Genser & Associates (Aust) Pty Ltd v Yarra CC [2007] VCAT 2261 (30 November 2007)

1. The main issue raised by the parties in terms of impacts on the amenity of abutting properties were the potential for overlooking, a loss of daylight and sunlight, and a loss of views. These concerns were raised in the following terms:
   • Mr Finlayson referred to the potential for overlooking to some windows in the flats at No. 58-60 Wellington Street and to properties on the south side of Blanche Street.
   • Mr Binks referred to the loss of views to the MCG and City beyond from his apartment at 4/58-60 Wellington Street. The same point was made by Mr Chara, at Unit 3 in the same development, who also referred to inaccurate information in relation to several windows labelled for his unit and Unit 7. He raised further concerns about the potential for overlooking these units as well as a loss of natural light and sunlight.
   • Mr Finalyson expressed concern about the extension in the height and length of the northern boundary wall that he said would reduce daylight to the eastern most windows in the southern façade of the units at No. 58-60 Wellington Street. He also submitted that these windows would experience a loss of views down the southern leg of Wellington Street, such as to the Nylex sign.
   • Mr Finlayson referred to a failure to comply with Standards B17 and 19 of Clause 55 in relation to the eastern elevation of dwelling 3 and northern elevation of dwelling 1.
2. My consideration of these matters is in the context of amenity issues raised by the provisions of Clause 55 as well as state and local policies that seek to ensure that a high level of amenity is preserved for existing residents. I have also taken into account corrected window details referred to by Mr Chara.
3. I first refer to overlooking.
4. The design (based on plans dated 12 June 2007) has removed most opportunities for overlooking. The only potential that might remain is in relation to the north-east corner of dwelling 3, associated with the first floor bedroom 2 and upper floor kitchen. Mr Biles acknowledged that a small fin or blade could address this issue in relation to bedroom 2 and I think the same or another option could be considered for the kitchen. This is a matter than can be addressed by conditions. There are no north-facing balconies associated with dwelling 3.
5. I am not persuaded that there is any need for screening associated with the south facing balconies in dwellings 1 and 2. These are small balconies associated with bedrooms that face onto Blanche Street and are positioned opposite the vacant lot. Any views would be over a public street. Any development on the lot can take into account the presence of the balconies should that be perceived to be a constraint. Moreover, the weatherboard dwelling to the south of the lot is at a distance of greater than 9 metres and, in time, would be obscured by a development on the presently vacant lot.
6. I next refer to daylight and sunlight access.
7. The existing dwelling on the review site has a solid brick wall that faces the southern elevation of the building at No. 58-60 Wellington Street. The development would rebuild that wall, which would be cut back at its western end but increased in height by around 400mm and extended to the east so that it would be in front of two sets of windows associated with the abutting dwellings. The western most of these windows appears to be associated with a bathroom or laundry. The eastern-most two window are kitchens, I was told at the hearing. It is correct that these two windows would experience a loss of light and views compared with the existing situation of the single storey section associated with the dwelling on the land. It is also true that Clause 55 standards are not met. At the hearing, Mr Biles proposed that the wall to the north-east corner of Unit 1 be reduced in length by around 1.3 metres at the second floor level (east of the void over the entry to the dwelling) so as to reduce the amount of daylight loss. I think this is a good idea, assisted by the use of light coloured render to add to reflective light. Even though the applicable Clause 55 standards may not be met, I am satisfied that the relevant objectives are met given the site's circumstances and existing conditions associated with the abutting property.
8. The proposed development wraps around the rear of No. 58-60 Wellington Street so units that face west and south into the review site would instead be exposed to a three storey form. This is a considerable change when compared with the vegetated outlook gained to the private open space on the review site at present. It is, however, an acceptable outcome subject to a minor change to achieve compliance with Clause 55.
9. I next refer to the potential loss of views.
10. This is a consideration in relation to several units at No. 58-60 Wellington Street that enjoy views across the site and over the service station. The Tribunal's findings on this type of issue are usually guided by the principles set out in Healy & Ors v Surf Coast SC [2005] VCAT 990. Views enjoyed by the existing units are over private land in a planning context where there is no specific Planning Scheme consideration in relation to view sharing. I accept that views may be part of the existing amenity of several units and a loss is relevant to take into account. The design retains views from south-facing windows associated with the rear wing of the flats at No. 58-60 Wellington Street, through a break between dwellings 2 and 3. There are also viewlines past the northern elevation. While not all views would be retained along the southern viewing line or in relation to west-facing windows (including those in the west elevation abutting the rear car park), an acceptable balance is achieved given the site's physical and planning context. It is noteworthy that the sites fronting Punt Road can be expected to be redeveloped in time - the adopted Urban Design Framework refers to 4-5 storeys scaling down to residential abuttals to the rear. That is, the east side of Punt Road is earmarked for "substantial change" using the words of that Framework. This would obviously impact on existing views.
11. The statements filed by Respondent Objectors did not cite issues with a loss of views down Wellington Street, such as to the Nylex sign. I am not persuaded that Clause 22.03 (Landmarks and Tall Structures) seeks to protect these views from private properties as was contended by Mr Finlayson. I also note there would be unaffected views from large windows in the eastern elevation of the same units. Thus, I am not persuaded that modifications to the proposal are required to protect views from the south-facing windows in the development at No. 58-60 Wellington Street.