Responsible Authority Port Phillip City Council

Medium Neutral Citation [2002] VCAT 827

The decision of the Responsible Authority is affirmed and a planning permit shall issue in the terms of the Notice of Decision 382/2001 dated 21/8/01.

Mr Joel Fredman, Town Planner, appeared for the Responsible Authority.

Mrs Gaye McKenzie, Town Planning Consultant, appeared for the permit applicant.

Applications have been made under Section 82 and 80 of the Planning and Environment Act 1987 for review of a decision to grant a permit and for review of conditions on a permit.

The land is located within a Residential 1 Zone under the Port Phillip Planning Scheme and is affected by Heritage Overlay (HO1) and the Special Building Overlay (SBO).

"1. I object to any wall exceeding 3 metres in height being constructed on boundary.

2. I object to the depth and extent of construction on the boundary.

3. The amended proposal will cause me to suffer significant loss of amenity.

4. I object to advertising of plans that misrepresented buildings adjoining, and the demolition of a privately owned and constructed fence."

Permit Applicant's Grounds for Which it Will Rely

"1. The proposed extension to the existing dwelling on the site is in accordance with relevant planning policy.

2. The siting of the proposed extension is appropriate in the context of the built form in this local area.

3. The siting of the extension will not have a significant effect on the amenity of neighbouring properties."

Conditions Against Which Review is Sought by the Permit Applicant

"1. Before the development starts, amended plans to the satisfaction of the Responsible Authority 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 provided. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted but modified to show:

b) An increase in the setback of the rear first floor master bedroom to a minimum of 1 metre from the northern property boundary for a minium length of 4.8 metres.

Applicant's Grounds for Review of Condition 1(b)

"The proposal to site the two storey wall on the northern (side) boundary of the site is appropriate in the neighbourhood context and its location will not detract from the overall amenity of the adjoining property to the north."

1. The application for review of the decision to grant a permit has been brought by a neighbour, whilst the permit applicant has brought the application to review a condition, both against decisions by Port Phillip City Council.

2. Mrs McKenzie sought leave to substitute amended plans for those that accompanied the original application for permit. There being no objection, leave was granted.

4. The parties presented oral argument supported by written submissions. These and the photographs and other material handed up at the review have been attached to the Tribunal's file.

5. The Tribunal has inspected the site and surrounds.

6. Mr Fredman has described the subject site and locality. The following is an extract, which I adopt:

"The subject site is located on the eastern side of Nott Street, between Pool and Farrell Streets, Port Melbourne and has access at the rear via Lalor Street. ...

The subject site is currently occupied by a single storey, single fronted weatherboard Victorian dwelling. The subject dwelling is attached to single storey dwellings on both sides, and contains a relatively large area of private open space toward the rear of the site.

The adjoining dwelling to the south, at No. 168 Nott Street, is of a similar style to the subject dwelling. This house has a boundary wall which extends approximately 5 metres beyond the building line of the subject dwelling. The adjoining dwelling to the north, at No. 172 Nott Street, contains a single storey dwelling on a wider allotment which extends toward the rear of the site approximately 2 metres less than the subject dwelling. A garage of approximately 12.4 metres in length is located in the rear of this property, with recent planning approval (Planning Permit No. 905/2001) for a second storey addition to the garage.

The property at No. 166 Nott Street has been redeveloped for the purposes of double storey dwellings. The western side of Lalor Street is predominately characterised by garages and associated car parking structures, whilst the eastern side of the street contains a variety of commercial and warehouse buildings."

7. As previously stated, the land is located within a Residential 1 Zone under the Port Phillip Planning Scheme and falls within a Heritage Overlay, HO1 and Special Building Overlay (SBO) Controls.

8. Under Clause 32.01 of the Scheme, the purpose of the zone includes:

"* To implement State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of households."

9. Clause 32.01-4 requires the Responsible Authority, before deciding on an application to consider, in addition to the guidelines in Clause 65, the Good Design Guide for Medium Density Housing.

10. Under Clause 43.01, Heritage Overlay (HO1) has the following purpose:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To conserve and enhance heritage places of natural or cultural significance.

* To conserve and enhance those elements which contribute to the significance of heritage places.

* To ensure that development does not adversely affect the significance of heritage places.

* To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place."

11. Under Clause 44.05, Special Building Overlay (SBO) has the following purpose:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To identify land in urban areas liable to inundation by overland flows from the urban drainage system as determined by, or in consultation with, the floodplain management authority.

* To ensure that development maintains the free passage and temporary storage of floodwaters, minimises flood damage, is compatible with the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

* To protect water quality in accordance with the provisions of relevant State Environment Protection Policies, particularly in accordance with Clauses 33 and 35 of the State Environment Protection Policy (Waters of Victoria)."

12. The Municipal Strategic Statement establishes the strategic planning policies and objectives that underpin the land-use and development provisions of the Planning Scheme.

13. By Amendment C5 to the Planning Scheme, approved by the Minister in December 2000, introduced a new format in relation to policies relating to Neighbourhood Character and Heritage.

14. Mr Fredman's submission provided information with regard to key issues contained in Clause 21.03, and Port Phillip's Vision in Clause 21.04.

15. At Clause 21.05-1 - Residential Land Use, the relevant objectives and strategies include:

"* To protect the important heritage and streetscape characteristics of the established residential areas.

* To ensure a high level of amenity for residents, including adequate open space, privacy, sunlight and daylight, parking and transport options.

* Encourage design excellence for all residential development, with an emphasis on preserving and enhancing the built and natural environment of Port Phillip, and conserving resources and energy.

* Support the restoration and renovation (rather than replacement) of older dwellings to encourage their retention and to ensure that they meet current day housing standards."

16. At Clause 21.05-3 - Neighbourhood Character, the relevant objectives and strategies include:

"* To protect and enhance the distinctive and valued character of each of the neighbourhoods within Port Phillip, and particularly those elements that contribute to a sense of place, community, and identity.

* To conserve and enhance the rich architectural and cultural heritage of Port Phillip.

* To encourage development that is responsive to the site and its context, integrates with and enhances he prevailing neighbourhood character.

* Protect the heritage places and streetscapes throughout Port Phillip and ensure that new development respects and enhances the scale, form and setbacks of nearby heritage buildings.

* Retain the low rise scale of established residential areas.

* Encourage the design of new buildings, and alterations and additions to existing buildings to respond to the characteristics of existing buildings adjacent to and in the immediate vicinity of the site including the prevailing scale, orientation, side and rear setbacks, and to enhance the character of the surrounding area."

17. The Council's submission provides excerpts from the Planning Scheme which go to supporting their decision to grant a permit. These excerpts include:

Relevant objectives and strategies at Clause 21.05-5 - Heritage Conservation Clause; objectives in relation to Residential Neighbourhood Character Policy at Clause 22.01 and general policies in relation to the Port Phillip Neighbourhood. At Clause 22.04 the Port Phillip Heritage Policy sets out the objectives.

In regard to Building Siting, Scale and Massing - the following is relevant to this application:

* do not change the original principal façade(s) or roof.

* are distinguishable from the original parts of the heritage place to be conserved if a contemporary architectural approach is used.

* are based on research that can identify the elements, detailing and finishes originally employed.

* do not obscure or alter an element that contributes to the significance of the heritage place.

* maintain an existing vista or viewlines to the principal façade(s) of a heritage place.

* An upper storey addition is sited and massed behind the principal façade so that it preferably is not visible, particularly in intact or consistent streetscapes.

* If visible, the roof form of any addition is related to that of the heritage place.

* Where the property is located on a corner site the upper storey addition is sited and massed so it is visually recessive from the building's main frontage so that the scale of the heritage place is the dominant element in either streetscape."

18. 19 March 2001 Application for planning permit lodged with the Responsible Authority.

19. 23 March 2001 Council sought further information.

20. 3 April 2001 Council certified the Site Analysis and Design Response.

21. 2 May 2001 The proposal was advertised to neighbouring property owners and occupiers and two objections were received.

22. 21 August 2001 Council issued a Notice of Decision to Grant a Permit.

23. 13 September 2001 VCAT received application for review from the objector.

24. 11 October 2001 VCAT received application for review of conditions from the permit applicant.

25. Mr Fredman has described the proposal as follows:

"The proposal involves additions and alterations to the existing dwelling.

The plans originally submitted with the application incorporated the following design elements:

* Ground floor addition comprising new kitchen, dining and living area. Ground floor addition is to be constructed to both side boundaries, and is to extend approximately 4 metres to the rear of the site, in line with the dwelling at No. 168 Nott Street.

* First floor addition is to incorporate two bedrooms and a bathroom, and is also proposed to be constructed to both side boundaries, with wall heights of 6.3 metres.

* Face brick walls to side boundaries. Corrugated iron hipped roof to proposed additions.

* Proposed upper level addition is setback 10.2 metres from the front façade of the existing dwelling.

* Proposed upper level addition sits within a 13o sightline from the height of the gutter line to the top of the second storey roof. The bulk of the addition sits within the 10o sightline.

* A 1.0 metre setback from the northern property boundary to the north-eastern corner of the proposed first floor master bedroom, extending approximately 4.8 metres from the proposed rear of the extension.

* Obscure glazing to the east facing first floor windows."

26. The Tribunal notes that the proposal meets the requirements of the Heritage Overlay and as such Technique EG-T4 with respect to heights and setbacks does not apply - reference the note on page 4 of 6 of Element 6. However quite clearly if the northern wall of the master bedroom was to be permitted on the north boundary, there would be significant amenity loss to the adjoining owners.

27. Such a situation is unacceptable under Clause 22.01 of the Planning Scheme which states:

"Discourage new development, including alterations to existing buildings that cannot be achieved without adversely affecting the character of the surrounding area or the amenity of adjoining properties_." (my emphasis)_

28. The Tribunal finds in favour of Council's condition requiring the 1m setback for the north wall of the master bedroom as shown on Drawing PD04 Amendment "D".

29. The Tribunal finds that the Condition 1(b) provides a balanced response to the objector's grounds of objection numbers 1, 2 and 3. The Tribunal agrees with Council that the fourth ground, with respect to an existing fence, is not a planning matter and must be resolved between the parties.