Victorian Civil and Administrative Tribunal|2003-03-03|Before: Mr P

Imperium Designs Australia Pty Ltd v Monash CC [2003] VCAT 259 (3 March 2003)

PLANNING AND ENVIRONMENT LIST Application for Review No. P2972/2002

APPLICANT FOR REVIEW: Imperium Designs Australia Pty Ltd

It is ordered that the permit dated 23 October 2002 be amended by the deletion of Condition 1(a).

Responsible Authority: Ms S. Moser, Planning Consultant

Applicant for Review: Mr P. Baulch of Coomes Planning

Application under S.80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit.

1. Before the development starts, three copies of amended plans drawn to a convenient scale (1:50,1:100) and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed to form part of this permit.

The plans must be substantially in accordance with the plans submitted with the application, but modified to show:

(a) The common driveway widened to 3m with a 0.5m landscape strip either side by the partial demolition of bedroom 2 of dwelling 1 to line with the west wall of bedroom 1 of the same dwelling;

1. Condition 1(a) is unnecessary as the proposed driveway will provide adequate access for vehicles to enter and exit the site.

1. By application dated 1 August 2002, permission was sought to construct a single storey dwelling at the rear of an existing single storey weatherboard dwelling.

2. The proposal was advertised by direction of the Responsible Authority to some 16 nearby owners and occupiers plus a sign on the site. No objection was received. The Responsible Authority subsequently determined to issue a permit with 21 conditions with condition 1(a) (above) being the subject of this review.

3. The subject property is a single storey weatherboard dwelling set in the street which consists largely of similar single storey dwellings, of brick and weatherboard, all about 50 years old with some newer single storey villa units.

4. The existing dwelling is set back 2.68m off the western boundary. The setback contains the existing driveway which leads from an existing concrete crossing to a fibro cement garage located towards the rear of the allotment. The proposal seeks to retain both the existing driveway and the street crossing.

5. The proposed dwelling consists of three bedrooms and a combined kitchen/family room all having a total floor area of about 115m2. A single garage is provided with a tandem visitor space.

6. The proposal meets the Planning Scheme objectives in that the design reflects that of other housing in the neighbourhood, increases housing choice and makes better use of infrastructure and so on.

7. Ms Moser submitted that the local planning policy contains the following relevant policy:-

* Sufficient on-site car parking, in convenient locations and designed for safe and efficient vehicle movement, be provided.

* Development be designed to minimise parking, traffic and pedestrian impacts in adjacent residential areas."

8. She considered that the proposal failed to meet the first policy objective in that the driveway - being 2.8m wide - failed to provide -

9. She said that ResCode, at standard B14, states:-

* Designed to allow convenient, safe and efficient vehicle movements and connections within the development and to the street network.

* Be designed to ensure vehicles can exit a development in a forwards direction if the driveway services five or more residences.

* Have an internal radius of at least 4 metres at changes of direction ...

10. Ms Moser set out the following argument in support of the condition under review:-

Both dwellings will be dependent on the internal accessway to enter and leave the associated car parking spaces. Given the angle at which vehicles will be parked in the tandem space behind the garage of Unit 1, it will be extremely difficult to manoeuvre a car so that it can exit the site in a forwards direction. Likewise it will be highly difficult for the tandem space of Unit 2 to manoeuvre and leave the site in a forwards direction. As forwards movement is not conveniently possible residents will be forced to reverse out of the site. A 3 metre wide driveway is deemed to provide the requisite width necessary for convenient traffic movements. The 2.68m wide access width is too tight and is below the standard required. Drivers will have to negotiate a fairly tight situation as they reverse. The arrangement is therefore not convenient, safe or efficient as is required by the objectives of the standard. A highly skilled driver will be required to negotiate the manoeuvre.

There is nothing special about the property that may warrant a reduction in the requirement. The 3 metre requirement is a minimum and to reduce it further particularly given vehicles will be reversing out of the site, creates a difficult access situation for the dwellings.

The narrow width extends for a distance of 3.6 metres and is therefore not insignificant. The requirements of the standard should normally be met unless the responsible authority is satisfied that an application for an alternative design solution meets the objective. In this particular situation there is no application for an alternative design merely a request that the standard be reduced in terms of its application to this property.

11. Thus, she said that the Responsible Authority considered that approximately 300mm of the existing dwelling should be demolished to allow for the widened driveway and landscaping strips.

12. Mr Baulch called evidence on the question of access and parking from Mr W D de Waard, a Traffic Engineer with Traffix Group Pty Ltd.

13. Mr de Waard said that the provision of two onsite car spaces per dwelling satisfies ResCode (Clause 55.03-11). He said the existing two-bedroom dwelling requires only one space to meet that standard.

The proposed access arrangements generally comply with the requirements of Clause 55, although the layout does not specifically meet Standard B14 as a result of the narrowing of the accessway to 2.7m for a short length (2.68m to the title boundary). Standard B14 indicates that `Accessways should ... be at least 3 metres wide.'

The proposal provides a 3.0m wide accessway along the western boundary of the site, with the exception of a 3.6m length where the existing dwelling reduces the accessway to 2.7m at the narrowest point measured from the face of the fence post to the side of the dwelling.

I note that Clause 55 of the Monash Planning Scheme outlines that the operation of the relevant standards is such that whilst a Standard should normally be met, although an `alternative design solution' that meets the objective may be considered having regard for the relevant Decision Guidelines.

In my view, the proposed accessway is an appropriate form of access for the subject site to provide safe, manageable and convenient access. I am of the view that the short section (3.6m) of the existing dwelling that narrows the accessway to 2.7m is acceptable on the basis that:

* the alignment of the accessway past bedroom 2 of the existing dwelling is straight and there is good sight distance from one end to the other;

* there is adequate manoeuvrability on site for residents to generally exit the site in a forwards direction ....

* reversing movements from the proposed dwelling (D2) are straight in alignment and considered to be relatively simple for drivers; and

* the accessway will primarily be used by residents, who are familiar with its design and use.

Overall, I believe that the access arrangements for the development satisfy the objectives of the Clause 55.03-9 and current practice and allow for safe and convenient access to and from the site.

My understanding is that the (above) permit condition would effectively widen the proposed accessway by 300mm for a length of 3.6m not including a 0.5m landscaping on each side. In my opinion, the additional width to the proposed accessway would not substantially alter the access arrangements to and from the site.

In my view, the demolition of part of the existing dwelling to provide a slightly wider accessway is not justified as there are no substantial traffic benefits and the proposed access arrangements are considered to be satisfactory.

Accordingly, I believe that permit condition 1(a) should be deleted from Permit No. 29624.

16. Mr Baulch also called evidence from Mr George Tzouramanis who is a Director and Architectural Designer for the applicant company. He gave details of what he considered to be the effect of complying with conditio 1(a) so far as the demolition aspect is concerned and said:-

Reduction in size of bedroom 2 in accordance with Condition 1(a) will require the following works to be undertaken:

* Removal of existing footings and construction of new footings and wall.

* Temporary propping of roofing structure above.

* A change in the roof form to suit the new location of the wall.

It is my opinion that compliance with Condition 1a of the planning permit will produce the following undesired outcomes:

* Substantial reduction in size of bedroom 2 making this room unsuitable for use as a bedroom.

In my opinion the layout of the existing dwelling does not allow for any internal reconfiguration to incorporate a second bedroom. Compliance with Condition 1(a) will make bedroom 2 unsuitable and unusable as a bedroom. There is no scope of incorporating another bedroom within the fabric of the existing dwelling therefore reducing this dwelling to a one-bedroom unit.

17. Mr Tzouramanis also tabled a proposed landscaping drawing (DDG/21/02) which showed how the driveway could be landscaped using a slightly curvilinear alignment.

18. Reviewing the submissions in this appeal I believe the crux of the review was answered by Mr de Waard when he gave the reasons why the short section of the narrowed driveway is acceptable in this particular case (see above paragraphs 14 and 15). He set this out succinctly in his conclusion when he said:-

(b) the proposed accessway provides safe and convenient access to and from the site;

19. The evidence of Mr Tzouramanis also showed that the existing dwelling would have to undergo major reconstruction in order to gain a very small increase in width. All of this seems quite unnecessary when it is realised that only one or two additional vehicles would use the driveway and all would have the ability to leave the site in a forward direction. It must also be borne in mind that throughout Melbourne a very large percentage of houses, particularly those of similar vintage to the subject dwelling, all have driveways 2.7m wide (formerly 9 feet) and are negotiated daily by the occupants of the houses evidently without difficulty.

Imperium Designs Australia Pty Ltd v Monash CC [2003] VCAT 259

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Imperium Designs Australia Pty Ltd v Monash CC [2003] VCAT 259 (3 March 2003)

Parties