Mr Jason Kane of Counsel by direct brief. Mr Kane called expert design evidence from Mr Anthony Di Mase (architect).

Mr David Crowder (planner) of Ratio Consultants. Mr Crowder called expert design evidence from Mr Robert Simeoni (architect)

1. The subject land is located at 522 Station Street in Carlton North. This is a very attractive and interesting inner city suburb of Melbourne. Part of this "inner city living" experience is that dwellings are located close together, reflecting the fairly intense historical pattern of development. The practical result is that the occupants of the period terrace houses running along this section of Station Street need to be prepared to temper their amenity expectations to some extent, given the "cheek by jowl" pattern of living side by side as neighbours.
2. The owner of the subject land now proposes to partially demolish the rear single storey section of the attractive period two storey terrace house on the site, so as to enable a double storey rear extension.
3. To the north of the subject land at 524 Station Street is a similar period double storey terrace house, which likewise has a double storey element at the front but then continues at a single level toward the rear boundary, including a rear courtyard. As this property to the north continues right along the common boundary until its rear wall, this is an innocuous interface, and this northern neighbour was not involved in the hearing before me. It is clear to me that the proposal is acceptable vis-à-vis this northern neighbour. While it plays no particular role my decision, I note that No. 524 has apparently recently received a permit for a two storey rear extension.
4. Rather, the key contentious aspect to the proposal is whether or not it would have any unacceptable external amenity impacts on the single storey period terrace house to the south of the appeal site owned by Mr Giuseppe Di Mase. This neighbouring single storey terrace building at 520 Station Street is built to the common boundary closer to the front boundary, but then continues towards the rear with a side walkway running alongside the common boundary. The rear section of this walkway features a covered verandah roof, then there is a rear courtyard.
5. Council has supported the proposed part demolition and new double storey rear extension, and issued a Notice of Decision to Grant a Permit. This has been appealed by Mr Di Mase to the Tribunal and the hearing of this matter came before me on 12 May 2009. At this time I heard submissions from the advocates listed above. In addition, two architects gave design evidence on behalf of the Permit Applicant and the Applicant for Review respectively.
6. Near the end of the hearing, Mr Crowder on behalf of the Permit Applicant tabled some concept plans, indicating a potential redesign of the new rear upper bedroom, with the aim of reducing the overshadowing impacts of the proposal on the north facing windows in the middle and rear sections of Mr Di Mase's dwelling.
7. At the end of the hearing I gave verbal directions allowing the Permit Applicant to circulate the proposed revised plans to the Applicant for Review and Council. I also made arrangements for the Applicant for Review or his architect Mr Anthony De Mase to (as needed) have access to the three dimensional representations of the revised plans (I understand this has now occurred).
8. More recently I received a letter dated 18 May 2009 from Council, confirming that it had reviewed the updated plans and has no issues with them. On this basis, Council advised that it does not object to the Tribunal making orders approving the proposal based on these new plans.
9. I also received from Council a letter dated 18 May 2009, providing an update in terms of the advice of its heritage advisor Susan Hunt regarding potential changes to the new upper rear balustrading aspect of the proposal. The key paragraphs of the advice from Ms Hunt reads as follows:

I am of the view that glass balustrading is generally not an appropriate material for additions to Victorian buildings and context, and alternatives such as simple metal railings and simple timber slats are a better fit. However, I see that the building is contributory rather than individually significant and that Graeme did not state any concern with visibility of alterations from the rear ROW.

From the advice provided by Graeme and in looking at the drawings and photos shown to me of the rear of the existing building, l have no objection to the proposed installation of a 1.7m high partially frosted glass panel to the southern side of the first floor roof deck. However, as a fine point, I suggest that the panel be set to the inside of the supporting post to give prominence to the other faces in timber.

1. In terms of the response of the Applicant for Review to the updated plans, I refer here to the further submissions provided by Mr Jason Kane dated 20 May 2009. In summary, the first part of Mr Kane's submission argues that even the revised plans still have unacceptable amenity impacts on sunlight penetration into the northern windows of the No. 520 dwelling. It is also queried whether there are some technical deficiencies with the revised plans. In the latter part of the submission, Mr Kane submits that if the Tribunal was minded to issue a permit, then some further design concessions should be made, notably a reduction in height of the new built form.
2. Some time after the hearing I conducted an inspection of both the appeal site and the No. 520 property, including walking through their ground level rooms and rear walkway/courtyard areas. I also looked through the upper window in the front section of the dwelling on the appeal site which overlooks to some extent Mr Di Mase's side walkway area.
3. To summarise the findings of the Tribunal, I am satisfied that the proposal is fairly straight forward in terms of its planning and heritage merits, other than in respect to the more contentious issue of the potential amenity impacts of the proposal on Mr Di Mase's dwelling to the south. Obviously the fact that the proposed double storey extension lies to the north of Mr Di Mase's property makes the potential overshadowing impacts of the proposal more significant. On the other hand, I have already referred above to the existing pattern of neighbours needing to adapt to a fairly "cheek by jowl" style of occupation. Furthermore, with the benefit of an inspection, I agree with Mr Crowder that it seems likely that in due course Mr Di Mase's property to the south will itself be renovated/extended to provide a level of internal amenity more in keeping with current expectations.
4. When assessed on this basis, I do not see any significant problems with the proposal in terms of either the privacy and/or the visual bulk aspects of the new built form vis-à-vis the No. 520 property. Bearing in mind that the side walkway area alongside the middle and rear sections of Mr Di Mase's property has more a functional rather than a recreational aspect to it, the outside area of greater sensitivity seems Mr Di Mase's rear courtyard. This rear courtyard will still be situated some distance away from the new built form, which I see as an acceptable outcome.
5. The remaining amenity issue, on which this proceeding has turned, is whether the proposed new double storey built form will have any unacceptable daylight/solar access amenity impacts on the north-facing windows of Mr Di Mase's property in the middle and rear sections of his dwelling. Council obviously considered the situation here to be ultimately acceptable, in supporting the application plans. My own view is that the application plans are very borderline, in terms of their acceptability when judged on this "daylight/solar access" basis.
6. In this regard, I consider it was helpful that Mr Crowder tabled near the end of the hearing an alternative concept plan, with a revised treatment of the new upper rear southern wall of the new upper bedroom. In particular, this revised treatment involves this southern upper wall angling away from Mr Di Mase's property as it extends upwards. The practical aim here is to try to align the angle of this wall closer to the angle at which the northern sun will be passing over the new built form, with a view to minimising the overshadowing of the adjoining north-facing windows.
7. It may well be that in many other locations across Melbourne further away from the CBD, where the existing built form is more low key and separated, that even the revised plans would be seen as having unacceptable amenity impacts on the No. 520 property. However, in this particular inner city context with an existing pattern of very intense development, ultimately I see the revised plans as getting the proposal across the line, in terms of minimising the overshadowing impacts on the adjacent north-facing windows. True it is that even the revised plans will still have some net overshadowing impacts on these windows, but the point is that I am satisfied that the revised plans strike a fair balance in terms of still allowing a reasonable amount of space for the new upper bedroom, whilst at the same time making a genuine and meaningful concession in terms of minimising the net additional overshadowing impacts on the No. 520 north-facing windows.
8. On this basis, I have made orders that the Application for Review be rejected, and that a permit issue, but based on the revised plans.

1. The appeal site is located on the eastern side of Station Street in North Carlton. The site is roughly rectangular in shape and has an overall area of about 160 square metres. There is a laneway over the back fence. It is improved by an attractive two storey brick Victorian period dwelling. The front and original section of the building is double storey, plus there is a later (1993) single storey extension at the rear. In addition there is a rear private courtyard and access to the rear laneway. The dwelling is set about 1.1 metres above street level, accessed via front steps.
2. This inner city location has excellent access to the nearby services, open space, public transport and facilities.
3. From a heritage point of view, this is an impressively intact Victorian era period streetscape. This section of the eastern side of Station Street features several double storey period terrace dwellings. Further north and south on the same side of the street are mostly single storey period terrace dwellings. The opposite (ie western) side of Station Street also mainly features single storey period terraced dwellings.
4. In relation to the proposal, the starting point is the demolition of the single storey rear existing section of the dwelling, together with removing the rear (eastern) wall of the two storey section of the dwelling.
5. In terms of the new built form, at ground level there would be constructed a extension 12 metres in length, between 3.15 and 5.03 metres in width, with a maximum height of 3.69 metres. It will feature a bathroom and an open-plan kitchen/dining/living area, with a timber pergola at the rear (located 7.6 metres from the eastern boundary). It is also proposed to construct a new timber clad store at the rear of the dwelling, located one metre from the eastern boundary, build a new 1.8 metre height timber paling northern boundary fence, together with a new brick and timber clad rear fence and gate on the eastern boundary to a height of 1.8 metres.
6. In relation to the new upper level built form, at page 6 of the Council written submission it is helpfully summarised as follows:

Construction of an extension, 9.6m in length, 3.4m in width, to a maximum height of 7.5m, with wall heights of 6.8m, consisting of a master bedroom, walk-in-robe (W.I.R.) en-suite and roof deck, located 10m from the eastern boundary, built to the northern boundary, 1.6m from the southern boundary and 13.2m from the western boundary.

1. In terms of the proposed use and materials, the new northern wall would be of brick, but otherwise timber products would generally be utilised.
2. Turning now to the planning framework, we know that the site is zoned Residential 1 and is also affected by a Heritage Overlay Schedule 326 (North Carlton Precinct). Hence a permit is needed under the Heritage Overlay, plus there is a buildings and works trigger under the Residential 1 zoning.
3. Being a fairly small site, it is also affected by Clause 54 of the Planning Scheme, together with the Clause 65 general decision making criteria.
4. In terms of the main relevant planning polices, at the State level see Clauses 12 and 15.11. At the local level, the main provisions take into account are Clauses 21.05-1, 21.05-2, 21.05-7 and Clause 22.02.
5. Although there was passing reference to the proposed Amendments C84 and C85, they have played no particular role in this decision.
6. With respect to the heritage issues, I should confirm that the application plans were referred to Council's heritage advisor, who recommended approval of the proposal as submitted.

1. I consider that there are several aspects of this proposal that are quite straight forward and can be briefly dealt with as follows.
2. Firstly, I am satisfied there is a good level of policy support for this type of residential redevelopment per se of the property. The site has the benefit of the highest form of residential zoning, in the form of the Residential 1 control that applies here. In addition, putting to one side of this stage the debate regarding any potential amenity impacts on the No. 520 property, I am satisfied that the proposal has a good level of design quality, as is encouraged by the relevant policy provisions.
3. Secondly, it is clear that there are no significant heritage issues associated with the proposal, other than a more peripheral debate regarding the most appropriate choice and materials for the proposed rear upper balustrade. The Council heritage advisor has inspected the application plans and indicated that they are supported from heritage perspective.
4. Thirdly, I am satisfied that the proposal will have no undue neighbourhood character impacts. The reality is that the front facade of the building will remain unchanged, and that the new built form will be barely visible (if at all) when viewed from the street. In relation to any "rear neighbourhood character" issues, it is clear to me that it is a relatively common feature of this type of inner city location for this type of double storey rear extension to be proposed, thereby adding some degree of additional built form to the character of the area. A good example is the recent permit granted for a double storey rear extension of the No. 524 property next door.
5. Fourthly, with one proviso, I find that the proposal is acceptable in terms of any potential privacy or visual bulk impacts on the No. 520 property. Bearing in mind the proposed screening of the new upper level rear deck and noting that the side walkway of the neighbouring property to the south has a functional rather than a recreational aspect, I am satisfied that the proposal has no undue privacy or visual bulk impacts on Mr Di Mase's dwelling. I see the key issue here as being whether the proposal will unduly impact on his ongoing enjoyment of his rear courtyard, and in this respect (subject to the proviso) I see the new built form as sufficiently removed from that courtyard area. The proviso is that I have imposed a permit condition requiring that the existing upper level east-facing window in the front section of the dwelling on the appeal site (which will become an en suite window) must use opaque rather than clear glass (as is common for bathrooms/en suites).

Impacts of proposal on north-facing windows of No. 520 property

1. This brings us to the more complicated issue on which this proceeding has turned, being whether the proposed new upper level built form will have unacceptable amenity impacts on the No. 520 property in terms of reducing the available daylight/solar access into the north-facing windows of that property.
2. On this issue, I have had the benefit of the submissions from the advocates, the design evidence from two architects, my own inspection of the two relevant sites, plus the information provided to the Tribunal after the hearing. It was common ground at the hearing that there is already some degree of overshadowing of the No. 520 north facing windows at certain times of day simply from the existing fence on the common boundary.
3. I note that the relevant provision here from Clause 54 is 54.04-3 (Daylight to existing windows objective). The objective here is:

"To allow adequate daylight into existing habitable room windows."

1. In addition, see Clause 54.04-4 (North-facing windows objective), where the objective is:

"To allow adequate solar access to existing north-facing habitable room windows."

1. In terms of to what extent the proposal satisfies the relevant Standards associated with these objectives, Mr Crowder made the following statement[1].
   • "The proposal does not (in part) satisfy the Standard for 'daylight to existing windows' (S.A12). Although the windows at No.520 will have access to light courts that have a minimum area of 3sqm and a minimum dimension of 1.0m clear to the sky (provided on the site itself), based on a wall height of 6.6m the first floor addition should be setback 3.3m from the windows in question, and it is proposed to be setback 2.72m.
   • The proposal does not satisfy the Standard for 'north-facing windows' (S.A13) with respect to the side windows of No.520 facing the subject site. Based on a wall height of 6.6m the standard requires a setback of 2.8m from the boundary, and a setback of 1.62m is proposed".
2. Both of the architects provided evidence including three dimensional images of the appearance of the proposal as shown in the application plans. However there was some disagreement between them as to the precise degree of overshadowing impacts on the north-facing windows of the No.520 dwelling.
3. As mentioned, near the end of the hearing Mr Crowder tabled concept plans, which involved a revised design which I have already described above, with the aim of minimising any net additional overshadowing of the No. 520 north facing windows.
4. We know that since the hearing Council has indicated that it supports the revised proposal, subject to the above quoted comments of its heritage advisor regarding the balustrading treatment at the upper rear area. However Mr Kane has indicated on behalf of Mr Di Mase that even the revised proposal is still seen as technically deficient and is still opposed.
5. Turning now to the Tribunal's overall findings, I consider that:
   • the proposal as shown in the application plans is borderline, in terms of whether or not the overshadowing impacts on the No.520 north-facing windows are acceptable; but
   • I consider in any case that the revised plans are a superior and more acceptable overall planning outcome, which deserves planning approval. Hence I have made orders directing that a permit issue, based on these revised plans.
6. I rely on the following points in making this overall finding.
7. Firstly, in comparing the design evidence from the two architects Mr Simeoni and Mr Anthony Di Mase, I find the evidence of Mr Simeoni more persuasive. In terms of the design approach taken, I agree with him that the revised plans constitute a good quality design response, appropriate for its location, with an appropriate level of respect being shown in terms of seeking to minimise the amenity impacts on the adjacent north-facing windows at No.520. Even if the revised plans are not technically perfect, I am satisfied that they provide sufficient detail for me to accept that a real and deserving effort has been made with the revised plans to reduce the level of net overshadowing involved.
8. While it has not played any major role in my findings, and whilst I consider him to have provided helpful evidence to the Tribunal, I note that Mr Anthony Di Mase is related to the Applicant for Review and I agree with Mr Crowder that:
   • this should have been recorded at the beginning of Mr Di Mase's written expert witness statement; and
   • it is fair to say that Mr Anthony Di Mase was not in a position to provide fully independent expert evidence.
9. Secondly, as alluded to, I consider that part of Mr Di Mase's choice to live in this type of inner city location is that one's amenity expectations need to be tempered, to reflect the intense pattern of historical residential development. Following this line of thinking, it seems to me unreasonable for Mr Di Mase to expect that:
   • every Clause 54 Standard will be fully complied with (I expect there are many existing period dwellings in this locality that have features that would breach many Clause 54 Standards); or that
   • there be no overshadowing impacts at all from the proposal on his north-facing windows.
10. Rather, the more realistic question for this type of inner city location seems whether the degree of additional net overshadowing of the subject north facing windows has been reasonably minimised to an extent that is respectful of Mr Di Mase's amenity. I am satisfied that this has occurred here with the revised plans.
11. Thirdly, I think it is reasonable that I give some weight to the real prospect that in future either Mr Di Mase (or alternatively, a future owner of the No. 520 property) will themselves renovate the No.520 property, to upgrade that property to a standard more in keeping with current residential amenity expectations. In this regard, I agree with Mr Crowder that the current room layout of the No.520 property is rather cramped and compromised. It would not surprise me if any future renovation of the No.520 property also involves a proposal for some degree of new upper level built form.
12. Lastly, I consider that a balance needs to be struck here between minimising the amenity impacts on the neighbouring property, whilst still maintaining a reasonable level of internal amenity for the new upper level rear bedroom. On this issue, I agree with Mr Crowder that any further reduction in the size or height of this new upper rear bedroom beyond the revised plans would be in danger of compromising the functionality of this new upper rear bedroom to unacceptable level.
13. In relation to Clause 54, for the removal of any doubt, I see all of the Clause 54 objectives here as being satisfied by the revised proposal, including the two particular objectives referred to above.

1. For the reasons set out above, I consider that the application plans were borderline in terms of their overall acceptability, but that the revised plans are a better result which constitutes a good planning outcome that deserves a permit being granted. Hence I have made orders to this effect, including some minor changes to the proposed permit conditions (including following the recommendation of the Council heritage advisor regarding the balustrade treatment of the new rear upper deck).
2. I see my findings as consistent with the comments of Member Hewet in Kidston v Port Phillip CC [2008] VCAT 1969, where Member Hewet in similarly considering an inner city proposal gave weight to the following considerations:

• Narrow areas between buildings and site boundaries are typically used for utility and access purposes as opposed to being areas of high amenity.

• Windows on the sides of dwellings with an outlook towards side fencing or structures on neighbouring properties tend to have a daylight function as opposed to providing any meaningful outlook.

• In urban settings, it is commonplace that side windows will be overshadowed to some extent by existing buildings, fencing and or vegetation.
• The prescriptive application of standards to inner city locations results in the virtual prohibition of multi-storey development in such locations, an outcome which is clearly contrary to the intent of many State and Local policies, including Clause 12.

1. Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorse and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the revised plans prepared by Robert Simeoni Pty Ltd shown as Revision A dated 14 May 2009, but modified to show:
   • (a) Three (3) copies of a demolition plan (including corrected elevation details) showing all demolition to take place (including the removal of the existing fences at the side and rear and of the first-floor).
   • (b) The east-facing upper en suite window to use opaque glass.
   • (c) Submission of a materials schedule detailing all materials, colours and finishes.
   • (d) The balustrade of the new upper rear deck is to feature a 1.7 metre high partially frosted glass panel on its south side but with that panel set inside the supporting post(s) to give prominence to the other faces in timber.
   • (e) Cross-section of light court to show new doors.
   • (f) Floor plans and elevations to match in detail (ie south elevation).
   • (g) East elevation of new fence and gate.
   • (h) Cross-sections and elevations to include new store area.
2. All development and usei4nusit'accord with the endorsed plans. Any alterations must be approved by the Responsible Authority.
3. Any damaged road(s) and footpath(s) adjacent to the development site must be reinstated to the satisfaction of the Responsible Authority.
4. Except with the written consent of the Responsible Authority, demolition or construction works must only be carried out between: 7.00 am - 6.00 pm, Monday-Friday (excluding public holidays) and 9.00 am - 3.00 pm, Saturday and public holidays. No work is to be carried out on Sundays, ANZAC Day, Christmas Day or Good Friday without a specific permit. All site operations must comply with the relevant Environmental Protection Authority's Guidelines on Construction and Demolition Noise.
5. This permit will expire if the use or development is not commenced within two years from the date of this permit. All development must be completed within four years from the date of this permit. The Responsible Authority may approve extensions to these time limits if requests are made within three months of expiry.

NOTE: The site must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.

NOTE: This site is subject to a Heritage Overlay pursuant to the Yarra Planning Scheme. Unless hereby approved, a planning permit may be required for any demolition, re-painting or other external alterations, sandblasting, exterior works (including the installation of external air-conditioning units, solar panels, and any other heating/cooling units) to an existing building or buildings, construction of a building or fence, changes to the natural topography of the land or the subdivision or consolidation of land.

NOTE: A building permit may be required before development is commenced. Please contact Council's Building Department on Ph. 9205 5351 to confirm.

[1] See the middle of page 23 of his written submission.