Victorian Civil and Administrative Tribunal|2002-08-29

Nicholas Day Architects v Bayside CC & Ors [2002] VCAT 946 (29 August 2002)

PLANNING AND ENVIRONMENT LIST APPLICATION NO. P346/2002

Planning, Double storey building, Eight apartments, Residential 1 Zone, Design and Development Overlay, Refusal, Application for Review, Allowed, Permit

It is ordered that the decision of the Responsible Authority is set aside and a permit is granted for a two storey building containing eight apartments and basement car parking at 59 - 61 North Road Brighton, subject to the following conditions:

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with Nicholas Day Architects, Drawing Nos. PDO1B, PDO3B, PDO4A and PDO5D, but modified to show:

d) All paving (except driveways) to be porous - pavers to be laid on a compacted sand base,

e) A schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing),

f) All plant and equipment (including air conditioning units, heating units, hotwater systems, etc.) are to be identified and located to the satisfaction of the Responsible Authority,

g) Finishes on walls on and facing boundaries of adjoining properties,

h) Any necessary retaining walls on boundaries, which must be of brick or masonry or other suitable alterative approved by the Responsible Authority,

2. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with the Contour Australia Pty Ltd Drawing No. LS1B, and must show the proposed landscape treatment, including the location of all existing and proposed species.

3. Before the development starts, a Tree Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must provide for protection of trees to be retained, including excavation, trenching, barriers, watering, mulching, pruning and services installation, and must generally be in accordance with the recommendations contained in the report by Mr R Galbraith, Consulting Arboriculturist, and dated 5 June 2002.

4. Before the development starts, a site layout plan, approved by a Building Practitioner registered under the Building Act 1993 and to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show a drainage scheme for the collection of stormwater within the site and for the conveying of the stormwater to the Council nominated point of discharge.

5. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

6. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

7. Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on, the letterboxes, separate unit numbers must be placed adjacent to the front entrance of each dwelling and such numbers must be clearly legible from the access driveway, all to the satisfaction of the Responsible Authority.

8. All service pipes (excluding spouting and stormwater downpipes), fixtures and fittings, must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

9. Before the dwellings are occupied, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

b) Properly formed to such levels that they can be used in accordance with the plans,

10. Areas set aside for parked vehicles and access lanes must be maintained and not used for any other purpose, all to the satisfaction of the Responsible Authority.

11. Before the dwellings are occupied landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority, and must be then be maintained to the satisfaction of the Responsible Authority.

12. All existing vegetation shown on the endorsed plans as to be retained must be suitably marked before any development starts on the site, and that vegetation must not be removed, destroyed or lopped, without the written consent of the Responsible Authority.

13. All basic services, including water, electricity, gas, sewerage and telephone must be installed underground and located to the satisfaction of the Responsible Authority.

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

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

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

1. A permit must be obtained from Council for all vehicular crossings, which must be constructed under Council's supervision for which 24 hours notice is required.

2. Building approval must be obtained prior to the commencement of the above approved works.

3. Consultation should take place with Council respect of the removal of the vehicular crossing and reinstatement works.

4. The existing street trees must not be removed or damaged.

5 Reticulated sewerage must be provided to the requirements of the Sewerage Authority.

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

For the Responsible Authority: Ms J Bowdern, Legal Support Planner

Respondents/Objectors: Mr M Rabinov and Ms J Ellerington

For the Applicants for Review/ Mr G Peake of Counsel, by direct brief.

Permit Applicants: Mr Peake called the following expert witnesses:

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicants for review of a decision of the Bayside City Council ("the Responsible Authority") to refuse to grant a permit.

2. SJB Planning, for the Applicants for Review/Permit Applicants, advised the Tribunal by letter dated 28 May 2002 as follows:

"We advise you that our client seeks to amend the plans of the proposal and, accordingly, we enclose amended plans that they intend to rely on at the forthcoming hearing, scheduled to be heard on 25 June 2002. These plans have been modified in the following way:

* Relocation of the basement ramp from North Road to Foote Street

* Modification to layout of basement to reflect change to access arrangements

* Increased setback to Foote Street to Apartment 4 (ground level) and internal modification to layout of apartment to reflect changes to access. arrangements

* Modification to elevations to reflect change to access arrangements

* Correct location of southern most street tree in Foote Street

A copy of this letter together with a set of All plans, has been sent to the other parties, including the City of Bayside and 'A3 ' plans to all respondent/objectors, including Form A (Notice of Application to Amend Plans).

We have sent a copy of this letter and the relevant Form A and B to all parties, including the parties originally notified of the application by the City of Bayside and all objectors not party to the appeal.

We also enclose the required confirmation of "Statement of Service of Documents" for the amending plans."

3. Mr Peake, as foreshadowed, requested that the permit application be amended by substitution of the revised plans. Ms Bowdern, for the Responsible Authority, said that she had not been aware of the revised plans until receiving witness reports on the previous Thursday. Ms Bowdern said that she would not strongly oppose the substitution. The Respondents/Objectors did not object.

4. I amended the permit application by substituting in it the revised plans, pursuant to Clause 64(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

5. Towards the conclusion of the hearing on Day 1 I questioned whether the proposal could be improved by reducing the height of roof gables. The Architect for the proposal subsequently reviewed the design. SJB Planning Pty Ltd, for the Applicants for Review/Permit Applicants, provided revised plans under cover of a letter dated 9 July 220, which read:

"We act on behalf of the Nicholas Day Architects, the Applicant for Review in the above-mentioned matter. Further to the partial hearing of this matter by Mr Sharkey on 25 June 2002, we are pleased to provide amending plans addressing issues raised at the hearing.

The changes to the plans are summarised as follows:

q Reduction in the pitch of the roof and gable elements from 30 to 27 degrees, lowering the overall height of the building by 300mm

q Variation of levels of the gardens along the Foote Street and North Road frontage to more closely reflect natural ground level to facilitate retention of existing vegetation

q Introduction of steps leading from the meals/living area and Bedroom 1 of Apartment 4 to assist in maintaining levels within the landscaped areas

q Introduction of retaining wall/steps to the gardens of Apartment 1 and 3 to assist in maintaining levels within the landscaped areas

q Inclusion of a plans detailing where the services will be provided to the site

q Amendment to the landscaping plan to reflect the changes list above and to renumber trees as per Mr Galbraith's report

We also enclose correspondence from Mr Galbraith, confirming that the changes in levels will not have an adverse impact on the trees proposed to be retained.

We also advise that a revised streetscape perspective will be tendered to the Tribunal at the next day of the hearing, schedule for 10am on 17 July 2002 to reflect the changes to the roof and gables. The original perspective will be returned to the Tribunal as requested.

Copy of this letter and A1 plans have also been forwarded to Council on this day with A3 plans and a copy of this letter to all other parties to the appeal as listed below."

6. The revised plans were numbered PDO3B in place of PDO3A, PDO5D in place of PDO5C, and the revised landscape plan was LS1B in place of LS1A,

7. Mr Peake on Day 2 requested that the permit application be further amended by substituting in it the further revised plans. There was no objection, and I further amended the permit application as requested pursuant to Clause 64(2).

8. Ms Peterson, in her written report, described the proposal following amendment of the application on Day 1, as follows:

"The proposal before the Tribunal is to demolish the existing dwelling on the site and redevelop the property for a two-storey apartment building containing eight apartments with 24 spaces within a basement car park. Each dwelling with contain three bedrooms with the exception of Apartment 1, which will contain foot! bedrooms. All dwellings have both formal and informal living areas.

The building is designed into quadrants focussing around a circular central core. The building is setback between 7.0 metres to 8.7 metres from North Road and between 3.0 metres and 7.0 metres to Foote Street. Twenty eight mature trees are to be retained, including two substantial Coral trees along the Foote Street frontage and a mature evergreen Alder along the North Road frontage.

The building ranges in height from 7.3 metres to 8.4 metres above natural ground level. The tallest end of the building runs along the North Road frontage.

Access to the basement is from Foote Street, where ample storage space is provided for each dwelling. Two visitor car parking spaces are provided within the basement. Each apartment will be allocated two or three car parking spaces each.

The existing fence is to be retained with the exception of the existing indent along the Foote Street frontage, which is to be removed and the fence align with the property boundary instead. I understand that the panels of the fence will be supported on beams along ground level to avoid any excavation near the Coral Trees."

9. The subject land is on the north-east corner of North Road and Foote Street and presently contains a single storey dwelling, garage and swimming pool, and is serviced by a vehicle crossing at the north-west corner.

11. There is a single storey dwelling to the north at 2 Foote Street, two attached double storey dwellings to the east at 63 and 63A North Road, and the open space of the dwelling at 417 New Street also abuts the subject land on its east boundary. There are double storey dwellings opposite the subject land on the south side of North Road and the west side of Foote Street.

12. The subject land is covered by the Bayside Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is required to construct two or more dwellings on a lot, pursuant to Clause 32.01-4. The Good Design Guide applies to the proposal because the permit application was lodged prior to 24 August 2001.

13. The subject land is covered by Schedule 1, Coastal Environs, to Clause 43.02, Design and Development Overlay. Clause 43.02-2 provides that a permit is required to construct a building or carry out works, but this does not apply for Schedules specifically states that a permit is not required. Paragraph 2.0 to Schedule 1 provides that a permit is not required to construct or carry out buildings or works which do not exceed two storeys or 6 metres in overall height. A permit is required because the proposed height exceeds 6 metres.

14. Reference was made in submissions and evidence to relevant planning policies.

1. The proposal is inconsistent with the spirit and intent of the Good Design Guide.

2. The proposal would be detrimental to the amenity of the adjoining properties in respect of the degree of overlooking and visual bulk.

3. The development will result in a detrimental impact on existing street trees in North Road.

4. The proposed height of the dwelling would have an adverse impact on the streetscape.

5. The proposed vehicle access is unsatisfactory.

1. The proposal is consistent with the spirit and intent of the Good Design Guide and Bayside City Council's Guidelines, and will not cause detriment to adjoining properties, nor will it have an adverse impact on the streetscape.

17. Following receipt of the permit application the Responsible Authority, in a letter dated 3 September 2001, requested further information, and:

"In the same letter Council informed the Applicant that it had certain concerns in regard to the proposed development. These were:

18. The permit application was referred to VicRoads, which advised that there was no objection provided that there was no direct vehicular access from North Road and vehicular access was from Foote Street. The permit application was advertised by a sign on each street frontage and notice to owners and occupiers of adjoining properties. There were 10 objections received in response to advertising.

19. Ms Bowdern, in her written submission for the Responsible Authority, addressed the Grounds of Refusal and submitted:

"Council has assessed the proposed development against all relevant sections of the Bayside Planning Scheme, Good Design Guide and Council's Guidelines. Council submits that the development is not satisfactory due the detrimental impact on street trees in North Road and the proposed development if allowed to proceed would detrimentally impact upon neighbouring properties.

Council remains opposed to this development because it submits that the proposed development if allowed to proceed would be detrimental to the amenity of the adjoining properties in respect to the degree of overlooking and visual bulk. Council submits that the total height of this proposal at 10.9 metres is excessive and will ensure that the proposed dwellings tower over their neighbours. Council also notes that although this site is very large the amount of built surface of 52.7 % which is beyond the maximum set by Council policy. Council contends that the amount of 52.7% which is beyond the maximum set by Council policy. Council contends that the amount of built form in the proposed development will be visually obtrusive from the neighbouring properties' point of view.

Council submits that there is potential overlooking from the first floor balconies which face north and east. Council would be insistent that a condition of permit must require the provision of screening to a height of 1.6 metres above the finished floor area to address this issue if the Tribunal were of a mind to order that a permit should issue. However, Council submits that a development should be designed to minimise overlooking rather than rely on screening mechanisms.

Council is adamant that a site responsive design would provide vehicular access from Foote Street only. Council submits that the potential detrimental impact to street trees in North Road is an issue that has not been satisfactorily addressed by the Applicant's current design. Council submits that these trees are part of the historical and cultural history of Brighton and must be preserved at all costs.

Council submits that the proposed development if allowed to proceed will have a detrimental impact on the streetscape and that it does not adequately respect the character of nearby dwellings with regard to building height. Council contends that the proposed development is inconsistent with the scale and height of the adjoining dwellings and other dwellings in the neighbourhood. Council believes that the proposed development if allowed to proceed will visually dominate the streetscape and that the proposed dwellings will appear as an aberration inn the streetscape. However, Council does acknowledge that the neighbourhood contains a mixture of housing styles including detached and semi detached housing which is either double or single storey, and the design response is appropriate from an architectural style perspective.

The total height of the buildings at 10.9 metres seems to be a serious impediment preventing Council approval for this development.

The subject site is located in a height control area (DDO-1) which limits the development of the site to a maximum of two (2) storeys. The proposal provides for the development of eight (8) dwellings contained within a double storey building containing a basement. Council submits that the proposed maximum ridge height of 10.99 metres above natural ground level is higher than the double storey dwellings fronting North Road on the opposite side of Foote Street and the double storey dwelling on the adjoining property to the east. Council contends that that the proposed height of the building is unreasonable and will be detrimental to the streetscape character.

Council submits that the architectural design of the proposed dwellings is considered to appropriately blend into the streetscape by incorporating rendered treatments, articulation, eaves, pitched roof with slate tiles and setbacks which are consistent with nearby properties. The proposal has architectural features which are common with other dwellings in the street.

Council notes that the proposed ground floor and first floor setbacks are consistent with adjoining dwellings and comply "With the requirements of the Good Design Guide and Council Policy.

The proposal was referred to Council's Urban Designer who advised that the colours and materials proposed by the Applicant will complement the existing neighbourhood, however there is potential for visual bulk impact. Council submits that the proposed design if allowed to proceed will be visually dominating and intrusive in the streetscape.

Council acknowledges that the proposal includes the retention and extension of an existing 2 metre high solid rendered fence which is considered acceptable given that the site adjoins a declared main road. The Urban Character Study acknowledges that Character Area C is dominated by tall solid front fences.

Council acknowledges that the Applicant has submitted amended plans for the proposed development which were received by Council n Thursday 20 June 2002. Council notes that the Applicant has changed the vehicle access from North Road to the side street Foote Street. Council submits that this revision was suggested lo the Applicant by Council very early in the history of this Application but the Applicant had refused to move the crossing. As Council only received the amended plans less than a week before the Hearing there was insufficient time for these Amended Plans to be resubmitted to Council for consideration. Council welcomes this modification as it will reduce the detriment to the avenue of street trees posed by the initial development.

Although the Amended plans reduce the potential risk to the trees by the inclusion of cross over on North Road, Council submits that the amended plans do not reduce the amenity impacts of this huge development on the adjoining properties. The size of this development will appear visually bulky and obtrusive to all adjoining neighbours and for this reason alone Council would be opposed to it."

"In Council's opinion the site is capable of a multi unit development. However, Council submits that the proposed development is not an appropriate design for the site given the potential impact to street trees. In addition Council believes that this proposed development is an overdevelopment of the site. Council has assessed the proposed development against all the relevant sections of the Bayside Planning Scheme, the Good Design Guide and Council Guidelines and has formed the considered view that it is an inappropriate development."

21. Mr Rabinov, a Respondent/Objector of 52 North Road, made an oral submission. Mr Rabinov said that he had been a resident of the area for 40 years. He said that the submission for the Responsible Authority had covered most of his concerns. Mr Rabinov however said that he wanted to reinforce some issues. He submitted that there were very well established trees on North Road which was a boulevard. A tree west of Foote Street was dying because of a service trench that had been dug near the tree. The canopies of the trees overlapped which suggested that the root structures would overlap, and he considered that services from North Road would impact on those roots. He submitted that services to the subject land should be from the corner or from Foote Street to avoid those trees. Mr Rabinov expressed concern about building materials and car parking on site and said that any work in the vicinity of trees should be under the supervision of a qualified independent Arborist. Mr Rabinov submitted that this is a very large development and would be excessively high, and there is too much visual bulk.

22. Ms Ellerington, a Respondent/Objector, of 417 New Street, made an oral submission. Ms Ellerington said that most of her concerns had been covered, but she emphasised her concern with respect to visual bulk. Ms Ellerington was also concerned about overlooking.

23. Ms Gorman, of 31 North Road, made an oral submission. Ms Gorman said that she was pleased that vehicle access would be from Foote Street and not North Road. She said that she had lived in the area for 58 years and considered that North Road, with its trees, was a classic avenue.

24. Mr Peake opened the case for the Applicants for Review/Permit Applicants with an oral submission. Mr Peake submitted that the subject land has three major advantages, which are:

* This is a very big site, being 1927 square metres in area, and is one of the biggest blocks in the area,

* The location is on a "grand boulevard" which features big houses with solid front fences,

* There is potential to provide "instant mature landscaping", having regard to existing trees which will be retained. Mr Peake submitted that there is a contribution to "greenscape", which would be essentially unchanged because of the proposed setbacks to North Road and Foote Street.

25. Mr Peake submitted that a pitched roof was proposed because this was the predominant form of roof in the area, wall heights were less than wall heights of dwellings to the east, and the site coverage was "only" 52%. Mr Peake submitted that a big building was not a negative if the site was large enough and there was not significant impact on the street and adjoining properties.

26. Mr Peale submitted that the issues in this Application for Review for overlooking, building height, visual bulk, impact of excavation for services on trees, and the grade of the ramp to the basement car parking area.

27. Mr Peake spoke to a written submission, and submitted:

"The Responsible Authority has recently adopted, and forwarded to the Minister for Planning, Amendment C2, to the Bayside Planning Scheme. This amendment makes changes at a policy level. It replaces clauses 21.02 - Snapshot; clause 2 1.05 - Housing and clause 2 1.10 - Streetscape Design, with new provisions. It also introduces clause 22.06 - Urban Character.

* 7,200 net additional dwellings will be required within the city of Bayside over the period 1996 to 2016;

* the projected population and housing nee& will only be met if the net additional dwelling rate is sustained at 361.3 per year for the period 2001 - 2016.

At clause 21.04-1 Vision, part of the vision for Bayside is that "Bayside will be a municipality where residents can choose to spend their whole lives". This objective can only be achieved if a range of medium density housing opportunities are provided within the municipality, to cater for families after their children have grown up and left home, and after retirement. There is a strong demand within Bayside for prestige apartment style living, to cater for families in these categories.

The whole of life philosophy is again referred to clause 21.05-1 of the Planning Scheme, where the need to provide a greater variety of housing types and more affordable housing as well as smaller gardens is recognised. Whilst it is a strategy to achieve this objective to encourage higher density housing principally in activity centres and residential opportunity areas as identified on the strategic framework plan, this must not be interpreted as discouraging appropriate residential developments in either areas.

It is submitted that, with the amendment of the application so that access is from Foote Street, rather than from North Road, the issues in this appeal are:

(1) Is the proposed building consistent with the character of the neighbourhood?

(2) Is the bulk of the proposed building, as viewed from adjoining properties, appropriate in the neighbourhood setting?

(3) Will there be any unreasonable overlooking of adjoining properties?"

28. Mr Peake called Ms C Peterson, a Consultant Planner, as an expert witness. It was the evidence of Ms Peterson that:

* The site is suitable for an apartment style medium density housing development of the type proposed;

* The development is consistent with both the State and local planning policy framework;

* The dwellings in the development will each offer a high standard of amenity for future occupiers;

* The development will complement the established character of the neighbourhood, enabling the retention of several significant trees within the site and the mature street trees along North Road; and

* The development will not have any significant adverse effects on the amenity of surrounding properties.

29. It was the evidence of Ms Peterson with the respect to overlooking:

"Several of the adjoining property owners have expressed concerns regarding the potential of overlooking into their rear yards. 1 am satisfied that no unreasonable overlooking will occur to the adjoining properties and this is evidenced by:

q The use of screening to the first floor balconies. I have reviewed the screening and planter box method proposed by Mr Day and am satisfied that it will effectively prevent unreasonable overlooking as defined by the Good Design Guide.

q The absence of private open space to the east within 9 metres of any habitable room window.

q The construction of a two storey addition at the rear of No. 2 Foote Street, which substantially reduces to area of private open space to this dwelling

I acknowledge that there is some potential for overlooking between the north facing living room windows of Apartment 6 and the potential first floor windows of the addition at No. 2 Foote Street. I have tried to contact the designer of this extension, McKim Developments, to enquire as to the location of windows along the southern facade as it is not yet evident from a visual inspection. However, I have been unable to get any feedback. Given the physical separation between the two structures of over 7.0 metres and the location of a paper bark and bay laurel tree along this boundary, I am satisfied that there is unlikely to be any real issue with overlooking between the two structures."

30. It was the evidence of Ms Peterson with the respect to visual bulk:

"I have the inspected the site and its interface with the adjoining properties, particularly the location of their private open space. I am satisfied that the development is sufficiently setback and landscaped to ensure that the proposal will not unreasonably impact on the amenity of these areas. In particular:

q The first floor is setback 5.0 metres to the rear of No. 2 Foote Street. I note that this dwelling is currently being extended, thereby reducing the interface between the private open space of this adjoining property and the subject building. I consider a 5.0 metre setback to a two storey building ample to provide sufficient setback and sense of space and this is demonstrated by the landscape plan, which seeks to complement existing established planting along this boundary.

q The building is setback between 3.0 and 6.5 metres from the eastern boundary. However, due to the location of driveways, garages and dwellings, the closest interface to private open space is more than 9.0 metres away. I am satisfied that the setbacks to the side boundaries enable appropriate landscaping and sense of space, enabling the proposal to sit comfortably amongst its residential neighbours."

31. Mr Peake called Mr T Vernon, a Consultant Landscape Architect, as an expert witness. Mr Vernon discussed the character of North Road and Foote Street, and the existing character on the subject land. Mr Vernon went on to describe the landscape proposal, the incorporation of trees to be retained, the impact on trees on neighbouring properties, and North Road and Foote Street.

32. Mr Peake called Mr R Galbraith, a Consultant Arboriculturist, as an expert witness. It was the evidence of Mr Galbraith that:

"The larger more significant trees on the site are to be retained. Their safe useful life expectancies should not be adversely affected so long as readily achievable precautions are followed. There should be no adverse impact to any of the street trees or trees on neighbouring properties.

The vehicular entry into the property is to be via Foote Street. The closest that the proposed new crossover will be to the centre of tree 6, a Lillypilly, is 2.5m. In order to determine the roots which are likely to be intercepted by the excavation necessary to install this crossover, I dug an exploratory trench along its proposed southerly edge. The trench was dug to a depth of 26cm below the road level where it enters the nature strip, grading upwards to 15cm below footpath level next to the footpath. No roots greater than a cm thick were encountered. I can confidently say therefore that the installation of the crossover should have no adverse impact on the tree. If trenching for services is proposed from Foote Street into the property, I would suggest that it be avoided within 2.5m of the trunk centers of the two Lilly Pilly street trees, if one is to be confident that they will not be exposed to life threatening duress.

No construction is proposed along the North Road frontage. If services are to be routed in from North Road, avoid trenching within 7m of the centre of the pines, or within 5.5m of the centres of the elms, otherwise they should be inserted by horizontal boring at a depth of at least 800mm. These distances should also apply to any service implementation in the footpath.

The ground around the trees should be mulched heavily for distances of at least 6m from the trunks. Sturdy fences should be put up around the trees during the construction process, if the area is to be used for vehicular parking or dropping off of materials."

33. Mr Galbraith also discussed his recommendations for protection of existing trees, including limits on excavation and foundation requirements.

34. I have considered the submissions and evidence, and have conducted an inspection. I have come to the conclusion that a permit should be granted, subject to appropriate conditions, for the following reasons:

* The proposal, including the high front fence, is not inconsistent with many dwellings in the area,

* A number of existing trees on the subject land will be retained,

* Trees to be retained will be incorporated in substantial landscaping which will enhance the development,

* Provision of services to the subject land will not be detrimental to trees on North Road or trees to be retained on the subject land,

* The proposed building, particularly with the further revisions incorporated on Day 2, does not demonstrate unacceptable bulk, respects the character of the neighbourhood, and is appropriate in the neighbourhood setting,

* Vehicular access is now proposed from Foote Street rather than North Road. I consider that this access, including the ramp to the basement parking area, is appropriate,

* Any overlooking concerns can be addressed in a satisfactory manner,

* The proposal satisfies the relevant objectives, criteria and techniques of the Good Design Guide.

35. Ms Bowdern provided draft conditions to be considered in the event that I decided that a permit should be granted. Those draft conditions were addressed by the parties, and I have had regard to the draft conditions and the comments of the parties in settling the conditions.

36. Ms Ellerington was concerned about screening to prevent overlooking to her property. Mr Peake submitted that such a condition was not necessary. I have concluded, because of the distances and the brick garage in the south-west corner of that property that additional screening measures would not be appropriate.

37. Draft Condition 1(g) concerned access from Foote Street to the basement car parking area. I do not consider that a condition with this detail is necessary.

38. Draft Condition 1(i) was a detailed condition for protection of trees to be retained. I consider that it would be more appropriate to require the submission of a Tree Management Plan, which would set out appropriate protection measures having regard to the report of Mr Galbraith. I also consider it appropriate to include a requirement for any special foundations measures to protect trees to be shown on the endorsed plans.

39. For the above reasons this application is allowed subject to conditions. It is appropriate for a permit to be granted, and I will so order.

Civil and Administrative Tribunal Act 1998

Nicholas Day Architects v Bayside CC & Ors [2002] VCAT 946

At a glance

Court

Decision date

Source

Judgment (156 paragraphs)

Nicholas Day Architects v Bayside CC & Ors [2002] VCAT 946 (29 August 2002)

Parties

Legislation Cited (1)