Cocos Constructions Pty Ltd v Boroondara CC [2006] VCAT 1663

The responsible authority's decision is varied. The responsible authority must issue a revised permit with Condition 1(b) deleted and the remaining parts of Condition 1 renumbered.

1 Cocos Constructions Pty Ltd and Cyneco Pty Ltd seek a review of Boroondara's City Council's decision to impose Condition 1(b) on Permit No. PP05/1372. This condition requires:

Plan notations indicating a four (4) metre front setback of the Unit 2 study to the north-western boundary. If desired the roof form can remain in the same location.

2 At the review hearing Mr Chow advised that the wording of this condition was wrong and the setback should have referred to the south-western boundary, that is the setback from Winifred Crescent.

3 Mr Chow advised this condition was required to bridge the gap between the adjoining weatherboard dwelling and the reduced setbacks on the existing and proposed new dwelling. He claimed it would provide an extra degree of articulation.

4 Ms Ring, on behalf of Cocos and Cyneco, argued that the proposal meets Standard B6 and therefore met the objective of the standard in Rescode. She referred to a decision of Mr Byard[1] where a design objective is deemed to have been met by compliance with a nominated standard.

5 Ms Ring claimed the setback was unnecessary because the relationship with the adjoining house to the north in streetscape terms is not a strong one and it will have little practical transitional effect in circumstances where the responsible authority is content for the roof form to remain as designed and has accepted the projecting front porch. She also claimed there would be no advantage in circumstances and in fact it will have an adverse impact on the internal layout of the proposed new dwelling.

6 It is proposed to erect a new single storey three bedroom dwelling (2 bedrooms and a study) with a double car garage to the rear of an existing dwelling at 6 Dunlop Street in Ashburton. The existing dwelling at the front of the site would be retained and a new dwelling fronting Winifred Crescent would be erected. It will have a 3 metre minimum setback from the street frontage, a minimum 3 metre setback from the abutting north-western boundary, and zero setback on its north-eastern boundary. A new crossover would be relocated to a central position on the Winifred Crescent streetscape.

7 The subject site is located on the north-eastern corner of Dunlop Street and Winifred Crescent in Ashburton. The site is located in an attractive garden suburban neighbourhood established in the 1930s and 1940s. The lot has an area of about 700 square metres with a frontage to Dunlop Street of around 12 metres and a sideage to Winifred Crescent of about 43 metres. An existing clinker brick house occupies the front of the site. Rear street elevation comprises a 1.8 metre high paling fence. Abutting properties comprise single storey detached housing. The dwelling to the north-west has a 1.8 metre high picket fence which substantially obscures observation of this dwelling at 7 Winifred Crescent. This is more obvious having regard to the fall in the land away from Winifred Crescent.

8 The subject site is located in a Residential 1 Zone under the Boroondara Planning Scheme. The relevant purpose of this zone is to encourage development that respects the neighbourhood character. There are various planning controls and policies of relevance in this matter, but these are more particularly focused on Clause 55 (Rescode), and in particular Standard B6.

9 At the review hearing both parties tabled and read from brief written submissions and made oral commentary. They also provided photographs of the subject site and neighbourhood. I advised the parties that I was familiar with the neighbourhood and the photographs generally reflected my impression of the area.

10 At the conclusion of the hearing I set varied the responsible authority's decision and directed the deletion of Condition 1(b) with all remaining conditions in Condition 1 renumbered and all other conditions retained.

11 My reasons were briefly explained as follows:

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The proposed 3 metre setback from Winifred Crescent meets Standard B6 of the Planning Scheme and irrespective of the Chak Lai Li decision I consider that the proposed dwelling is acceptable. It meets the relevant purpose of the zone because it respects the neighbourhood character it. This is producing a single storey detached dwelling of similar or larger proportions to other single detached dwellings in the neighbourhood.

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I do not consider an additional 1 metre setback of the study from the Winifred Crescent street alignment will change a reading in the appearance of this dwelling, nor its relationship with the dwelling at 7 Winifred Crescent. I consider that what is a bigger influence on the neighbourhood and a reading of the Winifred streetscape is the presence of the high picket fence to 7 Winifred Crescent, the 3 metre landscape setback between the property boundary and the placement of the new dwelling which will have a the 1.8 metre high wall in close proximity to the high picket fence. If anything, the new wall will be the strongest architectural element because it continues the high picket fence height on N0 7 Winifred Street rather than the proposed dwelling.

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I also consider the proposed condition would unnecessarily and unreasonably reduce the amenity and opportunity for flexible usage of the front room with little, if any, noticeable improvement to the streetscape or transition in setbacks between the proposed dwelling and the existing dwelling at 7 Winifred Crescent.

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Accordingly I have directed the removal of the condition and the renumbering of Condition 1.

[1] Chak Lai Li v Whitehorse CC (No.1) [2005] VCAT 1274 (30 June 2005)