VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2364/2018
Permit ApplicatiGE/PP-31738/2018	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987. Glen Eira Planning Scheme. Neighbourhood Residential Zone. Minimal change area. Neighbourhood character. Private open space.      	

APPLICANT	Chris Hassall	
responsible authority	Glen Eira City Council	
SUBJECT LAND	9 Marlborough Street, Bentleigh East	
WHERE HELD	Melbourne	
BEFORE	Vicki Davies, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	31 May 2019	
DATE OF ORDER	24 June 2019	
CITATION	Hassall v Glen Eira CC [2019] VCAT 947   	

Order
No permit granted
1	In application P2364/2018 the decision of the responsible authority is affirmed.
2	In planning permit application GE/PP-31738/2018 no permit is granted.

Vicki Davies 
Member			

Appearances
For applicant 	Mr Will Pearce, town planner, of Human Habitats 	
For responsible authority 	Ms Alison Orwin, Senior Urban Planner, City of Glen Eira 	
Information
Description of proposal	Construction of three double storey dwellings, each with two on-site car spaces	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit 	
Planning scheme	Glen Eira Planning Scheme 	
Zone and overlays	Neighbourhood Residential Zone (NRZ)  Schedule 1  	
Permit requirements	Clause 32.09-6 Construct two or more dwellings on a lot in a NRZ; construct a fence associated with two or more dwellings; and construct a fence exceeding a height of 1.5m   	
Relevant scheme policies and provisions	Clauses 9, 11, 15, 16, 21.02, 21.04, 22.08, 32.09, 52.06, 55, 65 and 71.02	
Land description	The review site is located on the south-west corner of Marlborough Street and Stockdale Avenue, Bentleigh East. It has a frontage of 12.28m to Marlborough Street, an angled section (of 4.83m) at the corner and an abuttal to Stockdale Avenue of 36.66m, yielding a site area of 777m2. The land is relatively flat. There is no significant vegetation.
The review site is developed with a single storey brick 1950s dwelling, set back a minimum of 10.61m from the frontage and close to the southern boundary. There is an outbuilding in the north-west corner. There is a crossover from Stockdale Avenue, near the western boundary. 
This an established residential area between Warragul Road (to east), East Boundary Road (to west), North Road (to north) and Centre Road (to south). It contains a mix of original single storey dwellings and numerous infill developments (either single dwellings or dual occupancies) that invariably have two storeys. There are single storey dwellings on the properties abutting the review site.  	
Tribunal inspection	16 June 2019, unaccompanied by the parties	

Reasons
WHAT IS THIS PROCEEDING ABOUT?
1	The permit applicant, Chris Hassell (applicant), seeks a review of the decision by the Glen Eira City Council (Council) to refuse to grant a permit for the construction of three double storey dwellings at 9 Marlborough Street, Bentleigh East. 
2	The Council’s grounds of refusal refer to the proposal being contrary to specific objectives of the Minimal Change Area Policy (clause 22.08); failure to respect neighbourhood character, including the landscape character, the nature of front fences and design detail; and the lack of adequate private open space.  
3	I must decide whether a permit should be granted and, if a permit is granted, what conditions it should contain.
4	Various aspects of the proposal are not controversial. For instance, the size and corner location make the review site suitable for some form of medium density development. Each dwelling would have a street frontage and good sense of address, with Dwelling 1 oriented to Marlborough Street and Dwellings 2 and 3 oriented to Stockdale Avenue. The review site is 
well-located with respect to a number of open space reserves, the Bentleigh East neighbourhood centre (approximately 750m away), the Moorabbin Hospital and a number of schools. There is a bus stop outside the review site, with the bus service connecting with a number of railway stations and providing direct access to Southland and Chadstone shopping centres. Each dwelling has the required two on-site car spaces and a generous amount of accommodation. Two of the dwellings have a bedroom at the ground level, facilitating occupation by people with limited mobility. With a maximum height of 6.8m, the building sits well below the 9m maximum height allowed in the Neighbourhood Residential Zone (NRZ). The proposal meets the 50% site coverage and 25% permeability requirements, as varied in Schedule 1 to the NRZ. The mandatory ‘garden area’ requirement is met. 
5	As reflected in the grounds of refusal, I think the key issues to be determined are whether the proposal is acceptable in terms of housing policy and neighbourhood character considerations and whether the proposed provision of private open space is adequate.    
6	My principal findings is that the form of the proposed development is excessive, being at odds with the preferred character in a minimal change area. There are also deficiencies with private open spaces. Those matters cannot be readily addressed by requiring amendments to the plans. Accordingly, I have decided to affirm the Council’s decision. No permit is to be issued. My reasons follow.  
Is The PROPOSAL ACCEPTABLE IN TERMS OF HOUSING POLICY AND NEIGHBOURHOOD CHARACTER CONSIDERATIONS?
What does the planning scheme say?  
7	The review site is within a large area that is covered by Schedule 1 to the NRZ. The purpose of the zone and State and local policies all call for new development to respect neighbourhood character. The neighbourhood character objectives of ResCode include ‘To ensure that the design respects existing neighbourhood character or contributes to a preferred neighbourhood’.
8	The Municipal Strategic Statement (MSS) recognises the need for additional dwellings and more diverse housing stock, but notwithstanding that, states that ‘the City of Glen Eira is committed to protecting the amenity and neighbourhood character of the municipality’. 
9	An MSS objective is ‘To improve and protect the liveability, neighbourhood character and amenity of Glen Eira’. Strategies include: 
•	Ensure new residential development enhances the character of the neighbourhood.
•	Ensure that potential character and amenity impacts are taken into account when multi-unit developments are proposed adjacent to lower density residential areas.
•	Promote a low intensity of development as the preferred character for the majority of the Glen Eira’s residential areas (minimal change areas).
10	For many years the Council has supported ‘a targeted approach’ to meet future housing needs, with a ‘hierarchy of housing diversity areas’. The review site is in a ‘Minimal Change Area’. Such areas make up about 80% of the municipality and are areas ‘where the existing low intensity, low-rise character should be protected and enhanced’. 
11	In the Minimal Change Area Policy (at clause 22.08), the policy with respect to preferred neighbourhood character is to ‘Ensure that all developments respect and enhance the prevailing character elements identified for each character area’. For the purposes of that policy, the review site is within ‘Character Area 14: East Bentleigh, north of Centre Road’. The Character Type is ‘1950s garden suburban with modern overbuilding (infill development)’, with the following description:
•	This area has a 1950s base with a range of contemporary overbuilding creating a mixed character.
•	Buildings are generally single storey.
•	Many original dwellings remain and these are generally cream brick with pitched tiled roofs.
•	Gardens are well established with low to medium scale planting. Front fences are generally low, allowing views to buildings and gardens from the street.
•	The grid layout and flat topography is quite distinct in this area due to wide, open streets and lack of heavy vegetation cover.
12	Character Area 14 is one of the areas making up the overall ‘Garden Suburban Neighbourhood Character Type’, which applies to most of the municipality. There is only a small area in Elsternwick (Character Area 5) that is an ‘Inner Urban Neighbourhood Character Type’. 
13	Relevant to all 16 character areas, the policy lists development pressures that can affect neighbourhood character and sets out general objectives and specific objectives. The latter are under the headings of site coverage; side and rear setbacks; private open space; two storey or multiple storey dwellings; building bulk and scale; street setbacks; landscaping; and preferred neighbourhood character. At clause 22.08-3.3 there are detailed policies, including decision guidelines, for each of those character elements. 
Number of dwellings 
14	The general objectives for minimal change areas include ‘To promote predominantly single dwellings and two dwelling developments’, but that does not prohibit a development of three (or more) dwellings. Indeed, at clause 22.08-1, the policy envisages more than two dwellings, provided the varied standards (in Schedule 1 to the NRZ) have been met. It sets out the circumstances ‘where more than two dwellings may be achieved’ as including the area being ‘characterised by larger than conventional lots’; the site being ‘significantly larger’ than the majority of the properties immediately abutting and directly opposite; and where multi-unit development is the prevailing development in the street and neighbouring streets.
15	Ms Orwin submitted that more than two dwellings is not justified in terms of those provisions. In particular, she argued that multi-unit development is not the prevailing development, there is only one three dwelling development in the area and the proposal does not meet the varied standard for private open space (as discussed later in these reasons). On the other hand, Mr Pearce pointed to the various approvals for three dwellings on lots in minimal change areas, referencing the development following my decision in Kaljot v Glen Eira CC and other specific examples in McKinnon and Bentleigh. Mr Pearce also submitted that there is strategic support for three dwellings on the review site given its large size and the range of facilities and services in the vicinity. He provided an analysis of lot sizes close to the review site, noting that the review site (with an area of 777m²) is significantly larger than abutting properties and those opposite. It is also larger than all 22 properties in the vicinity (which have areas in the range 577m²-735m², but are mostly around 600m²). 
16	Ultimately, it is not the number of dwellings that is the critical issue. Indeed, Ms Orwin saw the potential for three dwellings on the review site, although requiring a greatly modified design. Each site will have different contextual considerations. A case in point is the situation in Kaljot, which had a very different context to that of the review site. It was on Gardenvale Road, near the Nepean Highway and a railway station, and on the periphery of a local activity centre designated as a Housing Diversity Area. I do not see the review site as having special features, apart from its large size relative to most lots in the vicinity. It is, however, only marginally larger than the 735m² lot on the north-west corner of Stockdale Avenue and Marlborough Street.     
17	Many decisions of the Tribunal (including a number of mine) have made observations about Glen Eira’s Minimal Change Area Policy. For instance, the Tribunal has commented: 
… The implementation of the [Minimal Change Area] policy is not solely dependent on density, but on built form outcomes that reflect the objectives of a low density character, and limit impacts on adjoining sites. This goes beyond simply looking at the number of dwellings proposed. In determining whether the proposal responds acceptably to the policy context, consideration needs to be given to the overall design response, including the built form, its siting, its relationship to the neighbouring properties and interface with the public realm, amongst others.
Existing character 
18	When considering the factors that are part of the ‘overall design response’, the particular nature of the existing character is relevant. The broad area in which the review site is located is clearly experiencing change. The description of Character Area 14 correctly acknowledges that the area ‘has a 1950s base with a range of contemporary overbuilding creating a mixed character’. Furthermore, the overbuilding/infill development is mostly very different to the original 1950s housing. As reflected in the ‘Photographic Study’ provided by Mr Pearce, there are many examples of large buildings with a contemporary design. They include side-by-side developments with attached built form at both the ground and first floor. Ms Orwin acknowledged that most new buildings are double storey.
19	There are pockets of land in the area that have had a considerable amount of  overbuilding/infill development. However, the land in the immediate vicinity of the review site is not such a pocket. It is not characterised by new multiple-dwelling developments. The only examples are at 8A & 8B Marlborough Street, where there are two dwellings in a side-by-side arrangement, and at 22 Marlborough Street & 1A Edinburgh Street, where there are two dwellings (one facing each street). There are also two storey single dwellings at 13 and 17 Marlborough Street and 20 Stockdale Avenue. The predominant form is still original single storey dwellings.
Applicant’s submissions
20	Mr Pearce submitted that the proposal is an appropriate response to the strategic context and specific location. His particular submissions can be summarised as follows:  
•	The corner location ‘allows for a more robust built form with the dwelling arrangement able to use the two street frontages’. As it presents to Marlborough Street, the first floor component is 
well-articulated, enabling Dwellings 1 and 2 to be read as a single dwelling. The presentation to Stockdale Avenue provides separation between Dwellings 2 and 3, with them reading as two separate dwellings. That represents ‘a regular single dwelling per allotment built form style’, in keeping with the pattern of the street.
•	There is no building on the boundaries and the boundary setbacks (ranging from 1m to 5m) allows the provision of space around dwellings for landscaping and the separation between adjoining properties.
•	The proposed flat roof minimises the building height, reducing the visual impact. There are 20 dwellings with flat roofs in a surveyed area within 250m of the review site. 
•	The proposal is not ‘boxy’, given the staggered setbacks, including garages behind the main building line. Where there are sheer walls or overhung elements facing the street, a range of materials and colours are used to provide articulation and reduce visual bulk. Large windows on both levels would provide outlook/surveillance to the street.  
•	The proposed materiality and colour palette is sympathetic to the streetscape and integrates with and enhances the prevailing neighbourhood character.
•	The proposed fencing has solid sections with regular breaks of steel infill sections and gates, with 25% transparency. The breaks would allow ‘a celebration’ of the garden. The fencing would be an improvement on the current high paling fence along most of the Stockdale Avenue boundary. The design involves a 500mm-1m set back of the fencing on the corner, with landscaping in front. The proposed fencing is appropriate given the variety of fence styles in the area. It has a height and level of consistency that is consistent with other front fences in the area. In a surveyed area within 150m of the review site there are 20 properties with ‘solid front fences with sections of transparent elements’. 
•	There is proposed landscaping along the periphery, including large canopy trees in the front gardens of Dwelling 1 (Marlborough Street) and Dwelling 2 (on the corner), and three smaller trees within the Stockland Street setback. The plantings would be detailed on an endorsed landscape plan. 
•	Achievement of the garden area requirement and site coverage is indicative of meeting the policy aspirations for minimal change areas.
Policy provisions
21	The Practice Note Understanding Neighbourhood Character notes that in simple terms respect for the character of a neighbourhood means that the development should try to ‘fit in’. Depending on the neighbourhood, it identifies two broad approaches. The first is respecting the scale and form of surrounding development. The second is respecting the architectural style of surrounding development. Those approaches are reflected in the policy at clause 22.08-3.3 regarding building bulk and scale. In particular, it is policy to:
•	Ensure that the scale and bulk of buildings respects the prevailing mass and scale of adjacent properties and wider neighbourhood.
•	Ensure that overall building bulk is minimised by providing articulation, selecting appropriate roof forms, pitches and building materials.
•	Ensure that elevations are well articulated and graduated to avoid “box like” multi-storey designs and associated visual bulk.
•	Ensure that where dwellings are attached across the site and each dwelling has its own street frontage, the cumulative bulk of the development is considered.
22	Related decision guidelines include whether the building is articulated from a horizontal and/or vertical perspective; whether the upper floor area is less than the lower floor area; and whether the impact of building bulk is minimised by significant existing or proposed vegetation, or through significant setback. A variation of materials, colours and finishes between floor levels is seen as potentially providing an alternative means of articulation.
23	A prevailing character element of Character Area 14 is ‘Front fences are generally low, allowing views to buildings and gardens from the street’. It is policy to respect and enhance that feature.
24	Another prevailing character element that should be respected and enhanced is ‘Gardens are well established with low to medium scale planting’. Furthermore, the policy regarding landscaping, at clause 22.08-3.3, includes to ‘Ensure the garden character of Glen Eira is maintained by providing front yard garden space which can support canopy tree planting’.  
25	A development pressure identified at clause 22.08-1 is ‘Excessive visual building bulk causing buildings to dominate the street’. There is also a specific policy at clause 22.08-3.3 regarding setbacks on corner sites. It is:
•	Ensure the setbacks of dwellings on the long side of corners provides a transition by stepping the building back between the two immediately adjoining dwellings on the same side of the street. 
Streetscape presentation
26	A corner site has advantages in terms of a sense of address and easy pedestrian and vehicle access for multiple dwellings, but I do not agree with Mr Pearce that it necessarily allows a more robust built form. Furthermore, as a corner site affords a high level of exposure, any development that is out of character will be very evident. 
27	In this case, the corner site means that the development has the potential to read as two separate building elements. Dwellings 1 and 2 would read as one large building in views from Marlborough Street. Although the built form is attached at the ground level, the 3m first floor separation between Dwelling 2 and 3 will mean that at least to some extent they will read as separate building in views from Marlborough Street.  
28	The proper interpretation of the policy (at clause 22.08-3.3) regarding setbacks on corner sites is not entirely clear. On the face of it, the policy would promote a setback from the side street (Stockland Avenue) well in excess of the setback required by ResCode Standard B6. Ultimately, I am not entirely satisfied with the proposed street setbacks.  Regarding the setback from Marlborough Street, while there is not full compliance with Standard B6, Dwellings 1 and 2 are basically aligned with the dwelling at 7 Marlborough Street. The angle of Stockdale Avenue results in a staggered setback along Stockdale Avenue. Most of the front walls of Dwelling 3 would be set back more than the 3m, as required by Standard B6. The garage of dwelling 3 would be generally aligned with the façade of the adjacent dwelling at 26 Stockdale Avenue. Dwelling 2 has a staggered setback, varying between 2m at the eastern end and 4.749m for the garage at the western end. Standard B6 requires a setback of only 2m for the ‘side walls of new development on a corner site’ or 3m for ‘front walls of new development fronting the side street of a corner site’. Given the orientation of Dwelling 2, the latter provision is more applicable. In any event, I think that the limited setback of the part of Dwelling 2 close to the north-east corner of the review site is unacceptable. It results in too much built form close to the corner, dominating the streetscape presentation.
29	The cumulative visual bulk and dominant appearance of the proposal is a result of the proposed setbacks, in combination with the nature of the proposed built form, particularly the flat roof and box-like design. 
30	In relation to roof forms, identified development pressures in minimal change areas include ‘Roof forms that differ markedly to other roof forms in the street where this is the predominant characteristic’ and ‘Buildings without eaves, where this a typical pattern of a streetscape’. Character Area 14 is described as having many remaining original dwellings ‘with pitched tiled roofs’. Notwithstanding Mr Pearce’s identification of numerous examples of flat roofs in the broader area, pitched tiled roofs are an overwhelming characteristic of the immediate neighbourhood, for both the original and the newer double storey developments. 
31	I disagree with Mr Pearce’s submission that the staggered setbacks and range of materials and colours achieve a design that is not ‘boxy’. Both of the streetscape elevations suggest that the proposed flat roofs and sheer walls result in very boxy shapes. None of the walls presented to the streets are well-articulated and graduated to avoid a ‘box like’ design, as sought by clause 22.08-3.3. Although it is not shown on any elevation, I note that the entire western wall of Dwelling 3 is a sheer two storey wall which would be partly visible in views from Stockdale Avenue.  
32	The proposed materials include white and grey render, black aluminium cladding, off-white compressed sheet cladding, aluminium screens and black aluminium windows. Although those choices do not reflect the cream bricks of many of the original dwellings, I agree with Mr Pearce that they are generally consistent with the emerging style of development in the broader area. My reservation relates to the extensive use of black aluminium metal cladding (for sections of the ground floor walls and the garages). That is not a material evident in the area. Its dark colour would add to the dominance of the building. 
33	The Council’s grounds of refusal referred to the proposed front fence being contrary to Clause 55.06-2 (Standard B32) and not responding and respecting the existing and preferred neighbourhood character. In elaborating on that, Ms Orwin submitted that the proposed fencing is at odds with the low, older-style fences and the higher, but visually permeable fences of newer developments. She described the proposed fence as mostly solid and 1.7m-high, with the sections of metal infill being ‘tokenistic’. She highlighted that one of the development pressures identified at clause 22.08-1 is ‘Inappropriate high, solid front fences that inhibit views to buildings or vegetation in private gardens and reduce the sense of openness of a street’. She submitted that the high fence would also add to the visual bulk of the built form. 
34	Although the plans suggest a fence height of 1.7m, the height is up to 1.9m when scaled. Mr Pearce explained that the height actually varies from 1.5m to 1.9m. Although parts of high fencing have been included to ensure the privacy of the secluded private place of Dwelling 2, Mr Pearce suggested that there could be sections of lower fencing. He advised that the applicant would accept a requirement that the fencing have a maximum height of 1.5m. Ultimately, I do not see the proposed fencing as a fundamental flaw. It could be modified so as to be an acceptable outcome.
35	A lower fence would allow landscaping to be better appreciated from the public realm, but I remain concerned about whether there would be space for landscaping that would accord with Garden Suburban Character Type. As described in clause 22.08-1, that character type includes:
A green and leafy appearance and an open and spacious feel created by the typically low site coverage, space around buildings and planting of substantial vegetation. 
36	The Marlborough Street setback would allow for the planting of two large canopy trees, but that capacity might be constrained at the corner, which is to be the main secluded private open space of Dwelling 2. The limited setback along much of Stockland Avenue would also limit the prospect of ‘substantial vegetation’. Despite the compliant site coverage (of 49%), the extent of built form throughout the review site raises concerns about whether the overall landscaping would accord with the character type.
37	In summary, I consider that due to a combination of factors the proposal would not respect and enhance the neighbourhood character. Those factors include the extent of built form, the limited setback from part of the side street, the flat roof, box like form and some of the chosen materials. There is also inadequate space for substantial plantings to relieve the visual bulk.  
Presentation to neighbours  
38	The objective of clause 55.04-1 includes to ensure the height and setback of a building from a boundary ‘limits the impact on the amenity of existing dwellings’, as well as respecting the existing or preferred neighbourhood character.  
39	In the policy regarding minimal change areas, an identified development pressure is ‘Excessive visual building bulk causing buildings to dominate … neighbouring properties’. More particularly, it is policy to ‘Discourage the siting of two storey … dwellings at the rear of sites’ and to ‘Ensure that the siting and design of two storey … dwellings is respectful of adjoining buildings and neighbouring secluded open space’.
40	A corner site is unusual in terms of the policy regarding the impact on neighbouring rear yards and interpreting the 4m ‘rear setback’ requirement of ResCode Standard B17, as it is varied in Schedule 1 to the NRZ.
41	If the western end of the review site is taken to be the rear, the minimum setback of 2.987m does not accord with the required 4m setback. However, the adjacent property (26 Stockdale Avenue) is deeper than the width of the review site and the proposed development is not adjacent to any part of its secluded private open space. 
42	Ms Orwin argued that where the first floor of Dwelling 3 is adjacent to the garden to the south (7 Marlborough Street), it should have a 4m boundary setback. The plans show a setback of only 3m. On the other hand, Mr Pearce submitted that the presentation to the south should be treated as a side boundary, rather than a rear boundary. He highlighted that the height and setback exceeds the requirement of ResCode Standard B17 for a side setback. He noted that only half of the neighbour’s rear garden would have development immediately to its north. He also highlighted the proposed landscape strip to the north of all of the rear garden.  
43	Whether the presentation to the south is treated as a side or rear setback for the purposes of Standard B17, I think the proposal does not achieve a successful transition to the secluded private open space to the south. I agree with Ms Orwin that the bulk of Dwelling 3 would create a sense of enclosure. There should also be more space for landscaping. If I had determined to grant a permit I would have required the first floor of Dwelling 3 to be set back an additional 1m the from the southern boundary, as included in the Council’s draft permit conditions.
iS the proposed provision of private open space adequate?
44	Schedule 1 to the NRZ varies ResCode Standard B28. The varied requirement is for 60m² of private open space, with one part consisting of secluded private open space, at the side or rear of the dwelling, with a minimum area of 40m², a minimum dimension of 4m and convenient access from a living room.
45	Ms Orwin submitted that the private open space for Dwelling 2 fails to comply with the varied standard. She noted that while Dwelling 2 is notated as having 46m² of secluded private open space, only 20m² has a minimum dimensions of 4m. She noted that the space is adjacent to the street and fenced. She also suggested that the usability of the space would be affected if there is a large tree, as indicated on the plans. Ms Orwin also highlighted that Dwelling 2 would have no rear service yard.  
46	Mr Pearce acknowledge the non-compliance with the varied Standard B28. However, he submitted that the varied requirement is not principally about usability; rather, it is to create space for landscaping. He submitted that the proposed private open space would allow a landscaped area to be presented to the street, as well as provide a useable area with good northern orientation. He noted the intention to have the fence set back from the street boundary, allowing extra planting. He submitted that there are other examples of northern-oriented secluded private open space next to street frontages.
47	I acknowledge the good orientation of the proposed private open space for Dwelling 2, but I do not think that the arrangement is satisfactory. On such a large site it should be possible to provide the required private open space. 
48	There is also an issue with the secluded private open space for Dwelling 1. It is to the south of Dwelling 2, with sunlight access affected by two storey walls to its north, east and west. More particularly, the shadow diagrams (prepared to show the impact on neighbouring properties) indicate that the space would be overshadowed at 9am, receive some sunlight at noon, and be overshadowed at 3pm.
49	The parties agreed that the proposal complies with ResCode Standard B29 (solar access to open space). As explained by Mr Pearce, where there is a 6.6m-high wall to its north, a private open space needs to have a depth of 8m. The private open space for Dwelling 1 has a depth of 8.5m. 
50	Despite the compliance with Standard B29, I agree with Ms Orwin that there is still an issue of how usable the space would be, especially for a four bedroom dwelling. On that matter, Mr Pearce submitted that while the location of the private open space is not ideal, it is acceptable. He noted that the break between the first floors of Dwellings 2 and 3 would allow solar access in the middle of the day; the residents would have the use of the front garden adjacent to Marlborough Street; and the rear open space has enough area, as required by the varied Standard B28, and is well-proportioned. Mr Pearce did not see any need to improve the solar access to the rear private open space, but noted that it could be increased if the rear of Dwelling 2 (the master bedroom) was cut back.
51	It is uncertain to what extent such a modification would improve the solar access to the private open space of Dwelling 1. The long sheer wall of Dwelling 3 would continue to have a major impact on solar access. On a relatively large site, the lack of good solar access to Dwelling 1 is a disappointing outcome.    
are there any other issues?
52	The dwelling to the south has north-facing habitable room windows, but the setback of Dwelling 1 achieves compliance with ResCode Standard B20 (north-facing windows). 
53	The owners of the property abutting to the west (26 Stockdale Avenue) filed a statement of grounds. They raised a concern that an additional property and driveway facing Stockdale Avenue would ‘present further hazard in view of the location of the bus stop’. They also referred to the private stormwater drain (for the sole use of 26 Stockdale Avenue) using the easement at the rear of the review site, noting that it would need to be upgraded if the proposed development added to its usage. 
54	I do not think that either of those matters are grounds for rejecting the proposal. In response to referral of the application, Public Transport Victoria offered no objection, provided particular conditions were included on any permit that was issued. There is no development proposed within what is annotated on the plans as ‘Drainage & Sewerage Easement 2.44m wide’. Any other issue is not a town planning matter.   
Conclusion
55	For the reasons explained above, the decision of the responsible authority is affirmed. No permit is granted. 

Vicki Davies 
Member