[2005] VCAT 1657

The decision of the responsible authority is set aside. A permit is granted and must be issued for the development of two dwellings at 35 Staughton Road, Glen Iris, subject to the following conditions:

1. Before the development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans dated 27.4.05, but modified to show:

a)

the screen fence to the south of the landing for Dwelling 2 adjacent to the laundry increased to a height of 1.7 metres above the finished floor level of the landing;

b)

pier and beam construction within the critical root zone of the pittosporum to be retained on the land, the critical root zone to be identified in the arborist's report referred to in Condition 7.

2. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

3. Buildings, engineering works and fences must be maintained to the satisfaction of the Responsible Authority.

4. Within 30 days of the endorsement of the plans referred to in Condition 1 of this permit, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

(a) an accurate survey of all existing vegetation to be removed and retained and other natural features;

(b) the area(s) set aside for landscaping;

(c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d) planting required by any other condition of this permit;

(e) paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

(f) the provision of advanced tree planting (minimum height of 1.5 metres at the time of planting) with an evergreen tree with a spreading canopy in the front setback of Dwelling 2.

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

5. Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

6. All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

7. Prior to the endorsement of plans referred to in Condition 1 of this permit, a report from a qualified arborist must be submitted to the Responsible Authority for approval. Such report must set out recommendations and actions required to minimise damage as a result of buildings and works (including any demolition, vegetation clearance, earthworks or works arising from the provision of underground services) to the health of trees to be retained (including trees located on adjoining land and street trees), to the satisfaction of the Responsible Authority. The recommendations and actions identified in the report must be implemented to the satisfaction of the Responsible Authority.

8. All works within the dripline of any tree to be retained (including trees located on adjoining land and street trees) must be supervised by a qualified arborist to ensure that the works are done in a manner which protects and minimises any damage to those trees during construction activities, to the satisfaction of the Responsible Authority.

9. Temporary barricades to protect trees to be retained must be erected around such trees to the satisfaction of the Responsible Authority prior to the commencement of any works. Such barriers must be of solid materials (such as temporary cyclone wire fencing securely positioned on the site) and must be maintained during construction operations, to the satisfaction of the Responsible Authority.

Contractors to be Advised of Trees to be Retained

10. The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of trees to be retained prior to the commencement of the related construction tasks.

Measures to Minimise Compaction and Damage to Tree Roots

11. Without the prior written consent of the Responsible Authority:

a)

no goods, materials or stockpiling of fill is to be stored or vehicles parked within the dripline of any tree to be retained,

b)

no excavation, trenching or soil removal is permitted within the dripline of any tree to be retained.

12. The land must be drained to the satisfaction of the Responsible Authority and all drainage works must be completed prior to the occupation of the building.

13. Stormwater drains must be connected to a legal point of discharge approved by the Responsible Authority. Drainage connections within a road reserve must be to Council's standards. No such works are permitted to commence unless a Supervision Permit is first obtained from the Responsible Authority.

Construction of Driveways and Car Parking Areas

14. Before the use starts or any building is occupied, area/s set aside for car parking, access lanes and driveways shown on the endorsed plans must be constructed and formed to such levels and properly drained so that they can be used in accordance with the endorsed plans, to the satisfaction of the Responsible Authority.

15. Any new vehicle crossover or modification to an existing vehicle crossover must be in accordance with Council's standards. No such works may commence unless a Supervision Permit is obtained from the Responsible Authority.

16. Garbage containers must be stored out of general view, to the satisfaction of the Responsible Authority.

17. All clotheslines must be positioned so as not to be visible from any nearby street, to the satisfaction of the Responsible Authority.

18. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

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

20. Any air-conditioning or cooling units, condensers and the like must not be located on external walls or on balconies without the prior written consent of the Responsible Authority.

Reticulated Electricity to be Provided Underground.

21. Reticulated electricity must be provided underground to the subject land and all buildings on the land, to the satisfaction of the Responsible Authority.

a)

the development does not start within two (2) years of the issue date of this Permit; or

b)

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

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

Mr C Wren of Counsel, who called evidence from Mr M Negri, Consultant Town Planner

I have conducted a site inspection.

The subject land is on the east side of Staughton Road and has frontages to Staughton Road (at the front) and Lomond Street (at the rear). It has frontages of approximately 15 metres, a depth of approximately 50 metres and an area of 765 square metres. The land accommodates a single storey weatherboard dwelling facing Staughton Road, with an outbuilding in the rear yard. It has a fall of approximately 3 metres from northeast to southwest.

It is proposed to demolish the existing dwelling and construct two double storey dwellings on the land, one facing Staughton Road and the other facing Lomond Street. Each dwelling is to have basement or semi-basement parking for two cars. Mr Wren sought leave to substitute amended plans for the plans accompanying the permit application. The amended plans show a lowering of the garage for Dwelling 1 by 300mm with a consequent lowering of the height of the dwelling. Neither Mr Neofitou nor Mr Tyler had any objection to the substitution of these plans. I ordered them to be substituted.

The land is in the Residential 1 Zone. No overlays apply to it. Pursuant to the zoning a permit is required to construct two or more dwellings on the land and in assessing the proposal the ResCode provisions at Clause 55 of the Boroondara Planning Scheme must be considered.

The responsible authority refused a permit on the following grounds:

The scale, bulk and height of the proposed buildings are excessive and would have a dominating impact upon the secluded private open space of adjoining properties in terms of visual bulk.

The proposed development fails to achieve a site responsive outcome having regard to the slope of the land.

The proposed basement garage to Dwelling 1 results in this dwelling appearing as a three storey dwelling that is inconsistent with the neighbourhood character and imposes unreasonable bulk to the Staughton Road streetscape.

Dwelling 2 would present unacceptable scale and massing to Lomond Street which is inconsistent with the single storey character of the area.

Mr Neofitou stated that the responsible authority's position was that while it was not opposed to a development of two double storey dwellings on the land, it was of the view that the presentation of the dwellings to their respective frontages would not be sufficiently responsive in neighbourhood character terms and that presentation of the dwellings to the abutting properties would be unreasonably intrusive and result in an unacceptable loss of amenity.

The land is located in the precinct identified as Area 140 in the Council's Residential Urban Character Study 1996, a reference document in the Boroondara Planning Scheme. The building style for this precinct, which is identified as important, but not very important in the precinct, is identified as being mixed, dating from the 1920s to the present, with the dominant period being from the 1920s to the 1940s. Building scale, which is identified as quite important, is described as average houses and multi-unit blocks with heights of one or two storeys with minor variations in consistency. I did not find the Urban Character Study to be of much assistance in assessing the proposal.

However, having conducted a site inspection, I am of the opinion that the proposed development is acceptably responsive to the character of the area. The front setback of Dwelling 1 is in accord with the setbacks found in Staughton Road and meets the relevant ResCode standard. This dwelling is to be set back 9.5 metres from the frontage, 0.8 metres from the south boundary, and a minimum of 1.88 metres from the northern boundary. The upper floor of the dwelling is to be stepped back from the ground floor by 2 metres on the frontage, and from the ground floor by 2.7 metres on the south elevation. Part of the basement garage will be visible above ground level because of the slope of the land, but the dwelling will read unambiguously as a two storey building. It will not be out of scale in the streetscape by virtue of its height or bulk.

Similarly, Dwelling 2 will not be out of scale by virtue of its height and bulk in the streetscape of Lomond Street. The east side of Lomond Street has dwellings facing the street, but the west side is characterised two metre high back fences and doors to garages built on or near the rear boundaries of properties facing Staughton Road. In many respects the proposed development will be a positive contribution to this streetscape. Dwelling 2 is to be set back 6 metres from the street and 1.3 metres from the north boundary. The semi-basement garage is to be built to the south boundary. At the front of this dwelling the upper floor on the north elevation is to be stepped back 5 metres from the boundary. On the south elevation the front section of the upper floor is to be stepped back 5 metres from the boundary. The façade of this dwelling is well modulated.

I now turn to the impacts of the proposal on the abutting properties to the north and south. In my opinion the proposed development will have no more impact on the windows of these dwellings than the existing dwelling on the land. In the case of the dwelling to the north the only relevant windows are to a bedroom. The existing dwelling extends to the east well past these windows, whereas the rear of proposed Dwelling 1 is in line only with the western edge of one of those windows. The separation distance at ground floor level between these windows and Dwelling 1 is to be 3.5 metres, and the upper floor of Dwelling 1 is then to be to stepped back a further 4.4 metres.

The setback of Dwelling 2 from the north boundary will ensure, in my opinion, that this dwelling will not have any unreasonable amenity impacts on the abutting property to the north. At ground floor level Dwelling 2 is to be set back 2.08 metres from the boundary. At upper floor level the setback is to vary from 2.08 metres to 5.035 metres. The section of the upper floor with the 2.08 metre setback is only 3.5 metres wide.

It is my opinion that the proposed development will not have any more impact on Mr Tyler's dwelling to the south than the existing house on the land. The outlook from his north facing bedroom windows will essentially be unchanged because of the 3.5 metre setback from the boundary of the south facing upper floor of proposed Dwelling 1. The proposed dwelling will cause less overshadowing of Mr Tyler's dwelling the existing dwelling, but in any event the shadows cast by proposed Dwelling 1 would fall below the windows on the north elevation of Mr Tyler's house.

It is also my opinion that the proposed development will not have unreasonable impacts on Mr Tyler's rear yard. The wall of the semi-basement garage on the boundary is to be approximately the same height as the fence and trellis along the common boundary. The wall of the ground floor of the dwelling is to be set back 2.1 metres from the boundary, and the wall of the upper floor is to be set back at least 3.9 metres from the boundary. Even allowing for a difference of approximately half a metre in level between the subject land and Mr Tyler's property, Dwelling 2 will not present unreasonably intrusively. I note that the southwestern part of Dwelling 2 would be largely screened by the pittosporum which is to be retained on the subject land.

For these reasons I have set aside the decision of the responsible authority and granted a permit subject to conditions.

I note that the Officer's Report on the permit application placed a great deal of weight on the non-compliance of the proposal with the Council's Residential Development Policy, and in particular that part of the policy which states that the upper floor of medium density development should not exceed 50% of the ground floor footprint. This non-compliance seems to have been essentially the only reason why the Officer's Report recommended refusal of the application. But the Residential Development Policy has no legal status. It is not part of the Boroondara Planning Scheme, but is what is known as an under the counter policy. If the responsible authority continues to rely on this policy to justify refusing permit applications it runs the risk of the Tribunal awarding costs against it.

Des Eccles

Member