1. This application for review is granted together with permit amendments so that, as amended, the permit will allow the construction of a four storey building containing 14 dwellings with 15 basement car parking spaces in accordance with plans to be approved as provided for in the following conditions which will be the conditions of the permit:

1. Before the development starts modified plans must be submitted to and approved by the Responsible Authority. The plans are to be drawn to scale with dimensions and two copies are to be provided. When approved the plans will be endorsed as evidence of their approval and they will thereafter be the endorsed plans in relation to the permit. The plans are to be generally in accordance with the plans approved under permit No. 1088/2005/A but modified to show:

1. accordance with the plans submitted with the permit amendment application giving rise to planning application for review P2612/2007 and considered by the Victorian Civil and Administrative Tribunal in its determination of that review; 2. the bedroom windows serving Apartment No. 08 on the north west elevation fitted with fixed obscure glazing to a height of 1.7m above finished floor level;

1. modification to the side wing walls supporting the front canopy at the fourth level by use light materials and or colours to reduce their impact when viewed obliquely from Tennyson Street;

1. screening to intercept views from the east facing balcony serving the kitchen area and study so as to inhibit downward views from that balcony into first and second floor west facing habitable room windows of flats in the adjoining building to the east; 2. the incorporation of Integrated Urban Art in the development, viewable from the frontage/public realm, to a value of approximately 0.5% of the total building cost of the development, to the satisfaction of the Responsible Authority; and 3. a landscape plan in accordance with Condition 10 including the following: * schedule of plant species; * height of plant species at maturity.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
4. Prior to the commencement of development, the subject site (known as Lot 1 on Title Plan 694259T) and Lot 1 on Plan of Subdivision 699503H must be consolidated with the drainage easement to the north (known as Lot 15 on Plan of Subdivision 335626M).
5. Car spaces and driveways must be kept available for parking and access purposes at all times.
6. The car parking allocation used in any future Plan of Subdivision for this development must:
   • include not less than one (1) car space per one and two bedroom apartment;
   • include not less than one (1) storage unit per apartment.

All car spaces and storage units for the apartments must be shown on any Plan of Subdivision as part lots to the dwelling lots.

1. All external lights must be of a limited intensity to the satisfaction of the Responsible Authority to ensure no nuisance is caused to adjoining or nearby residents and must be provided with approved baffles to the satisfaction of the Responsible Authority, so that no direct light or glare is emitted outside the site.
2. All new piping and ducting above the ground floor level of the buildings except for downpipes and rainwater heads must be concealed to the satisfaction of the Responsible Authority.
3. The walls on the boundary of adjoining properties must be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
4. Landscaping works as shown on the endorsed plans must be completed within three (3) months from the completion of works (defined by the issue of Certificates of Occupancies for the dwellings) to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
5. Landscaping works as shown on the endorsed plans must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced with a tree or shrub of a similar size and variety.
6. The Applicant/Owner must do the following things to the satisfaction of the Responsible Authority:

1. all redundant vehicles crossovers must be removed and the pavement reconstructed at cost of the applicant/owner to the satisfaction of the Responsible Authority; 2. all new crossovers (and any other associated works) must be constructed at the cost of the applicant/owner and to the satisfaction of the Responsible Authority;

1. any road line marking works that are required as a result of this development are to be undertaken at the cost of the applicant/owner to the satisfaction of the Responsible Authority;

1. prior to any works the written approval of the council or other relevant authority for such alterations/reinstatements (including the construction of new crossovers); and 2. comply with conditions (if any) required by the council or other relevant authorities in respect of reinstatement.
2. Prior to the commencement of the works a construction management plan must be prepared, including a works program, with the objective of minimising the impact of construction works on the nearby residential properties to the satisfaction of the Responsible Authority. The plan must specify the means of reducing the construction impact (at the cost of the applicant) of dust and noise on the nearby properties, and must provide that hours of work be in accordance with any relevant Local Law.
3. Prior to the construction of the northern crossover, the applicant is to engage, at their cost, Citywide Tree Care to supervise the existing street tree during the construction of the crossover and undertake any tree root pruning in order to ensure that the proposed works do not cause any damage to the existing street tree.
4. This permit will expire if one of the following circumstances applies:
   • The development is not commenced within two years from the date of issue of this permit; or
   • The development is not completed within two years from the date of 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.

1. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Ms. Susan Brennan, barrister, appeared on the instructions of her client for the applicant company, Vivante Pty Ltd. She presented written and oral submissions. She called Colleen Yvonne Peterson, town planner of Ratio Consultants Pty Ltd as an expert witness. Ms. Peterson presented and adopted a written report in addition to giving oral evidence.

Ms. Janine Laver, town planner of the City of Port Phillip appeared for the responsible authority. She presented written and oral submissions.

There were four appearances by or on behalf of objectors. James Walter, Roslyn Hare (on behalf of herself and Brian Humphries), Patrice Shelley and John Wertheimer appeared in person and made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

I have inspected the land and locality both before and after the hearing.

Application under s.79 of the Planning and Environment Act 1987 for review of the failure of the Responsible Authority to grant amendments to a permit under s.72 of that Act within the prescribed time.

To amend planning permit 1088/2005/A issued 26 July 2006 (and amended 2 April 2007) which permit allows the construction of a three storey building over a basement carpark such amendments to modify the proposal and endorsed plans in various minor respects but including the consolidation of the area of two units into one and the redesign and relocation of one unit to a new fourth floor level.

Residential 1 Zone under the Port Phillip Planning Scheme

1. This case concerns a proposed amendment to an existing permit. That existing permit is No. 1088/2005/A issued on 26 July 2006 and previously amended on 2 April 2007. It allows the construction of a three storey multi dwelling building over a basement carpark to contain 13 car parking spaces plus two visitor spaces giving a total of 15 in all. Originally the permit was to allow 13 dwellings, but this was amended to allow 14 dwellings.
2. The current proposal to amend the permit and the plans in several ways that are not controversial. The total number of dwellings, and the total number of car parking spaces are to remain the same. Two dwellings on one of the floors are now proposed to be consolidated into one dwelling with a new two bedroom dwelling being proposed for a new upper floor. The existing plans provide for three floors of dwellings, and this would make a small fourth level. The "footprint" of the proposed new dwelling would be much smaller than the floor layout for the floors below, and its setbacks from boundaries, particularly the front boundary would be increased. The affect of these increased setbacks, particularly the front one, is to substantially, and from some points of view completely, hide the proposed new structure from views beyond the site. It will be screened, or substantially screened by the parapets below. In fact the new level would not be visible from within Tennyson Street immediately in front of and opposite the building although some minor glimpses would be available from oblique views.
3. Apart from views from within Tennyson Street, and the opposite side of Tennyson Street, the other vantage point from within the public realm would be at some distance up Coleridge Street which forms a "T" intersection with Tennyson Street, and runs up a slope to the north in the direction of Brighton Road.
4. This is a failure review, but the responsible authority has considered the proposal and decided that it would approve it, subject to conditions requiring modifications to the proposal.
5. In effect, the responsible authority accepts the proposed amendments but intends to impose conditions requiring the removal of the fourth level. It also has a minor concern about parking. As the inclusion of the fourth level is the major component of the proposed amendment, this might be said to be something like a refusal in the form of a clearly unacceptable (from the point of view of the applicant company) modification.
6. The responsible authority is clearly correct in identifying this question of the inclusion of the single dwelling at the fourth level as being the significant issue in this case.
7. The objectors, whilst supporting the responsible authority in its view as to the fourth level, have also raised various suggested amenity concerns. The responsible authority does not agree that these concerns are justified, and I am satisfied that it is correct in that view.
8. It is important to appreciate the scope of this case. As there is already a valid planning permit in existence for the three level 14 unit development, the relevant issues in this case are confined to those things that differ from what has already been approved.
9. Some submissions sought to be raised by objectors really went to whether the existing permit should have been granted. If they were opposed to that, they should have objected, and if necessary applied for a review by this Tribunal, in relation to the decision to grant the existing permit.

1. The review site is, at present, two residential lots and an additional sliver of land too narrow to accommodate a dwelling.
2. There is an existing single storey detached house on each of the two lots. They are a more or less matching pair.
3. On either side there is an existing 1960s style three storey block of flats. Without being unusually ugly, these add very little, and rather detract from the attractiveness of the streetscape and the immediate neighbourhood.
4. Parts of Elwood, including this part, underwent residential development in the form of (usually) detached houses. Subsequently, there has been significant redevelopment with the construction of two, three and sometimes four storey blocks of flats. Some of this redevelopment appears to date back to the between wars period, and a good deal of it is post war, including the flats on either side of the review site. Such redevelopment has taken place at various stages, and varies in architectural quality and the degree to which it contributes to, or detracts from, the amenity of the area.
5. Tennyson Street in this locality is nevertheless an attractive tree-lined residential street. Blocks of flats of varying sizes, styles and periods represent significant intrusions into what was (presumably) once a consistent area of houses. The neighbourhood must now be recognised as mixed. The mixture comprises of remnant houses and the various multi dwelling developments.
6. There is a small neighbourhood shopping centre in Tennyson Street. It is a short walk to the west. This is available to serve local shopping needs, and contains a number of retail and service premises going well beyond what might be offered by a single convenient shop.
7. The area is well served for access to recreation space and public transport including buses and fixed rail within reasonable walking distances.
8. The site is a suitable one for an appropriate multi dwelling development of the sort currently approved. I can understand why the responsible authority had no difficulty in approving the currently approved proposal, or why no objectors sought to overturn its decision to grant the existing permit.

1. The dwelling now proposed for the fourth level would be a two bedroom dwelling with three balconies and a study. The substantial private open space area for this dwelling would be the balcony at the front with access from the main living and dining area. There is a small south facing balcony to one of the bedrooms, and another facing east. These directions of north, south, east and west are, by no means, true directions. I have squared them simply for the purpose of simplifying descriptions). This east facing balcony has access from the kitchen portion of the main living area and also from the study.
2. It is often appropriate to regard a study as a third bedroom, or a potential third bedroom. The responsible authority has done that in relation to this proposal. However, I am not satisfied that this approach is correct in this particular instance. The study area is narrow and of such a shape, and with so much missing wall that I do not think it is readily usable as a bedroom. This is particularly so as part of its area also serves as a hall between the front door and a passage giving access to the other living area.
3. The development would be served, apart from stairs, by a lift running between the basement carpark and the various levels up to and including the upper level.

1. A permit is required to construct more than one dwelling on a lot. Frequently this also brings in the so-called "ResCode" provisions of cl.55 of the planning scheme. However, they do not apply to a development of four storeys or more and thus do not strictly apply to this proposal. Nevertheless, they have been considered by the responsible authority, at least for comparison purposes.
2. The responsible authority also suggests that some reduction in standard parking provision requires approval for the current proposal. It had applied a ResCode standard of one space per dwelling of one or two bedrooms. ResCode would look for two spaces for a dwelling of three bedrooms. If the dwelling at level 4 is regarded as three bedrooms, on account of the study then, it is argued, ResCode would indicate two spaces as opposed to one space for the two bedroom dwelling it replaces. The responsible authority does not favour a reduction in requirement in respect of the increase it claims on account of the study.

1. It appears, from the submissions advanced on behalf of the responsible authority, that it seeks to make out a case that four levels are necessarily wrong in principle without regard to design, context, amenity affects, neighbourhood character or planning merits. The suggestions appears to be that the proposal is wrong because it involves the fourth level, whatever its merits. If that is what is being submitted, it is not right.
2. Various provisions have been referred to as justification for the proposition that there should be, in effect, a rule against four levels.
3. One aspect of this is to point to proposed policy provisions, contemplated in a proposed planning scheme amendment, which would envisage four levels in relation to an existing centre in Ormond Road. The implication is that, if such heights are acceptable there, it follows that they must necessarily not be acceptable in other places, such as in this locality.
4. I understand that this policy provision has been before the Minister for consideration since August 2007. It is not clear whether it will become part of the planning scheme. Whether it does or not, the reasoning based on it is faulty. If four levels is recognised, in policy terms, as being acceptable generally in a particular local centre, that does not mean that four levels can never be acceptable elsewhere. I think it is entirely appropriate that care should be taken in approving four levels, and it is likely to be in only exceptional circumstances that such a thing should be approved in ordinary residential streets of Elwood, away from the particular centre.
5. Circumstances justifying approval in such places might be exceptional, but it does not mean that a particular proposal in a particular context does not represent just such an exception, having regard to the planning merits of the proposal.
6. The various local and broader planning propositions referred to do not state a rule that four storeys will always and necessarily be unacceptable. Proposals have to be considered on their merits.
7. In referring to policy provisions some emphasis has been laid on questions of density of development. Density of development normally refers to the ratio of dwellings per area of land. In that sense, density is not increased here at all. There is still to be 14 dwellings, in line with the permit already granted.
8. It is pointed out that some of the dwellings now proposed are larger in area, and therefore there will be more development including the extra level, if the modifications now sought are approved.
9. This, of course, is true; although the difference is really only marginal. There is an important question to be assessed in relation to whether a fourth level, as here proposed, would have a detrimental effect on the amenity of the area or the streetscape, and whether it would be inconsistent with the neighbourhood character. That can only be assessed in terms of the actual proposal and the actual impacts that it would have. It is not right to suggest that the minor change in the intensity of development transforms it into something of high intensity.
10. Clause 19.03 of the planning scheme was referred to as saying:

Residential development of four or more storeys should include an urban context report and design response explaining how the design responds to the existing urban context and preferred future development of the area.

1. Of course this contemplates the possibility of four or more storeys in suitable circumstances.
2. I was referred to cl.21.04 of the planning scheme containing Port Phillip's vision in its municipal strategic statement. This refers to attractive residential areas being desirable places to live which should be protected from inappropriate development with new development design to complement the built and natural environment to meet different housing needs, including the need for low cost housing. This is good, but I do not see that the current proposal contradicts it.
3. That clause goes on to say:

Specifically for Elwood and Ripponlea the Council envisages (amongst other things) that established residential areas retain their distinctive suburban character including large front and rear setbacks, established gardens and low rise building form.

1. That has little application to this case as the suburban character here has already long since been substantially transformed and no longer accords with that description.
2. Clause 21.05-1, in relation to residential land use, seeks to ensure that new development, particularly that which will increase density in established residential areas, only takes place where it can be achieved without adversely effecting the amenity and character of the neighbourhood. That is good, but the question is, will this proposal adversely effect the amenity or the character of the neighbourhood. In my opinion it will not, having regard to what the true nature of the neighbourhood now is.
3. The strategy states that medium density development is to be discouraged in established residential areas, except in appropriate locations such as on main roads and public transport routes if there are no other constraints.
4. This proposal is not directly on main roads or public transport routes but is close to them, as well as to a local centre and recreational facilities.
5. Clause 22.01 in relation to residential neighbourhood character policy is quoted on the basis that it:

discourages new development that cannot be achieved without adversely affecting the character of the surrounding area or the amenity of adjoining properties. Specifically for Elwood and Ripponlea any new development should respect and where possible enhance low building heights ranging from 1-2 storey for single residences and 2-3 storey for flats.

1. This proposal will sit satisfactorily in its proposed context without adversely affecting the character of the area or its amenity. It should be noted that the reference is to "respect". This does not mean copy. It is a mistake to pick out one characteristic of an area, if that characteristic in fact exists in the area, and confine neighbourhood character and preferred future neighbourhood character to that particular characteristic. Respect might mean complement or fit in with. It does not necessarily mean reproduce.
2. It is not contemplated that the preferred future neighbourhood character for this immediate locality will be different from its current character of partly remnant detached houses amongst a substantial presence of flats of various periods. I am not sure what the concept of enhancing low building heights is supposed to mean, but the area would be rather enhanced by this superior architectural design, compared to the bland 1960s three storey flats on either side and certainly compared to the ugly and intrusive four storey flats at No. 95 Tennyson Street on the south-west corner of its intersection with Scott Street. That particular building is of four full storeys, not three storeys with a minor and substantially hidden four storey element. I consider it most unfortunate, and not comparable with the current proposal. The current proposal does make a positive contribution, at least in architectural terms.
3. Another block of flats with a fourth floor element is to be found at 24-26 Milton Street. It is all together a different proposition, compared with at 95 Tennyson Street. It fits well into its streetscape and local context with its fourth floor element being set back in such a way as to be but unobtrusive. In these respects it is comparable with the current proposal.
4. The permit for that proposal was granted by the Tribunal in its determination of planning review Krenit Pty Ltd v. Port Phillip CC, Norris and ors[1]. Ms. Brennan, in her submissions on behalf of the applicant company referred to this case attributing to the Tribunal there the view that the impact of a fourth level needs to be assessed in terms of height, degree of visibility and how well it integrates with the neighbourhood in general and its immediate neighbours. She went on to extract the following propositions from the case but in terms of questions.
   • does the additional level represent a gradation in height to adjoining properties rather than a dramatic jump?
   • what is the extent of visibility and exposure of the additional level?
   • from where is it seen, how much is seen and what is the impact of what is seen? This exercise is often assisted by 3D images rather than elevations or comparisons of height in metres;
   • are appropriate amenity standards in relation to daylight, sunlight, privacy and visual impact achieve?
5. I can quite see why the responsible authority thought the current three level proposal was acceptable, and why it granted permission for it. In my opinion it is also easy to see why, on the basis of the above quoted criteria, the Tribunal concluded that the development at 24-26 Milton Street should be approved.
6. The current proposal similarly answers well to those criteria, and similarly, in my opinion, justifies approval.
7. Submissions on behalf of the responsible authority sought to distinguish that decision on the basis that it was approved in 2003 prior to the Melbourne 2030 policy and its prompting to councils to identify suitable locations for housing growth and high density development. I do not think that this basis of distinction is relevant. The parallels between the two proposals are marked, and a decision has to be made on this particular proposal, just as it was in Milton Street, rather than there being any question of identifying suitable locations. No-one is suggesting that this site, or its locality is necessarily suitable for general housing growth or high density development. As previously stated, a proposal here must be considered on its merits and that in the realisation that a proposal, with a fourth level element may rarely be justified, but nevertheless may be justified in a particular case.
8. Comparative heights, as between the Milton Street case and this one are referred to, but I do not think they are amount to a significant consideration.
9. In a subtle piece of advocacy at paragraph 9.16 of its written submissions the responsible authority says:

Thus if the Tribunal is minded to put limited visibility of the fourth level above the policy context for limited growth and density in this location, it must be emphasised that this proposal would be considerably more overt than the Milton Street example, particularly noting that the site also lies opposite Coleridge Street which widens the viewing cone.

1. Firstly, the limited visibility is of vital relevance. It is not a matter of putting that before the policy context. It is a matter of assessing the proposal, which includes that characteristic, in the policy context which does not indicate against such a height, notwithstanding that it might generally be inappropriate. As far as I am concerned, the attempt of distinguishing the current proposal from the Milton Street one, or the one currently approved for this site, on the basis of density, cannot be sustained. Although visibility of the fourth floor element is not identical, as compared with Milton Street, they are similar and comparable.
2. The limitation on visibility of the fourth level is vital to the question of the acceptability of this proposal. If it was broadly obvious, as with 95 Tennyson Street, this proposal would certainly fail. Because it is set so well back from the frontage as to be invisible from in front of it in Tennyson Street, and substantially invisible, even from oblique views in Tennyson Street, the impact has to be assessed as minor and capable of further reduction. I impose a condition as to this.
3. Views from Coleridge Street are certainly a relevant consideration. The proposed building, and its fourth floor element, is not quite directly aligned with the "mouth" of Coleridge Street. That street nevertheless stretches away from Tennyson Street in a straight line, and in doing so it rises up a gentle hill. At a certain point, back along Coleridge Street, the fourth floor element begins to peep above the parapet below. That point is beyond 50 metres away. By the time 100 metres distance is reached, and the element begins to be visible but distance will have attenuated its effect considerably.
4. Even then, the impact is considerably reduced by the screening effect of the substantial street trees. At the time of the hearing, and at the time of my inspections, these trees were in leaf, and the screening effect was considerable. In winter this effect would be reduced by the loss of leaves, but would still exist in the form of the building being viewed through a screen of branches and twigs. Nevertheless, I agree with a submission made on behalf of the responsible authority that caution should be exercised in relation to relying on vegetation which may be present today, but may not survive into the future. I therefore merely note that consideration, without relying upon it.
5. It is most unlikely that this proposal would be accepted if it were not for the existing three storey blocks of flats on either side. It is set back compared to them, and of considerably superior appearance.
6. I do not accept that the policy considerations referred to should be applied in a such a way as to suggest there is or should be a rule against a fourth level element, irrespective of design, location and context. Although I recognise that circumstances which would justify approval of such an element are unusual, I nevertheless consider that they do exist in relation to this proposal. This is significantly because this particular proposal is designed in such a way that the reduced upper element will be invisible or minor and insignificant. I think the proposal respects and is in accordance with the existing and preferred future neighbourhood character and that, having regard to design features, the proposal will provide some degree of enhancement of the streetscape. It is certainly superior to the existing three storey flats on either side to which it will provide a modest and substantially invisible gradation.

1. It has been suggested that if further on-site parking is required, it can be supplied by one or more car stackers in the basement. The traffic engineering department of the responsible authority regards this as an acceptable solution. I would implement it if I thought it was necessary.
2. However, having regard to its size, shape, location and partial lack of walls (which could not be conveniently be built in), I think that the study in the proposed upper unit is in fact a study, and is unsuitable as a bedroom. I therefore think that the assessment of the responsible authority of one car parking space attributable to the 14th unit should continue, notwithstanding that the 14th unit has now been relocated.

1. There are habitable room windows in the block of flats to the east, although they are at a lower level than the balcony. They are at least 9 metres away, and would therefore comply with the standards and objectives of ResCode, if they were to be employed as a guide (as has been done by the responsible authority in relation to assessing this proposal). Neither ResCode guidance, nor reasonable planning assessments, can be expected to achieve the ideal of no overlooking in a relatively closely settled suburban situation like this one, and as between blocks of flats like these. Unreasonable overlooking is not acceptable however I do not consider that screens to a height of 1.7 metres are warranted for this balcony. Lesser screening to inhibit downward views in habitable room windows at first and second floor levels of the adjoining flats will suffice.
2. Objectors also raised considerations about overlooking and overshadowing. Views of and into open space areas of houses on the other side of Tennyson Street have to be regarded as acceptable in the circumstances. The distances and obstruction to views are considerable and private open space is not unduly impinged upon, even at such considerable distances.
3. I agree with the responsible authority that there is not other unreasonable overlooking or, for that matter, overshadowing. Concern was raised in relation to certain highlight windows to the rear most ground floor flat in the adjoining block to the east. There was not so much a concern about overlooking as shading. However, investigation of the plans reveals that no unreasonable adverse effect would result from the contemplated modification to the currently approved project.

1. I do not consider that there are any capacity problems that would be imposed on the road network by the approval of this proposal. In fact, the effect would be the same as the proposal already approved. I do not think that the location of the driveway to the basement carpark, notwithstanding its relationship to the Coleridge Street intersection, is unacceptable from a safety or traffic flow point of view. So far as on-street parking is concerned, planning cannot really do more than require reasonable and suitable off-street parking for new developments and that is provided in this case.

1. Conditions were discussed in the course of the hearing on the basis of suggested draft conditions that appear in the officer's report. The conditions are proposed to impose are based on that draft, with such variations as I consider appropriate in the circumstances. A number of notes are included at the end of the draft. These are not actually part of the permit and I will not include in them in my order.

1. I agree that the issue in this case is the question of the proposed fourth level element. For the reasons given I consider it to be acceptable, in this particular case. That does not create a precedent for other situations, which would have to be considered on their own merits. Other amenity considerations raised at the hearing are either irrelevant, because they do not relate to the proposed changes or are minor and have either been remedied or a capable of remedy by the imposition of conditions. In the circumstances the proposed amendment will be granted.