Does the development respond to its built form and policy contexts?

1. The review site is a moderately sized lot with regular proportions and a gentle slope. It has access to all utility services and to a sealed local street. Its only constraint is a large Camphor Laurel tree located near the rear boundary that the responsible authority and the consultant arborist agree is significant in the local landscape. It is also in good health and likely to live for some decades. Subject to the careful siting of new development near the tree, the site has no heritage, topography or natural features that would constrain its redevelopment.
2. The site is within a local residential street that was initially developed with attractive single storey interwar dwellings on moderate sized lots. Fences are generally low, and there is a mix of vegetation in the front gardens. Most properties have low to medium height vegetation along their front and side boundaries, while a few dwellings have taller trees within their front gardens. All properties have a single crossover and driveway, and some properties have expansive hard surface areas in their front setback areas that are used for car parking.
3. The street is undergoing change. No.9 Macedon Avenue, diagonally opposite the site, has been developed for a single storey dwelling with a double garage facing the street. Three other properties have, or are undergoing redevelopment for large two storey dwellings with double garages and wide driveways (Nos.19, 23 and 30 Macedon Avenue).
4. The review site is close to non-residential uses. It is opposite a large church and its car park. It is three residential properties removed, or approximately 45 metres from a public car park, and 75 metres from a modest sized neighbourhood activity centre on Doncaster Road. This centre includes a four/five storey mixed use building that has a clear visual connection with the review site. Bus and tram services operate along Doncaster Road.
5. In my view the review site is not within a homogeneous, pristine residential neighbourhood context. While primarily residential, its proximity to Doncaster road and the church gives the context an added robustness, or lower sensitivity than is applicable at its western end that is visually separate from Doncaster Road. I note there are no overlays or a schedule to the NRZ that imposes particular design requirements in response to particular sensitivity or character considerations.
6. The responsible authority says this review is entirely about neighbourhood character. That is only part of the policy framework. The purposes of the zone require the consideration of the State and the local planning policy frameworks that include the following policy directions:
   • Melbourne is forecast to grow by a further 1.5 million households, of which sixty percent are to be accommodated in established suburbs
   • There is a need for a greater diversity of dwellings to meet the growth in smaller households, many of which do not want a larger lot.
   • It is appropriate to develop most of the new dwellings in established areas to make use of the extensive infrastructure and facilities already provided in these areas. Melbourne's established suburbs have a role to play to meet the above planning objectives.
   • There are benefits to reducing Melbourne's urban sprawl including retaining land with landscape and agricultural value on Melbourne's fringes and reducing congestion, fossil fuel emissions and transport costs
   • The reference to State and local planning policy in the purposes of the Neighbourhood Residential Zone require the above factors to be included in the exercise of discretion in reviews such as this.
7. Boroondara's Municipal Strategic Statement also generally encourages a more diverse housing stock to meet changing housing needs. Clause 21.07 accepts housing choice and diversity should be broadened in existing residential areas. A more diverse housing stock is to be mainly, but not exclusively provided through intensive residential developments located in and around higher level activity centres and within a mixed use corridor along Burwood Road/Camberwell Road[2].
8. Local policy guides the preferred scale and form of new residential development. New development should complement and enhance the "distinctive character" of Boroondara and not threaten that character or the amenity of established areas[3].New development is encouraged to respond to the character of each site and to its context. Development is encouraged by local policy to comprise creative and site responsive design solutions, including being responsive to neighbourhood character guidelines. Local policy encourages the relevant Neighbourhood Character Study Precinct Statement to be considered, amongst a number of matters to be addressed[4].
9. The review site is in Precinct 69 (North Balwyn) in the Neighbourhood Character Study Precinct Statement. The guidelines identify the area north of Doncaster Road to contain 1930/1940 era dwellings including two storey dwellings (that are common) with pitched roofs. Dwellings can have a 1-3 metres setback to one or both side boundaries. The area has a modest, open character with low front fences and medium sized front gardens.
10. The Character Statement sets out design objectives, design responses and things to be avoided. Of relevance to this review, the precinct statement encourages:
    • Front gardens to include space for soft landscaping;
    • Setbacks to be consistent with adjoining dwellings;
    • A setback to at least one side boundary;
    • Setbacks at the rear to retain an open backyard character;
    • A front façade that is single storey with a recessive upper level;
    • Visible pitched roof forms;
    • Attached dwellings to be designed to read as one dwelling in the streetscape.
11. The parties have different views on the weight to be given to the Neighbourhood Character guidelines. Mr Skinner says that while the purposes of the Neighbourhood Residential Zone include implementing adopted neighbourhood character guidelines and policy, the decision guidelines of the Zone do not require the consideration of the neighbourhood character guidelines unless required by the schedule to the zone. No decision guidelines are set out in Schedule 3 to the zone that is applicable to the review site. He says the guidelines are a Reference Document, the purpose of which is to inform the decision maker of the background of policy. He says that Reference Documents are not in the scheme, do not have the same weight as policy and hence should be given limited weight.
12. The responsible authority says the guidelines should be given weight because the scheme, namely the purposes of the zone and clause 22.07 and clause 55.02 requires the existing character of an area to be considered and the Neighbourhood Character Study Precinct Statement describes that character.
13. I accept that clause 22.07 says it is policy that a design should respond to the existing neighbourhood character and the relevant Neighbourhood Character Study Precinct Statement is to be considered in the exercise of discretion. Furthermore, clause 55.02-1 requires the responsible authority and on review the Tribunal to consider any relevant neighbourhood character objective, policy or statement, although this is qualified by requiring the statements to be set out in the scheme.
14. The weight to be given to the Character Guidelines is well described by the Tribunal in _Truong v Boroond_ara[5] as follows

Notwithstanding the word existing in the objective at clause 22.07-2, where an application triggers Clauses 54 or 55, the relevant Neighbourhood Character Precinct Statement is directed to be considered by Clause 22.07-3. Further in many instances the aim in many of the statements is to maintain valued features of an area, not to steer a new character. Therefore I do not consider that the NCSPS are limited to a reference document. Rather they are given a role in terms of the purpose of the NRZ, application of clause 22.07 and consideration of the objectives of clause 55.

1. I think the Tribunal chose its words carefully. The Tribunal says the guidelines are relevant, they are to be considered and they have more weight than a reference document. However their weight should not be overstated. They do not have the same weight as a schedule to the zone, or requirements set out in an Overlay. They are not specifically included in local policy, which also has limited weight as its role is to guide discretion. Therefore they are to be considered in the exercise of discretion and in my view their purpose is to inform and assist decision making. That consideration necessarily involves a careful and considered assessment of how a particular design has responded to the particular built form context and to the features of a site as described in the guidelines and viewed on-site. The guidelines are not to be applied as though they are mandatory or essential requirements in every situation.
2. Council conceded that the amended plans address some of Council's concerns, but says that on balance the proposal still "misses the mark". The primary criticism is the symmetrical presentation and larger built form of the attached dwellings, which Council says would be different to the prevailing character. Council says it should present as a single dwelling. It says the first floor would be unduly prominent, the side setback would be too small, it fails to comply with Standard B17 at the rear, and there is a lack of landscaping around the building. Council also says the large single dwellings in the street should be ignored as contributing to the prevailing streetscape or the character of the neighbourhood.
3. I am not persuaded by Council's criticisms of the proposed development. I find that it is, on balance, an acceptable response to the site's features, particularly the Camphor Laurel tree at the rear, the prevailing built form and the policy framework. I make this finding for the following reasons.
4. Firstly, I consider that the site is well placed to accommodate a tempered, well designed medium density development that comprises two dwellings. It is highly proximate to public transport and a local neighbourhood centre that has a range of shops and facilities. It is also at an interface with a more robust built form and so is not within a highly sensitive and intact residential streetscape.
5. Secondly, it makes an incremental contribution to the metropolitan task of providing a more diverse housing stock to meet changing housing needs and better use of the existing infrastructure in established suburbs. The intensity of the development, being two dwellings, is entirely consistent with the scope of change contemplated in the Neighbourhood Residential Zone.
6. Thirdly, it responds well to the features and the constraints of the site. Developing side-by-side dwellings on a lot with a width of 15 metres is usually a tight fit. This proposal would provide a setback to one side boundary, with a first floor envelope that doesn't extend deep into the lot and so create visual bulk issues for its neighbours. Importantly, it enables the Camphor Laurel tree to be retained and so preserves a tree that makes an important contribution to the local landscape and the backyard character of the area. I consider it would be unlikely that the tree could be retained and two dwellings developed on this lot in another configuration.
7. In addition, I consider the design to be acceptable because it:
   • Provides an articulated front façade, with the garages set back behind the main frontage and the corners of the first floor also be setback behind the most visible façade;
   • Proposes two crossovers that would use less than 40 percent of the site's frontage in compliance with Standard B14;
   • Limits the extent and height of walls on boundaries in accordance with Standard B18;
   • Would provide variable side setbacks that would provide articulation and visual relief to the neighbours;
   • Provides a single storey built form in the rear of the site which is less intrusive than a two storey building.
8. Fourthly, it responds well to the Precinct Character Guidelines. While I give them limited weight in this matter, I consider that the development includes front setbacks that are consistent with and responsive to the setbacks of the adjoining dwellings. It would provide an area in the order of 70 square metres in the front setback. This would be sufficient to plant several larger canopy trees and medium height vegetation that would make a greater contribution to the landscape in the street than most of the properties with single dwellings. It would comprise materials and colours that are very common in the street. It would also have a single pitched roof and a low front fence, all of the above encouraged by the precinct guidelines.
9. I am somewhat confused by Council's primary criticism that it would not read as one dwelling in the streetscape. I have a contrary view. It would have a unitary roof line over a building that would appear as a single dwelling. It would be set back to the side boundaries in accordance with Standard B17 and so have a profile to the street that would be similar to the two storey dwellings in the street.
10. While it wouldn't have the double or triple fronted staggered front facade of the older dwellings, it would be similar in form to the emerging character provided by the newer dwellings. These have robust front facades with a consistent setback to the street. The front façades of the newer dwellings are articulated by strong vertical central features such as a high portico or similar. This feature is also visible in the proposed two dwellings and it responds to an emerging character rather than seeking to replicate or mimic the older form. I think this is appropriate as it forms part of the layering of developments in the street where new dwellings are of their time and add variety to the streetscape.
11. Council was critical of the narrow vertical windows in the front façade, and says they are different to the more rectangular windows visible in older dwellings. I agree they are different, but consider they are typical of contemporary dwellings and I think small rectangular windows would appear out of place in a new dwelling.
12. I consider that the front façade is well articulated through variable horizontal and vertical setbacks and by a mix of materials and colours. The parts of the front façade that would be in a flat plane are not wide and hence would not be dominant in the streetscape. While the first floor could be made more recessive by requiring a greater setback behind the ground floor, it would impose additional visual bulk to the rear gardens of two adjoining neighbours. I agree with Mr Skinner that to require further articulation would be change for change sake, and not a response to something that is problematic.
13. Council was also critical of the lack of landscaping opportunities along the side boundaries. I agree with their criticism. As I have noted, side-by-side developments are usually successful on lots with widths greater than 15 metres. In this case, it is my view that the limited landscaping opportunities along the side boundaries are acceptable. Some opportunity is provided for tall, thin screen planting adjacent to the ground floor kitchens and the neighbouring properties have moderate medium height vegetation that provides some screening. Furthermore, the proposed built form would not be adjacent to sensitive open space areas or windows with expansive views. On balance the limited landscaping is less than ideal, but not fatal and is outweighed by the otherwise high level of responsiveness to the site features and its context.
14. With regard to the failure of the development to comply with Standard B17, the extent of non-compliance is 100mm. This is a minor non-compliance, but given the limited landscaping opportunities, I agree with Council it would be somewhat intrusive to its neighbours. I think that it should comply. This can be easily achieved by reducing the floor to ceiling heights, lowering the floor level or increasing the setback of the side wall. I will prescribe the outcome that is required, ie compliance, and enable the Applicant to respond in the manner that meets their amenity requirements.
15. The dwellings would extend into the tree protection zones of the Camphor Laurel tree at the rear of the review site. Mr Molloy estimates the dwellings would extend into approximately 18 percent of the TPZ. The proposed decking would increase the intrusion to approximately 25 percent, well in excess of the Australian Standard AS4970-2009.
16. Mr Molloy completed non-destructive root investigations by digging an exploratory trench through the tree root zone. He says the root distribution of the tree has been influenced by an old stormwater pipe at the rear of property and by the concrete floor of the existing garage. Consequently, he is satisfied there are no significant roots where Dwelling 2 and its elevated deck would be constructed. The elevated decking would be supported by posts that can be carefully located to avoid major roots, and it would allow water to drain into the TPZ.
17. Mr Molloy says there is ample area for the tree to compensate for the intrusion of works into the TPZs. He also says the pruning that would be required would be no greater than he often completes for the regular maintenance of larger trees. He recommends a tree management plan be prepared to ensure that the tree adapts to the works, and he is confident the tree would not be adversely affected by the development. Council's arborist concurred with Mr Molloy's assessment and Council did not rely on the grounds of refusal that relate to the potential adverse impacts on the tree.
18. In summary, I am satisfied that this development achieves an appropriate balance of providing one additional dwelling in a well serviced location, it has responded to its site features and retains a significant tree, and it is well designed so it would comfortably fit into the streetscape without imposing undue visual bulk on its neighbours. If the Camphor Laurel tree is to be retained, this arrangement is the only way to redevelop this site for two dwellings and so contribute to broader planning objectives and be respectful of neighbourhood character.

Would the development impose unacceptable amenity impacts on its neighbours?

1. Ms Anastasia Paraskevas' written grounds of appeal for her father, Mr Kantzidis raises concerns with overlooking, overshadowing, visual bulk and traffic.
2. With regard to visual bulk viewed from the rear of No.8 Macedon Avenue, it is my view the proposed development would be a polite neighbour that would not be unduly intrusive.
3. The dwelling at No.8 Macedon Avenue has only one habitable room window that directly faces the review site. It is a relatively small window to a bedroom and it would provide limited views of the proposed development. I do not consider that limited views of a front part of a two storey dwelling on an adjacent lot would be unacceptable, particularly as the views from within the room would be limited to little more than the ground level elevation. Most of the first floor would be screened by the top of the window.
4. There is no outdoor deck or sensitive al fresco dining area that could be affected by the proposed development. Views of the review site are available through a sliding door and window to a living room, and from another bedroom window, all of which face northward towards the rear boundary. Views to the review site from these windows are peripheral, and the views are presently screened by a 2.5 metres high garage wall on the boundary, two large water tanks and a 4 metres high tree. I am satisfied that while a person within these rooms would have peripheral views of the rear part of the proposed development, they would mainly see a single storey building that extends somewhat further into the site and is slightly higher than the garage on the boundary. I do not think the additional built form would be unduly intrusive or imposing. Importantly, the retention of the Camphor Laurel would mean the longer distance peripheral view would be little changed.
5. With regard to overlooking the development complies with Standard B22 as all first floor habitable room windows with views over No.8 Macedon Avenue would be screened.
6. With regard to overshadowing, the development would cast minimal shadow over the rear yard of No.8 Macedon Avenue because of its single storey height at the rear. The development easily complies with Standard B21 of clause 55 and is acceptable.
7. I have no concern that one additional dwelling would contribute to unacceptable traffic or parking outcomes in this street. The development would provide two car parking spaces for each dwelling in accordance with clause 52.06-3, and I have no discretion to require additional parking to be provided. There was ample on-street parking in Macedon Avenue during my inspection, and I have no basis to conclude that on-street parking is inadequate to accommodate the small number of residents or visitor cars that one additional dwelling might generate.
8. With regard to traffic, one additional dwelling might generate in the order 5 to 6 vehicle movements each day, and there is no basis for me to conclude these additional vehicle trips would cause unacceptable levels of congestion.

Would the development provide acceptable amenity for its future residents?

1. The responsible authority did not raise any internal amenity considerations in its grounds of refusal or in its submission. I agree with their assessment and consider that future residents of the two dwellings would enjoy acceptable amenity. In particular, future residents would have:
   • Access to natural daylight and ventilation to all habitable rooms;
   • Convenient car parking;
   • Generous areas of secluded open space that adjoin the primary living areas of each dwelling and that receive adequate solar access;
   • Minimal overlooking from adjoining dwellings;
   • Dwelling entries that are visible from the street;
   • Convenient access to site services.
2. The amenity of the dwellings would be augmented by their convenient proximity to the nearby neighbourhood activity centre and public transport services, as well as their access to a wide range of services and facilities in the wider area.

1. Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal. I concur with Mr Skinner that the bedroom 3 windows do not need to be screened.
2. I agree with the responsible authority that a fence to a height of 1.8 metres above the deck should be provided to protect the privacy of the secluded open space areas, but also accept it would be a high fence that could diminish the amenity of those spaces. I consider that if the height of the decks is not reduced, an appropriate response is to require a 1.8 metres high solid fence with trellis above.
3. The tree management plan should reflect Mr Molloy's recommendations to ensure the health of the Camphor Laurel tree.

1. For the reasons explained above, the decision of the responsible authority is set aside. A permit is issued subject to conditions.

• Development of two, two storey dwellings on a lot in the Neighbourhood Residential Zone

1. Before the development starts, amended plans must be submitted to the satisfaction of the responsible authority. When the plans are to the satisfaction of the responsible authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans by Archimedium Australia P/L dated August 2015 but modified to show:
   • (a) The fence between each dwelling's rear yard 1.8 metres above the finished floor level of the rear deck areas. The fence can comprise 1.8 metres paling and trellis above;
   • (b) A Landscape Plan in accordance with Condition 3 of this Permit;
   • (c) A Tree Management Plan in accordance with Condition 12 of this Permit;
   • (d) Any changes to the plans required as a result of the Tree Management Plan;
   • (e) Location of tree protection areas.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the responsible authority.

1. A landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit.

(a) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;

(b) Details of the surface finish of all pathways, paved areas and accessways;

(c) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;

(d) One canopy tree (planted at 2 metres high and capable of reaching a height of 8 metres at maturity) in each dwelling's front setback;

(e) Appropriate screen planting, capable of reaching a mature height of at least 4 metres at maturity) along the rear (western) boundary. Such planting must be of a species with non-invasive roots;

(f) Landscaping and planting within all open areas of the site.

1. Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the responsible authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the responsible authority.

1. The site must be drained to the satisfaction of the responsible authority.

1. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose, to the satisfaction of the responsible authority.

1. Provision must be made on the site for letter boxes to the satisfaction of the responsible authority.

1. The external faces of walls on or facing boundaries must be cleaned and finished to an acceptable standard to the satisfaction of the responsible authority.

1. All external lighting must be designed, baffled and located so as to prevent light from the site causing any unreasonable impacts on the locality, to the satisfaction of the responsible authority.

1. Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the responsible authority.

1. Concurrent with the endorsement of the plans referred to in Condition 1 of this permit, a Tree Management Plan must be submitted by a suitably qualified and experienced Arborist in relation to the management and maintenance of the Camphor Laurel at the rear of the site (noted as Tree 3 in the Arborist Statement of Evidence for Proceeding P770/2015 by Simon Molloy dated September 2015) and must be approved by the responsible authority prior to the commencement of any works including demolition and levelling of the site. The tree management plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to the satisfaction of the responsible authority ensuring that the tree remains healthy and viable during construction:
   • (a) A tree protection plan to scale is to be submitted along with the tree management plan that is to show:
     • (i) all tree protection zones and structural root zones;
     • (ii) all tree protection fenced off areas and areas where ground protection systems will be used;
     • (iii) the type of footings within the tree protection zone;
     • (iv) all services to be located within the tree protection zone and a notation to state that all services will either be located outside of the tree protection zone or bored under the tree protection zone;
     • (v) a notation to refer to the tree management plan for specific detail on what actions are required within the tree protection zone.
   • (b) Results of exploratory trenching required to be undertaken by the responsible authority or if there is encroachment (construction or excavation) greater than 10% into the tree protection zone (in accordance with Australian Standard AS4970:2009 - Protection of Trees on Development Sites) of any tree to be retained. This must include photographic evidence of any trenching/ excavation undertaken;
   • (c) Details of appropriate footings within the tree protection zone;
   • (d) Supervision timetable required by the Project Arborist to the satisfaction of the responsible authority;
   • (e) The details of how the root zone within the tree protection zone will be managed throughout the project;
   • (f) All remedial pruning works that are required to be performed on the tree development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur.

The recommendations contained in the approved tree management plan must be implemented to the satisfaction of the responsible authority.

1. This permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this permit; or
   • (b) The development is not completed within four (4) years of the issue date of this permit.

The responsible authority may extend the times referred to if a request is made in writing before the permit expires or:

(i) within six (6) months afterwards if the development has not commenced; or

(ii) within twelve (12) months afterwards if the development has not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Clause 21.07 Framework Plan Residential

[5] [2015] VCAT 1324