VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2034/2020
Permit Application no.GE/DP-33581/2020 	

Applicant	Bentleigh East Investments Pty Ltd	

Responsible Authority	Glen Eira City Council	
RespondentS	Alison Medhurst, Michael Culton AND Lauren Eleanor Crockett AND Shirley Ann Frost AND Jeanette Wilson AND Tanya Kwai-Ying Lam AND Tammy Kricheli AND Paul William Gallo	

SUBJECT LAND	10-12 Malane Street
BENTLEIGH EAST VIC 3165	

HEARING TYPE	Hearing 	

DATE OF HEARING	12 July 2021	

DATE OF ORDER	20 October 2021	

CITATION	Bentleigh East Investments Pty Ltd v Glen Eira CC [2021] VCAT 1201	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Moull Murray 	
•	Drawing numbers:	Project 10322, TP3.01 Rev A, TP3.02 Rev B, TP3.03 Rev B, TP4.02 Rev B, TP5.04 Rev A and TP8.02 Rev B	
•	Prepared by:	Falker and Chapman Landscape Design 	
•	Drawing number:	1	
•	Dated:
	25 May 2021
	
2	In application P2034/2020 the decision of the responsible authority is affirmed.
3	In planning permit application GE/DP-33581/2020 no permit is granted.

Jane Tait
Member			
=
Appearances
For Bentleigh East Investments Pty Ltd	Mr Mark Stanojevic, Ask Planning Services Pty Ltd	
For Glen Eira City Council 	Ms Miranda Jenkins, Senior Urban Planner	
For Ms Alison Medhurst and Mr Michael Culton	In person	
For Ms Lauren Crockett	Mr Shane Crockett	
For Ms Shirley Frost
For Ms Jan Wilson
For Mr Tammy Krichelli
For Mr Paul Gallo
For Ms Tanya Kwai-Ying Lam	In person
In person
In person
In person
Mr Paul Gallo

Information
Description of proposal	To construct eleven, two storey dwellings. The site layout includes two rows of attached houses that are separated by a central driveway.  The northern wing includes five dwellings and the southern wing contains six dwellings.  
The development comprises six, two bedroom dwellings; four, three bedroom dwellings and one four bedroom dwelling. A total of 16 car spaces are provided within single and double garages.
Dwellings 4, 6, 8 and 9 are a reverse living design that include living areas, balcony and a bedroom at first floor level.  The remaining attached dwellings contain ground level living, first floor bedrooms and secluded private open space in the northern and southern setbacks.
The dwellings are set back a minimum of 6.9 metres from the frontage and 2.1 metres from the south boundary at ground floor level.
The dwellings have a maximum overall height of 7.77 metres, site coverage of 53% and garden area of 35%.	
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	General Residential Zone Category 1 (GRZ1)
Parking Overlay – Schedule 2 (PO2)	
Permit requirements	Clause 32.07-6 – to construct two or more dwellings on a lot	
Land description	The site comprises two lots that are located on the east side of Malane Street, Bentleigh East.  The site has a total frontage of 31.7 metres, depth of 54.11 metres and overall area of 1705 square metres.  
The sites are occupied single storey brick veneer dwellings that have a garage at the rear.  There is no significant vegetation on these lots and the land slopes by 1200mm from front to rear.  
The abutting site to the north is occupied by three single storey units and to the south there are two single storey units.  The east (rear) boundary abuts six, two storey attached houses and a single storey unit that have an address in Franceso Street.	
Tribunal inspection	The Tribunal conducted two unaccompanied site inspections of the area. The first was a general inspection of the wider area and the second inspection included viewing of the adjoining rear properties to the south and east of the subject site.  	

Reasons
What is this proceeding about?
1	Bentleigh East Investments Pty Ltd (the ‘applicant’) has applied to construct eleven (11) two storey dwellings at 10-12 Malane Street, Bentleigh East.  Glen Eira City Council (the ‘Council’) has refused the application on grounds that the mass and scale of the development is inappropriate and fails to satisfy the provisions of Clause 22.07 (Housing Diversity Area Policy) of the planning scheme.  It also refused the application on grounds that the built form will be visually dominant when viewed from the adjoining properties to the south.
2	Council submits that whilst there is clear policy support for multi-dwelling development at this location, the density, mass, scale of the development fails to respond to its surrounding context.  It also argues the development is not respectful or sensitive to the adjoining properties.
3	The respondents are the adjoining owners and occupiers of the units to the south, and east, as well as residents in the wider area.  They argue the proposal is an overdevelopment of the site that will fundamentally compromise the existing and preferred neighbourhood character.  They say the massing and scale of the development will be visually dominant and is inconsistent with the existing multi-dwelling developments nearby.
4	The respondents to the south and east submit that the development will have a detrimental impact on their amenity as it will reduce access to sunlight into their windows and rear yards and cause a loss of privacy.  They say the concerns about the limited setbacks to boundaries at ground and first floor level and unrelieved built form opposite their habitable room windows and secluded open space will cause substantial visual bulk impacts on their dwellings.  The respondents have concerns about the car parking arrangements, increased traffic and additional on-street parking that will occur if this development is approved.
5	The applicant argues the development strikes an appropriate balance between objectives for more intense development in a General Residential Zone (GRZ), neighbourhood character and site context. It says it is an acceptable outcome that has regard to landscape character, external amenity and internal amenity considerations. 
Procedural issues & rulings 
6	Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9. These amendments included additional landscape screening for Dwellings 4, 6, 8 and 9, an increased set back of the ground floor east wall of Dwelling 11 by 500mm, a reduction in the roof height of Dwellings 4, 9 and 11 to comply with Standard B20, increased setback by the first floor of Dwellings 6 and 8 by 1 metre, reconfiguration of balconies, and a change in roof material for dwellings in the southern wing. 
7	Having reviewed the amended plans, Council and the respondents advised they had no objection to the substitution of the plans but maintain their opposition to the proposal. Council also identified several discrepancies in the plans relating to the wall heights of garages on the south boundary.  The applicant clarified these issues during the hearing.  There being no objection, I substituted the amended plans for the application plans and these now form those upon which my decision is reached.
What are the key issues?
8	The key issues in this matter include:
•	Does the proposal respond to its zoning and policy context?
•	Is the proposal an acceptable response to the preferred neighbourhood character?
•	Are the off-site amenity impacts acceptable?
•	Are the car parking and access arrangements acceptable?
9	Planning does not seek ideal outcomes, or outcomes which respond positively to every relevant policy. Rather, acceptable outcomes are the measure by which planning decisions are to be made. I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Scheme.  Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. 
10	Having undertaken an inspection of the abutting properties and locality and taking into consideration all submissions, I have decided to affirm Council’s decision.  I find the scale and intensity of development inconsistent with the existing and emerging character of this neighbourhood that includes newer multi-dwelling development.  I also find the length, height and setbacks of the southern wing of the development will cause unreasonable amenity impacts on the abutting properties to the south. My reasons follow.
the site and context
11	The subject site is located on the east side of Malane Street, 100 metres north of Centre Road, Bentleigh East.  

Review sites

Figure 1: Nearmap -29 April 2021
12	My inspection of the surrounding area reveals that it is undergoing change from the original single storey detached 1950’s-60’s dwellings to single and double storey multi-dwelling development.  The pace of redevelopment appears to have accelerated in recent years, with many examples of two storey contemporary town houses.  This includes duplex two storey dual occupancies and 3-5 unit developments in the nearby streets.  These developments are on single lots with the built form extending deep into lots and generally setback from one side boundary to accommodate the driveway. There is one multi-dwelling development constructed over two lots nearby at 8-10 Agnes Street. 
13	The wider residential area contains open front gardens and low front fencing which provide a high degree of visibility of the dwellings and front gardens in the streetscape.  Some of the newer developments have contemporary features such as flat and skillion roofing, render and bolder upper levels, whilst others have pitched tiled roofing at first floor level.   
14	The applicant drew my attention to the multi-dwelling developments in Francesco Street, which is in the abutting street to the east.  This includes the six, two storey reverse living dwellings at 9 Francesco Street and four double storey dwellings at 10 and 12 Francesco Street.  
Does the proposal respond to its zoning and policy context?
15	The site is within a GRZ1 that has purposes including to encourage housing diversity and growth in locations with good access to services and transport and to encourage development that respects the neighbourhood character.  
16	The Planning Policy Framework (PPF) contain several policies that encourage well designed and site responsive designs in areas that are well located in terms of public transport and existing services.  This includes strategies at Clause 11.02-1S (Supply of urban land) that states consideration should be given to consolidation and intensification of existing urban areas.  Policies at Clause 16.01-1S and Clause 16.01-1R (Housing supply) encourage diverse and increased density housing on well located sites, including those in or near neighbourhood centres with good public transport connections.
17	These policies need to be balanced against those relating to the built environment at Clause 15.  This includes Clause 15.01-1S and 15.01-1R (Urban Design) that requires development to respond to its context.  Clause 15.01-2S (Building Design) has an objective to achieve building outcomes that contribute positively to the local context.  This clause contains strategies that require a comprehensive site analysis and to ensure this analysis is the basis for consideration of height, scale and massing of new development.  It also contains a strategy to minimise detrimental impact of development on neighbouring properties and the public realm.
18	Municipal Strategic Statement (MSS) contains a Strategic Framework Plan at Clause 21.03 that identifies the site is within a Housing Diversity Area.  The policy encourages single dwellings and multi-unit development adjacent to commercial areas.  
19	Clause 21.04 (Housing and Residential Development) outlines Council’s targeted approach to meet its future housing needs.  This clause contains objectives to ensure greater diversity of housing, to improve and protect the liveability, neighbourhood character and amenity of the municipality and to improve access to housing.  Some of the strategies include to ensure that new development enhances the character of the neighbourhood and to facilitate high quality design and architecture that promotes good streetscape design to ensure development provides a high level of amenity for future occupants and neighbours. 
20	The Local Planning Policy Framework (LPPF) reiterates the objectives and strategies in the PPF and MSS.  Clause 22.07 (Housing Diversity Areas Policy) is applicable to all residential development in a GRZ.  The clause contains objectives to promote a range of housing types and encourage diversity in locations that have good access to public transport and facilities.  It also contains objectives to ensure the density, mass and scale of residential development is appropriate to the location, role and neighbourhood character of the specific housing diversity area.  Other relevant objectives in Clause 22.07-2 are:
•	To ensure that the siting and design of new residential development takes account of its interface with existing residential development on adjoining sites. 
•	To ensure that the design of new residential development is sensitive to and respectful of the scale of existing residential development on adjoining sites.
21	Clause 22.07-3.1 nominates the site is within the Bentleigh East Neighbourhood Centre. These centres are to provide opportunities for multi-dwelling development, but at a lower scale and density than development within commercial areas and mixed-use neighbourhoods.  For residential areas, it is policy that a mix of dwelling types is encouraged and to ensure the density, mass and scale of residential development is appropriate to that neighbourhood activity centre.  It also requires the development to respond positively to its interface with existing residential development.
22	The applicant also directed me to the Glen Eira City Plan that was adopted by Council in February 2020.  This plan seeks to provide a long term strategic framework for activity centres and shows the subject site is within a Substantial Change Area 1.  This area identifies change will be moderate up to three storeys.  Given this policy is not a policy reference or incorporated document in the scheme, I will give it limited weight in my findings.
Parties Arguments 
23	The applicant argues the location of the site near the Bentleigh East Neighbourhood Activity Centre is an area where housing growth and diversity is expected and encouraged in the PPF, MSS and the LPPF.  Council agrees with this proposition but says this development is not respectful of its context and does not minimise the detrimental impacts on neighbouring properties. 
24	The respondents also acknowledge population growth and diversity is important but say the quality of the design, and its response to the existing neighbourhood character, is equally important.  They argue this has not been achieved in this development.
Tribunal Findings
25	I agree that there is clear policy support in the PPF, MSS and LPPF to achieve housing growth and diversity at locations such as this given its proximity to the Bentleigh East Neighbourhood Activity Centre, services and public transport.  However, the policies also contain objectives and strategies to ensure the density, massing and scale of the development is appropriate to the surrounding area and responds to the amenity of the adjoining properties.  This is where the development fails.
26	I find the development does not adequately respond to the built form and massing of the adjoining and nearby multi-dwelling developments.  My observation of this neighbourhood is that other multi-dwelling developments nearby include space in the side setbacks and articulation of the built form throughout the site.  I consider the extent of built form, level of articulation, and limited setbacks to side boundaries fails to respond to the emerging character of this neighbourhood.  I also find the extensive unarticulated built form of the southern wing and limited setbacks to the south boundary will cause unreasonable amenity impacts on the adjoining dwellings to the south.   My reasons follow. 
Is the proposal an acceptable response to the preferred neighbourhood character?
Building scale 
27	Clause 22.07 contains objectives to ensure development in Housing Diversity Areas is appropriate to the density, mass and scale of development in that neighbourhood activity centre.  The applicant argues the proposal is not an overdevelopment as the site sits within an area where increased densities are encouraged and envisaged.  It says the proposal represents what the policy expects to occur in this area.  
28	The applicant argues the development is respectful as it proposes a contemporary built form with pitched roofs and materials and the layout is consistent with the subdivision pattern of the area.  It says the proposed maximum height of 7.3 metres (two storey) is ‘no stranger’ in a GRZ which permits buildings up to 11 metres in height.  It submits the dwellings will not have an overbearing impact on the surrounding properties and reasonable side and rear setbacks have been provided in the amended plans.  
29	Council and the respondents argue that multi-dwelling developments in this area tend to have well-articulated elevations and roof forms that extend along the length of the site.  They say recent developments are generally two storey on single lots with a common driveway and the existing development is of a lesser density, scale and mass than the proposal.  Council and the respondents also submit the yield of the development fails to meet the planning scheme objectives to respond to its context and does not reflect the emerging character of the neighbourhood.  
Tribunal Findings
30	I acknowledge the layout of the development, comprising of two wings in the northern and southern half of the site, are designed to reflect the existing dwelling spacing in the street.  This includes Dwellings 1 and 2 with frontage to Malane Street which are setback 3.07 metres from the north boundary and 3.4 metres from the south boundary and separated by the central driveway.  I agree these dwellings are reflective of the existing dwellings in the street as they include pitched roofs and vertical window openings.  There is also adequate space along the side boundaries for landscaping beside these two dwellings, which is consistent with other dwellings nearby.  
31	Whilst I am satisfied the level of articulation evident at the frontage of the site responds to the emerging character, this is not filtered through the rest of the site, particularly the southern wing of the development.  I consider the ground and first floor southern setbacks of Dwellings 4, 6, 8 and 9 and the garages of Dwellings 2 and 11 will crowd the southern half of the site.  I find this is inconsistent with other multi-dwelling developments nearby that are either centrally located or provide greater setbacks to at least one site boundary which provide a sense of space around the dwellings.  In consider the buildings will be visually dominating in the neighbourhood and will also have unreasonable amenity impacts to the south.  My findings on these matters will be discussed further below.  
32	The applicant argues there are similar elongated built forms nearby, including the six dwellings to the east at 9 Francesco Street.  I agree that other multi-dwelling developments such as this also extend deep into the lot.  However, I consider these developments have greater articulation and wider side setbacks which allow them to sit more comfortably in the neighbourhood.  This is not the case here as the first floors of Dwellings 4, 6, 8 and 9 are set back 2.5-3.5 metres from the south boundary and the balconies cantilever over the central driveway.  These features reduce the sense of spaciousness throughout the site. 
33	I also note the upper levels of Dwellings 3, 5 and 7 in the northern wing are set back 3.4 metres from the north boundary which will also crowd the site, in combination with the built form of the southern wing.  I find inadequate spacing between the wings and the setbacks from the side boundaries will dominate this section of the street. The proposal therefore fails to respond to the emerging character of this neighbourhood.
Front and rear setbacks
34	The respondents argue the frontage setbacks of Dwellings 1 and 2 are inconsistent with existing setbacks in the street.  They say these setbacks fail to satisfy Clause 55.03-1 (Standard B6- Street setbacks that has an objective to ensure setbacks of buildings from the street respect the existing or preferred neighbourhood character.  They also say the development fails the objective of Clause 55.04-1 (Standard B17 – Side and rear setbacks) which is to ensure the height and setback of the building respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
35	The plans show Dwelling 2 is proposed to be set back 6.9 metres from the frontage and Dwelling 1 is set back 7.4 metres.  The dwelling to the south is set back over 10 metres from the frontage and the recommended setback in Standard B6 is 9 metres. The respondents say Dwelling 2 will dominate the frontage of 1/8 Malane Street and this is inconsistent with the larger setbacks found in this street.    
36	I am satisfied the frontage setbacks of Dwellings 1 and 2 are an acceptable response in this street as there are varying setbacks further north and south of this subject site.  I note the removal of the second crossover and driveway ‘frees up’ a greater proportion of the frontage for landscaping which will complement the garden character in the streetscape.  
37	The respondent at 6/9 Francesco Street argues Dwelling 11 is too close to the rear boundary (i.e. 1.1 metres) and inconsistent with other multi-dwellings nearby that have greater setbacks.  Whilst understanding the respondent’s concerns, I note the ground floor east elevation of Dwelling 11 is set back 1.1 – 1.5 metres from the east boundary.  I consider these rear setbacks acceptable in the context of nearby multi-dwelling developments that have similar setbacks and built form that extend deep into lots.  I also observed this pattern was also evident on the aerial photographs tabled at the hearing.   
Landscaping 
38	The applicant argues the proposal is a high-quality landscape response.  It says the landscape plan is carefully considered across the site, including at its edges.  It submits this includes the use of upright species along the southern eastern boundaries. 
39	I acknowledge the landscape plan shows the site can accommodate a generous planting in the frontage, including four canopy trees and understorey planting.  I also note there is potential for canopy trees and garden beds in the northern courtyards of the northern wing dwellings and rear yard of Dwelling 11.
40	Whilst the landscape plan shows planting of upright species in the courtyards of Dwellings 4, 6, 8 and 9, I consider this response inadequate to soften the built form or provide a landscaped interface to the dwellings to the south.  I find these courtyards are primarily service yards and any landscaping will not greatly contribute to screening or landscaping this area.
Are the off-site amenity impacts acceptable?
41	Clause 22.07-2 states it is policy for development to ensure that the siting and design of new development takes account of its interfaces with development on adjoining properties.  
Visual Bulk, Mass and Scale 
Southern Interface
42	The subject site abuts two single storey dwellings at 1/8 and 2/8 Malane Street.  These dwellings have north facing habitable room windows and secluded private open space abutting the site.

Figure 2: Rear yard of 1/8 Malane Street.

Figure 3: South Elevation of southern wing
43	The applicant argues the amended plans provide an improved contextual response to the amenity of neighbouring properties by providing reasonable side and rear setbacks.  It says the design is sensitive to the dwellings to the south as it includes an overall height of 7.3 metres and low wall heights to match the existing fence. It also submits the amended plans have increased the first floor setbacks of Dwellings 6, 8 and 11 from the south boundary that are opposite the secluded open space of 1/8 and 2/8 Malane Street.  It says this will reduce the overshadowing impacts on the rear yards of these dwellings.  The applicant also submits the ground floor set back of 2 metres provides enough space for the planting upright canopy tree to ensure the built form will not have an overbearing impact on the neighbouring dwellings.  
44	Council argues the development is not a site responsive design and fails to consider the impacts on the dwellings to the south and the wider area.  It says the siting of the development closer to the south boundary to accommodate secluded private open space for the northern wing dwellings and balconies for the southern wing dwellings has resulted in a visually dominant design.  Council submits that very little consideration has been given to the breaking up the mass of the southern wing south elevation by incorporating recesses and articulated roof forms in the design.  
45	The respondents agree with Council and say the proposal is a poor design response because the development is pushed towards the south boundary and results in an unrelieved and dominating built form when viewed from the south.  They say this is due to the inclusion of reverse living dwellings in the southern wing.  They submit the continuous built form will result in an unrelieved outlook from their windows and rear yards and this will significantly reduce their level of amenity. 
Tribunal Findings
46	I have inspected the properties to the south at 1/8 and 2/8 Malane Street to gain an appreciation of the respondents’ concerns.  Whilst the south elevation is facing the side elevation of the adjoining units, it is also facing their rear yards.  I agree with Council and the respondents that the development lacks sufficient articulation and recesses and the continuous roof form for Dwellings 4, 6, 8, and 9 compounds the visual dominance of this elevation facing the adjoining dwellings.  
47	I am particularly concerned about the impact on the rear yard of 1/8 Malane Street.  I acknowledge this dwelling has outlook to the east and there is a small shed in the rear yard.  However, I find the combination of the length of the ground floor south elevation wall that is setback 2.1 metres from the south boundary, the first floor south elevation wall that is setback 2.5-3.5 metres, and the continuous roof form will dominate the outlook from this dwelling and reduce the level of amenity of the adjoining rear yard.  I fail to how the inclusion of upright medium height trees along this boundary will assist in minimising the visual dominance of the built form to a satisfactory level.
48	I note 2/8 Malane Street has four north elevation windows to their kitchen and meals area facing the subject site.  I consider the height and length of the south elevation will also have a detrimental impact on the amenity of this dwelling due to an outlook to a continuous two storey wall with limited setbacks at ground and first floor level.  However, I acknowledge Dwelling 11 is set back 5.4 metres from the south boundary and faces the secluded private open space of this dwelling.  I consider this rear yard of this dwelling will not experience the same level of visual bulk to 1/8 Malane Street because of the greater setbacks and screening provided by the existing canopy tree in the rear yard of this dwelling.
Eastern Interface 
49	The dwelling to the east at 6/9 Francesco Street is set back approximately 1.9 metres from the common boundary and is a reverse living design that includes a ground floor bathroom with clear glazing and two first floor habitable room windows with frosted glazing.

Figure 4 – Aerial diagram showing open space of 6/9 Franseco Street 
50	The respondent at 6/9 Francesco Street is concerned about the visual dominance of the southern wing on the secluded open space in the western setback.  She says this is part of the useable area of the dwelling in association with the courtyard in the northern setback.  She says the development will result in a loss of outlook to landscaping to the west and there is insufficient space for replacement planting.
Tribunal Findings
51	I agree with the respondent that the setback of Dwelling 11 a minimum of 1.1-1.5 metres from the east boundary provides limited opportunity for screen planting along the east boundary.  However, I find there will be limited visual bulk impacts on this dwelling as the respondent’s northern courtyard is not fully enclosed by Dwelling 11 as it located partially opposite the central gap between the two rows of dwellings.  Whilst I acknowledge the respondent uses the western setback for recreation activities, I find this is a secondary space and as the northern courtyard and first floor balcony are directly accessible from the living room and bedroom.  These areas will not be substantially affected by the proposal.
Overshadowing 
52	Clause 55.04-5 (Standard B21 – Overshadowing of Open Space) has an objective to ensure that buildings do not significantly overshadow existing secluded private open space.  The standards states:
Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September. 
If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced. 
53	The applicant argues the development complies with the overshadowing requirements of Standard B21.  It submitted shadow diagram for the 22 September that included an analysis of the percentage of unshaded area for the abutting units to the south.  This analysis included the extent of shading of the frontage setback and rear yard of 1/8 Malane Street.  The applicant concludes that the development would not reduce the amount of sunlight entering the open space of this dwelling which was greater than 40 square metres throughout the day.  
54	Council conducted an independent analysis of the overshadowing impacts on the secluded open space of the 1/8 Malane Street.  It excluded the frontage setback from its assessment as it considered this area was not secluded as it was located frontage and behind a 1600mm high front fence. Council concluded the adjoining unit would experience additional overshadowing of its rear yard throughout the day between 9.00am and 3.00pm.  It says that only at 12pm and 1.00pm, the existing unshaded area is greater than 40 square metres.  In the morning and from 2.00pm onwards, the area is less than 40 square metres and therefore the amount of sunlight should not be reduced to comply with this standard.  
55	The diagrams show additional shadows fall over the northern setback of 1/8 Malone Street.  This shadow falls primarily over the gap between the veranda and fence and most of the eastern setback will receive sunlight throughout the day.  Whilst I consider this impact in limited, the additional overshadowing only further compounds the visual bulk impacts of the built form on this dwelling.

Figure 4 – Shadow impacts on rear yard of units to the south on 22 September at 2.00pm.
56	I note the secluded open space of 2/8 Malane Street is mostly unaffected by the proposed development and the diagrams show the northern courtyard of 6/9 Francesco Street will experience some additional overshadowing at 3.00pm.   I find the extent of overshadowing of these dwellings is not unreasonable and meets the objectives of Standard B21.
North Facing Windows
57	Clause 55.04-4 (Standard B20 – North Facing Windows) has an objective to allow adequate solar access to existing north facing habitable room windows.  
58	The southern wing faces two north facing habitable room windows in the dwelling at 1/8 Malane Street which are set back 1.5 metres from the common boundary and four habitable room windows in the unit at 2/8 Malane Street which are setback 1.1 metres from the boundary.  This wing also includes the garages for Dwellings 2 and 11 on or near the common boundary.  
59	The respondents argue the development will result in a substantial reduction of sunlight entering their windows which will significantly lower the level of amenity of their dwellings.  They says this is mainly due to the applicant’s desire to provide adequate amenity to the courtyards of the dwellings in the northern wing and first floor balconies for the southern wing.  
60	Council says the original plans showed the garage of Dwelling 11 failed to meet the recommended height and setbacks of Standard B20.  However, the applicant says the amended plans have addressed this issue as they now show lower wall heights which match the existing fence height and thus meet the standard.  The applicant says this measure will ensure that there will no unreasonable impacts on any habitable room windows and secluded open space of the dwellings to the south.

Figure 5 – Cross section showing the lowered wall height of the garage of Dwelling 11 on the south boundary. 
61	I acknowledge the suggested changes to the plans will reduce the impact on the adjoining north facing windows as the garage wall will match the existing fence height.  However, I note this change requires a further reduction in the dimensions of the car space and there is still extensive built form in front of these windows.  I am persuaded by the arguments of Council and the respondents that whilst the proposal will allow adequate solar access to the windows, each dwelling receives will be impacted by the substantial scale and setbacks of the building.
Noise 
62	The respondent at 6/9 Francesco Street is concerned about noise emanating from any air conditioning units that may be placed in the eastern setback.  She says these facilities will impact the amenity of the ground floor open space of her dwelling.  I consider this issue could have been dealt with by permit condition by installation of baffling around the unit. 
Overlooking 
63	The respondents to the south and east argue the development will cause a loss of privacy to their dwellings from the first floor windows and balconies.  
64	I am satisfied the screening measures meet the objectives of Clause 55.04-6 (Standard B22 – Overlooking) which is to limit views into existing secluded open space and habitable room windows.  This is demonstrated on the plans as:
•	The ground floor plans show there is an existing 2 metre paling fence with trellis along the east boundary (2.5 metres high) that will screen ground floor windows of Dwelling 11;
•	There is an existing 2.2 metre high paling fence along the east boundary adjacent to Dwelling 10 that will prevent views into 2/11 Francesa Street;  
•	The first floor en-suite and bedroom window of Dwelling 11 has 1.7 metre high sill heights to prevent unreasonable overlooking; and
•	The respondent’s dwelling to the east contains highlight windows to prevent views into the subject site.  
Open Space 
65	Clause 55.05-4 (Standard B28 – Private Open Space).  It states a dwelling should have private open space consisting of:
•	An area of 40 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 25 square metres, a minimum dimension of 3 metres and convenient access from a living room, or 
•	A balcony of 8 square metres with a minimum width of 1.6 metres and convenient access from a living room. 
66	The respondents argue that insufficient open space has been provided for all dwellings.  They say the ground level open space fails to meet Standard B28, the dimensions of the balconies are deficient, and the northern wing balconies overhang the courtyards.
67	Dwellings 4, 6, 8 and 9 in the southern wing are reverse living dwellings and rely on the first floor balcony as the principle private open space.  I note that each balcony has a minimum of 8 square metres and therefore satisfies the requirements of Standard B28. Whilst other multi-dwelling developments also have first floor balconies, most have additional, supplementary ground level open space which is used for landscaping and service functions for dwellings.  The southern units have a narrow (i.e. 2.1 metre) service yard in the southern setback that will be overshadowed throughout the day.
68	The respondents identified that the ground level secluded open space for Dwellings 5 and 7 is 25 square metres, which is below the 40 square metres recommended in the standard.  I consider these northern courtyards are useable areas that are supplemented by a first floor balcony that have access from a living area.  I consider the objective of this standard is met for these dwellings which is to provide adequate private open space for the reasonable recreation and service needs of residents.
Are the car parking and access arrangements acceptable?
69	The respondents are concerned the development includes no visitor car parking and this will increase on street parking demand in an already congested street that is impacted by trader and commercial parking.  Whilst I understand the respondents’ concerns, the site is within the Principal Public Transport Network (PPTN) and Clause 52.06 (Car parking) does not require on-site visitor car parking in this area.  I also note the provision of 1-2 spaces per dwelling is in accordance with the statutory requirements of Clause 52.06 for 2-4 bedroom dwellings.  I do not consider that additional on-site car parking is required for this development.  
70	The respondents expressed concerns about the increased traffic that will be generated by this development. They also have concerns about the accuracy of the traffic surveys given they were conducted during the pandemic and argue limited weight should be given to the results.  
71	I acknowledge there will be increased traffic from the development of 11 dwellings on this site.  However, given the broad policy objectives of the PPF and LPPF supports housing growth at this location, it is inevitable there will be additional traffic in this area in the event the sits are redeveloped for more than two dwellings.   I find the traffic impacts of this development is not a threshold reason why this application has been refused.
72	The internal dimensions of the single garages for Dwellings 4, 6, 8 and 9 are 5.5 metres long and fail to meet the design standards in Clause 52.06-9 that require a 5.5 metres length.  I note the plans show these garages do not have a door so vehicles can overhang into the driveway.  The applicant says the garages are not garages but are classified as ‘car spaces’, due to the absence of the door. It says they therefore meet the objectives of the planning scheme. Council’s Traffic Engineers did not oppose this approach and included a draft condition to label the garages of Dwellings 4, 6, 8 and 9 as ‘conventional car spaces’ or ‘under-croft’ car spaces.  
73	Whilst Council and the applicant have devised a technical solution to this issue, I find it is one of several substandard features in this design which is a result of trying to accommodate too many dwellings on the site.    
Conclusion
74	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Jane Tait
Member