Victorian Civil and Administrative Tribunal|2002-02-04|Before: Ms J, Mr J

Lauritz J v Port Phillip CC and Shuttleworth and Others [2002] VCAT 115 (4 February 2002)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

APPLICATIONS FOR REVIEW NOS. P51429/2001 and P51822/2001

PERMIT APPLICANT AND APPLICANT FOR REVIEW: J Lauritz

RESPONSIBLE AUTHORITY: Port Phillip City Council

OBJECTORS AND APPLICANTS FOR REVIEW: J Shuttleworth and Others

Medium Neutral Citation [2002] VCAT 115

Application for Review P51429/2001 is dismissed. Application for Review P51822/2001 is granted. The decision of the responsible authority is varied. A permit is directed to be issued for the development of a three storey dwelling at 64 Albert Street, Port Melbourne in accord with Notice of Decision to Grant a Permit 222/2001, save that these amendments are made to the conditions in that Notice of Decision to grant a Permit:

1(b) A non-reflective finish to the raked roof of the two storey section of the building to the satisfaction of the responsible authority.

1 (d) Treatment of the treads in the external stairs on the western side of the building to prevent unreasonable noise impacts on the abutting property to the satisfaction of the responsible authority.

1(f) The privacy screening at the west end of the north facing balcony at

first floor level at a height of 1.8 metres above floor level.

Ms N Stephens, Town Planner, Port Phillip City Council

Ms J Shuttleworth on her own behalf and on behalf of Mr J Peart and Mr P Parsons

Mr S Wainwright, Consultant Town Planner, for Mr P Rodgers and Ms H Gunton

Ms J Cook on her own behalf and on behalf of Mr J Scully

Mr S Jones of Counsel, who called evidence from Mr T Blythe, Consultant Town Planner

Application P51429/2001: Application for review of a decision to grant a permit pursuant to s 82 of the Planning and Environment Act 1987.

Application P51822/2001: Application for review of conditions in a Notice of Decision to Grant a Permit pursuant to s 80 of the Planning and Environment Act 1987.

The proposal is to replace the existing dwelling on the land by a part two storey and part three storey dwelling. The existing two storey studio to the rear of the land will remain intact.

The land is irregular in shape with a frontage to Albert Street of approximately 7.3 metres and a frontage to Melville Street (which is 4.6 metres wide) of approximately 19.1 metres. It has an area of approximately 394 square metres

The land is in the Residential 1 zone pursuant to the Port Phillip Planning Scheme. Pursuant to Clause 32.01-4 of the Planning Scheme, a permit is required to construct a dwelling on a lot less than 500 square metres in area. No Overlays apply to the land.

The grounds lodged by the objectors were, in summary:

The proposal is out of character in the neighbourhood by virtue of its height and bulk

Condition 1 contained in the Notice of Decision to Grant a Permit required the submission and approval of amended plans showing a number of changes to the plans upon which the responsible authority based its decision. Conditions 1(b) and 1(d) as follows were sought to be reviewed by the permit applicant:

1(b) the existing tree in the front setback to be retained.

1(d) double glazing to be provided to the north and west glazed areas of the proposed living room.

It is unreasonable to require the retention of the tree located within the front setback as it is in poor condition and not of any significance.

The requirement to provide double glazing to the of the living room is unreasonable and excessive given the use of the property as a domestic residence.

Mr Jones for the permit applicant made application to amend the name of the permit applicant from Marcus Roberts to J Lauritz. There being no objections from the other parties, I ordered accordingly.

1. Ms Stephens took me to various provisions in the Local Planning Policy Framework of the Port Phillip Planning Scheme dealing with residential land use, neighbourhood character and urban design. Having inspected the site and surrounding area, I agree with the assessment of the responsible authority that the proposed dwelling would not be out of character in the local neighbourhood.

2. Albert Street is a quiet residential street containing mainly single storey dwellings constructed close to the street frontage. In this street and in the local area are a number of two storey extensions. The abutting dwelling at 62 Albert Street is partly a two storey building. There is a pair of new 2 storey dwellings of contemporary design opposite the subject land in Albert Street and there is also a building at the corner of Graham Street and Albert Street, which appears to be, in part, 3 storeys. The subject land is unusual in that it is L shaped and the proposed development is to be located towards the rear of the land such that it has a setback from Albert Street of some 14 metres and a setback from Melville Street of between zero and 1.7 metres.at ground floor level, 1.7 metres at and first floor level and at between 2.7 and 3.5 metres at second floor level. The three storey component adjacent to Melville Street has a flat roof 8.45 metres above ground level. The two storey component at the front of the building has a raked roof with an eave height varying upwards of 6.15 metres above ground level.

3. The setback from the frontage is such that the building will not present intrusively by virtue of height or bulk in the Albert Street streetscape. The front of the building facing Albert Street is relatively narrow at 5 metres wide and this will also assist in making it recessive in the streetscape. The architectural style of the building per se was not raised as an issue by the objectors. In my opinion it is an attractive contemporary design. I note the contemporary design of the pair of dwellings opposite the site in Albert Street and of the building at the corner of Albert and Graham Streets.

4. Melville street is best described as a "lanescape" with high fences and roller doors providing access to the rear yards of dwellings facing Albert and Ross Streets. The proposal will be abutted on its western side by the existing two storey studio on the land, which has a gabled roof with the ridgeline of that roof approximately 6.4 metres above ground level. Ms Shuttleworth submitted that the proposal would present intrusively and out of scale to the rear yard of her property at 24 Ross Street and to the rear yards of Mr Peart and Ms Parsons at 26 and 25 Ross Street, respectively. She also submitted that it would be out of character in that it would be seen from Ross Street and be out of scale when viewed from there.

5. Given the 2 storey rear extension of Ms Shuttleworth's property and the two storey extension now in the process of being constructed at the rear of 26 Ross Street, it is doubtful if any view of the proposal will be available from Ross Street, aside from a view of the third floor across the roof of 25 Ross Street. It may also be able to be viewed from the reserve on the south side of Ross Street. But the building form presented to Melville Street is slender - this elevation is only 3.6 meres wide at first floor level and 4 metres wide at second floor level. Given the width of Melville Street, the depths of the blocks facing Ross Street, the narrowness of the upper floor elevation facing Melville Street, and the masking of the proposal by the second storey extension at the rear of Ms Shuttleworth's property and the second storey extension being constructed on Mr Peart's property, it will not present intrusively to Ross Street or be out of character in the Ross Street streetscape.

6. Nor will the proposal, in my opinion, present intrusively or have any unreasonable amenity impacts on the back yards of 24, 25 and 26 Ross Street. The width of Ross Street, the setbacks from its rear boundary of the proposal at first and upper floor level and the narrowness of the upper floor elevations presented to Melville Street are such that in the context of an inner suburban location the presentation of the proposal would not be unreasonably intrusive. Nor will the proposal result in unreasonable overlooking, due to the use of elevated window sill heights and screening of balconies. The shadow diagrams prepared for the proposal show that there would be no overshadowing of the rear yards of 24 and 26 Ross Street. For 25 Ross Street there will be a very small increase in the shadowing of the back yard over and above that cast by the back fence of that property, but the additional shadowing will be for only some half an hour from approximately 1:30 to 2:00 pm at the equinox, which is not unreasonable.

7. I am satisfied that there will be no unreasonable amenity impacts on 66 Albert Street - the proposal has a courtyard opposite the open space of 66 Albert Street, the raked roof diminishes the height of the building on this elevation, and there is appropriate screening of windows and balconies. There will be no unreasonable overshadowing of this property.

8. Abutting part of the subject land to the west is the property of Mr Rodgers and Ms Gunton at 62 Albert Street, which contains a contemporary style part single storey and part two story dwelling. The private open space of this dwelling is in the form of a 15 square metre courtyard on the eastern side of the dwelling, separated from the subject land by a two metre high brick wall on the common boundary. Mr Wainwright submitted that the development will result in unreasonable loss of amenity to the courtyard by virtue of its bulk and acoustic impacts.

9. Having examined the sight lines from various parts of the courtyard and from the kitchen windows and the window on the western side of the courtyard (which is essentially a window along a passage to a bedroom), it is my opinion that the proposal will not present unreasonably intrusively to 62 Albert Street. The approach taken for the proposal was to site the building behind the courtyard and angle it such that the walls slant away from the courtyard the closer they get to Albert Street. A more conventional approach would have been to set the building much further towards the Albert Street frontage and then provide a "cut out" courtyard and lightwell opposite the courtyard. The approach taken in this instance produces a much better outcome for 62 Albert Street. The two storey part of the building will be seen at an angle from the kitchen windows and the courtyard, but the extent of that view decreases the further one stands in the courtyard away from the kitchen wall. Standing in the northwest corner of the courtyard (the "worst view" that can be obtained), between 1 and 2 metres of the second floor wall would be visible, plus the end of the north facing balcony. At its closest point where it would be visible from this vantage point, the end of the balcony is set back some 3.5 metres from the common boundary. The view of the balcony and the upper floor west wall would be partly through the foliage of existing tree to be retained opposite the courtyard. The view would be over the top of the 2 metre high brick wall on the common boundary. The sightlines are such that only the eave of the raked roof would be visible from the courtyard. That eave is just over 6 metres above ground level at the point. Yes, part of a building will be visible compared to no building being currently visible from the courtyard. But the appropriate test is not whether something will be visible compared to nothing being visible now. It is whether what will be visible is an unreasonable intrusion. Given that this is an inner suburban location, it is certainly not an unreasonable intrusion.

10. Overshadowing of the courtyard at 62 Albert Street is also not unreasonable Before 10 am at the equinox a small part of the courtyard is overshadowed beyond the shadow currently cast by the brick wall on the common boundary, but that will disappear by 10 am. Overlooking is prevented by appropriate screening devices. Mr Wainwright submitted that the screening on the western wall of the north facing balcony should be 1.8 metres instead of 1.6 metres. Given the importance of the courtyard to Mr Wainwright's clients, I think this is a situation where a "belt and braces" approach is justified, so I have included an appropriate condition on my order.

11. Mr Wainwright submitted that the external stairway up to the first floor would result in unreasonable noise impacts on his clients' courtyard and bedroom. The permit applicant is the owner of the land and lives in the existing house there. He intends to live in the proposed dwelling. Any noise impacts from the stairway would also be experienced by the occupants of the proposal and so the applicant has a significant incentive to ensure that the treatment of treads in the stairs is such to ameliorate noise. Mr Jones indicated his client's willingness to accept an appropriate condition and I have imposed one. Mr Jones also indicated his client's willingness to accept a condition dealing with the alleged reflections likely from the raked roof of the second storey component of the building and I have included such a condition in my order.

12. The studio building on the subject land, from which the owner conducts a photography business as a home occupation, contains a car space which is used as a car space and accessed by a roller door onto Melville Street. That arrangement will continue, so to suggest that the proposal contains no car parking is simply untrue.

13. In relation to Condition 1(b) of the Notice of Decision to Grant a Permit, Mr Jones tabled an arborist's report which stated that the flowering gum in the front setback of the property was in poor condition, suffering from die back and had been damaged by possums and should be removed. I have confirmed by inspection that the tree is in poor condition and is suffering from die back. I also note that power lines run through the canopy of the tree and sooner or later it will be pruned by the relevant power authority, probably severely. In my opinion it should be removed. This is a single dwelling being proposed, and moreover the applicant intends to continue living here. In these circumstances it is not appropriate for me to impose a condition on landscaping or that the applicant replace the tree. In any event I am confident that he will replace it with an appropriate species.

14. Mr Jones also submitted that Condition 1(d) of the Notice of Decision to Grant was both meaningless and inappropriate. His argument was that without specifying glass thickness and width of vacuum between the sheets, there was no guarantee that double glazing would have the effect desired in this instance by the responsible authority, which was to reduce noise impacts from the living room of the proposed development on the dwelling at 62 Albert Street. He also submitted that in the case of the north facing window, which contained a door onto the balcony, any double gazing would have little or no impact on reducing noise impacts because of that door, which presumably will be open at various times. In any event this is a single dwelling, he said, not a commercial or industrial building and so will not generate noise beyond that which any dwelling might be expected to generate. I agree with him- there is no need for such a condition and in any event it would be unlikely to achieve what it is aimed at achieving if it were to stand.

Lauritz J v Port Phillip CC and Shuttleworth and Others [2002] VCAT 115

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Lauritz J v Port Phillip CC and Shuttleworth and Others [2002] VCAT 115 (4 February 2002)

Parties