[2004] VCAT 1890

In permit application no. PL03/0961, the decision of the Responsible Authority is affirmed. A permit is granted is not granted and no permit is to issue.

Ms S Rigo of Hansen Partnership for J, B, S & Z Langer and A Skaltsas. Mr Langer tendered a written submission by V Hartigan & M Clifford and F Thorpe. A video was also shown.

Mr M Wright, Mr D Mensingh, Ms S Pozzebon, Mr D Kirwan Mr M Smith and Mrs J Benjamin all in person.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Alsocan Architects seeking review of a decision made by the Yarra City Council ("the Council") to refuse to grant a permit in permit application no. PL03/0961. A Notice of Refusal was issued on 15 April 2004. The Application for Review was lodged on 4 June 2004.

2 Mr Langer tendered a written submission on behalf of Mr F Thorpe. Mr Thorpe was not an original objector to the permit application and Mrs McKenzie opposed any application for him to be joined as a party. I ruled that I would receive the document as a submission rather than join Mr Thorpe as a party.

3 The subject site is located on the south side of Miller Street. The land has an area of approximately 283 square metres, with a frontage of 6.4 metres. The site abuts laneways to its western and southern boundaries. The review site is occupied by a single storey cottage with a double storey rear addition under construction (Permit PL02/0485). The addition comprises a rear deck and parking beneath that deck, with access from the lane along the western site boundary.

4 To the east of the review site, at No. 148 Miller Street, is a single storey inter-war dwelling which is one of a pair. To the west of the review site, over the lane, is a single storey double-fronted dwelling at No. 144 Miller Street. Both have slightly raised rear yards relative to the level of the review site. To the south of the review site is a child care centre.

5 The area comprises mainly single storey dwellings. The lanes link Clausen Street with Miller Street and also service the rear of properties with frontage to those streets. A bus stop abuts the review site in Miller Street.

6 It is proposed[1] to develop the land for an additional dwelling, constructed to the rear of the existing house. The proposed dwelling would comprise two bedrooms and two car spaces in the form of a car stacker. The car spaces would be accessed from the western boundary, essentially at the intersection of the two laneways which the site abuts. The proposed dwelling would be two storeys above ground level with a third level that services the lower portion of the car stacker and provides a bedroom and sunken garden. A further bedroom would be at the ground level with the second storey comprising living and kitchen areas. In addition to the lower level garden, two decks are proposed, one to the south and one to the north.

7 The dwelling would be built to the eastern, western and southern boundaries. It would have a wall height to the western boundary of 6.3 metres with a maximum height of 7.3 metres. The ground floor would extend along the eastern boundary for a length of 6.7 metres at a wall height of 3.6 metres. The first floor setback along the same boundary would be 1-1.3 metres in a angled form. Materials and finishes include rendered timber and stone tile, corrugated zincalume roofing and glass screening.

8 The proposed dwelling would be separated from a fence to the south of the existing building by 3.2 metres, or 2 metres if measured from the deck.

9 During the course of the Hearing, Mrs McKenzie referred to several possible changes to the proposal such as reducing the height of the eastern boundary wall, deleting the car stacker and changing the decks. These possibilities have been taken into account in reaching a decision.

10 The review site is zoned Residential 1 under the Yarra Planning Scheme ("the Scheme"). A permit is required to develop two dwellings. The decision guidelines of Clause 32.01-4 are relevant and a proposal must meet the requirements of Clause 55.

11 A Heritage Overlay (Schedule 327 North Fitzroy) applies to the site. A permit is required for buildings and works and the provisions of Clause 43.01 must be considered.

12 A number of other Clauses are relevant to the consideration of this Application, including Clauses 11, 14, 15, 16, 19, 21, Clause 22.02 (Development Guidelines for Heritage Places Policy) and Clause 65 (general decision guidelines).

13 The Council's Urban Character Study is a reference document in the Scheme. It includes the subject site in Area 3 with a special designations of "large backyards", "consistent building type and period" and "consistent use and density".

14 Melbourne 2030 has also been taken into account by the Tribunal.

15 I have considered the submissions presented assisted by my inspection of the subject site, adjacent properties and locality subsequent to the Hearing. I do not recite all of the material presented, as the written submissions tendered by the parties are retained on file, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issues for determination are:

* whether the development of the land for two units is acceptable, in principle, having regard to the policy directions of the Yarra Planning Scheme.

* whether the proposal is acceptable in terms of heritage, streetscape and neighbourhood character considerations.

* whether the proposal would result in unacceptable off-site amenity impacts.

* whether the proposal would unreasonably impact pedestrian and vehicle safety in the laneways.

* whether an acceptable level of internal amenity is achieved.

16 As a matter of principle, the use of the subject land for two dwellings is acceptable. The land is readily proximate to many services and facilities including public transport. The physical circumstances of the site, including its lack of restrictions associated with vegetation, easements and topography allow for the possibility of more than one dwelling being accommodated on the land.

17 The Council's policies set out in the Scheme seek to accommodate increases in residential population levels and changing demographic profiles. While those objectives must be balanced with others that seek to ensure that new development is of a high quality and makes a positive contribution to the character of established residential areas, and that the amenity of existing residents is protected, the notion of two dwellings on the land would facilitate the Council's housing goals.

18 A significant concern of Respondent Objectors is the process by which the development of the subject land has been pursued. They were critical of the two step process adopted whereby the redevelopment of the existing dwelling was approved first and then a subsequent application made for a second dwelling. They felt that the redevelopment of the land as a whole should have proceeded in one stage and that the proponent had sought to circumvent the usual process by which a two unit development should be advanced. Some residents, notably the Landers family, were concerned about the impact of the additions to the existing dwelling on their amenity.

19 The works being undertaken to the existing dwelling are, as I understand it, approved by the Council and the Applicant can lawfully apply for a second dwelling in a subsequent permit application. I adopt the same approach as the Tribunal in Application for Review 2000/ 001710 Stucley v Bayside City Council in relation to the ambit of discretion in dealing with an Application for the second dwelling on the land. The ambit of my discretion is limited to impacts of the proposed dwelling, the extent to which the proposed dwelling may impact on the amenity of the existing dwelling, how the impacts of the existing house may change with a second dwelling on the land, and whether those changes are acceptable. It is not before me to address modifications to the approved design of the existing dwelling.

20 It is common ground between the parties that heritage issues play little or no role in this Application as the proposed dwelling would have limited visibility from Miller Street and is set well back on the subject land. I have not, therefore, explored heritage considerations in detail and note that the Council's heritage advisor did not oppose the application, subject to some changes, such as the use of weatherboards to the southern elevation.

21 The key issue in terms of neighbourhood character is in relation to the setting of the proposed dwelling, which is within the backyard-scape of properties fronting Miller Street and Clauscen Street. In summary, the Council and Respondent Objectors opposed the proposal on the basis (inter alia) that it is an inappropriate response to the open nature of backyards that characterise the area whereas the Applicant submitted that the proposal is acceptable as an infill development taking into account the form of development to the rear of properties such as studios and outbuildings.

22 The subject site and properties within its immediate vicinity are characterised by predominantly single storey dwellings many of which seem to have an open yard that is either used for open space or include low outbuildings such as single level garages and sheds. Some exceptions are the existing double storey (former shops?) to the north-east of the review site that front Miller Street and a studio/garage to the rear of No. 183 Clauscen Street. While some single and double storey units have been erected, the building stock is predominantly of older style period dwellings with some updating.

23 Ms Rigo drew attention to the provisions of the Council's Urban Character Strategy which is a reference document in the Scheme and specifically the site's location within the North Fitzroy North (No. 3) Character Area. That area is described as:

An area recognisably late-Victorian, Edwardian and interwar in its origins, retaining its consistent, low intensity residential character.

24 I think that description is apt in terms of the character of the area close to the review site albeit there are later developments. Three "special character area designations" apply within Area 3 that affect the review site: area of consistent building type and period, area of consistent use and density, and area with large backyards. Having inspected the area, I can appreciate the basis on which those designations have been nominated. Having said that, as relevant to this review, there are examples of recent two storey developments including to the rear of dwellings in these designated areas, such as No. 183 Clauscen Street that is closest to the review site. However, these and other examples shown in photographs tendered at the Hearing generally include structures to laneways that are smaller than the current proposal in terms of length and height and take the form of studios above garages, rather than separate dwellings. None appear to be three level or include a basement.

25 In this context, it could be said that the proposal is inconsistent with the character of the area in terms of a lack of two storey or substantial built elements at the rear of nearby allotments at present. However, the siting of structures to the rear of sites abutting laneways may not be unusual or inappropriate. As a matter of principle, if urban consolidation objectives are to be achieved then there will be some loss of spacious backyards and a sense of openness that is experienced in areas where there are few or only low scale intrusions into that setting. The policies of the Yarra Planning Scheme, and even the Guidelines associated with the Character Study, do not preclude two storey forms to the rear of existing dwellings. They do, however, recognise that locating a two storey dwelling in the rear yard is sensitive. That is a commonly understood principle as has been frequently commented upon by various divisions of the Tribunal. The key issue is the form and scale of any development, which brings into issue amenity impacts to adjoining properties, a matter which I address below.

26 The Guidelines of the Character Study draw attention to that consideration when referring to provisions relating to laneways as follows[2]:

Suggested maximum height of buildings abutting a laneway in a residential area are:

LANEWAYS 2.8M OR LESS IN WIDTH - 6.0m to the top of wall (ridge of roof may be higher)

Other factors need to be taken into account in determining height of buildings at the rear of a property, such as .... 4.4 (areas with large backyards); and planning amenity considerations.

27 The proposal is above the 6 metres referred to but the Application does not fail simply for that reason particularly given that the Guidelines are not incorporated into the Scheme and the higher section of wall abuts a lane.

28 In terms of the building scale and intensity that characterise the neighbourhood that is most relevant for the purposes of this review, being closest to the review site, the combined mass of the existing dwelling as extended plus the proposed dwelling would be substantial. The minimum distance between the rear deck of the existing dwelling and the proposed deck to the rear dwelling would be less than 5 metres. The combined upper floor elements would be a little under two thirds of the entire length of the lot (ie. some 28 metres of building over the property length of around 44 metres) and the rear dwelling would be higher than the front dwelling. In my view, given the setting of the site, this is a considerable mass and I am not persuaded that it would be compatible with the character of the area. In my view, it would not sit comfortably within the neighbourhood.

29 Properties to the immediate east and west of the review site would be most affected by the proposal with the greatest impact being to the east.

30 No. 148 Miller Street is a modest dwelling with an open rear yard. The existing form of the addition to the dwelling to the front of the site is readily evident from the rear yard, although the building form does not extend past the rear of the dwelling at No. 148 Miller Street. The wall of the proposed dwelling would extend for a length of 6.7 metres at a height of 3.6 metres before then stepping in to the south and stepping back at the upper level by 1 - 1.3 metres. The height of the proposed dwelling would be 6.56 metres at a setback of around 1.7 metres from the common boundary with the proposed dwelling increasing to 7.4 metres close to the western boundary. The proposal has been designed to exactly comply with the building envelope of Standard B17 in relation to the interface with No. 148 Miller Street. It does not meet Standard B18 in relation to the height of the wall.

31 As has been noted by Senior Member Monk on a number of occasions in relation to the operation of Clause 55[3]:

Clause 55, commonly referred to as ResCode, sets out objectives and standards for multi-dwelling development. At Clause 55 the "requirement" is that a development "must meet all of the objectives" and "should meet all of the standards" of the clause....

Although the objectives are drafted in a manner that allows for some subjectivity, it is nevertheless the case that if a decision-maker is of the view that an objective would not be met, then there is no discretion available to grant a permit. Clause 55 provides that an objective "describes the desired outcome to be achieved in the completed development". The standards which "should" be met are defined as follows:

"A standard contains the requirements to meet the objective. A standard should normally be met. However, if the responsible authority is satisfied that an application for an alternative design solution meets the objective, the alternative design solution may be considered."

For each objective and standard there is also a set of decision guidelines which must be considered before deciding if an application meets the relevant objectives.

32 Decision guidelines set out at Clause 55.04-1 and 55.04-2 refer to the impact on the amenity of existing dwellings and impact on secluded private open space is referred to at Clause 55.04-1. Having considered the submissions and photographs tendered at the Hearing, assisted by my inspection of the adjacent property, I am of the view that the impost of the proposed dwelling on No. 148 Miller Street is not reasonable. The proposed unit would extend for most of the western boundary of the private open space of No. 148 Miller Street with virtually no opportunity for visual relief in the form of landscaping on the review site. The mass is substantial in this setting and I find that the form would be quite overwhelming. In my view, a reasonable balance would not be achieved between allowing new development and protecting residential amenity.

33 As a result of the separation of the review site from No. 144 Miller Street by the laneway and existing plantings, there is a lesser impact on that adjoining property when compared with No. 148 Miller Street. However, as is the case with No. 148 Miller Street, the presence of the existing residence on the subject site as well as the proposed dwelling at a height of 7.3 metres close to the western site boundary for a length of close to 9 metres in length, would result in a sense of being overloomed.

34 The materials proposed, notably the zincalume roofing, were criticised. The materials together with the scale of the development would accentuate the visibility of the building and may raise issues such as glare.

35 I have not explored issues relating to construction impacts associated with the basement as raised in some submissions, as that would be a matter that is subject to other legislation.

36 Local residents expressed considerable concern about the use of the laneway for car access with impacts on the safety of laneway users including pedestrians and parents accompanying children to the child care centre to the south of the review site.

37 The lanes are narrow and are constrained by poles that at one point reduce the effective width to 2.4 metres. I am not persuaded that the addition of a dwelling with two car spaces would give rise to the rejection of the Application as a result of impacts on vehicle and pedestrian safety, however, I am concerned that the space available for the dependent stacker is very tight and that the location of the access point to the stacker is at the junction of the lanes where there is already a constraint as a result of existing poles. As noted below, I doubt it would be convenient to occupants.

38 I summarise my findings in relation to internal amenity issues as follows:

* Entry arrangements. The door to the proposed dwelling is tucked away but I expect this could be readily improved by design detailing. I do not, however, find that this proposal can fail simply because a second dwelling seeks to use the lane as its primary and only address.

* Shadowing of internal spaces. Daylight access to the lower level bedroom and the sunken garden would be restricted by retaining walls, a dividing fence with the existing dwelling on the review site and the balcony above. I expect that this could be improved.

* Open space for the existing dwelling. The proposal would result in the rear yard of the existing dwelling being subsumed and that dwelling would rely on a south-facing deck with extensive screening and a 2.8 metre wide rear yard. I am not persuaded that is a good outcome for a three bedroom dwelling although it again is not the primary reason for the rejection of this Application.

* Car stacker. The arrangement to access the dependent car stacker is awkward and I doubt that the stacker would be convenient to occupants of the proposed dwelling when taking into account the manoeuvres required in these narrow laneways to shift one vehicle to allow another to depart or arrive. A single car space for the proposed two bedroom dwelling would be acceptable.

* Drainage. Issues were raised about the drainage of the sunken garden but I expect that this could be resolved by way of a permit condition and/or through building regulations.

39 For the reasons I have set out above, I conclude that the proposal does not represent an acceptable outcome in terms of the policies and decision guidelines of the Yarra Planning Scheme particularly in terms of its impact on the amenity of the property at No. 148 Miller Street. I am not persuaded that changes proposed during the course of the Hearing are sufficient to address the fundamental issues in relation to neighbourhood character and off-site amenity impacts. I will therefore affirm the decision made by the Responsible Authority to refuse the permit application.

[1] Based on Revision A plans as varied by the later Revision B plans.

[2] Page 15 of the Urban Character Guidelines.

[3] John Douglas Architects Pty Ltd v Bayside CC and Ors