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[2005] VCAT 2483
respondent. The Responsible Authority's decision to refuse the permit was affirmed. The Tribunal ordered that no permit be issued pursuant to section 85(1)(a) of the Planning and Environment Act 1987.
The Tribunal accepted that the site could appropriately accommodate medium-density housing in principle. It nevertheless found the specific design unacceptable because the rear dwelling and the overall amount of building and paving created excessive visual bulk beside neighbouring gardens. It also found that the front dwelling's only secluded private open space did not receive an acceptable solar-access outcome. Other objections, including loss of a city view, parking and garbage collection, did not change the result. The Council's refusal was therefore affirmed.
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In Petrarca v Maribyrnong CC [2005] VCAT 2483, the Tribunal considered an application for review under section 79 of the Planning and Environment Act 1987. P & M Petrarca sought review after Maribyrnong City Council did not grant a permit within the prescribed time. The proposal was to replace the existing single-storey house at 21 Pridham Street with three double-storey dwellings arranged one behind the other ([1], [4]–[11]).
No linked legislation citations have been extracted yet.
The site was in a Residential 1 Zone. A permit was required for two or more dwellings, and clause 55, commonly known as ResCode, was relevant ([12]). The Planning Scheme also included a Development Contribution Overlay. Council acknowledged that redevelopment and medium-density housing were supported in principle, but remained concerned about the particular design ([13]–[16]).
Twelve objections were received. Issues raised included neighbourhood character, amenity, parking, traffic and garbage collection ([2]). Council's stated refusal grounds concerned the double-storey element within the private-open-space corridor behind adjoining dwellings, solar access to dwelling 1's private open space, and neighbourhood character ([3]).
The Tribunal's decision was mixed in its assessment of the objections but not in its disposition. It accepted some aspects of the proposal and rejected several objections as reasons for refusal. However, it found unacceptable visual bulk from the rear dwelling and an inadequate solar-access outcome for the front dwelling's secluded private open space. The Council's refusal was affirmed, and the Tribunal ordered that no permit issue.
The Tribunal began by recognising that the planning-policy framework supported medium-density development at the site ([16]). Its decision was not a categorical rejection of medium-density housing, or of two-storey housing, in Pridham Street. It examined the proposal's design and its relationship to the site and adjoining gardens.
On neighbourhood character, the Tribunal did not accept Council's description as merely a neighbourhood of predominantly detached single-storey houses. The evidence showed other double-storey and medium-density development, including developments on mid-block allotments as well as corners ([17]). There was no neighbourhood character policy or study in the Planning Scheme providing a preferred character statement, so the Tribunal assessed the design against the area's existing characteristics and the relevant local policy ([18]).
The front dwelling was found to fit the street context. The Tribunal accepted that it maintained the rhythm and spacing of detached dwellings and had a typical setback, articulation, finishes and roof form. It considered the two-storey front dwelling sympathetic to the existing context ([19]). It also considered the verandah's height and proportions and found no unreasonable visual impact ([20]–[21]). This part of the reasoning is important: the decision did not find that every two-storey element or every modern design was incompatible with the neighbourhood.
The decisive built-form concern related to the rear of the site. The Tribunal considered the position of the rear dwelling against the neighbouring private gardens and the amount of built form and hard paving. It noted that a two-storey dwelling located effectively in a back garden, next to surrounding private open space, calls for careful assessment of amenity effects such as overlooking, overshadowing and visual bulk. It cited its earlier discussion in Meddis v Maribyrnong CC [2005] VCAT 180 as pertinent ([26]).
The Tribunal did not treat overlooking as determinative. The plans did not correctly show first-floor windows, but the Tribunal recognised that windows would exist and could overlook neighbouring properties. It considered screening measures could address direct overlooking under clause 55 ([27]). The distinct and decisive concern was visual bulk. The rear dwelling had little opportunity for landscaping or other softening near the western boundary, and its position near the southern rear boundary left little opportunity to soften the view from the adjoining property. The Tribunal also regarded the rear garden as a sensitive interface ([28]).
The wider site layout reinforced that concern. The middle dwelling, two garages, driveway and turning areas, and rear dwelling together formed an expansive built and paved area. The Tribunal found this did not respect the immediate back-garden character. It considered possible changes to the turning circle and garden bed, but found those changes would not resolve the visual bulk of the rear dwelling or the remaining expanse of buildings and paving ([29]–[30]).
There was a separate solar-access problem for dwelling 1. Its private open space was at the rear, to the south. The Tribunal considered clause 55.05-5, whose objective was described as allowing solar access into secluded private open space. The entire rear area was the only secluded private space for that dwelling. The Tribunal considered it should be useable and have reasonable amenity, including reasonable access to sunlight. It was not satisfied that partial compliance in the area nearest the garage provided an acceptable outcome ([31]–[33]).
Other objections did not alter the outcome. The Tribunal accepted that some windows of an adjoining dwelling would be shaded at 9.00 am but found that they would not be affected by shadows from the proposal during the remainder of the day. It found that loss of early-morning sun to those windows was not unreasonable ([34]). It also rejected the city-view objection as a sufficient reason for refusal, considered parking to accord with clause 55 standards, and did not regard bin collection as sufficiently problematic ([36]–[38]).
The judgment applies the Planning Scheme and its provisions to a particular permit proposal. It does not announce a general change in Victorian planning law. The statutory setting identified in the judgment is a section 79 review application, with the Tribunal's final no-permit order made under section 85(1)(a) of the Planning and Environment Act 1987.
As the judgment describes the pre-existing position, the site was in the Residential 1 Zone, and a permit was necessary for two or more dwellings. Clause 55's objectives, standards and decision guidelines had to be considered ([12]). The Tribunal also considered relevant State and local planning policies, including policies supporting medium-density housing, improved residential amenity and the existing neighbourhood character ([14]–[16]).
The decision clarifies how those matters operated in this case. Support for medium-density housing did not mean that every design response was acceptable. The Tribunal accepted the principle of medium-density development at the site but found that particular siting and layout unacceptable because of visual bulk and the private-open-space solar-access issue. In that sense, the reasons illustrate the difference between policy support for a use or form of development and the acceptability of the submitted design.
The Tribunal also explained that the local policy statement relied on by an objector about development greater than two storeys did not directly apply to this proposal, which was not greater than two storeys ([25]). That finding should be read in the context of the policy wording recited in the judgment, not as a general proposition that two-storey development is exempt from amenity assessment. The Tribunal expressly said that rear two-storey development still required consideration of its amenity impacts ([26]).
On private views, the Tribunal referred to Juliano, Furletti and Scott & Ors v Melbourne CC & Omiros Pty Ltd. It recounted that decision's discussion of the absence of a legal right to a view and the possible relevance of views to amenity in some settings. It then applied that reasoning to the inner-urban circumstances described in this case ([35]–[36]). The judgment therefore records the Tribunal's use of that reasoning; it does not create a general rule that views can never be relevant.
The material supplied contains no account of later decisions applying or limiting Petrarca. It supports describing the reasoning in this 2005 decision and the authorities it cited, but not asserting a later state of the law.
At [17], the Tribunal rejected the “simplistic approach” that the neighbourhood contained only detached single-storey dwellings. In plain English, the decision-maker should look at the actual variety shown by the evidence, rather than describe the area in a way that leaves out existing two-storey and medium-density development. The Tribunal also said that the absence of medium-density housing in that particular street block did not, by itself, make such development inappropriate.
At [18], the Tribunal noted there was no neighbourhood character policy or study in the Planning Scheme. It therefore assessed the design against existing neighbourhood characteristics rather than a prescribed preferred-character statement. This did not remove neighbourhood character from consideration; it described the evidence and policy basis the Tribunal used.
At [26], the Tribunal quoted Meddis for the proposition that two-storey buildings effectively placed in back gardens, adjacent to neighbouring private open space, face “tougher ‘tests’”, particularly regarding potential overlooking, overshadowing and visual bulk. In plain English, the location of a building matters. A design beside a neighbour's rear garden may have a different amenity impact from a similarly sized building near the street.
At [27], the Tribunal distinguished overlooking from the visual-bulk issue. It considered that screening could limit direct overlooking, so windows with overlooking potential were not, by themselves, enough to refuse the application. At [28]–[30], however, it found that screening did not answer the lack of space for landscaping and the scale and extent of the rear built and paved form.
At [33], the Tribunal said that “all of this secluded private open space area should comply” with clause 55.05-5 to meet its objective. The explanation is tied to the facts: that area was the dwelling's only secluded private space, and the Tribunal considered its useability and amenity, including sunlight. The passage should not be detached from that reasoning and treated as a general rule for every site layout.
At [36], the Tribunal said it did not consider there could be a reasonable expectation that an inner-urban city view would be retained in the stated planning-policy context. In plain English, the private view from a bedroom did not outweigh the planning support for medium-density redevelopment on these facts. The Tribunal also noted that the view was from a bedroom rather than a main living room.
The reasoning may be particularly relevant where a planning application proposes a two-storey dwelling at the rear of a residential site, close to adjoining private gardens. Petrarca highlights the need to examine not only the building itself but also boundary setbacks, the opportunity for landscaping, the sensitivity of the adjoining garden and the relationship between the development's built form and the existing back-garden setting ([26]–[30]).
The decision also demonstrates the importance of assessing cumulative site layout. Here the Tribunal considered the middle dwelling, garages, driveway, turning areas and rear dwelling together. Even though the first-floor levels of the middle and rear dwellings were separated, the wider combination contributed to the finding of an expansive built and paved area ([29]).
A second relevant fact pattern is where a proposed dwelling has a single area serving as its only secluded private open space, and the design raises a question about whether that space will receive reasonable sunlight. The Tribunal's reasoning focused on the purpose and useability of the space, not only on whether some portion might receive sunlight ([31]–[33]).
The decision may also assist in distinguishing issues that were raised but did not determine the outcome. It shows an assessment of early-morning shadowing, parking, garbage collection and loss of an inner-urban view in the context of this particular proposal ([34]–[38]). It does not establish that such concerns are always immaterial. Their significance depends on the applicable planning controls and the actual evidence in a given matter.
Finally, the case is relevant to proposals in areas where policy supports medium-density development but no neighbourhood character policy or study identifies a preferred character. The Tribunal assessed the evidence of existing development and the applicable local policy rather than treating the absence of development of the same kind in a particular block as decisive ([17]–[18]).
The supplied judgment does not identify later decisions treating Petrarca as a precedent. It was delivered on 23 November 2005, and the text provided gives no later citation history. It would therefore be unsupported to describe how later courts or tribunals applied, distinguished or limited this decision.
The judgment does identify authorities that it used. It considered Meddis v Maribyrnong CC [2005] VCAT 180 as pertinent to the assessment of two-storey development at the rear of sites ([26]). It also discussed Juliano, Furletti and Scott & Ors v Melbourne CC & Omiros Pty Ltd, drawing on its treatment of private views in an urban planning context ([35]–[36]). At [36], it named Gatum Holdings v Banyule CC [2004] VCAT 1035 and Panorama Craft PL v Yarra CC [2005] VCAT 521 as examples of the view-related comments being considered and applied in other urban areas.
Those references show which reasoning the Tribunal relied on in Petrarca. They do not, without the texts of subsequent decisions, establish how later tribunals treated Petrarca itself.
The judgment resolves the application before it but leaves questions that depend on the evidence and planning controls in other cases. One is how much weight to give a rear dwelling's visual bulk where setbacks, landscaping, screening or a different orientation may change the relationship with neighbouring gardens. Petrarca identifies the relevant physical features but does not set a numerical threshold for unacceptable visual bulk ([28]–[30]).
Another question is how the clause 55.05-5 objective operates where a dwelling has multiple secluded private open-space areas, or where only part of an area is affected by limited sunlight. In Petrarca, the Tribunal stressed that the area was the dwelling's only secluded private open space. The reasons do not decide how the same approach would apply to a different layout or a different sunlight pattern ([31]–[33]).
The judgment also does not define a universal meaning of “small scale” medium-density housing. It rejected an argument that the local policy requirement concerning development “greater than two storeys in height” directly applied to the two-storey proposal, and noted that the policy context supported redevelopment in principle ([25], [36]). The acceptability of a particular development still depended on its design and impacts.
Finally, the decision does not establish a comprehensive rule for private views. It applied the cited urban-view reasoning to a bedroom view in the planning context before it, while acknowledging that views may have substantial amenity importance in some rural or coastal locations ([35]–[36]). The weight of a view-related concern in another case would require assessment against that case's setting and relevant planning provisions.
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Application under section 79 of the Planning and Environment Act 1987; Maribyrnong Planning Scheme; Residential 1 Zone; Three New Double Storey Dwellings; Neighbourhood Character; Amenity Impacts; Visual Bulk of Two Storey Dwelling at Rear; Car Parking and Traffic; Garbage Collection; Sunlight to Private Open Space; Loss of City View.
With respect to permit application TP04/0603, the Responsible Authority's decision to refuse to grant a permit is affirmed.
The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.
1 This is an application to review the failure by Maribyrnong City Council ('the Council') to grant a permit within the prescribed time. The application proposes to construct three new double storey dwellings, one behind the other, at 21 Pridham Street, Maribyrnong.
2 The permit application was received by the Council in November 2004. After responding to the Council's request for further information, the application was advertised and 12 objections were received. The objectors raised concerns relating to neighbourhood character, amenity impacts, car parking, traffic and garbage collection.
3 The application was considered at a Council meeting on 19 July 2005 and, despite an officer recommendation to approve the proposal subject to conditions including some design modifications, the Council determined that it would have refused the application on the following grounds:
1. The proposal introduces a double storey element into the private open space corridor at the rear of abutting dwellings.
2. Dwelling 1 does not comply with clause 55.05-5 in regard to solar access to private open space.
3. The proposal is contrary to the neighbourhood character of the area.
4 The site is located in an established residential neighbourhood on the south side of Pridham Street in Maribyrnong. It has a frontage of 15.24 metres, a depth of 45.72 metres and an overall site area of 696.7 square metres. It is not affected by any easements or restrictions and it is relatively flat.
5 The site currently contains a single storey dwelling setback 8 metres from the street frontage, with a single driveway and some mature vegetation in the rear south west corner of the site.
6 To the east and west sides of the site are allotments of a similar size that each contain a single storey dwelling with private open space areas at the rear adjacent to the common property boundaries with this site. To the rear of the site is the secluded rear garden area of a dwelling fronting Kellaway Street.
7 The Council described the neighbourhood character as containing predominantly single storey detached dwellings with the majority of existing medium density housing developments located on the street corners of this neighbourhood.
8 It is proposed to construct three new double storey dwellings on the site, one behind the other.
9 The front dwelling will be setback 7.7 metres from Pridham Street with a single car garage and tandem car space accessed via its own crossover on the eastern side of the frontage. It contains living areas at ground level, and two bedrooms and a bathroom at first floor level.
10 The rear two dwellings are accessed via a common driveway and crossover on the western side of the site's frontage. Dwellings 2 and 3 each contain living areas at the ground level and two bedrooms and a bathroom at first floor level. A single garage is provided for each dwelling and they are centrally located between the two dwellings.
11 Private open space is located at the rear (south) of dwelling 1 and on the eastern side of dwellings 2 and 3.
12 The site and surrounding properties are contained within a Residential 1 Zone under the Maribyrnong Planning Scheme ('the Planning Scheme'). A permit is required to construct two or more dwellings on the site, and the objectives, standards and decision guidelines of clause 55 (commonly known as ResCode) must be considered.
13 The site and surrounding properties are also affected by a Development Contribution Overlay which requires all net new dwelling development to contribute towards identified community infrastructure in accordance with the provisions of the schedule to this overlay.
14 Mr Simkus, on behalf of the Council, highlighted the relevant State planning policies, including clause 12 and Melbourne 2030, energy efficiency (15.12), medium density housing (16.02), and car parking and transport (18.02). He also highlighted the residential objectives of the Municipal Strategic Statement that encourage improved residential amenity and enhancing the existing distinct neighbourhood character. Mr Simkus referred to the Residential Land Use and Development local planning policy at clause 22.01, which seeks high standard new housing that promotes improved residential amenity.
15 Mr Simkus advised that the Council considers redevelopment of this site will assist in the desired population increase in the municipality, and the incorporation of two bedroom dwellings will contribute to housing diversity. The Council also considers this site is suitable for medium density housing, but the detail of the proposed design response is of concern.
16 I agree with the Council that the planning policy framework is supportive of the development of this site for medium density housing. The Council and the objectors raised a number of concerns with this proposal relating to neighbourhood character; a double storey building at the rear of the site; sunlight to secluded private open space; other amenity impacts; loss of view; car parking and traffic. I will deal with each of these matters in turn.
17 Firstly, in regard to neighbourhood character, I disagree with the simplistic approach taken by the Council that this neighbourhood contains predominantly detached single storey dwellings. It is evident from the photographs tendered and the zoning plan provided that the characteristics of this neighbourhood also include existing double storey dwellings and medium density housing (particularly two and three unit developments) that are located on mid-block allotments as well as on corners. I agree with Mr Simkus that there are no existing medium density housing developments within this block of Pridham Street; however, the fact that there are none does not mean that such development is inappropriate.
18 Mr Hocking pointed out that the Council does not have a neighbourhood character policy in its Planning Scheme, nor does it have a neighbourhood character study included in the Planning Scheme as a reference document. This means that the appropriateness of this design response must be considered in light of the existing characteristics of the neighbourhood (as the Council does not have a preferred neighbourhood character statement derived from a neighbourhood character policy or study). Mr Sporton expressed the opinion that Pridham Street has a post-war character and this design significantly and detrimentally contrasts from it. I appreciate that there are similarities and a level of consistency in some of the characteristics in the street, but this does not mean that new development with different characteristics or design features is inappropriate. Indeed, there is evidence of new development of more modern styles built in the surrounds, including on the corners of Pridham Street and Rowe Street. I note the Residential Land Use and Development local planning policy recognises the Council's desire to encourage small scale medium density development throughout the city. It also recognises that opportunities exist for modern styles of housing in its neighbourhoods as the policy statements include:
To preserve and enhance the current mixed period character of the municipality and to ensure that new buildings with modern architectural characteristics are sympathetic to the general ambience of their context and do not create a visual clash.
19 I agree with the Council officer's assessment in the report to Council that found the front dwelling maintains the rhythm of detached dwellings and building spacing in the street; has a typical front setback; has articulation through the graduation in height from ground to first floor and the selected materials and finishes; and provides a sympathetic hipped roof form. For these reasons, I do not agree with Mr Hanna's concerns about the front setback or the two storey form in the streetscape. I am of the opinion that the proposed two storey dwelling at the front of property is sympathetic to the existing context of housing in Pridham Street.
20 Mr Hanna also expressed concern about the 4 metre height of the front verandah, stating that it does not comply with the height and front setback encroachment specified in standard B6 of clause 55, where it states:
Porches, pergolas and verandahs that are less than 3.6 metres high and eaves may encroach not more than 2.5 metres into the setbacks of this standard.
21 The verandah projects about 700mm beyond the façade of the front dwelling and the decision guidelines in regard to front setbacks require consideration to be given to, amongst others, the visual impact of the dwelling when viewed from the street and adjoining properties. I do not consider there will be any unreasonable visual impact resulting from the proposed verandah when viewed from the adjoining properties. In regard to the streetscape, I find the streetscape elevation provided as part of the permit application illustrates the height and proportions of the verandah are in keeping with the height and proportions of verandahs and gables found elsewhere in the street. Therefore, I am of the opinion the proposed front verandah is of a height and scale that responds appropriately to the characteristics of this streetscape.
22 Mr Simkus expressed concern that the proposal contains two driveways and a front pathway that, in combination, create a dominant hard surface appearance in the streetscape. I am of the opinion that the provision of a separate driveway and front path for the front dwelling is not unreasonable in this streetscape. For reasons I will explain below, I have concerns about the balance of the overall design response, and wish to make the observation that, in addressing these concerns, the provision of two driveways could be changed.
23 Mr Simkus advised the Council was generally comfortable with the siting and two storey height of the proposed two front dwellings, as they are generally sited in between the detached dwellings on the two adjoining properties. However, Mr Simkus raised concern about the sheer two storey eastern wall of the second dwelling and he advised the Council does not support the rear dwelling as it introduces a two storey building form into the private open space corridor found at the rear of dwellings fronting both Pridham and Kellaway Streets.
24 The proposed second dwelling is situated between the dwellings on each of the adjoining lots; it has eaves overhanging the ground floor level that create a visual break and distinction between the two floor levels; and it has a setback of 4.3 metres from the eastern boundary that creates a reasonable opportunity to plant some screening vegetation. In light of these features of the design, I am of the opinion that the eastern wall, particularly the first floor portion, of the second dwelling is a reasonable design response.
25 In regard to the two storey form at the rear of the site, Mr Sporton suggested that the Residential Land Use and Development local planning policy only supports two storey development if there is no loss of amenity and no significant contrasts. I have reviewed this policy and note that the stated policy requirements on page 2 refer to residential development "greater than two storeys in height", which this proposal is not. Therefore the policy requirement referred to by Mr Sporton is not of direct relevance to this proposal.
26 However, that does not mean that the amenity impacts of a two storey building at the rear of a site do not need to be considered. Mr Hocking referred to a previous determination I had made in the matter of Meddis v Maribyrnong CC [2005] VCAT 180 that provided the following comments in regard to two storey development at the rear of properties, which I consider is pertinent to this proposal:
The Tribunal is often asked to consider two storey dwellings at the rear of sites and the Tribunal has stated in such cases that the 'tests' for siting a two storey building effectively in the back garden, adjacent to the private open space areas of surrounding properties, are tougher 'tests', particularly in regard to potential amenity impacts such as overlooking, overshadowing and visual bulk.
27 Mr Hanna expressed concern about the potential for overlooking into his back garden, to the west of the site. Mrs Dixon also expressed concern about a loss of privacy into her property at the rear of the site. The plans submitted with the application have not correctly shown the first floor windows, but there is no doubt there will be windows at first floor level and some of them will have the potential to directly overlook the neighbouring properties. However, screening measures can be implemented so that direct overlooking is limited and this is provided for in clause 55. Given any potential for overlooking can be addressed, the existence of first floor windows is not sufficient reason to refuse this application.
28 However, I am of the opinion that the siting and design of the proposed rear two storey dwelling creates an unacceptable visual bulk impact upon the neighbouring properties for the following reasons:
i
The ground floor sitting room, driveway, clothesline and storage shed are all located on, or close to, the western side boundary and there is little to no opportunity for any landscaping or softening of the view of the dwelling from the neighbouring property.
ii
The dwelling is setback 1.2 metres at ground level and 1.72 metres at first floor level from the southern rear boundary and there is, again, little opportunity for any landscaping or softening of the view of the dwelling from the neighbouring property.
iii
The dwelling has a first floor area that is approximately half the ground floor area and it is sited closest to the rear boundary of the site, which is a sensitive interface with Mrs Dixon's private back garden area.
29 The combination of the middle dwelling, two single garages, extensive driveway and turning areas and the rear dwelling create an expansive built form and hard paved area that is not respectful of the back garden character of this immediate neighbourhood. I agree with Mr Hocking that the first floor levels of the middle and rear dwellings are separated. However, despite this aspect of the design, I find that the two storey dwelling at the rear of the site, in particular, is an inappropriate response to this existing character and this is further exacerbated by the remaining expanse of buildings and hard paving.
30 Mr Hocking suggested that the landscaping in the rear northwest section of the site could be improved as the turning circle is generous. I do note that Mr Hanna questioned the adequacy of the turning circle for unit 3. However, accepting that some alterations could be made to this turning circle, including reviewing its adequacy and increasing the garden bed at the end of the driveway/turning circle, I find such an alteration is not sufficient to overcome my concerns about the visual bulk of the two storey rear dwelling, nor the remaining expanse of buildings and hard paving.
31 The private open space area for the proposed front dwelling is located on its southern side and Mr Simkus pointed out that the dimensions of this area do not comply with clause 55.05-5. He advised the setback of the first floor should be 7 metres rather than about 4.5 metres. I note the private open space area extends adjacent to the laundry, kitchen, meals area and the garage of the dwelling, with the widest section (5.09 metres) adjacent to the garage. Mr Hocking pointed out that the first floor area above the garage is setback about 6.4 metres, and he suggested this section of the first floor could be setback further to achieve the required 7 metres.
32 The objective of clause 55.05-5 is to allow solar access into the secluded private open space of new dwellings and the decision guidelines to be considered are the design response, and the useability and amenity of the secluded private open space based on the sunlight it will receive. The Planning Scheme defines secluded private open space as:
That part of private open space primarily intended for outdoor living activities which enjoys a reasonable amount of privacy.
33 The total rear area of private open space is the only secluded private space for this dwelling and, as such, I find it should be useable and have a reasonable level of amenity, including reasonable access to sunlight. I do not consider partial compliance with clause 55.05 for that part of the private space closest to the garage produces an acceptable outcome. In my opinion, all of this secluded private open space area should comply with the standard of clause 55.05-5 in order to meet the objective.
34 Mr Hanna expressed concern about the loss of morning sun into the windows of his dwelling that face this site. I agree that a shadow from the front two dwellings will extend across some of these windows at 9.00am, however throughout the remainder of the day, these windows will not be affected by shadows from this proposal. Therefore, I am of the opinion that the loss of early morning sun into some of these windows is not unreasonable.
35 Mr Sporton expressed concern about the obstruction of city views from the first floor master bedroom window of his house. In the matter of Juliano, Furletti and Scott & Ors v Melbourne CC & Omiros Pty Ltd (Application for Review No 1999/19285), the Tribunal made findings on the preservation of Melbourne skyline views from residential units in Carlton. The Tribunal noted the consistently applied principle that there is no legal right to a view but acknowledged situations in rural or coastal locations where views may be of substantial importance in terms of amenity and therefore a significant relevant consideration. The Tribunal went on to state:
However, in an inner urban situation, and particularly in a location where planning controls allow and encourage high or medium density developments, a view is something that is fortuitously enjoyed and cannot be the sole or even major determinant of what type of development may be permitted in adjacent areas.
... we conclude further that the reference to protection and enhancement of "landmarks, views and vistas" in Clause 19 of the Planning Scheme is designed to encourage the urban form to respect significant viewpoints from the public realm rather than to protect private views. The protection of private views in areas where high or medium rise buildings are encouraged would in our view cause significant inhibition upon development and would be opposed to the central thrust of current planning policy.
36 These comments have been considered and applied in other urban areas[1] and are relevant to Mr Sporton's concern. The planning policy framework of the Maribyrnong Planning Scheme supports urban consolidation in established residential areas and this may include medium density housing. Further, the Residential Land Use and Development local planning policy identifies the Municipal Strategic Statement's desire to encourage small scale medium density development. I wish to comment that I do not consider "small scale" to mean single storey, particularly as I pointed out earlier that this policy distinguishes residential development greater than two storeys in height. However, regardless of the interpretation of this term, it is clear that the current policy context does support the redevelopment of this site for medium density housing. In light of the current policy context of the Planning Scheme I am of the opinion there cannot be a reasonable expectation that an inner urban city view will be retained, particularly when there is nothing in the Planning Scheme that directs the Council or the Tribunal to consider such views as an issue. For these reasons, and noting that the view in question is gained from a bedroom rather than a main living room, I consider that the loss of this view does not represent an unreasonable impact upon Mr Sporton's amenity.
37 Mr Sporton questioned the adequacy of the parking provision and Mr Hanna stated that parking is difficult in the street. I find the provision of car parking is in accordance with the clause 55 standards and the Council has raised no concerns about the provision; therefore I see no reason to deviate from the standard of car parking provision generally required throughout metropolitan Melbourne.
38 Mr Sporton raised concern about the number of garbage bins that will need to be collected along the site's frontage. Whilst I agree that there may be a number of bins due to Council's requirements for recycling and the like, such occasions are limited to regular collection times and the placement of bins at the front of the property at such times will not cause detriment to the surrounding area. If there are collection difficulties for the garbage trucks in this street for some reason, I am aware that some municipalities require residents to place the bins on the road pavement for collection or they have garbage men that assist in garbage collection by wheeling the bins between the truck and the pavement. Again, such measures would be limited to regular collection times and would affect the wider street rather than just this site; therefore I do not consider this aspect of the development to be sufficiently problematic as to warrant refusal of a proposal for medium density housing on this site.
For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.
[1] See Gatum Holdings v Banyule CC [2004] VCAT 1035 and Panorama Craft PL v Yarra CC [2005] VCAT 521
Petrarca
Maribyrnong CC [2005] VCAT 2483
The Responsible Authority's decision to refuse the permit was affirmed. The Tribunal ordered that no permit be issued pursuant to section 85(1)(a) of the Planning and Environment Act 1987.