Demolition of an existing building and construction of three dwellings.

Application under section 80 of the Planning and Environment Act 1987 - to review the conditions contained in the permit.

Heritage Overlay Schedule 671 (Union Road South Residential Precinct)

Clause 32.09-6: to construct two or more dwellings on a lot; and

Clause 43.01: to demolish a building and to construct a building or construct or carry out works.

Clauses 11, 15, 16, 18, 19, 21.05, 22.04, 22.05, 32.09, 43.01, 52.06, 55, 65 & 71.02.

This rectangular site is located mid-block on the western side of Union Road. It has a 20.12, a 42.87 metre depth and an area of 862.5 square metres. A non-contributory brick dwelling occupies the site. Access to the rear of the site is available from a right-of-way.

1. Mr Huang ('the applicant') proposes to demolish a non-contributory dwelling in a heritage area and construct three new dwellings. Boroondara City Council issued a permit for the development. Mr Huang seeks a review of the following conditions:

1a) The black metal cladding on the first-floor southern elevation between Dwelling 1 - Bedroom 2 and 3 and Dwelling 2 - Bedroom 2, to be replaced with natural timber or similar, to the satisfaction of the Responsible Authority.

1b) The section of unmade right-of-way abutting the title boundary of the subject site shown as constructed and drained to a trafficable standard in accordance with Condition 9 of this permit and to the satisfaction of the Responsible Authority

1c) The ground floor level northern wall of the living/meals of Dwelling 1 to have a minimum setback of 4 metres from the boundary, without altering any other side and rear boundaries.

1d) The first-floor level eastern wall of bedroom 3/rumpus of Dwelling 3 to have a minimum setback of 4 metres from the eastern boundary, without altering any other side and rear boundaries.

1l) All windows that are shown to be obscured as having fixed obscure glazing up to 1.7 metres.

1. Regarding Condition 1a), he says that the proposed black metal cladding accords with the relevant policies and provisions and its replacement would compromise the integrity and appearance of the dwellings.
2. Regarding Condition 1b), he says that the condition is ultra vires because the planning scheme contains no policies relating to the proposed works. He also says that the works are unnecessary given that the proposal will generate low traffic volumes in the right-of-way.
3. Regarding Conditions 1c) and 1d), he says that the proposed setbacks comply with relevant policies and provisions and the alteration required will compromise the internal living spaces and reduce the amenity of future occupants.
4. Regarding Condition 1l), he says that the current screening techniques meet the relevant standard and that the replacement required by this condition is excessive.
5. Having inspected the site prior to the hearing, and after hearing submissions, I found that the conditions regarding the cladding, the construction of the right of way, and the conditions regarding setbacks are not required to ensure an acceptable planning outcome. I also gave my reasons why the condition regarding overlooking was warranted.
6. I gave my reasons for these findings at the hearing and summarise my reasons below.
7. Following the hearing, I undertook a second site inspection to resolve the outstanding issues. Based on this second inspection and having regard to the submissions made, I find that the conditions regarding the cladding and the eastern setback are not warranted. I give my reasons for these findings below.

1. The council contends that the extent of black metal cladding on the first floor south elevation is excessive and does not complement the Heritage Precinct that the site forms part of. It says that it is contrary to the predominant finishes of weatherboard cladding and red face brick that is evident in the precinct.
2. The applicant contests this condition. He says that the cladding is not highly exposed to the street because:
   • It is setback 14.5-25 metres from the front boundary;
   • It is blocked from the street view by the contributory dwelling to its south; and
   • It is hidden by the brick clad ground floor façade of the proposed dwelling that faces the street.
3. He says that it will not have a significant impact on the contributory dwelling to the south because this dwelling has few windows on its northern side.
4. The Union Road South Residential Precinct affects several properties on Union Road south of Canterbury Road and north of Varzin Avenue. It does not apply to all properties in this section of Union Road presumably because of ongoing infill development of a non-contributory nature.
5. The Statement of Significance for the precinct says that its heritage significance is due to it demonstrating aspects of the growth and consolidation of Surrey Hills from the latter decades of the 19th century through the later interwar period. The council describes the aspects of the significant and contributory properties that demonstrate this significance as being:
   • The higher areas of Union Road (where) the houses are often elevated off the ground which enhances their presentation and prominence;
   • (It is) notable for a concentration of larger scaled houses on generous allotments;
   • The precinct comprises 'significant' and 'contributory' dwellings from the 1880s through to early 1940s, and has a comparatively high level of intactness;
   • Federation and Victorian architecture is common throughout the precinct with dominant main rood with an integral verandah rood, diagonal planning, return verandahs, and an accentuated corner bay or tower bracketed by two or more wings projecting at right angles;
   • There are also strong characteristics of Bungalow designs and later interwar housing, with square plans, corner 'cut outs' to provide for porch verandah, side entries set well back on the site, and main transverse gable roofs; and
   • Later interwar houses have simplified Tudor elements in clinker and tapestry brick, with some cement render, brick gable front with boxed eaves, steeper roof pitches, slender chimneys and often without verandahs.
6. Having considered the proposed black metal cladding in this context, I find in the applicant's favour. The site is at the southern end of the precinct and is not in the higher areas of Union Road where most Victorian era dwellings are found. Rather, it is amongst a group of five properties close to the low point in this section of the street where two are non-contributory. The review site is one of these non-contributory dwellings while the second is the neighbouring property. This is on the 'high' side of the review site and has a substantial second storey clad in cream weatherboard. It is the most prominent dwelling, although it is hardly prominent amongst the street tree plantings and well-established front gardens. In this context, the black cladding in contest will sit as a more recessive built form element than its neighbour.
7. Further to this, the broader streetscape has a range of housing styles including 1970s villa units and a more recent mock-Georgian dwelling. This diversity reduces the integrity of the precinct to the point where it can accommodate the black cladding.
8. Finally, the valued interwar dwellings are clad in dark materials that make them appear more recessive when viewed from the street. This is accentuated by the established garden plantings. In this context, a further dark coloured element in the streetscape is quite complementary to its significant and contributory neighbours.
9. Separately, I accept the applicant's submission that this cladding will not adversely affect the amenity of the dwelling to the south because it has few windows on its northern elevation and because views from these windows are largely screened by the boundary fence and the dwelling's eaves.

1. At the hearing, I found that this condition should be deleted. I found that there was an insufficient nexus between the condition and the impact on the lane of additional vehicle movements from one vehicle. On my inspection, I noted that several properties use the lane for vehicle access (regularly or occasionally). This right of access is available to the review site at present.
2. The proposal takes advantage of this by accessing one dwelling from the lane. In other words, it is exercising a right that it already has. As such, I find it inappropriate to impose a requirement to construct this section of the lane. I advised the applicant that volunteering to construct proper access on the lane would benefit the future occupants of this dwelling yet I will leave this to his discretion. On the broader context, I found that the appropriate and equitable approach to upgrading the surface of the lane is via a special rate scheme initiated by the council.
3. The consequence of deleting this condition is that Condition 9 now has no purpose or function. Consequently, it will be deleted.

1. At the hearing, I found that this condition should be deleted. My reasons are that a 400mm increase to the side setback's width would be an indiscernible increase to the proposed 3.6 metre setback. It would not make the private open space significantly more usable nor would it noticeably increase the sense of spacious side setbacks. Landscaping is proposed in this setback and is complemented by the planting of a canopy tree in the frontage of this dwelling. I found that this provides an acceptable outcome in the context of neighbourhood character policy.

1. Having inspected the site again, I am satisfied that this setback is not required. The council's case was that it was required to provide a respectful response to the large rear yards of the adjoining properties. The applicant's response was that the upper floor setbacks of the rear dwelling had been increased to five metre to provide greater separation. I consider that this is a respectful response.

1. This is imposed to ensure that no overlooking occurs from upper floor windows. The applicant contends it is not necessary as the Building Code restricts opening of first-floor windows. Further to this, he says that fixing these windows as closed would reduce cross-ventilation. At the hearing I found the condition was appropriate as it avoids overlooking even from a restricted opening, and that cross-ventilation remains available by openable windows above 1.7 metres from finished floor levels.

1. I endorse the council's decision to grant a permit for this development as I agree that its overall form and appearance is an acceptable outcome for this non-contributory site in a heritage precinct.
2. I recognise that the design changes required by the contested conditions provide a more ideal outcome in heritage and neighbourhood character terms. Yet the test is to balance conflicting objectives in favour of net community benefit and sustainable development.
3. In this context, I am not persuaded that varying the cladding is required to strike an acceptable balance between architectural expression and heritage significance. In many ways, the building's design has 'done enough' to respond to the precinct's values given the site's immediate context.
4. I am not persuaded that the grant of a planning permit obliges the permit holder to construct part of the laneway that provides access to the rear of the site. The nexus between the permit and the proposed works is not sufficient to warrant these works.
5. I am not persuaded that the increased setbacks are required on character or amenity grounds given the generous side setbacks that are provided.
6. For the reasons stated above, the decision of the responsible authority is varied.

[1] 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.