Victorian Civil and Administrative Tribunal|2006-11-17

Harris v Port Phillip CC [2006] VCAT 2326 (17 November 2006)

Port Phillip Planning Scheme, Section 82 of Planning and Environment Act 1987, Residential 1 Zone, Amenity.

Harris v Port Phillip CC [2006] VCAT 2326

Ms. Marita Foley, Barrister instructed by Ms Zoe Darmos, Deacons

1 This proceeding relates to an application under Section 82 of the Planning and Environment Act 1987 [P and E Act] against the decision of the Port Phillip City Council to grant a permit for alterations and additions to a dwelling at 11 St Vincent's Place, Albert Park.

2 The site is located on the south side of St Vincent's Place and is one of a pair of two storey Victorian Terrace dwellings (it's match being No. 13 St Vincent's Place to the west). The terrace is constructed across the full width of the site. At the rear is a double storey gable ended outbuilding which is accessed via a laneway.

3 The dwelling is included on the Victorian Heritage Register under the Heritage Act 1995 identified as the St Vincent Place Precinct (H1291). A permit has been granted by Heritage Victoria for the works (P10447). Accordingly matters of a heritage nature are not before me.

4 The key issues in this application are the extent of overshadowing and visual bulk of the proposal to the adjoining property to the west (13 St Vincent's Place).

5 Submissions, plans, photos, evidence statements and other documents submitted at the hearing have been retained on Tribunal files. I inspected the subject site and environs following the hearing, including an inspection from the rear courtyard of No. 13 St Vincent's Place.

6 It is proposed to partly demolish the rear of the dwelling and to construct a new two storey extension to the rear consisting of meals/kitchen and living at ground floor and bedrooms and bathroom above. The first floor of the existing outbuilding would also be demolished and addition of a new first floor studio.

7 The works include construction of a pool and decking to the east side of the dwelling and associated fencing and landscaping alterations and installation of a water tank below ground level.

8 The new additions are to be contemporary in design. Materials and finishes include natural zinc cladding, stone and aluminium framed glazing.

9 The subject site is Residential 1 pursuant to the Port Phillip Planning Scheme. A permit is required to develop the land as the site is less than 500m2. The provisions of Clause 54 of the scheme apply.

10 The site is affected by Heritage Overlay No. 258 (St Vincent Precinct). As outlined above a permit has been granted by Heritage Victoria for the proposed development.

11 The decision guidelines at Clause 65 require consideration to be given to a number of factors including the Planning Scheme's policies, the purpose of the zone, overlay and particular provisions that apply, orderly planning and amenity.

12 There are various planning controls and policies of relevance in this application including Clauses 12, 15.11, 16 and 19.03 in the State Planning Policy Framework and Clauses 21 (Municipal Strategic Statement), Clause 22.01 Residential Neighbourhood Character Policy, and Clause 22.04 Heritage Policy in the Local Planning Policy Framework.

13 This Application is essentially about potential overshadowing and visual bulk to the adjoining property to the west arising from the proposal. These matters are not always simple to access, particularly in inner city situations were often allowances must be made. There will undoubtedly be a change in the level of amenity presently enjoyed by the neighbouring property, however, I have found that the extent of change is reasonable in town planning terms.

14 There are two aspects in respect to the potential for overshadowing- firstly the affect of the development on the skylight windows of No. 13 St Vincent's Place which presently enhance the daylight available to the kitchen and living area of No. 13 St Vincent's Place and secondly the affect of the development on the private open space of the neighbouring property.

15 In respect to the overshadowing of private open space, the rear courtyard area is about 67.5m2 (including verandah area) (75% is 50m2). The courtyard being south facing is already subject to overshadowing both from its own building, fences and neighbouring structures. The subject site will cause additional shadow to 13 St Vincent's Place only in the morning due to its location to the west.

Standard A14 of Clause 54 states that:

When sunlight to the secluded private open space of an existing dwelling is reduced, at least 75%, or 45 square metres with a minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a maximumof five hours of sunlight between 9 am and 3 pm on the 22 September.

If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced (my emphasis).

16 The proposal does not comply with the provisions of Standard A14 as 13 St Vincent's Place enjoys less 5 hours sunlight to 45m2 of private open space. Accordingly the standard requires that the amount of sunlight should not be further reduced. Ms Quigley submitted that some allowances must be made for an inner city situation. I agree that many inner city private open spaces have existing overshadowing greater than the standard. The objective of the standard is to ensure buildings do not unreasonably overshadow existing secluded private open space.

17 From the various shadow diagrams provided to me, the courtyard of 13 St Vincent's Place has 3-4 hours of sunlight between 9 am and 3pm on the 22 September and this will be reduced to 2-3 hours following the new works on the subject site. I heard evidence from Ms. Jordan in respect to the this reduction and consider that this evidence reasonably portrays the effect on the amenity of the neighbouring site. I find that the additional overshadowing is acceptable taking into account the decision guidelines in the standard for the following reasons:

a) The block is south facing.

b) The total width and size of the private open space area is reasonable for its inner city location (67.5m2 including verandah).

c) Sunlight is available over the lunchtime period.

d) The amount of additional shadow is generally contained to the roof area of the neighbouring building, the verandah and the immediate area of private open space just beyond the verandah. This area is quite narrow and widens to a more usable concrete area near the pond.

e) The extension where it protrudes beyond the verandah line has little impact on the overall shadow being at only 2.7 metres in height at ground level and the balcony being setback from the boundary.

18 With respect to the skylights, I note that they take the form of windows and are not opaque glass. I agree with Mr. Bonnice that it is clearly evident, in the design of these works, that a high priority was the introduction of daylight into poorly lit spaces through the extensive use of clear glazed roofing. The impact on the skylights occurs only early in the morning. By 9.15 the skylights in the living area are shadowed by the existing conditions. The kitchen area will be shadowed until 9.30 am after which time it is clear of shadow. There is no standard for skylights within Clause 54. However, I consider that the extent of additional shadowing is limited to a small period of time in the early morning and accordingly is acceptable.

19 The ground floor extension does not protrude beyond the alignment of the verandah on the adjoining property which is enclosed on the western side with a cupboard more than 1.2 metres. It however does not meet standard A11 for walls on boundaries. The extent of new wall on the boundary is in my view marginal, at 2.7metres in height reasonably proportioned and capable of being absorbed into the view of the adjoining property. Similarly the upper level extension does not extend beyond the ground floor with the exception of some batons. The first floor extends beyond the line of the verandah on the adjoining property with a small balcony setback 1.7 metres and screened with a 1700mm high timber screen which will not in my view create significant visual bulk to the neighbouring property due to the angle of view, the setback, the change in levels and its light form.

20 The new garage addition is similar to the existing situation with the exception of the bathroom area. Mr. Bonnice submitted that this bathroom should be reduced in extent to minimise the effect of visual bulk. I consider this unnecessary due to the setback, change in levels and articulation.

21 There will be direct overlooking from a north facing first floor window above the garage on the west side of the studio. This has been addressed in the conditions on the notice of decision.

22 For the reasons that I have set out above, I will affirm the decision of the Responsible Authority and direct that a permit be granted subject to conditions.

Environment Act 1987

Harris v Port Phillip CC [2006] VCAT 2326

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Harris v Port Phillip CC [2006] VCAT 2326 (17 November 2006)

Parties

Legislation Cited (1)