Following the canvassing of modification to the design at a consultation meeting, Council considered the application and determined to issue a Notice of Decision to Grant a Permit subject to conditions for screening of the first floor level rear windows and reducing the height of the walls and roofline of the 2 storey addition to address objector and Council concerns and requirements for heritage, building height and bulk and overlooking.

Plans were amended in relation to the objectors' concerns and in relation to advice from the Heritage Advisor to the City of Port Philip.

1. At the hearing written submissions were read on behalf of the Responsible Authority, applicant for review / objector and the permit applicant.

2. The main issues presented by the parties were those of the appropriateness of the review proposal in relation to heritage, neighbourhood character, design and amenity.

3. In addition to the requirements of the Good Design Guide with respect to neighbourhood character, the Neighbourhood Character and Urban Design objectives of the Port Philip MSS promote:

"new development that is responsive to the site, and its neighbourhood context, integrates with the prevailing neighbourhood character and contributes to the vitality and amenity of the area, produces energy efficient buildings and minimises the detrimental impacts on neighbouring properties and open space".

4. The dominant existing features of Danks Street include the substantially intact and generally single storey Victorian dwellings, the width of the road reserve, and the high rise flats which are clearly visible from the review site.

5. In terms of neighbourhood character, previous Tribunal decisions have indicated that two storey development is not simply rejected because the existing buildings in a neighbourhood are of single storey construction.

In particular the Tribunal notes the following statement on neighbourhood character from the decision of Mr Liston and Mr Mulcahy in Australand Holdings Pty Ltd (Appeal No 1997/47741 decided on 20 January 1998):

In appeals of this type neighbourhood character is often characterised by using descriptions of the existing neighbourhood such as:

Detached dwellings on their own lots predominate;

Single dwellings on lots of 800 to 1000 square metres predominate;

And then it is argued that a particular medium density housing proposal fails the neighbourhood character requirements of the Good Design Guide because it is inconsistent with such a characteristic, and that therefore the proposal should be rejected. This is not the correct approach. Planning decisions often involve striking a balance between competing policies. Urban consolidation is an important policy of the Planning Scheme and it of necessity encompasses the idea of change. Neighbourhood character is one of eleven elements in the Good Design Guide. The Good Design Guide requires that medium density proposals be respectful of the neighbourhood character. It does not imply slavish repetition of what already exists.

6. While the review proposal is not a medium density housing proposal, the principles in terms of neighbourhood character in the Good Design apply. In addition the principle of balancing various policy requirements from the Local and State Planning Policy Frameworks is highlighted in the above decision.

7. The following extract from Clause 21.01- 3 of the Port Philip Municipal Strategic Statement, under the heading `People' at page 3 of 45, contains information on households and identification of a challenge in relation to the provision of family sized accommodation:

Around 57 per cent of all households are single person or group households, and another 19 per cent are made up of couples without children. Two-parent families account for 16 per cent of Port Philip's households, and all family types combined account for only 24 per cent, compared to the metropolitan average of 52 per cent. Further loss of family sized accommodation will reduce housing diversity in the City and the choice available to families. Most flats and apartments are too small for many families currently living in this type of accommodation.

8. The Tribunal is of the view that some alteration or extension to houses may assist in increasing the provision of housing which could be used for families and that the achievement of strategic objectives for housing in the Municipal Strategic needs to be considered in addition to neighbourhood character an design policies in the MSS. In addition the review proposal would have positive benefits in terms of energy efficiency through the orientation of the rear windows.

9. In the view of the Tribunal, the mass and proportion of the proposed buildings and the relationship with surrounding dwellings need to be considered rather than the number of storeys.

10. The Tribunal is of the view that the review proposal is respectful of the neighbourhood character in terms of scale and form.

11. The Tribunal is of the view that the review proposal, and in particular upper level windows would not cause unreasonable overlooking of the open space and rear windows at 92 Graham Street for the following reasons.

* The proposed windows would be bedroom windows and the nature of the use of the room reduces the potential for overlooking

* The screening technique proposed by the permit applicant is considered to provide a reasonable method of preventing overlooking (obscure glazing) and would have limited openings for ventilation at over 1.6 m above floor level and at floor level. This method is considered acceptable in terms of the Good Design Guide objectives and criteria for visual privacy.

* The location of the proposed windows would not be central to the rear of the dwelling reducing actual capacity to obtain a view of the land at 92 Graham Street

* The rear windows at 92 Graham Street are heavily screened by a verandah and a green fibre glass extension of that verandah

* The height of the proposed upper level windows combined with obstructions such as the lemon tree and clothes line to the angle of view would make overlooking of the small open space between the verandah roof and the fence at the rear of 92 Graham Street unlikely.

* The distance between the proposed upper level windows and the rear yard includes a right of way bounded by two high fences, one of which has a trellis above it

* The rear open space at 92 Graham Street includes a lemon tree of moderate size, and clothes drying facilities and does not appear to have a substantial capacity for use as outdoor open space due to the present service uses and extensive coverage with fibre glass

12. The Tribunal acknowledges nevertheless that there may be a perception of overlooking at 92 Danks Street, and is of the opinion that it would be appropriate to require the planting of two semi mature trees located in the line of sight from 92 Graham Street to the upper level of 91 Danks Street as a condition of permit. Deciduous trees with a maximum mature height of 5 metres may be appropriate in terms of the need for light penetration in winter, and shade in summer. The correct species for a small open space area adjacent to a laneway would need to be selected by a qualified landscape architect. In addition the Tribunal considers that it would be appropriate to maintain a trellis above the rear fence at 91 Danks Street.

13. With respect to heritage, the Responsible Authority referred the Tribunal to the following objectives from the MSS:

Where a streetscape is substantially intact any height increase above the height of the adjacent building should be setback to avoid an adverse visual impact from street level (MSS Neighbourhood Character and Urban Design objectives)

In relation to heritage conservation, the MSS encourages (amongst other things):

The retention, protection and enhancement of buildings, places, tree and streetscapes of identified historical, architectural, cultural, social, scientific or environmental significance.

New development which is sympathetic to heritage places and contributes positively to the heritage value of the municipality

14. The wall height of the upper level of the review proposal has been reduced in height to approximately 5.7 metres to the parapet and a lesser height to the eaves. The Tribunal concurs with the assessment of the proposal by the City of Port Philip that lowering of the wall height of the two storey section of the review proposal would bring the proposal close to the 10 degree sight line for two storey additions. Diagrams submitted on behalf of the applicant indicate a very minor non-compliance with the sight lines. These sight lines are included in the City of Port Philip Heritage Building Guidelines and are framed in terms of achieving upper storey additions which are "visually recessive or concealed when viewed from an adjacent street or laneway".

15. The Tribunal is of the view that the review proposal would be partially visible, particularly from Danks Street and from the Withers Street / laneway. The Tribunal is however of the view that total concealment of all extensions is not intended in the guidelines and that the visual impact of the two storey element in the review proposal would not result in dominance of the heritage area,

16. The Tribunal is of the opinion that the review proposal would not be inappropriate in terms of the significance of the heritage place (being the area included in HO3) for the following reasons:

* The review proposal would restore the front of the building through the removal of the existing `sleepout' resulting in enhancement of the heritage streetscape in Danks Street

* Due to the proposed height (as reduced in the proposed condition on the Notice of Decision) and setbacks, the proposed upper level extension is considered to be of a scale or bulk that, while it would be partially visible, would not dominate the heritage streetscape from Danks Street or form Withers Street.

17. The Tribunal notes that the heritage policies of the City of Port Philip do not adopt a preservationist stance and seek to ensure that development in heritage overlay areas is appropriate and enhances the heritage place. The Tribunal considers that the proposed restoration of the front verandah, fencing and façade elements would result in enhancement of the heritage streetscape and would make a positive contribution to the significance of the heritage place (the Heritage overlay HO3).

18. The scale and bulk of the review proposal are also considered appropriate in terms of the significance of the heritage place.

19. The Tribunal does not consider that unreasonable amenity impacts would result from the review proposal. In particular it is considered that unreasonable overlooking would not result from the review proposal. The Tribunal has nevertheless decided that conditions regarding landscaping and trellis are appropriate in relation to the perception of overlooking.

20. The review proposal is considered appropriate development for the detailed reasons given above.

The order of the Tribunal is that the application for review is disallowed. A permit is granted for the alteration and extension of the dwelling on the land known as 91 Danks Street Albert Park. The Responsible Authority is directed to issue a permit in accordance with the conditions on Notice of Decision 1110/98/G with the following exceptions.

Replace window condition 1 b) with the following condition:

1 b) The first storey windows on the south east elevation shall be limited opening windows with obscure glass and sunshading as shown on plan 8057 - A 1 as amended dated 14 December 1998.

Following condition 1 b) the following conditions shall be inserted:

1c) Two semi mature trees or shrubs of a minimum height of 4 metres when mature and selected of appropriate species by a qualified landscape architect located along the south east boundary in the line of sight for views of the upper level of 91 Danks Street from the rear 92 Graham Street.

1d) Trellis extending to a minimum height of 500mm above the height of the rear fence to 91 Danks Street.

The following conditions shall be inserted after condition 5:-

6. The trees or shrubs shown on the endorsed plan shall be maintained to the satisfaction of the Responsible Authority.

7. The trellis shown on the endorsed plan shall be maintained to the satisfaction of the Responsible Authority.

The remaining conditions shall be renumbered accordingly.