Standard A10 applies to any part of a building that is within the distances from the side boundary specified in standard A10 or a schedule. It establishes a setback profile within which any part of a building should not encroach, other than the part of the building which is on or within 200mm of a boundary and is dealt with separately by standard A11
Standard A10 is not rendered inapplicable where part of a building is on or within 200 of the boundary
The following aspects of the proposal do not comply with standard A10
That part of the home office which is between 0.2 metre and 2.0 metre from the northern boundary, and 5.0 metre from the front façade
The parts of the building that are taller than 3.6 metres and within 1.0 metre of the northern boundary.
The applicant's interpretation of how standard A10 is to be applied is not supported by the Council or the respondent.
The Council submitted:
The proposal includes two new walls constructed on the northern boundary. It does not include any new walls which are set back more than 200mm of a boundary. Standard A10 does not apply.
Standard A11 applies to a wall constructed on or within 200mm of a side or rear boundary. It logically also applies to 'buildings', and uses both words in its drafting, stating 'a building on a boundary includes a building set back up to 200mm from a boundary.
Standard A11 cannot reasonably only extend to those building parts within 200mm of a boundary, since it would then only encapsulate fences. It is not logical to consider the parts of the building inside the proposed wall, and set back more than 200mm of the boundary, as a separate and relevant construction of their own as they are entirely enclosed by a boundary wall. The contrary position suggests that any variation to standard A11 is also a variation to standard A10 and this is not the manner in which these standards operate across the State.
The respondent submitted:
The dwelling is a building as defined in the applicant's submission and the walls on the common boundary form part of the building. The building is therefore proposed on or within 200mm of the boundary.
Standard A10 does not apply to any part of the building that is proposed on the boundary. Standard A10 applies to the proposed ground floor and first floor walls where the courtyard is shown. In these locations, the building is set back from the boundary and complies with standard A10.
The proposed home office is part of the building proposed on the boundary and standard A10 does not apply in this location.
On a strict literal and technical reading, given the definition of 'building' includes part of a building, the applicant's interpretation of standard A10 is arguable. However, it is difficult to perceive how, if this interpretation is adopted, compliance with standard A10 could be achieved where a building extends to the boundary, as it proposed here. Where a wall is proposed on or within 200mm of the boundary and that wall forms part of a room, it would not be possible for that section of the room sited 201mm or more from the boundary to comply with standard A10 without being detached from the wall.
Pursuant to clause 54, the objective must be met, and the standard should be met.
I decline to answer the question of law raised by the applicant and do not propose to make a finding as to whether standard A10 is met as, in the circumstances of this application, it will not assist in the consideration of whether the proposal represents an acceptable planning outcome.
A failure to meet a standard does not mean a permit cannot be granted. At its highest, it requires the exercise of discretion.
If standard A10 is met, then it is deemed to meet the objective of clause 54.04-1. If standard A10 is not met, as argued by the applicant in respect of the two sections which extend to the boundary, then for the reasons outlined above I am satisfied that the objective is met. I exercise the discretion available and find the outcome to be acceptable. The extension will respect the existing neighbourhood character and the impact on the amenity of the adjoining property to the north has been limited to an acceptable extent.
[2]
The applicant submitted that the construction of the development may result in damage to the adjoining dwelling and property to the north, given it is proposed to construct to the boundary. The applicant's dwelling extends to the common boundary at the basement and ground floor levels.
The applicant relied on the evidence of Mr Leslie. In summary, that evidence is:
any excavation directly to the shared boundary is likely to expose drains on the applicant's land and is likely to cause damage to their effectiveness
excavating material directly behind shotcrete on the applicant's land is likely to cause the shotcrete face to crack or collapse, likely impacting on habitable rooms
there could be significant damage to the applicant's development
should the applicant's development be adversely impacted, the possible consequences and rectification works would be logistically challenging and expensive
to mitigate and reduce the risk, the proposed development should be set back a minimum of 500mm from the shared property boundary
the documentation provided for the proposed development does not provide adequate detail to properly assess how the works proposed are to be constructed on the boundary
a detailed construction methodology plan which specifies the minimum requirements to be achieved in the design proceeding to building permit stage in an acceptable manner should be required. The construction methodology plan should demonstrate the feasibility of constructing adjacent to the applicant's development without adversely impacting upon it.
The evidence stated:
I am aware that the Building Permit and Protection Works Notice process requires the development of the design documentation with more detail, and allows the Objector/Applicant review by his own expert consultants before the works proceed. This said, I am concerned, the documentation presented to date is insufficient to ensure the works will not adversely impact the applicant's development.
The applicant sought the inclusion of conditions, in the event that a permit is granted, requiring a minimum 500mm setback from the northern boundary and the preparation of a construction methodology plan prescribing measures to avoid damage to the applicant's dwelling during construction, including protection of the waterproofing and drainage measures on that land.
The evidence addressed matters that are not proper considerations in the assessment and determination of this application, specifically whether a planning permit should be granted.
As acknowledged by the evidence, matters raised by the applicant regarding construction methodology, structural and civil engineering, and referred to in the evidence, are addressed as part of the building approvals process.
I was not taken to any applicable policy, provision, application requirement or decision guideline in the Planning Scheme which requires consideration of the construction methodology matters raised by the applicant in determining whether the proposal will represent an acceptable planning outcome. There is a separate regulatory framework to deal with these matters.
The applicant referred to case law, specifically the matter of Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council.[5] That case concerned a permit condition regulating hours of construction in order to protect the amenity of the neighbourhood, not technical construction methodology matters that are appropriately addressed under the building approvals process. It is distinguishable from the facts and circumstances of this application.
While submissions referred to the applicant's amenity potentially being adversely affected by physical impacts of construction, including any necessary rectification works, I was not taken to any case law or any part of the Planning Scheme to support a submission that this is a relevant planning consideration.
[3]
For the reasons given above, the decision of the responsible authority is varied.[6] A permit is granted, subject to conditions.
[4]
The construction of an extension to a dwelling on a lot less than 300 square metres on land in the General Residential Zone, Schedule 9, in accordance with the endorsed plans.
[5]
Before the development starts, one (1) copy of plans drawn to scale and fully dimensioned, must be submitted to, and be approved by, the responsible authority. The plans must be generally in accordance with the Revised Plans prepared by Attic, dated 22 June 2023 but modified to show:
[6]
(a) the retention of the boundary fence between 45 and 45A Murphy Street
(b) a planter bed containing a climbing plant in front of the office extension, within the front setback of the site
(c) operable shading devices to the north facing windows and skylights
[7]
all to the satisfaction of the responsible authority.
[8]
The layout of the site and size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason, without the prior written consent of the responsible authority.
Before the development is occupied, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the responsible authority.
The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan.
This permit will expire if one of the following circumstances applies:
[9]
(a) The development is not started within two (2) years of the issue date of this permit.
(b) The development is not completed within four (4) years of the issue date of this permit.
[10]
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
[11]
[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.
[12]
[2] This was corrected to replace the word 'long' with the word 'high'.
[13]
[3] This was corrected to replace the word 'long' with the word 'high' '
[14]
[4] Pursuant to clause 66 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), no party disagreed to the Tribunal as constituted without a Member who is an Australian Lawyer deciding the question of law.