Victorian Civil and Administrative Tribunal|2001-08-15

Coulson Pelchen Architects v Boroondara CC [2001] VCAT 1744 (15 August 2001)

Planning, Dwellings, Failure, Application for Review, Allowed, Permit

Medium Neutral Citation [2001] VCAT 1744

1. 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) Replacement of the proposed glazed balustrade of the first floor balcony in the northern elevation with opaque screens or panels in accordance with the techniques to Element 7 of the Good Design Guide for medium Density Housing to restrict overlooking of the terrace below.

(b) Measures to ensure the restriction of views (in each direction) from the rear balcony in the northern elevation of the proposed development in accordance with the techniques of Element 7 of the Good Design Guide for Medium Density Housing.

(c) The total hard surface area for the site not cover an area of more than 65%.

(d) The first floor balcony in the southern aspect be reduced in size so as to project by a maximum of 1 metre over the open space below.

2. The layout of the site and size, design and location of the buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3. All access driveways, parking areas and other areas shall be properly graded and drained by the provision of inlet or grating pits and connected to the household drainage system and to the legal point of discharge in accordance with Council's standards and to the satisfaction of the Responsible Authority. The driveway is to be edged to prevent runoff to the adjoining properties.

4. 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.

5. Before the use and/or development starts (or at a later date approved by the Responsible Authority in writing) a landscape plan prepared by a suitably qualified and experienced person or firm incorporating:

(a) a survey of all existing vegetation and natural features;

(c) a schedule of all proposed trees, shrubs and ground cover, which will include the location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d) paving, retaining walls, fence design details and other landscape works including areas of cut and fill

must be submitted to the satisfaction of the Responsible Authority. When the plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority before occupation of the development and/or commencement of the use.

6. All landscaping works shown on the endorsed -landscape plans must be maintained to the satisfaction of the Responsible Authority and any dead, diseased or damaged plant replaced.

7. All existing vegetation shown on the endorsed plans to be retained must be suitably marked before any development starts on the site and that vegetation must not be removed, destroyed or lopped without the written consent of the Responsible Authority.

8. All work within the dripline of any tree to be retained must be supervised by a qualified landscape architect or horticulturist to ensure that the works are done in a manner which protects and minimises damage to those trees.

(a) The development does not start within two (2) years of the date of this Permit; or

(b) The development is not completed within four (4) years of the 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 Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For the Responsible Authority: Ms. J. Higgins, Consultant Planner

Permit Applicant: Mr. A. Robertson, Consultant Planner

1. This is an Application under Section 79 of the Planning and Environment Act 1987 ("the Act") brought by Permit Applicant for review of the failure of the Boroondara City Council ("the Responsible Authority") to grant a permit within the prescribed time.

2. It is proposed to recycle the former shop into two dwellings, one above the other. Each dwelling would have two bedrooms, a bathroom, an open plan kitchen and a living/dining room. The ground floor residence could have a balcony of approximately 24 square metres at the rear, linked to the living area. The upstairs residence would have balconies at the front and rear. The northern or rear balcony would be 12 square metres in area and cantilevered over the terrace of the ground floor dwelling. The balcony at the front would be 11.25 square metres and linked to the main bedroom.

3. Mr. Robertson, in his written submission for the Respondent/Permit Applicant, said:

"The existing brick facade of the shop will be retained, but updated and altered with the following changes:

> Removal of the apex component on top of the front parapet wall;

> Removal of part of the existing shopfront including the glazed windows and door entry;

> Replacement of shopfront with a new 2.0m high cedar timber batten fence over galvanised steel support frame, a pivoting entry gate and rendered masonry wall with letter boxes to match balance of facade wall;

> Inclusion of 750mm high opening between the existing structure and the new fence and gate to facilitate entry of light and ventilation behind the facade wall.

The existing side boundary walls of the shop will remain and be marginally extended to the rear to abut adjoining residences."

4. The subject land is on the north side of Roseberry Street, west of Wolseley Street. It is currently developed as a shop with a dwelling attached at the rear. The shop and dwelling are constructed to the front and side boundaries. Ms. Higgins, in her written submission for the Responsible Authority, said:

"Council records indicate Building approval for a dwelling on the site dated 1965 and a shop, 1970, although local knowledge suggests the use has been established for approximately 60-70 years. The premises appears to be currently used for an office."

6. The surrounding are contains modest single storey brick Victorian dwellings, many of which have been altered or renovated, and more recent two or three storey medium density development.

"Land surrounding the site features the following significant characteristics:

* North The site abuts an east-west running 3m wide Right of

Way providing access to the rear of properties between Wolseley Street and Gordon Street. The northern side of the lane is developed with two and three storey medium density residential properties facing Auburn Grove.

* South Small single storey timber cottages punctuated by more

* East The dwelling to the east comprises of a single fronted

Victorian dwelling that was 'modernised' in the 1970s. It now presents as a cream brick dwelling with tiled roofing that has been constructed along the common boundary.

The dwelling is setback approximately 7.6m from the street and has a heavily vegetated front yard that is enclosed by a 1960s style low cream brick and iron fence.

* West The dwelling to the west is a single fronted timber

Victorian dwelling with corrugated iron roofing. The dwelling is located adjacent to the common boundary and is setback approximately 6m from the street front.

A bull nosed verandah stretches across the front of the dwelling and is setback 4m from the street. There is a high face brick wall topped with creepers to the street together with 140 a high painted picket gate across the driveway."

Roseberry Street is a local street running from Camberwell Road in the east and terminating a short distance to the west of Wolseley Street. It intersects with Munro Street and Bowler Street, providing access through to Auburn Road."

8. The subject land is covered by the Boroondara Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. Clause 32.01-4 provides that a permit is required to construct two or more dwellings on a lot. That Clause also sets out Decision guidelines, which are the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies, and the Good Design Guide. Decision guidelines are also set out at Clause 65.

9. Ms. Higgins addressed relevant State and Local Planning Policy.

10. The Responsible Authority advised by letter dated 13 June 2001 that the application had been considered at its meeting on Monday 4 June 2001. It had been resolved that had an Application for Review not been lodged a Notice of Decision to Grant a Permit would have been issued subject to conditions set out in the letter.

11. Ms. Higgins said that following notice of the application nine objections and a petition with 28 signatures were received. Ms. Higgins summarised the Grounds of Objection as follows:

* No sense of identity when viewed from the street.

12. Ms. Higgins said that a consultative meeting was attended by Objectors, the Permit Applicant and a Council Officer. The Grounds of Objection were generally discussed and the appropriateness of recycling an existing building, or part thereof, was raised. All of the concerns remained unresolved. Revised plans were later submitted which attempted to address the criticisms of the proposed front facade treatment. It was understood that the preference of the Objectors was for the front wall to be removed altogether. Additional shadow diagrams were provided to depict the extent of shadow impact, in response to concerns of Objectors.

13. Ms. Higgins noted that the Statement of Grounds submitted by Mr. Ryan, the Applicant for Review/Objector, were largely based on issues of streetscape and neighbourhood character.

14. Mr. Ryan, the Respondent/Objector, spoke to a written submission. Mr. Ryan said:

"Aim To conserve character of Roseberry St by ensuring 13 Roseberry St development conforms to 100 years of practice of building to a common setback or common building line.

All dwellings - built from 1880's - 1930's - 1940's 1970's 1980's 1990's and 2000 - are constructed to a common setback or building line. If garages are provided in front of the house these are set back to the common line and the houses further set back. Total affect is harmonious and livable despite very different individual dwellings.

Only exception is 13 Roseberry St. This building was extended (in 1930's) to street line to provide a small neighbourhood shop. Boroondara Council cannot (will not, Ms Higgins, Messrs Birze & Draffin) give details of original planning permission. Or was no permission sought or granted?

If permission was granted it was clearly for the purpose of a neighbourhood shop. This purpose is no longer in question and therefore any permission granted or by adverse possession has lapsed and the new buildings should conform to common practice. Any new buildings should start from common line and fences and walls be reduced to the height common in the area."

15. I accept the submission of the Responsible Authority with respect to retention of the existing walls. The shop is part of the streetscape and the neighbourhood, and has been for some time, and I see no reason to require that it be removed or altered to conform to adjacent development. I consider that a permit should be granted generally in accordance with the conditions provided by the Responsible Authority.

"At its meeting on 4 June 2001, Council resolved to support the proposed development subject to conditions. We generally support the conditions included by Council but oppose the suggested condition 1(e) which reads:

"(e) the first floor balcony in the northern aspect to have a minimum area of 18sqm, with only a 1m projection over the lower open space."

As proposed, this balcony is to be 12sqm in area with a cantilevered overhang of 2300mm from the rear wall. The design of the deck is integral to creating a seamless indoor and outdoor connection with large glazed windows in this part of the dwelling.

We submit, it is unnecessary and onerous to increase the size of the balcony up to 18sqm There is no basis in any policy statement, the Good Design Guide, or Council interim residential guidelines for a large balcony of 18sqm to be provided.

The Guide stipulates 8sqm is a minimum standard for upstairs balconies. We submit the proposed size of the balcony is satisfactory.

The requirement to reduce the overhang of the rear balcony to 1m has significant impact or the internal living space of the upstairs residence. In combination with the requirement to increase the balcony to 18sqm, this results in the loss of over half the living/dining room with minimal net benefit.

The planned balcony covers over half of the ground level terrace and with its height clearance of 2.5m will enable sufficient entry of sunlight into the ground level space. This is represented in the sunlight diagrams.

With reference to E6.T7 of the Good Design Guide the proposal is satisfactory to facilitate daylight to habitable rooms as it:

- Proposes full length windows at ground and upper levels which well exceeds 10% of the room's floor area.

- Has a terrace area well in excess of 3sqm (ie. light well) and is partially open to the sky.

- Is not constrained by any boundary or other buildings for 1m horizontal distance from the window."

"The first floor balcony in the northern aspect to have a minimum area of 18 square metres, with only a 1 metre projection over the open space below".

The proposed changes require an increase in the area of the rear balcony from the currently proposed 12sqm to 18sqm. This is considered to be a more useable outdoor area that will take full advantage of the northern aspect. In achieving this increased standard, Council suggests that the projection over the private open space below be restricted to 1m which will necessitate reducing the floor area of the first floor dwelling accordingly. The terrace below will be situated below natural ground level and will be bounded by a 2.4m high timber batten fence to the north and high walls to the east and west. Reducing the protrusion of the overhead balcony will maximise solar penetration to the terrace as well as to the interior of the ground floor dwelling. It will also increase the liveability of the terrace by reducing the sense of enclosure that currently affects this area.

Reducing the depth of the balcony overhang will bring the balcony into line with the northern (rear) wall of the dwelling on the property to the Reducing the size of the upper level dwelling to enable the size of the balcony to be increased to the required 18sqm will increase the setback of the upper level from the rear of the site. Both of these actions will serve to reduce the visual impact of the development to the properties to both the east and west."

18. I have considered what is being put with respect to Condition 1(e), and I accept the submission of Mr. Robertson. I consider that a deck area of 12 square metres will be adequate for the proposed upper level dwelling, particularly as it is integrated with the living/dining area. I also consider that the projection of the deck over the terrace to the ground floor dwelling will not detrimentally affect the amenity to be enjoyed by the future residents of that dwelling in an unacceptable manner.

19. I therefore consider that the permit should not contain the proposed Condition 1(e).

20. For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.

Coulson Pelchen Architects v Boroondara CC [2001] VCAT 1744

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Decision date

Source

Judgment (80 paragraphs)

Coulson Pelchen Architects v Boroondara CC [2001] VCAT 1744 (15 August 2001)

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