1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

1. Leave is granted to substitute the plans that are the subject of the Application for Review for those prepared by The Silver Arc Designworks and dated 18 May 2014 (Revision C).
2. The decision of the Responsible Authority in relation to permit application no. 2013/413/1 is affirmed, no permit is granted.

Mr Waldon called expert evidence from Gregg Chapman (landscape architect) of Faulkner & Chapman.

Jennifer Bowdern, Legal Support Planner of Bayside City Council.

Construction of three dwellings, two of which are double storey in height, in a usual manner one behind the other down the length of the site.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.09-5 to construct two or more dwellings on a lot on land within the Neighbourhood Residential Zone.

Clauses 10, 11, 15, 16, 21, 22.06, 32.09, 43.02, 52.06, 55 and 65.

The land is a rectangular shaped allotment with a frontage of 15.24 metres to Clinton Street, a depth of 53.5 metres, and an overall area of 815 square metres. It presently supports a single storey detached dwelling.

The Tribunal inspected the site and surrounding area on 1 August 2014.

Steward v Glen Eira CC [2014] VCAT 441.

1. The Bayside City Council has determined to refuse to grant a permit for the proposed development of three dwellings on land at 48 Clinton Street, Brighton East (the 'review site'). In making its decision, the Council relies on grounds raising concern with the impact on neighbourhood character, the minimal opportunities for landscaping, and the proposed side and rear setbacks.
2. Dmitrii Verbuk (the 'Applicant for Review') has sought a review of the Council's decision. The Applicant for Review's statement of grounds essentially seek to refute the Council's grounds of refusal. The Application for Review is being contested by three nearby residents, who raise concerns relating to impact on neighbourhood character and the impact on traffic and car parking in Clinton Street.
3. The key issues or questions for determination are:

1. What does the Bayside Planning Scheme encourage for this locale? 2. Is the proposal sufficiently respectful of neighbourhood character?

1. Will there be any unreasonable off-site amenity impacts?

1. Will an appropriate level of internal amenity be achieved? 2. Has the proposal appropriately provided for car parking and traffic movements?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Bayside Planning Scheme, I have decided to affirm the Council's decision, and direct that no permit be granted. My reasons follow.

What does the Bayside Planning Scheme encourage for this locale?

1. State and local policy encourages the achievement of urban consolidation on sites within existing suburban locations, particularly those that are well located in relation to a range of services and facilities. The site is within 200 metres walking distance of the tram line along Hawthorn Road, as well as being within walking distance of public open space. It therefore draws a level of policy support for the achievement of urban consolidation. It also however is subject to policy that seeks developments to achieve respect for neighbourhood character. Such policy guidance at a State level is gleaned from the following policies:

Require development to respond to its context in terms of urban character, cultural heritage, natural features, surrounding landscape and climate.[2]

Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport.[3]

Encourage the development of well-designed medium-density housing which... Respects the neighbourhood character.[4]

1. At a local level, the policy intent of the Bayside Planning Scheme seeks to direct new housing to the larger activity centres and residential opportunity areas, while protecting other residential areas from the 'change' impacts associated with medium density housing. The review site is on the periphery of a residential opportunity area as identified on the Strategic Landuse Framework Plan to Clause 21.02 of the Bayside Planning Scheme. Curiously, the Council submitted that the site was within a residential opportunity area, and Mr Waldon for the Applicant for Review submitted it was just outside the residential opportunity area. There was therefore some dispute as to whether the following policy might apply:

Direct new medium density housing to Major Activity Centres, residential opportunity areas, particularly those with good access to public transport routes as identified in the Strategic Land Use Framework Plan.[5]

1. In the end I don't need to finally resolve whether the land is within or just outside of a residential opportunity area. In either scenario, the review site is on the periphery of land so designated, which reflects on its level of access to services and facilities. That is, while a tram route along Hawthorn Road is within easy walking distance, the nearest activity centre is not. The site therefore draws some policy support for the achievement of medium density housing, but not as strong as a site more advantageously located close to an activity centre, or more centrally within the residential opportunity areas.
2. Having regard to the guidance provided by policy, it is therefore fair to say that there is a reasonable balance of strategic intent in this locale between supporting a level of medium density development, while also seeking such development to provide a moderate level of respect for neighbourhood character. The results of this policy balance is evident in the surrounding neighbourhood, as is the different ways that some decision makers have previously interpreted the appropriate balance to be achieved. In the most part, recent medium density development has been constrained to the construction of two dwellings on each lot. However in some cases those new dwellings are quite large, and present some greater bulk to the streetscape than might be considered to be respectful of the more modest single detached dwellings which would have once been commonplace throughout this neighbourhood. This is particularly evident as one moves south along Clifton Street, and thus closer to the heart of the residential opportunity area, and is characterised by developments of the kind found at 32 & 32A and 38 & 38A Clinton Street.[6]
3. The framework under which impact on neighbourhood character is to be assessed has recently changed in this community. The change affects the finely balanced policy imperatives described above between achieving urban consolidation on the one hand, and protecting neighbourhood character on the other hand. That change in balance is due to the application of the Neighbourhood Residential Zone to the review site and surrounds. This zone has as its purposes the following:

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

To recognise areas of predominantly single and double storey residential development.

To limit opportunities for increased residential development.

To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

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

1. The provisions of the Neighbourhood Residential Zone seek to employ a number of mechanisms to achieve these purposes. One of those mechanisms is to restrict development to a maximum of two dwellings per allotment. Under transitional provisions found at Clause 32.09-3 of the Bayside Planning Scheme, this provision does not apply to this planning permit application. However the purposes of the Neighbourhood Residential Zone, with their clear intent for new development to respect neighbourhood character and limit opportunities for increased residential development, still apply.
2. The implications of these zone purposes was recently explored in the decision of Steward v Glen Eira CC[7] where the Tribunal remarked:[8]

The Neighbourhood Residential zone and its schedule give considerable emphasis to limiting opportunities for increased residential densities. Development is expected to comply with neighbourhood character policies and guidelines in preference to achieving urban consolidation objectives through higher density development.

1. As Mr Waldon correctly identified, due to the transitional provisions I still have the discretion to grant a permit for the proposed development of three dwellings. However I agree with Ms Bowdern's submissions that the purposes of the Neighbourhood Residential Zone have lifted the bar in terms of the level of respect for neighbourhood character that is expected in this locale. I also observe that one of the purposes seeks to limit opportunities for new residential development, quite separate from a consideration of whether a proposal is respectful of neighbourhood character. That is, even if one decides that a proposal is respectful of neighbourhood character, one also needs to find that the proposal is consistent with the purpose that seeks to limit opportunities for new residential development. One also needs to make that assessment on the understanding that the provisions of the Neighbourhood Residential Zone seek to implement that purpose by restricting new development on every site within the zone, even though this proposal is exempted from those provisions.
2. Fortunately in this case I don't need to assess the impact of the third purpose, and how it might be applied in a matter where a proposal is otherwise found to be respectful of neighbourhood character. That is because, for the reasons set out below, I find that the proposal that is before me is not appropriately respectful of neighbourhood character. However the intent and effect of the third zone purpose is likely to be a matter debated at future hearings, and is a clear illustration of the difficulties that Applicants may encounter with development proposals in the Neighbourhood Residential Zone, despite the presence of the transitional provisions.
3. As identified above, the application of the Neighbourhood Residential Zone has altered the balance to be given to different policy intents in this neighbourhood. In some ways, the new zone is a 'game changer' to the way that applications like this are now considered. They shift the primary intent of the Bayside Planning Scheme as a whole away from an even balance between encouraging urban consolidation and respect for neighbourhood character, to a more clear intent to restrict new residential development in favour of protecting the existing neighbourhood character. This significant change in focus is evident despite the fact that the local policies have not yet caught up with the change of zoning, and in some cases the Neighbourhood Residential Zone has been applied to locations also identified as residential opportunity areas.[9]
4. It is within this context that an assessment of the proposal for the review site must be made.

Is the proposal sufficiently respectful of neighbourhood character?

1. The Council's Neighbourhood Character Policy at Clause 22.06 seeks, 'To ensure that development is responsive to the preferred future character of the area.' The policy also helpfully provides the following guidance for decision makers:

Where a permit is required to develop or subdivide land in residential areas it is policy to take into account:

• The preferred future character and the precinct guidelines including objectives, design responses and avoid statements for each precinct as described in this policy.
• The extent to which the characteristics of the built and natural environment in the immediate vicinity of the site may determine a preferred future character that is different from that applying to the remainder of the precinct in which the site is located.
• Whether the site is located within a residential opportunity area as shown on the Strategic Framework Plan of the Municipal Strategic Statement and the extent to which this may alter the relevance of the design responses to consideration of the proposal.[10]

1. The policy divides the residential areas of the municipality into precincts in a manner common to a number of municipalities, with the review site located in Precinct D2. The Preferred Future Character for Precinct D2 is essentially a description of the existing character as can be summarised as being common to the entire precinct. It is set out as follows:

The simple, articulated dwellings sit within landscaped gardens. Buildings are occasionally built to the side boundary, however the overall impression of the streetscape is of buildings within a garden setting due to the regular front setbacks and additional tree planting within the area. New buildings blend with the existing, by following these patterns and using materials that harmonise, where brick colours are consistent in a street. Front fences are low or open retaining the openness of the streetscape and view of the front gardens. On properties that adjoin the golf course, buildings are sited and designed so as not to overwhelm the open space. Consistent street tree planting has assisted in unifying the appearance of the area.

1. As guided by Clause 22.06-3, my role is to take account of the preferred character statement, but also consider the extent to which the surrounding existing characteristics might direct a different preferred character, and factor in the location of the site on the periphery of a residential opportunity area. I have inspected the review site and taken time to appreciate characteristics of the surrounding neighbourhood. Having regard to the matters directed by Clause 22.06-3, I find the character to which this proposal should respond as consisting of the following:

1. A range of single and double storey dwellings, with some double storey dwellings being quite large in scale; 2. Dwellings that are well articulated, particularly at the upper levels;

1. Dwellings that sit within well landscaped gardens, when viewed both from a streetscape perspective and across rear yards;

1. Vegetation that consists of primarily exotic trees surrounded by well maintained lower level planting and lawn areas; 2. Dwellings that can have some scale or presence about them, particularly when viewed in the streetscape; 3. Built form constructed to one side boundary, but with boundary walls constrained to the front portions of sites, and usually only the depth of a garage; 4. Materials where masonry walls and tiled pitched roofs dominate; 5. Low open or no front fencing.
2. Having regard to these aspects of the preferred character statement and the surrounding neighbourhood, I find that this proposed development fails to achieve an appropriate level of respect for neighbourhood character. I make this finding for the following reasons.
3. Firstly, the design fails to adequately articulate or vary the side elevations of the first floors to dwellings one and two. The first floors for these two dwellings combine into one overall built form, as will be visible along both side elevations. The first floor walls carry little variation in their setbacks and materials, with minimal relief provided via glazing due to the need to restrict overlooking to adjoining properties. The result are two very dominant and relatively unadorned side elevations at first floor level that extend for a distance of up to 27.7 metres without sufficient levels of articulation.
4. Mr Waldon correctly pointed out that large two storey dwellings, with some length of built form, is a relatively common characteristic of this neighbourhood. In making this submission Mr Waldon relied upon the single dwelling to the south of the site, the approved but not yet constructed side-by-side development to the north of the site, and the constructed side-by-side development further north at 52 Clinton Street. I have reviewed each of these examples, and note that none of them have a first floor that extends the length that is proposed on the review site, with the development at 52 Clinton Street having a first floor with a length of around 15 metres, being about half of that proposed on the review site. I also consider that the first floor of the approved side-by-side at 50 Clinton Street has a much more varied set of side setbacks, based on the plans tabled during the course of the hearing. For these reasons, I do not consider the proposal for the review site to be comparable with the other nearby examples of large second storeys.
5. The design response produces a level of scale and bulk to the side elevations that is uncharacteristic for this neighbourhood, and not supported by the preferred character statement. This level of scale and bulk is in part a direct result of the nature of the overall design, where a common driveway down one side of the site accommodates land that has, in nearby side-by-side developments, been used to provide a stepped presentation to ground and first floor walls, or a more comprehensive landscaped interface. The desire in this case to utilise a common driveway has restricted the ability to successfully ameliorate the presence of bulk of the first floors on the review site.
6. Secondly, the design fails to place the development at the rear of the site in an appropriate garden setting. It was the evidence of Mr Chapman, in response to my question, that the proposed development will have a reduced landscaped setting at the rear of the site, compared to that which currently exists. This aspect of the proposal is to be compared to the policy intent, 'To maintain and enhance the garden settings of the dwellings.' The design response for the proposed dwelling three involves the creation of two narrow open space areas along the side and rear boundaries, at two and three metres wide respectively. I find that these areas are too constrained in size, and combined with the landscape intent to pave the overwhelming majority of these spaces, produces what I find to be a poor response not only to the policy intent, but also to the character of this neighbourhood to have well landscaped rear yards.
7. Hand in hand with this limited landscape response is a built form for dwellings two and three which pushes much of the built form either on or very close to the boundaries of the review site, at a part of the review site that directly interfaces with a number of open rear yards. It is this combination of a limited landscaping response and visually intrusive built form in the rear yard that I find contrasts too significantly with the existing neighbourhood character, and the preferred character statement. While this extent of change may be acceptable in other contexts, it is not consistent with the Neighbourhood Residential Zone, and its clear purpose that new development be heavily influenced by the existing neighbourhood character and neighbourhood character policy.
8. Mr Waldon submitted that the site's suitability for a three dwelling development is evident based on its land size comparable to a number of properties that have been developed with two dwellings in this neighbourhood. While I acknowledge that the review site is one of the largest properties in this neighbourhood, the design response still needs to be respectful of the existing and preferred character. For the reasons I have set out above, I find that an appropriate level of respect has not been achieved.
9. Mr Waldon also submits that the proposal is not an overdevelopment of the site, based on its level of compliance with the numerical standards contained at Clause 55 of the Bayside Planning Scheme. Again I agree with this submission, but find that it misses the mark in terms of the main criticism from Council, that this development does not respect the surrounding neighbourhood character. Indeed this proposal is a very good example of the premise that compliance with individual standards is not sufficient of itself, but that one also has to ensure that a proposal is responsive to its context, and that includes the character of the surrounding neighbourhood. For the reasons set out above, this proposal fails in this key character test. As the proposal is not an appropriate response to both the existing and preferred neighbourhood character, it follows that I will affirm the Council's decision, and no permit will be granted.
10. On the one hand a respectful response on neighbourhood character grounds does not necessarily need to result in the loss of a dwelling, but rather a more sympathetic design. On the other hand I am aware that the application of the Neighbourhood Residential Zone to the review site will mean that any future redesign for the site will now be limited to two dwellings. Given that a substantial redesign will therefore result, I do not intend to address the other issues that were in dispute between the parties.

1. For the forgoing reasons the decision of the Responsible Authority will be affirmed, and no permit granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Clause 15.01-1 of the Bayside Planning Scheme.

[6] Each of which, interestingly, were approved by Council under delegation.

[7] [2014] VCAT 441.

[9] Having said this, I might have interpreted the Bayside Planning Scheme as a whole providing a different balance or emphasis if the review site were within a central portion of a residential opportunity area and therefore much closer to an activity centre, but still affected by the Neighbourhood Residential Zone.