[2005] VCAT 1645

Mr W E Coxhell, Mr G H Mason, Mr B Reid, and Mr H Hirdes appeared in person. Mr Coxhell also appeared on behalf of Mr I Frazer and Ms J Frazer

1 I have inspected the subject land, including the interior of the existing building on it, and nearby land.

2 By fax dated 2 June 2005 A Cerbasi, President of the Beaumaris Conservation Society Inc., sought leave for the Society to be joined as a party to the proceeding. He was informed by letter from the Senior Registrar that the closing date for filing a Statement of Grounds was 3 May 2005 but that he could make application to be joined or be heard at the beginning of the hearing. Mr K Holmes, Vice President of the Society attended the hearing and made application for it to be joined as a party. Ms Moles for the responsible authority and the respondents at the hearing had no objection to it being joined, but Mr Loois objected. The Society had been a party to the Application for Review heard and determined by Member Baird in March 2001, discussed below. I decided to allow Mr Holmes to be heard on behalf of the Society, pursuant to s 98 of the VCAT Act, but declined to join it as a party.

3 The subject land is at 7 Tibbles Street, Beaumaris. It is on the northern side of Tibbles Street, to the east of its intersection with Reserve Road. It is rectangular in shape, with a frontage to Tibbles Street of 15.85 metres, a depth of 40.88 metres, and an area of 790 square metres. It falls from north to south by approximately a metre.

4 The land is in the Residential 1 Zone and is affected by a Design and Development Overlay (DD02), and Vegetation Protection Overlay (VPO3). Pursuant to the zoning a permit is required to subdivide land (Clause 32.01-2). Also pursuant to the zoning a permit is required to construct a dwelling if there is at least one dwelling on the lot (Clause 32.01-4), and in assessing the additional dwelling the provisions of Clause 55 must be considered. The Schedule to the Residential 1 Zone imposes the requirement for a planning permit to construct a dwelling on a lot less than 500 square metres. Pursuant to the Design and Development Overlay a permit is required to subdivide land. In this instance there is no requirement for a permit for buildings and works because the proposed second dwelling falls below the height limits which trigger that requirement. The Vegetation Protection Overlay does not trigger the requirement for a permit in this instance because no vegetation is proposed to be removed.

5 On 10 September 1999 a building permit (BS1298/99023) was issued by a private building surveyor for the relocation of the then existing weatherboard dwelling on the land from the front of the land to the rear of the land and for the construction of a garage and carport. The then existing dwelling on the land had been located diagonally on the lot in much the same manner as Mr Coxhell's dwelling to the east at 9 Tibbles Street. It had a minimum front setback of 8 metres. Pursuant to the building permit it was relocated to approximately 24 metres from the frontage and "squared up" to the side boundaries.

6 On 13 July 2000 a planning permit application (2000/5768) was lodged with the responsible authority for the development of a double storey dwelling on the front part of the land. The applicant was Mr W Wilson who, then as now, resided at 7 Tibbles Street, Beaumaris. The permit application form was signed by Ms K Wilson as the owner of the land. At that time the land was in the Residential 1 Zone, but was not affected by the Design and Development Overlay or the Vegetation Protection Overlay. The Design and Development Overlay Schedule 2 was included in the Bayside Planning Scheme in March 2004. The Vegetation Protection Overlay was included in the Bayside Planning Scheme in July 2003.

7 The responsible authority refused the planning permit application. The permit applicant then sought review of that decision by VCAT. By Orders dated 19 March 2001 Member Baird affirmed the responsible authority's decision to refuse the permit application (Wilson v Bayside City Council and Ors [2001] VCAT 612). The proposal before Member Baird was for a new dwelling set back between 6.0 and 7.2 metres from the frontage at ground level and between 7 and 8 metres at upper floor level. It was proposed to be built to the eastern boundary at ground floor level and be set back 1.8 metres from that boundary at upper floor level. It was proposed to be set back 3.4 metres from the western boundary. Two car parking spaces in a double garage were proposed, accessed via a crossover adjacent to the eastern boundary. The rear dwelling was to be accessed via a crossover and driveway adjacent to the western boundary. The driveways were to account for approximately 50% of the frontage to the land.

8 In summary, Member Baird found that the proposal was not acceptable because:

the front setback of the proposed new dwelling was insufficient, having regard to the setback of other two storey dwellings in the street and to the setbacks of the adjacent two storey dwellings;

the forward position of the proposed new dwelling, together with the limited articulation of its front façade, would result in it being confronting and dominating and its visual bulk would be exacerbated by the lack of articulation on the western façade, which would be clearly visible down the western driveway;

the percentage of the frontage which would be occupied by driveways and parking areas was excessive; and

the amenity impacts on Mr Coxhell's property at 9 Tibbles Street by virtue of loss of daylighting would be unreasonable.

9 Member Baird also commented on the permit application process utilised by the applicant, observing that the relocation of the existing dwelling from the front of the land to the rear of the land circumvented the normal process where the off-site impacts of both dwellings are assessed. She stated that while the approach taken was not unlawful, it was one which could not be condoned.

10 On 2 July 2001 the Municipal Building Surveyor received an application for a building permit for alterations to the existing dwelling. Building Permit BS-1338/200020034-0 was issued on 12 July 2001. Buildings and works under this permit were inspected by officers of the Council on a number of occasions and concerns were raised that the applicant may have intended to use the extended dwelling as two separate dwellings. The applicant responded to these concerns by confirming that it was not intended to use the development as two separate dwellings. On 25 November 2004 Council's Investigation Department inspected the development and confirmed the existence of two kitchens in the development, one in the original dwelling, and one in the extension which forms a front wing on the development on the land. Ms Moles informed me that a further inspection on 6 December 2004 confirmed that the kitchen in the original dwelling had been removed. But I observed on my inspection that only the kitchen sink and the stove had been removed. The kitchen benches, including the bench for the sink, cupboards and storage areas remain. The area designed and fitted out as a kitchen could be restored to a functioning kitchen by the reinstatement of the sink in the sink bench and the replacement of the stove.

11 In January 2005 Mr Loois lodged on behalf of the owner(s) a planning permit application to convert the building on the land to two separate dwellings and to subdivide the land into two lots. The proposed plan of subdivision was not prepared until 1 July 2005 and has not been considered by the responsible authority. It shows a lot of approximately 281 square metres to contain the front dwelling, a lot of approximately 425 square metres to contain the rear dwelling and the driveway to the rear lot down the side of the front lot as common property. The proposed conversion is to remove what was described as a single storey sunroom linking the front and rear parts of the development on the land and reinstate the function of the area in the original dwelling at the rear which was designed and previously used as a kitchen by reinstalling the sink and stove. The result would be a two storey dwelling at the rear of the land and a two storey dwelling at the front of the land, both of which have already been constructed.

12 Notification of the permit application occurred by the responsible authority sending notices to the owners and occupiers of land adjoining and opposite the subject land and by requiring the owner to erect a notice on the land. The responsible authority became aware that the notice on the land had not been displayed in a prominent position in that it was not located at the front of the property and was not facing the street. It was then moved to the front of the land and displayed for a further 14 days. A statutory declaration was received for both periods of advertising via this notice on the land.

13 On 16 May 2005 the Council resolved to request the Minister for Planning to call in the Application for Review and implement a site specific amendment to prevent use or development of the land for accommodation comprising more than one dwelling. On 25 May the Council wrote to the Minister accordingly and included two other properties in the request (66 Cole Street and 9 Stayner Street), where there are currently comparable applications on foot. By letter dated 20 June 2005 the Minister informed the Council that he declined to exercise his powers and stated that he believed the appropriate mechanism for assessing the merits of the proposal is the VCAT process.

14 The rear dwelling, that is the original dwelling which was relocated from the front of the land, would have thee bedrooms and a study. The front dwelling, which is occupied and used as a dwelling by Mr and Ms Wilson, has 4 bedrooms, including a master bedroom at upper floor level. The front dwelling has a setback from the frontage of the land of 6 metres, is built to the eastern boundary at ground floor level and is set back at upper floor level from the boundary by a distance which scales at 1.8 metres (no dimension for that setback is provided on the plans). It is set back 3.8 metres from the western boundary. There is no stepping back of the upper floor on the street elevation or on the western elevation. It has a double garage included in the street elevation and located on the western side of the dwelling. One crossover serves both parts of the development. There is an extensive unbroken expanse of paving in the front setback extending from the front entrance across the front of the garage and including the western driveway. This paving accounts for all except 3.8 metres of the total frontage of 15.85 metres.

15 Ms Moles informed me that it was the position of the responsible authority that had it made a decision on the permit application within the prescribed time it would have refused it on the following grounds:

The proposal will detract from the existing neighbourhood character of the area.

The proposal will result in unreasonable visual bulk to adjoining residential properties.

The proposed car parking arrangement will dominate the street.

The proposal makes inappropriate provision for landscaping opportunities in a Vegetation Protection Overlay.

The proposal is contrary to the objectives and standards of the Bayside Planning Scheme.

The proposal is contrary to orderly and proper planning.

The proposal fails to adequately respond to issues identified by VCAT in a previous Appeal Decision Number 2000/89826.

The front and side setbacks do not comply with the provisions of the Bayside Planning Scheme.

16 If the proposed front dwelling had come before me on review of a decision to refuse a permit I would have had no hesitation in affirming the decision of the responsible authority. Compared to the proposal rejected by Member Baird in 2001 it has a smaller front setback, the setback of the upper floor from the eastern boundary is less, the upper floor on the street elevation is not stepped back at all from the ground floor, and the proportion of frontage occupied by paving is much greater. There is essentially no opportunity to filter views of it by landscaping because of the excessive area of paving and the inadequate setback from the frontage. Mr Coxhell's house is located diagonally on its lot. The main windows to his sitting and dining areas face west of southwest. Proposed Dwelling 1 presents unreasonably intrusively and has an unreasonable amenity impact on Mr Coxhell's property.

17 The character of this part of Tibbles Street has not altered to any significant degree since 2001. But the planning controls on the land have changed since then. The Design and Development Overlay and the Vegetation Protection Overlay now apply to it. The ResCode provisions at Clauses 54, 55 and 56 of the Bayside Planning Scheme have replaced the Good Design Guide and VicCode 1, and the Schedule to the Residential 1 Zone now sets out variations to some of the ResCode standards at Clauses 54 and 55 of the Bayside Planning Scheme. The Schedule provides that the minimum setback pursuant to Standard A3 in Clause 54 and Standard B6 in Clause 55, where there is development on abutting lots and the site is not on a corner, is the average of the setbacks on abutting lots, or 9 metres, whichever is the lesser. In this case the minimum front setback specified in the Schedule is at least 7.5 metres and may be 8 metres, depending on how the front setback of Mr Coxhell's dwelling is calculated. The actual setback of the development proposed to be the front dwelling is 6 metres. While setback specified in the Schedule is a standard, not a mandatory requirement, in this instance, given the setbacks of the abutting dwellings, any two storey development would need to comply with it to meet the objectives of Standards A3 and B6.

18 Mr Loois' submission was that as the building is in existence it forms part of the neighbourhood character, the proposal will not have any additional impacts on that character, and it will not have any additional impacts on Mr Coxhell's amenity. In fact, he submitted, the removal of what was called the sunroom would improve the outlook from Mr Coxhell's windows. In my opinion the removal of the "sunroom" will have a very minor positive impact on Mr Coxhell's amenity.

19 The central issue in this case is whether in assessing the proposal I may validly consider the neighbourhhod character, streetscape and amenity impacts of the second dwelling to be created on the lot, given that dwelling has in effect already been constructed. In the event that in determining whether I may validly consider these impacts I may be determining a question of law, I sought the consents of the parties pursuant to Clause 66 of Schedule 1 to the VCAT Act. Ms Moles, Mr Loois, Mr Coxhell on his own behalf and on behalf of Ian and Jan Frazer, Mr Reid, and Mr Hirdes gave consent. Mr R Wilson of 15 Tibbles Street had lodged a Statement of Grounds, but did not attend the hearing. I struck him out as a party, pursuant to s 78(2) of the VCAT Act.

20 Both Ms Moles and Mr Loois referred me to Fisher v Glen Eira CC [2001] VCAT 239 where the Tribunal found as a matter of law that where an application was to construct an additional building on a lot the existing building at the front of the lot was not part of the development which was the subject of the application and therefore the responsible authority, and the Tribunal on review, were not entitled to consider the impact of that building on the elements of neighbourhood character, streetscape character, and visual bulk, except insofar as the existing building was impacted upon by the development of the new dwelling and that impact was manifested by changes in the established character of the neighbourhood and a perception of building bulk.

21 Ms Moles argued that the Fisher decision should not be followed in this case for three reasons. In Fisher a permit had been granted for the development of two dwellings on a lot subject to conditions. Having been granted a permit to develop two dwellings on a lot, the applicant had become frustrated over discussions with the responsible authority about the workability of one of the conditions, and had constructed, with a building permit, a double storey dwelling at the front of the land. The applicant then sought a planning permit for the construction of an additional single storey dwelling on the rear of the land. The responsible authority refused and the applicant sought review of that refusal. Ms Moles submitted that, firstly, while the Tribunal confined itself to assessing the proposed new dwelling, it nevertheless found that the effect of the new dwelling on the existing dwelling could be considered. In any event, before construction some scrutiny occurred of the proposed new dwelling, and of its impact on the existing dwelling. In this instance, if I cannot not validly consider neighbourhood character, streetscape and amenity impacts of at least the existing front wing proposed to become the additional dwelling on the land, no such scrutiny is possible. Secondly, Ms Moles submitted, in Fisher the Tribunal apparently accepted that the applicant became frustrated in his dealings with the responsible authority about a condition in a permit he had already been granted, while in this instance the applicant had been refused a permit by the Tribunal. Thirdly, Ms Moles submitted, in Fisher the Tribunal had not been involved in the earlier two dwelling permit granted by the responsible authority, but in this case the applicant was refused a permit by the Tribunal and then in cavalier fashion constructed a development which is much more substantial and closer to boundaries than the development refused by Member Baird.

22 Ms Moles submitted that I should assess the whole development, or at least the front wing of the development which is proposed to become a separate dwelling. Failing that, she submitted, I should affirm the decision of the responsible authority because the process followed by the applicant has been one designed to deliberately flout the planning system and one which seeks to set aside orderly and proper planning provided for in s 4 of the Planning and Environment Act as the objectives of planning in Victoria, to which the Tribunal must have regard pursuant to s 84B of the Act.

23 Mr Loois' submission was that I could only validly consider the works proposed to convert the front "wing" of the building on the land to a separate dwelling, and that consideration of the neighbourhood character, streetscape and amenity impacts of the front wing as a whole would be invalid. In addition to Fisher, he referred me to several other cases, but I don't think they necessarily support his case. In Obax Pty Ltd v Glen Eira CC and Ors [2001] VCAT 825 the Tribunal set aside the decision of the responsible authority and granted a permit for the construction of an additional dwelling in front of an existing dwelling on a lot. The Tribunal found that the proposed but unconstructed new unit would be acceptable in terms of its amenity impacts and impacts on the streetscape. But in that decision the Tribunal observed that its discretion was limited to considering the impacts of the proposed new dwelling. In Bronson v City of Bayside [1999] VCAT 1939 the Tribunal set aside the decision of the responsible authority and granted a permit for the conversion of an existing large dwelling into two "side by side" dwellings. The building to be converted had been in existence for 15 years and the Tribunal commented at para 23 that there was no suggestion that the applicant had intentionally or otherwise tried to undermine planning controls or policy. Mr Loois suggested that in that case the Tribunal had not considered the impacts of the existing building on neighbourhood character or the streetscape. But I don't think that is correct. The Tribunal considered that changes to the street elevation of the existing building would be cosmetic and would not alter the bulk of the building. It found that the proposal would not be at odds with the neighbourhood and that the conversion would not substantially alter the character of the street. But at para 23 the Tribunal makes it clear that it assessed the proposal in terms of the objectives, design elements and criteria of the Good Design Guide, which was then in operation, and was satisfied that the proposal met them. The Good Design Guide included objectives and criteria for Element 3 - Neighbourhood Character. The Tribunal did not say that it excluded from its consideration an assessment of the existing building on neighbourhood character on the basis that it had already been constructed. In Stucley v Bayside CC [2000] VCAT 1740 the Tribunal reviewed a failure of the responsible authority to grant a permit within the prescribed time and granted a permit to construct an additional dwelling in front of an existing dwelling on a lot. The Tribunal held that its discretion was confined to the impacts of the proposed new dwelling, and having considered the streetscape and amenity impacts of that dwelling, decided to grant a permit.

24 Ms Moles referred me to Jurkic v Manningham City Council [2005] VCAT 1162 (known as Jurkic 2). In Manningham City Council v Jurkic [2005] VCAT 324 (known as Jurkic 1) Manningham City Council successfully brought enforcement proceedings against the Jurkics for constructing without a planning permit two double storey attached dwellings on land at 11 Toronto Avenue, Doncaster. Following the failure of the responsible authority to grant a permit within the prescribed time, the Jurkics had sought review of that failure and in May 2003 the Tribunal granted a permit to develop two attached dwellings on the land, the conditions of which would have substantially reduced the scale of what the Jurkics intended to build. Pursuant to a building permit issued before the review application was heard, the Jurkics then constructed a two storey dwelling, the plans of which showed two zones, separated by a solid wall down the middle, with a door between the wall at each level. Building commenced in late 2003 and was completed to lockup stage.

25 In July 2004 the Minister for Planning approved a site-specific amendment to the Manningham Planning Scheme at the request of Manningham City Council. The amendment introduced a Design and Development Overlay over the land which provided that the land could not be subdivided unless the subdivision was in accord with the permit granted by the Tribunal. Notwithstanding the approval of this amendment, the Council applied to the Tribunal for an enforcement order. The application was based on the proposition that under the guise of erecting a single dwelling the Jurkics were in fact erecting two dwellings and that these two dwellings were significantly different from the dwellings which had been approved by the Tribunal. The Council asked that the Tribunal order the two dwellings to be removed, or brought into compliance with the permit granted by the Tribunal, or brought into compliance with the Manningham Planning Scheme (that is, altered to one dwelling). On 25 February 2005 the Tribunal made the enforcement order requested by Council.

26 Following the making of this order, the Jurkics made three applications to the Tribunal. One was made pursuant to s 121 of the Planning and Environment Act to extend the time within which to comply with the order. One was made pursuant to s 87 of the Planning and Environment Act to amend the permit to allow the two dwellings "as built" but with minor modifications. The other was made pursuant to s 149 of the Planning and Environment Act to seek approval by the Tribunal of plans showing how the development could be made into a single dwelling. The Jurkics indicated that they preferred to succeed on the application made pursuant to s 87.

27 In Jurkic v Manningham City Council [2005] VCAT 12162 (known as Jurkic 2) Justice Morris, in refusing the s 87 application, made the following comments at para 23:

I note that a single dwelling may be erected on the subject land without a planning permit. Such a dwelling would be subject to certain requirements imposed pursuant to the building regulations, these requirements would not include a requirement in relation to solar access similar to standard B10. Hence it is possible that a single dwelling erected on the subject land may significantly reduce solar access to the Smith dwelling, in much the same way as the building mass has this effect upon the living room of the Smith dwelling. This leads me to pose the question: 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 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 a particular detached dwelling may be erected does not mean that the dwelling will achieve acceptable amenity outcomes. Hence the fact that solar access to the Smith dwelling may, or is even likely to, be impaired by the erection of a complying single dwelling does not provide justification for approving two dwellings which would have the same effect.

28 Justice Morris was of the opinion that the building would not have an unreasonable impact on the streetscape. He stated as follows:

Although it is true that the building has greater building bulk than most of the buildings in the neighbourhood this is, to some extent, inevitable for a dual occupancy, which is a legitimate building form. Further, the building is set back more than 8 metres from the street, which is acceptable. At present the prominence of the building is exaggerated by the fact that the exterior is finished with bright blue insulating paper; but when rendered and finished, the appearance to the street is likely to be acceptable.

29 As I have set out in paras 16 and 17, if the front wing of the development on the land, proposed to become an additional dwelling, had come before me as a proposal rather than as already constructed, I would have refused it because of its impacts on the amenity of Mr Coxhell's property and its impact on neighbourhood character and the streetscape. It is clear from Justice Morris' comments Jurkic 2 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 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. I have therefore decided that I may validly consider in assessing the proposal the impact of the proposed front dwelling on the abutting property and on neighbourhood character and the streetscape. Having done so I have affirmed the decision of the responsible authority to refuse a permit for the conversion of the existing building on the land into two dwellings and for the subdivision of the land into two lots. It is therefore not necessary for me make a finding on the submission of Ms Moles that the process adopted by the applicant seeks to set aside orderly and proper planning as referred to in s 4 of the Planning and Environment Act.

30 I have assessed the proposal on its merits assuming that the development has not been constructed unlawfully, hence it has not been necessary to consider the principle set out in Van Egmond v City of Knox (1985) 3 PABR 249, endorsed by the Supreme Court in Knox City Council v Tulcany Pty Ltd [2004] VSC 375, and applied in Jurkic 2. But it may be that, notwithstanding the issuing of a building permit by the Municipal Building Surveyor for extension of the existing dwelling which had been relocated to the rear part of the lot, the front "wing" of the development on the land was unlawfully constructed. It is quite clear that the intention of the owner of the land was always to construct two dwellings. The reality as well as the intent may be that two dwellings were in fact constructed. The "sunroom" connecting the front and rear wings could just as accurately be described as an enclosed walkway between two doorways, approximately 2.2 metres wide and 5.4 metres long. It has a chipboard floor, compared with the polished hardwood floors in those parts of the building which are proposed to become separate dwellings which it links. It is constructed of rendered blueboard and has a flat roof. Inserted into the roof are what appear to be second hand fibreglass panels. The Council's Investigation Unit was of the opinion that two dwellings may have been constructed because the development contained two kitchens, and at its request the sink and stove were removed from the rear wing. The food preparation areas remain in the rear wing - as noted above, the benches, cupboards, and storage areas, including the bench for the kitchen sink, remain. So do the plumbing, piping and wiring installed for an area unambiguously designed and fitted out as a kitchen.

31 Whether two dwellings were unlawfully constructed is a question which was not before me. However, if they were unlawfully constructed the owner cannot have the benefit of that construction and validly argue that the development, because it exists, cannot be assessed in terms of its impact on neighbourhood character and the streetscape, and on the amenity of any of the abutting properties. I do not rely on the proposition that in fact two dwellings were unlawfully constructed. That is a proposition which could only be tested if the development were the subject of a different proceeding.