Victorian Civil and Administrative Tribunal|2004-02-11

Fitzroy Rose PL v Yarra CC [2004] VCAT 155 (11 February 2004)

This application for review is granted. The approved and endorsed Material Finishes Schedule in relation to Planning Permit PL01/1018 is amended so that item 7 therein will read:

Mr. Jonathan McNally, Statutory Planner of the City of Yarra appeared for the Responsible Authority.

Ms Colleen Peterson, Town Planner, appeared for the Applicant company.

Application under Section 149 of the Planning and Environment Act 1987 (PE Act) for review of the refusal of the Responsible Authority to approve an amendment to the material finishes schedule approved in relation to planning permit PL01/1018.

Amendment to Item 7 on the Material Finishes Schedule approved and endorsed as part of the endorsed plans in relation to planning permit PL01/1018 to allow colorbond metal frame garage doors in place of the opaque glass panel metal frame garage doors originally approved.

Mixed Use Zone and subject to an environmental audit overlay and a heritage overlay (334, South Fitzroy Precinct) under the Yarra Planning Scheme.

1. Planning Permit PL01/1018 was issued by the Responsible Authority on 12 April 2002. the permit allows part demolition, alterations and additions to an existing building to create a 3 storey building to contain 8 dwellings and a ground floor office.

2. The site has a frontage of 12.84 metres to the south side of Rose Street and with a depth of 36.8 metres. It is located on the south western corner of a laneway that runs south from Rose Street along the eastern boundary of the lane. On the opposite side of this lane are the rear abutments of a row of shops facing the street further to the east. It is distinctly a run down service lane.

3. The proposed dwellings would be of 2 storeys above ground floor with double garage and pedestrian access to each unit via the lane. It is a dead end lane at its southern end with an existing street light half way along.

4. Each of the 8 units would have a garage door to its double garage facing the lane. The original plans provided for these doors to be "opaque glass panel metal frame garage doors - galvanised finish to frame". Apart from being of superior appearance, an additional advantage of this was conceived to be that such doors would let some light through at night time if the garage lights happened to be on. Pedestrians going to the units would walk along in front of the garage doors under the overhang of the building above. Towards the end of the lane this walkway might be rather dark if adequate outdoor lighting was not provided. The contribution of light through the opaque glass doors would be lost if, as now proposed, colorbond garage doors were installed instead.

5. This case arises from a refusal by the Responsible Authority to approve an amendment to allow such colorbond garage doors. Certain other amendments sought under Section 62(3) PE Act were approved by the Responsible Authority, but this one was not.

6. The Responsible Authority favoured the opaque glass doors because of the lighting and security advantages previously mentioned. The attractive appearance was also borne in mind.

7. So far as the lighting and security considerations are concerned, the design and endorsed plans already make suitable provision. A series of architectural features are depicted at intervals down the laneway. They are in proximity to the various pedestrian doors. The se features are constituted by curved poles. In relation to each there is a notation on the plan reading "GALVANISED STEEL CURVED POLES WITH LIGHTING TO UNIT ENTRANCES". These lights will be part of the public outdoor lighting arrangements for the development controlled by means of a time clock to be controlled by the Body Corporate proposed for the development. This is to be said to provide lighting from sun set to sun rise. That initial setting will be able to be varied by the Body Corporate.

8. In my opinion this is a much more satisfactory arrangement in relation to lighting and security. Those concerns are adequately dealt with by that means.

9. So far as the external appearance of the proposed double garage doors is concerned, I agree that the suggested opaque glass door will be more attractive than the now proposed colorbond metal ones, even though the current proposal would be for good quality doors. If these doors were fronting Rose Street or otherwise exposed to significant viewing from the public domain, there may be justification for maintaining the requirement for the glass version. However, these doors will in fact only open on to the shabby and secluded service lane. They will hardly be visible from any portion of the public domain frequented by the public. This substantially reduces the importance of their appearance, provided that there appearance is nevertheless neat and reasonably attractive. They will hardly be seen, except by the residents or people using the back gates of the shops or the occasional visitor venturing down the lane.

10. In these circumstances the question of the appearance is much less significant, the new proposal is quite acceptable, even if it is little less attractive than the original proposal. There is no reason why it should not be approved.

11. The Responsible Authority, in coming to its decision the Responsible Authority had regard to my reasons for my decision in the case of Grosios v Monash CC [2003] VCAT 620, 15 VPR 65. It considered that I had laid down a number of tests to be applied in determining whether amended plans should be approved under Section 62(3). These are set out in the Officer's report in the following terms:

"(a) an improvement on the original endorsed set;

(d) such that they could have been endorsed in the first place, if they had been submitted in preference to the ones that were submitted and endorsed."

12. This list is, no doubt, derived from what I said in paragraph 20 of my reasons in the Grosios case. That paragraph reads as follows:

"20. In this case I am faced with a new set of plans that both the Applicant and the Responsible Authority consider to be: -

(b) (sic) an improvement on the original endorsed set;

(e) such that they could have been endorsed in the first place, if they had been submitted in preference to the ones that were submitted and endorsed."

13. In paragraph 20 I was describing the situation that existed rather than laying down rules or guidelines, at least so far as the first item in the list is concerned. The second and third sub-paragraphs are rules set out in Section 62(3) PE Act itself. The fourth is a "rule of thumb" which I formulated in the unreported case of Arborea v Hume City Council [2001] VCAT 2454 20 December 2001 as a useful guideline. However the first item about being an improvement on the originally endorsed plan was only meant to be descriptive and was never meant to lay down a rule that such an improvement was necessary. The test, in my view, (apart from the legal ones required by Section 62(3)) is the fourth item. An amendment can be made even if the result is not superior to the original. It could be of similar impact or, as in this case, not quite so good, as long as it is acceptable and appropriate in the circumstances and, as I have said, such that it might appropriately have been approved if originally proposed in that form.

14. Accordingly, for these reasons, I propose to grant the application for review and approve the modification order.

Environment Act 1987

Fitzroy Rose PL v Yarra CC [2004] VCAT 155

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Fitzroy Rose PL v Yarra CC [2004] VCAT 155 (11 February 2004)

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Legislation Cited (1)