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[2005] VCAT 1775
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2005-08-29
Mr P
Original judgment source is linked above.
Application under section 77 of the Planning and Environment Act 1987; Bayside Planning Scheme; Residential 1 Zone; New Double Storey Dwelling at Rear of Existing Double Storey Dwelling; Repeat Appeal; Contention That Consideration Limited to Extent of New Development; Neighbourhood Character; Impact Upon Amenity of Neighbouring Property; Weight of Planning Evidence; Inappropriate Design Response.
With respect to permit application 5.2004.869.1, the Responsible Authority's decision to refuse to grant a permit is affirmed.
The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.
Ms Brezzi called Ms F Munn, town planner, of Collie Planning to provide expert evidence.
Ms A Lane, solicitor, of Maddocks appeared on 28 June 2005
Mr B McIlrath, solicitor, of Maddocks appeared on 28 July 2005
1 This is an application to review the failure by the Bayside City Council ('the Council') to grant a permit within the prescribed time for the development of a new two storey dwelling at the rear of an existing two storey dwelling at 66 Cole Street Brighton.
2 The permit application was received by the Council on 14 December 2004. It was publicly advertised in January 2005 and five objections were received on grounds relating to visual bulk, increased noise, loss of amenity and subversion of planning process.
3 This review application against the Council's failure to determine the permit application was lodged on 18 March 2005.
4 The Council considered the application at its meeting on 23 May 2005 and resolved that it would have refused the permit on the following grounds:
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The proposal will detract from the existing neighbourhood character of the area.
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The proposal will result in unreasonable visual bulk to adjoining properties.
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The proposal is contrary to orderly and proper planning.
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The proposal fails to adequately respond to issues identified by VCAT in the previous appeal decision in relation to 66 Cole Street.
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The proposal is contrary to the objectives and standards of clause 55 to the Bayside Planning Scheme.
5 The hearing took place over two half days on 28 June and 28 July 2005 as the initial allotment of time was insufficient. I inspected the site and Mr Johnson and Ms Buchanan's property during the period between the two hearing days.
6 Each party made written and/or oral submissions. Ms Munn gave expert town planning evidence and was made available for cross-examination. Various photographs, plans and other documentation were tabled during the course of the hearing. All of this material has been taken into consideration.
7 The site is located on the south east corner of Cole and Foote Streets in Brighton. It has a rectangular shape with a frontage to Cole Street of 18.35 metres and a frontage to Foote Street of 40.23 metres. The site has a total area of 737.01 square metres.
8 The site has a slight fall from southeast to northwest of 0.8 metre and has recently been developed with a large two storey dwelling. This dwelling has two storey rendered masonry walls and a pitched tiled roof. It is setback 7 metres from Cole Street with a swimming pool in this area that is enclosed by a solid 2 metre high masonry fence. It is also setback 1.4 metres from the eastern side boundary and about 15.9 metres from the southern rear boundary.
9 The masonry fencing continues into Foote Street for approximately 6 metres and the remaining fencing along Foote Street consists of masonry piers with iron picket infill.
10 The southern wall of the dwelling contains no windows and has timber paling fencing at either end dividing the site into two sections. The rear section of the site is vacant, devoid of vegetation with temporary cyclone wire fencing along its Foote Street frontage.
11 The area surrounding the site is an established residential neighbourhood containing detached single and double storey dwellings and mature canopy trees in both the naturestrips and private gardens. There is a mixture of architectural styles and Ms Lane submitted that the two storey dwellings frequently have the upper level forming part of the roof structure and of considerably lesser area than the ground floor below.
12 It is proposed to construct a new two storey dwelling at the rear of the existing house on the site, with frontage to Foote Street.
13 The dwelling contains living, kitchen, dining and other services at ground floor level with an attached double garage. The first floor contains two bedrooms, a study, bathroom and ensuite. Overall, the floor area is 243.4 square metres and the total open space area is about 145 square metres.
14 The dwelling is setback between 3 and 4 metres from Foote Street; between 4 and 6.2 metres from the east boundary; and between 1.7 and 5.56 metres from the existing dwelling on the site. The dwelling will be built along the south boundary at ground level for a length of 9.68 metres and the first floor will be setback 2 metres from this boundary.
15 The dwelling has a maximum wall height of 6.7 metres and an overall height of about 8.3 metres. It will feature rendered masonry walls and a pitched tiled roof that matches the appearance of the existing dwelling on the site.
16 The site and surrounding properties are contained within a Residential 1 Zone under the Bayside Planning Scheme ('the Planning Scheme'). The purpose of the zone provides for a range of densities, a variety of dwellings, and the encouragement of residential development that respects the neighbourhood character.
17 A permit is required to construct a dwelling if there is at least one dwelling existing on the lot[1]. The objectives, standards and decision guidelines of clause 55 must be considered, including the variations to the standards contained in the schedule to the Residential 1 Zone relating to street setback, building height, site coverage, side and rear setbacks, private open space and front fence height.
18 The site and surrounding properties are affected by Design and Development Overlay Schedule 2, however the proposed height of the dwelling does not trigger a permit under this overlay.
19 Ms Lane highlighted the settlement, housing and design and built form State planning policies, and Melbourne 2030, as being relevant to this proposal. She also highlighted the housing and streetscape design policies in the Municipal Strategic Statement. In particular I note that clause 21.05-3 provides for the findings of the Urban Character Study to be considered, and seeks to facilitate quality design outcomes that make a positive contribution to the character of an area.
20 This site falls within Area C of the Urban Character Study that highlights elements of value, including:
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The established pattern of larger scale dwellings sited within larger allotments with established [of] gardens which create a relationship between the built form and the street.
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The presence of significant avenues of street trees [and large].
21 The Study also comments that private landscapes contribute to the streetscape and more recent developments are characterised by less lawn, more paving and smaller garden bed areas that "offer a lower degree of 'borrowed landscape' to the streetscape".
22 The Study identifies potential threats to the identified character that include removal of large established garden plantings and garages to the front of the property.
23 Ms Lane advised Amendment C48 was exhibited in May 2005 that seeks to incorporate findings of an updated Neighbourhood Character Study dated 2004. It includes the site in Area C1, which notes the prevalence of two storey dwellings.
24 None of the parties raised any concern about the appropriateness of this site for medium density housing in the form of one new dwelling adjacent to the existing house. Ms Lane and Ms Brezzi both highlighted that the attributes of the site make it a suitable candidate for development. The concerns with this proposal focus upon the neighbourhood character and the amenity of the adjoining property at 68 Cole Street (Mr Johnson and Ms Buchanan's property).
25 There is a planning history to this site, in particular a previous determination by another division of this Tribunal relating to a proposal for two dwellings on this site. This determination was discussed by the Council, the objectors and Ms Munn. Therefore, I consider it useful to provide a summary of the background of this planning history before discussing the reasons for my decision.
26 A permit application was lodged with the Council on 12 July 2001 for the construction of two double storey dwellings on the site. An application for review of the Council's failure to grant a permit within the prescribed time was later lodged and the Tribunal determined to affirm the Council's decision to refuse to grant a permit (see Brown v Bayside CC [2002] VCAT 349).
27 The Tribunal (Senior Member Liston) described the design of this application as two substantial two storey dwellings with the main entry and double garage for each fronting Foote Street. The Tribunal's findings include the following extracts:
6. The decisive issue is the effect of the proposal, as a consequence of its visual impact, on the amenity of the rear garden of the dwelling at 68 Cole Street. The proposed dwellings are very substantial, the dwellings are connected at ground floor level and separated by 3.15 metres at first floor level. While the boundary setbacks comply with or exceed the techniques of the Good Design Guide, the Guide alerts the designer to the difficulty of appropriately designing two storey dwellings towards the rear of a lot where the dwelling can impinge on the backyard amenity of adjoining dwellings. I am of the view that there are a series of factors in this particular case which demonstrate the failure of the design to appropriately deal with this issue, they are:
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The proposed dwellings are very large, and the floor area of the dwellings at first floor level is very large;
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The floor to ceiling heights proposed and the inter floor space are quite generous, and contribute to the overall height of the building;
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The neo classical architectural style tends to emphasize rather than diminish the visual impact of the building.
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The layout of the dwelling, and the rear garden of No. 68 Cole Street is such that its western boundary is its most sensitive interface.
7. The subject land is a corner site and therefore is in many respects ideally suited for a redevelopment like that proposed. Given that it is a corner site I think it may be reasonable to expect that some form of two storey development would be possible at the rear of that site. The scale and mass of any first floor elements of a dwelling at the rear would have to be substantially less than that proposed in this case.
8. I have not formed a concluded view in relation to the question of whether or not the proposal is respectful of the neighbourhood character of this locality. However, there are a number of characteristics of the design and the locality which suggest to me that the proposal may fail the neighbourhood character test. These factors are:
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There are parts of Brighton in which large neo classical dwellings are part of the overall character of the neighbourhood, however, such dwellings do not appear to be an important feature of the immediate environs of the site;
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The most dominant dwelling forms in the immediate neighbourhood appear to be Federation or Edwardian dwellings, or bungalows from the interwar period, the massing and articulation of such dwellings is very different to that of neo classical styles;
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While high front fences are a characteristic of the neighbourhood, the overall mass of the front fence proposed, more particularly to Cole Street, is greater than that which is perhaps typical;
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The solar orientation of the site does make the frontage setback to Cole Street, a good location for the principal private open space for dwelling 1 and the prevalence of high front fences in the locality might make the location of the principal private open space in this frontage setback acceptable, but the decision to incorporate a pool in this area, and extensive hard paving, is such that the visual impact of the landscaping within this frontage setback is very much less than that which is typical in the locality.
28 Another permit application was lodged with the Council in July 2002 that contained a revised design which Ms Lane described as being a response to the Tribunal's findings. This application was withdrawn in December 2002.
29 Prior to the permit application being withdrawn, a building permit was issued on 16 December 2002 to erect one double storey dwelling at the front of the site. This design included a large dwelling with two storey high walls; a swimming pool in the Cole Street frontage; a solid masonry rendered fence wrapping around the Cole Street frontage and the Foote Street street corner; and the main entry and vehicular access from Foote Street. This dwelling has been constructed and is now the existing dwelling on the site.
30 This permit application was then received by the Council on 14 December 2004.
31 Ms Lane submitted that the proposal has not adequately responded to the issues identified in the previous Tribunal determination. She stated this is not a repeat appeal as changes have been made, not the least of which is the fact that there is now an existing dwelling on the site. However, she submitted the applicant should be able to demonstrate that all of the previous issues have been satisfactorily resolved.
32 Mr Johnson, Ms Buchanan and Mr Stephens agreed with the Council's submission. Mr Johnson and Ms Buchanan described this proposal as "development by stealth" that is unfair and unjust as the existing dwelling has avoided planning control. Mr Johnson and Ms Buchanan expressed concern about the cumulative impact of the existing dwelling and the proposed dwelling upon the amenity of their property.
33 Ms Brezzi advised that her client had worked within the planning controls to undertake what has been constructed on the site to date. Whilst I acknowledge the objectors' concerns about the history of this matter and specific concerns such as the blue board constructed along the boundary and the siting of plant equipment, I agree with Ms Brezzi that her client's actions have been lawful.
34 Ms Brezzi and Ms Munn both stated that my consideration of this proposal is limited to the merits of the new dwelling only. To this end, they both focussed heavily upon the appropriateness of the new dwelling during the hearing. Ms Brezzi referred to the matter of Alsocan Architects v Yarra CC [2004] VCAT 1890 where, at paragraph 19, she quoted Senior Member Baird as follows:
The ambit of my discretion is limited to impacts of the proposed dwelling ...
35 Since the hearing, I have reviewed the rest of this sentence in the decision and find that the quote did not provide the full context of Senior Member Baird's comments. In her decision, Senior Member Baird stated:
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.
36 Interestingly, Senior Member Baird acknowledged that the impacts of the existing house may change with a new second dwelling on the land. During the hearing, Ms Brezzi agreed with me that the site has not been subdivided into two lots; the proposal therefore seeks approval for two dwellings on the site (albeit only one new dwelling is to be developed); and, therefore, it is relevant to consider the cumulative effect of the two dwellings on the site, particularly when it comes to amenity matters such as visual bulk and landscaping, for example. It is commonplace for the Tribunal to have a design before it for consideration that involves the development of a new dwelling at the rear of an existing dwelling. As part of such consideration, it is also commonplace for the design to include, and for the Tribunal to require, matters such as landscaping to encompass the whole of the site and not just the area of the site immediately surrounding the new dwelling. Therefore, whilst I agree with Ms Brezzi that it would not be appropriate to require modifications to the existing house as it has been lawfully constructed; I find that the combined impacts of the two houses upon the neighbourhood character and the amenity of Mr Johnson and Ms Buchanan's property are relevant considerations.
37 Coming back to the relevance of the previous determination by the Tribunal for this site, I am of the opinion the question is whether this proposal for a new dwelling at the rear of the site is a good design response that is respectful of the neighbourhood character and the amenity of Mr Johnson and Ms Buchanan's property next door, and takes into account the Tribunal's previous concerns. I will deal with each of these matters in turn.
38 The neighbourhood character objectives in clause 55 include ensuring a design respects the existing neighbourhood character or contributes to a preferred neighbourhood character. In considering this proposal, I have not given any weight to the neighbourhood character evidence of Ms Munn. She has acknowledged the neighbourhood character requirements in the Planning Scheme at section 5.2 of her evidence. However, under cross-examination by Mr McIlrath, Ms Munn acknowledged that she had not had regard to the Neighbourhood Character Study which is a reference document in the MSS. This study makes comment on its interpretation of the existing and preferred neighbourhood character. When I asked her why she had not had regard to it, she replied that it is a generic document that may well have little bearing on the characteristics of the existing neighbourhood. In regard to the relevance of the perceived threats that are listed in the Study, Ms Munn accepted that they are relevant but also stated that they are standard and she could run through a list of standard threats off the top of her head. I am concerned about Ms Munn's lack of consideration of this study as a neighbourhood character study adopted by the Council, and referenced in the Planning Scheme, does provide background information that may assist a town planner in forming views on the neighbourhood characteristics, particularly the relevance of the preferred neighbourhood character and the identified threats. Certainly, a town planner may not agree with the study or its content, but it must be given regard to in order to provide an informed opinion as to its relevance to a particular proposal.
39 Ms Munn's evidence has focussed upon the neighbourhood character concerns expressed by Senior Member Liston relating to the previous proposal for this site, despite acknowledging the Tribunal's statement on page 5 that it had not formed a concluded view as to whether that proposal was respectful of the neighbourhood character. Accordingly, I found this evidence to be unhelpful in considering the merits of this proposal in light of the neighbourhood character.
40 I have inspected the site and surrounds and note the following characteristics in this neighbourhood:
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Foote and Cole Streets have wide road reservations;
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Large, mature canopy street trees dominate Foote Street;
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Smaller canopy street trees are found in Cole Street;
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A mix of fencing styles, including wire, timber and masonry materials with a variety of heights;
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Cole Street contains a mix of single and double storey detached dwellings set amongst landscaped gardens with scattered medium height trees and shrubs;
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The two storey dwellings generally contain articulation to the first floor level as this level is smaller or recessed from some parts of the ground floor;
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Foote Street contains some double storey detached dwellings, including neo-classical style dwellings with garaging in their front façades and generally low level manicured landscaping (for example 22 and 15 Foote Street);
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Foote Street also contains some older style two storey residential buildings containing walk up flats; and
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Overall, there is variation in the architectural styles of housing in this neighbourhood.
41 The existing dwelling on the site has a neo-classical architectural style and there are already other examples of this style found in Foote Street, therefore I accept the proposed use of this architectural style is in keeping with the styles found in this neighbourhood. However, I agree with the comment in the previous Tribunal determination that the use of this architectural style does tend to emphasise rather than diminish the visual impact of a dwelling. I find the height (8.5 metres) and width (about 16 metres) of the existing dwelling, combined with the height (8.3 metres) and width (14.3 metres) of the proposed dwelling, creates a building bulk that is unlike other detached dwellings in the neighbourhood. Generally these dwellings have smaller front facades or a façade that is broken up into a series of vertical or distinct elements. I note that the preferred neighbourhood character statement in the Council's study talks about new dwellings being consistent with the overall scale, massing and proportion of established housing and I am of the opinion that this supports my concern about the combined width and height of the two dwellings. I find a setback of between 1.7 and 2.8 metres does not provide an effective separation or visual relief to the combination of the building forms on this site. Similarly, I also find that the proximity of the two dwellings to Foote Street (as they are setback between 3 and 4 metres from the street frontage) also contributes to the strong visual presence of the dwellings in the streetscape.
42 Whilst I note that there are large existing street trees on either side of the proposed dwelling, in my opinion this does not negate the necessity to provide appropriate landscaping on the site. I am concerned that the 14 metre frontage of the dwelling comprises a driveway, a front porch with paving and paving stones adjacent to the front lounge room. This creates minimal landscaping opportunities immediately in front of the new dwelling, and this is at odds with the majority of the properties in the neighbourhood. I note garages at the front of properties are highlighted as a potential threat in the study and the preferred neighbourhood character statement talks about the maintenance of detached housing set within well established gardens. Again, I find these comments support my concerns.
43 For these reasons, I am not satisfied that the proposal is respectful of the existing neighbourhood character, and nor does it contribute to the Council's preferred neighbourhood character.
44 The impact of the previous proposal upon the amenity of the rear garden of 68 Cole Street was a key concern in the previous Tribunal determination. Accordingly, the eastern boundary of this site was described as the "most sensitive interface" and the Tribunal stated in paragraph 7:
Given that it is a corner site I think it may be reasonable to expect that some form of two storey development would be possible at the rear of that site. The scale and mass of any first floor elements of a dwelling at the rear would have to be substantially less than that proposed in this case.
45 Ms Munn provided a detailed explanation of the differences between the previous proposal and this proposed dwelling on pages 12 and 13 of her evidence and I have summarised these differences below:
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In regard to the setback from the east boundary with 68 Cole Street, the ground floor setback has increased by 0.2 metre (from 3.8 to 4.0 metres) and the first floor setback has increased by 1.7 metres (from 4.5 to 6.2 metres).
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In regard to the separation between the existing and proposed dwellings on the site, the ground floor setback has increased from 0 to 1.7 metres and the first floor setback has increased by 2.4 metres (from 3.2 to 5.6 metres).
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In regard to the floor area of the proposed dwelling, the ground floor has decreased by 26 square metres (from 141 to 115 square metres) and the first floor has decreased by 34 square metres (from 124 to 90 square metres).
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In regard to the height of the proposed dwelling, the maximum building height has decreased by 0.3 metre (from 8.6 to 8.3 metres) and the maximum wall height has decreased by 0.2 metre (from 6.9 to 6.7 metres).
46 Ms Munn submitted that these changes reduce the visual impact of the proposed dwelling upon 68 Cole Street. However, Ms Lane disputed this stating the bulk remains significant and unacceptable by pointing out:
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The overall height has been reduced by 300mm;
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The cumulative effect of the two dwellings means the visual bulk has not be adequately addressed;
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The combined total floor area has been reduced by about 10% (from 674.3 square metres to 605.1 square metres);
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The combined total first floor area has been reduced by about 16.5% (from 283.9 to 237 square metres); and
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The site coverage has reduced by 3%.
47 I have inspected 68 Cole Street and find that a clear view is available from this property across the existing boundary fence and into this site. The raised patio on the far side of 68 Cole Street also has a clear view into this site. There is minimal landscaping along the common boundary; therefore the rear garden is quite exposed at present. The existing dwelling on the subject site is clearly evident and is, in my opinion, quite visually prominent from 68 Cole Street.
48 In light of these existing characteristics, I find that the height and width of the first floor of the proposed dwelling will be a dominant visual form that, combined with the existing dwelling, will create unreasonable building bulk from the rear garden of 68 Cole Street, regardless of the increased setbacks from the common boundary.
49 Ms Munn gave evidence that new landscaping along the common boundary would be appropriate. Mr Johnson questioned Ms Munn as to whether a landscape plan should have been provided as part of the planning application, particularly given the visual impact upon his property was a matter of concern in the previous Tribunal decision. She replied that the lack of a landscape plan was not an inadequacy as it, or a landscape concept plan, can be a waste of time and client's money as it is likely to change during the processing of the permit application. She stated a landscape plan would be a condition of permit. I am concerned with Ms Munn's evidence. A landscape plan or landscape concept plan may be included as part of a permit application and can assist an application in dealing with matters of visual bulk and residential amenity. The fact that it requires time and costs money to prepare a landscape plan is not, in my opinion, sufficient justification to determine whether it should be prepared. Whilst the lack of a landscape plan is not, in my opinion, fatal to this permit application, I agree with Mr Johnson that such a plan could have formed part of the application documentation.
50 Ms Munn and Ms Brezzi suggested the planting of new canopy vegetation along the common boundary, reaching about 10 metres in height. Ms Munn tabled photographs of suggested species during her evidence. I agree 10 metre high vegetation would assist to screen an 8.3 metre high building, but I am of the opinion such a response is symptomatic of the fact that the proposed dwelling will have a detrimental impact upon 68 Cole Street. I agree with Ms Lane that the cumulative impact of the two dwellings and their combined first floor areas will create an unreasonable visual bulk. I also agree with Ms Lane that the differences in floor area, site coverage and building height are minimal and I find that they are contributing factors to the visual bulk. In my opinion, the planting of vegetation that can grow to 10 metres in height along the common boundary does not overcome the inappropriate nature of this design response. I agree with the observation in the previous Tribunal determination that the height and size of any first floor of a dwelling at the rear of this site would have to be substantially less than that proposed. I do not consider a 10% floor area reduction, a 3% site coverage reduction and a 300mm building height reduction achieves a first floor height and size that is "substantially less".
51 Building a two storey house at the rear of a site is difficult because of the potential amenity impacts upon neighbouring properties. Successful designs have included attic style first floors or first floor areas that are significantly smaller in proportion to the ground floor areas. These types of design solutions may be more appropriate outcomes for this site; however I wish to emphasise that I make these observations in an effort to encourage the permit applicant to consider alternative designs and that, ultimately, any design response will still need to be considered on its merits at the appropriate time.
For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.
[1] Pursuant to clause 32.01-4 of the Bayside Planning Scheme
Brown
Bayside CC [2005] VCAT 1775