Victorian Civil and Administrative Tribunal|2014-03-27

Hunt v Mornington Peninsula SC [2014] VCAT 334 (27 March 2014)

Section 82 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; Construction of two dwellings on a lot; Overshadowing impacts.

Hunt v Mornington Peninsula SC

The decision of the responsible authority in relation to permit application no. P13/0329 is affirmed.
A permit is granted in relation to 58 Nunns Road, Mornington. The permit will allow the construction of two double-storey dwellings, a fence and associated works in accordance with the endorsed plans and subject to the permit conditions in Appendix A of this decision.

On 23 January & 13 March 2014: Mr Ben Green, solicitor

On 8 January & 23 January 2014: Ms Janine Meyer, in person

To construct two double-storey townhouses and a front fence.

Clause 32.01-4: to construct more than one dwelling on a lot.

Clause 32.01-3: to construct a fence within 3 metres of a street.

Clause 43.02-2: to construct a second dwelling in a Design and Development Overlay Schedule 1

The site is a rectangular lot of site area 583m² and currently contains a single storey weatherboard dwelling which is to be demolished. The site is relatively flat and contains scattered vegetation and has two street frontages. The main street frontage is Nunns Road and a secondary street frontage to the rear is to Rodney Court. The area is generally developed for single and double storey dwellings. There are a number of multiple dwellings on lots, given the location of the site in proximity to the town centre of Mornington. Immediately to the east at 17 Rodney Court are two double-storey townhouses, one fronting Rodney Court and the other facing Nunns Road. To the west is a large single storey dwelling on a lot of some 618m², the site is single storey weatherboard with a pitched roof and the site is generally flat with minimal vegetation. On the opposite side of Nunns Road are a number of lots that have been development for multi-unit development.

In October 2013, Mornington Peninsula Shire Council resolved to issue a Notice of Decision to Grant a Permit for the two double-storey dwellings on the lot. The adjoining property owners to the south then lodged an appeal against that decision to the Tribunal, with the issue being the extent of overshadowing of the proposed two dwellings on their private open space.
In reviewing all the submissions put before me, I consider the question to be determined is:
- General compliance of the proposal; and
  - Whether the extent of shadowing is detrimental to the amenity of the objectors.
The Tribunal must decide whether a permit should be granted and, if so, what conditions should apply. Having considered all submissions and the evidence presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, I have decided to affirm Council's decision and order that a permit issue. My reasons follow.

When the matter was initially heard by the Tribunal on 8 January 2014, Mr Winter on behalf of Mr and Mrs Hunt, the objectors, raised concerns regarding the accuracy of the shadow diagrams prepared by the permit applicant's designer. At that hearing, he tendered a set of shadow diagrams that he had had prepared on behalf of his clients by Terri Thompson, using computer aided design drafting package. When these two sets of shadow diagrams were compared, it became evident that there were discrepancies between the two sets.
Council was then ordered to have an independent set of shadow diagrams prepared based on all the available information. The matter was therefore adjourned for re-hearing on 23 January 2014. On the basis that once all relevant information was available, I would be in a position to accurately access the impact of shadow on the Hunt's property. At the reconvened hearing, Council tendered a set of shadow diagrams that showed the shadows at 9.00am, 10.00am, 12.00pm and 3.00pm as prepared by Hansen Partnership Pty Ltd.
There was some discussions held between the designers and endeavoured to sort out the discrepancies and it is understood that the slight slope of the land may account for the discrepancies between the plans, as the two designers used different drawing packages on the their computers. No qualifications were provided by either the permit applicant's designer or the objector's designer. Therefore, the matter needed to be further adjourned to allow this information to be tendered and for the objector parties to assess the proposal put forward on behalf of the responsible authority and compare with the other shadow diagrams. At the final hearing of this matter, suitable professional qualifications were checked and no objections made. I considered that following the hearing I was in a position to make an informed decision on the matters before me.

There are quite a number of two double-storey dwelling developments within Nunns Road and within Rodney Court and this proposal generally follows a similar style.
Given that there is a Design and Development Overlay Schedule 1 applying to the site, a permit is required to construct a building or carry out works if there is more than one dwelling on a lot. The proposal generally complies, however, does not meet all the general requirements and seeks a variation in relation to wall height and overall building height. The policy requiring no building may exceed a wall height of 5.5 metres or a building height of 6 metres. The proposed application is for a wall height of 6.5 metres and a building height of 7.5 metres. Council considered this variation as part of its assessment of the proposal and was satisfied that this variation was acceptable. It was consistent with approvals that have been granted for other developments within the immediate vicinity, and was consistent with the established and emerging streetscape and development pattern of the area in terms of building height, scale and siting.
Given that the site has two street frontages, the development will present as one dwelling to each streetscape. Dwelling 1 fronting Nunns Road and Dwelling 2 fronting Rodney Court, which again is consistent with the overall development pattern in the area. The proposed 5.5 metre front setback for both dwellings is consistent with the existing front setback of the adjoining dwelling at 56 Nunns Road and others in Rodney Court, with a minor variation to the first floor decked Dwelling 2. Council was satisfied that this very minor element was not inconsistent with the majority of the Rodney Court having already been developed and the site is virtually at the end of the Court. This minor variation would not normally be discernable to the average passer by and I am satisfied with this variation.
Council was further satisfied with the selected external wall and roof colours, in that they were muted and of low reflectivity and were consistent with the other dwellings in both streets. The fencing was also reasonable being of rendered brick piers with Merbau timber slats.
Removal of vegetation on the site is required and is exempt in accordance with Clause 52.48 Bushfire Provision Exemptions of the Planning Scheme., given that the subject site is within highly developed residential area close to the Mornington township centre.
With regard to the traffic generated by the development, given that there are two street frontages each dwelling will have its own driveway and crossover and vehicles will be able to exit the site in a forward direction from both dwellings that I consider a satisfactory outcome. Generally, I am satisfied that the proposal is compliant with the provisions of the Mornington Peninsular Planning Scheme, and I now need to asses the level of overshadowing to the dwelling to the south.

In order to ensure that a reasonable level of access to sunlight to the secluded private open space of the Hunts was provided, the applicant, at Councils recommendation amended his plans by increasing the setback of the dwellings a further 1.2m from the boundary with the Hunts. It was these amended plans that Council assessed when considering the application and concluded that the Standard B21 had been met and that a reasonable outcome had been achieved.
The objective for the over-shadowing of open space is found at Standard B21 of Clause 55.04-5. I set out the wording of the objective as follows:

"Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75% or 40 square metres with a minimum dimension of 3 metres, which ever is the lesser area, of secluded private open space should receive a minimum of five hours of sunlight between 9.00am and 3.00pm on 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."

This clause then sets the standard to be achieved and in viewing the three sets of shadow diagrams, those prepared by the permit applicant, those prepared by the objector and those prepared for Council, it can be seen that after 10.00am the shadowing of the Hunt's private open space decreases and so that by 12 noon there is little or any shadow received by the Hunts apart from the boundary fence which causes shadowing at present. The shadow diagrams prepared by the permit applicant showed that at 10.00am, a minimum of more than 59m² of secluded private open space with a minimum dimension of 5m clear of shadow is provided. This is confirmed by the applicant for reviews diagrams which showed that at 10.00am, 59.5m² with a minimum dimension of 4.9m of space is shown.
There are still discrepancies between the plans provided and this could be due to the fact to them being at various scales, ranging between 1 - 100 and 1 - 200 and the size paper that they are printed on being A4 and A3. However, it is clear that all shadow diagrams prepared demonstrate that compliance has been achieved with Standard B21 and in excess of five hours of sunlight between 9.00am and 3.00pm at the equinox is provided. This has an area of more than 40m² being closer to 50m² in area and with a dimension in excess of 3m.
Apart from a strict mathematical interpretation, the Hunt's were concerned that the most usable part of their secluded private open space was the area that would be in shadow first thing in the morning, up until about 10.30am. This is an area that contains an outdoor dining area accessed from the kitchen and the meals room, and family room that extends into an area of scattered trees towards the rear of the site. Aerial photos indicate a number of trees in this area that is to be shadowed by the proposed dwellings and although deciduous, these trees would shadow the area in question. However, when one assesses the diagrams it is clear that at 10.00am (and it only improves during the day) that a large area of open space in the vicinity of the rear part of the dwelling and including the veranda in front of the meals room and family room, is un-shadowed and is available for day to day use.
Whilst I have sympathy with the Hunts in relation to the over-shadowing that will occur to their property, the limited extent of shadowing more than satisfies the provisions of Clause B21, in that they have in excess of five and a half hours of sunlight to the majority of their secluded private open space at 22 September. I cannot therefore require an increase over and above what the standard requires.

I am satisfied that the proposed two double-storey dwellings development complies with the provisions of Clause 55. I am satisfied that with consideration of the amended shadow diagrams that there will be no significant detrimental effect upon the dwelling at No. 60 Nunns Road. Given the compliance with Standard B21, I am satisfied that the proposal is suitable for approval.

Construction of two double-storey dwellings, a fence and associated works in accordance with the endorsed plans and subject to the permit conditions below.

Before the developments 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 the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
- (a) A 1 .7 metre high screen not less than 25 per cent transparent to be installed on the first floor decks on the north-east side of dwelling I and dwelling 2.
- (b) Crossover locations for dwelling 1 and dwelling 2.
- (c) A landscape plan drawn to a professional standard that includes and/or provides for:
  1. A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant; and
  2. Details of surface finishes of pathways and driveways; and
  3. More than 80% of proposed planting be indigenous species to the locality (by quantity).

The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

The materials and colours of the exterior finish of the buildings must be in accordance with the endorsed plans unless with the further

Prior to the initial occupation of the dwellings hereby approved, all screening devices and fencing as shown on the endorsed plans must be installed and maintained thereafter to the satisfaction of the Responsible Authority.

Before the occupation of the dwellings starts or by such later date as is approved by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority
All disturbed surfaces on the land resulting from the carrying out of works must be re-vegetated and stabilized to the satisfaction of the Responsible Authority.

Before any works associated with the development starts, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and two copies must be provided. Alternatively, plans in pdf format may be emailed to devenqadmin (mornpen.vic.gov.au.

(a) All areas of the development being drained by means of an underground drainage system to retain a post development I in 10 year storm event for the critical storm duration. Discharge from the site must be limited to an equivalent pre-development flow based on a I in 2 year storm event for the critical storm duration and be connected to the existing Council underground drainage system in Rodney Court.

(b) All surface areas of private open spaces being drained by a minimum 150 mm diameter drainage pipe connected to the storm water system.

(c) A drainage system on the site being designed to ensure storm water runoff exiting the site meets the current best practice performance objectives for stormwater quality, as contained in the Urban Stormwater Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999).

(d) A drainage surcharge route within the development to avoid inundation of any dwellings.

(e) Details, including levels, of the driveways within the site.

(f) Vehicular crossings being constructed to the road to suit the proposed driveways, with any redundant crossing or vehicle laybacks being removed and replaced with kerb and channel and reinstated nature strip to the satisfaction of the Responsible Authority.

(g) Sight distance for vehicles and pedestrians not being unduly restricted at the exits from site by fencing or landscaping works.

Before any works associated with the development starts, drainage computations are required for the drainage system, including consideration of any drainage catchment external to the development that may drain to the drainage system.
Before the initial occupation of the development vehicle crossings and drainage works within the development must be constructed in accordance with approved construction plans, and to the satisfaction of the Responsible Authority.
Before the initial occupation of the development, the areas set aside for the parking of vehicles and driveways as shown on the endorsed plans must be constructed in accordance with approved construction plans, surfaced with reinforced concrete, asphalt or paving and drained to the satisfaction of the Responsible Authority.

Car spaces and driveways must be kept available for these purposes at all times.

This permit will expire if the development is not completed within four years of the date of this permit.

Hunt v Mornington Peninsula SC [2014] VCAT 334

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Hunt v Mornington Peninsula SC [2014] VCAT 334 (27 March 2014)

Parties