Figel v Bayside CC [2007] VCAT 697

The decision of the responsible authority in permit application 2006/549 is set aside. A permit is granted in relation to land at 14 Downes Avenue, Brighton. The permit will allow two dwellings generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the development starts three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans by Agart Studio (Revised 8 January & 13 February 2007)but modified to show to the satisfaction of the Responsible Authority:

(a) All wall heights above ground level being nominated on the plans

(b)

All paving (except driveways) being permeable. Details of the permeability of the paving must be supplied to the satisfaction of the Responsible Authority.

(c)

A schedule of all external materials and finishes to be provided to the buildings and works on the land. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car park surfacing).

(d)

The proposed landscape treatment for the site including the existing and proposed species.

(e)

All externally located plant and equipment (including air conditioning units, heating units, hotwater systems, etc.). Such equipment should be located away from bedrooms of adjoining properties to the satisfaction of the Responsible Authority.

2 The development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

3 Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works (including landscaping) are completed to enable the site to be inspected.

4 Prior to the commencement of development a stormwater drainage system shall be designed and approved by the Responsible Authority. (Where required the design must have regard to Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999 and the retardation of stormwater flows) Prior to occupation of the permitted development the stormwater drainage system must be constructed to the satisfaction of the Responsible Authority

5 The redundant vehicle crossings must be removed and the area reinstated with appropriate kerbing and channelling (and then sown with grass) to the satisfaction of the Responsible Authority.

6 Vehicle crossings shall be a minimum distance of 1.5 metres from any street tree unless approved in writing by the Responsible Authority.

7 The proposed crossover to be setback a minimum of 1 metre from any road reservation assets to the satisfaction of the Responsible Authority.

8 All basic services, including water, electricity, gas sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.

9 All service pipes (excluding gutters and downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

10 All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered to the satisfaction of the Responsible Authority.

11 Before any construction or demolition works commence on the site, to the extent that the site perimeter is unfenced and/or is not fenced to the satisfaction of the Responsible Authority, a secure fence is to be erected around the perimeter of the site to prevent access to the site from unauthorised persons. This fence is to be maintained for the duration of the construction and demolition, be a minimum height of 1.8 metres or such alternative height as is approved by the Responsible Authority and to be constructed and sited to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work has ceased on the site.

12 Prior to occupation of the permitted development, areas set aside for parked vehicles, access lanes and associated access ramps as shown on the endorsed plans must be:

(a)

constructed to the satisfaction of the Responsible Authority;

(b)

properly formed to such levels that they can be used in accordance with the plans;

(c)

surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority; and

(d)

drained, maintained and not used for any other purpose to the satisfaction of the Responsible Authority.

13 Before the development hereby permitted starts, three (3) copies of a Landscape Plan must be submitted for approval by the Responsible Authority. The plan must show the proposed landscape treatment of the site and include supporting information to the satisfaction of the Responsible Authority. In particular the plan should, be to a scale of 1:100 or 1:200, be generally in accordance with the plan of john Patrick Landscape Architect, and show:

(a)

Accurate location of boundaries, existing and proposed built elements, neighbouring buildings and/or vegetation that may affect or be affected by the proposed development and landscape.

(b)

Accurate location and identification (botanical name) of existing vegetation to be retained and/or removed.

(c)

Tree Protection Zones as required by the Responsible Authority.

(d)

Clear identification of the following elements:

(i)

Areas proposed to be lawn, pavement, garden beds, other landscape features;

(ii)

Proposed tree locations, shrub and ground cover groupings, climber locations;

(iii)

Coded identification for these groupings and the numbers proposed; and

(iv)

A Plant Schedule, which consists of an itemised list of all proposed species. The schedule must include the following headings:

Plant code; (refers to codified botanical names used on plan, , Bm) for example

(e)

Supporting notes on the plan that elaborate on specific requirements for the proposed landscaping (eg. site preparation, protection during construction of existing vegetation, use of a suitable mulching material and proposed depth etc.)

(f)

A legend that explains any graphic symbols used on the plan.

When approved the plan will be endorsed and will then form part of the permit.

14 Before occupation, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority.

15 This permit will expire if one of the following circumstances applies:

(a)

The development and use is/are not started within two (2) years of the date of this permit.

(b)

The development is not completed within two (2) years of the date of the commencement of the works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for two, two storey dwellings over basements, at 14 Downes Avenue, Brighton. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:

1. The proposal is contrary to the intent and objectives of the Bayside Planning Scheme, in terms of built form, especially in regards to Clause 22.07.

2. The proposed development does not comply with the setback requirements of the Schedule to the Residential 1 Zone.

3. The proposal has a detrimental impact on the character of the area as its scale and massing area out of context and would cause unreasonable level of visual bulk to the streetscape.

4. The proposal would cause an unreasonable level of detriment to the amenity of the surrounding residents.

5. The proposal has a lack of opportunity for landscaping within the front setback.

6. The proposal is contrary to the Neighbourhood Character, especially comprising a boundary to boundary development and two vehicle crossings.

2 At the commencement of the hearing Mr Pitt applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the Tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the Tribunal ordered the amendment of the permit application in accordance with Mr Pitt's request.

3 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

4 The subject land is a regular lot located on the south side of Downes Avenue and contains a single storey brick dwelling set back approximately 8 metres from the street frontage, with a double carport within the frontage setback.

5 Downes Avenue was created in 1927-1928 from land subdivided from the nearby Kamesburgh Estate[1]. Downes Avenue is now an attractive tree lined street primarily developed with an array of dwellings from the interwar period[2]. Like much of Brighton the street is located in close proximity to shops, schools, community facilities, public transport and parklands.

6 Wall materials include stucco, render and red brick. Roof forms are is consistently pitched tiled roofs. Building heights are a mix of 1 and 2 storeys. Front fences are varied. Front setbacks range between 7-10 metres.

7 The proposal is the construction of two, two storey attached dwellings on the site each with a basement garage. Features of the proposed development include:

•

two basement car parks accessed via 3.07 metre wide ramps, each providing two car spaces and a small room which may be used as a gym or home theatre;

•

centrally located front entrances;

•

a pitched roof with an maximum height of 8.85 metres;

•

a front setback of 8.2 metres;

•

a rear setback of 5.5 metres;

•

a rendered brick and wrought iron fence with a pier height of 1.65 metres.

8 The subject land is within a Residential 1 zone, and a permit is required to construct two or more dwellings on a lot. The land is also within Design and Development Overlay (DDO2) the relevant schedule to the overlay provides that a permit is not required for a building with a building height of not more than two storeys and not more than 9 metres.

9 In response to the present proposal, the council resolved to prepare a planning scheme amendment to seek interim neighbourhood character controls over the south side of Downes Street in Brighton. The control does not at present exist, and Mr Appudurai did not argue that it was not a matter which should be given considerable weight in the determination of this application.

10 The significant issue in this application for review is neighbourhood character, or more particularly the appropriateness of the proposed dwellings within the Downes Street streetscape. Having considered the submissions, in my view these are issues which can be addressed dealing with the following design elements,

i

frontage setback;

ii

opportunities for landscaping;

iii

the visual impact of the proposed basement ramps, and;

iv

architecture and articulation;

together with other issues including direct amenity impacts.

11 The frontage setback is 8.2 metres. The adjoining dwellings at 12 and 16 Downes Street have frontage setbacks of 8.2 metres and greater than 16 metres respectively. Consequentially, the revised ResCode standard would require a frontage setback of 9 metres. The proposed development was criticised on the basis of the reduced frontage setback.

12 In my opinion these criticisms of the proposed frontage setback are unsustainable and disregard the presence of a substantial brick garage within the frontage setback of 16 Downes Street, and indeed the established frontage setback of the existing dwelling at 14 Downes Street. The proposed frontage setback is a reasonable response to the site context.

13 The opportunities for landscaping within the frontage setback were primarily criticised on the basis of the proposed extent of paving within the frontage setback.

14 If one considers the area of the frontage setback to be paved for the accommodation of motor vehicles, then it is intended that two 3 metre wide driveways replace the 5.5 metre wide driveway and carport which presently occupy the frontage setback. In my view the slight increase in pavement required for the accommodation of vehicles is outweighed by the removal of the building, the carport, within the frontage setback.

15 The proposal to redevelop the land with two dwellings does bring with it the need for additional pedestrian pathways. The paving for pathways is hardly an inappropriate aspect of garden design within a suburban streetscape such as that found in Downes Street.

16 I am satisfied on the basis of Mr Patrick's evidence that a substantial landscape can be established within the proposed frontage setback in a manner which is consistent with the landscape character of the streetscape. Moreover, as a consequence of the varied ResCode standards applicable under the Bayside Planning Scheme, the side setbacks of the proposed dwellings are much larger than is normal in the street, and the landscaping proposed within these setback areas will add to the landscape setting of the proposed dwellings.

17 There are no other basement car parks within Downes Street. The proposed development was criticised on the basis that the proposed basement ramps would be a foreign, and jarring element within the Downes Street streetscape.

18 Ms Rigo tabled photographs of similar car parking solutions in nearby redevelopments in Campbell Street. My observations in relation to these developments are:

•

The ramp and the basement garage opening are prominent streetscape elements, when viewed, directly along the line of the basement ramp, and without the presence of any intervening gates;

•

From the perspective of a person moving along Downes Street, the view of the basement ramp and opening is a transitory experience;

•

Design detail is important.

19 The proposal includes gates within the proposed front fence, and the Applicant indicated during the course of the hearing they would accept a requirement for automatic closers on the proposed gateways. I am satisfied on the basis of the relevantly transitory nature of one's actual experience of the proposed basement ramps, and the Applicant's willingness to accept a requirement for automatic closers on the proposed gates that the proposed basement ramps and associated basement openings would not be unduly intrusive from a streetscape perspective.

20 Notwithstanding the various criticisms made during the course of the hearing, in my view the architecture of the proposed building, particularly as viewed from the street, is entirely appropriate. The front façade of the building is highly articulated. Aspects of the design detail, and the pallet of colours and materials chosen, are respectful interpretations of design elements, colours and materials found within the existing streetscape.

21 While the building will be understood to be a building containing two dwellings, the adoption of a unified roof form and the general confirmation of the building elements within the front façade, avoids the obvious subdivision of the land into two[3] in a way which would be disrespectful of the broader subdivision pattern which is characteristic of the street.

22 The amended design, and in particular the adoption of the villa pair style development, produces a series of outcomes which in my view ensure that there are no unreasonable offsite amenity impacts i.e.:

•

The proposed buildings are generally located within what could be regarded as the typical building zone on other lots within the street;

•

Compliance with the revised ResCode standard results in very generous side setbacks, and contributes to the opportunity to create an appropriate landscape setting for the proposed dwellings;

•

The backyard spaces on the immediately adjoining sites are as a consequence of the layout of development on those sites well separated from the proposed building, and;

•

The building has been designed to avoid unreasonable overlooking.

Neighbourhood character guidelines - retention of existing dwellings

23 Under the provisions of clause 22.07 - Neighbourhood Character Policy, the land falls within neighbourhood character precinct B5. An aspect of the precinct guidelines relevant to precinct B5 is a policy to encourage the retention of existing dwellings. The proposal is clearly inconsistent with this precinct guideline, as it proposes the demolition of the existing dwelling.

24 In my view it is difficult to give this guideline significant weight, in the context where there is no control over the demolition of the subject building under the planning scheme provisions. The Applicant could have demolished the existing dwelling prior to making the current permit application without the need for a planning permit. Another owner of the land could demolish the existing dwelling and built a new dwelling without a need for a planning permit. In the particular circumstances of the subject land, the retention of the dwelling would prevent the achievement of other planning policies relating to urban consolidation and housing diversity.

25 In a similar vein, many of the respondent objectors argued that the proposed development was inappropriate because of its adverse impacts on the heritage values of the Downes Street streetscape. The reality is that the subject land is not within a heritage overlay area, and indeed the level of modification within the street suggests that it is unlikely that the street would ever be included in a heritage overlay area. Heritage considerations are not relevant considerations in this application.

26 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit granted.

27 In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

[1] An A listed place in the Bayside Heritage Study.

[2] There has been considerable modification of these dwelling to meet the needs of the modern occupants.

[3] As a consequence of the character of the proposed built form elements.