1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Permit No. PL09/0874 must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 26 March, 2010 with the following modification:
   • (a) A new condition 1(a) must included as follows:

The additions to the existing dwelling compliant with Standard A13 of Clause 54.04-4 (North Facing Windows) of the Yarra Planning Scheme.

(b) All subsequent condition 1 conditions must be renumbered.

1. The Responsible Authority is directed to issue a modified permit in accordance with this order.

Partial demolition, alterations and additions to an existing dwelling

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Clause 32.01-3 construct or extend one dwelling on a lot less than 500 m2.

Clause 41.01 demolish or remove a building and construct a building or construct or carry out works.

The site is located on the east side of Gold Street. It has a frontage of 7.6 m, a depth of 25 m and an area of 192 m2.

A single storey Edwardian era dwelling occupies the site.

A double storey dwelling constructed in the 1970's/1980's occupies the site to the south of the review site. Three north facing habitable room windows are located on the ground floor of this dwelling. Private open space for this dwelling is located predominately to the rear of the dwelling.

I inspected the site accompanied by the parties on January, 20 2011.

1. Hilles Home Extensions applied to the Council for a permit to demolish the rear section of the dwelling at 70 Gold Street, Collingwood.
2. The Council gave notice of the application and received one objection to the application.
3. The Council resolved to issue a Notice of Decision to Grant a Permit, subject to a number of conditions. The objector to the application has applied to the Tribunal for a review of the Council's decision. The grounds of the review relate to the amenity impacts of the proposal, in particular, day lighting, overshadowing and visual bulk.
4. Having considered the submissions and having inspected the site, I have concluded that a permit should issue for this proposal. I have however imposed an additional permit condition requiring the extension to comply with Standard A13 of Clause 54 of the planning scheme. This Standard establishes setbacks from north facing habitable room windows.
5. My reasons are set out below

1. The issues in dispute in this matter are quite confined. They are about the impact of the proposed dwelling extension on the amenity of the dwelling abutting the review site to the south.
2. The objector identified the following specific amenity impacts associated with the proposed extension:[1]

1. Overshadowing of secluded private open space. 2. Visual bulk, primarily associated with the size and location of a first floor level balcony

1. Non compliance with standard A13 of Clause 54 which establish setback requirements for buildings which abut north facing habitable room windows.

1. Non compliance with standard A13 will contribute to reduced energy efficiency of the neighbouring dwelling.
2. With respect to the first two items I am satisfied that the impacts of the proposed extension are acceptable[2]. While Standard A14 of Clause 54 relating to overshadowing of private open space is not met because the existing sunlight to the secluded private open space of the neighbouring dwelling is less than the requirements of this standard, the additional overshadowing associated with the proposal is not significant and does not affect the useability of the open space. The objective of Standard A14 is met.
3. The visual bulk impacts are also acceptable. The proposed extension is sited so that it generally aligns with the rear of the neighbouring dwellings. It does not extend into the rear private open space of those dwellings.
4. The objective of Clause 54.04-4 is:

To allow adequate solar access to existing north-facing habitable room windows

1. The associated Standard A13 requires buildings to be setback from north facing habitable room windows in accordance with the following:

If a north-facing habitable room window of an existing dwelling is within 3 metres of a boundary on an abutting lot, a building should be setback from the boundary 1 metre, plus 0.6 metre for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres, for a distance of 3 metres from the edge of each side of the window. A north-facing window is a window with an axis perpendicular to its surface oriented north 20 degrees west to north 30 degrees east.

1. It is important to note that Standard A13 differs from the objective and Standard (A12) of Clause 54.04-3 which relates to daylight to existing (but not north facing) habitable windows. The most significant difference is that A12 requires a light court to be provided opposite the existing habitable room window with the calculation of the area of the light court allowed to include land on the abutting lot. No such allowance is available in Standard A13 and as a consequence the setback from the existing north facing habitable window is required to be provided on the review site.
2. In the present case, a setback of 1.2 m from the review site's southern boundary is proposed. Compliance with Standard A13 requires a setback of 2.1 m.
3. The Council is content with the proposed setback. Ms Thomas submitted that it is appropriate to include the setback on the adjoining lot between the window and the side boundary. On this basis the proposed setback would exceed the requirement of A12.
4. Mr Thompson provided detailed calculations and cross sections in order to demonstrate that the impact of the non compliance with A13 is not unacceptable because daylight will continue to be available to the north facing windows[3].
5. In order to vary the standard I must be satisfied that the objective of Clause 54.04-4 is met and I must consider the applicable decision guidelines which are:
   • The design response.
   • Existing sunlight to the north-facing habitable room window of the existing dwelling.
   • The impact on the amenity of existing dwellings.
6. The planning scheme via Standards A12 and A13 draw a distinction between the protection of daylight to existing habitable room windows and existing north facing habitable room windows for the obvious reason that daylight to north facing windows are considered to be important to the amenity of the dwelling and also to the achievement of energy efficiency. Not only does the planning scheme seek to protect daylight to existing north facing habitable room windows, it also encourages living areas and private open space in new developments to be located on the north side of the dwelling. The maximisation of solar access to north-facing windows is also encouraged[4].
7. In this context I am reluctant to permit a variation of Standard A13 in circumstances where the existing north facing habitable room windows do contribute to the amenity and energy efficiency of the neighbouring dwelling. While I accept Mr Thompson's submission that daylight will continue to be received by the existing north facing windows, compliance with the Standard will contribute to a significantly reduced impact from that associated with the proposal in its current form.
8. Having regard to the above, the objective of Clause 54.04-4 is not met by the proposal, and compliance with Standard A13 should be required to be achieved.
9. Compliance with Standard A13 will necessitate a level of redesign of the proposed extension. I am however prepared to impose a condition on the permit requiring compliance, rather than refusing the application and sending the applicant back to first base. It will be a matter for the Council and the applicant to determine how the extension can be reconfigured to achieve compliance with the Standard.
10. I note that a permit is also required under the heritage overlay for the demolition of the rear section of the dwelling, and for the extensions. While the parties did not raise any issues related to heritage matters, I note that the Council's heritage adviser did recommend changes to the proposed roof form of the rear extension. This recommendation was not adopted by the Council officer who assessed the application. I agree with the assessment that changes to the roof form are not necessary to achieve an acceptable response to the objectives of the heritage overlay.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be varied and a permit be granted.
2. The permit will include the conditions contained in the notice of decision to grant a Permit issued by the responsible authority with modifications which have regard to the submissions of the parties and the matters which arise from these reasons.

[1] The provision of car parking was also identified by the objector but Standard A9 of Clause 54 does not apply to a dwelling extension. Existing parking provision on the site is not affected by the proposal. Excessive site coverage was also referred to. The proposed site coverage exceeds the 60 % cited in Standard of A5 of Clause 54, but in this neighbourhood context site coverage of 73 % is not excessive. The objective is met.

[2] My assessment of the amenity impacts has taken into account the inaccuracies in the application plans, identified by the objector.

[3] Mr Thompson tabled amended calculations based on a reduced side setback which the objectors submitted reflected the accurate setback.