Adrian Atkins & Associates v Knox CC [2005] VCAT 170

Adrian Atkins & Associates v Knox CC [2005] VCAT 170 - VCAT 2005 case summary — Zoe

[6]

2 This matter involves an appeal under Section 149(1)(a) of the Planning and Environment Act 1987 ("Act") against Council's refusal to allow the amendment of the relevant endorsed plans for the residential development being currently constructed at 59 Cathies Lane, Wantirna South ("subject land"). That is, it is an appeal against Council's refusal of a "request to amend" pursuant to Condition 6 of the relevant planning permit, which is the standard "secondary consent" condition which essentially provides that the development cannot be changed without Council's consent.

3 This development involves 15 new dwellings and the retention of an existing dwelling, and was approved pursuant to a previous Tribunal decision in the matter Cathie Development Pty Ltd v Knox City Council P701/2002 decided by Member Osborn. I was advised that, once the resulting permit No. 2002/6370 dated 20 February 2003 ("Permit") was issued by Council, in the usual way amended plans were submitted to Council and endorsed.

4 The contentious proposed amendment is adding an upper level additional bedroom to dwelling No. 12 (with this extra bedroom having two proposed north-east facing windows). This would make dwelling No. 12 a three bedroom dwelling instead of a two bedroom dwelling. Whether dwelling No. 12 is two or three bedroom, either way all the bedrooms are upstairs. At the hearing I was shown photos by Mr Atkins which indicated that construction of the 15 dwellings is well underway, with much of the framing already up, but work on dwelling 12 was obviously delayed pending my decision here.

5 I subsequently visited the subject land, where the overall development was well advanced, but the upper level of dwelling 12 was (for obvious reasons) yet to be commenced. Your intrepid Member (just after a record 120 mm of rain had fallen in 24 hours) not only walked around the "battle of the Somme"-like mud on the building site but also scaled the top of the ground floor structure of dwelling 12 by ladder and got a good impression of what the view would be from the two windows of the contentious proposed extra bedroom (the view from the windows would be towards the north-east).

6 By way of background, the Tribunal appeal that led to the granting of the permit for the 15 dwelling development involved eight objectors and the preparation of amended plans which were substituted by the Tribunal. I was advised that these amended plans involved inter alia the removal of the contentious third bedroom on the north-east side of the upper level of dwelling No. 12. I note that dwellings 13 and 10 which lie to the east and west each have a master bedroom and two additional bedrooms, in an identical configuration as is proposed here with dwelling 12.

7 In terms of why the applicant in this earlier appeal before Member Osborn chose to remove the third bedroom from dwelling 12, Mr Gower put to me that in his view the applicant would have done so out of concern about the possible visual bulk impacts on the neighbour lying to the north, combined with the need to show some diversity in the size of the 15 dwellings being proposed. In relation to the last point, I understand that with dwelling 12 converted to a two bedroom dwelling, this was the only two bedroom dwelling in the proposal, with all other dwellings being three bedroom apart from one 4 bedroom dwelling.

8 MrAtkins advised that he was not personally involved in the earlier appeal before Member Osborn, so he could not specifically respond to these submissions by Mr Gower. However he did put some arguments to me "on the planning merits" about the implications of the contentious 3rd bedroom being removed for the earlier appeal and now proposed to be reinstated, which I shall return to later. He also tabled (and relied upon) page 2 from a document prepared for the earlier appeal by a Council consultant (Environmental Resources Management Australia dated 30 July 2002), which includes the following text.

[18]

16 In his written submission to me, Mr Atkins submitted that the negotiations between the Applicant and Council regarding the proposed new third bedroom involved Council's reliance on Sections 72/73 in refusing to support the proposed third bedroom for dwelling 12. That is, the relevant criteria under Section 73 was relied upon by Council in refusing the proposed variation of the endorsed plans, and this was confirmed when further enquiries were made to Council in the lead up to this appeal.

17 Mr Gower rather ironically made submissions to me at the hearing in relation to the relevant tests under both Sections 72/73 but also Section 62(3). In addition, he argued that the written permit application for the new third bedroom should have expressly "put on the record" which of these two provisions the Applicant was relying on. On this last point, Mr Atkins responded that the Council should have known which is the appropriate section to apply without the Applicant effectively having to "hold the Council's hand".

18 As is often the case, I think the correct position is somewhere in the middle of the submissions made to me.

19 I agree with Mr Gower that it would have been helpful for the Applicant to have put on the record from the beginning which provisions of the Act the Applicant was expressly relying on, in seeking the amendment of the endorsed plans to allow a third bedroom for dwelling 12. Regardless of the relevant caselaw on point, the fact remains that there is more than one way this proposed amendment could have been considered by Council.

20 On the other hand, to the extent there has been differences of opinion on the role of Sections 72/73 versus Section 62(3), I consider that all parties have had the benefit of the decision of Senior Member Byard in Grosios v Monash City Council 15 VPR 65. This case similarly involved an application to amend plans that had already been endorsed earlier, but Grosios involved the Council giving notice of the proposed amendment to at least some of the affected neighbours, with objections then being received by Council. Council then advised the applicant that, pursuant to Sections 72/73 it was unable to approve the proposed amendment to the plans.

21 In summary, Senior Member Byard held that:

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49 A related factor relied upon by Mr Atkins as being in favour of the proposed new bedroom is that the slope of the locality is from the northern properties down to dwelling 12, which would reduce visual bulk.

50 Having had the benefit of the submissions of both parties at the hearings, the materials provided to me and my visit out on site, ultimately I am not satisfied that the proposed third bedroom would have necessarily been approved at the earlier hearing before Member Osborn.

51 While it is true that the adjoining dwellings 13 and 10 each have three bedrooms at the upper level including a south-eastern facing bedroom with two windows facing in that direction, my impression from my view is that the amenity impacts of this situation is reduced by the fact that the views out from these two sets of windows to the neighbours to the north-east of each dwelling is substantially screened by significant landscaping at the rear of the relevant neighbouring property lying to the north-east of these windows.

52 By contrast, I am concerned that if dwelling 12 gains the proposed north-eastern upper bedroom, the view from the windows of this bedroom will be a fairly stark view of the backyard and outdoor patio area of the residential property to the north-east of dwelling 12. In other words, while I am less concerned about the potential privacy impacts on the neighbouring property directly to the north of dwelling 12 (which has extensive landscaping near its rear fence), I see a real problem with the likely privacy impacts on the neighbouring property to the north-east of dwelling 12 (which has minimal landscaping on the boundaries of its back yard).

53 In this regard, I note that I have not had the benefit of any submissions from the owner or occupier of the neighbouring property to the north-east of dwelling 12, in terms of how they might regard the proposal here.

54 I am unconvinced that the likely privacy impacts on the back yard and patio of the residential property to the north-east of dwelling 12 which I have outlined above will be sufficiently ameliorated by the distances involved, the slope of the locality, or by any positive remarks made by Member Osborn at paragraph 20 of the earlier Tribunal decision. While these remarks may have been fairly positive, the fact remains that the plans she was considering did not involve any proposed third bedroom on the upper level of dwelling 12.

At a glance

Court

Decision date

Source

Judgment (47 paragraphs)

Adrian Atkins & Associates v Knox CC [2005] VCAT 170 (7 February 2005)

Parties

Legislation Cited (1)

Cases Cited (1)