Fitton v Kingston CC [2005] VCAT 1108

1 This case involves a proposal for the construction of two, three bedroom dwellings on vacant land at the review site. One of the proposed dwellings would be of two storeys with a slightly sloping roof. It would be modern in design and appearance and would be located on the eastern, or lower side, of the land. The other dwelling would be single storey. It also would be modern in appearance. It would have a flat roof and would be on the western side of the land.

2 Although there would be two dwellings, side by side, it is apparent that they would not be "mirror images", one of the other of the "duplex pair" type.

3 A single storey detached house used to stand on the land. It has been demolished. There is a stone retaining wall across a good deal of the front of the allotment, terracing back the land behind it. This wall reaches almost to the eastern boundary. The existing vehicle crossing is at that end of the frontage, and it appears that the driveway used to run down the eastern side of the house that once stood on the land.

4 The two proposed dwellings would, so far as the front walls of their front rooms are concerned, be set back at 12 and 14 metres respectively from the street frontage. However, the proposal is that vehicle access should no longer be on and along the eastern side of the land. It is proposed that there should be two vehicle crossings, side by side, at or near the middle of the street frontage. These crossings, and the driveways behind them, would be separated by approximately 1 metre, with an opportunity for some planting in the 1 metre between the two driveways. However, the responsible authority is of the view that, if a permit was to be issued, this planting area should be eliminated. That could be done, readily enough, by the imposition of conditions. These two driveways would lead back to two adjoining single garages with side by side garage doors. These garages would be set back at only 5.8 metres from the street frontage. They would be well forward of the front walls of the front rooms. The arrangement would provide one car space for each house in a single garage, with space for another to be parked on the driveway between the garage door and the crossing.

5 The setback of the garages is relatively small in the scheme of things, and in the local context; whilst that of the main rooms and walls of the dwellings, is relatively substantial.

6 The closeness of the garage doors to the street rather offends against the guidance in the ResCode provisions (cl.55) of the planning scheme in relation to such setbacks. The ResCode provisions provide for a formula involving an averaging of the front setbacks of the adjoining properties with the guidance indicating an acceptance of that average, or 9 metres, whichever is the less. On that basis it can be seen that these two proposed houses would be set back considerably further than the ResCode formula would require, if it were not for the garages thrust forward in the middle of the allotment. Twelve metres, of course, exceeds 9 metres (which would be the indication under ResCode) by 3 metres whereas a 14 metre setback for the other dwelling represents a concession, compared to ResCode, of 5 metres.

7 Of course, there is nothing to stop there being setbacks greater than the ResCode indications. Nevertheless, fitting two reasonably substantial family homes onto this allotment does call for some attention to the economic use of space.

8 The fact that the allotment is on the south side of Flinders Street also calls for attention to the problem of how to obtain northern exposure for private open space areas. The plans provide for a rear open space area for each of the dwellings, including a relatively narrow one for the single storey dwelling. Both these rear secluded private open space areas would be subject to significant shading from the two house buildings themselves. I say two because they are separated down their length, although the garages at the front, which are part of the built structure, are joined together.

9 The paucity of secluded private open space for the single storey dwelling is sought to be remedied by enclosing the substantial front garden area behind fences and walls over 2 metres in height. Such stealing of front gardens, though they are obviously private open space, for "secluded" private open space is frequently frowned upon in planning circles, and thought to be an indication of overdevelopment of a site.

10 In this case I do not say that this proposal would be an overdevelopment, although the use of space might be improved upon.

11 In the course of the hearing I made the observation that the accommodating of two dwellings on a site like this, generally speaking, must be in the form of one dwelling behind the other, or two side by side. There are advantages and disadvantages in each of these solutions. It cannot be supposed that mere adoption of the other solution would resolve all problems. Proposals like this cannot be ideal from every point of view, and the degree of informed judgement is required in balancing advantages and disadvantages, and assessing whether a particular proposal should be regarded as satisfactory.

12 Even where the two dwellings are side by side, there remains a question as to where motorcar accommodation and access is to be provided. It is not common, I suspect because it is not easy, to provide such accommodation at the rear of the houses unless the land happens to back onto a lane or another road. Otherwise, there is likely to be the need for some body corporate arrangement to manage common use of common property.

13 Another solution is to have two crossings and two driveways, as is the case in this proposal. However, they do not necessarily have to be at or near the centre of the street frontage, and the centre of the front elevation of the building. A common solution is to have them on either side, with the front rooms of the dwelling at or near the centre. Two central garages with two central driveways and two central crossings would, generally speaking, be thought a less favourable solution. In either event, whether garages and driveways are side by side near the centre, or on either side, it is normally preferred, and normally required, that the garage doors be set back, as compared with the front rooms of the dwellings. This might be by a significant, a moderate, or even a minor distance. The aim is to make the front of the dwellings the more dominant eye catching features of the front façade, and to recess the position and importance of the garage doors. This effect can be added to by the use of colours and materials.

14 The responsible authority has some guidelines in relation to these matters. They include a notion that it is preferable for a garage roof to be incorporated in the main roof of the dwelling or dwellings. I have sometimes imposed conditions, when granting a permit for garages on either side, to require that their roof or roofs not be part of the main roofing of the house. This is to reduce the impression of bulk as a whole, and to reduce the importance and prominence of garages and garage doors. In this case it is proposed that the garages have fairly modest flat roofs.

15 After hearing the parties I announced my decision and gave oral reasons. These reasons have been recorded, along with the whole hearing. That being the case, I do not need to attempt to repeat here all that I said. A summary will suffice, although I will make it clear as to why I have decided to refuse this application for review, and to refuse to grant a permit.

16 It was common ground, at least between the responsible authority and the applicants, that this is an appropriate site for a development of two dwellings, even two, three bedroom family homes generally of the sort here proposed. I agree with that.

17 As I have said, the style of the proposed new buildings is distinctly modern. This is a contrast with the surrounding developments, although there has been a degree of transition from the original development of this residential area in the 1960s and 70s. Mr. Davidson, in his evidence, indicated that approximately ⅓ of existing dwellings have been constructed in the 1960s and the 1970s respectively with something in the order of 15% them dating from the 1980s and the 1990s respectively.

18 This case involved a degree of discussion, as is common in these cases, as to the existing neighbourhood character and whether the proposal is respectful of it. There is no designated preferred neighbourhood character relevant to the present case. The responsible authority took the view that these proposed modern dwellings are out of keeping with the existing neighbourhood character in style, and particularly in relation to the style of their roofs.

19 One of the besetting problems in relation to these sorts of assessments is where responsible authorities, and others, tend to equate "respect" for existing neighbourhood character with "reflection of", or even "copying of" existing neighbourhood character.

20 It is certainly true that these proposed dwellings would be a contrast, a modern contemporary contrast, to the earlier developments of styles dating back over 50 years. That does not, of itself, imply a lack of respect. Well designed contemporary buildings, in the midst of other styles can complement, add interest and enhance the attractiveness and interest of the area and the streetscape. Of course, poorly designed new development of that sort might have the opposite effect. What is so often assumed, and which should not be assumed, is that something contemporary is, by that characteristic, disrespectful and out of keeping with a residential neighbourhood character like this one.

21 The thoughtless equating of "respect" with "copying" or "reflecting" is frequently accompanied by desire to impose, inflexibly and without consideration of the circumstances, certain formulas or guidelines, whether they are appropriate in the particular case or not.

22 A good example of this arose in relation to the criticism advanced by the responsible authority of the proposed roofs of these contemporary buildings. The single storey is to have a flat roof, and the other is to have a flat roof, slightly tilted. This is in contrast to the ridged roofs, generally hipped and often complex, of existing developments. However, the notion of plonking a roof of that sort, suitable to houses of a style of the period to which they relate, onto these proposed contemporary buildings, having regard to their contemporary style, would be highly inappropriate. In fact, "highly inappropriate", is probably an unduly moderate expression. The result would be quite incongruous, quite out of place, quite out of keeping with the style of the proposed new dwellings and would, in my opinion, make a sad mess of the appearance of the development, its appearance in the context of its streetscape and in its neighbourhood generally. Planners need to do a little better than a mindless application of guidelines or formulas, which may frequently be useful and appropriate, to all situations in all proposals where they are neither suitable nor appropriate. To echo or repeat in simplified form the roof forms or other common features may often be a good approach. That does not mean that it is always so, and must be slavishly followed in every case.

23 I do not accept that the proposal would be an overdevelopment of the site or that the design and appearance is, generally speaking, inappropriate. The eastern side of the two storey building was criticised as being "box like", in spite of some articulation at ground floor level. Whether I would be completely satisfied with all aspects of these dwellings, from this point of view, I do not now need to determine. However, another formula that has become very popular is that the first floor should be set back, apparently on all sides, from the ground floor footprint. This is a useful means of articulation, and is frequently a helpful guide towards a more interesting, attractive and satisfactory result. However, to apply it always, in every situation, and to every design of house, and to every wall and every part of every wall, takes the approach much too far. Such guidance can be a very helpful servant but when applied unthinkingly and universally, can be a most unsatisfactory master. To change the metaphor, it is a mistake to allow a useful tool to become an imprisoning shackle.

24 Guidelines can be most useful in assessing development proposals. They can assist in avoiding many unfortunate mistakes in the past. However, used indiscriminately and thoughtlessly, they can create new problems, indeed new mistakes, for the present and the future.

25 I do not regard the proposal as objectionable from a bulk point of view, except perhaps for the front garages.

26 In the course of the hearing a number of photographs were produced. A number of them depicted recent developments in Clyve Avenue, a nearby street. I do not know quite what has happened in Clyve Avenue, except to say that the result provides a number of examples of very poor modern developments with frontages to the street dominated, and over dominated by extensive garage doors, garages, driveways and crossings. Even the odd instance where some attempt has been made to apply the idea of recessing garage doors, compared to the front of dwellings, demonstrate that mere application of a formula, without thought, can still give rise to a most unsatisfactory result, where, in spite of recessing, but because of design, decoration and materials, the garage doors nevertheless dominate the front of the development.

27 I do not suggest that this proposal, if allowed to proceed in its current form, would be as bad as some of the worst of those examples. Nevertheless I consider that the proposed garages with their garage doors, even with their flat roofs, thrust so far forward of the rest of the development, and with their driveways and crossings in front of them; achieve an unsatisfactory result. A proposal can be an improvement on the worst of Clyve Avenue, whilst still falling considerably short of what is appropriate and acceptable. In my view, this proposal must be refused because of this feature. I am conscious that rectification of it would require a redesign, not a mere modification of the proposal.

28 None of this discussion suggests the failure to apply policy. On the contrary, it is very much a matter of applying policy, and applying it intelligently. Guidelines, for example in relation to roof forms or first floor setbacks, are intended as a guide towards achieving policies aimed at respect for neighbourhood character and integration in streetscapes and so on. A rigid application of such guidelines or guiding formulas can, if applied thoughtlessly, have an effect opposite to their intention. They must not be allowed to defeat the very policies they are intended to assist in realising.

29 There is another aspect of the proposal that I am not at all satisfied with. This relates to the private open space, and in particular the secluded private open space. I am conscious of the difficulties of planning a development so as to achieve suitable solar access to appropriate secluded private open space areas where two dwellings are proposed on the south side of a street. That does not mean that satisfactory developments cannot be devised. It does mean that some careful thought, and perhaps imagination, is required. I think it is unfortunate that northern sunlight to the proposed rear open spaces is so effectively blocked by the proposed dwellings, particularly for the single storey dwelling where the rear secluded open space is so relatively narrow, having regard to the blocking effect of the house in front of it. Furthermore, I think the solution of enclosing the front garden behind high walls and fences to create secluded open space in that area is an unfortunate solution. The presentation of such walls or fences to the street is unfortunate.

30 I suspect that an appropriate proposal can be devised, and that this may involve a relocation of garages to be set back from the main fronts of dwellings (which may need to move forward). A satisfactory result will also need to address the question of suitable secluded private open space, and solar access thereto.

31 It is for those reasons that this proposal is refused.

32 The objectors raised a number of concerns. In view of the conclusion I have come to, I need not deal with them in detail.

33 Loss of privacy, or overlooking from first floor windows to the property on the eastern side, namely 24 Flinders Street, can probably be adequately dealt with by window screening or the installation of fixed obscure glass. The two storey dwelling has two windows of bedrooms facing due south which, on some of the plans, looks south into a narrow setback and verandah area, said to be an important secluded open space area for the dwelling known as unit 2, 30 Burke Street. 30 Burke Street runs across the rear of the review site. The rear half of its northern side boundary is common with the southern rear boundary of the review site. If I was minded to grant a permit, I might need to look more carefully into the question of these windows. It was suggested, on behalf of the applicants, that some extension to the height of the boundary fence might be appropriate, rather than subjecting occupants of the bedrooms to the enclosed feeling of 1.7 metre high screens or obscured fixed glass. I have not come to the final conclusion in relation to these windows because, amongst other things, the ground floor plan tendered appears to place the verandah area in question in a different location to that depicted on a plan referred to as survey plan that was tendered in the course of the hearing. If the layout of the dwelling at unit 2/30 Burke Street is as depicted on the ground floor plan, there may not be a problem, or it may be a problem that is readily fixed.

34 The property at 24 Flinders Street has a very extensive backyard. The encroachment of shading is onto a very minor portion of it (although the occupants would like to avoid any additional encroachment). The proposal handsomely meets the indications of ResCode in relation to shading, and could not be regarded as a problem.

35 I do not agree that there is any particular problem about traffic safety, notwithstanding that this property is located one frontage away from the intersection of Flinders Street and Burke Street. Although, as I said at the hearing, it is always possible for accidents to occur, there is nothing about this location here to take it out of the normal suburban situation.

36 The amount of off street parking proposed accords with ResCode guidance and, in my opinion, is satisfactory.

37 For the reasons given in the course of the hearing, summarised above, I have determined that the application for review should be refused and that no permit should be granted.

_________________

RUSSELL BYARD

SENIOR MEMBER

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Fitton v Kingston CC [2005] VCAT 1108 (7 June 2005)

Parties

Legislation Cited (1)