1. The review site shares a common boundary with the attached three storey dwellings at 176 and 178 St Georges Road. Each dwelling has garaging and a bedroom at ground level, living areas at first floor and bedrooms at second floor. There are two light courts (identified on the application plans as service yards) along the eastern boundary with the review site.
2. Figure 1 shows the location of the two light courts. The southernmost light court services 176 St Georges Road (Unit 1). It has a minimum width of 1.55m and a length in the order of 2m. The light court has outdoor furniture located under the awning in front of window 3 (W3) which services the ground floor bedroom. This bedroom also enjoys the benefit of a stained glass door (D7) and a smaller glass brick south facing window (W2). At level 1 there are windows to the kitchen and dining room to the light court (W17 and W18). The dwelling at 176 St Georges Road also enjoys two balconies to the west with outlook to the street at first and second floors.
3. The northernmost light court primarily services 178 St Georges Road (Unit 2), but there is a north facing glass brick habitable room window to the dining room of Unit 1. This light court has a minimum width of 1.47m and a length of 4.4m. The light court has a service function, with the key open space for 178 St Georges Road located at first floor level on a north facing balcony. In the northernmost light court, there is a glass door (D6) at ground level to Bedroom 2 of Unit 2. This door is the sole source of daylight to this room. At first floor there are four windows to the kitchen and living area of Unit 2 (W6, W7, W8 and W9).

Figure 1: Development at 176 and 178 St Georges Road (source: working drawings submitted by applicant).

1. The proposal is for a new two storey boundary wall across the eastern boundary of each light court as shown in Figure 2. The new walls will have a maximum height of 6.7m. The new wall will impact on the light courts and the habitable room windows of the adjoining units at ground and first floor. I find that at the second floor any amenity impacts are mitigated by the fact that the windows at this level will be above the height of the new wall.

Figure 2: New walls adjacent to the light courts in red (source: Applicant's submission)

1. The applicant says the first floor of the proposed dwelling needs to be set back in the areas shown in red by 1m to reduce visual bulk and to provide an acceptable level of daylight to the windows and light courts of 176 and 178 St Georges Road. The applicant relied on the assessment of its architect which assumed a ground level of RL33 (equivalent to AHD) and an overall wall height above first floor finished floor level of the adjoining development of 3.34m as shown in Figure 3.

1. The Council undertook a detailed assessment of the impact on the light courts and each window, applying the relevant standards of Clause 54. The Council did not have the benefit of the working drawings for the development at 176 and 178 St Georges Road but rather relied on the application plans. The Council in its assessment assumed a wall height above the first floor finished floor level of 3.7m.
2. Council identified that the application plans did not correctly identify the Unit 2 light court at ground level, which is slightly angled as seen in Figure 1. At the hearing, it was also identified that the adjoining existing boundary wall abutting this light court is lower than shown on the application plans. This means that the difference between the existing and proposed conditions in this location is greater than shown on the application plans. I have taken into consideration these differences together with the differences between the levels used by the applicant and the Council. I have primarily used the survey data provided with the permit application in my assessment where possible.
3. The proposal will reduce the amenity of the adjoining dwellings at 176 and 178 St Georges Road. The test to be applied is whether such change is reasonable. The scheme provides policy guidance at Clause 15.01-2L (Building design) for to inform my assessment setting out the following strategy for walls on boundaries:

Ensure walls on boundaries minimise adverse impact on the amenity of adjoining residential properties through unreasonable overshadowing of private open space, visual bulk or loss of daylight to habitable room windows.

1. The parties agree that the new wall on boundary does not meet the relevant standard A11[2] at Clause 54.04-2 for either the overall height or length. The objective of this standard is 'to ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.'
2. I have found above that high walls on the boundary are consistent with the existing heritage and neighbourhood character of this area. Considering the decision guidelines in the clause for amenity, I find that the visual impact of the new walls for the Unit 1 light court meets the overall objective of the standard because of the size of this light court and the very limited extent to which the new wall extends (0.9m).
3. For the Unit 2 light court new wall is significantly greater because it extends across the whole length of this courtyard. At first floor this has limited visual impact as the windows are either glass brick (dining room of Unit 1) or highlight (Window 9).There will be a more significant impact to the outlook from the door (D6) to Bedroom 2 of Unit 2 at ground level. However, given the orientation of this window I find this acceptable because the outlook is directed along the length of the light court to the south which is larger than required. From within the bedroom outlook to the upper part of the new wall would be restricted.
4. To the extent that non-compliance with Standard A11 may result in loss of amenity through the loss of daylight to the habitable room windows on the adjoining property, I find that Clauses 54.04-3, (Standard A12) and Clause 54.04-4 (Standard A13) provide more specific guidance.
5. For the Unit 1 light court, I find that the objective of Standard A12 is met for all habitable room windows given their position relative to the new wall (not directly opposite) and the size of the light court available.
6. For the Unit 2 light court, at ground level I find that the objective of standard A12 is met due to the orientation of the door. I am satisfied that the size of the light court will continue to provide daylight to this bedroom. The first floor window (W9) would require the wall to be setback opposite this window in the order of 1.67m (based on the applicant's assessment). Considering the decision guidelines, I am satisfied that this dwelling will continue to receive acceptable daylight because of the highlight nature of the window and the other three windows servicing this space.
7. The remaining window is the glass brick dining room window of Unit 1. There was some discussion at the hearing as to the appropriate standard to apply given its orientation. The parties agreed that it met the definition of a north facing window for the purposes of Standard A13, but Council submitted that due to its orientation the more correct standard to apply is A12. Council says standard A12 would be met by the proposal. Council's assessment was based on a 1.85m required setback (3.7m high wall relative to finished floor level) with an arc as shown in Figure 4. In contrast the applicant's assessment would require a 1.67m setback.

1. If I apply the applicant's assessment, I find that the standard A12 will be met. If the floor level calculation is incorrect, I find that the objective is still met as the window is not directly opposite the wall and this dining area also receives daylight from windows W17 and W18.
2. If Standard A13 is applied, the requirement is not met. The window will be overshadowed by the new wall until about 11.30am as set out in the applicant's submission. The objective of Clause 54.04-4 is 'to allow adequate solar access to existing north-facing habitable room windows'. Taking into account the decision guidelines, I find that the reduced direct solar access to this window is acceptable primarily because of its angled orientation to the review site and the fact that the solar window is constructed of glass bricks which create a diffuse form of light rather than full solar penetration.

1. Overlooking is addressed on the plans or by permit condition. This was accepted by the applicant at the hearing.
2. The statement of grounds raised overshadowing concerns. However this was not pursued at the hearing. The two light courts to the extent that they may provide a secluded private open space function will receive additional shadow from the proposed new wall. I find that the primary areas of private open space for the adjoining units are the balcony areas which do not face the review site and on this basis the proposal is acceptable.

1. For the reasons set out above and applying the provisions of the Yarra Planning Scheme, the decision of the Responsible Authority is affirmed.

1 & 3 Alfred Crescent and 176, 176A and 178 St Georges Road

To extend on dwelling on a lot less than 300 square metres

1. Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions, and must be generally in accordance with the decision plans prepared by Zen Architects, Drawing No.:2401 TP01-10 & TP13 Revision 3; TP14 & TP15 Revision 1 Issued 11/10/2024; TP11&TP12 Revision 1 Issued 11/06/2024; TP16 Revision 2 & TP17 Revision 1 Issued 24/07/2024, but modified to show:

(a) Materials and finishes schedule and relevant elevations amended to show the external walls where visible from Alfred Crescent to be finished in a medium grey colour;

(b) Proposed ground floor plan amended to show:

1. Site Information Table to include the existing and proposed Secluded Private Open Space in area and percentage;
2. Locations and dimensions of the Secluded Private Open Space to be consistent with the permeable area specified in the Site Information Table;
3. Location and dimensions of all permeable areas to be consistent with the permeable area specified in the Site Information Table.
4. Rainwater tank to be relocated within the rear open space or underground.
5. A plan notation indicating that the rainwater tank is to be connected to toilet flushing and/or irrigation;

(c) Notation of 'Easement' to be replaced with 'Right-of-Carriageway' on all plans, with the dimensions of the land designated for the 'Right-of-Carriageway' to match with the Certificate Title Plan;

(d) Sectional overlooking diagrams to demonstrate whether overlooking from the first- floor, north-facing bedroom windows to any habitable room windows and secluded private open space to the north, east and west will comply with the overlooking objective of Clause 54.04-6 of the Yarra Planning Scheme. If the objective is not met, appropriate mitigation measures are required;

(e) Include a notation confirming that no works are to be undertaken outside title boundaries;

(f) The proposed front door and verandah to be of a Victorian era style and neutral colour.

1. The development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
3. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
4. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:

(a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm;

(b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or

(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

(a) development is not commenced within two years of the date of this permit; or

(b) the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] I note that the applicant also referred to Standard A10, but this does not apply to a wall on a boundary.