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[2003] VCAT 1514
Victorian Civil and Administrative Tribunal
2003-10-23
Original judgment source is linked above.
Single dwelling - two-storey rear extension - Heritage Overlay - Clause 54 - ResCode - Amenity.
1. The decision of the Responsible Authority to grant a permit is varied. The Tribunal orders that a permit be granted for extensions to the dwelling situated at 22 Kelvin Grove, East Prahran in accordance with the Notice of Decision No. 0154/03 dated 30/6/2003 save and except that an additional condition (1b) shall be added. That condition shall read:
"1(b) The overall height of the double storey extension reduced by 200mm."
2. Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.
Application under S. 82 of the Planning and Environment Act 1987 for review of a decision to grant a permit.
1. The review site is located on the western side of Kelvin Grove, East Prahran. It has a frontage of 14m, a depth of 42m and a total site area of 592m2. The land supports a single storey interwar dwelling with an overall height of approximately 6.5m above ground level.
2. The applicant seeks a permit to carry out a two-storey extension to the existing dwelling. It is proposed:-
* to demolish a rear section of the existing dwelling with a skillion roof;
* construct an open plan living area at ground level with three bedrooms and two bathrooms at first floor level;
* set back the structure a minimum of 2.6m from both boundaries.
3. The extension would commence approximately 8.9m from the principal dwelling façade and 15m from the front boundary. It would thus sit behind the existing roof form and have an overall height of 8.2m above natural ground level.
4. The application was advertised and attracted six objections. Most of these related to the height of the proposal and perceived problems in relation to loss of light, privacy and views. The Responsible Authority determined to grant a permit subject to conditions. Objectors on each side of the subject land sought a review of the Council's decision. However, the permit applicant continued to negotiate with both adjoining owners. On 14 October 2003 the owner of the property at No. 24 Kelvin Grove agreed to withdraw his application for review provided that there was an overall reduction in the height of the extension by 200mm. The permit applicant has agreed to make this concession.
5. On the hearing Mr O'Keefe and Mrs McKenzie tabled and summarised written submissions while Mrs Budimir made oral submissions which were based on the following assertions:-
* the extension was contrary to the provisions of the Heritage Overlay and inappropriate in its context;
* her dwelling would be overwhelmed and suffer a loss of light and privacy.
6. It is unnecessary to repeat all that was said at the hearing. It is clear that Mrs Budimir is emotionally concerned with the proposal and the Tribunal agrees that the structure will be quite large. However, when tested against the relevant Planning Scheme controls, it is clear that the land is of sufficient area to accommodate the extension which complies with all relevant requirements of ResCode. In that regard it is noteworthy that:-
* the proposal exceeds the side setback requirements;
* it will be set back some 15m from the front boundary.
7. At present the existing single storey dwelling is located opposite the kitchen window of the objector's property with a setback to the boundary of 1.2m. Under the present proposal that setback will increase to 2.6m and, as it is not to extend beyond the building line of Mrs Budimir's dwelling, it will thus open up the view across the rear yard of the review site. Far from depriving Mrs Budimir's property of light and views, the situation will actually improve.
8. Privacy considerations will also improve. At present, a deck structure at the rear of the existing dwelling allows unimpeded views into Mrs Budimir's rear yard. The deck is to be demolished. An existing ugly lattice structure designed to prevent overlooking between the two properties will also be demolished. The new windows are to be treated in a way that prevents overlooking.
9. The real issue of concern to Mrs Budimir is the apprehension that the bulk of the extension will overwhelm her property. She told the Tribunal she would be happy if the extension was redesigned with a flat roof. However, such a solution would not be consistent with heritage considerations. The Tribunal suspects that Mrs Budimir does not fully understand that the roof will be a recessive element and will not read as the flat plane which is shown in the elevations.
10. As to neighbourhood character it needs to be understood that older style dwellings such as these will inevitably require upgrading and renovation in order to provide a standard of accommodation consistent with the 21st century. The most effective means of achieving such an objective is through rear extensions and there is ample evidence in the surrounding neighbourhood of similar structures being put in place.
11. As to heritage matters, the Council's Heritage Adviser expressed satisfaction with the proposal and, although glimpses of it will be available from the street, the Tribunal does not consider this to be a significant issue.
12. In the end result the Tribunal is satisfied that the proposal is not unreasonable. The permit applicant appears to have gone to great lengths in an attempt to appease his neighbours. The proposal complies with the provisions of ResCode and it is consistent with heritage objectives. Accordingly the Tribunal believes that a permit should be granted and it will make the appropriate order.
# Budimir
Stonnington CC \[2003\] VCAT 1514