Ellix v Kingston CC [2006] VCAT 2234

Ellix v Kingston CC [2006] VCAT 2234 - VCAT 2006 case summary — Zoe

[5]

1 This application concerns an extension to an existing deck at first floor level. The subject land is one of a series of seven units at 202 Nepean Highway, Aspendale. Unit 6 is owned by the respondents, Mr and Mrs Brand. The applicants, Mr and Mrs Ellix own the property next door at 201A Nepean Highway. A feature of the properties is that they directly abut the beach. This proximity to Port Phillip Bay means that most dwellings in the area are two storey in height and feature large decks to take advantage of views to the beach and the sea.

2 The subject land (Unit 6) has an existing balcony at first floor level facing towards the Ellix property. In 2005, the Brands applied for a planning permit for extension of this deck. A permit is required under clause 32.01-3 of the Kingston Planning Scheme to construct or extend one dwelling on a lot of less than 300 square metres. The existing balcony was proposed to be retained and further extended to create a deck 17.7m2 in area on the north east side of the dwelling. It was set back a minimum distance of 1.2m at the closest point to the boundary and a privacy screen was proposed to be erected along the perimeter using obscure glass.

3 This application was advertised and an objection was lodged by Mr and Mrs Ellix. They then lodged an application for review against the council's decision to grant a permit. This was subsequently withdrawn at a mediation. Mr and Mrs Brand lodged an application for review in respect of one condition in the permit relating to screening. The council's decision was varied by the Tribunal and a permit was granted for extension of a dwelling on a lot less than 300 square metres (balcony extension) in accordance with endorsed plans (Permit KP454/04). Plans were endorsed under the permit on 23 December 2005.

4 In November 2005, Mr and Mrs Brand made an application for amendment of permit under section 72 of the Planning and Environment Act 1987. The application was to amend the plans in association with permit KP454/04 to further increase the size of the balcony by 16.8m2. The amended plans provide for an enlarged balcony extending across the full width of Unit 6, the edge of which would be parallel to the common boundary between the Brand and Ellix properties. The balcony would be set back 1.7 metres from this boundary with 1700mm high obscure glass privacy screen along the edge parallel with the boundary and a 950mm return along the western edge. This is an increase in setback of 0.5 metres from the setback shown on the endorsed plans.

5 The council required the Brands to give notice of the application to amend the permit to a large number of surrounding properties. Unfortunately, it omitted to include Mr and Mrs Ellix in the people to be given notice even though they had previously objected and theirs was the most affected property. No objections were received. The council officer's report identified relevant planning scheme provisions and considered the application to be consistent with relevant decision guidelines. In deciding to endorse the amended plans to form part of planning permit KP454/04, the officer's report concluded:

[30]

18 The former section 62(3) was not without its shortcomings. The section was interpreted to confer a broad power and it was held in Melbourne CC v Becton[5] that there were no limits on the extent of the amendments that may be approved under section 62(3) so long as they were consistent with the planning scheme and the permit, they did not result in a breach of covenant, and provided the approved development was not transformed. This meant that quite significant changes could be made pursuant to this provision. There were no specific rights of review arising from section 62(3). However, notwithstanding the lack of a right of review of the merits of a decision under section 62(3) or in respect of a council's failure or refusal to make a decision, it was always open to a person to seek a declaration pursuant to section 149B challenging the validity of a decision on the grounds that one of the pre-conditions set out in section 62(3) was not present.

19 It seems quite remarkable that, in the context of introducing a suite of provisions to regularise and improve the amendment of permits, to make the process more transparent and to provide opportunities for participation and review by affected persons, the previous, unsatisfactory statutory provision is retained. The operation of section 62(3) is preserved for innumerable pre-existing permits and permits issued within 3 months after Division 1A came into effect. This is notwithstanding that the section is repealed and no longer appears in the Planning and Environment Act. For many people, it would prove difficult to locate a copy of the section, let alone be familiar with the complexities and nuances surrounding its interpretation. It is difficult to comprehend the reason behind section 216 and what benefit is achieved by perpetuating the operation of former section 62(3).

20 Fortunately in the present case it is not a relevant consideration. Permit KP454/04 was issued on 14 November 2005. Having regard to section 216 of the Act, section 24 of the Planning and Environment (General Amendment) Act 2004 commenced on 23 May 2005. Thus any permit issued after 23 August 2005 is not affected by application of the repealed section 62(3). Because the permit was issued after this date, I therefore find that the changes to the endorsed plans under permit KP454/02 approved by the responsible authority were not changes that could have been consented to by the council under the former section 62(3) of the Planning and Environment Act.

[58]

41 With respect to the issue of overlooking, I consider it was open to the council to conclude that the degree to which the balcony extension fails to comply with the standard in clause 54.04-6 is de minimus in a contextual sense and represents an inconsequential variation having regard to what was said in the Mentone Mansions case.

42 The length of the entire deck along the edge parallel to the common boundary will have a privacy screen 1700mm high of obscure glass/glazing. There will be a return of 950mm on the western edge of the deck. Member Naylor calculated that to comply strictly with the standard in clause 54.04-6, this return should be extended by a distance of 1050mm to a total length of 2 metres.

43 Taking into account the distance, the angle of view and the presence of the privacy screen, there is only a limited view available from the balcony towards the Ellix first floor bedroom window.

44 The decision guidelines of clause 54.04-6 require consideration of the existing overlooking into the habitable room windows of existing dwellings. There are already views towards this habitable room window from the existing balcony on the subject land albeit the existing balcony is 2 metres further away than the edge of the new extension and beyond the 9m radius specified in clause 54.04-6. There is also an existing balcony attached to Unit 7 directly opposite the habitable room window in question on the Ellix property, which is only half the distance away compared to the proposed balcony extension. Direct views from the balcony on Unit 7 to the window may be currently obscured by an existing tree but the tree could be removed at stage, which would expose the habitable room window to a far greater degree of direct overlooking than is likely to occur from the unscreened portion of the balcony extension on Unit 6.

45 In all the circumstances, I consider it was open to the council to conclude that the slim viewline left unscreened within the 9m radius specified in clause 54.04-6 did not represent an overlooking opportunity of any significance and was not contrary to the objective of clause 54.04-6 in any meaningful sense. I find that the council's failure to require a further 1050mm of privacy screen along the western edge of the balcony was a decision that no responsible authority acting reasonably could make.

At a glance

Court

Decision date

Source

Judgment (84 paragraphs)

Ellix v Kingston CC [2006] VCAT 2234 (2 November 2006)

Parties

Legislation Cited (2)

Cases Cited (1)