Victorian Civil and Administrative Tribunal|2004-05-10

Cohen v Stonnington CC [2004] VCAT 825 (10 May 2004)

Stonnington Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; Residential 1 Zone; Setbacks; Visual bulk, Views; Over shadowing

The decision of the Responsible Authority in relation to permit application No 1012/03 is affirmed. A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 42 Canberra Road, Toorak. The permit will include all the conditions contained in the Notice of Decision to Grant a Permit dated 31st December 2003 but will also include the following changes:

1 The preamble to Condition 1 is to make reference to both the advertised plans and the three substituted plans (TP04 Revision B, TP05 Revision B and TP07 Revision B).

2 The following new condition is to be included in Condition 1:

e) The southern side of the front terrace and the south facing window of the living room are to be fitted with translucent glass to a height of 1.7 metres above floor level.

Mr Chris Lovell of Holding Redlich. He called Karla Loughnan, Town Planner of SJB Planning Pty Ltd

1 This is an application under Section 82 of the Planning and Environment Act 1987 to review a decision by Stonnington City Council to Issue a Notice of Decision to Grant a Permit for construction of a two storey dwelling on land at 42 Canberra Road, Toorak.

2 At the commencement of the hearing Mr Lovell confirmed the request to substitute plans. Revised plans (Sheets TP04, TP05 and TP07 only) were circulated to all parties on 17th March 2004 in accordance with Clause 11 of the VCAT Practice Note Planning List (No 1). No objection was made to the request and I therefore amended the application in accordance with Section 64 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

3 The Tribunal has inspected the locality and visited the Cohen's house on the afternoon of the hearing. Submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files.

4 The site is located on the east side of Canberra Road, has an area of 437 square metres and contains a single dwelling, which because of the fall of the land has a two storey appearance at the front of the site where the garage is set in against the slope and an open terrace is located on top of the garage roof. The adjoining property at No 40 to the south owned by Mr and Mrs Cohen has a similar configuration with the garage sitting under the dwelling and giving the dwelling a two storey appearance from the street - although it is fact over three levels with a two storey section at the rear. The land to the north at No 44 is currently vacant but a permit has been issued for a single dwelling over three levels - with a ground level garage at the front and the dwelling rising to two levels above and behind the garage. Canberra Road has a very eclectic mix of housing with a wide range of single dwellings and medium density housing developments from different time periods. Street setbacks vary markedly with the older houses on the east side generally having the greatest setbacks. The Cohen's house, although relatively new also has a very large setback of 17.1 metres and the house immediately south of that has a setback of 18 metres. The review site is very close to parkland and reasonably close to shopping and other facilities along Toorak Road, including tram routes along Toorak and Chapel Streets.

5 The site and surrounding land is zoned Residential 1. A Land Subject To Inundation Overlay affects the front, lower portion of the site. Other relevant Planning Scheme provisions include Clauses 14, 15.02, 15.12, 16.01, 21.05, 21.07, 21.08, 22.02, 22.06 and 65. Clause 54 (ResCode) applies because the site is less than 500 square metres in area and Melbourne 2030 is also applicable.

6 The proposal involves the construction of a single dwelling with three bedrooms. A double garage, store and laundry are provided at ground level. First floor comprises a living, dining/family/kitchen area, two bedrooms and an open terrace located above and slightly forward of the ground floor component. A second level comprising a master bedroom and en-suite is located at the rear of the site but because of the slope of the land the building is no more than two levels at any one point. Side setbacks vary - from as little as 1 metre on the north side adjacent to the garage, zero on the southern boundary adjacent to the entrance stairway, 1.26/1.57/1.59 metres on the northern boundary for the first floor, 1.39/1.5 metres on the southern boundary at first floor, 1.51/3.23 on the northern boundary at the top level and 2.73 along the southern boundary at the top level. Rear boundary setback is 1.14 metres at first floor (which is at ground level because of the slope of the ground) and 3.94 metres at the upper level. The main areas of open space are a ground level garden in part of the front setback, a large open terrace above the garage on the first floor and a north-facing balcony off the master bedroom on the top level. There are other narrower and smaller areas set aside but these are not included in the open space calculation as they do not meet the relevant ResCode dimensions (minimum 3 metres wide at ground level and minimum 1.6 metres wide for terraces/balconies).

7 Mr Clarke, Mr and Mrs Cohen (who live next door to the south) and Mr Lovell made written and verbal submissions. Ms Loughnan was called to give planning evidence on behalf of the permit applicant and was available for cross-examination. Photos and plans were also tendered. Mr and Mrs Cohen raised particular concerns about the proposal being out of character with the street because of the small and inconsistent street setback, inadequate side setback to their boundary, visual bulk, loss of views from the front of their property, overshadowing, loss of sunlight, noise and loss of privacy. They also raised concerns about inaccuracies on the application plans.

8 I note that there are no Design and Development or Heritage Overlays applying to the site and am of the opinion that the design is consistent with the varied character of the neighbourhood. It a modern house, which because of the fall of the land from the rear boundary to the street, broadly follows a similar layout to houses on either side. The provision of a single house on this site is consistent with local planning policy and there was no dispute amongst parties that the site is suitable for a single dwelling.

9 Policy also requires new development to be respectful of neighbourhood character and ResCode (Clause 54), against which the proposal must be assessed, places great emphasis on designs respecting existing or preferred neighbourhood character (eg. 54.02-1, 54.03-1, 54.03-2, 54.03-3). I recognise that change within our urban areas (whether or not as a result of urban consolidation policies) will occur as matter of course. If one examines the development pattern of Melbourne over the past 150 years then change has been a constant feature of residential, commercial, industrial and other areas. Inevitably then, the character of any given area has and is changing in an evolutionary manner. The Cohen's relatively new house is an example of that evolutionary change and the new house at No 44 and replacement of the old house on the review site are further evidence of that change.

10 Mr and Mrs Cohen were concerned about the front setback, which primarily impacts on the views from the front of their house and on possibilities for overlooking and overshadowing. My inspection confirmed that the views currently enjoyed across the front of Nos 42 and 44 towards the Yarra River will be substantially lost. Although it will be possible to stand on the Cohen's deck and look through and across the new terrace at No 42, the more significant north-north westerly view will be lost. There is nothing in the Planning Scheme that requires a sharing of views. Existing views from the Cohen's property are achieved because of the very large setback and single storey form of the existing dwelling at No 42. I consider it unrealistic to expect such a large front setback to be replicated on such a small site and I agree with Ms Loughnan that to do so would be an inefficient use of the land. Standard A3 requires a minimum street setback to be the average distance of the front wall setback of adjoining houses or 9 metres, which ever is the lesser. This is specifically designed so that historically large setbacks for existing houses do not have to be automatically replicated for new development. On the basis of this standard, a minimum front setback for No 42 of 9 metres would be acceptable - instead the ground floor is setback 11.1 metre and the first floor terrace (floor, balustrade and roof) are set back 9 metres. This is similar to the approach utilised for the approved new dwelling at No 44 and I find this a reasonable outcome and quite within the spirit of relevant ResCode objectives.

11 I cannot explain why the Cohen house was built so far back on the lot, other than it partly replicates the very large setbacks for the older dwellings to the south and to a lesser extent, the setback of the existing house and garage at No 42. In paragraph 3 I made reference to the wide variety of street setbacks along both sides of Canberra Road. Pre ResCode setbacks vary enormously from as little as 3 or so metres for older blocks of units to around 20 metres for older style dwellings. This variation in street setbacks form part of the neighbourhood character and I find nothing in this proposal for 9 and 11.1 metres setbacks to be at odds or inconsistent with this character and I therefore support the proposal for the house to be sited as shown on plans.

12 In relation to the southern walls abutting the Cohen property, the proposed development complies with ResCode standards except for the garage wall at the front of the property. Because of the slope of the land the new wall should be further set off the boundary by around 300mm at the front of the deck but taper to a point near the front entrance. Opposite the Cohen's deck and wall the discrepancy is between 100mm and zero. In this location the ground floor of the Cohen house is the garage and the actual living areas are effectively at first floor level. Requiring strict compliance with the standard by tapering the wall, as set out above would not make any practical difference and I am satisfied that the ResCode objective in 54.04-1 is achieved. I have also considered the decision guidelines and am satisfied that there are no adverse impacts on habitable room windows on the first floor. Although there will be some minor additional visual impact from the front garden of the Cohen house, this is not secluded private open space and is for the most part a paved area used for car parking and a hard play area for children (eg. ball games and bike riding). I would have taken a different view about the side setback had the ground floor garage been a living area with habitable room windows or secluded open space.

13 I also note that there is an existing brick wall along the common boundary, which is to be retained except for a lowering in height at the eastern end by about 1.4 metres for a distance of 5.76 metres. This wall already provides a visual barrier and a bulky element close to the deck and front window of the Cohen house. Towards the middle of the house there is secluded entertainment area facing north that is screened on its north side by a strip of trees which I estimate to be around 3.6 metres high (my estimate is lower than that given by Ms Loughnan). In this location the roof of the first floor (actually at ground level because of the slope of the land) is 4.1 metres above the ground line of the Cohen entertainment area but set back 1.39 metres off the boundary. The top of the parapet of the upper level rises to 6.8 metres above the entertainment area but is setback 2.73 metres from the boundary.

14 There is no doubt that the new dwelling will be clearly visible and it will certainly be different to the existing situation where there is little visible building form from the entertainment area and the view is mainly of vegetation in the back yard of No 42. But both No 42 and 40 are relatively small inner urban lots. It is inevitable that any new building utilising more of the site (but still easily complying with site coverage and permeability standards) will create additional visual bulk and mass and hence change existing views. I consider this a reasonable outcome and am satisfied that the design has satisfactorily achieved visual articulation by the different first and second floor setbacks. The elevations show a glass void at the western end of the top floor, which I am advised was included in the substitute plans to add 'lightness' and variety to this façade. Ms Loughnan suggested that this wall could be further articulated by introducing some high level or opaque windows. I note that two small windows are already proposed towards the eastern end of this wall. While additional windows may create more visual interest they may also create a perception of greater intrusion into the Cohen's property. On balance I consider it better to leave this wall as shown on the Revision B elevations.

15 Related to the issue of the location and height of the southern walls, is the potential for them to create overshadowing of existing secluded private open space. In relation to the front deck and garden, I have previously noted that these are not secluded open spaces -therefore standard A14 does not apply. Nevertheless, Ms Loughnan gave evidence in relation to shadowing of these areas. Although the shadow diagram showed some shading I am satisfied that in relation to the front deck there will be little or no additional shadowing. The shadow diagrams are one-dimensional and do not take account of the fact that the deck is at first floor level. Shadows will be cast below this onto the side wall and ground and the cross-section elevation tendered by Ms Loughnan at the hearing clearly shows this. In relation to the front yard I agree that there will be additional shadowing in the morning at the equinox but this is primarily a parking and play area and is not secluded private open space.

16 In relation to the central entertaining area, the shadow diagrams indicate there will additional shading at 12 o'clock (with lesser amounts either side of that time) while the rear courtyard is slightly shaded at 3 pm but is unaffected at 9am and 12 o'clock. Standard A14 is met in relation to the rear area (and for the front area and deck even though not secluded private open space). There is some marginal non compliance in relation to the central entertaining area but I note that at certain times of the day this area is already shaded by the existing boundary wall and by the tall screening trees. In assessing this issue I have to be satisfied that the objective is met even where there is not strict compliance with the standard. The objective for 54.04-5 is to ensure buildings do not unreasonably overshadow existing secluded private open space. Decision guidelines list five matters that must be considered including the impact on the amenity of existing dwellings, existing sunlight penetration to secluded private open space, the time of day sunlight is available to secluded private open space and the effect of any reduction in sunlight on the existing use of the secluded private open space. Having regard to these matters I am satisfied that the objective will be met and that there will not be unreasonable overshadowing of existing private open space.

17 Overlooking has been well addressed in all areas except the potential for overlooking from the front terrace and the entrance steps. In relation to the steps I was advised that they are appropriately screened by the existing brick wall other than for a small section near the entry. Condition 1d) of the Notice of Decision requires the fitting of trellis so that the steps are screened to a minimum height of 1.7 metres above any step.

18 Mr and Mrs Cohen raised concerns about potential overlooking from the front terrace into the secluded open space of their property. This relatively large deck leads off the living area and is located to within 1.5 metres of the side boundary. A simple solution would be to require that the southern side of the deck (and the southern corner window of the living area) be fitted with opaque or translucent glazing to 1.7 metres. This would accord with the ResCode standard and would prevent any overlooking to the south (and also reduce noise transmission). However such glazing would prevent any views over the top of the terrace, although in practical terms there is nothing to stop future owners from fitting blinds or placing planters along the deck and thus obscuring the views in any case. It is matter of balancing which is the preferable outcome. Given that the views may be blocked at some later time anyway, I consider it preferable that overlooking into the Cohen property be prevented at this time. I will therefore require the fitting of translucent glazing to 1.7 metres along the southern side of the terrace and southern face of the living room window. Such a requirement has the added benefit of protecting the Cohen's privacy if at some stage they choose to build forward into their existing front setback.

19 Noise from plant and equipment was also a concern to the Cohen's but I note that condition 1) b) requires that these be located to the satisfaction of the responsible authority and to have appropriate regard to the amenity of adjoining habitable areas. I am satisfied that this condition will enable consideration of this issue.

20 Condition 1 of the Notice of Decision made reference to the advertised plans. Three sheets (TP04, TP05 and TP07 Revision B) have been substituted by the Tribunal and these need to be referred to in condition 1.

21 Having regard to the above comments, I will accordingly affirm Council's decision and Order that a permit issue subject to conditions included in the Notice of Decision to Grant a Permit dated 31st December 2003 but with the two changes set out in the Order.

Environment Act 1987

Cohen v Stonnington CC [2004] VCAT 825

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Cohen v Stonnington CC [2004] VCAT 825 (10 May 2004)

Parties

Legislation Cited (1)