[2005] VCAT 1162

1 The enforcement order made by the tribunal on 25 February 2005 is further amended by substituting for the words "before the end of 10 June 2005 or further order" the words "before 1 September 2005 or further order".

2 The application pursuant to section 87 of the Planning and Environment Act to amend Planning Permit No PL02/013542 pursuant to the Manningham Planning Scheme is refused.

3 The hearing of the application pursuant to section 149 of the Planning and Environment Act in relation to the plans showing the manner in which the subject land is to be brought into compliance with the Manningham Planning Scheme as a single dwelling is adjourned to 22 July 2005.

1 The applicants, Viktor and Manda Jurkic, currently live with their adult son, Dragan James Jurkic. A few years ago the applicants purchased a suburban lot at 11 Toronto Avenue, Doncaster with the intention of erecting a building for their family unit to live in. They wished to erect a building that provided separate facilities for themselves and for their son Dragan. Hence the applicants applied for a permit for a dual occupancy; but this was refused by the responsible authority and, on appeal, by the tribunal. A fresh application was then made for a dual occupancy. This was also refused. However, on this occasion, the tribunal allowed an appeal and directed that a permit issue subject to conditions, including modifications to the design described in the permit application. This permit was Permit No PL02/013542 pursuant to the Manningham Planning Scheme ("the permit").

2 During the appeal process in relation to the second application the applicants became frustrated and investigated another option to achieve their dream. Hence they obtained a building permit to construct a single dwelling on the land. The plans for this building showed the building to contain two zones. The building was essentially separated by a solid wall down the middle, in the nature of a pair of semi-detached side-by-side dwellings, save that there was a door between the two parts at each level. Building commenced in late 2003 and has been completed to lock up stage.

3 In July 2004 the Minister for Planning approved a site specific amendment to the Manningham Planning Scheme in relation to the land. This site specific amendment, which had been requested by the City of Manningham ("the council"), introduced a Design and Development Overlay in relation to the land which provided that the land may not be subdivided unless the subdivision was in accordance with the development approved by the permit. This "Maclellanesque" use of the planning system seems to have been designed to thwart any attempt by the applicants to bypass the planning system and erect two dwellings on separate lots using a design which had not been approved.

4 On 27 September 2004 the responsible authority took the more orthodox path and applied to the tribunal for an enforcement order. This application was based upon the premise that, under the guise of erecting a single dwelling, the applicants were really erecting two dwellings; and the two dwellings being erected were significantly different than the two dwellings which had been approved by the tribunal. The council asked the tribunal to make an order that the two dwellings be removed or the land be brought into compliance with the scheme (that is, be altered so that the development consisted of only one dwelling).

5 On 25 February 2005 the tribunal made the enforcement order sought by the council. Subsequently this order was modified in a minor respect. The order now requires:

The respondents Viktor and Manda Jurkic, the owners of 11 Toronto Avenue, Doncaster their servants or agents must cease immediately the development on the subject land of two dwellings and must [within a time frame specified in the order] do one of the following:

(a) remove the two dwellings under construction on the subject land; or

(b) develop the subject land in accordance with Planning Permit No PL02/013542; or

(c) bring the subject land into compliance with the Manningham Planning Scheme in accordance with plans to the satisfaction of the responsible authority.

6 Following the making of this order the applicants made application to the tribunal pursuant to section 121 of the Planning and Environment Act 1987 ("the Act") to extend the time within which to comply with the order. They also brought two other proceedings. One of these was an application pursuant to section 87 of the Act, effectively to amend the relevant planning permit to allow two dwellings to be erected on the land in accordance with the "as built" building but with relatively minor modifications. The second application was pursuant to section 149 of the Act. This application sought the tribunal's approval of plans showing how the building could be made into a single dwelling. The applicants indicated that they preferred to succeed on the section 87 application.

7 The hearing took place in Melbourne on Friday 17 June 2005 and, subsequently, on-site on the morning of 20 June 2005. The tribunal indicated that it wished to first address the question of whether the relief sought under section 87 should be granted. Hence some of the submissions in relation to the section 149 matter have been deferred.

8 The application pursuant to section 87 is sought on a number of grounds, but it is sufficient to refer to the ground specified in section 87(1)(d) of the Act, namely that the tribunal may amend a permit if it considers that there has been a material change of circumstances which has occurred since the grant of the permit. It is plain that there has been a change of circumstances since the grant of the permit in that a substantial building has now been erected on the land. Although this building has been unlawfully constructed - and this has implications as to the manner in which any discretion ought be exercised - it cannot be gainsaid that the building exists. If nothing else this better enables an assessment to be made of the impact of approving the development. In my opinion, this alone makes the change of circumstance "material".

9 The responsible authority contended that the applicants had not made the request as soon as practicable after they had notice of the facts relied upon in support of the request. Assuming, without deciding, that section 89(3) of the Act applies to a request made by an owner of land, I note that the making of a request as soon as practicable is not an essential requirement. Rather this provision is designed to allow the tribunal to dismiss an application to amend a permit, without considering the merits, where an application is not made promptly. This power is likely to be exercised having regard to the prejudice which other parties may have suffered by reason of a failure to act promptly. Prejudice is unlikely to be significant where an owner (as opposed to a responsible authority or objector) seeks to cancel or amend a permit. Hence, not surprisingly, to the extent that there has been any delay in the present case, I find that it is of no significance.

10 What principles should be applied in determining whether or not a permit should be amended so as to authorise development which has been undertaken unlawfully? In Van Egmond v City of Knox (1985) 3 PABR 249 the Planning Appeals Board considered a similar question in the context of an unlawful use of land. The board said:

The board proposes to consider the application on its merits and not place the applicant at any disadvantage because he has commenced the use illegally. Ironically the fact that the applicant has illegally commenced the use enables a better assessment of the use as possible problems have already been revealed. Be this as it may the board wishes to make it clear that it does not condone the illegal commencement of a use. Any permit issued at the direction of the board can only operate prospectively and does not retrospectively authorise the use from its commencement. Consequently, even if a permit is granted at the direction of the board, the applicant can still be prosecuted for illegally conducting the use prior to the issue of a permit. Moreover, if such a prosecution is successful, the board cannot see how any subsequent decision to direct the issue of a permit can be regarded as a mitigating factor. The fact that the board proposes to deal with this matter on its merits and not penalise the applicant for his illegal commencement makes it more important that any prosecution be considered on its merits (that is upon the culpability of the applicant at the time the offence was committed) rather than on the basis that this was a mere technical omission which has now been corrected. If those who breach the law are not prosecuted, the law will quickly fall into disrepute and the whole system of town planning will be undermined.

These comments are equally applicable in relation to a development of land. They are also applicable in relation to an application to amend a permit as they would be in relation to an application for a permit itself.

11 In considering the application on its merits the tribunal must proceed upon the assumption that the unlawful development has not been carried out, because to do otherwise would be to reward the applicants for unlawfully erecting the building. Nonetheless the existing building can be utilised to better understand, and assess, the impact it would have if it was permitted. As Osborn J noted in Knox City Council v Tulcany Pty Ltd [2004] VSC 375 at [13(b)], the statement of principle contained in Van Egmond:

Expressly identifies the paradox that unlawful commencement of a use (or construction of a development) may enable a better appreciation of its impact on its context that plans or other descriptions of a proposal ever could. This is self-evidently correct.

12 Various planning issues were raised by the responsible authority in opposing the application to amend the dual occupancy permit. First it was said that the building resulted in an unreasonable impact on the adjoining property to the south, owned by Mr and Mrs Smith. This impact related to visual bulk, minimal side setback, overlooking and overshadowing. Leaving aside the question of overshadowing and solar access (and the related issue of the setback of the upper level), I do not accept that the development, as built, would be unreasonable if the site was currently vacant. Any overlooking that exists is only from the ground level and could be relatively easily screened by a substantial fence, with or without a lattice extension, together with suitable planning. Similarly I would not regard the bulk at the ground floor level as being unacceptable.

13 The responsible authority also contended that the development would result in unreasonable impact on the streetscape, having regard to its "boundary to boundary" construction, symmetrical design, dominance of carports/garages and inappropriate balcony areas. However a symmetrical design is hardly unusual or surprising for a semi-detached pair of side-by-side dwellings. Nor is it inappropriate. Moreover, as the site is nearly 20 metres wide, I would not regard carports or garages on each side as unacceptable. Although it is true that the building has greater visual bulk than most of the buildings in the neighbourhood this is, to some extent, inevitable for a dual occupancy, which is a legitimate building form. Further, the building is set back more than 8 metres from the street, which is acceptable. At present the prominence of the building is exaggerated by the fact that the exterior is finished with bright blue insulation paper; but when rendered and finished, the appearance to the street is likely to be acceptable.

14 The council also maintained that the proposed building will result in unreasonable impact on adjoining properties to the west with regard to building mass and overlooking. In relation to building mass, I do not accept this contention. The upper level of the proposed development is set back in excess of 9 metres from the common boundary; and there is scope for landscaping along the western boundary. Although overlooking is a potential concern I am satisfied that this could be overcome with suitable conditions. The most likely condition would be a condition requiring planting along the rear boundary so as to create a screening effect.

15 I return to the question of the impact of the proposed development on the property to the south owned by Mr and Mrs Smith, and in particular to the impact in relation to solar access.

16 In determining a request to amend a permit the tribunal must take into account the matters set out in section 84B(1)(a) of the Act as if the request were an application for review: see section 90A of the Act. A central consideration is, of course, the provisions of the relevant planning scheme. Clause 32.01-4 of the Manningham Planning Scheme provides that a permit is required to construct two dwellings on a lot. It also provides that the development must meet the requirements of clause 55. In turn, clause 55 sets out various objectives, standards and decision guidelines. The applicant submitted that insofar as those standards were of a quantitative nature, the dwellings as built complied with those standards. However the standards are not all of that nature - some are qualitative standards.

17 Clause 55.03-5 of the scheme relevantly provides the following in relation to energy efficiency objectives:

To achieve and protect energy efficient dwellings and residential buildings.

To ensure the orientation and layout of development reduce fossil fuel energy use and make appropriate use of daylight and solar energy.

Sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced.

18 Clause 55.04-4 makes provision in relation to the protection of north facing windows. This relevantly provides:

To allow adequate solar access to existing north-facing habitable room windows.

If a north-facing habitable room window of an existing dwelling is within 3 metres of a boundary on an abutting lot, a building should be setback from the boundary 1 metre, plus 0.6 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres, for a distance of 3 metres from the edge of each side of the window. A north-facing window is a window with an axis perpendicular to its surface oriented north 20 degrees west to north 30 degrees east.

Before deciding on an application, the responsible authority must consider:

• The design response.

• Existing sunlight to the north-facing habitable room window of the existing dwelling.

• The impact on the amenity of existing dwellings.

19 Clause 55 provides that a development must meet all the objectives of the clause; and should meet all of the standards of the clause. Of course, a standard such as Standard B10, to the effect that new buildings should be sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced, is qualitative in nature and is ultimately a matter of judgment. Other standards, such as B20, are quantitative and can be usually applied without exercising judgment.

20 Contrary to the applicants' submission, on the evidence before me I find that the proposed development does not meet the standard B20 in relation to the rear upper level bedroom adjacent to the study window on the Smith dwelling. In saying this I am relying upon the accuracy of the plans, which I suspect may understate the size of development as built. The plans show a setback of the wall of 2.4 metres; the height of this wall would seem to be about 6.3 metres; and the wall would appear to be opposite north facing windows in the Smith dwelling that are within 3 metres of the boundary. On this basis a setback of 2.62 metres - not 2.4 metres - would appear to be required.

21 In any event I also find that the proposed development is not designed so as to allow "adequate" solar access to the existing north facing habitable room windows in the Smith dwelling. Further, the proposed building is not designed so as to ensure that the energy efficiency of the Smith dwelling is not unreasonably reduced. The Smith residence is designed with its study, kitchen and living area facing north, with substantial north facing windows. There is little doubt that in the colder months of the year this design would reduce the need for heating, provided solar access was not unreasonably blocked. Indeed, Mr Smith produced documents showing that his gas consumption had significantly increased since the construction of the building next door.

22 Significantly, I observe that it would be possible to design a dual occupancy on the subject land - even a large, two level dual occupancy - which reasonably protected the energy efficiency of the Smith dwelling. This could be achieved by concentrating the bulk of any upper level towards the centre of the site in much the same way as the permit requires. As the matter must be approached on the basis that the existing building does not exist, save for taking it into account in assessing the impact it will have if approved, I conclude that the impact of the proposed amendment on solar access to the Smith dwelling could be avoided and should be avoided.

23 I note that a single dwelling may be erected on the subject land without a planning permit. Such a dwelling would be subject to certain performance requirements imposed pursuant to building regulations, these requirements would not include a requirement in relation to solar access similar to standard B10. Hence it is possible that a single dwelling erected on the subject land may significantly reduce solar access to the Smith dwelling, in much the same way as the existing building has this effect upon the living room of the Smith dwelling. This leads me to pose the question: what is the point of refusing permission for two dwellings on the basis that it will adversely affect solar access to the Smith dwelling if much the same impact will result from a development which does not require planning permission? I think the answer to this question is that planning controls in relation to single detached dwellings involve a compromise between protecting the amenity of nearby properties and the certainty and efficiency achieved by allowing single dwellings to be constructed without the need for a planning permit. Thus the fact that a particular detached dwelling may be erected does not mean that the dwelling will achieve acceptable amenity outcomes. Hence the fact that solar access to the Smith dwelling may, or is even likely to, be impaired by the erection of a complying single dwelling does not provide justification for approving two dwellings which would have the same effect.

24 In these circumstances I decline to exercise the discretion available to me to amend the existing dual occupancy permit so as to authorise the as built form of the two dwellings.

25 I should point out that the application before the tribunal does involve certain changes from the as built form of the two dwellings. For example, the front upper bedroom in each dwelling is proposed to be converted to a Queensland style enclosed balcony. Frankly I cannot see any advantage in such a change. The change would have an insignificant impact upon the visual bulk of the building and would look somewhat incongruous in the context of Melbourne's climate. Another change is that the northern garage is proposed to be converted to a carport. Having regard to my views about streetscape issues generally, I see this of no consequence. The southern garage is also proposed to be changed: in this case to a single carport, bordered with a pergola. However I also regard this as of no real consequence. In my opinion, the garage wall, having a height of 3 metres, on the boundary with the Smith property, is not an unreasonable structure. Provided the southern face of the wall is appropriately cleaned or rendered it could be made into an acceptable and appropriate landscape feature within the Smith property. Although it is true that the wall may have some impact upon solar access I do not regard this as unacceptable.

26 Thus the case turns upon the interrelationship between the existing dwelling occupied by Mr and Mrs Smith and the height, extent and setback of the upper level of the dwelling abutting the Smith property. If this could be resolved then it would be appropriate to allow the amendment and the various cosmetic changes proposed by the applicants would be unnecessary. But it can only be resolved in one of two ways. One way is for the upper level of the dwelling abutting the Smith property to be substantially changed; but the applicants have not sought this outcome notwithstanding an opportunity to do so. The other way - and this may be a remote possibility - is that the existing solar access to the windows in the Smith dwelling is no longer required or desired by a new owner of that land. But it would be premature to seek to cross that bridge at this stage.

27 It will thus be necessary to resume the hearing in order to consider the applicants' application to seek approval for plans converting the dwellings into a single dwelling.