What guidance is provided by, and what weight is to be given to the previous Tribunal decisions?

What are the general principles regarding repeat appeals?

1. As I have noted above, this is the fourth review by the Tribunal of a proposal to construct two, two storey side by side dwellings on the review site. The first review in 2000 assessed an application to construct two dwellings, while the second, third and this fourth review have examined the conversion of the existing dwelling into two dwellings.
2. While the Tribunal is not bound by precedent and must consider each application de novo, there are long established principles regarding repeat appeals that are relevant to this review. These principles are very well expressed by Member Sibonis in Zinc Melbourne v Banyule CC and I repeat his summary so there is no confusion[2]:

In the seminal case of Amoco Australia Limited v City of Berwick[2], the Planning Appeals Board (a predecessor of the Tribunal) had stated:

Although the Board believes that it should deal with this appeal on its merits it also holds that, in determining the appeal, it should pay regard to the previous decision of the Board and give great weight to that decision. Public policy demands that there be some end to litigation. If applicants were to repeatedly come before the Board, perhaps seeking to exhaust the patience of the Board or even in an attempt to pick and choose a suitable division of the Board to hear the appeal, then it would be to the detriment of the appeals system. Moreover repeated appeals would impose unnecessary costs on respondent parties including, in some cases, psychological costs. One can imagine a case where a developer wears down both a Responsible Authority and objectors by repeatedly making fresh applications. This ought to be discouraged.

... the Board believes that an applicant can make repeated applications for a permit and repeated appeals to this Board. However in determining any subsequent appeal the Board should take the earlier determination into account and give it great weight. Generally speaking the earlier decision should not be reversed unless the applicant can show a change in circumstances which warrant a different view.

In reaching its view in Amoco, the Board cited with approval the following passage from the decision of Watkins v MMBW [3]:

We should also state that as a matter of principle the Tribunal should act with great caution when considering whether a previous decision should be reversed. A change in circumstances warranting a different view must be positively shown otherwise the reversal of earlier decisions would introduce such a state of inconsistency into the appeals system that chaos could occur with unsuccessful parties applying and appealing time after time.

As stated in Bainbridge Ridge Pty Ltd, a number of tests that may justify a departure from an earlier decision were identified by the Tribunal in the case of K & B Reichert v City of Banyule & Ors[4], as outlined in the following extract from that decision:

While the Tribunal is not bound by precedent, there need to be reasonable grounds for a later appeal determination to depart from a Tribunal view on a very similar proposal earlier. ... It seemed to me that the factors which might justify a departure from an earlier determination could include:

• Significant changes in the application itself;
• Changes in the circumstances of the land and its surrounds;
• Changes in planning policy; and/or
• Changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

1. Sprut Pty Ltd v Stonnington CC further distinguished between classic repeat appeals and correcting repeat appeals. The former are described as forum shopping where the applicant puts forward the same or a very similar proposal, possibly with the aim of wearing down the opposition or hoping that another member might come to an alternate decision, which the respondents say are the aims of this review[3].
2. The applicant says this review is a repeat appeal because the application addresses the changes that the Tribunal had previously suggested might make the development acceptable. Sprut Pty Ltd v Stonnington CC further elaborated on the role of the Tribunal in repeat appeals by commenting that:

Irrespective of whether the repeat appeal is in the nature of a classic or correcting repeat appeal, the role of the Tribunal is not to determine the proposal before it would have satisfied the earlier (and perhaps differently constituted) Tribunal, nor to summarily determine the matter solely by reference to the Reichart principles. This is a sometimes misunderstood notion. As Amoco itself indicated, the role of the Tribunal is to still consider the new application before it on its merits but in doing so, to give great weight to the tribunal's decision on the earlier application having regard to the usual principles that have evolved for this purpose[4].

1. Further Tribunal decisions have added further nuance to the approach to repeat appeals within the context set out in Sprut. In Burton and Carter Pty Ltd v Frankston CC, the Tribunal said

While any "correcting" proposal must be considered on its merits, as a whole and afresh, that is 'de novo', equity and fairness demands that if a permit applicant is found to have satisfactorily addressed the matters raised in the previous Tribunal decision then there is a reasonable expectation that a permit will issue[5].

1. Guided by these long established principles regarding repeat appeals, I must firstly identify what the previous Tribunals said about the proposal before them, and then assess what, if anything has changed. I must also determine if this review is a classic repeat appeal or a correcting repeat appeal, and finally determine the application de novo, on its merits guided by its response to the planning and built form contexts and whether the amenity it would provide to its neighbours and residents would be acceptable. In general I should give great weight to the findings and decisions of the previous Tribunals, unless it can be demonstrated that the application, its built form context or the policy framework have changed. Furthermore an alternate decision may be appropriate if the proposal before me can demonstrate that it has responded to clear directions from a previous review.

1. In Petridis v Banyule CC, the Tribunal provided a lengthy description of the site and its environs and the applicable planning framework. The Tribunal found the proposed development to be overscaled, inappropriately designed and poorly sited in terms of the streetscape. The Tribunal further found that the:
   1. Appropriateness of the development is reduced by the extent of driveways and garages located at the front of the site, and
   2. Moreover the two crossovers from the street and associated driveways in combination with the limited setback would restrict the opportunity for substantial planting at the front of the dwellings which might assist the integration of the development with the streetscape.
2. The Tribunal then commented that:
   1. ... believe that the dominance of vehicle access and garaging and the absence of adequate landscaping at the site's frontage could be improved if at least one of the garages for the dwellings were relocated to the rear of the land.
3. The Tribunal noted that the responsible authority expressed some concerns with the amenity impacts of this solution. The Tribunal concluded its assessment by saying that having regard to the established character of this area:
   1. ... a more responsive design would be smaller in scale, relocate the dwellings back in line with dwellings on adjacent properties and reduce the visibility of the garages at the front, as well as the first storey levels.
4. In Bainbridge Ridge Pty Ltd v Banyule CC, the Tribunal found that the dwelling is not unacceptably bulky when viewed from the street. The Tribunal also found that the extent of driveways and garages has a prominence in the frontage that detracts from the streetscape presentation, and the driveways and garages are not respectful of neighbourhood character. The Tribunal said that the proposed (limited) landscaping in the front setback area was a critical flaw as it failed to contribute to the area's landscape character.
5. With regard to the possible relocation of a garage and driveway to the rear of one of the dwellings, Member Naylor said:
   1. Whilst this may be a possibility, it is not the proposal before me and any such change would need to be considered on its own merits in terms of private open space provision to the dwelling, internal and external amenity impacts and any associated character impacts.
6. I also note that Member Naylor said that it is possible some changes could be required to the existing house if considered appropriate and reasonable as part of the planning considerations of a proposed conversion into two dwellings. Member Naylor also said that possible overlooking between the decking and garden areas should be addressed.
7. In the third review_, Zinc Melbourne Pty Ltd v Banyule CC_, the Tribunal found that the two crossovers and associated driveways restrict the opportunity for substantial planting at the front of the dwellings. The Tribunal was more critical of the dwelling's fit into the streetscape than the previous review, describing it as stark and out of character.
8. With regard to possible improvements to make two side by side dwellings acceptable, the Tribunal rejected a proposal at that hearing to convert garage 2 and its driveway to a single width garage, on the basis that the proposal was on the run and its outcome highly uncertain. There is no mention in the decision of relocating a garage and driveway to the rear of the dwelling.
9. In my view, it is evident that the previous Tribunals have consistently found that two dwellings with two garages and driveways in the front setback would be inconsistent with the prevailing and preferred streetscape. The Tribunal has consistently found the two driveways and the small front setback unduly limit landscaping opportunities in the front of the review site.
10. The Tribunal has been careful in all three hearings not to prescribe the changes required to make this proposal acceptable. In my view, Member Moles is clear that while relocating a garage could assist, the proposal before her failed on grounds that would not be addressed only by relocating the garage. That would not address the small front setback, and the bulk and massing of the dwellings.
11. Member Naylor clearly indicated that a new proposal that relocates the garage to the rear has to demonstrate it complies with the entirety of the planning framework comprising housing diversity, neighbourhood character and amenity. She explicitly contemplates that the existing building may need to be reduced in scale, in addition to altering the garage and crossovers. Member Sibonis clearly regarded only providing additional landscaping in the front setback to be an inadequate response to policy and neighbourhood character.
12. Ms Moser says this is a correcting repeat appeal as both Member Moles and Member Naylor contemplated in their decisions the relocation of the garage to Dwelling 2 to its rear and the replacement of the driveway to that garage with more landscaping in the front setback.
13. I disagree with her submission. Notably, what is clear to me is that none of the preceding Tribunals have said that relocating one of the garages to the rear and deleting one driveway would, on its own, be likely to overcome the concerns expressed they expressed with the small setbacks, neighbourhood character, landscaping and the bulk of the built form.
14. I therefore find this proposal before me to be a classic repeat appeal. It is not a correcting repeat appeal, as the Tribunal has not said that if certain changes are made, it is likely to be acceptable.

Has anything changed since the previous reviews?

1. While this may be a classic repeat appeal, Sprut, Reichart and other Tribunal decisions encourage considerations of possible changes that may lead to a change in a decision. The parties were asked to identify possible changes that might lead to a permit rather than a refusal and responded as follows:
   • Ms Moser says the streetscape is changing as several large, single dwellings have been constructed, with limited landscaping in their front setbacks. No.20 Odenwald Road (under construction when Member Naylor considered the matter) is now completed and it has two crossovers, two double garage facing the street and limited landscaping, albeit on a double lot.
   • The respondents and council say only a few properties have changed and the streetscape described by the previous Tribunals remains largely intact.
   • The planning framework has changed with the introduction of Plan Melbourne, the General Residential Zone and its schedule, the Vegetation Protection Overlay and the amendments to local policies.
   • Ms Moser says the proposal has changed and is very different to the previous proposals, while the responsible authority and the respondents say the changes are not significant and comprise some limited landscaping in the unchanged front setback
2. I consider that since the Zinc Melbourne decision in 2013, there has been only a limited change to the proposal and the streetscape. The planning policy framework has changed to the extent that greater weight is to be given to neighbourhood character and landscaping. I am satisfied there have been no significant changes in facts and law.
3. Consequently, I find that I must give great weight to the preceding decisions, and while I must determine this proposal before me de novo, it is incumbent on the applicant to demonstrate that the changes to the application are sufficient to address the concerns consistently identified with the proposal's compliance with neighbourhood character, policy and amenity.

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

1. The existing two storey dwelling on the site is large. It has been designed as two, two storey dwellings in a side by side arrangement. It has two front entries, it has one garage and driveway to Odenwald Road and a garage and driveway to a right-of-way to the rear, and it has multiple areas of secluded open space to the rear of the dwelling. Internally, the dwelling has two kitchens, several family living rooms and multiple bathrooms and bedrooms. The dwelling is configured so it could easily be used as two distinct dwellings, each with multiple bedrooms and separate living areas. At present, one internal door allows occupants access to all the rooms.
2. The existing two storey dwelling is set back 6 metres from the front boundary. It extends from the west side boundary to a setback of approximately 2.1 metres from the east boundary. It has a site coverage of 58.3 percent and permeability of 19 percent. The front setback area is largely paved to provide vehicle access to a garage. There is a room and window that faces Odenwald Street that was used as a garage. The inclusion of a large window and the removal of the hard surface driveway makes the building appear to be a single dwelling, as the two entries are recessed and not obvious from the street. There is very limited landscaping in the front setback. The dwelling comprises rendered brickwork and terracotta roofing. The dwelling has a maximum height of 11.2 metres.
3. In Zinc Melbourne Pty Ltd v Banyule CC the Tribunal described the review site as follows:
   1. The development has a stark appearance in the street, quite out of character with what exists in this neighbourhood. I agree with the submissions of the council and the residents that the streetscape presentation is dominated by driveways and garages. What planting does exist within the remaining areas of the front setback is entirely ineffective in providing a garden setting reflective of that which characterises this neighbourhood.
4. It is proposed to replace the hard paving in the front setback with additional landscaping (this has been partly completed, although the new landscaping has not been installed). A garage that faced Odenwald Street has been replaced with a rumpus room with a glazed window replacing the former garage door. A garage for Dwelling 2 would be provided at the rear with access to a right-of-way (now in place). Additional landscaping in the front setback would comprise 2 metre high Lilypily Bush Christmas in a pleated hedge and a 10 metre Wong-lan and a 4 metre tall Poached Egg plant. No changes are proposed to the building.
5. The site is within an established neighbourhood that largely comprises one and two storey detached dwellings on lots of similar size to the review site. The dwellings that adjoin on both sides are set back 9.5 metres and 9.7 metres, and other nearby dwellings on the north side have greater front setbacks. I accept that the setbacks to the dwellings on the south side of Odenwald Road are smaller, around 5.4 to 7.5 metres.
6. The character of the area has been extensively described in the previous three Tribunal decisions, and my inspection of the site and its environs confirms their analysis. The neighbourhood is described in Zinc Melbourne Pty Ltd v Banyule CC as follows:
   1. Dwellings [are] set in a garden context. While the nature and extent of the planting varies there is nonetheless an apparent vegetated context derived from both the planting in the front setback areas and the street trees. Dwellings are generally well set back from the frontage, and the garages are positioned to be subservient in location and appearance to the dwellings. The prevailing pattern is of single crossovers and associated driveways.
7. Since the previous review in 2013 new large, two storey dwellings have been constructed at Nos.12 and 20 Odenwald Road, near the review site. The dwelling at No.20 Odenwald Road in particular is large, two storeys, with two double garages and two crossovers, with limited landscaping in the front setback. No.18 Odenwald Road is a vacant site as the former dwelling has been demolished.
8. With regard to landscape gardens, in my view the older dwellings in Odenwald Road near the review site have generous landscape gardens that comprise medium height vegetation and one canopy tree in the order of 8 to 10 metres in height. There are approximately six dwellings proximate to the site that have this characteristic, mostly on the south side of the street.
9. By contrast, the properties with newer dwellings have substantially more modest vegetation. This may be due to the fact the vegetation is young, but in some cases, it appears that only low-rise vegetation has been planted. The street as a whole has a green landscape setting but with some notable gaps.
10. The land is within the General Residential Zone and affected by Schedule 2 to that zone. The zone has changed from the Residential 1 zone that applied at the time of the previous reviews. The purposes of the GRZ are to implement planning policy and:

To encourage development that respects the neighbourhood character of the area.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport[6].

1. Schedule 2 to the zone varies Standard B8 (site coverage) to 40 percent and Standard B13 (landscaping) to one tree for every 400 square metres of site area, including one tree in the front setback. A decision guideline in Schedule 2 refers to whether the landscaping requirement is met by providing mostly large trees.
2. The review site is affected by the Vegetation Protection Overlay Schedule 3. While no permit is required pursuant to the overlay, I agree with Ms Cincotta's submission that the statement of significance in the schedule confirms the importance of vegetation as part of the character of the area. Vegetation, particularly tall trees, is integral to the character, and it includes trees on private property. The Overlay encourages the retention and enhancement of vegetation, in particular tall trees that contribute to the character of the area.
3. Melbourne's population is forecast to grow rapidly over the next decades. The State and local planning policy frameworks encourage Melbourne to become a more compact city. Policy acknowledges there is a growing diversity of households, mainly smaller households, and established areas should have a more diverse housing stock to meet a wide range of housing preferences. The more intensive residential development is encouraged to locate in activity centres. Established suburbs such as Eaglemont also have a role to play in accommodating population growth, provided development is tempered and respectful of the prevailing character of the neighbourhood.
4. I agree with the responsible authority's assessment that Eaglemont in general, and the review site in particular is well placed to accommodate some additional dwellings. It is proximate to public transport, including trains, proximate to a range of activity centres, and well placed to employment, health and education facilities. It is also proximate to parks and it has all the utility services.
5. I consider a proposal to develop two dwellings, on a generous sized lot of 788 square metres that has no obvious development constraints, would be generally consistent with State and local planning policies.
6. The matrix of planning policy also says that while there are many benefits of making Melbourne more compact, development in established suburbs should respect the prevailing or preferred character of established neighbourhoods. The responsible authority says the proposal fails to comply with the preferred character of the neighbourhood and the emphasis in policy on retaining and enhancing landscaping, particularly tall trees. I agree that local policy, in addition to the zone and overlay described above, clearly encourages a comprehensive and consistent approach to the scale, massing, form and landscaping of new residential development. The key guidance relevant to this review includes:
   • Built form should positively contribute to local urban character and a sense of place (clause 15).
   • Development should represent good urban design and sustainable residential development (clause 21.05).
   • New residential development in areas not identified for intensive change should protect residential amenity and respect and contribute to the desired future neighbourhood character (clauses 21.04, 21.06).
   • Promote high quality design that makes appositive contribution to the desired neighbourhood character.
   • Encourage the planting and retention of significant or substantial trees and improve the landscape character.
   • Provide in incremental change area for well designed single dwellings and medium density dwellings that make a positive contribution to the desired future neighbourhood character including opportunities for tree protection and planting (clause 21.06-2).
7. Clause 22.02 sets out the desired neighbourhood character for all areas of Banyule. The review site is within a Garden Suburban Precinct 3. The clause includes multiple statements of desired future character, design objectives and design responses. I consider for the purposes of this review the relevant themes are:
   • Create opportunities for planting new trees throughout a site by providing space in the front of, and around new dwellings.
   • Create an attractive landscape setting around all dwellings.
   • Canopy trees in the front setback will contribute to character of the area. Vegetation to the rear of buildings will soften the interfaces.
   • Maintain consistent front setbacks.
   • Second storey components should be recessed, modest in size and set back from side and rear boundaries and be screened.
   • Front gardens should include one large tree and a permeable fence.
   • Site coverage should be less than 40 percent.
8. The responsible authority says that since the previous Tribunal hearings in 2012 and 2013, the policy framework has changed with the introduction of the GRZ(2) and the refinement of clauses 21.04, 21.06 and 22.02. These changes require greater weight to be given to retaining and enhancing a desired neighbourhood character. It has reduced site coverage and encourages more space to be provided in front of and around dwellings for landscaping.
9. The responsible authority and the residents agree that the proposal to replace one driveway with landscaping would improve the dwelling's fit into the streetscape. However, they say it is not enough to enable the dwellings to be a tempered and comfortable fit into the streetscape. They say the site coverage and the height and massing of the dwellings would still be excessive. They submit that more change is required to enable the existing dwelling to be a comfortable and respectful fit. The dwelling needs to be reduced in scale, the setbacks increased and more landscaping provided.
10. I agree with Ms Moser that the proposed works would improve the dwelling's fit into the streetscape. I must decide if these improvements are sufficient to warrant a permit for two dwellings in light of the greater emphasis in policy on neighbourhood character and landscaping.
11. I have decided that the proposed changes are insufficient, and the dwelling itself needs to be changed for a permit to be granted for two dwellings. It is my view that the planning scheme sets a high benchmark for more than one dwelling on a lot, higher than developing a single dwelling. More than one dwelling on a lot can be a more intensive built form, with greater chance of appearing out of place and imposing adverse amenity outcomes. The planning system aims to manage change so established areas play a role in a more compact city without losing their identity, character and amenity.
12. This proposal is not respectful of the character of the area. It fails to provide an acceptable setback to the front street, by a factor of many metres. It is not slightly forward of its neighbours, but forward by up to 4 metres, a very obvious intrusion into the streetscape.
13. It also comprises a site coverage and massing that is out of place. Its side setbacks are less than its neighbours, its site coverage is significantly greater than the preferred 40 percent, and its height exceeds the preferred 9 metres (or 10 metres on a sloping lot).
14. As a result of its excessive massing, setbacks and site coverage, there is little room around the dwelling to contribute to the valued landscape character of the area. Both street trees and trees in private gardens contribute to this character. While the proposal might add one larger tree in the front, there would be no space for moderate or taller trees to the sides and at the rear of the dwellings.
15. I find that the proposed development and landscaping fails to properly balance the aspirations for multiple dwellings in established areas while contributing to the desired neighbourhood character. It continues to be too large, with excessive hard surfaces and with too little space provided for landscaping.
16. A more robust change is required, including to the existing dwelling before two dwellings can be approved on this site. This proposal would have little chance of being approved if it had not already been constructed. Its construction is not in my view sufficient reason for it to gain a planning permit. It has not responded to the entirety of the comments of the previous Tribunals. It is my view that the development should demonstrate greater compliance with policy, the schedule to the zone and the consistent findings provided by the Tribunal.

Would the development provide acceptable amenity for neighbours and future residents?

1. The responsible authority says the proposed development fails to provide acceptable secluded open space at the ground level, and it fails to comply with Standard B23 (Internal views). It also says the development is unclear in respect of the proposed front fence.
2. The respondents say the height, mass and length of the dwelling adversely affects the amenity of the adjoining neighbours. They say the small side setbacks limit the introduction of landscaping to soften the building's bulk and massing.
3. With regard to secluded open space, the development would provide at least 87 square metres of secluded open space in various balconies and al fresco areas. It readily meets Standard B28, and I think it would be acceptable. I think Council's criticism relates to limited landscaping opportunities at ground level rather than the provision of adequate open space to meet the recreation needs of the households that would reside in the dwellings.
4. With regard to possible overlooking of the various open space areas in Dwelling 1 from Dwelling 2, I agree that this is possible. Standard B23 requires that at least 50 percent of the secluded open space in one dwelling should not be overlooked by another dwelling on the same land. I agree with Ms Moser that this could have been managed through a permit condition that required a detailed assessment of overlooking and screening.
5. These matters have not been determinative in my decision.

Do any other matters warrant rejection of the proposal?

1. The residents say approving this development would reward poor behaviour over a sustained period. It would discredit the planning system and the Tribunal in the eyes of the local community.
2. The Tribunal is required to review the decision of the responsible authority. In so doing, it must apply the planning scheme as it finds it at the time of its decision, taking into account submissions, evidence and assisted by a site visit. The Tribunal can make one of three decisions in every review: affirm, vary or set aside the decision of the responsible authority.
3. Member Naylor succinctly addressed the propositions put by the residents regarding reward and reputation. She said:
   1. I cannot refuse this application because of the Council and objector concerns about planning by stealth. The parties present in the Hearing all acknowledged that what has happened thus far on the property in regard to the existing house has occurred legitimately in accordance with the relevant building permit. Hence, there are planning matters that I need to consider in determining whether this particular proposal is acceptable.
4. I am in the same position as Member Naylor and Member Sibonis. I have a particular development application that has been duly refused by Council. Ms Zampano has requested the Tribunal to review that planning decision. I have to apply the scheme as I find it to a particular proposal. This is not an enforcement hearing in respect of unlawful works or contravention of a permit. Hence, assertions of wrong doing or stealth are irrelevant to my decision.
5. Similarly, the alleged effect of my decision on the public reputation of the Tribunal is irrelevant to my decision. The matter is before the Tribunal because the Applicant has requested the Council's decision be reviewed, and there are different views about whether the proposal is acceptable. I must make a decision on the merits of the proposal according to the planning scheme, and I must do so without fear, favour or affectation and to the best of my knowledge and ability. I would not be doing my duty if I gave weight to alleged community perceptions regarding reputation. This proposition has carried no weight in this review.
6. Ms Cuthbertson says the proposal also fails to comply with Standard B9 (Permeability). Ms Moser says the amended plans show 19 percent permeability, Ms Cuthbertson thought it is likely to be considerably less. Ms Moser says the designer checked the drawings using Autocad and confirmed the permeability would be 19 percent. Ms Grunsven did the same and confirmed in cross examination that the estimated permeability is accurate. I accept their advice and note that the matter could have been managed through a permit condition that requires amended plans to show the development provides 20 percent of the site to have permeable surfaces.

1. For the reasons explained above, the decision of the responsible authority is affirmed. No permit is to issue.

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

[2] Zinc Melbourne Pty Ltd v Banyule CC [2013] VCAT 2111 paras 5 and 6

[3] Sprut v Stonnington CC [2012] VCAT 1675

[5] Burton and Carter Pty Ltd v Frankston CC [2015] VCAT 1091