appellant. Council's refusal was set aside. A permit was granted for a double-storey dwelling on the land, generally in accordance with the endorsed plans and subject to the conditions in the order's...
Key principles
On the facts of this application, a contemporary two-storey dwelling could be an acceptable response to the site and neighbourhood even though it differed substantially from the...
The proposed development was acceptable subject to changes addressing its interface with adjoining properties and its presentation to the street, including setbacks to parts of...
In assessing departures from the applicable Clause 54 standards, the Tribunal considered the site's narrow frontage and irregular shape, its location near a major activity centre...
Issues before the court
Whether the proposed dwelling was an acceptable response to neighbourhood character and the site's context.
Whether the proposal's departures from Clause 54 standards concerning site coverage, setbacks, walls on boundaries and the front fence were...
Whether a permit should be granted on review of Council's refusal.
Plain English Summary
The Tribunal allowed the architect's review and granted a permit for the proposed two-storey house. It accepted that the new design did not have to copy the adjoining house, given the area's mixed architecture and the absence of an overlay requiring a particular style. It nevertheless required changes to reduce effects on neighbours and the street, including changes to upper-floor setbacks and balconies and a three-metre setback for the front fence.
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Deep Dive
2,183 words · generated 29/09/2026
What happened
Phillip Crouch Architects applied to the Victorian Civil and Administrative Tribunal for review of Bayside City Council's refusal of a planning permit. The application concerned a double-storey dwelling at 49 Burrows Street, Brighton. The Tribunal identified the proceeding as a review under section 77 of the Planning and Environment Act 1987. Its order set aside Council's decision and directed Council to issue a permit under section 85(1)(b).
Cited legislation
1 cited instrument linked from this judgment.
The subject site measured 396 square metres, with a frontage of 11.49 metres and a depth of approximately 39 metres. It was occupied by a single-storey brick dwelling that formed one half of a pair with No. 47. The existing dwelling at No. 49 sat 4.5 metres forward of the house at No. 47. The proposal replaced it with a contemporary two-storey house, using the existing front setback of 7.8 metres. The design included a double garage and a new vehicle crossing, replacing the existing arrangement under which the dwelling's car space was in a garage south of No. 47 and accessed through common property.
Council refused the application on neighbourhood-character grounds and identified non-compliance with Clause 54 Standards A3, A5, A10, A11 and A20. Those standards concerned street setback, site coverage, side and rear setbacks, walls on boundaries, and the front fence. Council's officer had recommended approval subject to conditions, and the officer's report recorded that the Council urban designer did not object subject to conditions.
The Tribunal's order was not an unconditional approval of the submitted design. It required revised plans. Among other matters, those plans had to show a 1.5-metre first-floor southern setback beside No. 47, a rear balcony that did not project beyond the ground-floor living-room wall, and a front fence set back at least three metres from the street frontage. Other conditions addressed privacy screening, landscaping, drainage, Melbourne Water requirements, driveway details and building materials. The order therefore records a conditional planning judgment: the development was acceptable with modifications.
Why the court decided this way
The Tribunal began with the planning context. The site was in the Residential 1 Zone and subject to a Special Building Overlay. It was also shown in Design and Development Overlay Schedule 6, described as Interim Built Form Standards for Major Activity Centres. The reasons state that this overlay expired on 30 June 2009. The site was close to the Church Street Brighton Major Activity Centre and, under the strategic framework plan, was in a Residential Opportunity Area where higher-density housing was encouraged.
The Tribunal also considered Clause 22.07, the Bayside Neighbourhood Character policy. The site's precinct description envisaged varied dwelling styles, established gardens, and new buildings that respect older buildings' styles and scales without simply replicating them. Its guidelines included maintaining garden settings and visual separation, limiting the dominance of car parking, respecting adjoining heritage qualities, and using innovative architectural responses.
Council argued that the contemporary design did not respond sensitively to the context. Its concerns included the relationship with the attached house at No. 47, continuous two-storey massing, limited side setbacks, the first floor's prominence, the garage and driveway, the proposed two-metre solid fence and the flat roof. The applicant argued that the area included high fencing and varied architecture, and that the existing house offered limited amenity and inconvenient parking.
The Member's inspection confirmed a mixture of architectural styles in the street. The Tribunal accepted that replacement dwellings tended to use more classical masonry and hipped roofing, but did not treat those patterns as a rule that excluded different architecture. It observed that the area was not covered by an overlay requiring a particular design, style or look, and that no permit was required to demolish the existing house. It therefore rejected the proposition that a new dwelling necessarily had to blend with No. 47.
That conclusion did not mean that visual effects on neighbours were irrelevant. The Tribunal accepted that a two-storey house at the proposed setback would dominate the single-storey house at No. 47. It considered the first-floor setback of 1.5 metres beside No. 47 a suitable interface response. It also required the western rear balcony to be recessed so that it did not project beyond the ground-floor wall. The Member reasoned that the overhanging first floor would otherwise present a 6.5-metre-high structure within three metres of the boundary beside the secluded private open space of No. 46 Well Street.
The Tribunal assessed the Clause 54 departures separately. It accepted 55 per cent site coverage, despite the applicable variation to a 50 per cent standard, having regard to the site's narrow frontage and irregular shape and its proximity to a major activity centre and fixed rail transport. It endorsed the Council officer's explanation of the setback approach, including the site's position between the activity centre and residential hinterland. It recorded that submissions indicated Standard A11 was met.
The front fence was treated differently. The proposal was for a two-metre solid masonry fence 1.3 metres from the front boundary, while the standard recommended a maximum height of 1.2 metres. The Tribunal was not persuaded that a high solid fence was characteristic of this side of Burrows Street. It considered that the fence, together with the driveway and garage, would create a solid barrier and leave little garden visible from the street. The required three-metre setback was intended to allow planting to soften the fence and building while retaining a front courtyard.
Before and after state of the law
The judgment does not set out a comprehensive account of the law before and after the decision, nor does it announce a legislative change or a general new test. It is a VCAT decision applying the planning scheme to one permit-review application. Its reasoning is best read as an example of how the Member assessed the particular design, site and policy context, rather than as a replacement for the scheme provisions themselves.
The provisions and policies expressly identified include section 77 and section 85(1)(b) of the Planning and Environment Act 1987; Clauses 11, 12, 14, 15.12, 16.01, 21, 22.07, 54 and 65 of the Bayside Planning Scheme; and the permit triggers in Clauses 32.01-4 and 44.05. The reasons also discuss Standards A3, A5, A10, A11, A15 and A20. The permit was needed because the lot was under 500 square metres and because of the Special Building Overlay, as described in the document.
The judgment's practical contribution is its application of those provisions to the facts. It shows that a marked architectural departure from adjoining buildings was not, by itself, decisive in this precinct where the Member found mixed styles and no overlay prescribing a particular appearance. It also shows that acceptance of an overall design could depend on targeted changes to adjoining interfaces, private open space and streetscape presentation.
The source does not establish how the law changed after the decision, whether later amendments altered the relevant provisions, or whether the decision was appealed. Any account of subsequent statutory or scheme changes would require sources beyond the supplied judgment.
Key passages with plain-English translation
The supplied text does not preserve stable paragraph numbering for the reasons: the numbering restarts under different headings and appears as list numbering rather than continuous judgment paragraph numbers. For that reason, the passages below are identified by the relevant reasoning section rather than by an unreliable paragraph reference.
In the section addressing design and context, the Member said the area was not covered by an overlay requiring a particular design, style or look. In plain English, the fact that the new dwelling looked different from the existing pair was not enough, on its own, to require refusal. The Tribunal still considered the area's character policy, but it did not treat that policy as requiring architectural imitation.
The Member also stated that the new house did not have to “blend” with No. 47. In context, that observation was qualified: the Tribunal recognised the proposed house would dominate the adjoining single-storey dwelling because of the difference in front setbacks and height. It addressed that relationship through a required first-floor setback rather than by requiring the whole design to copy the adjoining house.
On the rear balcony, the Member focused on the effect of the upper-level overhang on the neighbouring property's secluded private open space. The condition required the balcony to be recessed so it did not extend past the ground-floor wall. The reasoning reflects a distinction between accepting a contemporary overall design and requiring a particular element to be altered because of its proximity and scale.
On the front fence, the Tribunal found that a two-metre solid wall, combined with a driveway and garage, would present a barrier to the street. The three-metre setback was intended to create room for shrubs and trees to soften that presentation. In plain English, the fence's effect was assessed together with the other elements occupying the frontage, rather than in isolation.
Finally, the conclusion described the proposal as acceptable subject to modifications reducing the dominance of the first floor and the front fence, along with other conditions. This is important because the decision should not be read as approving every part of the original plans unchanged.
What fact patterns trigger this precedent
The decision is most relevant as a comparison where a residential proposal involves a small or constrained lot, a significant design departure from nearby housing, and planning controls that assess neighbourhood character without requiring a single architectural style. The factual features that mattered here included the 396-square-metre lot, its narrow frontage and irregular shape, the dwelling's existing relationship to an attached house, and the site's proximity to an activity centre and rail transport.
The case may also be a useful point of comparison where the policy framework supports housing opportunity or higher density but the design raises local interface concerns. The Tribunal did not treat those considerations as mutually exclusive. It accepted a two-storey contemporary dwelling while requiring modifications to reduce effects on neighbouring properties and the streetscape.
The decision is also pertinent where the assessment concerns several Clause 54 standards at once. The Tribunal considered site coverage, side and rear setbacks, walls on boundaries and front fencing in the particular physical and policy context. Its treatment of the front fence illustrates that an element's cumulative effect with a driveway and garage may matter to the streetscape assessment.
The judgment does not establish that every contemporary design, every two-storey dwelling or every departure from a residential standard should be approved. It does not remove the need to assess the applicable planning scheme, site conditions, adjoining uses and proposed conditions. The outcome depended on the proposal and modifications before the Tribunal.
How later courts have treated it
The supplied material contains no later judgments, appeal history or citations to this decision by subsequent courts or tribunals. It is therefore not possible, on the source provided, to say whether later decision-makers followed, distinguished, questioned or otherwise treated this case.
The judgment itself does not cite other cases in its reasons. Its reasoning is based on the planning scheme provisions and policies, submissions, Council's officer report and the Member's site inspection. The precedent-relationship field is consequently empty rather than populated with assumed case citations.
For professional research, later treatment would need to be checked against a separate, reliable case-law database or other legal source. No conclusion about the decision's present status or later influence can be drawn from this judgment text alone.
Still-open questions
Several matters remain outside the source. First, the judgment does not explain the effect, if any, of the Design and Development Overlay Schedule 6's stated expiry on 30 June 2009 beyond noting that the site was shown on the planning scheme map and that the overlay text stated the expiry date. It does not provide a fuller legal analysis of how that expiry affected the application.
Second, the judgment does not set out the complete text of every scheme provision or standard. It identifies the standards and discusses the relevant departures, but a full assessment of another proposal would require the applicable scheme text and controls for that proposal.
Third, the document says the Tribunal's permit was generally in accordance with endorsed plans and includes extensive conditions, but it does not reproduce the complete plans. The exact built form approved therefore cannot be reconstructed solely from the reasons and conditions.
Fourth, the decision does not establish whether the permit was implemented, whether its conditions were later amended, or whether any later proceedings concerned the site. Nor does the supplied material show how subsequent decision-makers have treated its approach to architectural difference, residential opportunity areas, site coverage or front fences.
Finally, the reasons are fact-specific and do not provide a universal rule for balancing housing opportunity against neighbourhood-character concerns. The judgment's clearest practical point is narrower: in this case, the Tribunal accepted a contemporary design in a mixed-style street, but only subject to modifications addressing identified effects on adjoining properties and the public-facing streetscape.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (31 paragraphs)
[1]
Phillip Crouch Architects v Bayside CC [2009] VCAT 2244 (28 October 2009)
[2]
Section 77 of the Planning and Environment Act 1987; Bayside Planning Scheme; Residential 1 Zone; Special Building Overlay; Location Near Major Activity Centre; Design Response to Neighbourhood Character.
In permit application 2008/705/1, the decision of the Responsible Authority is set aside. A permit is granted for the development of a double storey dwelling on a lot less than 500 sq m in a Design and Development Overlay and a Special Building Overlay at 49 Burrows Street, Brighton, generally in accordance with the endorsed plans subject to the conditions contained in the appendix of this order.
Approval is sought to develop the site for a double storey dwelling. It is constructed to the southern boundary attached to the existing single storey dwelling at No. 47. The front setback is 7.8 metres, the same as the existing house the new dwelling replaces.
[6]
The new dwelling is also constructed to the northern boundary for the length of the garage and the laundry/kitchen area. Unlike the current arrangement of relying on one of the car spaces in a double garage located south of the house at No. 47, the proposal is to have a double garage in the new house with a new crossover and driveway.
[7]
The design of the house is modern with a cubic appearance, a complete break away from the conventional face brick hipped tiled roof of the house it replaces and the house it is attached to.
[8]
Residential 1 Zone. Special Building Overlay, Design and Development Overlay Schedule 6[1].
Burrows Street runs nearly parallel to the Sandringham Railway Line north of the Dendy Street-New Street roundabout in Brighton. The site is on the west side (north west) of the street. It has a frontage of 11.49 metres, a depth of approximately 39 metres, and a site area of 396 sq m. It is developed with a single story brick house as one of a pair with No. 47 to the south. The house on the land, however, sits forward of the house at No. 47 by 4.5 metres.
[11]
Car parking for the existing house is one of the car spaces in the double garage building south of No. 47. This garage is accessed from Burrows Street via a strip of common property south of No. 47. It means there is currently no direct access to this car space without crossing the front yard of No. 47 or without walking out into the street and access the common property.
[12]
Development surrounding the site is residential of single and double storey heights.
[13]
The review applicant proposes to develop the site for a double storey dwelling in place of the existing single storey dwelling. The new house will sit 4.5 metres forward of the house to the south at No. 47, making use of the existing footprint of the house to be demolished. The design of the new house is a complete break from the architecture of the house it replaces and the house it is attached to at No. 47. Council refused the application on the grounds of neighbourhood character and failure to comply with Standards A3 (street setback), A5 (site coverage), A10 (side and rear setbacks), A11 (walls on boundaries) and A20 (front fence) of Clause 54. Council officer's report, however, recommended approval subject to conditions.
The permit applicant has lodged an application to review Council's refusal. The Tribunal must determine whether a permit should be granted, and if so, subject to what conditions. Having considered all submissions based on the provisions and policies in the Bayside Planning Scheme ("the Scheme"), assisted by my inspection, I will allow the application for review. In setting out the reasons for my decision, I do not recite all of the documentation tendered by the parties as all material is kept on file.
[14]
The proposal is for a dwelling. A permit is not required for the use. A permit is triggered because the size of the lot is under 500 sq m. The provisions of Clause 54 apply.
The site is located in the Design and Development Overlay Schedule 6 (Interim Built Form Standards for Major Activity Centre) and is close to the Brighton Church Street Major Activity Centre. The objective of this overlay is to ensure that the height of development is compatible with the character of a particular major activity. This overlay expired on 30 June 2009.
In the Strategic Framework Plan of Clause 21.04 (Vision and Overarching Goals), the site is located in the Residential Opportunity Area where higher density housing is encouraged.
With regard to neighbourhood character, the policy of Clause 22.07 (Bayside Neighbourhood Character) applies. The site is in Precinct B2 of this policy. The preferred Future Character for this precinct cites:
[15]
The diverse dwelling styles, with a continued presence of pre WW2 dwellings, sit within established gardens with occasional tall canopy trees. Side setbacks on both sides, and the setting back of car ports/garages from the dwelling, allows for vegetation to flow around the dwellings. New buildings blend with the existing, through using a variety of materials or colours within front facades, and by respecting the older building styles and scales or colours within front facades, and by respecting the older building styles and scales without replicating them. Open style front fencing improves the visual connection between the dwelling and the street. Street tree planting consistency is improved to provide a unifying element to the area.
[16]
The design guidelines for the precinct have the following objectives:
To encourage the retention of dwellings that contribute to the valued character of the precinct;
To maintain and enhance the garden settings
To maintain the rhythm of spacious visual separation between buildings and provide space for front gardens
To minimise the loss of front garden space and the dominance of car parking facilities
To ensure new development respect the dominant building forms and scale of buildings in the precinct, through the use of innovative architectural response
To respect the identified heritage qualities of adjoining buildings
To use a variety of building materials and finishes to provide visual interest to the streetscape
To improve the visual connection between the dwellings and the streetscape and encourage views to front gardens.
The other relevant consideration is the variations to several of the standards of Clause 54 in the Scheme: A3 for street setback adopting the greater of the setbacks of the adjoining buildings or 9 metres; A5 for site coverage of 50%; A10 side and rear setbacks for setting back a minimum of 2 metres from the side and 3 metres from the rear plus 0.6 metres for every metre over 3.6 metres, and A20 where front fence is not to exceed 1.2 metres.
[17]
Whether the design responds to the policy and context of the site?
[18]
On behalf of Council, Mr. Kane submitted that the design of the new house is not a sensitive or sympathetic response to the context of the site and that it has failed to respond to the site's existing conditions. He argued that there is a tension between policies that support the modernisation of an existing dwelling and those that seek to protect residential amenity and neighbourhood character. He identified the challenges of the site as:
The current house is half of a duplex and sharing a party wall with the house at No. 47;
[19]
The design should be one that does not dominate the house it shares a party wall with but blend in with it.
[20]
To Council, therefore, the proposal has failed in the following areas:
The new dwelling dominating the house at No. 47. Its front façade presenting a strong vertical element that ensures the new house is out of keeping with the neighbourhood.
Continuous two storey massing for almost the entire width of the site with minimal articulation and side setbacks;
A very dominating structure in the streetscape that is difficult to be softened with landscaping;
Inadequate side setbacks to provide visual separation or relief between dwellings;
First floor not recessive;
Dominance of garage and driveway as discouraged by the precinct guidelines;
The proposed 2 metre high front fence dominating the streetscape;
[21]
Proposed flat roof a departure from the hipped and gabled roofing profile of the area.
[22]
Mr. Little, on the other hand, submitted that the existing house is run down and offers limited internal amenity. For the fact that the car parking space of the existing house is in a building separated from the land and not easy to access is an inconvenience. He noted that the house and the other half of the duplex at No. 47 are not heritage buildings.
With regard to the proposed high fence in the front setback area, he submitted that high front fencing is a character of Burrows Street and they provide privacy for private open space in the front setback area. He defended the design of the building as one with appropriate articulation with expressed and recessed elements at both ground and first floor levels to reduce the appearance of bulk when viewed from adjoining properties. He submitted that the proposal is an appropriate design response to the neighbourhood.
My inspection of the site and area confirmed the mixture of architectural styles in the street. Replacement buildings tend to adopt classical design features in masonry walls and hipped roofing. However, that does not mean other designs must be rejected, given the eclectic designs found in the street.
I agree with Mr. Kane that the design of the new house is a complete departure from the existing house it replaces and the other half of the duplex at No. 47. The question is whether the new house has to look like No. 47 or others in the street. I would think not. The area is not covered by a heritage, neighbourhood character or design and development overlay requiring a particular design, style or look. There is no permit required to demolish the house on the land or at No. 47. The mixed architecture is recognised by the character description for the precinct.
It is true that a two storey house on the site making use of the existing front setback of 7.8 metres will dominate the house at No. 47 because of the much deeper setback of the house at No. 47 at 13.5 metres. This would happen even if the existing house is not replaced by a new building but a first floor extension. To have a house that blends in with single storey house at No. 47 is not an easy task, especially if the design of the new house is contemporary and modern as in this case. Nor should it be a pre-requisite that the new house must 'blend' in with No. 47, given that there is no heritage or neighbourhood character overlay controlling demolition.
[23]
Are the identified departures from Standards of Clause 54 acceptable?
[24]
Council's grounds of refusal nominated several standards where the proposal failed to meet: A3 street setback A5 site coverage, A10 side and rear setback A11 walls on boundaries and A20 front fence.
I have already addressed the street setback earlier in these reasons.
With regard to Standard A5 site coverage, Bayside varied the site coverage from 60% to 50%. I have been advised that the proposed coverage is 55%. Mr. Little justified this percentage because of the limited frontage and irregular shape of the land. He noted that there will still be adequate opportunity for landscaping and provision of private open space.
I accept his argument about site coverage on the site and also by virtue of its proximity to a major activity centre and fixed rail transport.
With regard to Standard A10 (side and rear setbacks), Council acknowledged that it is difficult for the proposal to strictly adhere to the side setback requirement of the Schedule to the zone, one that has been modified to require a higher setback from side boundaries, and that it would be unreasonable for a proposal not to have walls on boundaries. However, it maintained that it is not acceptable to have zero side setbacks on the ground and upper levels and to locate the garage on the boundary.
Council officer's explanation of why a departure from the Bayside varied standard was that the site is located in the Design and Development Overlay Schedule 6 which exempted these sites from the varied standards, and that a reduced setback is a means of achieving a transition in built form from the core of the activity centre (which is expected to be higher and bulkier) to the residential hinterland.
I endorse this analysis, noting that the first floor of the development abutting No. 47 is proposed to be recessed away from that house by a permit condition.
With regard to Standard A11 (walls on boundaries), submissions from the parties indicate that this standard has been met. As such, the objectives for the matter have been met.
The last standard in question is Standard A20 front fence where the standard recommended a maximum of 1.2 metres. The proposal is to have a 2 metre high solid masonry fence within 1.3 metres of the front boundary.
Mr. Little argued that high solid fence is a feature of Burrows Street. My inspection of Burrows Street is that high fencing, not all solid, is more a character on the opposite side of the street, the side that faces the railway line. This makes sense as they would reduce noise nuisance from the railway line.
[25]
The proposal is for a two storey house on a lot less than 500 sq m of narrow frontage and irregular shape.
I form the view that the proposal, subject to modifications in reducing the dominance of the first floor and the proposed front fence that affect the appearance and scale of the adjoining house; and the other modifications recommended in Council's 'without prejudice' conditions, it is an acceptable response for a site identified to be in a residential opportunity area due its proximity to the major activity centre of Church Street Brighton and fixed rail transport.
[26]
Before the development starts three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the substituted plans submitted on 11 March 2009 nit modified to show to the satisfaction of the Responsible Authority:
(a) All wall heights above ground level to be nominated on the plans;
(b) All paving (except driveways) must be permeable. Details of the permeability of the paving must be supplied to the satisfaction of the Responsible Authority;
(c) A schedule of all external materials and finishes must be provided to the buildings and works on the land. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking surface);
(d) The proposed landscape treatment for the site including the existing an proposed species in accordance with the requirement outlined in Condition 8;
(e) Alterations as required by Melbourne Water, as detailed in Conditions 12 , 13, 14 and 15 of this permit;
(f) The first floor southern setback to Bedroom 2 and the ensuite must be increased to 1.5 metres, to be in line with the party wall;
(g) The garage must have minimum internal dimensions of 6.0 metres length and 5.5 metres width, and minimum opening of 5.2 metres;
(h) The driveway must be 3.3 metres wide at the intersection with the footpath, with a 3.35 metre offset from the northern property boundary and a 2.0 metre setback form the existing street trees;
(i) The first floor balcony to the northeast to be screened to a height of 1.7 metres in accordance with Standard A15 of the Clause 54 of the Bayside Planning Scheme;
(j) The first floor balcony on the northwest off the first floor rumpus/sitting room be setback from the rear so that it does not protrude over the wall of the ground floor living room;
(k) The proposed front fence setback a minimum of 3 metres from the street frontage;
(l) The first floor north-western balcony to be screened to a height of 1.7 metres in accordance with Standard A15 of the Clause 54 of the Bayside Planning Scheme;
[27]
All species selected must be to the satisfaction of the Responsible Authority. The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.
[28]
Before the occupation of the development starts or by such later date as is approve by the Responsible Authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
The driveway/parking area/paved courtyards/paths and 'pervious' pavements must be graded/drained to the prevent stormwater discharge either onto the footpath or into the adjacent properties.
Plans for the construction of the outfall drain must receive Bayside City Council approval prior to the commencement of the development.
[29]
No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or water courses.
Finished flor levels of the dwelling must be a minimum of 300mm above the applicable floor level. (The applicable flood level for the property is 9.31 metres to Australian Height Datum).
Finished floor levels of the garage must be a minimum of 150mm above the applicable flood level.
Prior to the issue of a Certificate of occupancy, a certified survey plan, showing finished floor levels 90as constructed) reduced to the Australian Height Datum, must be submitted to Melbourne Water to demonstrate that the floor levels have been constructed in accordance with Melbourne Water's requirements.
This permit will expire if one of the following circumstances applies:
The development is not started within two years of the date of this permit
The development is not completed within four years of the date of this permit.
[30]
The Responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.
[31]
[1] The site is still in the Design and Development Overlay Schedule 6 of the Planning Scheme Map, Interim Built Form Standards for Major Activity Centres. The text of the overlay states that this overlay expires on 30 June 2009.
Parties
Applicant/Plaintiff:
Phillip Crouch Architects
Respondent/Defendant:
Bayside CC [2009] VCAT 2244
Legislation Cited (1)
Environment Act 1987
AI Analysis
Outcomeappellant
Disposition:
Council's refusal was set aside. A permit was granted for a double-storey dwelling on the land, generally in accordance with the endorsed plans and subject to the conditions in the order's appendix. The Responsible Authority was directed to issue the permit under section 85(1)(b) of the Planning and Environment Act 1987.
According to Council officer's report, Council's urban designer did not object to the proposal subject to conditions, which I assume is the recommended 1.5 metres setting back of the front bedroom on the first floor to be in line with the party wall. This modification will reduce the dominance of the new two storey structure sitting in front of the house at No. 47. I agree that this will result in a polite interface with the house at No. 47.
One modification I would require as an interface consideration is the further setting back of the first floor balcony at the rear. The first floor of the proposed dwelling overhangs the ground floor outdoor entertaining deck along the northern and western sides. Not only is this overhang not recessive facing the backyard of No.46 Well Street, it is a 6.5 metre high structure within three metres of the common boundary. To be respectful of that secluded private open space, I would require the balcony at the western end to be recessed so that it does not protrude beyond the ground floor wall.
I should point out that this balcony is proposed to be 3 metres deep and 4.14 metres wide, can be fully enclosed and roofed by a solid structure. When enclosed, the length of this part of the first floor beyond the stair well facing the backyard of No. 46 Well Street is increased to 14.19 metres and cantilevering the ground floor by a depth of approximately 2.2 metres on its northern facade and 1 metre over the western facade. The reduction in the size of the balcony required by a permit condition would not affect the amount of floor area of the dwelling. A 2 metre deep balcony after reduction is still a very useable first floor outdoor space.
Apart from the interface issue as discussed, the proposed two storey built form and making use of the existing front setback (4.5 metres forward of the house at No. 47) is an acceptable design response.
I now turn to the various design details that Council identified as offending several standards in Clause 54.
Solid fencing is not typical on the same side of the review site. Of these fences, the high fence at No. 27 is not solid but a partly see-through fence constructed of diagonal timber slats. The high front fence at No. 43 partly obscured the building but half of it is constructed of see-through of pickets.
I am not persuaded by Mr. Little's argument that the proposed high solid front fence is an appropriate response because it does not occupy the entire street front or that it is not visually dominating the streetscape. The front fence may occupy less than half of the frontage of the lot, but the balance of the frontage is occupied mostly by the driveway to the garage. There is little exposure of garden to the street. Further, the proposed front fence height is confirmed to be of masonry construction and scaled at 2 metres. It will further obscure the visibility of the house at No. 47. Together with the driveway and garage of the house, the proposed fence presents a solid barrier to the street at the detriment of the streetscape.
There will be a permit condition to set the fence 3 metres from the street frontage. This would reduce the dominance of the solid barrier, enabling planting of shrubs and trees in the front setback area to soften the fence and the building and still maintaining a front courtyard of over 5 metres deep for the master bedroom of the dwelling.
(m) The ground floor ensuite reduced in length by 0.7 metres to provide a light court to the adjacent window to the south.
The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Before the occupation of the site commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works and the conditions of this permit must be carried out and completed to the satisfaction of the Responsible Authority.
The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
Vehicular crossing must be constructed to the road to suit the proposed driveway to the satisfaction of the Responsible Authority and any existing crossing o crossing opening must be removed and replaced with footpath, nature strip, and kerb and channel to the satisfaction of the Responsible Authority.
All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible authority.
No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the written consent of the Responsible Authority.
Protective kerbs must be provided to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.
Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided The landscaping plan must show:
(a) A survey (including botanical names) of all existing vegetation to be retained and/or removed
(b) The inclusion of a canopy tree to be planted within the front setback and one canopy tree within the rear private open space of the proposed dwelling;
(c) Buildings and trees )including botanical names) on neighbouring properties within three metres of the boundary;
(d) Details of surface finishes of pathways and driveways;
(e) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
(f) Landscaping and planting within all open areas of the site.