The decision of the Responsible Authority is affirmed. A permit must not be granted for the construction of two, two storey dwellings at 26 Deauville Street, Beaumaris.

Mr Graeme Peake of counsel by Direct Brief. Mr Peake called Mr David Crowder, town planner of Urbis, Mr Mark Reynolds, arborist, and Mr John Patrick, landscape architect to give evidence.

Ms Julie Davis of counsel, instructed by Jeffrey Salinger & Associates. Ms Davis called Mr David Goodwin, planning consultant, to give evidence.

Ms Jan Chamberlain, Mr Peter Dransfield, Ms Margy Frawley, Mr Robert Smith, Mr John Beaty, Mr Desmond Taylor, Ms Fiona Austin and Ms Dace Johanson all appeared in person.

1 Beaumaris boasts the Deauville Estate, a residential subdivision created in the late 1920s, the implementation of which was postponed for the most part until after WWII because of the Great Depression and the Second World War. The estate boasts single dwellings set amidst a landscaped, park-like setting.

2 The Deauville Estate also enjoys a restrictive covenant, the interpretation of which is critical to this case. This case has stirred passions amongst the locals, who value and wish to protect their estate from erosion of its park-like character by increased hard surface cover, a normal concomitant of increased densities.

3 Mr Wilson is a long time resident of the estate and his subject land is equally beautifully landscaped with vegetation cascading over the nature strip. In fact his front and side vegetated setback is so abundant; one cannot see his house for the trees. Mr Wilson now reviews council's refusal to permit the construction of two double storey dwellings on his land in a Residential 1 zone with a Vegetation Protection Overlay.

4 I permitted substitution of the plans by IN2 PL Nos. Job No. 0519, Drawing Nos. TP01 Rev 2, TP02 Rev 4, TP03 Rev 3, TP04 Rev 2, TP05 Rev 3, TP06 Rev 1, pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). There was no objection to the substitution of these plans as parties had prepared for the hearing on that basis.

5 Ms Davis raised concerns that the responsible authority had not notified beneficiaries of a restrictive covenant over the land of this permit application, pursuant to the Planning and Environment Act 1987, s.52(1)(ca) and (cb). Mr Peake responded that it was his client's and council's opinion that the two double storey dwellings did not breach the covenant, but that if they did, he would not be making an application for their variation, so beneficiaries did not need to be notified.

6 Deauville Street and the surrounding area is characterised by a mixture of dwelling styles. There are examples of 1960s and 1970s and contemporary double storey dwellings and other styles in the area. The materials typical to the area include pitched or gable terracotta or cement tile roofs. Substantial front gardens and low front fencing is a contributory element to the area.

7 In the southern part of Deauville Street closer to Beach Road the dwellings are grander than this northern part where the homes are, in general, more modest but this is changing. St Aubin Street has its fair share of substantial double storey dwellings. There is however an eclectic mixture of various architectural styles from traditional to contemporary with some mock Victorian, mock Tudor and French provincial elements.

8 While the architecture is eclectic, meaning a mix of traditional and 1960s modern flat roofed styles, nevertheless they all blend or nestle into the treed landscape. Vegetation forms a significant part of the neighbourhood, with all road verges grassed and no hard surfaced footpaths. As I noticed on my site inspection, people walk willingly on the road pavement, if the grass is damp or wet.

9 The site has a total area of 728.98m² and contains a single storey dwelling located on the corner of Deauville Street and St Aubin Street with driveway access from St Aubin Street. The façade of the dwelling is largely shielded by a raised garden bed fronting the dwelling to Deauville Street and also dominating the site as viewed from St Aubin Street.

10 The subject site abuts a modest single storey brick dwelling to the south, Mrs Joan Waterworth's home. Her home is offset 4.88m from the common boundary which contains her driveway access. That side driveway enjoys a vegetated landscape strip along its length, except for where her carport and garage abut the subject site.

11 The subject site also abuts a substantial double storey rendered brick dwelling to the east, the Frawley home, which sits on the highest part of its block of land. The ground floor of this property is offset 2.8m from its common boundary with the subject site. A driveway access to a carport with a garage behind is located within this offset. As distinct from the Waterworth driveway, the Frawley driveway is not landscaped and presents a hard edge to the subject site.

12 To the north of the site, on the opposite side of St Aubin Street, at No. 28 Deauville, is a two-unit single storey development. The covenant that applies to the subject site also applies to this land. There is a particular history to the construction of this northern dual occupancy that explains how neighbours were unaware that more than one family household was being created. I do not need to expound on this for present purposes.

13 A range of single and double storey dwellings are located to the west of the site along Deauville Street. Deauville Street is generally a winding curved street. Street vegetation is a valued feature of Deauville Street as is the landscape character established by significant vegetation within subject sites.

14 It is proposed to erect two double storey dwellings on the land, each with downstairs family living, three bedrooms, a study, a cellar, double garages, and first floor decks facing both streets and rear courtyards. While vegetation is proposed for the front and side setbacks to the two streets, the neighbours Waterworth and Frawley are presented with small paved courtyards. The one abutting Mrs Waterworth is too small for effective contributory landscaping. Much of the rest of the side abuttal with Mrs Waterworth comprises wall on boundary construction to an average height of 3 metres.

15 Many neighbours were genuinely concerned that a covenant they believed gave them protection for a neighbourhood of single dwellings set in a park-like atmosphere would be eroded by this proposal. Therefore, the crux of this case revolves around the interpretation of the covenant, which is a question of law. If this proposal does not breach the covenant, a decision only remains to be made on the merits.

16 The Deauville Estate was subdivided in 1926 in LP 11039. It was marketed as a unique beachside residential estate, with a 1926 brochure calling it 'The Pearl of the Sea'. Mrs Joan Waterworth next door is an original purchaser of one of the blocks of land in 1947, building her house and moving in 1948.

17 Planning controls as we now understand them were not introduced into Victoria until 1944, so owners placed restrictive covenants over their land as a form of planning control, such as to preserve low density, or prevent non-residential use.

18 Mr Wilson and council interpret the covenant as only preventing non-residential uses from entrenching themselves, but objectors interpret the covenant as meaning not more than one dwelling may be permitted. The covenant reads:

The said Evan Stewart his heirs, executors and transferees shall not at any time erect on any one of Lots ... 58 ... on the said Plan of Subdivision any building other than a dwelling house with appurtenances of a value of not less than ₤800 and any such building shall not be used as a garage (other than a private garage attached to a dwelling house) or as a shop or business premises and shall not excavate, carry away or remove or permit to be excavated, carried away or removed any earth, clay, stone, gravel or sand from the said land hereby transferred except for the purpose of excavating for the foundations of any building to be erected thereon and shall not use or permit or allow the said land to be used for the manufacture of kilning of bricks, tiles, pipes or pottery ware ... ... ...

19 Until now and for the last fifty years, the residents of the estate have lived under the impression that the covenant prevented more than one dwelling per lot. However, a 2003 decision of Tonks has seen a spate of purchases in the estate, with developers sitting in the wings awaiting the outcome of this decision.

20 Council and Mr Wilson rely on Bongiorno, J's decision in Tonks v Tonks and Others [2003] VSC 195 which held that the words 'a dwelling house' permitted more than one single dwelling. The Tonks covenant reads:

... ... ... will not erect or cause or permit to be erected on the land hereby transferred or any part thereof any building other than a dwelling house.

The object of interpretation is to discover the intention of the parties as revealed by the language they used in the document in question.

The matter is purely a question of construction, approached against the background of the facts which existed at the time the contract was entered into. ... ... ...

The task of construction commences with a determination of the purpose for which the covenant was inserted in the original contract. In this case there appear to be two possible answers to this inquiry. The covenant could be directed to ensuring that lot 3, and for that matter the whole subdivision, was maintained as a residential area without restriction on the number of dwelling houses constructed on each block. Alternatively, the purpose of the covenant might have been not only to maintain the residential character of the area but also to restrict the number of dwelling houses to one on each block.

If the parties to the original covenant had wished to restrict the number of dwelling houses built on each of these lots they could have done so very simply and definitively by replacing the word "a" in the covenant with the word "one" or by making some similar simple amendment. The true construction of the covenant is that it prohibits the placing of any building on the land unless that building is a dwelling house. Provided that any building constructed can be properly described as a dwelling house there would be no breach of the covenant. The covenant says nothing, in my opinion, as to the number of dwelling houses which might be built. To import a restriction as to the number of houses which might be built on lot 3 into the covenant would extend its effect beyond the words used by the parties without any warrant for doing so.

22 Tonks is directly in point and I am bound by this Supreme Court decision. The objectors criticised Tonks as too peremptory, however there are many earlier decisions which arrive at the same analysis based on the use of the word 'a' before 'dwelling house' instead of the word 'one', to indicate that more than a single dwelling or residential unit is permissible under the covenant.

23 Natraine Nominees Pty Ltd v Charles Corsie Patton and Robert Hodges Estate Agency Pty Ltd[1] (Natraine) is an earlier Supreme Court decision directly on point which held the same in respect of the following covenant:

no building may be erected on the above described land except a brick building to be used exclusively as a residence or dwelling house only.

24 Smith, J held more than one dwelling (in a single brick building) did not breach the covenant, which was not directed to the number of dwellings but to residential land use[2] possibly within a single building.

25 Smith, J referred to Munns v Watson[3] where the restrictive covenant prevented the erection of any buildings "except a double fronted house with outbuildings for residential purposes". That restrictive covenant was held not to prevent the construction of two separate residential units within the double fronted house.

26 Smith, J also referred to Kimber v Admans[4] where the covenant provided that "no house shall be erected on any part of the four plots of less value than £500". It was held that the covenant did not prohibit the construction of a building containing a number of flats.

27 Similar cases at the VCAT level are Gubby v Mornington Peninsula Shire Council[5] which in turn relied upon Urban Planning and Development v Boroondara City Council[6] by Macnamara DP who held:

Despite the assertion by some of the objectors that this is a "single dwelling" covenant, the words do not bear that construction out. All that the covenant does is prohibit the erection on the site of any building "unless such building is a private dwelling house ... ... ... If this permit is granted both of the buildings on the site will be private dwelling houses. Neither of them has a galvanised roof. Whilst there was no evidence as to the cost of either dwelling, I am prepared to conclude from the material before me that they would have cost in excess of £600 (now $1200).

28 When one examines the words of the present covenant, it is easy to see how it was constructed by its draftsperson. The first part of the covenant addresses the construction of a residential building ('erect'). The second part of the covenant addresses land use at a period in time preceding planning controls. It seeks residential land use as opposed to commercial or industrial land use. It does not limit the number of dwellings per lot. The third part of the covenant addresses quarrying and the fourth part of the covenant addresses industrial land use connected with quarrying.

29 It is my opinion that the covenant does not restrict the use of the land to a single residential unit, following Tonks, Natraine and Urban Planning above. In Re Bishop and Lynch's Contract[7] is distinguished as its covenant clearly addresses the construction of a residential building (as opposed to other types of buildings) and then goes on to prohibit more than one such residential unit:

...will not at any time hereafter erect upon the said lot hereby transferred any buildings other than a private dwelling with a slate or tile roof and will not erect more than one such dwelling upon the said lot hereby transferred.

30 Council's planning officers supported the two dwellings, but council refused the proposal citing disrespect of neighbourhood character and creating unreasonable bulk to its abutting neighbours.

31 The land is zoned Residential 1 under the Victoria Planning Provisions (VPP) format Bayside Planning Scheme. Within this zone pursuant to clause 32.01-4, a permit is required in this zone to construct two or more dwellings on a lot.

32 Permission is required for vegetation removal under the Vegetation Protection Overlay schedule 3, clause 42.02-1, for the removal of one tree native to Australia, a Pittosporum Tree No. 20. The objective of VPO3 is to prevent the loss of native and particularly indigenous vegetation.

33 The substituted plan shows the retention of the Forest Oak Tree No. 17, although there was strong debate about its future survival, given its dieback as a result of the Frawley's new driveway and carport construction. Council's arborist recommended its replacement.

34 Out of 18 trees on site now, 11 to 12 will be removed, most because they are not native and not protected by the scheme.

35 A Design and Development Overlay schedule 1 also covers the land, but no permission thereunder is required as it is a height control to protect the foreshore.

36 On 18 March 2004, a local variation to ResCode clause 55 was gazetted by the government in Amendment C2 Part 2, to make multiple dwellings in Bayside subject to more onerous planning controls. These are contained in the clause 32.01 schedule to the Residential 1 zone.

37 Standard B6 has been varied in Bayside to require a 9 metre setback to Deauville Street to achieve the 'standard'. Only 7.668m is provided to the study and 8.5m to the garage.

38 Standard B18 - Walls on boundary, requires a maximum of 15.85m of wall on boundary to achieve the 'standard', while Mr Wilson proposes 16.46m.

39 On 30 March 2006, the government gazetted Amendment C48, clause 22.07 to the Bayside Planning Scheme. The site sits within neighbourhood character precinct No. H7. Eclectic architecture, set amidst abundant vegetation is a significant feature of neighbourhood character, with occasional tall trees and consistent front building setbacks.

40 Although there are times when Bayside Council's preferred character statements do not match reality[8], this is not one of those circumstances. The preferred future character statement reads:

The mixed dwelling styles are set within the topography and established gardens, including occasional tall trees, often remnant eucalyptus. Despite the varying site sizes and configurations, spaciousness of the area is retained through the relatively consistent front building setbacks, and side setbacks from at least one side boundary. Low or open style front fencing also assists in retaining a spacious feel to the streetscapes.

41 The guidelines which I am asked to take into account pursuant to clause 22.06-3, in exercising my discretion are:

To maintain and strengthen the garden settings of the dwellings

Prepare a landscape plan to accompany all applications that includes substantial trees and shrubs, including indigenous species.

Retain large, established trees and provide for planting of new trees and shrubs wherever possible. (Locate footings outside root zone.)

To ensure adequate space around dwellings for the retention and planting of trees

Dwellings should be set back from at least one side boundary to create the appearance of space between buildings and to accommodate a driveway or trees and shrubs.

Ensure buildings are sited to allow space for the planting of substantial vegetation.

Minimise impermeable surfacing, particularly in the front yard.

Buildings should be set back from the front boundary sufficient distance to accommodate a garden including trees and shrubs.

Large areas of impervious surfaces particularly in the front setback area.

To minimise the loss of front garden spaces and the dominance of car parking structures.

Locate garages and carports behind the line of the dwelling.

Car parking structures that dominate the façade or view of the dwelling.

To ensure that buildings and extensions do not dominate the streetscape.

Respect the predominant height in the street and nearby properties.

Use low pitched or flat roof forms. Buildings should be designed to follow the contours of the site on sloping sites.

Buildings that exceed by more than one storey the predominant building height in the street.

To use building materials and finishes that complement the natural setting.

Use a mix of materials, textures and finishes including render, timber, non- masonry sheeting, glazing, stone and brick.

Provide low or open style front fences, other than along heavily trafficked roads.

42 The principal merits issues are whether there is unreasonable bulk to the interface with the abutting St Aubins and Deauville Street neighbours (Waterworth and Frawley) and whether the proposal complies with neighbourhood character policy?

43 I need to consider the ground floor built form footprint and whether this proposal will maintain the sense of setting and context around dwellings; the use of street setbacks for private open space (referring to Fitton v Kingston City Council[9]); and the extent of boundary and hard surface construction.

44 When one enters the Deauville Estate from Beach Road, one gets an immediate sense of a place with different qualities. People here walk on the road pavement for lack of hard surface footpaths. The combination of grassed nature strips, canopy trees and the cooing and twittering of birds in canopy trees evokes a serene feel. The estate enjoys a mixture of modest and substantial homes set amidst expansive gardens.

45 The Waterworth home is one such modest home, set amongst expansive and well landscaped gardens. Her backyard evokes a sense of peace, space and serenity. The proposed boundary construction along the Waterworth's boundary is out of context and character with the Waterworth setback, although there are areas aligning with her garage in her side setback that would justify a hard edge approach on the subject land.

46 The Waterworth side interface is to the Wilsons' service yard. The Waterworth sideage, albeit to a carport, garage and service side, nevertheless contains a landscaped strip containing bushes, camellias, other shrubbery and a mature narrow trunked Lilly Pilly with a significant canopy that would shield any development. This substantial tree canopy would need protection in any redevelopment of the subject land.

47 The Frawley dwelling gives the opposite impression. It evokes a strong impression of bulk, not just double storey bulk but even the hard surface bulk created by their new carport and un-landscaped side service area leading to their shed in what was the original garage up the driveway. After their renovations, they have not provided contributory vegetation on their west boundary, at their interface with the Wilson land. For this reason, Ms Frawley has expressed her desire that the Wilsons' potato vine be retained, as it gives her a green aspect from her kitchen.

48 From inside the Frawley kitchen and dinette/family room, the double storey development will be visible, but at adequate distance because of the six metre setback of the upper level from its common boundary with the Frawleys. The small amount of boundary interface with the Frawley dwelling is reasonable, and the amount of Unit B's hard surfaced courtyard is also reasonable given its juxtaposition with the Frawley hard surfaced un-landscaped interface.

49 Along St Albans Road, Nos. 2, 4, 5, 9 and 10 are all substantial double storey dwellings, most with sheer double storey walls in one plane. They are mostly classic, with some reproduction, architecture. However, the philosophy 'big is beautiful' is not lost on this neighbourhood. Newer dwellings present a blank, hard surface, 'service area' interface with their immediate neighbour.

50 A poor example of this is 9 St Albans Road which is all paved along its service side. However No. 7 St Albans Road does contribute some canopy trees, albeit medium canopy trees, in its service yard. No. 5 St Albans Road is also a new modern double storey house presenting sheer side walls to its neighbour. However in its setback to No. 7, it does contribute some landscaping.

51 The dual occupancy opposite the subject land at the corner of Deauville Street and St Albans Road (no.28), is a good example of a sheer garage wall on boundary created by an abutting northern neighbour for most of the front unit's interface. However the front unit presents a blank brick wall with no windows and a blank paved brick side yard to this garage wall on boundary. It is this blank interface which Mr Crawford justifiably describes as 'wasted opportunity' or inefficient planning. This occurred historically however, as the dual occupancy was as an as-of-right construction, not subject to planning review.

52 The dual occupancy contributes no canopy trees to the neighbourhood, which could be appreciated as a backdrop, although their low level planting is prolific and well maintained.

53 The owner of the garage wall on boundary at no. 26 Deauville Street has extended the front of an existing dwelling towards the street with an imposing double storey modern offset construction, adopting the 'big is beautiful' theme. There is no landscaping contribution made by no. 26 along the interface with the dual occupancy. It is this sort of construction which can take place without any planning controls, which can lead to devaluation of the past and present character of the neighbourhood.

54 This just goes to prove that it is not dual occupancy itself, but even single dwellings which can diminish the valued elements of this beautiful Deauville Estate. In saying this, however, I draw a marked distinction between Precinct H4 representing single dwellings fronting Beach Road, and this Precinct H7.

55 The applicant has identified consistent elements as making up the character of this special area, bounded by Cromer, Folkestone and Wells Roads and the rear of blocks fronting Beach Road. That boundary includes, but is not limited to, the Deauville Estate. It is significant that the Beach Road frontages, notwithstanding their situation within the Deauville Estate, lie within a different character precinct.

56 Mr Crowder of Ratio Consultants is of the expert opinion that the following elements in the design respond to the neighbourhood character: high standard of contemporary design; consistent two-storey height and scale not dissimilar to nearby substantial homes; well articulated through varying setbacks, materials and fenestration (including extensive use of glazing); upper levels recessive relative to the ground floors to minimise their visual impact; separation of the upper levels by some 2.4m with staggered setbacks to accentuate the perception of "detachedness" and more.

57 The residents submit that after all the effort to which Bayside Council has gone, to achieve both a doubling of the ResCode standards in schedule 1 to the R1 zone, and to gazette their neighbourhood character policy for this H7 precinct, it would be a waste of time, effort, planning, resources and energy to ignore these criteria and guidelines if the development does not achieve them.

58 Precinct H7 places great emphasis on the landscaped setting and spacious garden surrounds of dwellings. The objectors two substantial four bedroom plus cellar dwellings on this single block. They also decry a loss of mature vegetation and opportunity for canopy vegetation which will have a significant impact on the visual amenity of the area, as well as on a 'poor precedent' if copied by developers.

59 Although I agree with many of Mr Crowder's claims, such as articulation, materials, height, reduced upper footprint and sense of address, my overall impression is that they are a standard double storey dual occupancy attitude to this site, rather than one which addresses the special or particular neighbourhood characteristics in this valued estate. I do however laud the architectural design, articulation and fenestration of itself.

60 At the micro level consideration of interfacing properties, a hard abuttal with Frawley is acceptable. But two wrongs do not make a right_._ The diminution of canopy landscaping interfaces will result in a devaluation of one of the significant aspects of this estate, i.e. the sense of setting or context around dwellings per se, especially between the subject land and Waterworth, as well as the sense of canopy trees and greenery visible above roofs.

61 When Mr Crowder was questioned about this impact, his response was directed to the standard urban consolidation philosophy of efficiency i.e. that it is inefficient to pull back non-sensitive walls on boundary to provide plantings at an interface and that canopy trees are not suitable for small courtyards.

62 Mr Crowder pointed to the no. 28 dual occupancy to the north which contains no rear canopy trees and adverted that single substantial dwellings often have no canopy trees either.

63 It is true that Rescode's philosophy is to allow a relatively high level of boundary construction in order to utilise non-sensitive external land for internal accommodation, thereby increasing densities. But debate has always raged about its application to different areas, and to that end, neighbourhood character policies were instituted to preserve interfaces, neighbourhoods or precincts that are sensitive to this type of built form. It is not a 'one size fits all' philosophy that applies as a broad brush approach.

64 With precinct H7, as with its R1 schedule variation, council has gone to great lengths and two planning scheme amendments which have run the gauntlet of local exhibition as well as Ministerial Panel review, to protect its valued neighbourhood character.

65 As I said earlier in Treloar v Bayside City Council[10]:

It is a waste of human energy and skill for time to be expended on drafting, testing and adopting specific policies for a particular centre ... ... ... and for that effort to then be ignored a few months later. How much ink, how many reams of paper and how much human effort must continue to be wasted if such exercises are rendered futile?

66 As mentioned earlier, Standard B6 has been varied in Bayside to require a 9 metre setback to Deauville Street to achieve the 'standard'. Only 7.668m is provided to the study and 8.5m to the garage. Standard B18 - Walls on boundary, requires a maximum of 15.85m of wall on boundary to achieve the 'standard', while Mr Wilson proposes 16.46m.

67 Strict compliance with Rescode setbacks is not always an indicator of failure to satisfy the objectives. Much depends on the specific context. In this case, failure to comply with the Deauville Street setback would not lead me to refuse the permit. I could cure this by conditions, given the deep Waterworth setback.

68 It is the extent of boundary contruction and un-landscaped interface along the Waterworth interface which is one of the factors leading me to refuse this project. The result is deprivation of the 'context of buildings within a garden setting'.

69 The precinct H7 policies clearly and repeatedly seek to maintain and strengthen the garden settings of the dwellings, to ensure adequate space around dwellings for the retention and planting of trees,

70 To this end, the developer muct ensure buildings are sited to allow space for the planting of substantial vegetation. I emphasize substantial as it is both the canopy vegetation and its prolific nature that forms the Deauville Estate's character.

71 The combination of boundary construction which does not interface sufficiently with the Waterworth carport and garage, lack of adequate side offsets to create a contextual setting for the two buildings and lack of contributory canopy landscaping opportunity into the side setback with Waterworth creates a situation into the future which would be an undesirable precedent when developers come to increase densities as a result of my interpretation of the covenant. There would be a gradual but continual erosion of existing and preferred neighbourhood character in contravention of the policy behind Precinct H7.

72 Mr Peake correctly pointed out that the redevelopment of Waterworth's land would attach to this wall on boundary. But that is the point. Such attachment would deplete the space and context available for a landscaped setting.

73 As I have said in other restrictive covenant cases, there is no doubt that restrictive covenants do perform a function of retaining a well vegetated landscape setting, unlike unit developments. Canopy trees give a neighbourhood their character far beyond the streetscape itself. They provide a distant view to greenery and trees for neighbours generally. The impact experienced in a neighbourhood generates a sense of greenery and serenity created by large well vegetated lots[11].

74 Although the eastern abuttal to Frawley also removes the sense of setting, with the development continuing uninterrupted at ground floor level to the boundary, given the Frawley's extensions it would be unfair to make any demands at this end of the site.

75 The private open space might comply with the Rescode standard, but the fact that small courtyard sizes are not conducive to a canopy treed setting does not further the precinct's objectives.

76 Mr Peake's offer of a minor setback of the southern wall on boundary abutting Waterworth goes some way towards removing building mass at this edge, but not enough to maintain a sense of space around buildings.

avoid large areas of impervious surfaces particularly in the front setback area.

78 Another factor militating against this proposal is the extent of frontage to each street given over to double driveways for the one development site. This depletes the site of room for canopy planting, whereas a shared basement garage for all would be one way of limiting hard surface cover.

Use of street or front setbacks for secluded private open space

79 Another indicator of overdevelopment is the use of front setbacks for effective private open space. True, it is a northern aspect, which is valuable for external amenity, as opposed to the shaded southern aspects at the Waterworth and Frawley interfaces. Senior Member Byard in Fitton v Kingston[12] called it a 'stealing of front gardens ... 'frequently frowned upon in planning circles and thought to be an indicator of overdevelopment of a site'.

80 This use of front setbacks is completely out of character with the neighbourhood, where no recreation occurs in front setbacks. The time may come when the occupants will understandably seek a solid front fence, to provide privacy in their sole recreation area, as the rear plots are service size only. Any solid front fence would be contrary to the Precinct H7 policies, which seek to preserve the prevailing situation of open garden settings in these two streets.

81 Moreover, the two first floor decks would be too intrusive into each respective streetscape (this being a corner block), but that could be cured by conditions.

82 The building materials and finishes utilised by the designer are sympathetic and interesting and accord with Precinct H7 policies.

83 The 1.8 metre high rendered pier fence with metal pickets complies with Precinct H7's open style front fences although its height could be reduced to permit more permeable viewing into the front garden, as with many other homes.

84 The neighbours will be disappointed that the covenant they believed in, does not support a single residential unit use of the land, although even single dwellings can destroy the character of a neighbourhood, as illustrated by those in Precinct H4 along Beach Road.

85 This proposal needs to be redesigned, to reflect the dedicated work undertaken by Bayside Council's planning officers in its neighbourhood character policies, to retain a sense of garden setting, or a context of buildings within gardens and landscaped interfaces.

86 It may be that this site is simply not suitable for more than one dwelling, unless the building and impervious footprint can be reduced to retain the valued garden setting.

[1] [2000] VSC 303 (3 August 2000)

[2] as opposed to non-residential land use

[3] [1937] VicLawRp 36; 1937 VLR 178

[5] [2002] VCAT 1344 by Horsfall, then Deputy President

[6] [2001] VCAT 224

[7] [1957] VicRp 23; [1957] VR 179 @ 180

[8] See Brown v Bayside City Council [2006] VCAT 935 (24 May 2006)

[9] [2005] VCAT 1108

[10] [2001] VCAT 250 (28 February 2001)

[11] Hogan v Maroondah CC [2005] VCAT 2763 (16 December 2005)

[12] [2005] VCAT 1108