolve the differences between the applicant and neighbouring objectors.

29. On 7 February 2000 the Responsible Authority resolved not to support the application and cited the following seven grounds for refusal:

"The proposal is not in accordance with the spirit and intent of the Good Design Guide ("GDG").

The proposal causes unreasonable detriment to the amenity of the existing streetscape in regard to setbacks.

The proposal causes unreasonable detriment to the amenity of the adjoining properties in regard to overlooking.

The proposal causes unreasonable internal overshadowing to the private open space at the rear.

The proposal results in an excessive paved area within the front setback and loss of kerbside parking due to the dual driveway.

It is inappropriate to permit reverse movements from the garage of Dwelling 1 due to the proximity to the intersection of Were Street and Kilrush Street.

The proposal is out of character with the neighbourhood."

30. Those parties or their representatives that attended the hearing as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing have been attached to the Tribunal's file.

31. Subsequent to the hearing I inspected the subject site and surrounding areas in order to gain a better understanding of the submissions and evidence.

32. I have already drawn attention to the fact that a prime motivation of the respondents in this application for review was their concern over the siting, scale and design of the already constructed dwelling to the rear of this site. They were concerned about the seeming "loophole" which exists whereby the provision at Clause 32.01-4, requiring a permit to construct two or more dwellings on a lot, can be circumvented by obtaining building approval for a single dwelling when clearly the intended outcome is not for a single dwelling but for two dwellings on the lot.

33. This is not the first instance where this so called "loophole" has been taken advantage of. Indeed the Tribunal has on many occasions had to contend with the issue and, except where the merits of the second dwelling do not support the grant of a permit, the Tribunal has found that this is a matter which should be addressed through amendment of the planning scheme or the Act. What then of the merits of this second dwelling?

34. It was contended by the Responsible Authority that the proposed dwelling to the front of this land would be out of character with the neighbourhood by virtue of the lesser frontage setbacks and the provision of two driveway crossovers which, in concert, reduced opportunities for front garden landscaping. It was submitted that front garden landscaping is a characteristic of the neighbourhood which should be maintained.

35. Whilst I agree that the potential for landscaping requires careful attention I am satisfied, from the evidence of Messrs Borelli and McFall that an appropriate amount of attention has been given. I agree with Mr Borelli that the frontage setback is "essentially in line with adjacent buildings and with the general alignment of other buildings in the streetscape" and that "the frontage setback is sufficiently deep to contain a garden with canopy trees to complement the general landscape character of the area". I found Mr McFall's landscape plan for the frontage setback to offer a useful landscape contribution which, with the retention of the existing evergreen tree in the frontage setback should enable an appropriate transition. As noted earlier the mature plane trees in Were Street have a unifying quality which may be taken into consideration in the specific context of this site. These trees ensure that some diversity I building siting and design does not appear discordant in the overall streetscape. The proposed building is, I find of a scale and appearance compatible with, and indeed complementary to, the neighbourhood context.

36. I am however of the view that the front fence height should be kept to a minimum in order to maximise visibility of the front garden landscaping. Whilst it can be argued that high fences exist in the area, my inspection revealed that where these do exist, for example immediately opposite, the effect is not particularly complementary to the landscape qualities that prevail in the neighbourhood at large. Given the more constrained nature of this development it is appropriate, I believe, to maximise visibility between the building and the street.

37. It was also suggested that the sheer size and visual bulk of the existing dwelling to the rear would be compounded by the addition of a further dwelling of similar size to the front of the lot. The basis for this argument was that in concert, the two would be out of character with the neighbourhood. This has been an argument accepted on other occasions by the Tribunal. One such case, referred to in the course of the hearing and in which I was a member of the Tribunal, is Greenhill Homes v Moonee Valley City Council 1998/071719 and 1999/019971 (unreported).

38. The subject application can be distinguished from these others. For example, in Greenhill Homes both dwellings were visible from the street ad it was found that the proximity of both caused the overall out of scale appearance of the first dwelling to be compounded by the second. In the subject case, if anything, the second dwelling repairs a "gap" in the streetscape by introducing a structure of a scale and design compatible with the neighbourhood.

39. An issue of particular concern to Mr Collins was the potential for overlooking from the rear facing balcony and bedroom windows. In his submission the extent of screening proposed for the balcony was insufficient and the absence of any screening to the west facing third bedroom window would result in an unreasonable degree of overlooking towards his side facing windows. In his submission this additional amount of overlooking compounded an already unsatisfactory outcome due to the recently constructed dwelling to the rear.

40. It was Mr Borelli's evidence that the existing Camphor Laurel on the common boundary provided a substantial degree of screening which, complemented by boundary plantings proposed by Mr McFall and, given the 12m separation (in excess of the 9m suggested under the Good Design Guide), should ensure that overlooking was not "unreasonable". Mr Borelli, in providing a suggested benchmark for what might be reasonable, noted that within this area two storey dwellings are common and that some degree of overlooking from first floor bedroom windows must be anticipated. I accept Mr Borelli's evidence.

41. Mr Cuttler also sought to argue that there could be overlooking of his front yard from the front facing, first floor terrace and that this would be unreasonable. Having inspected the site I again accept Mr Borelli's evidence that the existing front yard exposure of the Cuttler dwelling would not be compromised by such a balcony.

42. It was contended by Mr Collins and supported by Mr Taylor for the Responsible Authority that the proposed building would reduce morning and mid-afternoon sunshine to the east facing habitable room windows in the Collins' ground floor apartment at 50 Were Street. Mr Taylor conceded that the shadows cast "essentially" comply with the techniques set by the Good Design Guide which have regard only to shadows at the equinox. He contended however that a reduction in winter sunshine was also a relevant matter for consideration.

"At 9 am at the equinox, shadows cast onto the property to the west are limited to essentially the wall of the front (two storey) section of the building and the driveways between the building and the review site. However, where early morning shadows are cast onto the building, a large existing evergreen tree (Camphor Laurel) already casts shadow in a similar location to that cast by the proposed dwelling. ... Importantly the private open space of No. 50 Were Street will not be affected by additional shadow from the proposed dwelling."

44. Having analysed the shadow diagrams I agree with Mr Borelli that the existing Camphor Laurel must already have some shadowing effect and that the extent of additional shadowing at the equinox is not unreasonable. I see no reason also to extend consideration to shadowing at the mid-winter period having regard to the fact that two storey structures within this area are not uncommon and it would be unreasonable for the Collins to anticipate total solar access throughout the winter period given the orientation of their property.

45. The extent to which screen planting, proposed for the common boundary with the Collins' property, might of itself cast shadows, was also raised. The landscape plan circulated prior to the hearing depicted evergreen species of some height at maturity. Under cross-examination Mr McFall acknowledged that a mixed planting theme might be preferable on this boundary interspersing lighter screening plants such as Pittosporum and Pyramid Birches in substitution for the Conifers shown on his plan. I find this a more acceptable outcome

46. Mr Taylor also raised the impact of the proposed two storey dwelling on the north facing private open space of the dwelling under construction to the rear of the site. In his submission this courtyard, would be in shadow all day. His submission conflicted with the evidence of Mr Borelli who suggested that "approximately one-third of its courtyard is affected by shadows from the proposed dwelling at 9 am. The proportion of the courtyard affected by shadow reduces thereafter, resulting in this area having good access to direct sunlight throughout the day, well within the perameters of E6.T10 of the Good Design Guide." I accept Mr Borelli's expert evidence.

47. A final issue raised by the respondents was whether a second crossover would contribute to traffic congestion and decrease the number of on-street parking spaces. Mr Taylor suggested that it was inappropriate also for vehicles to have to reverse out of the property into Were street. I found this latter submission somewhat puzzling given that reverse movements into Were Street appear, from my inspection, to be the prevailing means of accessing the street from abutting residential properties. No evidence was put to me to suggest that Were Street was a busy main road that had reached some sort of saturation point in terms of reverse manoeuvres. It is only in relation to main roads that the Good Design Guide cautions against reverse manoeuvres. Neither was there any evidence that kerbside parking is at a premium. This being the case, I see no reason to be concerned by the possible loss of one space due to the construction of a further crossover.

48. Mr Taylor's other suggestion that these crossovers were unacceptably close to the intersection with Kilrush Street is also, in my opinion, without foundation. Again it was not supported by any evidence of a convincing nature.

49. This application for review again raised the vexed question of multi-dwelling development which commences with a single dwelling given building approval by a building surveyor prepared to ignore the obvious fact that the real objective is for a multi-dwelling development.

50. The submissions in this application concentrated or were focused primarily on the inappropriate scale and siting of the rear dwelling in terms of its impact on their abutting rear garden areas. However, what was actually before the Tribunal was the infill structure necessary to fill in the gap created by this newly constructed dwelling. My principal findings are that the infill structure is an appropriate streetscape response for Were Street and that in terms of its impacts on abutting properties it is not unreasonable. When or whether the "loophole" exposed by this and the numerous other such applications that have come before this Tribunal, will be addressed is difficult to establish. The permit applicant's own expert witness Mr Borelli, acknowledged that he did not "condone" this approach and this and other divisions of the Tribunal have stated as much in other determinations.