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[2001] VCAT 376
appellant. Application for review granted; decision of Responsible Authority set aside; planning permit issued for construction of double storey dwelling at rear of existing dwelling subject to 18 conditions...
This case involved an application to the Victorian Civil and Administrative Tribunal (VCAT) for a planning permit to build a second dwelling at 31 Highett Road, Hampton. Bayside City Council had refused the permit, so the applicant sought a review. Instead of holding a full hearing, the Tribunal conducted a compulsory conference where the parties agreed to mediate. They reached a settlement where the applicant agreed to redesign the house so it looked like a true attic-style dwelling with level eaves, and to use brickwork and roofing that matched the existing house. The Council's lawyer confirmed she had authority to settle. The Tribunal then made an order granting the permit based on this agreement, subject to various conditions about design, materials, tree protection, drainage and landscaping.
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1 cited instrument linked from this judgment.
Planning List, Application under Section 77 of the Planning and Environment Act 1987, Second dwelling, Bayside Planning Scheme, Compulsory Conference
A. The Application for Review (re Application No. 2000/5472) is granted.
B. The decision of the Responsible Authority is put aside and a planning permit is issued for the development of land and for the construction of a double storey dwelling at the rear of an existing dwelling at 31 Highett Road, Hampton in accordance with the endorsed plans with the application dated 11th April 2000, subject to the following conditions:
1. Before the use and/or development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application, or some other specified plans, but modified to show:
a) Redesign so that eaves line to east and west sides are at the same level so that the house has the appearance of a true attic style dwelling with dimensions as shown on Compulsory Conference Record of Settlement dated 15/12/00.
b) Levels to AHD and finished floor level to be submitted, confirming that no part of the finished ground floor levels is less than 24.3 metres AHD or exceeds 24.5 metres AHD.
c) All wall heights above ground level to be nominated on the plans.
d) The eastern terrace is to be screened to a height of 1.6 metres above floor level on the southern, eastern and northern edges, to Council's satisfaction.
e) The area shown "possible future carport" must be paved to accommodate car parking to the satisfaction of Council.
f) All paving (except driveways) to be porous - pavers to be laid on a compacted sand base.
g) A schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing). External cladding shall be brick work to match the existing dwelling and roofing shall also match the existing dwelling on the site.
h) All plant and equipment (including air conditioning units, hot water systems, etc.) are to be identified and located to the satisfaction of the Responsible Authority.
i) The proposed landscape treatment of the site including the location of all existing and proposed species.
j) The proposed crossovers to have a minimum width of 3.0 metres.
k) If the Prunus tree is to be retained then pier and beam footings for any part of proposed Dwelling B within 3.0 metres of the Prunus tree located adjacent to the eastern boundary of the site.
l) Pier and Beam footings for any pan of the garage for Dwelling B within the canopy area of the Lemon Scented Gum located on the neighbouring property to the north.
m) Excavation of the driveway for Dwelling B limited to a minimum depth of 200mm.
n) Removal of the Cotoneaster dammeri which is located adjacent to the northern boundary of the site.
o) If the Prunus tree is to be retained then the following tree protection measures must be undertaken to adequately retain the existing Frunus located adjacent to the eastern boundary of the site:
p) A tree protection fence of chain link or similar construction be erected to a height of 2 metres, at a minimum distance of 1.5 metres in a radius from the tree centre. This fence is to be erected before the commencement of any works and must stop access to the area it encloses. The Tree Protection Fence must have a sign attached "Tree protection Fence".
q) The area within the tree protection zone must be mulched with an aged wood chip mulch to a depth of at least 75mm and receive at least 50m litres of water on a weekly basis for the duration of the construction period.
r) No excavation is to occur within the area enclosed by the fence unless it is done by hand in the presence of a qualified Arborist. Any roots encountered must be cut cleanly with a sharp implement.
s) No materials, construction or otherwise, are to be dumped or stored within the fence.
2. A schedule of all external materials and finishes shall be submitted to the satisfaction of the Responsible Authority prior to the commencement of any buildings and works on the land. The schedule shall show the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing).
3. The use and/or development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
4. Before the use and/or development starts, a site layout plan drawn to scale and dimensioned must be approved by a Building Practitioner registered under the Building Act 1993 and submitted to the Responsible Authority.
a) a drainage scheme providing for the collection of stormwater within the site and for the conveying of the stormwater to Council's nominated point of discharge to the satisfaction of the Responsible Authority.
5. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.
6. This permit will expire if one of the following circumstances applies:
* The development and use is/are not started within two years of the date of this permit.
* The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards,
7. Street numbers contrasting in colour to the background shall be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers shall be placed adjacent to the front entrance of each dwelling, such numbers to be clearly legible from the access driveway.
8. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
9. The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the developer.
10. All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.
11. All plant and equipment (including air conditioning units, heating units, hotwater systems, etc.) which is proposed to be located externally shall be identified on plans and located to the satisfaction of the Responsible Authority and on endorsed copy. of such plan shall form part of this permit. Such plan must be endorsed prior to commencement of construction and shall include plan and elevation details.
12. Before the use and/or development starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:
a) constructed to the satisfaction of the Responsible Authority;
b) properly formed to such levels that they can be used in accordance with the plans;
c) surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority; and
d) drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority.
13. Before the development hereby permitted starts three copies of a site layout plan drawn to scale and dimensioned must be submitted to and approved by the Responsible Authority. The plan must show the proposed landscape treatment of the site including the location of all existing and proposed species. When approved the plan will be endorsed and will then form part of the permit.
14. Prior to the use allowed by this permit starting or the occupation of the building hereby permitted, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.
15. All existing vegetation shown on the endorsed plans must be suitably marked before any development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.
16. All basic services, including water, electricity, gas, sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.
17. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
18. Finished floor levels must be constructed a minimum of 300mm above the applicable flood level.
* A permit must be obtained from Council for all vehicular crossings.
* These must be constructed under Council's supervision for which 24 hours notice is required.
* Building approval must be obtained prior to the commencement of the above approved works.
* Consultation should take place with Council respect of the removal of the vehicular crossing and reinstatement works.
* The existing street tree/s must not be removed or damaged.
* If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Mike Breedon on telephone 9235 2212, quoting Melbourne Water's reference 59077.
* The applicable flood level for the property is 24.0 AHD.
* The Best Practice Environmental Management Guidelines for Urban Stormwater should be used as a guide when developing site controls to minimise sediment laden runoff and stormwater pollution during construction.
Ms. Jennifer Bowdern, Lawyer, appeared for the Responsible Authority.
Mr. Simon Honing, appeared in person on his own behalf and that of Mrs. A. Honing, as respondents/objectors.
Ms. Amanda Ring, Town Planner of SJB Planning, appeared for the Applicant.
1. Application under Section 77 of the Planning and Environment Act 1987 against a decision of the Bayside City Council to refuse to grant a permit for a second dwelling at 31 Highett Road, Hampton.
2. The hearing took the form of a compulsory conference and after an explanation by the parties of the matters at issue, the parties agreed that the matter be mediated. Ms. Bowdern clarified her authority to settle by telephoning the Responsible Authority. This authority was sufficient to enable a resolution to be found.
3. It was agreed, confirmed by the Signed Record of Settlement dated 15.12.00, copies of which were provided by the parties that:
a) The subject dwelling would be redesigned so that the eaves lines on east and west sides would be level, so that the house had the appearance of a true attic style dwelling with dimensions as shown on sketches attached to and parts of the Record of Settlement.
b) The house is to be clad in brickwork and tile roof to match the existing dwelling on the subject site.
c) With the above amendments a permit should issue subject to the above and standard conditions of Council.
4. The Tribunal was requested to issue an order accordingly.
Arcee Holdings PL
Bayside CC [2001] VCAT 376
Application for review granted; decision of Responsible Authority set aside; planning permit issued for construction of double storey dwelling at rear of existing dwelling subject to 18 conditions including redesign specifications, materials matching existing dwelling, tree protection measures, drainage, landscaping, and standard planning conditions