1 The subdivision as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

2 This permit will expire if one of the following circumstances applies:

•

The subdivision is not certified under Section 6 of the Subdivision Act 1988 within two years of this permit.

•

The subdivision is not registered by the Registrar of Titles within five years of the date of certification.

The Responsible Authority may extend the period referred to for certification if a request is made in writing before the permit expires or within three months afterwards.

3 All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

4 The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

5 The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the endorsed plan in accordance with that authority's requirements and relevant legislation at the time.

6 Prior to the certification of a plan of subdivision, the applicant must provide evidence from a Licensed Land Surveyor confirming that the proposed boundary bearing 00 01 and 23.21 long is not less than one metre from the eastern wall of the house on Lot 1 to the satisfaction of the Responsible Authority.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an application under Section 77 of the Planning and Environment Act 1987 to review the decision of the City of Stonington [the Council] to refuse permission for the land at 574 High Street, Prahran to be subdivided into two lots.

2 The application was refused on the following grounds:

1. The subdivision fails to provide adequate private open space for each lot.

The private open space provided has inadequate solar access.

The subdivision fails to provide for adequate off street parking for lot 1.

Approval would not be orderly nor proper planning.

3 The subject site is located on the southern side of High Street, approximately 15.4m west of its intersection with Highbury Grove. It extends to a 3.2m-wide ROW to the south.

4 The site is regular in shape with a frontage of 15.24m[1] and a depth of 36.58m, yielding a site area of 587.06m2. There is a fall of approximately 500mm from north to south.

5 The site is developed with an original Victorian dwelling facing High Street and a two storey dwelling at the rear.

6 The original dwelling is set back 7.9m from High Street, or 6.1m to the balcony, and sits behind a 1.8m high solid front fence. The dwelling is set back 1m from the western boundary and between 2.65 and 2.84m from the eastern boundary.

7 The dwelling at the rear abuts the ROW. It has an open plan dining room- kitchen, laundry and storage room at the ground level and a lounge, bedroom and bathroom at the upper level. There is a north-facing deck at ground level and a narrow deck on the south and west sides of the upper floor. Two tandem car spaces, accessed from the ROW via a roller door, are provided in an undercroft below the bedroom. The rear dwelling has pedestrian access to High Street via a path within the eastern boundary.

8 In order to appreciate the submissions at the hearing it is necessary to set out in some detail the background to the development at the rear of the site. It is a messy story, clarified Ms Wilson, who was engaged by the applicant at an early stage but clouded by the fact that Mr Tyson McAdie, the planning officer involved with the development application, is no longer with the Council. My understanding of key points is as follows:

•

An application to develop a second dwelling was lodged on 18 March 2003 and amended plans, showing the correct north-south axis, were lodged on 22 May 2003. The plans show four car spaces, in tandem arrangements, and the area between the dwellings annotated as "Open Space".

•

The Council advised the applicant that the proposal would be unlikely to receive officer support. Mr McAdie met the applicant to discuss the identified problems, including car parking. Mr McAdie said he wanted the north-west car space removed.

•

On 26 June 2003 Ms Wilson provided the Council with amended plans (showing the deletion of the north-west car space) and a written statement. The area between the dwellings is annotated as "Communal Open Space". Ms Wilson asked for the plans to be substituted for the lodged plans.

•

Those plans were apparently not the advertised plans. Rather, the Council's file indicates that both the plans lodged on 18 March and 22 May 2003 are stamped "Advertised Plans".

•

The Delegate Report on the application, dated 14 January 2004, describes the proposal as having "three tandem car spaces". Of relevance to the matter now before me, the report includes the following:

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Standard B16. Complies. It is proposed to house three cars at ground level. Clause 55.03-11 stipulates that one car space should be prov9ided for each two bedroom dwelling, in this instance, 3 spaces are proposed at ground level.

•

Standard B28. Complies. The proposed dwelling at the rear of the site is to be ancillary to the existing dwelling on the site, as a result, the open space at the rear will become communal. An area comprising 82.5sqm is available at the rear of the site which will provide adequate private open space for the reasonable recreation and service needs of residents.

•

Standard B29. Complies. Proposed area of private open space is to be located on the north side of the dwelling which will allow adequate solar access to areas of private open space.

•

Standard B33. Complies. The proposed areas set aside for car parking and private open space are practical, attractive and easily maintained.

•

Car parking. It is proposed to house three vehicles at the rear of the property. The existing dwelling on the site has been existing for many years and does not generate an additional parking requirement. Pursuant to Clause 55.03-11 of the SPS, one parking space must be provided for a one bedroom dwelling. It is considered that the third space at the rear could also be utilised as private open space from time to time.

•

The Council's Notice of Decision to Grant a Permit refers to plans received on 22 May 2006 and have a condition requiring amended plans showing "Deletion of the north-western car space at the rear of the dwelling".

•

Ms Wilson submitted that as her client thought that the advertised plans were those received by the Council on 26 June 2003, he was not sure what the condition meant. Mr McAdie told the applicant that he wanted the car space deleted and the space used to address condition 1(b) that required the plans to be amended to show "Provision of storage area at ground floor level (at least 6 cubic metres)".

•

A planning permit was issued on 12 February 2004.

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The applicant's architect prepared plans for endorsement with the third car space removed. They were lodged on 21 April 2004.

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Ms Wilson cited an email on the Council's file as evidence that Mr McAdie wanted the third car space removed. The email states:

I have had a closer look at the above file. I am of the opinion that the car space configuration complies with the conditions as it was intended to free up some more space at ground level and the internal alterations they have made will allow for more internal living space.

•

The plans endorsed on 10 May 2004 show two car spaces in a tandem arrangement and an area annotated as "Communal Open Space" between the dwellings.

•

The second dwelling was developed, with a certificate of occupation issued on the 9 January 2006. Mr Malapanis, the son of the owner of the land, resides there with his wife and young daughter.

9 It is proposed to subdivide the site into two lots in accordance with plans known as Plan of Subdivision 545223P version 1.

10 Lot 1 would contain the original dwelling and end 2.1m behind the dwelling. Lot 2 would contain the newer dwelling, an area to its north with a depth of 2.6m, the car spaces and a 1.75m-wide passageway to High Street within the eastern boundary of the subject site.

11 Under the Stonnington Planning Scheme the subject site is zoned Residential 1 and included in a Heritage Overlay (HO178).

12 Pursuant to Clause 43.01-1 a permit is required to subdivide land covered by a heritage overlay.

13 Pursuant to Clause 32.01-2 a permit is required to subdivide land zoned Residential 1 and a subdivision must meet the provisions of Clause 56 of the planning scheme. However, the provisions of Clause 56 do not apply to an application to subdivide land into lots each containing an existing dwelling or car parking space. The application is also exempt from notice and appeal provisions. Before deciding on an application, in addition to the decision guidelines in Clause 65, consideration must be given, as appropriate, to:

•

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

•

The objectives and standards of Clause 56.

14 Clause 65.02 requires the responsible authority to consider, as appropriate, a number of matters relating to subdivision. Relevant matters include:

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The existing use and possible future development of the land and nearby land.

•

The area and dimension of each lot in the subdivision.

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The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.

•

The provision of off-street parking.

15 Ms Wilson cited the decision of the tribunal in Johnson v Yarra Ranges Shire Council[2] to support her submission that the first two dot points are not relevant in this instance. Johnson concerned a two-lot subdivision with each lot containing an existing dwelling, one of which was a converted garage. In relation to the Clause 65.02 considerations listed above Member Read stated:

The first two of the above dot-points are dealt with by the fact that the existence of a dwelling on Lot 2 demonstrates that it is feasible to redevelop that lot with another dwelling, albeit that all options may be for a small dwelling.

16 Having since read the decision of Member Read I do not agree with Ms Wilson that the considerations in the case before me are limited to the movement of pedestrians and vehicles and the provision of off-street parking. The proposed subdivision in Johnson involved different consequences. For instance, Member Read commented:

...as far as I can see, the subdivision would not significantly affect the way that the land continues to be used, except for the proposal to

re-site a rear fence - to increase the area of available, secluded open space for the smaller dwelling and decrease it for the larger - and the construction of a new driveway and second driveway crossover. The realignment of the rear fences would allow the allocation of private open spaces and private secluded open space to exceed that required by Clause 54.05-2, Standard A17...

17 In contrast to that situation, the proposed subdivision and associated fencing would affect the way the land is used, particularly with respect to the areas of private open space.

18 At the hearing Mr Chivers and Ms Wilson tabled and spoke to written submissions. Those submissions, together with numerous photographs, plans, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

19 Before the hearing I carried out an inspection of the rear of the subject site and the general area.

20 As acknowledged by Mr Chivers, this application raises unusual issues. Ordinarily, subdivision matters are considered when development is proposed, even if subdivision approval is not concurrently sought. As noted by Mr Chivers, the Council rarely refuses a subsequent request for subdivision.

21 The fundamental position put on behalf of the Council was that when development of the second dwelling was proposed and approved there was no intention to subdivide the land. Mr Chivers argued that the second dwelling was considered acceptable on the basis of the interdependence of the two dwellings. The new dwelling was described in the officer's report as ancillary to the existing dwelling. In support of that proposition Mr Chivers cited the nomination of the private open space as communal, the car parking layout and the extensive use of glass in the northern walls of the living areas of the new dwelling overlooking the private open space. Mr Chivers submitted that subdivision would sever that interdependence, with the resulting lots failing to "stand up" in terms of the requirements of Clause 54.

22 It is not clear whether there was any discussion about the prospects of later subdivision when the second dwelling was proposed. The officer's report makes no mention of that matter and, as noted earlier, the officer is no longer with the Council. Ms Wilson did not refer to any documents that could shed light on that matter. She simply submitted that the owner allowed his son to obtain a planning permit and to construct a second dwelling on the subject site and it is his intention to gift to the son the land on which the second dwelling and access arrangements stand. To do that it is necessary for the site to be subdivided.

23 Ms Wilson also advised that despite the reference on the development application plans to "Communal Open Space" between the dwellings, members of the same family have not occupied the dwellings. The original dwelling was the family home of the applicant's father, however, he has not lived there for many years. Thus the Council's assumption of some form of communal living seems to be misplaced.

24 Whatever their basis, the current state of affairs is regrettable. It would certainly have been preferable for the prospect of subdivision to have been considered at the development stage. However, given that a second dwelling was approved by the Council, has been built and is occupied, I need to consider the merits of the proposed subdivision. That largely requires a consideration of practical issues.

25 Mr Chivers correctly highlighted that the requirements of Clause 54 are not applicable to an application to subdivide land. They apply to the development of a new dwelling on an existing lot. However, Mr Chivers submitted that where the sequence of approvals is reversed, by proposing the creation of a new lot under an existing dwelling, many of the objectives of Clause 54 provide a very useful tool to assess the appropriateness of such a subdivision. I endorse that approach.

26 As noted by Ms Wilson, there is currently no privacy between the two dwellings. The rear of the new dwelling has large glass sliding doors onto the deck from its kitchen/dining area. The rear of the original dwelling has frosted windows associated with a laundry and toilet. However, there are potential views to the rear from the windows of the bathroom and recessed kitchen and back door (when open).

27 The area shown as "Communal Open Space" does not, in reality, act as such. A 2.1m strip behind the existing dwelling is concreted and there is a 700mm gap, and a 450mm fall, between the concrete slab and the deck of the new dwelling.

28 Ms Wilson advised that if the subdivision goes ahead it is proposed to have a boundary fence and landscaping/inbuilt seating between the fence and the 2.6m-wide deck of the new dwelling.

29 I appreciate that the area of private open space for the new dwelling is deficient in terms of Standard A17 of Clause 54. As calculated by Mr Chivers that standard requires a minimum area of private open space of 40m2, whereas the deck has an area of some 30m2. Nevertheless, I consider that the area of the deck is satisfactory. It is readily accessible from the kitchen/dining area and would be supplementary to the narrow upper floor deck that wraps around the western and southern sides of the dwelling.

30 If the subdivision goes ahead the rear yard of the original dwelling would continue to be concreted to the line of the proposed subdivision. I agree with Ms Wilson that the Council has incorrectly assumed that the small concreted area would be the only private open space for the original dwelling. I accept her submission that given its size and the extent of overshadowing it should be viewed as a utility area. The primary private open space for the original dwelling is within the frontage. Although it is subject to traffic noise, the northern orientation of that area allows the receipt of sunlight. Furthermore, that area is not overlooked, has a generous area of around 94m2 (without counting the ground floor open balcony) and can be accessed from the internal living areas of the dwelling. I accept Ms Wilson's submission that it accords with the objectives and standards for private open space and solar access in Clause 54.

31 In essence, the subdivision would allow both dwellings to have ground level areas of private open space and would address the current overlooking issue.

32 My only reservation relates to the solar access available to the deck of the new dwelling. Shadow diagrams tendered by Mr Chivers indicate that at the Equinox the deck would be shaded throughout much of the day by either the original dwelling, a standard height fence erected along the line of subdivision or the existing side boundary fences. As highlighted by Mr Chivers, the extent of overshadowing would not comply with Standard A14 of Clause 54, even if the northernmost car space were included in the open space assessment. As the upper floor deck is also significantly overshadowed, its inclusion in the open space area does not lead to compliance with the standard. Mr Chivers also highlighted that if a 1.8m paling fence is assumed, the width of the deck is deficient by more than a metre with respect to the objective associated with Standard A18 which seeks to allow solar access into secluded private open spaces.

33 Despite those deficiencies I am prepared to accept that the subdivision would result in an adequate provision of private open space for the new one bedroom dwelling. The deck itself would receive limited direct sunlight. However, the large sliding doors to the dining/kitchen area would effectively make that space an extension of the deck. Sunlight would fall within the room. Overall there would be an acceptable level of amenity and useability.

34 As noted earlier, the development plans that were ultimately endorsed show two car parking spaces in tandem.

35 Mr Chivers submitted that while the two dwellings are in common ownership that arrangement is feasible. However, he argued that the proposed subdivision would allocate both spaces to the new single bedroom dwelling and leave the three bedroom house with no car spaces. Mr Chivers submitted that the owners of the original dwelling (proposed Lot 1) would be forced to park in the surrounding streets, resulting in a negative impact on the surrounding residential areas.

36 Mr Chivers argued that it is irrelevant whether the owners of the site have in the past used the car spaces at the rear. The option was always available to them. Furthermore, Mr Chivers submitted that the subdivision would mean that the owners of Lot 1 would forever be denied the prospect of

on-site parking, given that vehicular access to High Street has been denied by VicRoads. Mr Chivers submitted that a lot with no vehicular access would have severely restricted... development potential. He argued that Lot 1 would be effectively sterile, as the minimum parking requirements for any use could not be met.

37 I do not accept Mr Chivers' suggestion that the approved development gave the occupiers of the original dwelling the option of using the two car spaces. Although the original plans provided multiple car spaces, the approved plans provided only two tandem spaces. As I have already noted, despite the Council's presumption about some form of communal living and the second dwelling being ancillary, that is not the situation. The dwellings are not occupied by family members and the two car spaces are used by the occupiers of the new dwelling.

38 As highlighted by Ms Wilson, subdividing or not subdividing the land will not alter the existing parking situation. The original dwelling never had any on-site car parking and, without access from High Street, cannot have such parking.

39 Effectively, it is now too late for the Council to be arguing that the site has inadequate car parking provision. The applicant originally lodged plans showing four car spaces in tandems of two. It was because of the requirements of Council's planning officer that the spaces were reduced to three and then two by condition and endorsement.

40 I accept Ms Wilson's submission that as the second dwelling has been built, with only the two tandem car spaces, a decision needs to be made on proper and orderly planning grounds as to which dwelling the two tandem spaces should be allocated for the subdivision to proceed.

41 According to Ms Wilson, in the course of the current permit application the Council suggested that a solution might be the use of a stacker. However, as noted by Ms Wilson, that is not a feasible option, given the limited roof height of the undercroft and the existence of sewerage, drainage and power outlets.

42 I accept Ms Wilson's submission that allocating the two spaces to Lot 1 is not workable. It would deny pedestrian access to Lot 2 from High Street, unless there was an easement. Furthermore, without significant alterations and the construction of a door on to the laneway, allocation of the area to Lot 1 would deny any pedestrian access to the new dwelling.

43 The new dwelling was designed to have car parking underneath and adjacent to it. The two spaces are under the bedroom and bedroom windows of the new dwelling.

44 I do not accept the Council's argument that the positioning of the dwellings on the site and the ability to provide car parking for only one dwelling should prevent any subdivision of the site. Rather, I agree with Ms Wilson that there is a way that this site can be divided, and that is as proposed. It would effectively retain the status quo with respect to car parking.

45 Ms Wilson highlighted that there are discrepancies between the subdivision plan and the endorsed plans for the second dwelling. She argued, however, that the subdivision plan reflects the dimensions relative to the title.

46 I accept that discrepancies could be addressed by a condition requiring a survey plan to be submitted. In particular, it should confirm that the eastern dividing fence between the two lots is a minimum of 1m from the original dwelling. Together the parties drafted a permit condition covering that matter.

47 It is regrettable that the prospect of subdivision was apparently not canvassed when the Council considered development of the second dwelling. It may have resulted in a different arrangement. However, a dwelling was approved and constructed with only two car spaces. I am satisfied that a subdivision in the manner sought is an acceptable outcome. Accordingly I will allow the Application for Review and make the appropriate order.

[1] That is the width shown on the title. The width, as measured on the site at the rear, is 15.35m

[2] [2005] VCAT 1183.