1. Before the development starts, amended plans (3 copies) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale and fully dimensioned generally in accordance with the plans submitted to the Tribunal with the application but modified to show.

(a) A landscape plan for the site prepared by a person suitably qualified in landscape design shall be submitted to the Responsible Authority. The plan must show existing vegetation to be retained, all proposed trees, shrubs and ground cover, including botanical names and sizes at maturity of all plants and the location of all areas to be covered by grass, lawn or other surface material to be specified and shall be generally in accordance with the concept plan prepared by Pelham Design Studio Pty Ltd submitted to the Tribunal.

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

3. All external materials finishes and paint colours are to be in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

4. All new piping and ducting above the ground floor level of the buildings except for downpipes and rainwater heads shall be concealed.

5. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the responsible authority.

6. No external equipment (including air-conditioning units, heating units, satellite dishes), services and architectural features, other than those shown on the endorsed plan, shall be permitted unless otherwise agreed to in writing by the Responsible Authority.

7. All boundary fences are to be repaired and/or replaced at the sole cost of the permit applicant as necessary to the satisfaction of the Responsible Authority. Palings on the replacement fence on the north boundary of the site are to face south so as to minimise disruption to the rear garden of 3 Spray Street and the total height of the fence, including any trellis if incorporated, shall be 3.0m.

8. Prior to commencement of the development a report from a qualified arboriculturalist must be obtained which makes recommendations on what protection works (if any) are required to protect the large tree on the property at 187 Ormond road and the existing trees along and within the northern boundary of 27A Foam Street. Works within the vicinity of these trees must be carried out in accordance with the recommendations in the presence of the arboriculturalist.

9. No polluted and/or sediment laden run-off is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

10. Finished floor levels must be constructed a minimum of 300mm above the applicable flood level.

11. The access ramp to the basement car park is to be constructed to a minimum finished level of 2.70m to (Australian Height Datum) AHD. A bund wall, to a minimum level of 2.70m AHD, is to be constructed along the driveway to the basement entrance to ensure flood waters do not enter the basement.

12. All vents, openings, windows, etc. in the basement, are to be no lower than 2.70m AHD.

13. Upon completion of works, a certified survey plan must be submitted to Melbourne Water showing that finished surface levels (reduced to AHD) are in accordance with Melbourne Water's conditions.

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

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within two years of the date of the commencement of works.

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.

(a) The developer shall show due care in the development so as to ensure that no damage is incurred to the buildings on the adjoining properties.

(b) The applicant/owner will provide a copy of this planning permit to any appointed Building Surveyor. It is the responsibility of the applicant/owner and the Building Surveyor to ensure that all building development works approved by any building permit are consistent with this planning permit.

(c) If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Mike Breedon on telephone 9235 2212, quoting Melbourne Water's reference 63464.

Mr T. Montebello, of Maddock Lonie & Chisholm, appeared on behalf of the Responsible Authority.

Mr G. Peake, of Counsel, appeared on behalf of the Applicant/Permit Applicant and called Mr P. Borelli, of S.J.B. Planning, as an expert witness.

Mr M. Champion and Mr D. Lovelock, Respondent/Objectors, appeared in person.

Mr Champion, a barrister, also appeared on behalf of Messrs W. & M. Box and J. & G. Robinson who were also Respondent/Objectors.

Application under Section 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

The construction of a two storey building comprising five residential apartments with a basement car park.

"1. The proposed development would have a detrimental impact upon the character and appearance of Foam Street, Elwood.

2. The proposal represents an overdevelopment of the site.

3. The proposed development does not comply with the Municipal Strategic Statement.

4. The proposal is contrary to the Elwood and Ripponlea Neighbourhood Policy (LPPF).

5. The proposal does not comply with the objectives, criteria and techniques of the Good Design Guide for Medium Density Housing.

6. The proposed development would have a detrimental impact upon the amenity of the adjoining properties.

7. The proposed development would be contrary to the orderly and proper planning of the area."

"1. The proposed development would not have a detrimental impact upon the character and appearance of Foam Street, Elwood.

2. The proposal does not represent an overdevelopment of the site.

3. The proposal complies with the Municipal Strategic Statement.

4. The proposal is not contrary to the Elwood and Ripponlea Neighbourhood Policy (LPPF).

5. The proposal complies with the objectives, criteria and techniques of the Good Design Guide for Medium Density Housing.

6. The proposed development will not have a detrimental impact upon the amenity of the surrounding properties.

7. The proposed development would not be contrary to the orderly and proper planning of the area."

1. On the hearing, Mr Champion objected to the short notice of Mr Borelli's report which had only been received 24 hours prior to the hearing whereas the Victorian Civil and Administrative Tribunal Practice Note requires expert evidence to be provided not less than 10 days prior to a hearing. Mr Lovelock made the same objection.

Mr Peake responded that this case is a policy case, based on Amendment C5 to the Planning Scheme which was only gazetted on 21 December 2000 and which made significant changes to the MSS and contains specific policies relating to the area of the subject site.

Mr Borelli had been unable to obtain a copy of the gazetted version of Amendment C5 until Friday 12 January and therefore, it was submitted there would have been little use in completing his report prior to that date. It was completed without delay and circulated by courier to all parties on Tuesday 16 January 2000.

Mr Peake further advised the Tribunal that the majority of Mr Borelli's report had been on the Council's file since May 2000 as part of the submission lodged with the application and had, therefore, been available for perusal by the objectors since that time.

In the circumstances outlined above, the Tribunal directed that Mr Borelli's evidence would be allowed to be presented but leave would be given to the objectors to make further written submissions to the Tribunal on any of the additional information contained in the final report.

2. Mr Champion also objected to the tabling of the landscape concept plan of the subject site by Mr Peake on the grounds that he had not had the opportunity to examine if for comment.

The Tribunal advised Mr Champion that there was no requirement for a landscape plan to be submitted with a permit application and, evidently, none had been submitted with this application.

However, should a permit be granted, it is clear that it would include a condition requiring the preparation and approval of a landscape plan and, to assist the Tribunal, the draft plan had been prepared and tabled for information and its acceptance as such did not transgress the objector's rights in any way.

3. Mr Champion, in his third preliminary matter, challenged the appropriateness of Mr Borelli as an expert witness in this matter as he had acted on behalf of the permit applicant throughout the whole of the planning process and, therefore, could not be considered to be an independent expert.

The Tribunal noted that Practice Note VCAT 2 - Expert Evidence contemplates that expert witnesses will be retained by parties to proceedings but that they have a paramount duty to the Tribunal and not to the party, that they have an overriding duty to assist the Tribunal and that they must not act as an advocate for a party to a proceeding.

The Tribunal assured Mr Champion that Mr Borelli was a well known and respected planner who would be relied upon to follow the directions of that Practice Note.

4. Mr Peake sought leave to substitute amended plans for those lodged with the application for a permit. The modified plans had been circulated to all parties on 19 December 2000 and included the following variations:

"* The number of dwellings in the proposal has been reduced from six to five.

* The building now includes pitched roofs with gable ends, instead of flat roofs as previously proposed.

* The building has been reduced in height by 0.6m, reducing the parapet height from 9.8 AHD to 9.2 AHD.

* Face brick is used on approximately 50% of the elevations, where previously rendered and painted walls were proposed.

* The basement has been reduced in size, by the removal of two car spaces. The ramp and stair have undergone minor realignments, most notably modification of the ramp to a maximum gradient of 1:6, where previously it was 1:5.

* As a result of removing one dwelling, only two dwellings are located at the rear of the site, where three were previously located.

* At ground floor level, setbacks to the north have increased from 3.0m and 4.0m, to 5.5m and 4.1m. A slight reduction in setback to the northern boundary for Unit 1 from 3.0m to 2.7m has occurred.

* The front setback at ground level has increased from a minimum of 1.5m to a minimum of 3.0m, allowing a ground level terrace to be located in the front setback of Unit 1.

* The living area wall constructed adjacent to the rear boundary at ground level has been moved 8m to the south.

* At first floor level, all terraces have been removed. The setback of Unit 1 to the north has been increased from 1.6m to 2.3m. The setback of Units 2, 3 and 4 to the north have been increased from a minimum of 3.0m to a minimum of 4.2m. Full-sized windows are included for the north and south bedrooms and study for Unit 2 and Unit 3 . Additional highlight windows are shown for the bedrooms of Unit 1 and Unit 4.

* The Foam Street elevation has been realigned, including a gable end facing the street, and now incorporates face brick work where natural anodised aluminium was previously shown."

There was no objection from the Responsible Authority however, Mr Champion objected to the substitution on the ground that, as the Responsible Authority had not formally considered the amended plans, he was disadvantaged by the fact that he did not have the benefit of the Council's opinion of them.

Mr Peake responded that the proposed modifications were clearly amendments and not a transformation, that they have been available for examination and comment for a month, that they have been reviewed at officer level and comments on them will be included in the submission of the Responsible Authority and that they constitute an overall improvement on the previous plan.

The Tribunal noted that, if the amended plans were not substituted, the application for review would proceed on the original plans for six units with the possibility of a permit being granted. As this did not appear to be in the objectors' best interest and for the reasons put forward by Mr Peake, the Tribunal considered that the amended plans should be accepted.

Accordingly, under the provisions of Section 127(1) of the Victorian Civil and Administrative Tribunal Act 1998, Schedule 1 Clause 64, the Tribunal ordered that the amended plans be substituted for those lodged with the application and those plans thus became the plans under consideration in this application for review.

1. This is an application for review of the refusal of the Responsible Authority to grant a permit for six (now amended to five), two storey units on the subject site.

2. The existing conditions of the site and its environs, the planning controls affecting the land, the details of the proposal and the actions taken by Council were set out in the submission of the Responsible Authority as follows:

The following description of the subject site is taken from the officer's report

The subject site is irregular in shape with a frontage of 21.7m, a depth of 39.6m and a total site area of 795m2.

The subject site is currently occupied by a single storey brick dwelling which as a minimum front setback of approximately 4m. There is an existing crossover and driveway along the south side of the property with a solid 1.8m high brick front fence.

Adjoining the site to the south along Foam Street is a two storey 1920's brick unit development with a similar style of development adjoining the site to the north. There is another similar 2 storey residential building located on the corner of Foam Street and Ormond Road.

Adjoining the site along its northern boundary there is an open car park area associated with a 2 storey block of units at 5 Spray Street and a rear garden associated with a single storey dwelling at 3 Spray Street.

There are a number of recently constructed 2-storey townhouses abutting the site along the east boundary with a series of private open space areas associated with dwellings fronting Ormond Road abutting the southern boundary.

The proposal before the Tribunal involves the removal of the existing dwelling on the site although that in itself does not require a planning permit.

After the existing dwelling is removed, it is proposed to construct a 2-storey building comprising 5 apartments, with a basement car park.

The basement car park would provide parking for 11 vehicles, eight of which are in a tandem arrangement as well as storage areas.

Access to the basement would be via a ramp accessed from the existing crossover to the south of the subject site.

At ground floor level each unit would contain a kitchen and living-dining areas with terracing and open space.

At first floor level each dwelling would comprise two bedrooms plus study and small terrace.

Due to the irregular shape of the lot, ground floor setbacks vary from a minimum of 1 metres to the street, (from terrace) generally varying between about 1.5 and 4 Metres to the north, about 4 metres to the east and again varying to the south.

At first floor level setbacks would be 3.5 metres to the street, between 2 and 4 metres to the north, about 4 metres to the east (with some zero setback) and a staggered diagonal setback to the south (minimum 3 metres).

The proposed design would be of a contemporary block form, with a combination of face brickwork, painted rendered walls, aluminium window frames, timber balustrading and a pitched roof with gable ends introduced lately.

Planning Application 618/2000 was lodged with Council on 29 May 2000. It sought development of the subject site for the purpose of 6 apartments.

Council requested further information and this was subsequently provided.

The application was then required to be advertised by way of a sign on site and notices to adjoining owners and occupiers.

As a result of that advertising 14 objections were received. The grounds of objection can be summarised as follows:

* The proposal represents an over-development of the site;

* Development not in keeping with character of the area;

* Development not in keeping with the existing streetscape;

* Development would damage adjoining buildings during their construction

Council's delegates resolved to refuse the application on the grounds set out in the officer's report.

Since that time, amended plans have been received which make substantial alterations to the development. The amendments try and address those aspects of the refusal which relate to the design and form of the development

Council's manager of Urban Design has considered the amended plans and advises that :

"It is evidence that the changes that have been made address the concerns that I had back in August. The reduction in the number of units improves the design and allows for more landscaping. The selection of colours for brickwork and render should be advised to us. (I would recommend a red brick with a natural mortar and cream render.) I would prefer to see expressed eaves, to be consistent with the majority of nearby buildings, but the box gutters are okay. Incidentally the cantilevered wardrobe on the north side of Bedroom 1 of unit 1 is not shown on the west elevation."

The changes made though do not address other matters raised in the grounds of refusal specifically relating to compliance with policy especially on the location of medium density development and the removal of single detached houses and their replacement with something other than single detached houses. This submission will deal with these issues.

As previously noted, the subject site is zoned Residential 1 under clause 32.01 of the Port Phillip Planning Scheme. Accommodation as a use is as of right in this zone. Pursuant to clause 32.01 - 4, though, a permit is required to construct two or more dwellings on a lot.

"* 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."

The Residential 1 zone provides that before deciding on an application, in addition to the decision guidelines in Clause 65 of the Scheme, the Responsible Authority must consider, as appropriate:

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

Clause 65 of the Scheme sets out the general considerations but, again, also refers to the SPPF and the LPPF.

The Scheme's requirements to consider and then implement policy is consistent with the desire that planning decisions are now policy based."

3. On the hearing, all of the parties read from written submissions with the exception of Mr Lovelock who made an oral submission and numerous plans and photographs were tendered to the Tribunal. All of this material has been carefully considered and the Tribunal has made an inspection of the site and its environs. It is not necessary to repeat these submissions in detail at this time, they are held on file as part of the record of these proceedings.

4. The major issue in this application for review and the one solely concentrated on in Mr Montebello's submission on behalf of the Responsible Authority relates to the policy of Port Phillip now enshrined in Clause 21.05-1 of the Planning Scheme by Amendment C5 which was gazetted on 21 December 2000. As a result of that amendment, it is now policy within the Elwood/Ripponlea neighbourhood, within which the subject site lies, to:

"* discourage new medium density development in established residential ares, 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 dwelling 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."

5. In relation to the first of these policies, Mr Montebello appeared to place too strict an interpretation on its meaning and, whilst he did not go quite so far as submitting that medium density housing was prohibited unless on main roads or public transport routes and acknowledged that a policy is never more than a guideline, he did appear to overlook the words "such as" proceeding those two examples of appropriate locations. Clearly, the policy allows for a wider interpretation of what could be considered to be appropriate locations and, in the Tribunal's view, the subject site is an appropriate location given its proximity to a range of facilities and services including public transport and the fact that it is almost surrounded by existing medium density housing.

6. Whilst the second policy aims to protect large dwellings on single dwelling lots, there are no statutory controls to achieve this outcome and, whereas there are, no doubt, some sites within Elwood where it would be appropriate that they should not be redeveloped for medium density housing, this must be determined by the overall characteristics of the site and, in this case, it is clear that its particular circumstances do not indicate it should be retained as a single dwelling allotment for the following reasons:

(1) It is well located in relation to shopping facilities, school, public open space and transport;

(2) it is a large site with a relatively narrow street frontage;

(3) there are no improvements on the site that make a positive contribution to the character of the neighbourhood, including buildings and the lack of landscaping;

(4) the site fully or partly abuts nine other properties, two of which are developed with two-storey 1930's style flats; two of which are developed with modern two-storey medium density housing; one of which is developed with two-storey 1960 walk-up flats; two of which are developed with Edwardian attached dwellings located close to Ormond Road and one of which is developed with a detached dwelling."

7. To be read concurrently with the above Local Planning Policy Framework provisions contained in the MSS is the State Planning Policy Framework which contains policies that address:

* Car parking and public transport access to development.

8. In essence, these policies seek to encourage urban consolidation as a means of reducing infrastructure costs, providing more cost effective housing, preserving valuable land at the urban fringe and giving more people access to community services and facilities. They also encourage a more diverse range of housing, suited to neighbourhood context and to the actual needs of our community. In addition, emphasis is placed on energy efficiency for new residential developments as well as promoting better use of community infrastructure.

9. Car parking should be provided in residential developments but utilisation of other forms of transport is also a policy objective.

10. Policies that, on the one hand seek to encourage urban consolidation and on the other to protect single dwelling lots do appear somewhat like wanting to make a lot of omelettes but not wanting to crack many eggs. Mr Montebello, however, was adamant that there was no conflict between these policies.

11. In this case, the Tribunal agrees that there is no conflict though for different reasons than those of Mr Montebello. For the reasons set out above, the site is not suitable to be retained as a single dwelling site and is far more appropriately developed for medium density housing.

12. As already stated, Mr Montebello did not pursue any of the other grounds of refusal on the hearing and conceded that, as a result of the amended plans, that the proposal is now "... one which is more tenable in terms of built form".

13. There is, therefore, no need to discuss in detail the various elements of the Good Design Guide other than to say the Tribunal is satisfied that the development essentially satisfies these guidelines as demonstrated by the assessment contained in Mr Borelli's report. The provision of a basement car park greatly assists in enabling a higher density to be achieved without compromising other elements of the Guide.

14. In so far as off-site amenity effects are concerned, the only sensitive property is that of Mr Champion at 3 Spray Street where the private open space adjoins to the north of the subject site. Mr Peake submitted that:

"The amenity of this open space is already compromised by the 1960's flats and associated car park to its west, a new two-storey development to its east fronting Spray Street and a new two-storey development to its east fronting St Kilda Street. To avoid this rear yard being further enclosed, the proposed development has been designed so that it is set back between 4.17 and 5.4 metres from this boundary and set back 4 metres from the east boundary. It is submitted that this is an appropriate design solution that will step the building away from this open space area."

15. The Tribunal substantially agrees with this submission but will, nevertheless and at Mr Champion's request, include a condition requiring that the fence on the northern boundary be 3.0m in height.

16. The Tribunal, however, does not agree that the first floor windows of Unit 3 require any treatment to prevent overlooking into Mr Champion's property as they are sufficiently remote and the view line sufficiently angled to make any overlooking minimal and acceptable.

17. Mr Lovelock's concerns relating to overlooking from the first floor of Units 2 and 3 are mitigated by the existing vegetation along and within the northern boundary of his site, the set back of these units of approximately 4.5m and the fact that the windows in question are to bedrooms which are generally not considered to be of as much concern. The trees referred to will be protected by means of a condition in the planning permit.

18. Mr Lovelock's other concern related to the construction of the underground car park and its possible affect on his property. Mr Borelli responded that the depth of the excavation proposed was only 2.0m, set back 1.3m from the boundary and, in any event, was not directly opposite Mr Lovelock's property. Furthermore, this is not in fact a planning issue but one which comes under the provisions of the Building Control Act.

19. It follows from what has been said that the Tribunal considers that the proposed development is appropriate for this site and that a permit should be granted subject to conditions and the Tribunal will so order.