respondent. The decision of the Responsible Authority is affirmed; in permit application PP07/00116 no permit is granted.
Key principles
Compliance with numerical standards in Clause 54 (ResCode), such as maximum height under Standard A4 and setback standards under Standard A10, does not automatically satisfy the...
A proposed addition that, in context, results in excessive visual bulk as presented to neighbouring properties may be an unacceptable design response and justify refusal, even...
Additional opportunities for overlooking created by a proposal (for example an unscreened bedroom window or deck) can be unreasonable and must be addressed by screening or design...
Non-planning matters (such as potential noise from future occupants) may be relevant but, by themselves, do not warrant refusal where amenity impacts are otherwise manageable...
Issues before the court
Whether the proposed second-floor extension respects the existing and preferred neighbourhood character.
Whether the proposed extension would result in unreasonable impacts on the amenity of nearby properties, by way of visual bulk, overlooking and noise.
Plain English Summary
VCAT affirmed Boroondara Council's refusal of a permit for a second-floor addition and deck to a first-floor apartment. Although some numerical ResCode standards (height and setbacks) were complied with or close to compliance, the Tribunal found the addition would create excessive visual bulk when viewed from neighbouring rear yards and would create additional, unreasonable overlooking. Noise concerns were acknowledged but not decisive. The Tribunal ordered that no permit be issued.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,781 words · generated 13/07/2026
What happened
An applicant sought planning permission to add a second-floor extension and an attached deck to an existing first-floor dwelling at 4/25 Selwood Street, Hawthorn East. The proposal comprised a new upper level (55.6 m2) and a west/north-facing deck (about 30 m2), with a maximum wall height of 8m and overall height approximately 9m. The property is one of four lots in a subdivision occupying a cul-de-sac; although the cul-de-sac features multi-dwelling developments, the immediate northern and eastern neighbours are detached dwellings with large rear yards.
Cited legislation
No linked legislation citations have been extracted yet.
Boroondara City Council refused the permit citing excessive bulk onto adjoining secluded private open spaces, excessive scale, bulk and height dominating the streetscape and surrounding area, and unreasonable overlooking impacts. The applicant sought review at VCAT. The Tribunal (Member Vicki Davies) conducted a hearing on 11 March 2008, carried out an unaccompanied inspection immediately after the hearing, and on 26 March 2008 gave reasons and an order: the Council's decision was affirmed and no permit was granted.
VCAT’s assessment focused principally on two issues identified in the Reasons: whether the proposal respects the existing and preferred neighbourhood character, and whether it would result in unreasonable amenity impacts on nearby properties (visual bulk, overlooking and noise). The Tribunal found that while the proposal complied or nearly complied with certain Clause 54 (ResCode) numerical standards (notably Standard A4 on height and Standard A10 on setbacks), the broader neighbourhood character appraisal, including the 'backyard-scape' and interface with adjoining detached dwellings, showed the development would present excessive visual bulk (a sheer 8m wall and raised balustrade) to adjoining private open spaces, particularly the property to the north. The Tribunal also found some additional overlooking would be created; although some screening measures could reduce overlooking to particular neighbours, the bulk impact remained unacceptable. The refusal was therefore affirmed and no permit issued.
Why the court decided this way
The Tribunal applied Clause 54 (ResCode) as the primary statutory framework: Clause 54 contains objectives, standards and decision guidelines intended to ensure that development of one dwelling on a lot responds appropriately to neighbourhood character and minimises impacts on amenity. The Tribunal emphasised that compliance with numerical standards (for example a maximum height not exceeding 9m under Standard A4, and setbacks under Standard A10) is not determinative of the Clause 54 objectives.
Two key legal and evaluative pillars drove the decision:
Broad conception of neighbourhood character: The Tribunal endorsed a conception of neighbourhood character that extends beyond streetscape to include side and rear setbacks and what it described as the 'backyard-scape' experienced by neighbours (see Neighbourhood character [5]). That conception is supported by prior Tribunal authority (cited: Chernov v Bayside CC [2005] VCAT 61 and Grant v Boroondara CC (2005) VCAT 356). In context the subject site sits at an interface between the cul-de-sac multi-dwelling character and adjacent areas developed with detached dwellings. The Tribunal held that the proposed additional storey does not adequately respond to that interface.
Visual bulk and overlooking as decisive amenity impacts: The Tribunal accepted the applicant's point about limited streetscape visibility but found the new upper floor would be clearly visible from rear yards of adjoining properties. The increase in height and the requirement for a 1.7m high balustrade to the deck would present a sheer wall and additional massing to neighbours, amounting to excessive visual bulk (Visual bulk [3]-[6]). Further, the proposal would create further opportunities for overlooking of a neighbour's rear courtyard; while obscure glazing and partial screening could address some windows, the overall design remained unacceptable.
The Tribunal also handled ancillary concerns: noise from future use of the deck was acknowledged but found insufficient on its own to justify refusal; and the Tribunal refused to rely upon neighbouring vegetation as a permanent mitigating factor because those trees were not on the subject site (Visual bulk [4]; Amenity [2]).
In sum, while some numeric compliance existed, the Tribunal applied a contextual, site-specific assessment of neighbourhood character and amenity and concluded the proposal failed those broader tests.
Before and after state of the law
Before this decision, the body of Tribunal and planning authority practice already recognised that Clause 54 numerical standards are tools to assist but not to displace the underlying objectives and decision guidelines. This decision reaffirms that principle: compliance with ResCode standards (A4, A10) did not automatically qualify the proposal.
The case reinforces these settled points:
ResCode objectives must be read holistically; the neighbourhood character objective calls for an assessment against preferred character and site context (Clause 54.02-1 and Clause 54.03-2).
Rear-yard and side setback impacts, and the 'feel' experienced by neighbouring rear yards, are integral to neighbourhood character.
After this decision practitioners should note that a proposal that meets numerical ResCode thresholds can nonetheless be refused if, contextually, it presents excessive bulk or creates unacceptable overlooking to neighbours' private open spaces. The decision therefore affirms the Tribunal's discretionary, evaluative role in balancing numeric compliance against the goals of character and amenity protection.
Key passages with plain-English translation
"Clause 54.02, the purpose of the Residential 1 Zone and relevant State and local policies all reinforce the need for new development to respect neighbourhood character." (Neighbourhood character [1])
Translation: The statutory planning framework requires new residential work to fit the area's character; the Tribunal must assess whether the design respects that character.
"The concept of neighbourhood character is not just about streetscape. It also includes such elements as the siting and scale of buildings, the space between them, the landscape character of the area and the way in which the buildings integrate with open space areas... including that experienced in the rear yards of neighbouring properties." (Neighbourhood character [5], referencing prior authority)
Translation: Look behind the street. The look and feel of neighbours' back gardens and the spacing and scale of buildings matter when judging if a new build fits.
"I find that the proposal is an unacceptable design response in that it would result in excessive visual bulk, particularly as presented directly to the property to the north." (Visual bulk [6])
Translation: The Tribunal concluded the new floor would look too big and imposing from the neighbour's backyard, that alone makes the design unacceptable.
"The use of any decking or balcony relies on the occupants using this area in a responsible mariner and to respect the acoustic privacy of neighbours." (Amenity [2])
Translation: Noise worries are real, but they are about how people behave. Noise alone did not justify refusal here.
"While I accept Ms Munn's submission that the proposal would have limited visibility from the street ... the new upper floor would be clearly visible from the rear of a number of adjoining or nearby properties." (Visual bulk [3])
Translation: Even if the street won't see it much, neighbours in their backyards will, that's what matters for character and amenity.
What fact patterns trigger this precedent
This decision is most directly applicable where:
A proposed vertical extension or additional storey on an existing dwelling is sited where neighbouring properties include detached houses with sizeable rear private open spaces abutting the subject site; and
The proposal increases visual mass toward those rear private open spaces (e.g. a sheer wall, raised deck with tall balustrade), even where streetscape visibility is limited; and
Numeric ResCode standards (height, setbacks) are complied with or nearly complied with, but the context shows the addition exacerbates bulk and overlooks neighbour amenity; and
There is a clear interface between multi-dwelling character (cul-de-sac/apartment blocks) and adjoining detached dwelling character, requiring sensitivity to both streetscape and backyard-scape.
Practically, where a permit application for an upper-floor addition faces detached neighbours' rear yards and will be directly visible from them, and especially where a deck and balustrade increase perceived mass, the Tribunal’s reasoning in Morelli will be a relevant precedent for refusal despite technical compliance with some standards.
How later courts have treated it
This decision cites and relies upon earlier VCAT authorities (Chernov v Bayside CC [2005] VCAT 61 and Grant v Boroondara CC (2005) VCAT 356) for the proposition that neighbourhood character extends beyond streetscape to include rear-yard considerations (Neighbourhood character [5]). Morelli itself reinforces that line of authority and will be cited in subsequent applications that involve similar interface issues; it confirms the Tribunal’s consistent approach that numeric compliance is not dispositive of the Clause 54 objectives. Practitioners should look for subsequent VCAT decisions that cite Morelli when assessing whether added bulk would be unacceptable in a rear-yard context.
(Users should search updated VCAT databases for post-2008 decisions citing Morelli to see how later panels have applied or distinguished it in differing factual matrices. This deep dive does not invent subsequent case names or outcomes.)
Still-open questions
Degree of 'near-compliance' tolerance: Member Davies notes the east and north setbacks "only miss by 10cm" and that the applicant argued such minor non-compliance would not be perceptible (Neighbourhood character [3]). The Tribunal nevertheless proceeded to a broader character-based refusal. What degree of minor non-compliance with numeric standards will be tolerated across different contexts remains a fact-sensitive question. Later cases may refine when a small shortfall can be ignored and when it is decisive.
Remedial design options versus refusal: The Tribunal acknowledged that some overlooking could be addressed by screening obscure glazing or cutting back a corner of the deck (Overlooking [6]). The decision nonetheless refused the permit principally on bulk grounds. Whether the Tribunal ought to, or in other cases would, grant a permit subject to conditions (alterations to balustrade, articulation to reduce bulk) depends on the extent to which redesign could sufficiently reduce bulk in the relevant context. Future cases may clarify the boundary between refusal and conditional approval with design amendments.
Reliance on neighbouring vegetation: The Tribunal refused to rely on neighbouring trees because they are not on the subject site (Visual bulk [4]). The balance between accepting existing off-site vegetation as mitigation and protecting neighbours' rights to alter vegetation is an evidentiary and planning judgement that remains context-dependent.
Role of streetscape visibility versus backyard impact: The decision reiterates that low streetscape visibility cannot trump significant backyard impact. However, quantifying thresholds for backyard impact versus streetscape benefit requires further delineation in differing urban morphologies.
Conclusion: Morelli v Boroondara CC is a useful authority emphasising that Clause 54 assessments are contextual and that visual bulk and backyard-scape impacts can defeat proposals even when some numerical ResCode standards are met. Practitioners should analyse both streetscape and rear-yard impacts, prepare detailed visual assessments from neighbouring private open spaces, and propose mitigating design measures in advance where upper-floor additions might present bulk to detached neighbours.
Judgment (29 paragraphs)
[1]
Morelli v Boroondara CC [2008] VCAT 515 (26 March 2008)
[2]
T Macpherson Smith, C Spooner, T El-Helou, A Cooper, M McGalliard, D Heeps, C Skelly, E Iaugier, C Howard, R Henderson, E Giddy, E Henderson, J Lewin, P Marriner, S Langley and T Kimpton.
The decision of the Responsible Authority is affirmed.
In permit application PP07/00116 no permit is granted.
[5]
Ms Fiona Munn, planning consultant of Collie Pty Ltd.
[6]
Mr Spiro Neofitou, planning consultant of Planning Vision.
[7]
Mr Tim Macpherson Smith & Ms Carolynne Spooner, Mr Tony El-Helou, Ms Maryanne McGalliard and Ms Elizabeth Giddy, all in person.
[8]
Statements of Grounds from a number of other parties were also considered.
[9]
This is an application for review by the permit applicant against the refusal of the Boroondara City Council [the Council] to grant a permit for alterations and additions to a dwelling on a lot less than 500m2 at 4/25 Selwood Street, Hawthorn East.
In response to advertisement of the permit application the Council received five objections.
The grounds upon which the Council refused the application were:
The addition will be [sic] present excessive bulk onto the secluded open space of the adjoining rear yards to the north, east and west of the subject site.
The scale, bulk and height of the proposed buildings is excessive and would have a dominating impact upon the streetscape and surrounding area.
The addition will result in unreasonable overlooking impacts of the adjoining rear yards and for existing dwellings within the site.
The objectors and a number of other local residents are parties to the proceedings.
[10]
The subject site is one of four parts on a plan of subdivision of the land at 25 Selwood Street, which abuts the cul-de-sac at the eastern end of Selwood Street. The dwelling on the subject site is on the first floor and has an east-west axis. It has an area of approximately 107m2 and comprises two bedrooms, a kitchen-meals area, a living-dining area, a bathroom, shower and toilet. It is accessed via an external staircase to the south. It has no private open space.
Within the development there is one other dwellings at the upper level and two dwellings at the ground level. The other upper level dwelling (Unit 2) also has a small third level - comprising a bedroom, a walk-in robe and ensuite and a west-facing balcony - that was approved some time in the 1990s.
The plan of subdivision provides for common property within the eastern boundary and in the south-west corner, adjacent to the frontage. Each of the four units has a car space on its title. They are located within the south-east corner of the land.
The dwelling on the subject site commences approximately 3m from the north boundary, 3m from the east boundary, 1.8m from the west boundary and approximately 156m from the frontage.
Most of the other properties abutting the cu-de-sac are developed with two storey apartment blocks.
The land adjacent to the north (98 Pleasant Road) is developed with a single storey dwelling. The rear of the land comprises a large area of private open space.
The land to the east (649 Burke Road) is developed for use as a religious congregation complex by the Missionary Oblates of Mary Immaculate. The two storey heritage building has been refurbished for use as a provincial administrative centre. The two storey building to its north is a residence for a number of elderly priests. There is a single storey cottage near the north-west corner. The area adjacent to the subject site is used as a garden area for residents. There is a car parking area further to the south.
The land to the west (23 Selwood Street) is developed with a single storey dwelling. It has a large private courtyard at the rear.
[11]
It is proposed to construct a second floor extension on the existing first floor dwelling. The new level consists of a bedroom, "gallery" and bathroom - with a total floor area of 55.6m2 - and a deck to the west and north with an area of approximately 30m2.
The proposed extension would be set back 3m from the northern boundary,[1] 3m from the eastern boundary and a minimum of 6.6m from the western boundary. The deck would be set back 4.5m from the western boundary and 3m from the northern boundary. The resulting building would have a maximum wall height of 8m and an overall height of 9m.
Materials include rendered blueboard walls, metal balustrade and timber window frames.
[12]
The subject site is zoned Residential 1 under the Boroondara Planning Scheme and not affected by an overlays.
Pursuant to the Clause 32.01-3 a permit is required to extend one dwelling on a lot less than 300 square metres. A development must meet the requirements of Clause 54.
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority - and this Tribunal on review - must consider, as appropriate:
The State Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
The objectives, standards and decision guidelines of Clause 54.
Relevant State polices include Clause 12 (Metropolitan Development), Clause 14 (Settlement), Clause 15.12 (Energy efficiency) and Clause 16.02 (Medium density housing). Relevant local policies include Clause 21.05 (Urban Character), Clause 21.07 (Residential Land Use) and Clause 22.07 (Neighbourhood Character Policy).
[13]
At the hearing Mr Neofitou, Ms Spooner and Ms Munn tabled and spoke to written submissions. Mr El-Helou, Fr Ousley, Ms McGalliard and Ms Giddy made oral submissions. The written submissions of the parties, together with numerous photographs, plans, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.
[14]
Immediately after the hearing I carried out an unaccompanied external inspection of the subject site. I also viewed the subject site from various vantage points, including from the rear of Nos. 96, 98 and 100 Pleasant Road and 649 Burke Road.
[15]
In the light of the submissions and my inspection I consider that there are two principal issues to be determined; namely:
Whether the proposal respects the existing and preferred neighbourhood character; and
Whether the proposal would result in any unreasonable impacts on the amenity of nearby properties.
Some of the respondents raised concerns about the impact of the proposal on existing on-street parking problems. My inspection confirmed that there are access difficulties arising from the narrowness of Selwood Street. Nevertheless, I do not believe that there would be any significant change in traffic and parking demand in the street due to the proposal. Furthermore, although Standard A9 of ResCode requires two on-site car spaces to be provided for a dwelling with three bedrooms, Ms Munn highlighted that Clause 54.03-7 states that the requirements of Standard A9 "do not apply to extensions to existing dwellings". I find that exemption perplexing. One can readily think of examples where the extension of a dwelling could lead to a significant increase in parking demand. In any case, I do not see this proposal as such a case.
I also acknowledge that the proposed alterations and additions would improve the on-site amenity or liveability of the dwelling on the subject site, particularly in that the deck would provide an area of private open space with excellent solar access and outlook.
[16]
Clause 54.02, the purpose of the Residential 1 Zone and relevant State and local policies all reinforce the need for new development to respect neighbourhood character. Clause 54.02-1 includes the additional objectives that a design "contributes to a preferred neighbourhood character" and "responds to the features of the site and the surrounding area".
A useful staring point when considering neighbourhood character is the Neighbourhood Character Statement for Area 124. Indeed, it is policy at Clause 22.07-3 that the relevant Neighbourhood Character Statement be considered.
The Neighbourhood Character Statement for Area 124 recognises that while the area was originally developed in the Victorian period, many houses and multi-dwelling developments - that "are strongly represented" - are from the inter-war period. The Statement identifies 23 elements of neighbourhood character and ranks the contribution of each element to character. "Access" - which includes accessibility to shops, services, open space and public transport - and "Housing type" are the only elements ranked as "Very important". In relation to the latter element the Statement notes the "High proportion of 1960s double storey multi-dwelling developments". With respect to the element "Building scale", the Statement identifies heights of one storey, two storey and three storeys or above and a mixed consistency.[2]
I accept Ms Munn's submission that the proposal would not be at odds with the Selwood Street streetscape. The siting of the extension, the slope of the land and the nature of the cul-de-sac would limit the visibility of the additional level. The upper level of Unit 2-25 Selwood Street is already a highly visible element and the various older-style blocks of flats around the cul-de-sac have substantial building bulk.
Neighbourhood character is, of course, not exclusively about the streetscape. As Senior Member Baird has noted, the Tribunal has frequently held "that side and rear setbacks, including a 'backyard-scape', are relevant in terms of neighbourhood character."[3] I have made similar observations in numerous decisions, including the following:
[17]
...the concept of neighbourhood character is not just about streetscape. It also includes such elements as the siting and scale of buildings, the space between them, the landscape character of the area and the way in which the buildings integrate with open space areas. It also includes the nature and "feel" of an area, including that experienced in the rear yards of neighbouring properties.[4]
[18]
In this instance, that broader concept of neighbourhood character is particularly relevant as the subject site is at the interface between two areas that have a very distinctly different "feel". Most of the properties around the Selwood Street cul-de-sac are developed in a decidedly different manner to the properties that front both Pleasant Road and Burke Road. The properties to the north and east are developed with detached dwellings and have large rear yards abutting, or in the vicinity of, the subject site. The proposed development needs to respect the character of that part of neighbourhood that lies to the north and west, as well as the streetscape.
Ms Munn's submissions relating to neighbourhood character largely focussed on the ResCode objective relating to height. She noted that the objective of Clause 54.03-2 is "To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character". She highlighted that Standard A4 requires that if no maximum height is specified in the zone, schedule to the zone or an overlay - as is the case here - then the maximum building height should not exceed 9m. Ms Munn submitted that as the proposed maximum height is 9m, or could be required to be no more than 9m,[5] the proposal must be deemed to comply with the relevant objective.
Ms Munn also submitted that the proposal satisfies the objective for side and rear setbacks at Clause 54.04-1. On that matter, she noted that Standard A10 requires an 8m-high wall to be set back 3.1m from the side or rear boundaries. She highlighted that the proposed 7m building setback from the west easily satisfies that requirement, as does the 4.5m setback of the deck (with a height to the top of the balustrade of around 6.8m). Ms Munn conceded that while the proposed 3m setback from the east and north does not fully comply with the standard, it "only misses by 10cm" and would not be perceptible. Ms Munn submitted that given the relevant decision guidelines, the proposed setback is acceptable. In that regard she particularly highlighted that the east and north elevations would have no impact on the streetscape, the addition is well-removed from any windows of buildings to the east and north, causes minimal overshadowing and there is already overlooking.
While I acknowledge that the proposal complies (or could be made to comply with) with the maximum height set out at Standard A4 and generally complies with the side and rear setback requirements of Standard A10, I do not agree with Ms Munn's suggestion that such compliance is a complete answer to the issue of neighbourhood character. Rather, my finding is that the height and setback of the proposed additional storey fails to adequately respond to the existing neighbourhood character when it is taken to include the broader concept I noted earlier.
[19]
I accept Ms Munn's submission that the proposal would not unreasonably overshadow the secluded private open spaces of any nearby properties, as reflected by compliance with Standard A14 of ResCode.
A number of the respondents raised concerns about the noise that would be generated by use of the proposed deck. I understand that those concerns at least partly arise from the current use of the subject dwelling. Apparently, the occupiers play loud music that often includes "offensive" lyrics. While there is the prospect that use of the deck would increase noise - both from music and activity in a raised, open area - that alone would not warrant refusal of the application. Ultimately, I agree with the Council planning officer's observation that:
[20]
The use of any decking or balcony relies on the occupants using this area in a responsible mariner and to respect the acoustic privacy of neighbours.
[21]
Of more concern is the visual bulk that would be presented to neighbours and the potential for overlooking of nearby properties.
[22]
As I observed earlier, I do not consider that in this case, compliance with the maximum height specified in Standard A4 and compliance - or near compliance - with the side and rear setbacks required by Standard A10 necessarily means that the proposal would have an acceptable presentation to abutting or nearby properties.
The building height objective at Clause 54.03-2 is "To ensure that the hight of buildings respects the existing or preferred neighbourhood character." Standard A4 is not just concerned with maximum height. It also states: "Changes of building height between existing buildings and new buildings should be graduated." One of the decision guidelines is "The visual impact of the building when viewed from the street and adjoining properties".
While I accept Ms Munn's submission that the proposal would have limited visibility from the street - either Selwood Street or Pleasant Road - the new upper floor would be clearly visible from the rear of a number of adjoining or nearby properties.
My site inspection confirmed that the existing building on the subject site already presents as a large two-storey built form. Large trees within the courtyard of Unit 3/25 Selwood Street interrupt some views. However, as they are not within the subject site, I agree with Ms Spooner that they cannot be relied upon to permanently play that role. A major part of the existing building is directly visible from the rear of 98 Pleasant Road and 649 Burke Road. In particular, I note that my inspection confirmed that all of the rear of 98 Pleasant Road appears to be utilised in the manner described by Ms Spooner. There are numerous areas set out for various children's activities, as well as an area for outdoor dining closer to the rear of the dwelling. The existing building is also visible on an angle from the rear of 100 Pleasant Road and 23 Selwood Street. Trees in the rear corner of 96 Pleasant Road largely screen the building from the north-west.
The proposed increase in height would obviously add to the existing building bulk. It would result in a sheer 8m wall being presented to properties to the north and east. Furthermore, to resolve the issue of potential overlooking, the deck would require a balustrade with a height of 1.7m. That would add to the bulk of the building presented to the north and west.
My principal finding is that in this context the proposal is an unacceptable design response in that it would result in excessive visual bulk, particularly as presented directly to the property to the north.
[23]
The overlooking objective at Clause 54.04-6 is "To limit views into existing secluded private open space and habitable room windows." Decision guidelines include the impact on the amenity of those spaces and windows as well as the existing extent of overlooking.
Ms Munn was at pains to point out that there is a high degree of existing overlooking from the dwelling on the subject site. She tendered photographs showing the views of 23 Selwood Street from the first floor dining room and lounge room windows, views of 98 Pleasant Road from the dining room and shower window and views of 649 Burke Road from the bathroom and bedroom windows.
Ms Munn acknowledged that there is a discrepancy between the plans and north elevation of the proposal in relation to the screening of the deck. A "full screen" (as shown on the plan), rather than a 1m-high balustrade is proposed. It is also proposed to install obscure glass in the proposed windows of the bathroom that face north and east. However, no screening treatment is proposed for the north-facing stairwell windows or the bedroom window that faces east.
Ms Munn noted that the stairwell windows could have obscure glass. With that modification I am satisfied that there would not be any unreasonable overlooking of 98 Pleasant Road.
I do not accept Ms Munn's submission that the lack of screening of the new bedroom window is appropriate. I acknowledge that it would provide essentially the same view over the rear of 629 Burke Road as is now available from the first floor bathroom and bedroom windows. However, in that it would provide an additional opportunity for such a view, there is a case for it to be treated.
Ms Munn also argued that it is not necessary to screen the deck and windows on the west side. In that respect she argued that the downward views towards the east-facing windows at 23 Selwood Street would be screened by the combination of the horizontal separation (a minimum of around 6.3m), the first floor roof of the dwelling on the subject site and the existing vegetation along the east boundary of the neighbouring property. Ms Munn also argued that those factors, together with the available viewing angle, would also restrict downward views towards the rear courtyard at 23 Selwood Street. She also contended that any new downward views would be more restricted than those currently available from the dining and lounge room windows.
[24]
For the above reasons I find that the proposal would represent an unacceptable outcome. Accordingly, I will direct that no permit be issue.
[25]
[1] The plans show a setback of 3.57m but it was accepted that this is an error. The 1996 Plan of Subdivision and measurements by Ms Spooner and Mr Macpherson Smith confirm that it is 3m.
[26]
[2] The ranking of this element is not legible on the version of the Neighbourhood Character Statement that is available on the Council's website - a copy of which was tendered by Mr Neofitou.
[5] Scaling the plans indicates a height of approximately 9.2-9.3m.
Parties
Applicant/Plaintiff:
Morelli
Respondent/Defendant:
Boroondara CC [2008] VCAT 515
AI Analysis
Outcomerespondent
Disposition:
The decision of the Responsible Authority is affirmed; in permit application PP07/00116 no permit is granted.
I also consider that Ms Munn's analysis of the impact of the proposal - in terms of the streetscape, overshadowing, overlooking and the distance for the windows of neighbouring buildings - fails to address the full range of potential off-site impacts. Those matters are considered under the next heading.
Lastly, I note that while the upper floor at Unit 2/25 Selwood Street has a similar height to the proposal, it can readily be distinguished. As highlighted by Mr Neofitou, the Unit 2 extension:
Is located towards the front of the site and has direct abuttal to the car parking area at the rear of 649 Burke Road;
Is well articulated from the eastern boundary and is well setback from the western boundary; and
Comprises only one bedroom with en-suite and a small balcony that does not overlook into the secluded private open space area of the property adjoining to the west.
In contrast to the small extension at Unit 2/25 Selwood Street, the proposal involves a bulky addition in the most sensitive area of the land.
I am satisfied that the proposal would not result in unreasonable overlooking of the east-facing windows at 23 Selwood Street, most of which are associated with non-habitable rooms. However, additional overlooking of the rear courtyard would be unreasonable. Cutting back and screening the north-west corner of the deck, as suggested by Ms Munn, could address it.