With respect to permit application no. 395/2006, the Responsible authority's decision is varied.

A permit is granted for the construction of a 2 storey dwelling generally in accordance with the endorsed plans at Part 33 Pleasant Street Newtown [Certificate of Title Vol. 9947 Fol 522].

The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued on 19 April 2007, except that condition 1 is varied to read as follows:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority 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 drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
   • (a) The setback to the east boundary for part of the ground and part of the first floor levels to be increased from 1.7 metres to 2.2 metres as shown on the plans identified as sheets 1 of 3, 2 of 3 and 3 of 3 with revisions dated 1 April 2007.
   • (b) The ground floor level of the dwelling lowered from FL 99.4 [front part] and RL 99.91 [rear part] so that it has a consistent level of RL 98.6 as shown on the plans identified as sheets 1 of 3, 2 of 3 and 3 of 3 with revisions dated 1 April 2007.
   • (c) The first floor of the dwelling setback to align with the ground floor [3 metres from the front boundary].
   • (d) Deletion of the rear deck.
   • (e) Provision of obscure glazing to a height of 1.7m within bedroom 1.

The responsible authority is directed to issue a permit in accordance with this order.

1. On 10 April 2006, Pivot Homes lodged an application for planning permit on behalf of Mr and Mrs Warsink with the Greater Geelong City Council. The application sought permission for the construction of a 2 storey dwelling at the rear of land known as 33 Pleasant Street Newtown. The council required notice of the application to be given and in response received 2 objections, one of which was from Mr Bowden, the owner and occupier of the adjoining residential property to the east. After an initial meeting before the council's Development Hearings Panel, Mr and Mrs Warsink proposed changes to the plans which involved a reduction in the height of the building and an increased setback to Mr Bowden's property. The panel decided to approve the amended proposal.
2. Mr Bowden has appealed against the council's decision. He is asking that I set aside the council's decision and direct that no permit be granted.

1. The key issues are:
   • Is the degree of overshadowing onto Mr Bowden's property acceptable?
   • Is the building bulk presented to Mr Bowden's property acceptable?

1. The property known as 33 Pleasant Street is located on the east side of street, about site 19 metres south of Mercer Parade and comprises 2 adjoining lots. An unmade road extends along the entire length of the property's southern boundary. The larger of the 2 lots, located on the corner of Pleasant Street and the unmade road, has an area of about 429 square metres and is occupied by a dwelling. The smaller of the 2 lots fronts the unmade road and essentially comprises a substantial part of the backyard for the dwelling on the larger lot. This smaller of the 2 lots is the "site" for the purposes of the application for review.
2. The site has a frontage of 10.06 metres, a depth of 18.29 metres and an overall area of about 184 square metres. It contains a small shed and some trees that essentially run adjacent to the east side boundary. The site is set on sloping terrain with the land in the area generally falling from north to south. The lot that comprises the site is not newly created; rather, it has existed for many years.
3. Mr Bowden's property fronts onto the south side of Mercer Parade, and extends through to have its rear boundary abutting the north side of the unmade road off Pleasant Street. Mr Bowden's property is also set on sloping terrain, falling from the frontage down to the rear. To the rear of the dwelling exists a swimming pool and a flat roofed carport on which solar panels to heat the pool are located. The carport is located to the south of the pool, and is accessed from the unmade road.
4. The site has its east side boundary in common with the southern half of Mr Bowden's property. A high metal fence that reaches a height of about 2.5 metres exists on the common boundary between the site and Mr Bowden's pool area.

1. The proposal, as amended, involves the construction of a new double storey dwelling on the site. The proposed dwelling would have a total floor area of about 132 square metres plus double garage. The dwelling would provide for a bedroom, laundry and main entry area at ground level, with a second bedroom and open plan kitchen and living areas at first floor level.
2. Part of the ground floor level of the proposed dwelling is to be constructed to the common boundary with Mr Bowden's property, with the first floor setback varying from 1.7 to 2.2 metres.
3. The ground floor level of the dwelling was initially designed to step up the site, with the front half set at level of RL 99.41 with the floor level of the rear half rising by about 500mm to RL 99.91. The proposal has been amended to incorporate more excavation to facilitate the ground level being set at a consistent level of RL 98.6. Effectively, the height of the building has been reduced by between 600mm [front or southern half] to 1 metre [rear or northern half].

1. Under the planning scheme, the site and surrounding properties are located within the Residential 1 zone, the provisions for which are found at clause 32.01. "Dwelling" is an as of right or no permit required use in the zone. A permit is, however, required under clause 32.01-3 for the construction of a dwelling on a lot less than 300 square metres. An application for a dwelling must be considered against the requirements of clause 54.
2. The site is also affected by a Design and Development Overlay - Schedule 14 [DDO 14]; however the provisions of this control do not come into play given that the proposed dwelling does not reach the permit "trigger" height of 7.5 metres set out in the schedule.
3. General decision guidelines are at clause 65. Amongst other things they require consideration to be given to planning policy, the purpose of the zone and overlay, orderly planning and amenity.

1. Mr Bowden has 3 basic concerns about the proposal. Two of these relate to overshadowing impacts, the other relates to visual bulk.
2. While these are the discreet issues of concern to Mr Bowden, it relevant that I first put this proposal into some context. The site is located within part of Geelong's established urban residential area. The proposal involves the use and construction of a dwelling on the site. There can be no argument that in principle, the use and development proposed is directly in line with the purpose of the zone. Further, the use and development of the site, which is and has been for some time, a separate lot in its own right, for housing accords with the thrust of planning policy that calls for the consolidation of existing urban areas. Even though the site comprises a small lot, there must be a reasonable expectation that it can be developed for a dwelling.
3. With respect to overshadowing, Mr Bowden's first concern relates to the impact on his swimming pool. Mr Bowden said that the swimming pool is already subject to some shadows; however, he is concerned that the proposed building would increase the extent of shadow and reduce the usability of the pool.
4. The swimming pool is part of the private open space on Mr Bowden's property. Clause 54.04-5 deals with overshadowing of open space. The objective to be achieved is:

To ensure buildings do not unreasonably overshadow existing secluded private open space.

1. Standard A14 provides a quantifiable basis on which to assess whether the objective has been achieved. In particular, the standard states:

Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September.

1. In considering this issue, it is relevant that neither the objective or the standard adopt a position that there can not be any additional shadows cast on the open space of an adjoining property. The objective makes it clear that it is unreasonable overshadowing to be avoided while the standard sets out measurable requirements.
2. I was presented with 2 sets of shadow diagrams, one prepared on behalf of Mr and Mrs Warsink, the other for Mr Bowden. From these diagrams and my own calculations, I am able to conclude that before midday, the proposed dwelling would have no shadow impacts on Mr Bowden's property, that at 1.00 pm the shadow cast by the dwelling would not extend to the pool area, by 2.00pm there would be marginal increase in shadow over the pool; with the additional shadow at 3.00 pm measuring about 5 square metres. From this, I am able to conclude that compliance with Standard A14 is not borderline; rather, compliance is easily achieved.
3. It is relevant that during the mid spring, through summer and up to the first half of autumn, the shadow impacts will be less. This is important as this is the period when the pool is likely to be used most frequently. Further, while shadows during the other half of the year would be longer, it is more likely that there would be many more overcast days, and Mr Bowden's dwelling, which is directly north of the pool, would cast substantial shadows over it for most of the day.
4. While I accept that there will be some additional shadowing of the pool, my conclusion is that the extent is minimal and not sufficient to warrant rejection of the proposal.
5. The second aspect of the overshadowing issue relates to the impact on the solar panels on the carport roof that are part of the pool's heating system. It is clear that the proposed dwelling will cast shadows over these panels. Based on the shadow diagrams presented, at about 3.00pm, the proposed dwelling would cast shadows over about 25 per cent of the panel area on the carport[2]. There would be no shadow before midday with shadows at 1.00pm and 2.00pm being less than at 3.00pm. All of this does not take into account the shadow impact of existing vegetation near the boundary, some of which I observed to be reasonably dense even though in mid winter.
6. On reviewing clause 54, it seems to me that there are no specific provisions that deal with this type of issue. Unlike the pool, the panels are located on the roof of the carport and do not form part of the open space. The provisions of clause 54.04-5 and Standard A14 do not apply. Accordingly, the consideration of this issue relies on a judgement being made as to whether the extent of the impact is reasonable in the circumstances.
7. In doing so, the first point to be made is that the proposal seeks to facilitate the development of the site in a way that is supported by policy and the purpose of the zone. Second, in this case, a DDO that regulates building height applies to the area within which the site lies. The proposed dwelling meets that height and no permit is required under the DDO. The dwelling has been positioned so that it complies with the setback requirements at clause 54.04-1. Further, Mr and Mrs Warsink have been prepared to lower the overall height of the dwelling by up to 1 metre by excavating further into the slope of the land. Third, there is no control over the planting of trees in this area. Additional trees could be planted near the boundary that could have shadow impacts.
8. In this case, the solar panels have been installed in a convenient place; that is, on the carport roof. However, the carport is located in a position that is vulnerable or susceptible to the impacts of development on neighbouring land. While efforts to embrace and effectively utilise alternative and environmentally friendly energy sources deserve strong support, it is also important that the infrastructure be installed in a way that does not unreasonably prejudice the use and development of nearby land in a way that is supported by policy and the purpose of the zone.
9. In this case, the solar panels are positioned near the common boundary of a small vacant lot. The decision to place these panels adjacent to the side boundary makes them vulnerable to the impacts of development of adjoining land. In the circumstances, I do not consider it reasonable to reject the proposal on the ground that the solar panels are overshadowed because of where they are positioned and that they been placed on a relatively low structure. I would have a different view if the panels were located more centrally and elevated on Mr Bowden's property.
10. Accordingly, the conclusion I have reached is that the shadow impacts associated with the proposal are not unreasonable.
11. This leads me to the final issue relating to the visual bulk associated with the proposal.
12. The first thing to be noted is that the site is located in an area where single and double storey buildings exist. In Mr Bowden's case, the front part of his dwelling is single storey; however, it is double storey at the rear and it seems clear that this is a response to the sloping terrain in the area.
13. Second, there are various requirements in clause 54 which give guidance as to whether a proposal is an overdevelopment and presents excessive bulk. In this case, it is relevant to note that:
    • The building height requirement in Standard A4 is easily met
    • The building site coverage is 55 per cent, which is below the 60 per cent requirement allowed under Standard A5.
    • Side setback requirements at Standard A10 are met.
    • The extent of walls on boundary meets the requirements of Standard A11.
14. Compliance with these requirements does not in itself mean that the extent and form of development is acceptable. However, the proposed dwelling is relatively modest in size. That compliance has been achieved with these and other requirements on a small site does not indicate overdevelopment.
15. Third, I am also mindful that the permit applicants have been willing to amend their proposal, by lowering its height and increasing the setback to Mr Bowden's property.
16. I appreciate that the outlook from Mr Bowden's property will change, not just because of this proposal, but also that allowed on another adjoining site. However, given the preceding discussion, I have come to the conclusion that the visual bulk is not unacceptable.

1. My conclusion is that a permit should be issued. I note that it was the council's intention to grant approval based on the amended proposal; however this is not reflected in the conditions of the Notice of Decision.
2. Accordingly I will vary the conditions to the extent necessary to put into place the changes to the floor levels and setbacks as shown on the amended plans submitted to the council on 1 April 2007.

[1] I amended the permit application to make Mr and Mrs Warsink the permit applicants

[2] This takes into account that the panels are not located right up to the boundary but are setback about 800mm as submitted by Mr Warsink.