Overshadowing of the private open space of 28 Simpson Street

1. The applicant for review submits the proposal will reduce the amount of light to the courtyard at 28 Simpson Street. This courtyard is a space that was created between the rear of the original dwelling on that site and the recently completed extension to the rear. The courtyard is visible in the aerial image at Figure 1.
2. The 'Overshadowing open space objective' at clause 54.04-5 seeks 'To ensure buildings do not unreasonably overshadow existing secluded private open space of dwellings or small second dwellings'. The associated standard A14 sets out requirements relating to the secluded private open space ('SPOS') of a dwelling receiving a minimum of five hours of sunlight between 9:00 am and 3:00 pm on 22 September.
3. The proposal will cast additional shadow over the courtyard at 28 Simpson Street. It is notable that at the time the Council decided to grant a permit for the proposal this courtyard formed part of the rear yard of the house. The courtyard was created when the rear extension to the house was constructed. The applicant for review confirmed that the building permit for the extension was obtained in August 2024; this was after the Council issued the Notice of Decision to grant a permit for the proposal.
4. It is relevant that the courtyard is not the only area of SPOS for the house at 28 Simpson Street. It also has a large yard to the rear of the recent extension. The rear yard is located beyond the rear boundary of the site. This is evident in the aerial image at Figure 1. The open plan kitchen, dining, and family room in the recently constructed extension open out to both the courtyard and the rear yard.
5. I am not persuaded by the submissions of the applicant for review that the rear yard is not a SPOS. They argue it is not secluded due to it being overlooked by the flats on the adjoining property to the north, at 2-4 Thomson Street. While some of those flats have windows facing 28 Simpson Street, they are set back about 6 metres from the shared boundary.[4] It is also evident that there is landscaping, along the boundary between the block of flats and 28 Simpson Street. In these circumstances I am satisfied that the rear yard is afforded a reasonable amount of privacy, and is an area of SPOS.
6. I am persuaded by the Council that the sunlight to the rear yard is not affected by the proposal, and that the proposal complies with Standard A14.
7. In accordance with clause 54, as the proposal complies with Standard A14 it is deemed to satisfy the corresponding objective.

Overlooking into windows and the rear yards of 28 and 32 Simpson Street

1. The applicant for review raises concerns about overlooking from the windows in the first floor level of the proposal. They are particularly concerned about the potential for overlooking from the large window in the eastern wall of the first floor level bedroom of the proposal, as well as a window in the southern wall.
2. The Overlooking objective at clause 54.04-6 seeks 'To limit views into existing SPOS and habitable room windows'. The associated Standard A15 sets out various requirements to achieve this objective. Those requirements relate to habitable room windows, as well as a balcony, terrace, deck or patio.
3. The plans show the large window in the eastern wall of the first floor level bedroom to have a '25% open perforated circles external screening' up to a height of 1.72 metres I am not persuaded by the submissions of the applicant for review that when standing close to the window the resident will be able to see out through the holes in the screen. While this may be possible, the overlooking objective and Standard A15 do not seek to completely block views. Standard A15 specifically allows for screens used to obscure a view should be 'Perforated panels or trellis with a maximum of 25 per cent openings or solid translucent panels'. If the screen meets this requirement, it will meet the requirements for screening under Standard A15. I am satisfied that a permit condition can be included requiring an amendment to the plans to include a notation that the screening will accord with this requirement. Under clause 54, if the proposal complies with Standard A15 it is deemed to satisfy the corresponding objective.
4. While there are windows along both the northern and southern sides of the first floor level of the proposal, they are not habitable room windows. Along the northern side the windows are to ensuite bathrooms. These windows are shown to be obscure glazing. Along the southern side the window is above the staircase. As such, the provisions of Standard A15 does not apply to these windows.
5. I am not persuaded by the applicant for review that the window in the southern side should be obscure glazing. This is not a habitable room window and under Standard A15 it does not require screening to limit views to any habitable windows in the adjoining property.

1. The applicant for review submits that the depth and height of the proposal will create a 'bulk wall' that will leave the rear open space of 32 Simpson Street 'hemmed in'. They also raise concerns about the visual impact of the proposal as viewed from the house at 28 Simpson Street through the courtyard.
2. The proposal will extend about 4 metres beyond the line of the rear wall of the house at 32 Simpson Street. It will also extend across the width of the courtyard of the house at 28 Simpson Street. The applicant for review is seeking a significant reduction in the depth of the proposal to minimise the impact of this 'encroachment'.
3. Clause 54 of the Scheme includes objectives, standards and decision guidelines both for side and rear setbacks, and walls on boundaries.
4. The 'Side and rear setbacks objective' at clause 54.04-1 seeks 'To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings'.
5. The associated Standard A10 sets out requirements for minimum setbacks from a side or rear boundary based on the height of a building.
6. The 'Walls on boundaries objective' at clause 54.04-2 seeks 'To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings'.
7. The associated Standard A11 sets out requirements for the height and length of walls on boundaries.
8. Under clause 54, if the proposal complies with Standards A10 and A11 it is deemed to satisfy the corresponding objectives.
9. In relation to the boundary with 28 Simpson Street, the proposal complies with the side boundary setback requirements under Standard A10, and does not include a wall along this boundary.
10. In relation to the boundary with 32 Simpson Street, the ground floor level of the proposal is built along part of the boundary, with the first floor level set back from the boundary 1.22 metres. The wall on the boundary complies with the requirements of Standard A11, however the setback of the first floor level does not comply with the minimum requirement under Standard A10.
11. The Council's Notice of Decision to Grant a Permit includes a condition requiring the northern wall of bedroom 4 at first floor level to comply with Standard A10. It is this part of the first floor level that extends past the line of the rear wall of the house at 32 Simpson Street.
12. I am satisfied that the extent and height of the proposed building that will be visible from the courtyard of 28 Simpson Street and the rear yard of 32 Simpson Street is reasonable in the context of the relatively small size of the site, and the interfaces with the adjoining properties. Even though the proposed building will be visible from these adjoining properties, the visibility of the building is not the relevant 'test' under the Scheme. The siting, heights, and setbacks of the proposal in compliance with Standards A10 and A11 will limit the visual impact on the adjoining properties.

1. For the reasons given above, I am satisfied that the proposal will:

(a) allow adequate daylight into existing habitable room windows of the houses at 28 and 32 Simpson Street;

(b) allow adequate solar access to existing north-facing habitable room windows of the house at 28 Simpson Street;

(c) not unreasonably overshadow the existing SPOS of the house at 28 Simpson Street;

(d) limit views into existing SPOS and habitable room windows of the houses at 28 and 32 Simpson Street;

(e) limit the visual impact on the amenity of the houses at 28 and 32 Simpson Street.

1. I am therefore satisfied that the proposal provides an acceptable outcome and that a permit should be granted.
2. The decision of the responsible authority is varied. A permit is granted subject to conditions.
3. The conditions contained in this Order reflect those proposed by the Council, the submissions of the parties, and the further my further consideration.

Construct or extend one dwelling on a lot less than 300 square metres, in the General Residential Zone - Schedule 2.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. When approved, the plans will be endorsed and will then form part of this Permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application, identified as A603, Rev. A, dated 14 May 2023 and A202, A203, A301 and A302, Rev. C, dated 14 May 2023, prepared by Coll Architects but modified to show:

(a) The ground and first floor plan updated to include accurate site conditions as related to numbers 28 and 32 Simpson Street.

(b) The first floor, Bedroom 4 (north elevation) modified to comply with Standard A10 at Clause 54.04-1 of the Darebin Planning Scheme (Side and rear setback objective). Wall heights and setbacks must be clearly shown on elevations and floor plans. No other setbacks are to be reduced, or wall heights increased as a result.

(c) The wall on the northern boundary finished in a light coloured, non-reflective finish/material.

(d) Update the notation regarding the proposed finish 'EF-03' to confirm the screen will be:

1. a permanently fixed external screen to at least 1.7 metres above floor level; and
2. be a perforated panel with a maximum of 25 per cent openings or solid translucent panel.

(e) Update the notation regarding the proposed finish 'EF-04' to refer to fixed obscure glazing not film applied to the internal side of the glazing.

(f) Annotations detailing Tree Protection Zone(s), associated tree protection fencing and tree protection measures in accordance with the requirements of Condition No. 3 and 4 of this Permit.

When approved, the plans will be endorsed and form part of this Permit.

1. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
2. Before the development (including demolition) starts, tree protection fencing (TPF) must be erected in accordance with the following requirements to provide a Tree Protection Zone (TPZ):

*As defined in the Arborist report, prepared by BTC Tree Concepts, dated 18 July 2023.

1. The following tree protection measures must be implemented for trees identified in the table to Condition No. 3 of this Permit:

(a) Trees 3 and 4:

1. Decking footings must be aligned away from larger roots to limit the impact on trees.
2. Footings must be dug using a non-destructive method such as manual, pneumatic, or hydro excavation.
3. If excavation for the footings exposes roots greater than 45mm in diameter, the footing must be realigned to an area of no root ingress. Roots less than 45mm in diameter may be pruned by the project arborist to facilitate the footing.
4. Footing excavation must be undertaken under the supervision and direction of an arborist qualified to a minimum of AQF level V in arboriculture.

(b) Existing boundary fence is to act as tree protection for Tree 5.

(c) All services must be routed outside 'Tree Protection Zones'. If there is no alternative to passing through the protection zone, the local authority and the consulting arborist must be advised in writing on the need for directional boring beneath root zone; this must be maintained at a minimum depth of 45cm in soil depth when inside the TPZ of a retained tree.

(d) All tree protection zones must be observed according to Australian Standard AS4970-2009 Protection of trees on development sites. Tree protection zones are to be shown all plans and must be put in place before any works occur on site.

(e) All other tree protection measures are to accord with the recommendations with the arborist report referred to in condition No. 3 of the Permit.

1. The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
2. The land must be drained to the satisfaction of the Responsible Authority.
3. All guttering, rainheads, pipes including downpipes, fixtures, fittings and vents servicing any building on the site including those associated with a balcony must be:

(a) concealed in service ducts or otherwise hidden from view; or

(b) located and designed to integrate with the development,

1. No plant, equipment, services or structures other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.
2. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the issued date of this permit.

(b) The development is not completed within five (5) years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

[1] Nearmap image dated 17 April 2025; the site is identified by a red star.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Having regard to the decision guidelines at clause 65 of the Darebin Planning Scheme.

[4] Measured using Nearmap aerial image dated 17 April 2025.