respondent. The application for review was refused and the responsible authority's decision to refuse a permit was affirmed. No permit was granted.
Key principles
On the circumstances of this proposal, the proposed subdivision and building envelope were unacceptable because they would create an expectation of a large, two-storey dwelling...
For this proposed undeveloped lot of 313 square metres, the Tribunal considered a building envelope appropriate to assess under clause 56.04-2, Standard C8, and consistent with...
The Tribunal's assessment of the proposed subdivision had to consider both heritage significance and the likely future development enabled or anticipated by the proposed building...
Issues before the court
Whether the proposed subdivision was compatible with the heritage significance of the site and area.
Whether the subdivision should include a building envelope for the proposed lot.
Whether the building envelope's scale and setbacks were acceptable in relation to the existing dwelling and streetscape.
Plain English Summary
The Tribunal rejected the proposal to create a small rear lot because the building envelope suggested a substantial two-storey house in a heritage area of generally larger lots and predominantly one-storey development. The Tribunal assessed the likely future building as part of the subdivision's effects, rather than treating the application as only a boundary change. The review was refused and the Council's refusal remained in place.
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Deep Dive
2,273 words · generated 30/09/2026
What happened
Nolan Projects Pty Ltd applied for review under section 77 of the Planning and Environment Act 1987 after Boroondara City Council refused a permit for a two-lot subdivision at 50 Highfield Road, Canterbury. The Tribunal heard the matter on 31 March 2009. Russell Byard, Senior Member, made orders on 4 May 2009.
The proposed subdivision would keep the existing house on a 579-square-metre lot and create a new lot of 313 square metres by subdividing off the rear garden. The whole site was described as about 863 square metres in the reasons. The new lot would have a 17.3-metre frontage to Tyndall Street and a depth of 18.29 metres. It was within the Residential 1 Zone and Heritage Overlay 145.
Cited legislation
1 cited instrument linked from this judgment.
The existing house was built in 1920 and had been assessed as contributory from a heritage perspective. A two-storey rear extension added in the 1980s was described as non-contributory. The proposed subdivision plans included a three-dimensional envelope for a future dwelling. That envelope contemplated a two-storey form across much of the width of the new lot, with a smaller first-floor area than the ground-floor area.
The application and review were amended by consent to name Nolan Projects Pty Ltd as applicant, replacing entities that had acted as agents. The plans were also amended by consent to substitute revised plans identified as 12614 Version 03. The Tribunal nonetheless refused the review and affirmed the Council’s refusal. No permit was granted.
The dispute was not simply whether the boundary could be drawn to make a second lot. The Tribunal treated the likely building and its effect on the heritage place and streetscape as central. It considered the size and layout of the proposed lot, the building envelope, the corner location and the pattern of development in the surrounding area.
Why the court decided this way
The Tribunal’s main concern was the relationship between the small proposed lot, the indicated two-storey building and the heritage character of the area. The subject site and Tyndall Street along the site’s depth were within Heritage Overlay 145. The reasons also explain that the site was on a corner, making the rear part more exposed to views from within the heritage area than a rear portion of a non-corner lot would be.
The area was described as having substantial residential allotments, generally developed with good-quality, mostly single-storey dwellings set within gardens and with side setbacks. There had been some medium-density redevelopment, including nearby examples, but the Tribunal drew a distinction between considering those developments as part of existing neighbourhood character and treating them as a reason to dilute heritage considerations. It referred to the new local heritage policy, introduced on 27 November 2008, which directed heritage assessment towards significant and contributory components rather than non-contributory elements.
The existing house was contributory. The Tribunal considered that the proposed lot differed from the established subdivision pattern and that its building envelope anticipated a substantial two-storey form on a relatively small site. It accepted that a corner lot can have practical advantages for a second dwelling, including a separate street frontage and less need for a driveway past the existing house. But those advantages did not remove the streetscape and heritage concerns.
The relevant heritage policy was clause 22.05 of the Boroondara Planning Scheme. Clause 22.05-2 included objectives concerning retention and conservation of significant or contributory places, respect for heritage significance in new development and subdivision, and an assessment based on significant or contributory fabric rather than non-contributory elements. Clause 22.05-3 specifically addressed subdivision. It included policies to ensure that lot layout and possible future development did not adversely affect heritage significance, and that a subdivision retained a development pattern where that pattern contributed to the place’s significance.
The policy also stated that where new undeveloped lots were proposed without an accompanying development proposal, the subdivision application should be accompanied by building envelopes. The Tribunal considered a defined envelope useful because it allows the authority or Tribunal to assess what is realistically contemplated. An envelope may reduce uncertainty, but it can also create an expectation that a later owner can develop the whole envelope. The Tribunal was concerned that a subdivision without a meaningful indication of future development would leave too much uncertainty about what could follow.
The proposed lot measured 313 square metres, placing it within the 300-to-500-square-metre range addressed by clause 56.04-2, Standard C8. The provision, as quoted in the reasons, said that such lots should contain an envelope consistent with an approved development or, if no development had been approved, contain a building envelope and be able to contain a 10-metre-by-15-metre rectangle, subject to the stated alternative where a boundary wall is nominated. The Tribunal saw this provision, alongside the heritage policy, as supporting the use of a building envelope in this case.
The envelope itself remained problematic. It allowed a two-storey dwelling over much of the lot. The Tribunal accepted heritage consultant Graeme Butler’s concern that the existing rear extension already affected the character and that adding a new two-storey infill building could create a pocket of apparent two-storey houses on small lots in a predominantly one-storey precinct. This was particularly important because the new building would be visible from nearby streets and from within the heritage area.
The Tribunal noted possible design approaches raised by the heritage consultant, including an attic-style upper level or a form resembling a two-storey outbuilding with ground-floor walls. It did not find that those alternatives would necessarily obtain approval. Rather, it recorded them as possibilities that could be considered, in contrast to the present envelope, which did not secure a more modest form.
Before and after state of the law
The judgment does not set out a comprehensive account of the law before and after the decision. It is therefore safest to describe the decision as applying the planning scheme provisions before the Tribunal, rather than treating it as a general change in the law.
The reasons record that the updated clause 22.05 heritage policy was introduced on 27 November 2008, after the permit application had been lodged and considered by the Council. The Tribunal nevertheless treated that policy as relevant to its assessment. The policy set out objectives and subdivision considerations concerning the effects of the lot layout and possible future development, retention of development patterns that contribute to heritage significance, and maintaining appropriate settings such as gardens and landscaping.
The decision also applied clause 56.04-2, Standard C8, to the proposed 313-square-metre lot. It did not decide that every subdivision of a lot in this size range must be refused or that every such lot must have a particular built form. Instead, it considered the provision’s building-envelope requirement in combination with the site’s heritage overlay, the local policy, the lot pattern and the proposed envelope.
A key point in the reasoning is that the Tribunal did not treat subdivision as divorced from likely future development. It considered the envelope because it indicated the scale and form of development that the subdivision was intended to facilitate. That does not mean the judgment establishes that a subdivision application always requires a fully designed future dwelling. The reasons distinguish between a specific building proposal and an envelope, and discuss the benefits and limitations of both.
The decision is fact-specific. Its reasoning rests on the described heritage place, the contributory dwelling, the small new lot, the corner exposure, the surrounding development pattern and the envelope’s two-storey form. The judgment does not purport to establish a universal numerical test for acceptable lot size or building height in heritage areas.
Key passages with plain-English translation
The Tribunal explained why it preferred to have a building envelope available for assessment: “In these circumstances, prudence would indicate caution. I am not greatly attracted to the idea of granting a subdivision in this case without even the indication of a building envelope.” (Reasons, “Merits of Prescribing a Building Envelope”, paragraph 9.)
In plain English, the Tribunal considered it difficult to assess a sensitive subdivision without some indication of what might be built. The envelope could help show the development consequences of creating the lot, although the Tribunal also recognised that an envelope does not necessarily define the final building.
The policy wording quoted in the heritage discussion stated: “Ensure that the lot layout and possible future development on the proposed lot does not adversely affect the cultural heritage significance of the place.” (Reasons, “Heritage”, paragraph 4.)
In plain English, heritage assessment was not limited to the new boundary lines. It included the effect of the lot arrangement and the potential future building on the heritage place.
The Tribunal stated: “I share the concern that the proposed subdivision, and the proposed building envelope, allows and creates an expectation for a two storey building that would be excessive for its site and rather dominating the existing building and the streetscape.” (Reasons, “Heritage”, paragraph 9.)
This is the central application of the planning considerations to the proposal. The Tribunal considered that the envelope was not neutral: it indicated a substantial development expectation on a small lot and risked affecting both the existing contributory house and the streetscape.
The Tribunal separately discussed the proposed setbacks. It considered that the front setback at either level should not be less than the existing house’s 4.5-metre side setback from Tyndall Street. It added that, if this were the only concern, it might be resolved by a suitable condition. (Reasons, “Heritage”, paragraph 12.) In plain English, the setback issue was not the decisive concern; the wider problem was the building form and its heritage impact.
What fact patterns trigger this precedent
The decision is most relevant to planning assessments involving a proposed subdivision of a residential site in a heritage overlay where a new, undeveloped lot is intended to accommodate a future dwelling. Its reasoning is particularly pertinent where the lot is small compared with the established pattern, the existing dwelling is significant or contributory, and the subdivision plans include an envelope that anticipates a substantial building.
Visibility was important here. The site was a corner allotment, and the Tribunal considered that the rear lot would be more exposed to views from within the heritage area than a rear lot behind a conventional mid-block site. Similar assessments may need to account for the site’s position and visibility, rather than relying only on lot dimensions or the presence of a street frontage.
The decision also shows why the relevant character evidence should be separated into different questions. The reasons accepted that newer developments formed part of existing neighbourhood character. But the Tribunal considered that heritage assessment under the local policy focused on significant and contributory components, rather than treating non-contributory development as a basis for expanding discordant development.
The decision is less directly informative where there is no heritage overlay, where the relevant policy is different, where the existing building is not contributory, or where the proposed subdivision is accompanied by a specific building design materially different from the envelope in this case. The judgment does not determine how those different circumstances should be resolved.
How later courts have treated it
The supplied judgment contains no information about later cases considering or applying this decision. It cites no later judicial treatment, and the available text does not establish whether a later court or tribunal followed, distinguished or otherwise discussed it.
The reasons do refer to unspecified previous Tribunal cases about whether building envelopes should be required or disapproved. However, no case names or citations are provided in the judgment text supplied here, and the Senior Member does not identify those authorities in the reasons. The decision’s treatment of those cases therefore cannot be analysed from this text alone.
The judgment also quotes a 2006 Lovell Chen statement of significance and a heritage consultant’s report. Those are not identified as judicial precedents. Their role in the reasons was evidentiary and contextual, not as cases establishing legal rules.
Accordingly, the decision can be described from the supplied source as a VCAT merits decision applying the Boroondara Planning Scheme to a particular proposal. A research review of subsequent treatment would require additional sources beyond this judgment.
Still-open questions
The reasons do not determine whether a less intensive envelope, such as an attic-style form or a design resembling a historic outbuilding, would have been approved. The heritage consultant regarded these as possibilities worth considering, but neither the Council nor the consultant guaranteed approval. The Tribunal likewise did not decide the acceptability of a revised design of that kind.
The decision also does not set a general threshold for how small a lot may be in a heritage area. The Tribunal found the 313-square-metre lot problematic in its particular context, including its divergence from the established pattern and the proposed two-storey envelope. It did not hold that a lot of that size is inherently unacceptable.
The Tribunal noted that the proposed front setback raised concern and might be addressed by a condition if it stood alone. The decision does not specify the form or terms of such a condition because the central heritage concerns independently supported refusal.
Nor does the judgment resolve the broader question of when an authority should assess a subdivision together with a detailed dwelling design rather than an envelope. It explains the practical advantages of a specific design and the role of an envelope, but leaves the appropriate level of detail dependent on the circumstances and the applicable planning scheme provisions.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Judgment (17 paragraphs)
[1]
The applicant company has sought planning permission to subdivide an existing residential allotment so as to retain the existing house on one lot and to create a new lot for a new dwelling by subdividing off the rear garden. The responsible authority has refused to grant the planning permit sought for the subdivision on several grounds. Nevertheless, the central issue relates to heritage considerations. The land and area is subject to a heritage overlay. Neighbourhood character and streetscape also come into consideration.
[2]
The site is a substantial residential allotment located on the northeast corner of the intersection of Highfield Road (which runs north to south) with Tyndall Street (which runs east to west). Tyndall Street forms a "T" intersection with Highfield Road. Tyndall Road forms the stem of the T running east from Highfield Road.
The site is set within an extensive residential area south of Canterbury Road and southeast of the Maling Road Shopping Centre.
It is an area of substantial residential allotments developed for residential purposes in the pre first world war Edwardian period and with some further development between the wars. The broader area includes some late Victorian housing.
Allotment sizes vary somewhat, but within a relatively narrow band of variation. For example, allotments like the review site, fronting the east side of Highfield Road, are generally a little larger than those opposite fronting the west side of that street.
The original development was of reasonably good quality generally single storey dwellings set in substantial allotments with front and back gardens and side setbacks. There has been some intrusion of medium density redevelopment with consequent subdivision into smaller allotments within the broad general area of this part of Canterbury and stretching to the east towards and into Surrey Hills. Such development has been more common in the area to the east of the review site which is outside the Heritage Overlay 145 area. Nevertheless, there are some examples within the Heritage Overlay area and in relatively close proximity to the review site. Examples are the properties at 40, 42 and 46 Highfield Road. The responsible authority, and its heritage consultant and expert witness (Mr Graeme Butler who gave evidence in this case), contend that these intrusions should be disregarded for the purposes of making assessments in relation to heritage considerations. They were approved for two dwelling developments prior to the introduction of the heritage overlay. More recently, on 27 November 2008, there was a substantial amendment to the Heritage Policy in the Local Planning Provisions of the Boroondara Planning Scheme. This new policy is clause 22.05 of the Boroondara Planning Scheme. These provisions were introduced into the planning scheme after the permit application was lodged and after it was considered by the responsible authority, nevertheless, they are relevant to my assessment of the case. Amongst the objectives now appearing in clause 22.05-2 there is an indication that evaluations for heritage purposes are to be based on the characteristics of significant and contributory components rather than any non-contributory elements that may exist in the area.
Mr Bowden, the town planner who appeared on behalf of the applicant company, is right to point out that these so called non-contributory newer developments are part of the neighbourhood and part of the existing neighbourhood character. That is so, and are no doubt relevant to that extent in relation to assessments of neighbourhood character and compatibility with neighbourhood character. Nevertheless, heritage considerations are important here and elsewhere in Boroondara because of valuable heritage elements that exist and which are sought to be retained and conserved. There is an important interrelationship between neighbourhood character, streetscape and heritage considerations in relation to heritage places. It is clear that the local policy wants to avoid an expanding compromise of heritage values by allowing an expansion of discordant developments on the basis of a few that predate the introduction of the heritage overlay control.
The Heritage Overlay area 145 is known as the Maling Road Shopping Centre and Residential Environs Canterbury area. Thus it includes the Maling Road and Canterbury Road areas, but also residential areas extending to and including both sides of Highfield Road. In fact, the eastern boundary of the HO145 Heritage Place runs along the rear boundaries of the properties, including the review site, which front the eastern side of Highfield Road. This puts the review site at the eastern edge of that area, and at its interface with the non-heritage area further to the east.
Nevertheless, the review site itself and Tyndall Street for the depth of the review site are within the heritage area and the heritage overlay, as is Highfield Road. Furthermore, because the review site is on the corner between those two streets, even the rear part of it is much more exposed to view from within the heritage overlay area than would be the case for a neighbouring property fronting the side of Highfield Road, but which is not on a corner. The corner site, with its adjacent roads, is much more exposed to views, including oblique views from within the heritage area.
A corner site can often be a favourable opportunity for a second dwelling from a site layout point of view. It enables the second dwelling, if placed behind an existing one, to have its own frontage to a street and it avoids the need to have a driveway passing an existing house to reach a proposed new dwelling on the rear part of a block. It also saves space that might otherwise have to be devoted to driveways. Nevertheless, whilst there are siting advantages from that point of view, there are nevertheless disadvantages in relation to streetscape where heritage considerations are of importance.
Mr Butler quotes from a Lovell Chen 2006 Statement of significance in relation to this area or the residential parts thereof in the following terms:
The place is a highly representative Victorian and Federation area residential precinct with individually notable houses. The precinct is interspersed with strong and well preserved interwar elements that offer an historic and architectural contrast and create streetscapes of high aesthetic interest.
The precinct contains well preserved residential and commercial examples from the 1920's - 1930's, which reflect the premier status of Camberwell as an urban growth area during that period.
[3]
The review site is a substantial residential allotment with a frontage of 18.29 metres to the east side of Highfield Road and 48.77 metres to the north side of Tyndall Street. It has an area of 863 m2. There is a substantial brick house erected on the front two thirds of the lot. This is a between-wars house constructed in 1920. It has been assessed as a contributory structure from a heritage point of view. A two storey extension was added to the rear of this property in the 1980s. This extension is not contributory.
It is proposed to subdivide off the rear garden of the house so that lot 1 would retain the existing house. The existing house would have a lot frontage of 18.29 metres to Highfield Road and a side abutment of 31.47 metres. Its area would be 579 m2.
This leaves a proposed lot 2 with a frontage of 17.3 metres to the north side of Tyndall Street, a depth of 18.29 metres and an area of 313 m2.
The existing side setback of the existing house from Tyndall Street is 4.5 metres. Front setbacks, both in Highfield Road and further east in Tyndall Street are more substantial at 6.5 to 7 metres. However, the review site, and the proposed lot 1, front Highfield Road so that the Tyndall abutment is a "sideage" where lesser setbacks are common. In fact, 4.5 metres is a reasonably generous side setback. Lesser distances are common enough in other localities. The proposed plan of subdivision, in its revised form, is an improvement on the original plan. It envisages a three dimensional building envelope for a proposed new house to be accommodated on the new lot 2. This building envelope accommodates a smaller floor area at first floor level, as compared with a larger envelope for single storey construction below. Nevertheless, the whole envelope definitely envisages a two storey dwelling across most of the width of the block, rather than a single storey dwelling or a single storey dwelling with some uttilage of an attic or roof space at first floor level.
The front setback of the envelope at first floor level would be 4.5 metres. That matches that of the existing house, and the two storey element thereof. However, at ground floor level the front setback of the envelope comes to within 3 metres of the street frontage.
On the western side, facing the proposed boundary to be created with lot 1, the setback would be 2 metres at first floor level and 1 metre at ground floor. The ground floor element wraps around the north side of the first floor element to be setback at 3 metres from the northern rear boundary although this widens to 5 metres to afford a secluded private open space of 69 m2.
[4]
The proposed plan of subdivision includes the idea of prescribing a building envelope for the new lot. I have just described the proposed dimensions of it.
Mr Bowden raised a question as to whether the inclusion of a building envelope on the plan of subdivision is necessary or desirable. He referred to some previous cases of the tribunal where, he said, in some of them the tribunal had required a building envelope whereas in others the idea of such an envelope was disapproved. It may well be that in some cases an envelope is unnecessary or undesirable whilst in other cases it is necessary and desirable.
He considered that it may be better, in this case, to leave the proposed new lot 2 without an envelope. He said this appreciating that further planning permission would be required before a house could lawfully be constructed on the site. Permission would be required under the heritage overlay but also because the area of lot 2, at 313 m2 is between 300 and 500 m2. Houses on land of those dimensions require permission under this planning scheme.
It is perfectly apparent, of course, that the creation of this lot is to provide the site for a second house on the review site. It would be possible to apply for permission for a house on lot 2 before, or at the same time, as the subdivision is being sought. This would call for a design and plans for the proposed building.
There are real advantages in an application that makes clear what building development is being contemplated. It enables a proper assessment of the various considerations to be made. An applicant is probably more likely to obtain permission where the proposed building is clearly defined and understood. Permission might be granted on the basis of a building as originally proposed, or with some modifications. It reduces greatly any element of guesswork or doubt about what is proposed and what its impact might be.
I suppose the downside, from the applicants point of view, is that it requires the expense and trouble of devising plans to be incurred at application stage. That would, of course, necessarily be incurred if there was an application for two dwellings on one lot.
In relation to a sensitive proposal, it becomes much more difficult for the responsible authority, or the tribunal on review, to assess what is proposed and to give a decision that will be favourable to the applicant. Account must be taken of what could happen on the site, should permission be granted. A purchaser of the site may very well seek to maximise development of the site if there is nothing on the plan of subdivision, the title, or an Agreement under of the (PE Act), or otherwise to indicate any constraints. Caution can be felt as to what the result might be and also about protecting purchasers who think they are buying one thing that turns out to be some other, much more constrained, thing.
[5]
To provide lots with areas and dimensions that enable the appropriate siting and construction of a dwelling, solar access, private open space, vehicle access and parking, water management, easements and the retention of significant vegetation and site features.
[6]
Standard C8 under that provision relates to that objective. The relevant part reads:
[7]
Lots of between 300 square metres and 500 square metres should:
[8]
Contain a building envelope that is consistent with a development of the lot approved under this scheme, or
If no development of the lot has been approved under this scheme, contain a building envelope and be able to contain a rectangle measuring 10 metres by 15 metres, or 9 metres by 15 metres if a boundary wall is nominated as part of the building envelope.
[9]
There is also reference to building envelopes in connection with the heritage provisions. I will refer to that in the context of that wider topic.
[10]
I have already mentioned the Local Heritage Policy contained in clause 22.05 of the planning scheme. The policy basis, in clause 22.05-1 along with the Municipal Strategic Statement, recognises an extensive and significant range of heritage assets in the municipality. The basis includes:
[11]
Boroondara's heritage assets include, but are not limited to, indigenous heritage sites, mansion and worker cottage developments from the part of the 19th century, inter-war and post-war subdivisions from the 20th century, both individually significant and groups of Victorian, Federation, Inter-war and Post-War residences, former industrial sites, commercial buildings, public utilities including bridges, government buildings, railways stations, and parks and gardens. These places are of aesthetic, social, historic, technical or spiritual significance to the municipality.
[12]
This policy is directed at the protection, conservation and enhancement of all heritage places. This policy only encourages development that recognises and is sensitive to the cultural heritage significance of heritage places.
[13]
The responsible authority, and its heritage consultant, consider that this proposal, together with what it would allow or encourage, lacks such sensitivity.
The objectives of the local policy in clause 22.05-2 include:
To encourage the retention and conservation of all "significant" or "contributory" heritage places in the Heritage Overlay.
As already noted, the existing house on the review site has been assessed as "contributory". The objectives also include the following:
To ensure that works, including conservation, alterations, additions and new developments respect the cultural heritage significance of the heritage place.
To ensure that subdivision respects the cultural heritage significance of the heritage place.
To ensure that, when determining or when considering issues of bulk form and appearance of additions or new developments, the elevation is based on the characteristics the significant or contributory components of the fabric of the heritage place, rather than any non-contributory elements that may exist in the area.
To promote urban and architectural design which clearly and positively supports the ongoing significance of heritage places.
Clause 22.05-3 in relation to policy deals specifically with subdivision in the following way:
[14]
Ensure that the subdivision of a heritage place does not adversely affect the cultural heritage significance of the place.
Ensure that the lot layout and possible future development on the proposed lot does not adversely affect the cultural heritage significance of the place.
Ensure that the subdivision of heritage places results in a pattern of development that retains the existing pattern of development where such pattern contributes to the significance of the heritage place.
Ensure that appropriate settings and contexts, including gardens and landscaping for "significant" and "contributory" heritage places are maintained.
Require that where new undeveloped lots are proposed that are not accompanied by a development proposal, the planning application for that subdivision should be accompanied by building envelopes for the subdivided lots.
[15]
The responsible authority and its heritage consultant have been concerned with this particular proposal since before the application. Heritage advice was provided as follows:
The added lot is too small for the area in terms of established/original lot sizes
The proposed envelope is also large compared to the small lot size and proximity to the existing house, which accentuates the perceived smallness of the block.
An attic style (eg: 1/3 of the ground floor area on the upper floor area level) or 6 metre setback of the upper level from the ground floor would be more achievable as a building envelope (refer to No. 62 as a precedent for a subdivision).
The context will need to be assessed and three dimensional building envelopes provided before more detailed advice regarding the appropriateness of subdivision of the site can be provided.
Grading D2 (now contributory under cl 22.05)
Both the responsible authority and the heritage consultant are concerned about the smallness of the lot being created. It is undoubtedly different to the existing subdivision pattern which is not without significance in relation to heritage considerations. Nevertheless, neither the responsible authority, nor the heritage consultant, have taken so hard a line as to consider a subdivision to be necessarily out of the question. However, they are concerned to know what might go on the site and whether it would be appropriate.
The heritage consultant suggested the idea of a house that utilises roof space in an attic style but which has only ground floor walls as opposed to the proposed building envelope which has first and second floor walls. Subdivision in the present form would create an expectation of a full two-storey house here.
He also had other suggestions. Dwellings dating back to the period from which the original subdivision layout arose, and original development, sometimes had two storey outbuildings such as stables. Something that adopted that style, he suggested, could be more acceptable.
He also accepted the continuation of a high side fence across the front of the new lot so as to make it and its development appear, at least to an extent, like part of the original lot and development. Neither the responsible authority nor the consultant were prepared to guarantee approval of something of this sort, but certainly indicated these ideas were worthy of consideration. They reject the current proposal that does nothing to ensure anything along the lines of Mr Butler's suggestions, but creates an expectation of a large high structure, in comparison to the small lot, which would occupy a large part of the site and extend across most of the width of it.
[16]
The existing addition is clearly seen from within the Heritage Overlay Area and already distorts the character of the area, being visually unrelated and out of scale, but the proposed envelope will make this much worse. The existing two-storey rear addition will be on a smaller allotment and the combination of this with the proposed two-storey infill development will present as a new pocket of what appears to be two storey houses on small lots set within a predominantly one storey precinct (within the Heritage Overlay Area).
[17]
Notwithstanding the need for further planning permission, I share the concern that the proposed subdivision, and the proposed building envelope, allows and creates an expectation for a two storey building that would be excessive for its site and rather dominating the existing building and the streetscape.
I therefore propose to affirm the decision of the responsible authority to refuse this application.
I note that the last ground of refusal suggests that the building envelope setbacks are insufficient and would have a detrimental impact on the dwelling and its private open space area to the north. That, like the other grounds of refusal, was based on the original plans and refers to concerns that are alleviated with the revised version. Nevertheless, I have concern about the building envelope setbacks. I do not think that the front setback at either level should be less than the 4.5 metres of the side setback of the existing house from the Tyndall Street property line. However, if that was the only concern, I daresay it could be rectified by the imposition of a suitable condition.
Parties
Applicant/Plaintiff:
Nolan Projects Pty Ltd
Respondent/Defendant:
Boroondara CC [2009] VCAT 809
Legislation Cited (1)
Environment Act 1987
Cases Cited (1)
Nolan Projects Pty Ltd v Boroondara CC [2009] VCAT 809 (4 May 2009)
AI Analysis
Outcomerespondent
Disposition:
The application for review was refused and the responsible authority's decision to refuse a permit was affirmed. No permit was granted.
On the eastern side, the ground floor envelope is on the eastern boundary with the first floor setback at 2 metres. There is a note on the plan in relation to this setback saying "Single Storey" and "Garage".
A prescribed building envelope can be a half way house between these two situations. Sometimes a building envelope is prescribed for reasons such as some part of the land is unsuitable to build upon. However, it can constrict or define the extent of building. Even here, however, it leaves the responsible authority and the tribunal with a margin of doubt as to what the final result might be. There is no obligation to occupy the entire building envelope. However, a subsequent owner may very well consider that he or she is entitled to build into the whole of the envelope or nearly all of it, and to be aggrieved if a later permit application results in a much more constrained development than the building envelope appeared to allow.
From my point of view, I consider that this proposed allotment, with its limited size amongst larger allotments and various important considerations including heritage, neighbourhood character and streetscape is a situation where it would be a distinct advantage to have a specific building to consider and assess. It is a disadvantage to be limited to a consideration of what might arise if the building envelope is maximised. In these circumstances, prudence would indicate caution. I am not greatly attracted to the idea of granting a subdivision in this case without even the indication of a building envelope.
In any event, there are various indications in the planning scheme, including policy provisions, which indicate that a building envelope aught to be required in a case like this one.
Because of the size of the proposed allotment clause 56.04-2 of the planning scheme is applicable. Clause 56 contains the so called "Rescode" provisions in relation to subdivisions. Clause 56.04-2 contains the lot area and building envelopes objective. It reads:
Added to this is the consideration that it would be exposed to view because of the corner position.
The preservation of a perception of continuation of the existing character by substantial concealment of the upper floor is difficult, to say the least.
I think there is some warrant for these concerns and I agree with Mr Butler when he says[1]: