The bathroom, bedroom 1 and bedroom 3 of Unit 2 all shifted 1.2m further to the north, and consequential changes to the internal configuration of Unit 2.

Ms Robyn Gray, planning consultant of ARG Planning.

It is proposed to construct three dwellings down the length of the subject site. The front two dwellings (Units 1 & 2) would be double storey and the rear dwelling (Unit 3) would be single storey. Each dwelling would accommodate three bedrooms.

The dwellings would have areas of private open space of 42m2, 46m2, & 41m2, respectively, principally to the north of the dwellings.

Two crossovers are proposed. A driveway within the southern boundary would give access to a single garage for Units 2 & 3. Unit 1 would have a single garage accessed via a new crossover at the north end of the frontage. A second car space, in a tandem arrangement, is shown for each dwelling.

Application under Section 82 of the Planning and Environment Act 1987 for review of the decision to grant a permit.

Clause 32.01-4: construct two or more dwellings on a lot.

State Planning Policy Framework: Clause 12 (Metropolitan Development), Clause 14 (Settlement), Clause 15 (Environment), Clause 16.02 (Medium Density Housing) and Clause 18 (Infrastructure).

Local Planning Policy Framework: Clause 21.06 (Residential) and Clause 22.09 (Hobsons Bay South Neighbourhood Character Policy).

The site is located on the east side of Davies Street, which runs north-south between Civic Parade and Railway Street North, Altona. It has a frontage of 15.54m and a depth of 50.29m, yielding an area of 780m2.

The subject site is flat and has no significant vegetation. It is developed with a modest single-storey weatherboard detached dwelling. There is no front fence. A short driveway runs within the southern boundary.

The subject site is within an established residential neighbourhood that is mainly characterised by modest single storey detached dwellings. There are some double storey dwellings and unit developments. The neighbourhood does not exhibit a strong vegetation character.

The property abutting to the south (40 Davies Street) is developed with a single storey dwelling with a prominent garage on the north side. The garage commences 6.1m from the frontage and abuts the shared boundary with the subject site. Five windows of the dwelling face north.

The property abutting to the north (44 Davies Street) is developed in a similar manner to the subject site.

To the north-east and east the subject site abuts residential lots facing Mount Street that are developed with single storey dwellings. Small outbuildings and back gardens adjoin the subject site.

To the south-east there is a dual occupancy development that comprises a double storey dwelling at the front and a single storey dwelling at the rear.

1. Leonard Lawrence, architect, applied to the Hobsons Bay City Council [the Council] to construct three dwellings on the subject site. The Council received four objections in response to notification of the application. The Council determined to issue a permit, subject to conditions. One of the objectors - Ms Williams - has sought a review of that decision.
2. Ms Williams resides at the property abutting the subject site to the south. Her grounds of review are:

1. Existing energy efficiency of 40 Davies Street, Altona is unreasonably reduced.

1. Failure to consider the impact on the internal amenity of 40 Davies Street, Altona.
2. Unreasonable visual bulk from private open space of 40 Davies Street, Altona. Unit 2 should be single storey.
3. Only complies with three of the nine applicable standards in the Residential Design Policy.
4. Before considering those grounds I note that many aspects of the proposal are not controversial. For instance, the development of three dwellings on a site that now accommodates only one dwelling would be consistent with planning objectives relating to urban consolidation and housing diversity. The subject site is well located for medium density redevelopment due to its close proximity to a range of facilities and services, including the Pier Street shops, Altona railway station and the foreshore. It was not suggested that the proposal would have any adverse traffic impacts. The dwellings would afford a reasonable level of internal amenity for future residents, including north-facing areas of private open space connected to living rooms.
5. Mr Waldon's submission also addressed other detailed aspects of the proposal. In particular, he noted that there is a high level of compliance with Clause 55, including Standard B17 (Side and rear setbacks) and Standard B18 (Walls on boundaries). Mr Waldon also advised that the Council's traffic engineers have accepted the on-site parking arrangement.[1] I agree with Mr Waldon that the frontage setback of Unit 1 represents an acceptable transition between the buildings on the adjacent lots.
6. The permit applicant has not contested permit conditions requiring screening measures to prevent overlooking - both internally and of adjoining properties. The plans show all upper floor windows facing Ms Williams' property as either highlight windows or with obscure glass.
7. At Clause 22.09 the Character Description for Precinct 4 (Altona) recognises that the precinct has a 'diversity of architectural styles and dwelling types' and 'eclectic use of building materials and colours.' It acknowledges the redevelopment in the precinct - as 'a result of the large lot sizes, proximity to Altona Village and desirable coastal location.' The Statement includes:

Retention of the traditional, generous front setbacks and further use of canopy trees in private gardens and the public domain would give the precinct a unifying element.

1. I am satisfied that the proposal accords with the Statement of Preferred Neighbourhood Character for Precinct 4 and the Objectives and Design Responses by which it is to be achieved.
2. The Preferred Neighbourhood Character is 'The diversity of dwelling stock and garden settings should be retained and strengthened.' The proposal involves a reasonably large area at the front of the site for landscaping, as well as opportunities within the private open spaces and landscape strip within the southern boundary. Although no landscaping plan has been prepared, a proposed permit conditions requires a plan to be endorsed and the lodgement of a bank guarantee or bond to ensure implementation of the plan. The result would be greatly improved landscaping of the subject site.
3. An Objective is 'To maintain the existing dwelling pattern'. The proposed layout - with one dwelling facing the street - would reflect the established pattern in the streetscape. Although two crossovers and driveways are proposed, there would not be a 'dominance of car parking structures'[2] and the garage for Unit 1 is to be set back behind the line of the building.
4. Little needs to be said about Ms Williams' fourth ground of review. Although Ms Gray submitted that the Council's Residential Design Policy is a reference document at Clause 21.06, that is not the case. Accordingly, it is not necessary to embark on any analysis of whether the standards of the Residential Design Policy contradict ResCode. As Ms Williams herself acknowledged, the Residential Design Policy 'is not contained within the planning scheme and carries no weight'. Ms Gray referred me to cases where the Tribunal has held that the Policy should be given 'very limited weight' or 'no weight'.[3]

Impact on energy efficiency and internal amenity of 40 Davies Street

1. The first and second of Ms Williams' grounds of review relate to the overshadowing of the windows of her dwelling.
2. Ms Williams advised that her dwelling was designed by an architect as energy efficient home using passive solar principles. In particular, it was specifically designed to achieve full sun to north-facing windows all day throughout the year. Ms Williams noted that the success of the design has meant that there is no need to use artificial heating in the middle section of the dwelling.
3. Four of the five windows referred to by Ms Williams are full height windows that are located exactly 3m from the shared boundary with the subject site. They are associated with lounge, dining and family rooms. The fifth is a kitchen window that is not as large and projects slightly closer to the shared boundary.
4. Ms Williams' dwelling also has solar panels but it was not suggested that the proposed development would overshadow them at any time. Nor was it suggested that the proposal would significantly overshadow the private open space,[4] which is primarily to the rear of the dwelling.
5. Ms Williams acknowledged that the proposal would accord with Standard B20 which relates to the objective 'To allow adequate solar access to existing north-facing windows'. The Standard requires the proposed 5.9m high walls to be set back 2.38m from the common boundary opposite the north-facing windows, whereas they are proposed to be set back 4.55m. However, Ms Williams argued that as her north-facing windows would be in shade in winter, compliance with that element of ResCode does not ensure energy efficiency.
6. In that regard Ms Williams submitted that the proposal would be contrary to the energy efficiency objective at Clause 55.03-5 - 'To achieve and protect energy efficient dwellings and residential buildings.' She highlighted that Standard B10 calls for buildings to be 'sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced". Furthermore, one of the decision guidelines is 'The existing amount of solar access to abutting properties'.
7. Ms Williams correctly pointed out that Standard B10 does not specify any quantitative requirements as to how it is to be achieved. As put by Ms Williams, the Council 'does not have a system to objectively determine whether there is an impact on the energy efficiency of an existing dwelling.'
8. The shadow diagrams prepared by the permit applicant indicate that at the Equinox the shadow cast by the proposed development would fall well short of the five north-facing windows.
9. I acknowledge that the proposal would cast shadows over the north-facing windows at the Winter solstice. Shadow diagrams prepared by the permit applicant confirm that. However, sections showing the impact at noon indicate that the kitchen window and part of the windows on each side of it would be unaffected at that time. Furthermore, as highlighted by Ms Gray, for much of the time between the Equinox and the Winter solstice the windows - or at least the top part of them - would have direct access to sunlight.
10. Ultimately, I am satisfied that the proposal would not have any unreasonable impact on the energy efficiency or internal amenity of Ms Williams' dwelling. It is not reasonable to argue that despite compliance with the accepted ResCode standards development on the subject site should be further restricted. That is particularly so in relation to development in the central part of the subject site, where building would normally be anticipated.

1. Although Ms Williams' third ground of review refers to visual bulk perceived from her private open space, her submissions at the hearing also referred to views from her dwelling and the street.
2. Ms Williams was critical of the two storey form of both Units 1 & 2. She questioned how '2 very large box-like buildings and one smaller one' could be seen as 'respectful of the scale of the existing housing stock', noting that the area is generally single storey in form 'with an open, spacious feel.' She submitted that 'the lack of articulation of Unit 2 will make our backyard feel hemmed in.' She also submitted that when viewed from the street Unit 1 'will appear as a large box, particularly on the south side where articulation is minimal.' Ms Williams also submitted that Unit 2, when viewed from the rear of her dwelling and private open space, 'will also appear as a large bulky building.' She also argued that as Units 2 & 3 are joined they 'will read like a single large dwelling' from the private open space at 40 Davies Street.
3. My earlier comment relating to compliance with accepted ResCode standards is just as relevant to the issue of visual bulk. The proposal easily meets Standard B17 relating to the Side and rear setbacks objective at Clause 55.04-1. The upper floor of Unit 2 would be a minimum of 4.06m from the shared boundary with the property to the south.
4. I am also satisfied that the proposed design effectively reduces the visual bulk of the upper floors. On most elevations the upper floors of Units 1 & 2 are set back from the ground floor footprint. Windows and a variety of materials and finishes would also break up the mass. Furthermore, there would be a substantial 7.57m gap between the two upper floors. The gap would be adjacent to 2 of the 5 north-facing windows of Ms Williams's dwelling.
5. It is also worth noting that it would have been possible to construct a large double storey detached dwelling much closer to the southern boundary without a planning permit.
6. The single storey form of Unit 3 would be adjacent to much of the rear private open space of Mr Williams' dwelling. A landscaping strip within the southern boundary of the subject site would eventually provide for plantings that may filter the view of the upper floor of Unit 2 from the neighbouring private open space.
7. After hearing Ms Williams' concerns Ms Gray suggested that the eastern section of the upper floor of Unit 2 could be shifted 1.2m to the north. That would further reduce the visual bulk presented to the south.
8. In relation to Ms Williams' ground of review that Unit 2 should be single-storey, I agree with Ms Gray that there is no justification for such a requirement in either Clause 55.04 (Amenity Impacts), in terms of neighbourhood character or the relevant local policy.
9. As noted earlier, this is an area where significant redevelopment is occurring. The single storey character is changing. I also accept Mr Waldon's submission that the Council anticipates that in Precinct 4 there will be more units with upper floors. That is reflected at Clause 22.09. Of the 8 precincts Precinct 4 is the only one that does not have an Objective 'To maintain the sense of openness in backyards...' and a Design response 'If two or more dwellings are proposed, the dwelling(s) at the rear should be a single storey form.'

1. It follows from the above reasons that my conclusion is that a permit should issue.
2. The conditions of the permit should be those in the Notice of Decision to Grant a Permit, with a requirement for a further plan modification as suggested by Ms Gray.

[1] Exiting from the car spaces for Unit 3 would rely on a reverse manoeuvre down the length driveway or a turn into the Unit 2 car space if it were unoccupied.

[2] Which is to minimised pursuant to an Objective for Precinct 4.

[3] Respectively, Member Taranto in Bugden v Hobsons Bay CC [2006] VCAT 246 and Member Naylor in Troszcyj v Hobsons Bay CC [2008] VCAT 1604.

[4] As assessed pursuant to Standard B21.