With respect to the appeal by the Applicant under s.149(1)(a) of the Planning and Environment Act 1987 against Council's refusal (pursuant to the existing 173 Agreement dated 20 November 2004) to allow the Applicant to build outside the envelope specified for the land at 23 Middle Road, Camberwell, this appeal is refused and Council's decision is upheld.

1 This matter involves the land at 23 Middle Road Camberwell ("subject land") and the Applicant's request that the Tribunal review Council's decision:

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to refuse the Applicant's request to build outside a building envelope specified for the subject land by the requisite 173 Agreement (this application is made under Section 149(1)(a) of the Planning and Environment Act 1987 ("Act")); and

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to remove the subject land from the scope of the 173 Agreement (this application is made under Section 184 of the Act).

2 Having heard the submissions of the parties and having inspected the site and locality, I have refused both applications. I consider the Section 184 application to be unreasonable in seeking to remove the subject land from the scope of the Section 173 Agreement when the lot to the rear of the subject land (ie 7 Grace Street) will remain bound by the Section 173. In relation to the Section 149(1)(a) application, I see the lack of any proper building plans as making this application procedurally flawed, plus in any case I regard the proposed new building envelope plan as excessive and lacking merit.

3 The nature of the two appeals here has been set out in my "Summary" section above.

4 The hearing of this matter took place on 27 February 2006. I then conducted a site inspection after the hearing. This included not only inspecting the front of the subject land but also walking along the relevant sections of both Middle Road and Grace Street (Grace Street runs parallel with Middle Road, further to the north).

5 It was common ground at the hearing that the subject land used to incorporate what is now a separate adjoining title at 7 Grace Street further to the north (ie. there used to be one deep lot running from Middle Road through to Grace Street). However, what was formerly the back yard of the larger lot has been subdivided and sold off.

6 As part of this subdivision process, there was a s.173 Agreement dated 20 November 2004 ("173"), which continues to apply to both lots which form part of the original parent title.

7 It was common ground at the hearing that as both lots are over 500 square metres without any overlay controls and given the Residential 1 zoning for the subject land, there is no "permit trigger" in the planning system for a new dwelling on either of the lots. The 173 is the only planning control applying to both lots.

8 Without any need to go into all the details, both the front lot (ie. 23 Middle Street) and the new separate rear lot facing Grace Street (7 Grace Street) have both been on-sold by the person who owned the parent title.

9 Bearing in mind that the new owners of both lots are still subject to the 173 Agreement, the key clauses of the 173 Agreement are as follows:

the Owner must not build, construct or erect or cause or permit to be built, constructed or erected any Building on the Subject Land outside the Building Envelope, without the written consent of Council;

each lot must have at least two car parking spaces;

any vehicular crossover to the Subject Land must be constructed in a location approved by Council and to the satisfaction of Council; and

3.4 Restriction on number of dwellings on a lot

the Owner must not build, construct or erect or cause or permit to be built, constructed or erected on any lot more than one dwelling and associated outbuildings.

10 In relation to 7 Grace Street, it was common ground at the hearing that the new owner of that lot has recently successfully applied to Council for permission pursuant to Clause 3.1 of the 173 to build outside of the nominated building envelope for that rear lot. However, I was told that even the revised design of the upper level of the new house on the rear lot still constitutes only 50% of the ground level footprint of that new dwelling.

11 As part of my inspection of the locality, I inspected the new building on the rear lot, which is now substantially completed. In simple terms, the nature of the recessing of the upper level of this new rear building takes the form of a relatively "long but skinny" upper level, running from the front to the rear of the new dwelling. There is also some degree of extra front recessing of the upper level compared to the front of the ground level of this dwelling.

12 Returning to the subject land, the new owner of the subject land wishes to demolish the existing dwelling on the subject land and build a new two storey dwelling. As alluded to, if one sets aside the requirements of the 173, the new owner of the subject land would otherwise only require a building permit for the proposed new dwelling.

13 However, whether the new owner likes it not, the reality is that the 173 continues to apply to the subject land, and in particular clauses 3.1 to 3.4 continue to impose significant restrictions on the development of the subject land. I note here that the 173 includes as part of its attachments diagrams showing the relevant building envelopes (ie. relevant to clause 3.1) for the front and the rear lots. In relation to the front lot (ie. the subject land), essentially this building envelope restricts any upper level of any new dwelling. The restriction is that the front wall of the upper level must be set further back from Middle Road relative to the front of the lower level, plus the western wall of the upper level must be significantly inset compared to the western wall of the ground level. However, the building envelope allows the upper level extension to continue as far towards the northern boundary of the front lot as is the case with the ground level of any new building.

14 Looking at the combined proposal put forward in this appeal, essentially:

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the Applicant's starting point is that at the least it seeks consent to be able to build a new building as per a revised building envelope plan put forward by Mr Radisich; and

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in addition, the Applicant also wishes the 173 Agreement to be varied so as to no longer apply to the subject land (relying on the ability for this to occur under s.184 of the Planning and Environment Act 1987).

15 I was provided with a copy of the proposed revised building envelope plan during the hearing, noting that this revised building envelope plan form part of the formal application documentation. By contrast, it was common ground that the formal application documents did not include any ordinary building plans (although some simple proposed building plans were informally shown to Mr. Montebello just before the hearing, and they were tabled during the hearing itself).

16 It was not clear at the hearing whether these informal building plans have been independently prepared in relation to the subject land, or whether the floor plan shown on these plans actually relates to a separate dwelling which the owner of the subject land apparently wishes to replicate (I was provided with a photograph of this preferred type of dwelling during the hearing). I note that this photograph of the owner's preferred type of dwelling shows a two storey building which might loosely be called a neo-Georgian type of façade. This façade goes straight up two storeys but with significant neo-Georgian style decoration and with what might be called a mini portico on the front.

Basis of Decision - Application to Delete Subject Land from Scope of 173 Agreement

17 The key statutory provisions here are s.184(3) and (4) of the Planning and Environment Act 1987, which I have set out below:

(3) The purchaser of the land who is a party to an agreement, or an owner of land, may apply to the Tribunal for an amendment to the agreement to remove the land from the application of the agreement if the parties to the agreement cannot agree that the agreement should be amended.

(4) The Tribunal may approve the amendment if -

(a)

it considers that the land owner is not subject to any further liability under the agreement; or

(b)

having regard to any relevant permit, or requirements under the Subdivision Act 1988, it considers it inappropriate that the agreement should continue to apply to the land and the owner.

18 It was common ground at the hearing that it was conceded by Mr Radisich that s.184(4)(a) is irrelevant here. In other words, it was conceded by Mr Radisich (quite properly) that when considers the requirements of clauses 3.1 to 3.4 of the 173, which continues to apply to both the front and rear lots here, it cannot be viably argued that there are no ongoing liabilities under the 173.

19 The question then becomes, focussing on s.184(4)(b), whether I consider it appropriate that the 173 should continue to apply to the front lot, "...having regard to any relevant permit, or requirements under the Subdivision Act 1988". I note here that Mr Montebello urged me to take a narrow view of what matters I can have regard to under s.184(4)(b). In other words, he put to me (relying on paragraph 58 of the decision Solid Investments Australia Pty Ltd v. Greater Geelong CC [2004] VCAT 2356) that I can only consider in my discretion here "any other permit" or otherwise the requirements of the Subdivision Act 1998. Following this analysis, Mr Montebello put to me that there is no other "relevant permit" here and there is otherwise no factor or reason under the Subdivision Act 1988 which points to it being appropriate to release the subject land from the 173. He also, more in passing, emphasised that the 173 involves both lots having a "burden" and "benefit" and he argued that to release the subject land from the burden of the 173 while the rear lot continues to carry this burden would be manifestly unfair.

20 In response, Mr Radisich argued that s.184(4)(b) should be read broadly, and in fact the factors of "any relevant permit" plus the Subdivision Act 1988 are merely two considerations which form part of the broader range of matters which I could in my discretion consider. Following this line of thinking, Mr Radisich put to me that in all the circumstances it would be fair and reasonable for the 173 to no longer apply to the front lot.

21 In terms of the practical considerations relied upon by Mr Radisich, he put to me that the 173 was created some time ago, there is no sound or sensible planning policy basis for the 173, and therefore it would be a fair planning outcome for the 173 to no longer apply to the front lot. In addition, he emphasised that his client (as the new owner of the subject land) wishes to have a reasonable level of freedom to re-develop the front lot, and it would be a fairer and better outcome for his client for the 173 to no longer apply to the subject land as part of this process.

22 Having considered the relevant statutory provisions and submissions of both parties, my finding is that I reject the application by Mr Radisich to remove the subject land from the scope of the 173. Whether I adopt Mr Montebello's narrower approach (which would appear to be the more correct legal interpretation) or whether I follow Mr Radisich's broader preferred operation of s.184(4)(b), either way I see no basis on which I can come to the conclusion that it would be "appropriate" to remove the subject land from the operation of the 173. Rather I consider that:

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there is no "relevant permit" or other fact under the Subdivision Act 1998 which points to it being fair and reasonable to remove the subject land from the 173; and

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even if one takes a broader view and looks at the general circumstances of the two lots which are both affected by the 173, I agree with Mr Montebello that it would be blatantly unfair for the owner of 7 Grace Street to remain bound by the 173 at the same time as the subject land is released from the scope of the 173. Common sense and fairness indicates that this is an "all or nothing situation" where either all three parties (ie. Council and the two owners) negotiate to amend or end the 173, or otherwise it needs to continue to operate with all three parties involved.

Basis of Decision - Should Consent be Given to Allow Building Outside of Existing Building Envelope?

23 On the "building outside the existing building envelope" issue, Mr Montebello made various submissions, but at first instance made the point that the nature of the consent which can be given under cl.3.1 of the 173 is:

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a consent to allow building outside the existing building envelope;

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not the ability under cl.3.1 to allow the substitution of a brand new building envelope.

24 Accordingly, Mr Montebello put to me that the process put forward by the Applicant here in relying on a proposed new form of building envelope without any ordinary building plans is a flawed process. While noting that some simple building plans had been informally provided just before the hearing, Mr Montebello did not see this as "plugging the gap" in terms of the problem here.

25 However, beyond that, Mr Montebello put to me that even if the alternative building envelope put forward by Mr Radisich is considered on its merits, there is no reasonable basis upon which that revised building envelope could be approved. In this regard, Mr Montebello put to me that the revised building envelope is overly crude and does no more than reflect the maximum de facto building envelope allowed by the ordinary ResCode controls (which to some extent would continue to operate through the building permit process anyway). Following Mr Montebello's submission, the alternative building envelope proposed is excessive and would allow an overly bulky building to be built, bearing in mind that if approval is given under cl.3.1 of the 173, there is no other planning consent needed to complete the development.

26 Mr Montebello particularly criticised what he saw as being a potentially overbearing front façade of the building. He also noted that while there had been no objection from the two side neighbours facing on to Middle Road, the owner of the rear lot has objected (a copy of her letter of objection was provided to me). In particular, the rear owner has expressed unhappiness that while she has kept her upper level of her new building to a maximum of 50% of the ground level footprint, the proposed new building envelope for the subject land allows the upper level to be more like two-thirds of the lower level. The rear owner also criticised what she sees as being an inadequate rear setback arising from the proposed new building envelope, and she also queried the lack of any information about any upper level rear windows facing towards her lot.

27 In response, Mr Radisich produced photographs of the locality and put to me that the form of new development allowed by the proposed new building envelope would be fair and reasonable and a good planning outcome in all the circumstances. Mr Radisich relied on what he considered to be a very mixed built form in the area, which he argued provides suitable flexibility to allow the type of new building envelope allowed. He relied on the absence of any objection from the side neighbours, and he submitted that any ongoing objections from the rear neighbour lack merit and should be given little weight.

28 In terms of the issue about the failure of the formal application documents to include any building plans, he encouraged me to give minimal weight to this issue, or alternatively to have regard to the building plans which he informally provided to me at the hearing. Similarly, he put to me that these building plans would constitute a fair and reasonable development. Mr Radisich also provided me with a photograph of his client's preferred form of development, being a neo-Georgian type of dwelling as I have indicated above.

29 In terms of the planning policy situation, Mr Radisich was very critical of Council's reliance upon its "Residential Design Policy", which was adopted on 1 December 2003 but which continues to not form any part of the Planning Scheme. That is, Mr Radisich put to me that Council has mischievously and improperly continued to use this 2003 policy as an "under the counter" policy document, in a way which has been criticised by other members of the Tribunal. Mr Radisich provided me with cases bearing this out - see for example Jenkins v. Boroondara CC [2005] VCAT 1657.

30 Mr Radisich put to me that Council is obsessed with seeking to restrict the upper level of any new development on the subject land to 50%, pursuant to this "under the counter" policy, and urged me to disregard the requirement in this 2003 document that any upper level extension should not exceed 50% of the ground floor area. He also invited me to expressly reprimand Council for using the "under the counter" policy.

31 Having conducted a view of the subject land and locality, and considered all the submissions and applicable planning documents and cases, my findings are as follows.

32 Firstly, I accept that the existing upper level building envelope set out in the 173 has a peculiar shape and (in principle) I consider it fair and reasonable to allow some form of appropriate reconfiguration of the existing upper level building envelope. To the extent that Mr Radisich put to me that it would be unfair for his client to be forced to strictly stay within the existing building envelope, I accept this submission (although to be fair, Mr Montebello did not put to me that there should be no amendment at all of the existing building envelope).

33 Secondly, I accept Mr Montebello's initial proposition that the nature of the consent allowed by cl.3.1 of the 173 Agreement is an ability for Council to consent to a building which goes beyond the existing building envelope, rather than cl.3.1 allowing the owner to substitute a new building envelope. Following this approach, I consider that the application is fatally flawed due to the emphasis on a brand new building envelope, as opposed to putting forward ordinary plans which show a particular form of new building going beyond the existing building envelope. By way of contrast, I understand that the new dwelling on the rear lot was approved by Council on the strength of ordinary building plans provided by the rear owner, which gave a much more detailed indication of the form of the new dwelling and to what extent it exceeded the existing building envelope.

34 My concern here is that the proposed new building envelope put forward by Mr Radisich is quite crude, in not giving Council or myself any detailed or prescriptive indication of the nature of the proposed new form of dwelling. In particular, the proposed new building envelope does not show the nature and location of any upper level windows, whether they will be clear or screened glass etc. Particularly where the proposal is for a double storey rather than single storey new dwelling, I consider it essential in these type of circumstances that proper information be given as to the nature of the upper level built form, the upper level window treatment etc.

35 Thirdly, even if I was to put to one side my concerns about the lack of proper building plans, I am not satisfied that the extent of new built form allowed under Mr Radisich proposal alternative building envelope is acceptable. In particular, I agree with Mr Montebello that the proposed new building envelope is overly crude, allows an excessive amount of development and seems to do little more than reflect what would otherwise be the permissible scope of development under the basis ResCode controls.

36 Noting that the proposed alternative building envelope allows an upper level footprint that would constitute approximately two-thirds of the lower level footprint, I accept Mr Montebello's submission that this is an excessive situation. It seems to me there needs to be sensible common ground where there is less upper level built form than the Applicant might ideally wish to build, but where there is equally a sensible consideration of a smaller upper level footprint without slavishly following Council's preferred position of using the "50% rule".

37 In this regard, my impression when I inspected the new building on the rear lot was that the contemporary style of the building and the type of upper level footprint used in that building is appropriate and sits well in the street.

38 Given the finding which I have made above, it is not strictly necessary for me to make any formal findings regarding "where the Applicant should go from here" in terms of making any fresh application for revised form of building on the subject land. However, given Mr Radisich's expressed invitation for me to offer at least some informal guidance in this regard, I offer the following comments in this spirit (whilst still noting that the question of any revised plans are ultimately an issue now for another day):

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my impression from inspecting the locality is that the predominant building style is either period dwellings or relatively simple or contemporary style of recent infill dwellings. With all due respect, I regard the proposed neo-Georgian style of new dwelling which the owner apparently prefers as being likely to clash or jarr with this existing predominant built form character. In other words, frankly I consider it likely that a neo-Georgian dwelling in this part of Middle Street would be "an orphan building" and visually would be a spectacularly bad planning outcome;

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I see the much better way forward as being that the Applicant chooses a building style which is sympathetic to the existing predominant streetscape character both in style, and in terms of the type of upper level extension proposed. In this regard, walking around the local streets, there seems to be a fairly consistent pattern of upper level extensions where the front section of the upper level is set further back from the street. In terms of how the upper level is spread compared to the lower level, the pattern seems to be that the upper level is either "long and skinny" front to back (but still with some degree of additional upper level front setback compared to the front of the ground level) as per the new building at 7 Grace Street, or otherwise the upper level has a more "squarish" appearance with significant setbacks relative to the lower level on all four sides. If the Applicant puts forward a fresh proposed building plan, it would appear to make good sense for any proposed new upper level to as far as practicable follow this existing pattern of the type of other upper levels in the locality. As I have indicated, I see the former upper level proposed in the revised building envelope (ie. with a neo-Georgian style of building) as being totally unsympathetic to this existing streetscape character; and

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while I agree with Mr Radisich that Council should not just blindly apply its "50% rule" in terms of the extent of the upper level of a new building relative to the lower level, from my inspection of the local streetscape character, I consider that the predominant character of the locality is of fairly restrained upper level extensions. This indicates to me that a "50% upper level" is at least a good starting point. While I appreciate that a good quality design involving an upper level marginally bigger than 50% of the lower level might present some legitimate arguments to avoid the "50% position" being "set in stone", equally I would expect that (even with a good quality proposed design) it would be difficult to justify exceeding the "50% position" by more than a few percent.

39 In conclusion, for the reasons set out above, I have rejected both of the Applications before me. However, in the spirit of trying to assist the Applicant in potentially pushing forward with a revised application, I have sought to provide some guidance regarding what might be a more palatable form of new building, with particular reference to how a new upper level section of a new building might be laid out. I note that if the Applicant is reluctant to take up my suggestions, it is still open to the Applicant to work within the parameters of the existing building envelope in the 173.