[2005] VCAT 289

In Permit Application GE/PP-16454/2004, the Responsible Authority's decision is varied. A permit is directed to issue with the following conditions.

1. Before the commencement of the development, amended 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 must accord with the plans which accompany the application identified as Job No 03-093 sheet numbers TP3, TP4, and TP5 of 6 Issue A received by the City of Glen Eira 1 April 2004 drawn by Archestral Designs Pty Ltd, but modified to show:

a) Relocation of the carport of Unit 1 from the front setback to the rear of Unit 1 adjoining the southern boundary.

b) Delete the existing laundry and WC to accommodate the carport.

c) A dimensioned southern elevation of the proposed carport to the rear of Unit 1 not exceeding 3.3 metres in height above natural ground level.

d) Minimum opening width of 3 metres to the Unit 2 garage.

e) Relocation of dwelling entry and porch to the north east of the living room for Unit 1.

f) Provision of glass sliding doors to the east wall of the living room to the adjoining open space for Unit 1.

g) Private open space of Unit 1 to be extended to the east wall of the living room.

h) The relocation of the 6 cubic metre storage shed to adjoin the carparking facilities.

i) Provision of privacy trellis to a height of 41.5AHD to the following locations:

I. West boundary for a distance of 7.36 metres measured from the south west corner.

II. West boundary centred opposite the Master bedroom of unit 2 for a length of 4.2 metres.

j) Provision of a 1.2 metre high timber picket fence across the site frontage.

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

2. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must no be altered without the prior written consent of the Responsible Authority.

Note: This does not obviate the need for a permit where one is required.

• The development does not start within two (2) years from the date of this Permit;

• The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

4. The development must not commence until a Development Contribution Fee has been paid to the Responsible Authority. The fee payable must be calculated in accordance with the Schedule to the Development Contributions Plan Overlay of the Glen Eira Planning Scheme.

Note: A $40.00 administration fee will also be charged.

5. No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires or cables under the control of a public authority without the prior written consent of the relevant authority and the Responsible Authority.

6. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

7. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

All bins and receptacles used for storage and collection of garbage, bottles and other solid wastes must be kept in a storage are screened from view, to the satisfaction of the Responsible Authority.

All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

8. The walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

9. Before commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will become and endorsed plan forming part of this Permit. The Landscape Plan must incorporate:

a. A survey, including botanical names, of all existing vegetation to be retained.

b. Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.

c. A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.

d. Landscaping and planting within all open space areas of the site.

e. Advanced canopy trees (minimum 2 metres tall when planted) in the following areas:

Or minimum 7 trees in locations to the satisfaction of the Responsible Authority.

10. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.

11. Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

a. constructed

b. properly formed to such levels that they can be used in accordance with the plans;

c. surfaced with an all weather sealcoat;

d. drained;

Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

12. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

13. Finished floor levels must be a minimum of 300mm above the applicable flood level.

14. Any new garage, car port or vehicle parking area must be constructed with finished floor or surface levels a minimum of 150mm above the applicable flood level.

15. Prior to the commencement of works, a separate application, direct to Melbourne Water, must be made for any new or modified storm water connecting to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.

16. The proposed dwelling (including eaves) must be set a minimum of 1500mm laterally clear of the edge of the drain or outside the drainage easement, which ever is greater.

17. The depth of the footings must be adequate to satisfy Melbourne Water's requirements for the angle of repose relative to the drain.

18. Any damage to Melbourne Water's drain is to be repaired at the owner/developer's cost.

The applicable flood level for the property is 37.7 metres to Australian Height Datum (AHD).

The property contains a Melbourne Water underground sewer. For operational reasons Melbourne Water cannot relocate this asset.

It is the developer's responsibility to avoid the inappropriate siting of a new/modified land use or development that would adversely impact upon the underground sewer. Such impacts may arise from the construction of below ground floor levels or construction activity that involves pile driving/ground anchors. The location of the underground asset may be obtained by using the 'Melbourne One Call' service, telephone 1100.

1 This proceeding relates to an application under Section 77 of the Planning and Environment Act 1987 [P and E Act] brought by B Italiano seeking a review of the Glen Eira City Council's [the Council] decision to refuse to grant a permit in relation to permit Application GE/PP-16454/2004. The Notice of Refusal was issued on 27th August 2004. In general terms, the permit application seeks permission for the development of a single storey dwelling to the rear of an existing dwelling.

2 After the permit application was lodged with the Council, Council refused the application without advertising. The grounds of Refusal include:

1. The proposal does not satisfy the objectives of Clause 21.05, Residential Urban Character of Council's Municipal Strategic Statement. Nor does it comply with the proposed schedule to the Residential 1 Zone, under Council's adopted Amendment C25 to Glen Eira Planning Scheme regarding the rear setback of dwelling 2.

2. The proposal does not comply with Rescode Standard B5 nor satisfy the objective of Clause 55.02-5 "Integration to the Street".

3. The proposal does not comply with Rescode Standard B12 nor does it satisfy the objective of Clause 55.03-7 "Safety".

4. The proposal does not comply with Rescode Standard B26 nor does it comply with the objective of Clause 55.05-2 "Dwelling Entry".

3 The application for review was lodged on 7th September 2004. The grounds of review lodged are:

The proposal will contribute to the character and qualities of the street and surrounding neighbourhood.

The proposed setback form the rear boundary is consistent with setbacks of surrounding dwellings.

The design will provide a good sense of address, security and surveillance.

The proposal takes advantage of the unusual shape of the land to retain the existing house and accommodate a second dwelling.

The proposal constitutes an efficient site responsive design that provides a good standard of amenity for future residents while minimizing off site impacts.

4 The Tribunal required notice to be given under Section 52 of the P and E Act. In response, the one objection was received with the following concerns:

The development would allow visibility into our backyard and therefore compromise our privacy.

The development would block out early morning sun into our backyard and the rear of the house where most of our time is spent during the day.

5 At the hearing parties tabled and spoke to written submissions. The parties also presented material including planning policy documents to assist my consideration of the matter. The documents tabled at the hearing have been retained on the Tribunal's file.

6 At the hearing, Mr Stanojevic for the Council advised that in response to meetings with the Applicant, Council agrees to the issue of a permit subject to several amendments to the plans to address Council's concerns. Mr Dalton supported this statement agreeing to a number of changes to the plans that address Council's concerns. I will discuss these changes below.

7 The subject site is an unusual 'L' shaped lot with a total site area of 789 square metres. The proposed dwelling lot has a frontage of 15metres to the west side of Judith Street, a north side boundary of 43.55 metres, a rear boundary of 27.01 metres with 10.95 metres by 11.66 metres beyond the 32.43 metre south side boundary.

8 The subject site currently accommodates a two bedroom, single storey attached house.

9 It is proposed to develop the land at 8A Judith Street for the purposes of two dwellings. The application can be summarised as follows:

•

Minimal works to the existing house include a new front porch. Glass sliding doors provide direct access from the living room to the courtyard. A carport and service area with a clothesline is located behind the house.

•

The new dwelling is proposed to be two bedrooms, kitchen, family room and amenities. The floor level of the dwelling is to be raised to 41.5AHD which is 300mm above the flood level.

•

A carport is proposed to be located in the frontage of the site.

•

The landscape plan details the planting of seven canopy trees, screen trees and ornamental garden beds.

10 The subject site is zoned Residential 1, Clause 32.01 under the provisions of the Glen Eira Planning Scheme [the Scheme]. A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.

11 The site is included in a Special Building Overlay, Clause 44.05. Pursuant to Clause 44.05-1, a permit is required to construct a building or carry out works. Clause 44.05-4 requires that an application to construct a building or carry out works is referred to Melbourne Water. Melbourne Water advise that they have no objection to the proposal subject to the following conditions:

Finished floor levels must be a minimum of 300mm above the applicable flood level.

Any new garage, car port or vehicle parking area must be constructed with finished floor or surface levels a minimum of 150mm above the applicable flood level.

Prior to the commencement of works, a separate application, direct to Melbourne Water, must be made for any new or modified storm water connecting to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system.

The proposed dwelling (including eaves) must be set a minimum of 1500mm laterally clear of the edge of the drain or outside the drainage easement, which ever is greater.

The depth of the footings must be adequate to satisfy Melbourne Water's requirements for the angle of repose relative to the drain.

Any damage to Melbourne Water's drain is to be repaired at the owner/developer's cost.

The applicable flood level for the property is 37.7 metres to Australian Height Datum (AHD).

The property contains a Melbourne Water underground sewer. For operational reasons Melbourne Water cannot relocate this asset.

It is the developer's responsibility to avoid the inappropriate siting of a new/modified land use or development that would adversely impact upon the underground sewer. Such impacts may arise from the construction of below ground floor levels or construction activity that involves pile driving/ground anchors. The location of the underground asset may be obtained by using the 'Melbourne One Call' service, telephone 1100.

12 The site is also included in a Development Contributions Plan Overlay, Clause 45.06, Schedule 1.

13 In relation to policy, there are a number of Clauses that set out policies that are in some way relevant to the consideration of the proposed application including:

•

Clause 14 Planning for urban settlement, Clause 16 Housing, Clause 19 Particular uses;

•

Municipal Strategic Statement at Clause 21 and adopted amendment C25 at Clause 21.05.

•

Clauses 55 (ResCode).

•

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.

14 Melbourne 2030 has been taken into account by the Tribunal. This is adopted Government policy which reinforces the State Planning Policy Framework and it is a policy to which the Tribunal must have regard.

15 Council and the Applicant advised as a preliminary matter that Council had agreed that a permit should be issued for the proposed development Discussions had occurred between the parties and a number of changes to the development were proposed to address Council's concerns. I was advised that the concerns to be addressed and changes to the plans included the following.

i

Parking arrangement for Unit 1. The original proposal detailed a carport to be located within the front setback. This carport can be relocated to exist at the rear of Unit 1. It is also proposed to be a light weight structure.

ii

There was no prominent entrance to Unit 1. The entrance/porch is able to be relocated to the north side of the dwelling adjoining the living area and be a prominent feature.

iii

The protection of the objector's property is possible with the inclusion of a privacy trellis along the fence.

iv

There was concern that the west wall of Unit 1 was within the Council's required 4 metres setback from the boundary. An amended site plan details the location of a double car parking structure in the adjoining property. The concern of the lack of setback is therefore not applicable given the wall is opposite a structure and not private open space.

v

A private open space area of 125 square metres is provided at the side of Unit 2. This is an adequate space.

vi

The location of the storage areas (6 cubic metres) was of concern. These structures can be located to adjoin the car parking structures.

16 I am satisfied that the suggested modifications to the plans address both the concerns of the Council and the concerns raised by the objector.

17 I am also satisfied that the suggested changes can be required as a condition of permit requiring amending plans.

18 For the reasons that I have set out above, the decision of the Responsible Authority is varied. I will direct the grant of a permit subject to conditions.