O'Neil v Bass Coast SC [2007] VCAT 146

O'Neil v Bass Coast SC [2007] VCAT 146 - VCAT 2007 case summary — Zoe

[19]

1 This matter involves a proposal (as amended) for the construction of two double storey dwellings and subdivision of land into two lots, together with the associated removal of one tree. The land in question is at 17 Church Street, Cowes ("subject land") and the appeal is a s.82 merits appeal taken out by two side neighbours.

2 At the hearing of this matter on 12 January 2007 I heard submissions from all the parties. A copy of the relevant written submissions is retained on the Tribunal file along with the relevant photos, plans and other materials tendered during the hearing.

3 In terms of procedural matters which arose during the hearing, it became clear during the hearing that there may well be a tree which required permit for removal, pursuant to the Vegetation Protection Overlay Schedule 2 which affects the site. It was left that I would make directions after the hearing, allowing this issue to be investigated further (which I did).

4 I subsequently received a letter dated 17 January 2007 from Council, indicating that the tree in question is a Ghost Maple which is big enough to require a permit under the VPO. However, Council further indicated that as this tree is an exotic tree and Council believes its removal will not affect the amenity of the area or environment, Council confirmed that it would not object to the tree being removed.

5 In all the circumstances then, pursuant to my broad powers under the Schedule to the VCAT Act 1998, it seems fair and reasonable that I now amend the application to include the seeking of permission for removal of this tree.

6 I further note that there was some uncertainty near the end of the hearing about how large the outside courtyard is, in relation to the adjoining unit owned by Ms Freeman. My directions dated 15 January 2007 after the hearing also provided for Council to have the opportunity to properly "scale out" the area of this courtyard from the relevant plans, including that part of the courtyard extending to its southern boundary, but excluding the walkway which continues around behind the units.

7 The council letter of 17 January 2007 also confirms that council had carried out this measurement process and the result of this process indicated that the courtyard area is somewhere between 42.6 and 42.93 square metres.

8 I also received a letter from Ms Freeman dated 19 January 2007, querying the accuracy of the measurement of her courtyard (ie her belief remains that her courtyard is below 40 square metres). However, whilst acknowledging her belief that that part of the courtyard underneath her building eaves and which form part of the retaining wall should be excluded, my view remains that:

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16 The subject land is zoned Residential 1 and is also affected by a Vegetation Protection Overlay Schedule 2. The contents of Schedule 2 include the statement that it is important to protect all existing mature trees, both native exotic and to protect all local indigenous species. It is also necessary to encourage and facilitate the planting of vegetation indigenous to a particular locality to maintain and enhance the natural environment.

17 In the usual way, cl. 55 (ResCode) and the general decision making criteria under cl.65 apply here. The cl.56 ResCode provisions also apply to the subdivision aspect of the proposal.

18 With respect to the relevant state planning policies, Council referred me to cls.14.01-2, 16.02, 19.01-2 and 19.03.

19 Turning to the Council Municipal Strategic Statement and local policies, the Council's written submission highlighted the fact that the Council MSS picks up the planning objective of urban consolidation, so as to minimise encroachment of urban areas into the surrounding rural land. Clause 21.05-1 picks up this permit consolidation aspect.

20 Clause 21.05 also emphasises the need for new subdivision to not unduly impact upon the natural environment and the local community, together with the benefits of focusing new development in areas already zoned for residential use. There is also reference to enhancing the appearance of each town, together with acknowledgement that the municipality population is expected to continue aging over the next 15 years, with average household sizes therefore becoming smaller but more numerous. There is also policy reference to the need to provide a range of housing types and lot sizes to suit the diverse housing needs of the community, and to increase residential densities.

21 I was referred to the Phillip Island and San Remo Design Framework 2003, being a document which has been adopted by Council but which does not form part of the planning scheme. I was told that, in relation to Cowes, "... the Framework encourages consolidation within the existing residential boundaries, the maintenance and reinforcement of the traditional coastal town scale that characterises Cowes and that all new development is complied with the design guidelines set out in Section 5 of the document". At paragraph 28 and 29 of the Council written submission there is discussion of the contents of this Section 5 from The Framework. The relevant aspects here include a preferred maximum height of two storeys, a desire to conceal new buildings from views from the beach or the sea together with a preference not to conceal important vistas, together with the requirement that proposals include "... a context plan demonstrating how the building fits within the context of its surrounds and how view lines have been accommodated in all new development proposals".

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24 There seem two main issues here, being "height" and whether the contemporary form of the new dwellings will be sufficiently respectful of the existing neighbourhood character.

25 In relation to "height", the objectors expressed concern that the simple fact that the new dwellings are two storey will in itself make them incompatible with the largely single storey aspect of the local streetscape. I do not accept this line of thinking. First, one needs to keep in mind that two storey dwellings are now a relatively common form of housing across Victoria, and it would be an inappropriate "knee jerk reaction" for the Tribunal to refuse the proposal simply because two storey built form is involved.

26 The more relevant issue is whether the two storey built form can acceptably sit within the existing neighbourhood character. In this regard, I am satisfied that the proposal will sit comfortably in its particular locality, for the following reasons. First, from my drive around various streets in Cowes over the January 2007 Australia Day long weekend, I agree with Council that two storey dwellings per se are more and more becoming a feature of Cowes, as part of the on-going development within the town. Second, with the site being a corner side with one side facing on to Church Street, it is reasonable for me to give some weight to the fact that there are already other examples of two storey dwellings nearby (eg further west on the same side of Church Street). Whilst it may well have been the case that new two storey built form would be more closely scrutinised if the site were further along Monash Avenue (which has quite modest existing built form), credit needs to be given for the fact that one boundary of the corner site here faces on to Church Street (which has more of a variety of existing built form).

27 In relation to the other neighbourhood character issue of how the contemporary design of the new dwellings will sit in the locality, the objectors put to me that the appearance of other dwellings in the locality is predominantly low key and more "aged", with the practical result that the very contemporary appearance of the new dwellings will make them unreasonably stand out.

28 My own view here is that the built form across Cowes is clearly in a transitional stage, with quite a few new dwellings springing up with a very modern appearance. Accordingly, I think it is reasonable for the Tribunal to anticipate that the existing built form along Church Street and Monash Avenue will similarly change over time, with a trend towards more contemporary style housing. In these circumstances, I think it would be inappropriate and overly harsh for the Tribunal to reject the proposal, simply because this is one of the first examples of more contemporary design in this particular part of Cowes. Furthermore, I consider the design response here (whilst contemporary) to still be fairly polite and restrained, with sensible articulation and use of materials. This is not one of those projects where it can be said that the designer has "run amuck" in terms of using an outlandish design and/or strange use of materials.

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29 We now come to the most relevant of the planning considerations here, being whether the proposal will have any unacceptable external amenity impacts on the two units which sit west of the subject land. The two objectors live in these two units, which are both single storey. This unit development involves a north-south side driveway on the western side of the site. The front unit has private open space in both the front yard and a side-courtyard on the eastern side of the front unit. The only private open space ("POS") of the rear unit (owned by Ms Freeman) is a courtyard on the eastern side of her unit. In addition, the main natural light for Ms Freeman's living area and kitchen are east-facing windows.

30 Another important difference between the front and rear adjoining units is that the front unit already features the existing dwelling on the subject land sitting immediately to the east of its side courtyard. In other words, the amenity of the side courtyard of the front adjoining unit is already compromised by the close proximity of the existing dwelling on the subject land, whereas this is not a problem in relation to the rear courtyard of Ms Freeman.

31 Turning to my assessment of the proposal, I am satisfied that the window and balcony treatment of the upper level of the new dwellings (when combined with the relevant permit conditions) will suitably deal with any privacy issues. What this leaves us is the question of whether the "visual bulk" and "overshadowing" aspects of the upper level of the proposed new dwellings is acceptable, in terms of the interface with the existing units to the west of the subject land.

32 In relation to overshadowing issues, my finding is that the relevant ResCode standard for "minimum sunlight in adjoining private open spaces" is comfortably met in relation to the adjoining front unit, but is only barely met in relation to Ms Freeman's courtyard (ie I consider Ms Freeman's courtyard is only barely over 40 square metres). If I had found that Ms Freeman's courtyard was under 40 square metres in size, then a tougher standard would have applied, in that ResCode states that the preferred position is that there be no additional overshadowing at all of Ms Freeman's courtyard.

33 This brings me to the critical issue, being the acceptability or otherwise of the visual bulk of each of the new double storey dwellings, when viewed from the side courtyard of each of the adjacent courtyards.

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34 In relation to the adjacent front unit's side courtyard, my consideration of the situation here has to take into account the fact that the are already substantial "visual bulk" issues involved in the use of this courtyard, given the close proximity of the existing dwelling to the east (ie just off the common boundary). Given that this existing dwelling has a pitched roof and sits uniformly close to the common boundary whereas the replacement dwelling 1 (albeit two storey) will have a relatively flat roof and (from my observations) will be sited a little further back from the common boundary, I consider that (with two provisos) the new dwelling will not involve any real change to the amenity status quo for the use of the adjoining courtyard.

35 The first proviso is that the new dwelling 1 curiously has a garage and store extending to the common boundary, whereas the new dwelling 2 further south has its garage/store offset from the boundary. It is not obvious to me what the justification is for this built form extending to the boundary for the new dwelling 1 but not dwelling 2. I see the better approach as being that the approach taken for the new dwelling 2 (ie an offset garage and store) needs to apply here as well, as a minimum setback from the western boundary.

36 The second proviso is that I consider the proposed walk-in-robe for the upper level of the new dwelling 2 to present an excessive level of visual bulk vis-a-viz the courtyard of the existing unit to the west. Accordingly, I see the better outcome as being that the western half of what is current shown as "WIR" should be deleted, and the balance of this space used instead for a conventional built in wardrobe. This will also make the western upper wall of this new dwelling more articulated when viewed from further west and possibly marginally reduce the morning overshadowing of this courtyard.

37 While I would have been unlikely to have included these provisos if the adjoining property to the west of the subject land was a single conventional residential property with a bigger back yard, I consider the amenity situation here to be more sensitive due to there being two units to the west, each of which has a modest sized courtyard sited next to the common boundary.

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38 Turning now to the visual bulk implications of the proposed new dwelling 2 (which sits further south), I am satisfied with the ground level treatment of the western wall of this new dwelling. None of this ground level will be built to the boundary and there is reasonable articulation of the wall rather than it presenting as one long "slab".

39 With respect to the upper level of the new dwelling 2, the dining/kitchen wall is offset from the common boundary by a bit over two and a half metres, which I consider to ultimately be acceptable. In reaching this finding, I note that Ms Freemans adjoining courtyard already has the privacy benefit of a trellis on top of the fence on the common boundary. It also follows that there is also a significant degree of overshadowing of the morning sun from this fence and trellis (as I observed during my inspection).

40 However, the western wall of the upper bedroom cantilevers further west compared to the ground level western wall, with the result that the upper bedroom western wall is only set back from the common boundary by about one and three quarter metres. I consider this cantilevering effect to be excessive and (in relation to this bedroom) I accept Ms Freeman's submissions that this section of the western upper wall of the new dwelling 2 is likely to be overbearing and unduly visually dominant when viewed from her courtyard.

41 On balance, I see a fairer outcome (which is more respectful of the amenity of Ms Freeman's courtyard) as being that the setback of the western wall of the dwelling 2 upper bedroom from the western boundary is increased to 4 metres. I would expect that this will still leave sufficient room for at least a double bedroom and some form of toilet/shower in this southern end of the upper level of this new dwelling 2.

42 Looking at the upper floor plan of both new dwellings, I consider the modifications which I am making to still be acceptable in terms of the internal amenity offered to the future occupants of these new dwellings.

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

O'Neil v Bass Coast SC [2007] VCAT 146 (1 February 2007)

Parties

Legislation Cited (1)