Victorian Civil and Administrative Tribunal|1998-10-01|Before: Applicant P

Cade P & Ors v Yarra CC & Ors [1998] VCAT 304 (1 October 1998)

Application under S.121 of the Planning and Environment Act 1987 (PE Act) for amendment to an Enforcement Order.

The land in Certificate of Title Volume 1028 Folio 194.

An area of 1885m2 being the northern (rear) half of a property previously comprising 3,600m2 known as 223 McKean Street, North Fitzroy which original property had a frontage to the north side of McKean Street.

Residential "C" Zone and in an Urban Conservation Area No. 1 under the Yarra Planning Scheme.

1. A determination and reasons were given in this matter on the 27 March 1998. The decision was to grant an enforcement order requiring certain rectification works to be carried out within three months of service of a copy of the order. These included an alteration to a "splay" corner at the north-western corner of the land. This splay was constructed with the sides other than the hypotenuse having lengths of 1.5 metres. Paragraph 1 of the enforcement order dated 27 March 1998 required these sides to be increased to 3.4m. Further orders were given for making good the blue basalt cobble stone paving of the lane, including the splay area.

2. The solicitors for the Respondent have written to the Registrar referring to this order and stated:-

"As to the first Order, we believe that the Tribunal may not be aware that Unit 1 is constructed at a distance of 3m from the boundary line to the building line. It would, therefore, not be possible to increase the splay to 3.4 metres in accordance with the Order.

Furthermore, the door and window on that unit would strike the wall. Accordingly, we request that the Order be amended to require the splay to accord with the "valid requirement" referred to in paragraph 160 of the Tribunal's Reasons, namely 2.1 metres on each side of the triangle forming the splay."

3. A sketch plan was subsequently provided at the request of the Tribunal. This does show the set-back of the building wall from the boundary wall at 3m so that 3.4m could be achieved without demolition of the north-western corner of the building. We had not intended any demolition of that corner of the building.

4. The views of the other parties who appeared at the hearing were sought. Mrs Cade replied indicating that she had sought an increase in the size of the splay, to the extent of 2.1m. She also observed that the wider splay would make for easier manoeuvring, but we take her reference to 2.1m complying with her original application as being consent to the amendment sought on behalf of the Respondents.

5. The Responsible Authority has written saying that it has no objection to the Tribunal making such an amendment to the enforcement order if it sees fit.

6. It is not clear to us, from the sketch plan, that the door or window of Unit 1 would strike a new boundary wall if the splay were 3.4m inasmuch as it is the sliding door. Further it is not clear to us that the window would strike such a wall. However, as previously indicated, we had not intended to require demolition of the building wall. In the circumstances, and taking account of the attitude of the other parties, we consider it reasonable to accede to this request for an amendment to reduce the sides of the triangle forming the splay to 2.1m.

The expression "3.4m" in paragraph 1 under the subheading "THE TRIBUNAL ORDERS" in the enforcement order herein dated 27 March 1998 is deleted and the expression "2.1m" is substituted in its place.

Cade P & Ors v Yarra CC & Ors [1998] VCAT 304

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Cade P & Ors v Yarra CC & Ors [1998] VCAT 304 (1 October 1998)

Parties