Ms Edelene Lane, Town Planner, Eden Developments and Consulting

Ms Sally Moser, Town Planner, Moser Planning Services

Construction of a two storey dwelling at the rear of the existing dwelling.

Application under Section 77 of the Planning and Environment Act 1987.

Residential 1 Zone. Springvale Road is included within a Road Zone Category 1.

Clause 32.01-4 - Construct two or more dwellings on a lot

The subject site has a site area of 688 square metres and contains a large contemporary two storey dwelling on the site. The application proposes to modify the existing dwelling and construct a new dwelling on the site.

Gakis v Monash CC [2000] VCAT 1450 (30 June 2000), Stucley v Bayside CC [2000] VCAT 1710 (31 August 2000), Alsocan Architects v Yarra CC [2004] VCAT 1890 (4 October 2004), Munjal v Casey CC [2010] VCAT 1026 (17 June 2010)

1. In March 2011, the Monash City Council determined to refuse to grant a planning permit for the construction of a second dwelling on the land. It is a decision that the permit applicant has requested be reviewed by the Tribunal.
2. Council submits that the existing dwelling was constructed as a means of circumventing the planning process. They submit that the dwellings' large, bulky design is a significant constraint on the site, which is not reflected in the design of the proposed dwelling.
3. The key questions for determination in this matter are:
   • Has the permit applicant sought to circumvent the planning process?
   • Does the proposal represent an overdevelopment of the site?
4. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Monash Planning Scheme, I have decided to refuse to grant a planning permit. My reasons follow.

Has the permit applicant sought to circumvent the planning process?

1. The subject site contains an existing dwelling which was approved under a building permit issued on 2 August 2010. The planning application to construct the second dwelling was lodged with Council on 23 February 2011, presumably when the existing dwelling was under construction. The dwelling has since been completed, although there appears to be some landscaping and fencing works still being constructed on the land.
2. It was common ground that a planning permit was not required to construct the existing dwelling as the subject site is greater than 500 square metres in area.[2]
3. The Tribunal considered a similar case in Gakis v Monash CC.[3] In that matter the Tribunal found:

This is an unusual application in that it is a dual occupancy, however the large two storey front dwelling has been erected "as of right" as a single dwelling and the Responsible Authority submit [sic] that if considered as a true dual occupancy the front dwelling would not comply with the neighbourhood character and for a number of reasons would not have been permitted.

It is acknowledged that the proposed rear single storey dwelling generally complies with the requirements of the Good Design Guide, however this is a question of neighbourhood character and streetscape that is of importance and carries substantial weight in the consideration of applications such as this.

The Tribunal intends disallowing the request and does not see any future for a dual occupancy on this land because of the existing dwelling.

1. In Stucley v Bayside CC[4] [2000] VCAT 1710 (31 August 2000), the Tribunal took a different view:

I have already drawn attention to the fact that a prime motivation of the respondents in this application for review was their concern over the siting, scale and design of the already constructed dwelling to the rear of this site. They were concerned about the seeming "loophole" which exists whereby the provision at Clause 32.01-4, requiring a permit to construct two or more dwellings on a lot, can be circumvented by obtaining building approval for a single dwelling when clearly the intended outcome is not for a single dwelling but for two dwellings on the lot.

This is not the first instance where this so called "loophole" has been taken advantage of. Indeed the Tribunal has on many occasions had to contend with the issue and, except where the merits of the second dwelling do not support the grant of a permit, the Tribunal has found that this is a matter which should be addressed through amendment of the planning scheme or the Act.

1. In Alsocan Architects v Yarra CC[5] the Tribunal adopted the approach of Stucley and limited the Tribunal's discretion to:

the 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.

1. In Munjal v Casey CC[6], the Tribunal (constituted by Member Davies) referred a question of law to Senior Member Byard. This matter involved consideration as to whether a recently constructed carport should be deleted. The question, as redrafted by Member Byard was:

"Whether it would be an error of law to take the existing front garage carport into consideration in assessing the application for a permit for a second dwelling on the site?"

1. The short answer of Mr Byard was "no". In his reasons, Member Byard stated:

Because there is no planning control over the construction of a detached house on a substantial allotment, it is possible, from a planning point of view, to proceed with a construction of a house that has detrimental effects on the amenity of the area. With no planning permit required it is possible to build a house that is massive bulky, dominant in the streetscape, out of harmony with the neighbourhood character, and such that it unreasonably overlooks or overshadows neighbouring properties. It is possible to construct front fences that are high, heavy and out of keeping with the neighbourhood character and to construct a garage or car port in a front garden.

Where planning permission is required there is control over these things. Where two dwellings are proposed, or a second dwelling behind an existing one, planning permissions must be applied for. It is likely to be refused, or there are likely to be requirements for modifications, if the proposal includes adverse features of the sort I have just described, in spite of the fact that the owner might be able to impose them on the situation if the proposal was for a detached house or an extension to a detached house rather than say, two dwellings.

...As long as the owner is content with the existing single detached dwelling on the land, there is not much the responsible authority or the neighbours or anyone else can do about it, even if they consider the carport to be a blight in terms of planning merits. However, the situation changes once there is an application for a planning permit for a second dwelling. When such a proposal is assessed, the assessment must be made in relation to the whole of the allotment, and not just part of it or the rear part or the part where the second dwelling is proposed. The proposal involves the whole of the allotment including the existing house and what is one the land, as well as the proposed new buildings or works. In my opinion, this can give rise to a refusal, or requirement for modifications including the deletion of a front garden carport.

1. I find that the existing dwelling was sited towards the frontage of the site in order to allow the construction of a second dwelling at the rear. This is reflected in the large unused portion of the land at the rear of the site, and the fencing of the property which clearly anticipates the construction of a second dwelling at the rear of the site.
2. The existing dwelling exhibits many of the design flaws highlighted by Member Byard. It is large, bulky and overly dominant in the streetscape. In addition, its design has had no regard to the existing character of the area or Council's neighbourhood character policy.[7] I agree with Council that it is unlikely that the design of the existing dwelling would have received planning permission.
3. I now need to consider the proposal to construct a second dwelling at the rear of this dwelling. I have followed the approach of the Tribunal in Munjal, and considered the site as a whole.

Does the proposal represent an overdevelopment of the site?

1. Ms Moser submitted that there were a number of indications that the proposal was an overdevelopment on the site. In particular she raised concerns about:
   • The provision of private open space for the existing and proposed dwelling
   • The impact on the amenity of adjoining properties
   • The access arrangements
2. I will consider each of these elements in turn.

1. The private open space provisions for the dwellings is as follows:
   • Dwelling 1 - 94 square metres within the front setback and 28 square metres provided at the side
   • Dwelling 2 - 70.3 square metres at the rear.
2. The schedule to the Residential 1 Zone requires private open space to comply with the following:

An area of 75 square metres, with one part of the private open space at the side or the rear of the dwelling or residential building with a minimum area of 35 square metres, a minimum width of 5 metres and convenient access from a living room.

1. The private open space for dwelling two complies with this requirement. The side area of private open space of 28 square metres is smaller in width than five metres and therefore does not comply with the standard. I therefore need to consider whether the private open space provision meets the objective of the standard[8] which is:

To provide adequate private open space for the reasonable recreation and service needs of residents.

1. I find that the smaller area of private open space would not receive an acceptable amount of solar access, due to the presence of the high wall currently under construction along the northern boundary and the fact that a significant area of the first floor of dwelling one cantilevers over the space.
2. As such I do not consider that this area would meet the reasonable recreational needs of the residents. This leaves the large area of private open space within the front setback. During my site inspection I observed that this has been fenced from view from the driveway and the road, and has been landscaped. This area, due to its size will achieve the required solar access. Whilst not ideally located, I find that this area would meet the reasonable recreational needs of the occupant of dwelling one. I have therefore not refused this application because of the provision of private open space.

1. The existing dwelling is large and imposing, and exhibits a significant amount of visual bulk when viewed from the street and from the adjoining properties. I agree with Council that the proposed second dwelling, which is similar in form to the existing dwelling, will further exacerbate this effect. I consider that the proposed design would have an unreasonable impact on the adjoining properties, particularly the adjoining dwelling to the south through visual bulk.
2. The development incorporates a large amount of boundary walls, and the first floor element in setback only two metres from the boundary. The plans indicated that these walls would result in overshadowing of the adjoining property to the south. It appears that the level of shadow cast is consistent with the standard.
3. The development proposes to construct two boundary walls opposite the existing north facing habitable room windows of the adjoining dwelling to the south. The walls have not been set back a sufficient distance to comply with the standards of the scheme,[9] and I am concerned that the proposed development will result in an unreasonable loss of northern light to these windows.
4. I therefore find that the proposed development would result in an unreasonable impact on the amenity of adjoining properties through visiual bulk and loss of daylight.

1. Notice of the application was given to VicRoads under Section 52 of the Planning and Environment Act 1987. The road authority objected to the application for the following reason:

The proposed fencing poses an unacceptable road safety risk because it will obstruct a driver's line of sight when exiting the property. The site is located close to a bus stop where pedestrian activity is also expected to be high.

1. The plans show a two metre high brick fence, as 2.2 metre high fence along the northern side of dwelling one. A 1.8 metre high paling fence is proposed along the northern boundary of the site.
2. What is shown on the plans differs from what has been constructed on the site. The front fence is a high timber fence, and a northern wall is under construction along the rear part of dwelling one.
3. In either case, I agree with Council that the tall fences will limit sightlines when exiting the property. This is of particular concern as vehicles will exit the site onto Springvale Road, a major arterial within the road network.
4. Whilst this could have been addressed via a permit condition, if I was of a mind to grant a permit, it is a further indication of the designs failure to respond appropriately to its context.

1. The design of the proposed development exhibits many of the design flaws symptomatic of an overdevelopment of the site, particularly given its unreasonable impact on the amenity of the adjoining properties.

1. The development of this site for medium density housing is supported by state and local planning policy. Unfortunately because the owner has decided to 'jump the gun' this has resulted in the construction of a large dwelling which has significantly constrained the site.
2. Whist the construction of a second dwelling may still be possible on this site; the design of the dwelling must be more modest in scale than the current proposal. The design needs to ensure that it does not significantly affect the amenity of the adjoining property through visual bulk, overshadowing and loss of daylight.
3. I find that the proposed design before me is an overdevelopment of the site. The decision of the responsible authority will be affirmed.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Gakis v Monash CC [2000] VCAT 1450 (30 June 2000)

[4] Stucley v Bayside CC [2000] VCAT 1710 (31 August 2000)

[5] Alsocan Architects v Yarra CC [2004] VCAT 1890 (4 October 2004)

[6] Munjal v Casey CC [2010] VCAT 1026 (17 June 2010)