Victorian Civil and Administrative Tribunal|2008-02-28

For the reasons set out above, we are satisfied that the proposal has good strategic policy support, that the design response to the site has been thoughtful and appropriate, that the zig-zag style of the building can sit comfortably in this already very modified western end of Lisson Grove, that there will be no unreasonable impacts on the No. 8 Lisson Grove top level front balcony view lines, and that overall the proposal is deserving of planning approval.
We can also confirm that:
- we regard the traffic and parking aspects of the proposal as straightforward and in order, relying on the traffic evidence of Mr Butler. The number of basement car parking spaces will exceed the ResCode requirements, and we are satisfied that the existing traffic levels on Lisson Grove can readily absorb any additional traffic associated with the proposal;
- whilst we acknowledge the new front building will be very visible from Mr Jamieson's ground level courtyard on the western side of the No. 8 Lisson Grove building near the front, our inspection of this courtyard confirmed that it already experiences significant overshadowing from the existing trees on or near the common boundary. In addition, we expect that the previous imposing dwelling at No 6 Lisson Grove would similarly have been very visible from this courtyard;
- we see the situation with the new sub-station to be installed in the north-eastern corner of the site as acceptable;
- we do not see any significant overshadowing issues associated with the proposal;
- we regard the proposal as meeting the ResCode objectives (even if as alleged by Mr Tweedie the new buildings are not completely compliant with the ResCode standards, it is clear that the degree of non-compliance is extremely limited); and
- we see the front fence treatment (whilst taking a different approach) as ultimately still in order, given that the fence is set well back from the front boundary, thereby facilitating intervening landscaping that will soften available views from the street.

Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application but modified to show:
- (a) A schedule and samples of external building finishes and colours;
- (b) Lighting details for communal areas including the pedestrian entries and pathway;
- (c) Relocation or modification of the speed hump located with Lisson Grove;
- (d) Details of any signage and/or traffic control along the driveway particularly at the intersection of the porte cochere;
- (e) Minimum headroom of 2.2m should be provided within the garages and above the visitor spaces in accordance with the requirements of AS/NZS 2890.1:2004;
- (f) In relation to all terraces and screening on the eastern side of the top level of the new building 1, any necessary changes must be made to ensure that these terraces and screening are fully compliant with Standard B17 of Clause 55 of the Planning Scheme;
- (g) Landscaping plan as required by condition 3;
- (h) Methods to ensure that direct crossviews between apartments are not possible;
- (i) In relation to dwelling A11 in the middle level of the new building 1, the floor area currently shown as "Bedroom 3" and its ensuite must be deleted, including any consequential reconfiguration of the balance of this dwelling;
- (j) Suitable balcony screening to 1.7 metres for the dwelling A10 balcony;
- (k) The additional screening of dwelling A13 discussed at page 30 of the SJB report by Amanda Ring dated 9/1/08.

The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

A landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. This plan must be generally in accordance with the plan prepared by Mark McWha for the VCAT hearing P1936/2007 over 24/25 January 2008. When approved, the plan will be endorsed and will form part of this permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must include the following features.
- (a) Details of surface finishes of pathways and driveways.
- (b) Confirmation that all new trees planted on site will be advanced specimens.
- (c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant; Landscaping and size for trees at planting within 1.0 metre of the crossover and splay should have a maximum height of 1.0 metres to allow sightlines.
- (d) Landscaping and planting within all open areas of the site.
- (e) Heights of tress to be pleached - along driveway and across front.
- (f) The maximum height at which the trees/hedge along the front driveway must be maintained (which must be no higher than 4.5 metres unless otherwise allowed in writing by the Responsible Authority).
- (g) The provision of a suitable root barrier along that section of the western boundary adjacent to the side driveway.

Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

All landscaping works shown on the endorsed landscape plans must be maintained as per the requirements of the endorsed landscaping plan, including without limitation:
- maintaining any trees/hedge along the front driveway at the maximum prescribed height; and
- replacing any dead, diseased or significantly damaged plants

all to the satisfaction of the Responsible Authority.

The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Construction of Driveways and Car Parking Areas

Before any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

At least two car parking spaces per dwelling must be provided and the use of any of the car parking spaces must only be by the occupants, any visitors or any service staff or contractors.

Any new vehicle crossover or modification to an existing vehicle crossover must be constructed to the satisfaction of the Responsible Authority.

Prior to the completion of the development, the developer must remove all disused or redundant vehicle crossovers and re-instate kerb and channelling and the affected nature strip, to the satisfaction of the Responsible Authority.

All costs associated with the modification or relocation of the speed hump in Lisson Grove must be borne by the permit holder and the relevant works must be undertaken to the satisfaction of the Responsible Authority.

All outdoor lighting must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

Before the development commences a Waste/Recycling Management Plan must be submitted to and approved by the Responsible Authority. In the preparation of the waste/recycling management plan, specific attention must be made to the following items (but not limited to):
- (a) How the collection of refuse and recycling material will be managed;
- (b) The type of refuse and recycling bins to be used on the site and where they will be stored including details of screening and ventilation;
- (c) What will be the frequency for the removal of such refuse and recycling materials?
- (d) How it is intended to control the emission of odour caused by such refuse and recycling material when it is being stored within the site.
- (e) That the bin storage areas are sufficient to cater for the amount of waste that will be produced;
- (f) What type of bins will be used on the site;
- (g) The private collection of bins undertaken within the boundaries of the subject site;
- (h) Who will be responsible for taking refuse and recycling bins in and out for collection, where this will occur and how collection of refuse and recycling materials will be managed;
- (i) Hours of bin collection not being outside the hours of:

(j) Access routes for private waste collection vehicles that do not rely on extensive reversing movements;

(k) Compaction of refuse and the breaking up of bottles not occurring whilst the collection vehicle is standing stationary at the site.

When approved by the Responsible Authority, the Waste/Recycling Management Plan will then become part of the endorsed plans. The approved Waste/Recycling Management Plan must be implemented to the satisfaction of the Responsible Authority.

All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

No plant, equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

No air-conditioning or cooling units, condensers and the like may be located on external walls or on balconies without the prior written consent of the Responsible Authority.

During the construction phase of the development, the following conditions shall be met:
- (a) only clean water shall be discharged to the stormwater drainage system;
- (b) stormwater drainage system protection measures shall be installed as required to ensure that no solid waste, sediment, sand, soil, clay or stones from the premises enters the stormwater drainage system;
- (c) vehicle borne material from the premises shall not accumulate on the roads abutting the site;
- (d) all machinery and equipment must be cleaned (if required) on site and not on adjacent footpaths or roads;
- (e) all litter (including items such as cement bags, food packaging and plastic strapping) must be contained within the site boundaries, and disposed of responsibly;
- (f) all site operations shall comply with the Environmental Protection (Residential Noise) Regulations 1997.

All building works associated with the construction of the development are to be limited to the following hours, unless otherwise approved in writing by the Responsible Authority:
- (a) Monday to Friday: 7.00am to 7.00pm
- (b) Saturday: 9.00am to 5.00pm
- (c) Sunday & gazetted Public Holidays: No construction

Prior to the commencement of any site works under this planning permit, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of the approval documents and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:
- (a) site contamination and disposal of contaminated matter;
- (b) delivery and unloading points and expected frequency;
- (c) a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced;
- (d) an outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
- (e) any requirements outlined within this permit as required by the relevant referral authorities;
- (f) Hours for construction activity in accordance with any other condition of this permit;
- (g) measures to control noise, dust, water and sediment laden runoff;
- (h) the location and design of a vehicle wash down bay for construction vehicles on the site;
- (i) the location of parking areas for construction and sub-contractors' vehicles on the site and nomination of timeframe of which the basement car parking will be available for vehicles associated with the construction activity to minimise disruption to surrounding premises and traffic flows;
- (j) measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
- (k) the location of any site sheds and the like to be nominated in a position away from residential properties;
- (l) nomination of the number of contractors out on site at any one time;
- (m) Any construction lighting to be baffled to minimise intrusion on adjoining lots.

This Permit will expire if:
- (a) The development does not start within two (2) years of the issue date of this Permit; or
- (b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

The full cost of reinstatement of any Council assets damaged as a result of demolition, building or construction works, must be met by the permit applicant or any other person responsible for such damage, to the satisfaction of the Responsible Authority.

Headings are for ease of reference only and do not affect the interpretation of permit conditions.

[1] We were told that an extremely large palm tree will be trucked in, so that it will be of an imposing size from the outset.

[2] The evidence of Mr Biles on this issue was that the floor level of the bottom level of the new rear building will be between 1.2-1.9 metres below the natural ground level of the backyards of the two properties to the rear of the appeal site.

[3] See for example the leading case of Healy v Surf Coast SC 19 VPR 316.

Environmental Protection (Residential Noise) Regulations 1997

Buxton Property Pty Ltd v Boorandara CC [2008] VCAT 325 (28 February 2008)

The issue here is whether there are any unacceptable impacts from the proposal on the key view lines from the top level front balcony of the No. 8 Lisson Grove apartment. In particular, Mr Tweedie urged us to find that there will be an unreasonable blocking out by the new front building of the available views towards the CBD from this No. 8 top level front balcony.
As a starting point here, there is a clear line of authority that there is no such thing as a legal right to the preservation of a view[3]. However available views form part of the amenity of a property and the loss of such views may be taken into account in terms of the potential external amenity impacts of a proposal. This is particularly the case where the relevant Planning Scheme specifically refers to the issue of views and/or view sharing.
We acknowledge that in the circumstances here, Clause 22.07-3 of the Planning Scheme provides that if a site and context description is required pursuant to Clause 55, then it is policy that "The design take advantage of views without detriment to the views from neighbouring properties".
Given the clear authority that there is no legal right to the preservation of a view, where this policy uses the words "without detriment", we read this in practice as providing policy guidance that there should not be any unreasonable impacts from a proposal on existing view lines of neighbouring properties.
Approaching the issue in this manner, we made a point of carefully assessing the view line situation during our inspection of the top level front balcony at No. 8 Lisson Grove.
Our finding is that we are satisfied there will not be any unreasonable impacts of the existing view lines from this No. 8 Lisson Grove top level front balcony, for the following reasons:
- our inspection confirmed that there are quite panoramic views in various directions from this top level front balcony. Hence some degree of loss of views when looking west from this top level front balcony will not change the fact that there will still be commanding views to the north and east from this balcony, and through the arc from north to west ;
- our analysis of the available information regarding the previous large dwelling on the appeal site suggests that this previous dwelling was quite tall and set well forward on the site to a very similar setback to that of the proposed development. Hence we conclude that some of the west to south-west views would have been blocked by the previous dwelling (which has only recently been removed) vis-à-vis the No. 8 top level front balcony;
- to the extent the leading edge of the new front building will block out a degree of the views of the CBD from the top level front balcony, in practice we expect this would only be the case if one is standing at the very front of the top level front balcony. If someone was sitting around a table more in the centre of the top level front balcony, our impression is that the difference in available views would be more difficult to notice;
- having stood on the very front section of the No. 8 top level front balcony ourselves and made a careful assessment of how far out the leading edge of the new front building on the appeal site will intrude, our impression is that there will still be a significant extent of the CBD towers visible from this front section even after the new front building on the appeal site is constructed. For example, whilst it is quite possible that there will be a blocking of the views of Eureka Tower/Southgate, we expect there will still be views of the towers more on the northern/north-eastern area of the CBD.
Our findings on this "view line issue" are consistent with the previous Tribunal decisions of Deal Corporation Pty Ltd v Yarra CC [2003] VCAT 573 and Juliano, Furletti and Scott & Ors v Melbourne City Council (VCAT Ref. 1999/19285).

Buxton Property Pty Ltd v Boorandara CC [2008] VCAT 325

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Buxton Property Pty Ltd v Boorandara CC [2008] VCAT 325 (28 February 2008)