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[2003] VCAT 1365
mixed. The Council’s decision was varied. A permit was directed to be issued for the second-storey addition in accordance with endorsed plans and the Notice of Decision conditions, as amended. Condition 1(a)...
The Tribunal considered an addition to a residence above a Glen Huntly Road shop. It accepted that the area was intended to accommodate more intensive development and that this proposal fitted that policy direction. The adjoining resident’s concerns about the laneway, privacy, shadowing, and parking were considered. The Tribunal found the design generally acceptable, but required clarifications and changes to the permit conditions, including a lower stairwell and specified screening details. It varied the Council’s decision and directed that a permit issue.
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In Nikolakopoulos v Glen Eira CC [2003] VCAT 1365, the Victorian Civil and Administrative Tribunal’s Planning and Environment List reviewed Glen Eira City Council’s decision to grant a planning permit for a second-storey addition to a caretaker’s residence at 1128 Glen Huntly Road, Glen Huntly. The hearing took place on 26 September 2003 before Margaret Baird, Member. The order was made on 29 September 2003.
1 cited instrument linked from this judgment.
The site formed part of the Glen Huntly neighbourhood centre. The ground floor was a liquor outlet, while the existing upper level contained one bedroom and associated living space. The property also had an open area used for car parking, accessed from a rear laneway [4]–[5]. The adjoining property at 2A James Street was a single-storey dwelling addressing that laneway, with habitable-room windows facing it [6].
The proposal was to add 90 square metres at first-floor level, creating an enlarged residence with an additional bedroom, an open kitchen and family room, and a rear balcony. The existing retail area would remain, as would a car space. The addition was proposed at an overall height of 7 metres and with rendered cement-sheeting construction [8]–[9].
The Council issued a Notice of Decision to Grant a Permit on 23 May 2003, subject to 15 conditions [1]. Mr Nikolakopoulos applied for review on 5 June 2003. His concerns, as summarised by the Tribunal, related to the proposal’s relationship with neighbourhood character, potential effects on his adjoining residence through overlooking, shadowing and loss of daylight, and traffic impacts in the rear laneway [2]. At the hearing, he acknowledged that some issues had been addressed by the conditions, including concerns about outlook to the sky, shadowing and overlooking [3].
The Tribunal allowed the review in part. It varied the Council’s decision and directed that a permit issue, subject to amendments to the permit conditions. These included a clarified requirement concerning Condition 1(a), replacement wording for the western-wall tapering requirement in Condition 1(e), an express requirement that screening details be provided to the Responsible Authority’s satisfaction, and a new requirement to lower the stairwell by at least 500 mm and reposition the window [order].
The Tribunal began with the planning context. The land was in a Business 1 Zone. The Scheme’s provisions, as described in the reasons, contemplated neighbourhood centres as places for small-scale convenience retailing and service uses, and encouraged higher-density housing in commercial areas, including shop-top housing [11], [16]. The Tribunal also took account of the State and Local Planning Policy Framework, the Glen Eira Municipal Strategic Statement, the Commercial Centre Policy, Clause 65.01, and Melbourne 2030 [13]–[14].
That policy setting mattered because the proposal retained the shop and its frontage while enlarging the residence above. The Tribunal considered this to be the kind of development the Council was seeking in those areas [18]. It treated the anticipated change in built form as part of the planning context: areas identified for more intensive development were expected to change, partly to reduce pressure for change in more sensitive places [17].
That did not mean the interface with the neighbouring residence could be disregarded. The Tribunal accepted that the laneway’s character might be affected, describing it as a secondary “streetscape” [20]. It nevertheless found that the proposal’s bulk and mass were not unreasonable in the context of taller forms already present and the prospect of more intensive development behind retail premises [20]. The existing and planned character of the area therefore informed the assessment, rather than a requirement that the addition match the neighbouring single-storey dwelling.
The Tribunal also identified the interface as sensitive. It relied on the Council’s proposed changes to the rear of the building, including a setback of 3.65 metres from the rear boundary, which produced about 6.6 metres of separation to the boundary of the applicant’s property. It noted articulation from the balcony and that the stairwell was the element closest to the laneway [21]. Those features supported its view that the proposal was generally acceptable, but the Tribunal considered a further design adjustment appropriate: lowering the stairwell by at least 500 mm to create a modest step down and additional articulation [23].
The Tribunal did not require different materials. It was not persuaded that the proposed rendered cement sheeting was unacceptable. It observed that lighter materials and colours would be less visually dominating than brick, but did not find a basis to require a change. Similarly, although some side-wall detailing could break up the wall expanse, the Tribunal did not require it [24].
Amenity concerns were addressed in a targeted way. The applicant accepted that screening proposed by Council would alleviate his overlooking concerns, but wanted more information about the screening devices. The property owner explained that frosted opaque panels were intended. The Tribunal considered that the details could be supplied to Council so it could assess the form and degree of transparency, and amended the condition to make that requirement clear [26]–[27]. It separately recorded that shadowing satisfied Clause 54 standards [28].
On parking, the applicant was concerned that a third bedroom could create a need for another on-site space. The Tribunal observed that two moderate-sized vehicles could physically fit, although minor modifications might be needed to satisfy technical Scheme requirements. Because the permit conditions required compliance with endorsed plans, it did not consider parking a reason to vary the proposal or conditions [29].
The decision is an application of the planning framework described in the judgment, not a comprehensive statement of the law before and after the case. The source text identifies the relevant statutory and Scheme provisions, but does not set out their full wording or analyse a conflict between competing legal authorities.
Before the decision, the Council had issued a Notice of Decision to Grant a Permit subject to 15 conditions. The applicant’s section 82 review put the Council’s decision before the Tribunal. The reasons explain that the assessment involved the Business 1 Zone and the relevant Scheme policies and decision guidelines, including consideration of the relationship between commercial and residential areas, streetscape, solar access, parking and movement [1], [11], [13]–[15].
The judgment’s contribution on the facts before it was to explain how those considerations operated together. The policy support for higher-density housing did not displace the need to assess the adjoining residential interface. Instead, the Tribunal accepted the principle of additional housing in the centre while scrutinising the rear massing, visual relationship to the laneway, screening, and stairwell height [16]–[23], [26]–[28].
After the review, the Council’s decision was varied and a permit was directed to issue with amended conditions. The order did not remove the relevant planning controls. It adjusted the conditions to address design and amenity details in this particular application. The judgment does not state that the same outcome must follow for other sites, and it does not establish a universal measurement or design rule for laneway-facing development.
The Tribunal also referred to section 80 in discussing a possible challenge to Condition 2. It noted that the respondent had not brought a conditions appeal, and therefore did not determine the condition’s legality or enforceability [30]. That observation should be read narrowly: the reasons record the issue and the procedural context, rather than deciding the legal validity of the condition.
At paragraph [16], the Tribunal said that “in principle” expanded upper-level residential facilities were acceptable in light of the Business 1 Zone and specified policies. In plain English, the location’s planning purpose supported adding residential accommodation above the commercial premises. The phrase “in principle” is important: it did not answer every design or amenity question.
At paragraph [18], the Tribunal said the proposal was “exactly the type of proposal that Council is seeking in these areas.” That conclusion followed from the continued retail use and the enhanced residential facilities above it. It was a finding about how the proposal fitted the policy direction described in the Scheme, not a statement that every similar proposal would be acceptable.
At paragraph [20], the Tribunal accepted that the laneway’s character might be impacted and treated it as a secondary streetscape. In plain English, even though the laneway was not the main commercial frontage, it still mattered because the adjoining dwelling addressed it and future properties might do so too. The Tribunal then balanced that concern against the existing taller building forms and expected intensification.
At paragraph [21], the Tribunal identified the proposal’s rear setback and the separation to the neighbouring property, as well as the balcony’s contribution to façade articulation. These were concrete features supporting its assessment of the interface. They did not eliminate the need for conditions: the Tribunal went on to require the stairwell to be lowered [23].
At paragraph [27], the Tribunal considered that screening details could be provided to Council so that the appropriate form and degree of transparency could be assessed. In practical terms, the Tribunal did not treat the lack of screening detail at the hearing as requiring refusal. It addressed the issue through an amended condition requiring those details to be supplied.
At paragraph [31], the Tribunal concluded that the proposal was generally acceptable with the changes sought by Council and one further alteration. The operative result appears in the order: the Council’s decision was varied, and the permit was directed to issue subject to amended conditions.
The case is most relevant as an example where several features appear together: a proposal for residential accommodation above a commercial premises; land in a neighbourhood centre and Business 1 Zone; planning policies encouraging higher-density housing; and an adjoining residential property affected by a rear laneway interface [4]–[11], [16]–[18].
It may be useful when examining how the Tribunal in this case balanced policy support for intensification against a neighbour’s concerns about visual bulk and amenity. The reasons show that the Tribunal considered the existing built form and anticipated development, but still examined the specific setback, separation, articulation, screening and stairwell design [20]–[27].
The case also illustrates a permit-condition approach to matters that could be addressed through further design detail. Here, the Tribunal amended the screening condition and required a lower stairwell, rather than treating those issues as grounds to prevent the permit from issuing [23], [27]. The judgment does not establish that conditions will always be sufficient; it records the Tribunal’s assessment of this proposal and the conditions before it.
Its relevance is more limited where the planning controls, policy context, built form, site geometry, or residential interface materially differ. The decision refers to the Scheme provisions applying to this site and to the particular 3.65 metre setback and approximate 6.6 metre separation [11], [21]. It does not lay down a general setback requirement.
The supplied judgment contains no discussion of later court or tribunal decisions applying, following, distinguishing or reconsidering Nikolakopoulos. No subsequent treatment can therefore be identified from the text provided. The judgment itself does not cite other cases, and the precedent-relationships field is accordingly empty.
The decision should consequently be described here as a fact-specific VCAT planning decision, rather than as a rule whose later judicial reception can be assessed from this source. The reasons do provide a structured account of the planning considerations the Tribunal applied in 2003, but the supplied material does not establish how later decision-makers have treated those considerations or this decision.
The judgment leaves some matters unresolved. First, it does not determine the legality or enforceability of Condition 2. It records the applicant’s concern, notes that the respondent did not challenge the condition through a section 80 conditions appeal, and then explains the Scheme definition of a caretaker’s house and the possibility that a separate-dwelling use might trigger a permit [30]. The Tribunal did not decide the condition’s validity.
Second, the reasons do not specify the ultimate screening design. They state that details were to be provided to the Responsible Authority, which would assess the form and degree of transparency [27]. The permit condition therefore left a design detail for subsequent assessment.
Third, the Tribunal’s discussion does not quantify the visual effect of the laneway-facing addition beyond the recorded heights, setbacks, separation and articulation. It accepted that the laneway character might be affected, but found the bulk reasonable in context [20]–[21]. The reasons do not set out a general threshold for when such an effect becomes unacceptable.
Fourth, the parking discussion notes that technical Scheme requirements might require minor modifications, but does not identify those modifications [29]. The Tribunal considered the matter insufficient to require a change to the proposal or conditions before it.
Finally, the judgment does not address later changes to the Glen Eira Planning Scheme or assess the proposal under current controls. Its findings concern the provisions identified as applying to the application at the time [11]–[14]. The supplied text also does not provide subsequent decisions interpreting the same policies or discussing this case.
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Application under s. 82 of the Planning and Environment Act 1987; Glen Eira Planning Scheme; Business 1 Zone; Double Storey Addition to a Caretaker's Residence; Neighbourhood Character; Visual Impact to Laneway; Impacts on Amenity; Visual Bulk; Loss of Privacy; Loss of Daylight; Shadowing; Traffic Impacts; Use of Laneway.
Construct a second storey addition to the existing caretaker's house
The decision of the Responsible Authority in permit application no. GE/PP-15084/2002 is varied. A permit is granted and is directed to be issued. The permit relates to the land at No. 1128 Glen Huntly Road, Glen Huntly. The permit will allow the construction of a second storey addition to the existing caretaker's house in accordance with the endorsed plans and subject to the conditions set out in the Notice of Decision dated 23 May 2003 with the following variations:
* Condition 1(a) is amended by the addition of the words "Details of...." at the commencement of the part.
* Condition 1 (e) is deleted and replaced with the following:
(e) The western elevation wall adjacent to the patio/balcony to be tapered down to a minimum of 1.7 metres above finished floor level.
* Part (g) in Condition 1 is amended by the addition of the following : "Details of screening measures are to be provided to the satisfaction of the Responsible Authority".
(h) The height of the stairwell is to be lowered by a minimum of 500mm, with consequent re-positioning of the window.
Mr M Nikolakopoulos appeared on his own behalf as the Applicant for Review.
Ms S Tangalakis, Town Planner, appeared on behalf of the Responsible Authority.
Mr B Asserif appeared on behalf of the Respondent/permit applicant. Mr Asserif, the property owner, was also in attendance.
The parties presented written and/or oral submissions. A number of plans, photographs and other documents were tendered to the Tribunal. All of the documentary material presented is retained on file and all submissions have been taken into consideration. The subject site and locality were inspected by the Tribunal subsequent to the Hearing.
1. This is an Application made under Section 82 of the Planning and Environment Act 1987 by Mr M Nikolakopoulos to review a decision by the Glen Eira City Council ("the Council") to determine to grant a permit in application no. GE/PP-15084/2002. A Notice of Decision to Grant a Permit was issued by the Council on 23 May 2003 subject to 15 conditions.
2. The Application for Review was lodged on 5 June 2003 on grounds that can be summarised as expressing concern about the inconsistency of the proposal with neighbourhood character; potential impacts on the amenity of the adjoining residence at No. 2A James Street particularly in terms of overlooking, shadowing and loss of daylight; and traffic impacts particularly in a rear laneway.
3. At the Hearing, Mr Nikolakopoulos explained that some of his concerns were addressed by the conditions included on the Notice, notably in terms of loss of outlook to the sky, shadowing impacts and overlooking.
4. The subject site is part of the Glen Huntly neighbourhood centre. It is located on the south side of Glen Huntly Road, east of the intersection with James Street and west of the railway line. The land has a frontage of 6.1 metres and a depth of 33.2 metres resulting in an area of 207 square metres.
5. The building on the land is two storey to Glen Huntly Road and single storey to the rear. The ground level is used as a liquor outlet (Glen Huntly Cellars) with the upper level comprising one bedroom and associated living area. There is an open area to the south of the building that is available for car parking with access from a 2.95 metre wide lane to the rear. I was advised that Mr Asserif (Snr) operates the existing business and resides on the premises.
6. The review site abuts a single storey dwelling at No. 2A James Street. That is a unit constructed to the rear of a dwelling at No. 2 James Street. No. 2A James Street addresses the lane. As well as its main entry and garage door, No. 2A James Street has two habitable room windows facing toward the lane. One is to a dining room and another is to a living room which is setback by 1.1 metres from the laneway. The primary open space associated with the unit is located to the south of the dwelling. The front living room was also said by Mr Nikolakopoulos to have an outlook to that courtyard. I was advised that the dwelling was erected following a permit issued by the Council in 2000.
7. Other properties to the south are part of an established residential area.
8. It is proposed to extend the building at the first floor level. The lower level would retain the existing retail area and the proposal provides for an enlarged upper level residence. The additional 90 square metres of accommodation would provide an additional bedroom and open kitchen/family room with a rear balcony. A separate stairwell is proposed from the rear of the building. A car space remains.
9. The overall height of the proposed addition is 7 metres and is intended to be constructed of rendered cement sheeting.
10. Conditions included on the Notice require changes to the proposal. Those changes include screening to the balcony, relocation of an external stairwell from the south to the east of the building, relocation of a tilt panel door to the south of the building, tapering of the western wall to 1.7 metres, changes to increase the setback from the rear boundary to 3.65 metres, and screening to the stairwell.
11. The subject site is located in a Business 1 Zone under the provisions of Clause 34.01 of the Glen Eira Planning Scheme ("the Scheme"). A permit is required for buildings and works in association with the use of the upper level of the building as a caretaker's residence (or a dwelling). The decision guidelines require consideration of matters including (in so far as relevant to this Application):
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.
* The interface with adjoining zones, especially the relationship with residential areas.
* The streetscape, including ... the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces ...
* The design of buildings to provide for solar access.
* The objectives, standards and decision guidelines of Clause 54 and 55...
12. A Development Contributions Plan Overlay applies to the land.
13. A number of other Clauses of the Scheme are relevant to the consideration of the Application and have been taken into account, including:
s State Planning Policy Framework - Clauses 14, 15, 16, 17 and 19.
s Local Planning Policy Framework - Clause 21 (Municipal Strategic Statement) and the Commercial Centre Policy at Clause 22.04.
15. Having inspected the site and locality, considered the submissions presented by the parties, and examined the applicable policies and decision guidelines within the Scheme, I set out my findings in relation to the key issues below. Those issues, which I address in turn, are:
s the relationship of the proposed development to the streetscape ["lane-scape"] and neighbourhood character.
s potential impacts on the amenity of adjoining residents notably in terms of visual bulk.
16. In principle, the development of the subject site with expanded upper level residential facilities is acceptable having regard to the purpose of the Business 1 Zone and the policies at Clauses 17, 21 and 22.04. Specifically, the Glen Eira Planning Scheme states that neighbourhood centres are intended to serve as a focus for individual neighbourhoods and provide a mix of small scale convenience retailing and service uses. Higher density housing is encouraged within the commercial areas of these centres, including in the form of shop top housing. That direction is reinforced in Melbourne 2030.
17. As an area targeted for more intensive forms, change in built form will inevitably occur. Indeed, areas that have been identified and earmarked by the Council as being appropriate for higher intensity development seek to relieve some pressure on other more sensitive locations where a lesser degree of change is advocated. The proposal must be considered in this planning context.
18. The proposal retains the retail use and frontage and would enhance the residential facilities above. In policy terms, it is exactly the type of proposal that Council is seeking in these areas.
19. While the proposed additions were described as "modest" by the Council and Respondent, Mr Nikolakopoulos expressed concern about the bulk and mass as presented to the laneway (street) and to his residence. He referred to the limited extent to which the double storey would be setback from the laneway contrasting with the rear of two other taller elements to the rear of the row fronting this section of Glen Huntly Road. Mr Nikolakopoulos also was concerned about the materials and finishes to be used. He tendered a plan showing changes that could be made to address his concerns in relation to the building form, involving an increased setback of the upper level from the southern site boundary.
20. I accept Mr Nikolakopoulos' concern that the character of the laneway may be impacted and, in my view, this is a secondary "streetscape". Nonetheless, his dwelling does address it as others might into the future. Even so, I am not persuaded that the bulk and mass is unreasonable taking into account some higher building forms already in place and the expectation of more intensive development at the rear of the retail premises if the policies of the Planning Scheme are successfully implemented.
21. The review site is at a sensitive interface however, with the changes sought by the Council to modify the mass at the rear, I am satisfied that the proposal is generally acceptable. The development would be setback from its rear boundary by 3.65 metres, resulting in a separation of some 6.6 metres to the boundary of Mr Nikolakopoulos' property. There is some articulation proposed by the design in the form of the balcony, with the stairwell being the closest element to the laneway. The balcony has a depth of around 3 metres, providing some additional visual relief in building façade.
22. I note that Condition 1(e) requires part of the western wall to be tapered, although the wording is not clear and requires clarification.
23. I am persuaded that an additional change to lower the height of the stairwell to the rear of the addition would be beneficial in providing a modest step downwards and additional articulation. I understand from Mr Asserif that a reduction of around 500-600mm can be achieved at this point, given the function of the space as a stairwell, and I will require that as a permit condition.
24. I am not persuaded that the materials proposed are unacceptable and I will not require any change to that aspect of the proposal. The use of lighter materials and colours would result in a less dominating impact when contrasted with a development finished in brick, although brick would also have been acceptable. Some detailing along the side walls could be considered to break the expanse to some extent, although I do not find a basis to require such a change.
25. I record that the proposal would have no visible impact on the character of the Glen Huntly Road and retail centre.
26. Mr Nikolakopoulos conceded that the measures proposed by the Council for screening would alleviate his concerns about the potential for overlooking. However, he expressed concern about a lack of information as to the details of the screening devices. Mr Asserif explained the intention for frosted opaque panels.
27. I am satisfied that the details of screening devices can be provided to the Council to ensure that an appropriate form and degree of transparency is achieved. However, having reviewed the wording of Condition 1, I consider that some minor changes to parts (a) and (g) are necessary for clarity.
28. Shadowing impacts satisfy the standards at Clause 54.
29. Mr Nikolakopoulos expressed concern about the conversion of space within the building to provide for a third bedroom, in so far as an additional on-site car parking space would then be required. I observe from the plans that it would be physically possible to park two moderate sized vehicles within the site, albeit the technical requirements of the Scheme may not be able to be met without some additional minor modifications. Given that the permit conditions require compliance with the endorsed plans, I do not find this to be a particular issue or a cause for variations to the proposal or proposed permit conditions.
30. Mr Nikolakopoulos referred to Condition 2 on the Notice and questioned the ability to police the condition to ensure that the commercial use and caretaker's residence are in a single occupancy. While that may be a valid issue, as might the legality of the condition, it was not challenged by the Respondent through a conditions appeal (Section 80 of the Planning and Environment Act 1987). The definition of a caretaker's house at Clause 74 of the Scheme is "a dwelling on the same site as a building, operation, or plant, and occupied by a supervisor of that building, operation or plant". The works allowed by this permit are linked with that use of the premises and the condition reflects the current operation described by Mr Asserif. If a change of use is sought (eg. for use as a separate dwelling) then the provisions of the Planning Scheme would be required to be complied with. That may trigger a planning permit.
31. In conclusion, the interface between residential and commercial areas always need to be carefully addressed and it is reasonable to allow businesses and associated/complementary activities within the Business 1 Zone to operate and expand where any impacts are within acceptable levels or can be ameliorated. The proposed development is generally acceptable with the changes sought by the Council with one minor alteration.
32. For the reasons outlined above, I will allow the Application for Review in part and direct that the decision made by the Responsible Authority be varied.
Nikolakopoulos
Glen Eira CC [2003] VCAT 1365
The Council’s decision was varied. A permit was directed to be issued for the second-storey addition in accordance with endorsed plans and the Notice of Decision conditions, as amended. Condition 1(a) was amended for clarity; Condition 1(e) was replaced to require the western elevation wall beside the patio/balcony to taper to at least 1.7 metres above finished floor level; Condition 1(g) was amended to require screening details to the Responsible Authority’s satisfaction; and a new Condition 1(h) required the stairwell height to be lowered by at least 500 mm, with the window repositioned.