Application under section 82 of the Planning and Environment Act 1987; Hume Planning Scheme; Residential 1 Zone; Proposal for Two Double Storey Dwellings and One Rear Single Storey Dwelling; Neighbourhood Character; Amenity Impacts on Adjoining Property.

Lamaro v Hume CC & Anor (includes Summary)(Red Dot) [2013] VCAT 957

1. The decision of the Responsible Authority is set aside.
2. In permit application P16237 no permit is granted.

Mr T Finlayson, planning consultant of Ratio Consultants

The site is located mid-block on the north side of Spring Street between Eumarella and Gordon Streets. It has a frontage of 16.7m, a depth of 35.7m and a total area of 599sqm.

To construct three dwellings, one behind the other with associated car parking and landscaping. The front two dwellings are double storey and the rear dwelling is single storey.

Section 82 Planning and Environment Act 1987

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

Chak Lai Li v Whitehorse CC (No. 1) [2005] VCAT 1274

Li v Whitehorse CC (No. 2) [2005] VCAT 1438

Kirkman v Hobsons Bay CC [2012] VCAT 1463

1. This is an application by Mrs Lamaro to review the decision by Hume City Council ('the Council') to grant a permit for the development of three dwellings (two double storey and one single storey) next door to her property. The site is located at 18 Spring Street, Tullamarine.
2. The permit application was received by the Council in April 2012. After receipt of further information requested by the Council, the application was publicly advertised and four objections were received. The Council then determined to grant a permit subject to conditions including some minor design changes.
3. Mrs Lamaro's property adjoins the west boundary of the site and she lodged this application to review the Council's decision because of amenity impacts on her house and the proposal not being respectful of the neighbourhood character.

1. The two key issues in this case are the amenity impacts on Mrs Lamaro's property; and the neighbourhood character. In summary, I am not persuaded there are any unreasonable amenity impacts other than the visual bulk of the two double storey dwellings. However, I am of the opinion that the proposed design has failed to respond in an acceptable manner to the neighbourhood character. The reasons why I have reached this decision are explained below.

1. The amenity impacts of concern to Mrs Lamaro are:
   1. The overshadowing of the main living rooms she uses every day;
   2. The impact on the energy efficiency of her house as a result of increased usage of lighting and heating and a resultant increase in expenses;
   3. The noise of three families directly adjacent to her main living rooms; and
   4. The bulk and mass of two double storey dwellings immediately adjacent to her main living areas.

1. As I explained to Mrs and Mr Lamaro during the hearing, there are differing objectives and standards in the planning scheme about sunlight, daylight and overshadowing:
   • There is an objective and standard about overshadowing of private open space and in this case the extent of overshadowing at the Equinox onto Mrs Lamaro's private open space areas satisfies the standard, and is acceptable.
   • There is an objective and standard about reasonable sunlight into north facing windows in neighbouring dwellings, but in this case there are no relevant north facing windows that require consideration.
   • There is an objective and standard about daylight into other habitable room windows that are east, west or south facing. This is the relevant consideration in this case as Mrs Lamaro's main living room windows face east and south. The objective at clause 55.04-3 is to allow adequate daylight into existing habitable room windows. The Council and the permit applicant pointed out the associated standard B19 is met. The decision guidelines to be considered include the extent to which the existing dwelling has provided for reasonable daylight access to its habitable rooms through the location and orientation of its habitable room windows. Given Mrs Lamaro's windows face east and south, there are already limitations on the levels of sunlight into these windows. Both windows receive daylight now and will continue to if two double storey dwellings were built as proposed next door. Whilst the type of daylight may change for some morning hours throughout the year due to the shadow cast by the proposed dwellings, daylight is still achieved in accordance with standard B19. As such, I find the clause 55 daylight objective is achieved.

1. Mrs Lamaro is concerned the additional shadow cast by the proposed two storey dwellings will impact upon the energy efficiency of her house. I agree with Mr Lamaro that standard B10 about energy efficiency applies to adjoining lots and not just the proposed dwellings, which is what the Council officer report referred to when considering this standard. The clause 55.03-5 energy efficient objectives apply to both existing and proposed dwellings. The associated standard B10 states in part that buildings should be sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced; and the decision guidelines include considering the existing amount of solar access to abutting properties.
2. It is my view that standard B10 makes it clear that some reduction in the energy efficiency of existing dwellings on adjoining lots is reasonable. The question is when does it become unreasonable. I made some observations about this question in Kirkman v Hobsons Bay CC [2012] VCAT 1463 that I think are equally pertinent in this case, including:
   • The energy efficiency objectives and standard are quite deliberately broad, requiring a consideration of the energy efficiency of a house overall which may include a range of factors such as construction materials (as there is more to energy efficiency than just sunlight), the extent of glazing, the amount of sunlight and daylight into the house, the time of year and the time of day when any impacts occur.
   • If an adjoining property is concerned about the impact on its energy efficiency, it needs to provide appropriate material (e.g. documentation and/or evidence) in support of that concern so that the potential impact can then be properly considered by the permit applicant and the Council.
3. In this case, I agree the impact on the energy efficiency of Mrs Lamaro's house is a valid consideration, but she needs to provide appropriate material in support of that concern so that the impact can be appropriately considered. An assertion of impact is not sufficient material in this case for me to find that the energy efficiency of Mrs Lamaro's house is unreasonably reduced.

1. Mr Lamaro referred to the noise objectives in clause 55.04-8 and said the noise of three families, two immediately adjacent to Mrs Lamaro's living area will be greater than the current house and have a negative impact on her amenity. The noise objectives and standard are, in my opinion, primarily associated with external and mechanical noise sources, such as roads, trains, air conditioners and pool equipment. The residential use of the land requires no planning permission and any family noise will be residential noise in a residential area. I agree there is the potential for greater residential noise, but I am not persuaded such noise is sufficient or even an appropriate reason in this case to refuse this proposal.

1. The two double storey dwellings are located generally opposite Mrs Lamaro's dining room window and the two storey sections of these dwellings will be visible. However, visibility does not make the design unacceptable. Mr Finlayson submitted the heights of the dwellings, the wall heights of the dwellings, and how far the dwellings are set back from the boundary with Mrs Lamaro's property all comply with the relevant clause 55 standards. Relying on the decision of Chak Lai Li[1], Mr Finlayson stated "if the standard of clause 55 is met then the objective must also be deemed as met. The proposition cannot be put that if the standard is met the objective is not."
2. Chak Lai Li says where the standard is met the considerations against a proposal cannot include failure to meet the objectives to which the standards relate. Whilst Chak Lai Li identifies a legal interpretation of the structure of clause 55 in regard to its objectives and standards; it contains no discussion or interpretation about where the decision guidelines fit in or the use of the words "should" and "must" at the beginning of clause 55 under the headings 'operation' and 'requirements'.
3. The start of clause 55 states "a development must meet all of the objectives" and "should meet all of the standards" of clause 55 in the 'requirements'. In the 'operation', clause 55 explains "a standard should normally be met" and "the decision guidelines set out the matters that the responsible authority must consider before deciding if an application meets the objectives". The use of the words "should" and "must" are important, as they make the decision guidelines a mandatory consideration. There is nothing in the start or opening of clause 55 that says the decision guidelines do not need to be considered if the standard is met.
4. It must also be remembered that the objectives to be achieved are both quantitative and qualitative. Clause 55 places parameters around amenity impacts (such as wall heights, lengths and set backs), which can be measured quantitatively through compliance with the relevant standard. However, many of the clause 55 objectives contain both a reference to a particular amenity impact as well as the development being respectful of the existing or preferred neighbourhood character. This second part to the objectives requires a qualitative consideration about neighbourhood character. This is, in part, a subjective consideration and may involve consideration of a strategic planning context like a local planning policy for a preferred neighbourhood character outcome. This means that compliance with a clause 55 standard does not necessarily mean a permit should issue. This accords with the finding in Chak Lai Li:

It does not follow from this that a proposal that meets the relevant ResCode standards must necessarily receive a permit. That may be a strong indication for the grant of a permit, but it does not mean that a permit is an automatic result. There may be nevertheless be [sic] valid planning considerations that indicate refusal, and that outweigh considerations in favour of the proposal. ...

1. It must be remembered that the purpose of clause 55 is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character.

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

To encourage residential development that is responsive to the site and the neighbourhood.

1. The application of quantitative standards does not achieve the purpose of clause 55 as there is a qualitative judgment to be made in each neighbourhood context. Reliance on the quantitative standards that apply everywhere do not necessarily achieve a design response that is respectful of the existing neighbourhood character or contributes to a preferred neighbourhood character; or a design that is responsive to its site and its neighbourhood context. Therefore, whilst there may remain some question as to whether the three dot points under the 'operation' heading in clause 55 should be read sequentially or collectively, it is my view that they need to be taken as a whole and read collectively in order to achieve the purpose of clause 55. The decision guidelines therefore need to be considered in all cases irrespective of whether the standard is met.
2. It is my view that this is a case where the qualitative considerations outweigh the quantitative compliance with the clause 55 standards relating to building height, wall heights and set backs.
3. Building bulk is sometimes referred to as visual bulk, which is a planning term used to describe the impression that a building or buildings will make on the surrounds. Clause 55 endeavours to deal with the issue of building bulk by providing standards for the length of walls on boundaries; the heights of walls on boundaries, and the heights of walls set back from boundaries. However, what these standards cannot provide for is a design response that "respects the existing or preferred neighbourhood character" [2], as the standards are generic and do not address the particular neighbourhood characteristics to be respected.
4. The amenity impacts of a proposal need to be considered in the context of the character of the neighbourhood. This neighbourhood contains a few examples where two storey dwellings have been constructed including within the middle and rear of some properties, hence two storey buildings on this site can clearly be contemplated. However, this site does have sensitive residential interfaces and an acceptable design response to those interfaces must be demonstrated. In this case, I have not been persuaded that the proposal's visual bulk impacts are acceptable as they present to Mrs Lamaro's property to the west.
5. The term "visual bulk" is one which is often relied on in planning cases before the Tribunal, but its meaning is not always well understood. Clause 55 attempts to deal with bulk through a combination of setback and height standards, but ultimately it is the objectives of Clause 55 which must be met and a successful application will usually be able to demonstrate that the design has adopted a contextual approach and has responded to the site's characteristics and interfaces. In this case, compliance with the standards of Clause 55 is not sufficient for me to be satisfied that the visual bulk impacts are acceptable in this neighbourhood context (which is discussed further later in these reasons).
6. The orientation of Mrs Lamaro's living areas in her dwelling are to the south and east. The sunlight and daylight received through the east window is important, as is its outlook. The outlook from her back garden is also a relevant consideration. These areas of sensitivity are acknowledged in the design response because there are no windows in the first floor west facing walls of either proposed two storey dwelling. The setbacks between the ground and first floor west facing walls of dwelling 2 are minimal (between 160 and 760mm) and the separation between dwellings 1 and 2 is adjacent to dwelling 1's "service area" where there is no opportunity for landscaping that would soften the view of the two first floors. The effect of this design response is visually dominant upper levels when viewed from the secluded private open space and habitable room windows of Mrs Lamaro's property.

1. My final reason for refusing this proposal is because I am not persuaded the design response contributes to the preferred neighbourhood character.
2. In this case, there is a Neighbourhood Character local planning policy in the planning scheme at clause 22.14. The Council and the permit applicant both suggested that it is out of date as it is about 10 years old and in this particular neighbourhood there have been a number of recent developments. If that is the case, then it is probably time for the Council to undertake a review of this policy. In the meantime, it forms part of the planning scheme and is a matter that I must have regard to (as identified in the clause 55 decision guidelines).
3. This site is within Tullamarine 3 precinct, which is described as being distinctive for its highly consistent era of development and setbacks with low scale brick dwellings and established gardens. It highlights "the regular front and side setbacks and the lot widths" creating a predictable rhythm to the streetscape. Having inspected the neighbourhood surrounding this site, I find this description remains accurate, even with some of the recent infill medium density housing developments.
4. The preferred neighbourhood character is:

The consistent low scale dwelling forms, open streetscapes and garden settings are to be maintained and strengthened.

1. There are three associated objectives with suggested design responses to take into account when considering an application to develop land:

To encourage consideration of the landscape setting of new dwellings

Retain existing high canopy trees and understorey wherever possible

Prepare a landscape plan to accompany all new dwellings that utilises appropriate low maintenance vegetation

To ensure that new buildings do not dominate the streetscape

Minimise the overall height of buildings over one storey

Second storeys should be setback from front and side ground level facades

1. Whilst I acknowledge the neighbourhood character in this area is changing and now includes some attached houses, including two storey dwellings; I am not persuaded this design respects the preferred character and responds to the features of the site.
2. In terms of the site layout, I am not persuaded adequate consideration has been given to achieving a landscaped setting as there are two driveways, a wide front pathway and a 1.8 metre high fenced off secluded private open space area visible from the streetscape. Within the site, there are limited opportunities for landscaping along both sides of the east driveway that extends almost to the rear of the site. The rear easement may also create some constraints for landscaping adjacent to the rear boundary. The ground floor living areas of dwelling 2 are affected by the lack of set back to the common driveway to dwelling 3. To the west, there are some landscaping opportunities, but they must be balanced against the service areas provided and the preference by Mrs Lamaro to maintain reasonable daylight into her habitable room windows.
3. I am not persuaded the first floor of dwelling 2 and the rear of the first floor of unit 1 are setback sufficient distance from the west side ground level facades. This creates an unacceptable amenity impact by way of visual bulk.
4. The attached form of the development, whilst part of the emerging new developments in the neighbourhood, create a visual bulk impact, particularly for the two storey dwellings. This is not reflective of the existing rhythm of building spacing in this section of Spring Street. From my inspection of the area, I noted many mid-block medium density housing developments contain one double storey dwelling at the front or rear with the balance single storey. There are also examples of single storey unit developments. This site is located in a mid-block position surrounded by single houses with back gardens. These are features of the site that must be responded to as well as the broader emerging characteristics of new development. I am not persuaded this design response has achieved an outcome that meets the clause 55 neighbourhood character objectives.

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

[1] Chak Lai Li v Whitehorse CC (No. 1) [2005] VCAT 1274 and Li v Whitehorse CC (No. 2) [2005] VCAT 1438

[2] For example, the objective of clause 55.04-1 is: To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings. The objective of Clause 55.03-2 is: To ensure that the height of buildings respects the existing or preferred neighbourhood character. Under both Clauses, the decision guidelines require consideration to be given to any relevant neighbourhood character objective, policy or statement set out in the planning scheme and the impact of the building on the amenity of neighbouring dwellings.