PDG Corporation Pty Ltd v Yarra CC [2009] VCAT 737

This is a further application to amend an existing permit for a large residential development in Fitzroy[1]. The applicant seeks to amend the permit, by the amendment of endorsed plans. The proposed amendments can generally be summarised as including:
- The modification of layouts of apartments primarily to increase the number of dwellings from 159 dwellings to 172 dwellings;
- An expansion of the existing basement and the provision of 16 additional car parking spaces, and;
- Minor exterior alterations to the building in accordance with the internal changes referred to above.
Many of the requested amendments are uncontroversial. The dispute essentially relates to the creation of a larger number of smaller dwellings with rooms, in this case studies, reliant on borrowed light. The council opposes the proposed amendments in respect of these dwellings arguing that they do not provide an acceptable or appropriate level of amenity for the future occupants of the dwellings.
The parties at the hearing of the application for review relied on both written and oral submissions and a number of plans and other documents were tendered to the Tribunal.
At the conclusion of the hearing the Tribunal gave oral reasons for its decision to amend the permit in accordance with the applicants request.. A summary of the Tribunal's reasons are set out below.
The decision of Justice Morris (as he was then) in Hasan v Moreland CC[2] raises important issues about the relationship between the planning system, and the Building Code of Australia. The question that may reasonably be asked is why should the planning system look behind the standards of the Building Code of Australia in respect of light and ventilation as they apply to rooms relying on borrowed light. In Hasan Justice Morris observed that the provisions of the BCA apply to all new dwellings whereas the planning system only captures those that require a permit under the particular planning scheme provisions. Why is equitable that dwellings subject to planning permits be required to achieve a higher standard than would otherwise be necessary?
I would be loath to suggest that the planning system has no role in respect of the internal amenity of dwellings. It is the case that higher density forms of residential development usually require planning permission, and such developments are more likely to raise questions of internal amenity which are arguably not adequately addressed by building regulation. Moreover, in a multi dwelling development one might also say the role of the planning system is to consider whether or not the design has optimised the amenity of future dwellings within the parameters[3] of the chosen design.
Perhaps a planning decision should not be seeking to impose higher light and ventilation requirements than established by the BCA, but rather it should consider the overall amenity of the dwelling. However the point remains that the most ubiquitous form of housing developed within our cities is developed without any planning system over sight as to internal amenity.
Nevertheless if we agree that the planning system's role is to consider the overall amenity of a dwelling then it is this approach which lead to Mr Hewet to conclude in North & West Melbourne Association Inc v Melbourne CC[4] that a single bedroom dwelling in which the bedroom relies on borrowed light is to be preferred over a bedsit dwelling notwithstanding the fact that no part of the bedsit relied on borrowed light. A judgement no doubt based upon the fact that a dwelling which provides separate living and sleeping spaces is to be preferred over one which does not.
Mr Rantino referred me to a number of decisions of the Tribunal dealing with the issue of borrowed light in support of his arguments that
1. the amendments sought unreasonably increase the percentage of dwellings in the development reliant on borrowed light[5] and;
2. further that this deficiency is exacerbated in some cases because the relevant dwellings have a southern orientation.
There are decisions which at least refer approvingly of the "low" percentage of dwellings within a development which are reliant on borrowed light for some rooms within the dwelling.
I think that must be an irrelevant consideration. If a decision is made that a particular dwelling design provides an appropriate level of amenity then that decision is valid for all such dwellings. The amenity of a particular dwelling is not changed by the fact that there are other dwellings within the same development based on a similar design standard.
It was also argued that some of the dwellings with borrowed light provided an even lesser standard amenity when the primary windows relied upon for borrowed light have a south facing orientation. To the extent that this conclusion is based on a concern about the lighting levels within the room dependent upon borrowed light I think it is misguided, such rooms would rarely rely on direct sunlight, rather they rely on daylighting which is not orientation specific. Adopting the whole of dwelling amenity approach one might conclude that a particular south facing dwelling with a bedroom relying on borrowed light does not achieve a satisfactory level of amenity as a result of an accumulation of less than optimum design outcomes. In most cases I have some doubt that this would be a reasonable conclusion.
In this case we have a series of one bedroom apartments in which both the bedroom and the living space have direct light, but each of the apartments has a study relying on borrowed light[6]. Do such a dwellings have an appropriate level of amenity?
Perhaps the simplest way of considering this dispute is to observe that a single bedroom dwelling, in which neither the bedroom nor the living space relies on borrowed light, is clearly an acceptable outcome that provides an adequate standard of amenity. Surely the amenity of such a dwelling is enhanced by the provision of some additional space for a study area even if that space relies on borrowed light[7].
Perhaps another approach is to consider our day to day experiences. In this building, 55 King Street, there are many people who work in spaces from which the only view of an exterior window is through the door of some other person's office. This is a relatively normal scenario in large modern office buildings. A study within a private dwelling will be rarely used so intensively. A person can organise their own study space to maximise their comfort and enjoyment. A person working in their study can take a break and in that break enjoy the amenity provided by their living space or balcony with the unrestrained outlook that these spaces provide. I do not think that this represents an unacceptable standard of amenity.
It is undoubtedly the case that if all the dwellings in this development had a minimum floor area of 150 square metres, there would be little need to provide rooms that were reliant on borrowed light. However, the obvious outcome of such an approach would be a substantial reduction in the number of dwellings that could be accommodated within the development, and a substantial increase in the average price of dwellings sold. Decisions in cases such as this have obvious implications in relation to planning policies relating to housing diversity and affordability.
The applicant in this case pursued this amendment because they have discovered that they can more easily sell the smaller dwellings they have on sale. Indeed I was advised that they have sold, subject to planning approval, some of the additional dwellings which are the subject of this permit amendment application. It may be the case that from the applicant's perspective the motivation for the permit amendment application is not just the fact that smaller dwellings are easy to sell, the motivation may also be that smaller dwellings have a higher profit margin. However, this does not change the fact that such dwellings are inherently cheaper dwellings with a price influenced by market demand.
The applicants did not rely on planning policies relating to housing diversity and affordability in support of this application. I am of the opinion that it is an important, relevant, consideration.
It is my conclusion that the permit should be amended in accordance with the applicant's request.

[7] I do not think this "argument" is endlessly extensible. A four bedroom dwelling, with three bedrooms relying on borrowed light may be unacceptable because for larger families bedrooms become a more important retreat or private living space away from the communal living space than would be the case for smaller dwellings. I acknowledge that this might only be a perception of the comfortable middle classes.

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

PDG Corporation Pty Ltd v Yarra CC [2009] VCAT 737 (29 April 2009)

Parties

Legislation Cited (1)