Irregularly shaped piece of land with a frontage of 6.47 metres to the south side of Bank Street, a rear width of 6.34 metres, depth varying between 25.5 metres and 29.2 metres and with a total area of 175 square metres

MEDIUM NEUTRAL CITATION: [2004] VCAT 268

A. This application for review is granted together with a permit for an enclosed roof structure over the head of a spiral stairway (in addition to other developments separately approved in other planning permission) in accordance with the endorsed plans hereafter provided for and subject to the conditions set out in the notice of decision to grant a permit issued by the Responsible Authority on 30 October 2003 save that Condition 1 thereof is to read:

"1(a) The endorsed plans are to be the application plans which depict the building works being approved by their being coloured (as distinct from the balance of plans which are uncoloured which uncoloured works may be otherwise approved but which are not part of this permit) and by being encircled in wavy lines.

(b) The development as shown on, and so depicted on, the endorsed plans must not be altered without the written consent of the Responsible Authority."

B. The Responsible Authority is directed pursuant to Section 85(1)(b)(ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

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Mr. Simon Gutteridge, Town Planner of the City of Phillip, appeared for the Responsible Authority.

Mr. Martin Verhoeven, Town Planner of Bowden Verhoeven Town Planning Consultants, appeared for the Applicants.

Mr. Robert Milner, Town Planner of Coomes Consulting Group Pty Ltd, appeared for the Respondent company.

Each representative presented written and oral submissions. Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

We are both familiar with the land and locality, each having conducted previous cases in relation thereto and having inspected the land and locality in connection therewith.

Application under Section 82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.

Request under Section 87 PE Act for amendment of a permit.

A structure with a horizontal area of 4 square metres to be erected in the lightwell along a central portion of the two storey building on the land against an adjoining shop to cover and shelter the head of a spiral staircase to give access to a roof terrace via such lightwell.

Business 1 Zone and subject to a Heritage Overlay under the Port Phillip Planning Scheme. However, the property is on the Heritage register under the Heritage Act so that heritage questions are the responsibility of Heritage Victoria.

1. We have each of us conducted previous cases in relation to the proposal of CAJ Hairdressing Pty Ltd (the company) to carry out alterations and additions to an existing shop on the land. In November 2000 Mr. Sharkey heard the case of A. Parker and ors v. Port Phillip CC and McFee, case 2000/69913 which was heard together with McFee v. Port Phillip CC, Parker and ors, case 2000/82958. In the determination of that case a permit was granted subject to conditions. A subsequent permit has been granted in relation to the land and proposal, although that case did not come to the Tribunal. The somewhat complex history is set out, so far as relevant, in the reasons given by Mr. Byard in his determination of CAJ Hairdressing Pty Ltd v. Port Phillip CC, Allen and Parker, VCAT number P70/2003 heard on 30 July 2003 with a written determination dated 13 August 2003. These previous determinations set out an account of the land and surrounding area. As well as giving a history of the various proceedings in relation to the situation, the reasons given in relation to the case heard on 30 July 2003 also set out various procedural considerations and concerns.

2. That was a case where amendments to an existing permit were sought to enable the construction of the proposed structure for which permission is now sought. There is no point in repeating here the discussion that appears in those reasons, but as a result of that case, and the consideration of certain complications discussed therein, the application for permit giving rise to the current review proceedings was commenced by the company. Notice of the application was given and the current Applicants for review were objectors to the grant of a permit. The Responsible Authority, after considering the application, and the objections, determined to grant a permit. The Applicants then commenced these current proceedings seeking a review of that decision.

3. The present case is of very limited scope. As explained in the reasons of 13 August 2003, the company already has permission for all the works it seeks to carry out in relation to the land, save for this stair head structure.

4. There is an existing shop building on the land. It is the western most of a row of three such shops. They are two storey shops constructed on the design typical of Victorian two storey terrace houses, but with shop fronts in the ground floor frontages to the street. The original buildings were designed and constructed to provided residential accommodation above and or behind the shops. This two storey terrace design includes a light alley along one of the side boundaries to provide light to the windows of rooms except for those facing the front street.

5. The residential use of the first floor and rear of the building has long since ceased. The proposed alterations are to provide more and better facilities for the hairdressing business conducted on the premises. The approved extensions involve a closing of the rear end of the light alley so that it would become a lightwell about half way along the eastern boundary of the land, and against the adjoining shop in that direction. A spiral staircase within the lightwell is proposed. This would be located at its southern end. It would give access to the flat roof to enable it to be used as a terrace. All this has been approved, but the company wishes to construct a structure over the head of the stairway. This would shelter a person coming up the stairway from the weather, and also protect the lightwell area itself from the intrusion of rain and the like. An original idea of leaving the lightwell open to the weather, presumably with suitable walls and windows to protect rooms adjoining it, has now been changed. The company wishes to construct a glass ceiling over the lightwell so as to protect it from the weather. This purpose would be defeated, or largely so, if rain, hail and the like could fall down an unprotected spiral stairway.

6. The proposed structure would have an horizontal area of only 4 square metres and would protrude above the roof level by something over 2 metres. The structure would be roofed and have a glass door and window facing west on to the terrace. The rear or eastern wall would be designed to fit in with the eastern wall of that section of the building generally, and would have a scale and appearance, if viewed from the east, similar to a double chimney.

7. The application giving rise to this case is limited to that structure only. The scope of the review is similarly limited.

8. Mr. Verhoeven, in his presentation of the case on behalf of the Applicants, sought to introduce and argue a number of irrelevant matters. He wanted to re-contest issues that have already been determined previously, and for which the company already has permission. He wanted to argue about overlooking from the terrace and the location of screens and barriers in relation thereto. All that was excluded as irrelevant.

9. He also sought to raise arguments about endorsed plans in relation to previous permits. As explained in the reasons of 13 August 2003 in relation to an earlier case, one of those earlier permits is now expired. In any event, any questions in relation to the validity of approval of plans in relation to earlier permits would require new proceedings. The cannot be raised in this case.

10. The application plans submitted with the application giving rise to this review make it quite clear what structure is being applied for. Although these plans depict other proposed works in relation to extensions to the shop, the works for which permission is now sought are clearly indicated by the usual method of colouring them in whilst leaving the rest of the plans uncoloured. Furthermore, there are cloud like lines encircling the coloured in new portions for which permissions is now sought. There is also a prominent notation on each sheet of the plans reading "Application for covering of stairwell only".

11. There was no justification for the attempts by Mr. Verhoeven to go beyond the scope of this application, and rulings to that affect were given when necessary in the course of the hearing.

12. The Applicants reside in adjoining townhouses immediately to the rear (south) of this land and the adjoining shops. Both the shop properties and their houses are in a Business 1 zone. Whilst their amenity is by no means irrelevant, the zoning must be appreciated. Their residential usages have been introduced into the Business 1 zone on the basis that this is a Business 1 zone and their amenity expectations have to be moderated accordingly. They cannot expect the sort of amenity that would be appropriate in a residential zone. They come into the Business 1 zone on Business 1 zone terms. They cannot expect to resist modifications to adjoining structures that are reasonable in a Business 1 zone on the basis that they expect residential zone residential amenity.

13. The shop on the land, together with the two adjoining shops, are on the Heritage register under the Heritage Act. On that basis permission is needed from Heritage Victoria under that legislation for any modification. Although the land is subject to a heritage overlay, the heritage considerations become the responsibility of Heritage Victoria in relation to structures that are on the Heritage register. No planning permission is required under the heritage overlay.

14. Heritage Victoria has granted permission for this proposed structure. Heritage arguments are beside the point, so far as our deliberations are concerned.

15. The key issue in this case is whether the proposed stairhead structure would have had an unacceptably detrimental affect on the amenity of the Applicants' property, and that consideration is really in terms of the appearance of the structure when viewed from those properties. Other amenity issues, including overshadowing or overlooking have previously been considered, but do not arise in relation to the current proposal for this limited structure. The main concern raised by the Applicants is in relation to views from their respective first floor north facing terraces which constitute the principle private open space for their dwellings.

16. Having considered the proposal, including the plans and the submissions made against it, we are satisfied that the proposed structure is quite acceptable in terms of this key issue. Indeed, the other structures for which permission has already been given will screen views of this structure from those terraces, either completely or so that any views of it will be minimal and perfectly acceptable. It is a small structure in any event, and located as it is, it does not justify the objections raised by the Applicants against it.

17. We have said that the key issue is views from the Applicants' property because the proposed structure will be invisible from sensitive parts of the public domain, if not completely invisible from all parts thereof.

18. Mr. Verhoeven sought to argue that the structure should not be approved because condition 1(f) of an earlier permit, now expired, required a modification to plans to "re-design/relocate" the access stair to the new roof terrace to avoid the need for a covered structure constructed above the finished floor level of the terrace. It also required that revised details be submitted to an approved by the executive director of Heritage Victoria.

19. Heritage Victorian has now, as we have said, approved the structure, and so does the Responsible Authority. We also find it acceptable. The whole point of the current proceeding was to test the planning merits of allowing such a structure. We do not think it necessary or appropriate that condition 1(f) of the now expired permit should determine this question, so to speak, from its grave. We cannot find any valid objection to it in its currently proposed form.

20. Mr. Verhoeven referred us to what is sometimes called the doctrine of repeat appeals. This is an approach long since adopted by this Tribunal and its predecessors in relation to repeat applications for what is essentially the same proposal. Although repeat applications can be made, the Tribunal will normally give great weight to any previous decision of the Tribunal, and discourage repeat reviews so as to achieve finality and to prevent "forum shopping" in the hope of wearing down opponents or eventually finding a tribunal that will allow a previously refused proposal.

21. There are no true repeat appeals here, as each proposal has differed significantly from its predecessors, although Mr. Verhoeven is really arguing that there is a repeat on the question of a stairhead structure. Of course, the repeat appeal doctrine allows for a different result if circumstances have changed. The circumstances of their being permission for a glass roof inclosing the lightwell and permission from Heritage Victoria are, in our view, significant changes. Although we approve the "repeat appeal doctrine", we are not minded to refuse this proposal on account of it.

22. Mr. Verhoeven urged, as a fall-back position, a redesign and or relocation of the stair and its point of access to the roof terrace. He urged its relocation to the northern end of the lightwell, and some redesign to incorporate any cover of it into the roof structure at that location. This relocation would remove the point of emergence from the stairwell further to the north, and further away from his clients' properties. We have considered these suggestions, but have not adopted them as we consider them to be unnecessary in the circumstances.

23. There was some debate, in the course of the hearing, in relation to the words granting permission as set out in the notice of decision to grant a permit issued by the Responsible Authority and dated 30 October 2003. The words purport to grant permission for a cover over the stairwell "in association with development approved by permit 1092/2001". These quoted words are, no doubt, intended to clarify the situation that the stairhead cover being approved is in addition to the development granted in that permit. However, it is desirable that it should be clear that the permit now being granted is not granting permission for anything other than the stairhead structure. It is not granting again permission already granted in permit 1092/2001, or in any other permit. That does not mean that permissions granted cannot be relied upon, it just means that this permission is limited to the stairhead structure. We therefore think it expedient to modify the words granting permission.

24. The notice of decision contains some notes, in addition to 5 conditions. Such notes are not part of a permit (although they are sometimes included as a means of conveying information), and we have not included them in our order.

25. The other proceeding before us, request P0070/2003, is now redundant and will be struck out.

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