3. The decision of the Responsible Authority is varied. A permit shall issue in accordance with and subject to the conditions set out in the Notice of Decision to Grant a Permit PL02/0680 issued by the Responsible Authority but modified as follows:

* In Condition 1 the words "Before the use and/or development starts" are replaced with "On or before 8 December 2003 or such further time allowed by the Responsible Authority".

* Paragraph (a) of Condition 1 is deleted and replaced with:

"(a) to reflect the as-built dimensions of the study in No 89 Kent Street."

4. Pursuant to Section 104(4) of the Victorian Civil and Administrative Tribunal Act 1998 t Mr Wood must pay $150 to Maddocks, Lawyers, being the fees and allowances determined by the Tribunal of Ms Lane and her firm who attended in answer to the summons in application P954/2003.

1. There are two applications before the Tribunal:

(a) Application P945/2003 by Mr Ian Wood under Section 82 of the Planning and Environment Act 1987 ("PEAct") against the decision of Yarra City Council ("Council") PL02/0680 to grant a permit to regularise the as built situation of the buildings on the subject land built in contravention of an earlier permit, and

(b) Application P1110/2003 by T Darmos against condition 1(a) of the Notice of Decision requiring the deletion of second car space in double carport and introduction of storage component to the double carport to the satisfaction of the Responsible Authority.

2. These reasons are intended to reflect the oral reasons for the decision given at the hearing.

3. These proceedings are brought in respect of an as built situation. The units at 89 and 91 Kent Street were built under an earlier permit 99/1094 issued following a decision of this Tribunal, but on the construction of the units Mr Wood drew the attention of Council to discrepancies between the as built situation and the endorsed plans.

4. As a consequence of those discussions an enforcement order application P1742/2002 was brought by the Responsible Authority in respect of the discrepancies. After the oral decision at the hearing Council advised it withdrew the enforcement order application and a separate order was made to that effect.

5. Permit application PL02/0680 was for a permit to allow the discrepancies. Following the lodging of that permit application the Responsible Authority issued the Notice of Decision and Mr Wood brought the application for review against that decision, and the permit applicant brought the application for review against Condition 1(a) of the Notice of Decision.

6. The matter proceeded on the basis that the review applications will be heard today but that if the review applications were decided against the permit holder the enforcement order matter would proceed at a

7. There was a preliminary matter in relation to a subpoena issued by Mr Wood against Ms A Lane of Maddocks, whose firm was acting in respect of the enforcement order application. The firm was not on the record in relation to the review applications. An order was made at the hearing under Section 104(4) of the Victorian Civil and Administrative Tribunal Act 1998 that Mr Wood pay $150 to Maddocks, Lawyers being the fees and allowances determined by the Tribunal of Ms Lane and her firm who attended in answer to the summons.

8. Whilst it appeared that the summons had been misdirected to Maddocks rather than to the Council and related to the S 82 application rather than to the enforcement order, and a later summons was issued to the Council which produced the building files required, no letter had been written to the Tribunal by Mr Wood releasing Ms Lane from attendance and no order had been made by the Tribunal excusing her. She attended the Tribunal incurring the expenses, which were claimed.

* Increasing the ground floor awning on the north elevation from 3 metres to 4.1 metres;

* Increasing the height of the side wall parapet to the east from 2 metres to 2.6 metres;

* Relocating the first floor void and associated window area on the eastern wall;

* Enlarging the first floor window of 91 Kent Street from 2 panels to 3 panels;

* Introducing the bathroom window with a 1.6 metre sill height from the east elevation of 91 Kent Street, Richmond;

10. Mr Wood made no objection to these changed, there was no adverse impact on the amenity of any other person, and he thought they were improvements.

* the car parking arrangements for the double garage at the rear of 91 did not comply with the Parking Provision Objectives of Clause 55.03-11 of Rescode or the previous provisions in the Good Design Guide,

* the study in 89 had been increased in depth by 70mm and the French double doors at the front of the study had been pushed forward by about the same distance, both changes increasing the size of the room.

12. Mr Wood conceded that he lived some doors away in the street, but that as the non-compliances identified by him were internal, he was not personally affected, and he agreed that allowing the carport to be used by 2 cars could be to his benefit as it would reduce the pressure for on street parking. His concerns arose from his role as a community SOS representative and a wish to ensure compliance with permits.

13. We refer to the comments of Mr Quirk in the previous Tribunal decision relating to this matter as follows:

"I do however agree with the Council that there should be an open plan study in this area so that it can never be used as a bedroom. However, I also believe that the size of the study area should not be reduced to 2m as this is a dimension in which it is not easy to establish good study or living conditions. I do, however, accept that a small storage area together with a larger study area is quite appropriate."

14. The plans in the permit application show a study with a door and a storage area, both being approved by the Notice of Decision. Mr Wood submitted that the increase in size flouted the conditions of the earlier permit and the Tribunal decision. Ms Cincotta indicated her client consented to a condition that plans submitted for endorsement should show the study dimensions as built. Council had no objection to the increase in size of the room and that additional condition.

15. I affirm Council's decision in relation to the study and have no objection to relatively small increased in size of the study and the door. The changes will allow extra space in the room, create a more interesting and pleasant space architecturally and improve the amenity and utility of the room.

16. On the plan the room is designated as a study and not as a bedroom. This unit is provided with one car park. It is possible the study could be used as a bedroom. Mr Quirk's comments in his Tribunal decision related to having the study as an open family area, but the Council currently has taken no objection to a door being provided.

17. In relatively tightly constrained inner city dwellings of this type the study is the only other separate living space from the living area at the rear of the ground floor. It is reasonable in such dwellings to have a home office, a study, a room for a computer or a separate area to watch TV, read or to get away other residents.

18. No party pointed out to me any provision in the Building Code of Australia which imposes any minimum dimension on a room before it can be used as a bedroom and there is nothing in the planning scheme to this effect. The main consequence of the possibility (which always existed, door or no door) relates to car parking, but as I have upheld the conditions application to allow the carport in 91 to be used for 2 cars, the changes to the study are an appropriate planning outcome.

19. The other issue in this case is the question of the carport in 91 Kent St. Mr Wood made a submission that the double carport did not comply with the Australian Standard template or the measurements in Standard A9 in Clause 54.03-7. It was agreed that as the units had now been subdivided and 91 sold to Mr Buttery and his partner, this was the applicable provision. Mr Wood's comments on the strict application of Standard A9 were correct.

20. Mr Buttery gave evidence and produced photographs and a video showing that the double carport to 91 comfortably accommodates two motorcars, a Saab sedan and a Mazda 121 sedan, vehicles of the type and size one would expect in an inner city area. His evidence was summarised in Ms Cincotta's submission as follows:

"* He has owned and occupied 91 Kent Street, Richmond for approximately 2 years.

* He lives in the unit with his partner and they each have their own car.

* Since he first purchased the property, two cars have been parked in the double carport, one of which is a small Mazda 121 and the other car is a Saab.

* At no time has either he or his partner had difficulty with the car parking or vehicular access arrangements at the property nor has he experienced any difficulty in manoeuvring in and out of the double carport.

* If the second car space is deleted, this will result in the inconvenience of having to park one of the cars on the street in an uncovered and insecure environment."

21. Clause 54.03-7 of the ResCode provisions of the planning scheme is as follows:

To ensure that car parking is adequate for the needs of residents.

Two car spaces should be provided per dwelling with:

* One space at least 6 metres long and 3.5 metres wide and covered or capable of being covered.

* The second space at least 4.9 metres long and 2.6 metres wide.

If the car spaces are provided in a garage, carport or otherwise constrained by walls, a double space may be 5.5 metres wide measured inside the garage or carport.

A building may project into a car space if it is at least 2.1 metres above the space.

The requirements of this standard do not apply to extensions to existing dwellings.

Before deciding on an application, the responsible authority must consider:

* The practicality of providing car parking on the site, particularly for lots of less than 300 square metres.

* The reduction of on-street car parking spaces resulting from the provision of car parking on the site, particularly for lots of less than 300 square metres.

* The availability of public transport and on-street parking.

* Any relevant local planning policy or parking precinct plan."

22. The alignment of the subdivision is such that the configuration of the carport for 91 under the earlier permit cannot achieve compliance with Standard A9 in terms of width and length and non coverage, but the non-compliance is relatively minor.

23. The opening passages of Clause 54 require that a development must meet the objectives of this clause and should meet the standards of this clause. Further an objective is intended to describe the desired outcome to be achieved in the completed development, and a standard contains the requirements to meet the objective. A standard should normally be met but if the responsible authority is satisfied that an application for an alternative design meets the objective, the alternative design solution may be considered.

24. From the evidence and submissions I find the carport and parking provisions for 91 meet the objective of the clause, having regard to the decision guidelines. The likely needs of the users are met and the solution meets the guideline of practicality. The carport comfortably accommodates the 2 cars of the current residents who can easily access and exit from the rear lane without any turning difficulty or need to back and fill, as demonstrated by the video evidence. The design reduces the pressure for on street car parking spaces by allowing an additional off street car space. The Tribunal is well aware of on street parking issues in the City of Yarra. Other matters relating to the needs of the uses are relevant. They found it particularly convenient and attractive to park both their cars at the rear of their property giving them easy and protected access, as well as avoiding the hazards and potential insurance costs of on street parking.

25. Mr Wood also raised alleged non compliances with the fire rating provisions of the Building Code of Australia for a wall, which was objected to by Ms Cincotta, and I ruled I would not hear him on this matter as it had not been raised in the applications, was not relevant to the proceedings, was not supported by expert evidence and was not within the Tribunal's jurisdiction