1. The decision of the Responsible Authority is set aside.
2. In permit application PA1123416 no permit is granted.

The land is an irregular shape with a maximum width of 22.29m at the street frontage and a maximum length of 50.21m along the west side boundary, creating a total area of 806sqm.

The land is relatively flat and contains a single storey house.

To alter the existing house by demolishing one side wall to create a driveway and car space.

To construct a double storey dwelling to the rear of the existing house containing four bedrooms and living areas with a double garage.

Section 82 Planning and Environment Act 1987

Clause 32.01-4 To construct two or more dwellings on a lot in R1Z

Clause 43.02-2 To construct a building or construct or carry out works in DDO4.

1. This is an application by Mr and Mrs Kirkman to review the decision by Hobsons Bay City Council ('the Council') to grant a permit for the development of a two storey dwelling at the rear of the existing house (with alterations) at 7 Garden Grove, Seaholme.
2. During the processing of the application the properties on either side of the subject land objected to the proposal. Mr Mrkonjic explained one objection was subsequently withdrawn conditional upon amended plans showing the inclusion of a boundary wall between a bedroom in the neighbouring house and the proposed rear outdoor deck area of the new two storey dwelling.
3. This matter was heard in the Short Cases List, which means the issues to be considered were clarified with the parties at the start of the hearing. The key concerns of Mr and Mrs Kirkman are neighbourhood character, visual bulk, overshadowing/energy efficiency and parking and access. In light of the concerns expressed about neighbourhood character and Mr and Mrs Kirkman's amenity, I reserved my decision to undertake an inspection of their house and private open space areas, as well as the broader neighbourhood.

1. Having considered the proposed design and the concerns expressed, I find a permit should not issue. I am not persuaded the design has adequately responded to the constraints associated with the development of the subject land. Rather, it appears that the design has evolved through the desires of the future owner, and this is not an appropriate design in this case. I find the visual bulk impact is unreasonable. There is also insufficient information in the planning application and analysis by the Council and the Respondent Permit Applicant to demonstrate that the overshadowing and north facing window impacts upon Mr and Mrs Kirkman's property are reasonable. I have considered Mr and Mrs Kirkman's concern about the impact on the energy efficiency of their home, but find this is a matter with much ambiguity that, in turn, makes it difficult to be determinative in refusing the grant of a permit.

1. Design and Development Overlay Schedule 4 contains an objective to ensure that the height, scale, bulk, setback and appearance of new development is compatible with the prevailing character of the area. The Residential 1 Zone contains a purpose to ensure that new development respects the existing neighbourhood character or contributes to a preferred neighbourhood character. The planning scheme contains Neighbourhood Character local planning policies including the Hobsons Bay South Neighbourhood Character Policy where this site is located within precinct 8. The statement of preferred neighbourhood character in this policy is "the open frontages and unique coastal setting of the precinct should be retained and strengthened". The objectives to be achieved include:
   • Maintaining the existing dwelling pattern,
   • Minimising the loss of front garden space and the dominance of car parking structures,
   • Encouraging innovative architecture that reflects the coastal setting, and
   • Maintaining the sense of openness in backyards and the tree canopy backdrop to the streetscapes.
2. The design response associated with this last objective states "if two or more dwellings are proposed, the dwelling(s) at the rear should be a single storey form".
3. Mr and Mrs Kirkman said precinct 8 contains about 370 lots of which there are only two multi-storey dwellings built at the rear in a mid-block location. Mr Mrkonjic identified a number of contemporary two storey dwellings in the neighbourhood. The difference between the two parties' positions in my view is the fact that the majority of the new dwellings in the neighbourhood are either single houses or attached dwellings that have the two storey components located close to the street frontage. What is proposed in this case is a new two storey dwelling at the rear of the existing house.
4. The fact that a two storey form at the rear is contrary to the design response sought in the local policy is not, of itself, sufficient reason to refuse this proposal. A local policy is a guideline and not a mandatory requirement. At the end of the day, what the planning scheme is seeking is a design that responds to the site and the immediate surrounds. In this case, I am not satisfied the design has achieved a satisfactory response.
5. The site has some constraints, including:
   • The retention of the existing house;
   • The rear easement;
   • The interfaces with the neighbouring properties on either side, including habitable windows and secluded private open space;
   • The Council's preference for the new dwelling's garage to be located out of sight from the street; and
   • The requirement to elevate the ground floor level due to the potential for sea level rise as a result of climate change.
6. Generally speaking, proposing to erect a two storey dwelling at the rear of a site adjacent to adjoining private open space areas and habitable room windows is more challenging because the amenity tests to be dealt with such as visual bulk, overlooking and overshadowing. Further, in regard to visual bulk, compliance with the standards for clause 55 in relation to building height, wall heights and setbacks is not necessarily sufficient to minimise the visual impact of a two storey dwelling at the rear of a site.
7. I agree with Mr Mrkonjic that the retention of the existing house provides a benefit by maintaining the general streetscape appearance of the site and its contribution to the neighbourhood character. However, this design is tight given the necessity to effectively shave off a small part of one side of the existing house to create enough room for a car space adjacent to it. Similarly, placing a new dwelling in the back garden and adjacent to other back gardens can create amenity impacts on the neighbouring properties. So, the retention of the existing house is both a benefit to the streetscape character and a constraint on the remaining available area of land within which a new dwelling, its car parking, private open space and service areas must be provided. In this case, the size of the new dwelling and its setbacks have not sufficiently responded to the amenity impacts of visual bulk and overshadowing. I note the agreement reached with one neighbour to erect a wall on the boundary to protect its bedroom windows from noise from the proposed outdoor terrace area, but in turn question whether that neighbour understood the potential resultant loss of some daylight. I have also considered the energy efficiency concern of Mr and Mrs Kirkman and made some observations about this to assist all parties in the event that a new planning permit application is made.

1. Visual bulk is the planning term used to describe the impression that a new building may have on its surrounds. As I have already stated, compliance with standard B17 about wall heights and setbacks may not be sufficient to address the impact of visual bulk.
2. Mr and Mrs Kirkman have a patio area with a northerly orientation that is integrated with and acts as a light well for the lounge, kitchen and dining rooms of their house. The proposal will create a building length of 12.8 metres and a building height of 3.8 metres setback approximately 1 metre from their fence. Mrs Kirkman said the view will be that of a bulk of building with no elements that contribute to a "lightness of structure" as is suggested in the decision guidelines of DDO4. Mr and Mrs Kirkman were critical of the Council's analysis of the merits of this proposal stating that the Council did not address the issue of a double storey dwelling being built at the rear. The Council stated the neighbourhood character was examined including an assessment against Council's neighbourhood character policy and was considered to comply with the preferred character statement. I note the openness of backyards objective in the neighbourhood character policy is analysed in the officers report as:

The large rear open space to the proposed rear dwelling which will include a swimming pool provides and openness in the 'backyardscape'.

1. I agree with the Council that there is a generous area of private open space proposed at the rear of the new dwelling (124.38 square metres), but this means the ground floor of the dwelling is setback 1.15 metres from Mr and Mrs Kirman's boundary. The ground floor plan depicts this setback as a service area and pathway with no significant opportunities for new landscaping that could assist to break up the visual impact of the proposal.
2. I agree with the Council and the Applicant that the first floor setbacks at 3.5 and 5.7 metres satisfy the clause 55 standards. However, this compliance does not sufficiently address the visual impact of the overall building as viewed from Mr and Mrs Kirkman's property.
3. The Applicant submitted that there were a number of mandatory requirements and they have compromised quite a bit. In response to my questions during the hearing, Mr Mrkonjic explained the Applicant had a 'wish list' as to what they wanted including a number of mandatory components for the design of the dwelling including the size and shape of the laundry and a preference for a fourth bedroom upstairs, both of which could not be achieved and hence the compromises. Whilst the design of the house may evolve from the desires of a future owner, that does not mean it can necessarily be achieved in accordance with clause 55. In this case, the desires of the future owner have created at least one unreasonable amenity impact. I find the limited ground floor setback and limited landscaping opportunities contribute to the overall new dwelling creating an unreasonable visual bulk impact upon the Kirkman property.

1. The overshadowing objective is to ensure that buildings do not significantly overshadow existing secluded private open space. The standard states at least 75% or 40 square metres with a minimum dimension of 3 metres (whichever is the lesser) of the secluded private open space should receive a minimum of 5 hours of sunlight between 9:00am and 3:00pm on the September Equinox. It also states that if existing sunlight to the secluded private open space of an existing dwelling is less than the standard, the amount of sunlight should not be further reduced.
2. The Council and the Applicant state standard B21 is met in regard to the extent of shadow cast by the proposed new dwelling onto the Kirkman open space. The Council said there is no adverse overshadowing impact at 9am or 12 noon and the shadow impact of Mr and Mrs Kirkman's property is in the afternoon at approximately 3:00pm. Mr and Mrs Kirkman acknowledge they only get sunlight during the afternoon and say they do not get 5 hours of sun on 40sqm now.
3. The Kirkman house has two areas of open space, one with a northerly orientation to the side of the dwelling and the other with a south-westerly orientation at the rear of the dwelling. I am not persuaded that any of the parties have appropriately considered the overshadowing impact upon Mr and Mrs Kirkman's property. The Council and the Applicant have not given sufficient regard to the Kirkman's side area of open space with a northerly orientation. The Council described it as a service area.
4. The overshadowing objective refers to secluded private open space. Private open space is defined in the planning scheme as:

An outdoor area of a dwelling or residential building or land for the exclusive use of the occupants.

1. Secluded private open space is defined in the planning scheme as:

That part of private open space primarily intended for outdoor living activities, which enjoys a reasonable amount of privacy.

1. The Council said that the Kirkman side area is not the principle private open space or principle secluded private open space. However, the Council acknowledged there is no reference to "principle" in these definitions or in the planning scheme's consideration of overshadowing. In this case, I find both the side and rear areas of Mr and Mrs Kirkman's property are secluded private open space.
2. Mr and Mrs Kirkman have recently had a pergola adjacent to the rear of the house approved retrospectively. This pergola (as they describe it) has a roof and a solid section of wall in the west corner with clear plastic blinds that can be opened or closed for the balance of the area. The Tribunal has previously found[1] the enclosure of a verandah by three walls and a roof created a de facto indoor area rather than an outdoor area or an area for outdoor living activities. In this case, the pergola is adjacent to the wall of the dwelling and has another section of wall in the western corner with a roof. Hence, the degree of enclosure is not as extensive as that in the Fredman Melina case, but I acknowledge perhaps there could be an argument as to whether this space is now a de facto indoor area. I do not need to make a finding on this as the overshadowing impact can be assessed without specifically considering this space.
3. The overshadowing standard B21 relates to secluded private open space that has a minimum dimension of three metres. None of the parties have analysed the extent of area that meets this dimension. Not all of the side secluded open space area will meet this requirement, but the indented area adjacent to the family, meals, kitchen and lounge areas of the Kirkman house does. So too will some, if not all of the back garden area.
4. The decision guidelines require consideration of the existing sunlight penetration to the secluded private open space of the existing dwelling, including the time of day that sunlight will be available. The Applicant and the Council have not done this. Mr and Mrs Kirkman have partially done this in table 2 of their written submission, but it needs to be prepared for each hour between 9 and 3pm and should provide:
   • The square metre area of the back garden and side open space areas;
   • The total square metres of secluded private open space (including those portions that do not meet the three metre minimum); and
   • An analysis of the amount of sun received into each of these areas for each hour.
5. If the existing sunlight to the secluded private open space is less that the requirements of standard B21, the standard states "the amount of sunlight should not be further reduced". The use of the word "should" means it is not a mandatory requirement. If it was, it would use the word "must". Hence, it remains possible that the existing sunlight penetration to Mr and Mrs Kirkman's property could be reduced by development next door, but such a decision needs to be made having regard to the decision guidelines associated with the overshadowing open space objective. In the absence of clear information about the existing sunlight penetration to the secluded private open space and the time of day that sunlight will be available, I am not persuaded by any of the submissions about the effect of a reduction in sunlight on the existing use of the secluded private open space. This is a matter that requires further consideration by all parties.

1. Standard B20 about sunlight into north facing windows does not specify a time of day or a particular period of the year in which to assess the existing sunlight into north facing habitable room windows. Rather, it also specifies a particular equation for a new building to be setback "to allow adequate solar access to existing north facing habitable room windows".
2. Mr and Mrs Kirkman's lounge room window has a northerly orientation, but was not included in the site analysis or design response plans. I note the clause 55 assessment in the Council Officer's Report said there were no north facing windows that required consideration. During the hearing, Mr Mrkonjic stated this existing north facing window did not meet the angle requirements of standard B20 in order for it to be classified as a north facing window. However, Mr and Mrs Kirkman provided details of the angle of the window in their original objection to the Council that demonstrate it does fall within the axis of north 20 degrees west. The Amended Endorsed Plans for Mr and Mrs Kirkman's house (tabled by the Council during the hearing) show the lounge room wall set back 2.335 metres from the boundary with the subject land, but there is no dimension as to the actual setback of the edge of the window from that boundary. If this window is within three metres of the boundary, standard B20 should be considered. Based on the submissions presented, I am not persuaded this matter has been adequately considered by the Council and the Applicant.

1. My primary reasons for refusing this proposal are the visual bulk, overshadowing and north facing window impacts (or potential impacts) upon the Kirkman property in combination with the constraints I have identified as being associated with the development of the subject land. All of these matters require further consideration by the Applicant.
2. There was also another significant concern raised by Mr and Mrs Kirkman about the unreasonable reduction of the energy efficiency of their house. I wish to make some observations about this concern to assist all of the parties in the event that a new application for planning permit is made.

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.

• Oriented to make appropriate use of solar energy.
• Sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced.

1. During the hearing, I pointed out to Mr and Mrs Kirkman this standard does provide for the energy efficiency of existing dwellings to be reduced. What the standard requires is a judgment as to whether the reduction in energy efficiency is unreasonable.
2. Mr and Mrs Kirkman say there is an unreasonable reduction in the energy efficiency of their house as their northerly oriented living areas will incur a sunlight reduction on average of 30% per day. By their estimate, they have sunlight in this area for about 4.5 hours in September between approximately 1.00pm and 5:30pm. From mid to late Autumn, during Winter and in early to mid-Spring they use the afternoon sun for passive heating. They provided photographs and modelling to support their submission, including summer 2011 photographs. In their view, if this development is approved, their lights in Summer will need to be turned on 2 hours earlier at about 6:30pm. The Council and the Applicant did not dispute the accuracy of the sunlight modelling provided by Mr and Mrs Kirkman, hence I have no reason to doubt its general accuracy.[2]

1. In general terms, a proposal to develop land places an onus upon the Applicant to undertake the analysis required by clause 55 such as the overshadowing of open space, the north facing windows and the daylight standards. These standards are quite easy to analyse because of the numerical equations or tests incorporated into the planning scheme to assist in that analysis. It is also quite easy as the information that an Applicant requires can be obtained from an external inspection of an adjacent dwelling. I do not think that the same can be said about the energy efficiency of an existing dwelling. If a resident of an existing dwelling wishes to protect their dwelling's energy efficiency and ensure that it is not unreasonably reduced, it is necessary for them to demonstrate in the first instance how the new development will unreasonably impact upon its energy efficiency.
2. In this case, sunlight modelling was provided by Mr and Mrs Kirkman in their planning application objection to the Council. The Council considered this material primarily in the context of standard B21 (relating to overshadowing of open space); and the Applicant also considered this in the context of the shadows cast at the Equinox. I do not think these considerations are what is called for by clause 55.03-5.

1. I appreciate that how to assess the energy efficiency of an existing house under the energy efficiency objectives and standard B10 is not clear[3]. There is no definition of energy efficiency in the planning scheme. In general terms, one might expect the design of an energy efficient house is about minimising the consumption of energy by way of lighting, heating and cooling. The energy efficiency decision guidelines in clause 55 require consideration of:
   • The design response.
   • The size, orientation and slope of the lot.
   • The existing amount of solar access to abutting properties
   • The availability of solar access to north facing windows on the site.
2. In my view, the relevant decision guidelines in this case are the first three. I observe that:
   • The proposal includes a two storey house set back from the Kirkman boundary between 1.15 and 3.45 metres at ground floor and between 3.59 and 5.79 metres at first floor.
   • The land between the two properties is reasonably flat.
   • The subject land and the Kirkman property are both small lots with north oriented on an angle, which may create some difficulty for both properties to maximise their northern orientation.
3. The last decision guideline is about solar access. Solar access is, again, a term that is not defined in the planning scheme. In general terms, one would expect that it relates to the amount of sunlight received. I observe that this could be sunlight into windows but could also be sunlight on walls and other surfaces of a house as well.
4. I note this decision guideline does not distinguish the amount of solar access into particular parts of a house such as the principal habitable rooms. It does not specify a time of year or a time of day to consider (unlike the overshadowing standard). This can be contrasted with, for example, the energy efficiency control that was in place in a NSW case, McGuire v Randwick City Council[4]. In that case the Dwelling Houses and Attached Dual Occupancies Development Control Plan contains a solar access and energy efficiency objective to protect solar access enjoyed by neighbours with a 'preferred solution' that north facing living room windows of neighbouring dwellings:

... receive at least 3 hours of sunlight over at least part of their surface between 9.00am and 3.00pm on 21 June. If less than 3 hours is available under current conditions, access to sunlight is not reduced.

1. I also note that the energy efficiency objectives in Victoria have changed over time, for example:
   1. The Victorian Code for Residential Development Multi-Dwellings (November 1993) included Performance Criteria PC 7:

Where practical, developments do not significantly reduce winter solar access to large north-facing windows to main living rooms of adjacent dwellings. This may be achieved by, for example, a minimum separation between these windows and a new double storey wall of 10m or a new single storey wall of 5m.

1. However, the explanation of this Energy Efficiency element of the 1993 Code included the following statement:

Protection of existing winter solar access to windows of adjacent developments is desirable for energy purposes where the dwelling design, window size and north orientation makes such windows efficient passive solar collectors. If this is practical without reducing the density of a new development then it should be done. However, in principle, sunlight for solar access purposes should be provided within property boundaries. An adjacent dwelling's solar access is not given mandatory protection under this Code.

1. The Good Design Guide for Medium Density Housing (Revision 2 April 1998) then changed this energy efficiency element into objectives to allow adequate daylight into habitable rooms and to allow sunlight onto the windows of the main living rooms of new and neighbouring dwellings. This was followed by criteria (E6.C5) that included buildings not significantly overshadow neighbouring main living room windows. The 'techniques' that followed included something very similar to what is now known as the daylight standard B19 in clause 55.

1. With the introduction of clause 55, the north facing windows standard B20 was introduced.

1. This history suggests to me that the energy efficiency objectives and standard are quite deliberately broad. They appear to require a consideration of the energy efficiency of a house overall and whether a reduction is unreasonable. This may include consideration of a range of factors including the materials of construction, the extent of glazing, the amount of sunlight and daylight, the time of year and the time of day when any impacts occur, all of which contribute to the extent of fossil fuel energy use.
2. At the end of the day, a balance will need to be struck between a proposed development and any impact upon the energy efficiency of an existing house. Given the energy efficiency objectives, standard B10 and the decision guidelines contain no limitation on the time of day or the time of year, I can envisage that there will be many circumstances where there will be some reduction in energy efficiency at certain times of the year that are considered reasonable in the overall balance. But, each case will need to be considered on its individual merits and, in my view, if the energy efficiency of an adjoining property is of concern to that property and appropriate material is provided in support of that concern, then the potential impact needs to be considered. This is what the parties will need to do in this case if a future application for planning permit is made.
3. I make no finding on this concern expressed by Mr and Mrs Kirkman as the design of the proposed rear dwelling will need to change to address my other concerns, being the primary reasons for refusal. Also, I am cognisant that the parties have not had the opportunity to consider the issue of energy efficiency in terms of the range of factors identified in paragraph 42 above. Again, this should be done if a future application for planning permit is made.

1. For the above primary reasons, I have decided to set aside the Council's decision and order that no permit be issued.

[1] Fredman Melina Planning Pty Ltd v Monash CC [2008] VCAT 1493

[2] Mr and Mrs Kirkman provided photographs of the existing extent of sunlight that appeared to correspond with the modelled sunlight to illustrate the accuracy of the modelling.

[3] Unlike the clear tests for overshadowing of open space, daylight and north facing windows in clause 55

[4] [2010] NEWLEC 1314 at paragraph 36