Overlooking from the first floor level window will occur.

The proposal is inconsistent with applicable objectives for residential development as contained within the Local Planning Policy Framework of the Knox Planning Scheme and in particular Clause 21.05, Clause 21.07 and Clause 22.10.

The proposal is not site responsive to its neighbourhood character setting and the site constraints.

1. As part of the current application, it is now proposed to construct a car port and a garden shed, new windows and doors, and a water tank.
2. The issues in this case are unusual, but not unprecedented. The council submits that the proposal should be assessed as if it is a new building and the requirements of Clause 55 of the planning scheme applied on that basis. The council submits that the proposal fails to meet the requirements of Clause 55.
3. The applicant submits that the ambit of discretion in this case is very narrow and relates to the limited works that are now proposed. Ms Sharp submits that Clause 55 objectives are met and with respect to the buildings now proposed, the standards of Clause 55 are met. Ms Sharp submits that the planning scheme's policy framework supports a second dwelling on this site.
4. A permit is required pursuant to Clause 32.06-4 of the Residential 3 zone to construct two or more dwellings on a lot. The fact that the second dwelling is to be incorporated within an existing building does not obviate the need for a permit to be issued. Nor does it obviate the need for the second dwelling to meet the requirements of Clause 55. In considering an application, and in applying the objectives, standards and decision guidelines of Clause 55, and the applicable policy framework, the existence of the building is clearly relevant to the assessment that must be undertaken.
5. In adopting this approach to the assessment of the application, I have concluded that a permit should not issue for this proposal.
6. My reasons are set out below.

1. The council and the applicant have taken very different approaches to the consideration of this application.
2. While there was no dispute that the application must be assessed against the requirements of Clause 55 of the planning scheme, the zone purposes and relevant policies, the council submits that the proposal should be assessed as if the building does not exist, and the objectives and standards of Clause 55 applied accordingly. On that basis, the council submits the proposal fails relevant objectives relating to neighbourhood character, energy efficiency, side and rear setbacks, design detail, and vehicular access.
3. The applicant submits that the council's approach to the assessment of this application is incorrect. Ms Sharp submits that the application cannot be considered on the same basis as an application involving the construction of a new building. Ms Sharp submits that the relevant matters for consideration are those that require planning permission, being the new buildings and works outlined above. Ms Sharp submits that the ambit of discretion in this matter is therefore very limited.
4. The Tribunal has on occasion, considered similar applications where existing buildings on residential lots were to be converted to a dwelling, incorporated into an application for a second dwelling, or otherwise converted into residential use. The council referred a number of those cases to me. In each of the cases, decisions were made having regard to the specific merits and circumstances of the proposals, and to some extent at least, each can be distinguished from the circumstances applying in the present case. In addition, neither of the cases referred to me by Ms Loke, provide support for the council's proposition that the assessment of this application should proceed on the basis that the existing, lawfully constructed building does not exist.
5. There is however a consistency in the decisions referred to me about the preferable approach to be adopted in the consideration of applications of this type. In broad terms, the Tribunal has found that the existence of the building is a relevant factor, and in applying the standards and objectives of Clause 55 (and other relevant, zone and overlay provisions, policies and guidelines) these need to be applied in the context that the building does already exist, and the impacts of the building assessed accordingly.
6. In Munjal v Casey CC [2010] VCAT 1026, Byard SM found that when considering an application for a second dwelling on a lot it is entirely proper for the existence of a carport lawfully constructed in the front garden of the existing dwelling on the land to be taken into account when considering an application for a second dwelling. Mr Byard SM found that the proposal involved the whole of the lot including the existing house and what is on the land, as well as the proposed new buildings and works. In Loois v Bayside CC [2005] VCAT 1645, Member Eccles decided that it was valid to consider the impact of an existing building constructed as a single dwelling, when assessing an application to create two dwellings within the existing building.
7. In those cases, a further finding emerges which is relevant to my consideration of this application. In Manjul, Byard SM made some pertinent observations about a building lawfully constructed in accordance with a building permit under building control legislation, and the weight which can be accorded to its existence in circumstances where the building is then subject to consideration under planning legislation. Mr Byard said:

Because there is no planning control over the construction of a detached house on a substantial allotment, it is possible, from a planning point of view, to proceed with a construction of a house that has detrimental effects on the amenity of the area. With no planning permit required, it is possible to build a house that is massive, bulky, dominant in the streetscape, out of harmony with the neighbourhood character, and such that it unreasonably overlooks or overshadows neighbouring properties. It is possible to construct front fences that are high, heavy and out of keeping with the neighbourhood character and to construct a garage or carport in a front garden.

Where planning permission is required there is control over these things. Where two dwellings are proposed, or a second dwelling behind an existing one, planning permission must be applied for. It is likely to be refused, or there are likely to be requirements for modifications, if the proposal includes adverse features of the sort I have just described, in spite of the fact that an owner might be able to impose them on the situation if the proposal was for a detached house or an extension to a detached house rather than, say, two dwellings.

1. In Loois, Mr Eccles relied on a decision of Justice Morris (as he then was) in Jurkic v Manningham City Council [2005] VCAT 12162[2] in arriving at his conclusion that:

......just because a single dwelling is lawfully constructed in accordance with a building permit, but where no planning permit is required, this does not mean that that it is acceptable if it is proposed to be converted to two dwellings. There are different and higher standards contained in all planning schemes which apply to proposals for an additional dwelling on a lot, notwithstanding that the building, or part of the building which is proposed to become the second dwelling, has already been constructed.....[3]

1. With respect to the ambit of discretion available in the consideration of the application, I am not limited to an assessment only of the proposed buildings and works. As I have stated above, a permit is required to construct two or more dwellings on a lot. It is common ground between the parties that there is no such permit. Nor is there any dispute or ambiguity about the applicant's intentions. It is proposed that the shed be used as a dwelling, and indeed the conversion has already occurred and the shed is currently occupied and leased as a dwelling. The fact that the shed is an existing, lawfully constructed outbuilding does not obviate the need for a permit for the construction of two dwellings on a lot[4].
2. For the purposes of this case, the consequences of the above for my consideration of this application, are that:

1. A permit is required to construct two or more dwellings on a lot and my discretion is not limited to only those buildings and works that are now proposed. 2. The proposal must meet the requirements of Clause 55 but in undertaking the assessment of the proposal against Clause 55 (and other relevant, zone and overlay provisions, policies and guidelines), it is not appropriate to assume that the lawfully constructed building does not exist. The existence of the building is a relevant factor and the proposal must be assessed accordingly[5].

1. The fact that the building has been lawfully constructed as an outbuilding in accordance with a building permit, is not evidence that the building achieves acceptable planning outcomes. In circumstances where it is proposed to convert an outbuilding into a dwelling, the proposal will be subject to assessment against the higher standards of the planning scheme.
2. I now turn to a consideration of the merits of the application.
3. The outbuilding is in effect a steel shed of about 158 m2 floor area. It has a pitched roof with a maximum height of 5.5 m. It is located to the rear of the land, which is also occupied by a single storey dwelling at the front of the lot. The shed is setback 1.1 m from side and rear boundaries. A timber fence delineates the rear yard of the front dwelling from the shed. A concrete paved area is located between the shed and the rear fence of the existing dwelling. Vehicular access to the rear of the site is available via a crossover and a driveway running along the site's western side boundary. The driveway has a minimum dimension of 2.4 m for a distance where it passes the front dwelling. It is proposed to install new north facing windows and doors along the shed's ground level and to construct a carport and timber fence. Ms Sharp advised me that conditions could be imposed on a permit requiring landscaping and other detailed modifications.
4. The council acknowledges that on this site and in this location, the construction of a second dwelling on a lot is supported by the purpose of the Residential 3 zone, and the applicable policy framework. The council did not raise substantive concerns about the proposed works in relation to the relevant matters under the DDO2 and SLO3. I agree with the council's assessment on these matters.
5. The council's concerns are primarily focussed on the neighbourhood character impacts associated with the conversion of the shed to a dwelling, and the building's non compliance with nominated standards and objectives of Clause 55.
6. The applicant submits that the proposal respects the character of this neighbourhood because:
   • The shed already exists and there will be no change in its siting, height or materials. It is therefore already part of the neighbourhood's character.
   • The shed is only partly viewable from the street, and the new works will not be visible.
   • The proposed open space and landscaping will partly replace concrete paving and contribute to the landscape character of the area.
7. With respect to other standards and objectives of Clause 55, Ms Sharp submits that non-compliance is either not relevant or should be assessed on the basis that the building already exists, and its impacts will not change.
8. In effect, the applicant's position in this application is that because the shed exists its conversion to a dwelling is of little consequence. As I have discussed above however, a building constructed in accordance with a building permit cannot be regarded as also complying with planning objectives. In this case, the polices, standards, objectives and guidelines included within the planning scheme in relation to the construction of two or more dwellings on a lot, are intended to achieve quite specific built form outcomes. For example, at the State Policy level, built environment and urban design policies encourage high quality design and architecture, and development that contributes to local urban character and sense of place[6]. The purpose of Clause 55, in addition to implementing State and local policy, is:
   • To achieve residential development that respects the existing neighbourhood character or 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.
9. The council's housing and neighbourhood character policies reinforce these provisions. In broad terms development in residential areas are encouraged to respond to the particular built form elements that make up the neighbourhood character of Knox[7]. The review site is located within the Garden Suburban Precinct No.6 under the local policy. The key characteristics of these areas include single storey dwellings with low pitched, tiled roofs, wide eaves, low wall heights, brick and timber construction materials. Generous front (7-8 metres) and side setbacks are also evident (1-3 metres). The Statement of Desired Future Character is:

Low scale dwellings set within an open landscape with occasional large native trees and in some instances large stands of native and exotic trees.

1. While I acknowledge that the existing shed is only partly visible from the public domain, a proposal for a second dwelling on a lot in this location must nevertheless demonstrate that it responds appropriately to the character of this neighbourhood, and that it is an acceptable built form in the neighbourhood context. This building does not pass that test. The siting, height, form, style and material of construction of this building is not consistent with that of existing dwellings in this neighbourhood. For example, with the exception of the front façade, there are no openings in any of the other three elevations, and the building presents as a stark, unarticulated, utilitarian, and almost industrial structure without any design merit. The planning scheme does not encourage residential development of this type.
2. The failure of the proposal to achieve the neighbourhood character objective is sufficient to warrant a refusal of the application[8]. There are however other aspects of the proposal that I also consider unacceptable. Largely these shortcomings result from the fact that the existing building was not designed, sited or constructed as a dwelling. The conversion of the shed to a dwelling is opportunistic, and it has not been designed in accordance with a neighbourhood and site description, a document that is intended to inform the design response[9]. I have commented previously on the objective relating to Neighbourhood character. In addition, I am not satisfied that the objectives of Clause 55.03-5 Energy efficiency, 55.03-9 Access, and 55.06-1 Design detail are met.
3. This is not an exhaustive list, but it is sufficient to highlight my concerns. With respect to Energy efficiency for example, the objective is:

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.

1. I acknowledge that north-facing windows are proposed, but they are the only windows in the building. This objective is not achieved by there being only north facing windows to the exclusion of all other orientations. Nor am I satisfied that the conversion of the shed to a dwelling constitutes a sustainable use of materials which is sufficient to overcome all other inadequacies.
2. Vehicular access to the site via a driveway that is (in part) 2.4 m wide, is a significant constraint[10] to the development of the land for a second dwelling. While this is an existing condition and the driveway may provide reasonable access to service the irregular use of the shed as an outbuilding, it is not sufficient for it to be relied on to provide access to a dwelling. This factor on its own may not be sufficient to warrant a refusal of the application, but it is one of the factors which has influenced my decision.
3. I agree with Ms Sharp's submission with respect to the building's impacts on the amenity of neighbouring properties. Overlooking, overshadowing and visual bulk impacts will not change as a consequence of the grant of a permit for this proposal. This is a relevant consideration and is reflective of the need for an assessment of the proposal to have regard to the fact that the building is an existing structure. In the context of this proposal however, having regard to the form and style of this building, and the other concerns I have identified, this is not sufficient to persuade me that it is appropriate to grant a permit. Nor am I persuaded that policy objectives relating to the provision of a diversity of housing opportunities, and housing affordability, are sufficient to outweigh my concerns about this proposal.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit issued.

[1] Ms Sharp informed me that when her client purchased the property in 2009 the shed contained a kitchen, bar, four toilets and shower facilities, a large living area and upstairs bedroom with robes. Her client proceeded to lease the front dwelling to one party and the shed to a separate party. Ms Sharp submitted that her client was unaware that planning and building permits was required for the use of the shed as a dwelling. This was not disputed.

[2] In that case the applicants had, under the guise of erecting a single dwelling, erected two dwellings. which differed significantly from a permit which had been issued for two dwellings. His Honour was considering an application under section 87 of the Planning and Environment Act 1987 to amend the permit authorising the two dwellings to reflect the "as built" form of the dwellings. His Honour commented: "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 a 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 the a particular detached dwelling may be erected does not mean that the dwelling will achieve acceptable amenity outcomes...."

[3] Loois v Bayside CC [2005] VCAT 1645, paragraph 29.

[4] Boldiston v Macedon Ranges SC [2006] VCAT 244.

[5] I agree with the council that the fact that the building has already been converted to a dwelling without a permit does not provide the applicant with a benefit in an assessment of the application.

[8] Pursuant to Clause 55 a development must meet all of the objectives of the Clause.

[9] Clause 55.01. The council did endorse a neighbourhood and site description plan when processing the application. However the plan was no more than an existing conditions plan and was prepared many years after the shed was constructed.

[10] The objective of Clause 55.03-9 is:

To ensure vehicle access to and from a development is safe, manageable and convenient.

To ensure the number and design of vehicle crossovers respects the neighbourhood

Standard B14 requires that access be at least 3 metres wide.