Victorian Civil and Administrative Tribunal|2002-10-04

Refshauge v Yarra CC [2002] VCAT 1230 (4 October 2002)

Planning and Environment List - s 82 Planning and Environment Act 1987 - Yarra Planning Scheme - Mixed Use zone - Heritage Overlay - Environmental Audit Overlay - Good Design Guide - first floor extension to dwelling - impact on heritage significance - impact on amenity.

With respect to permit application no. 00/426, the Responsible Authority's decision to grant a permit is affirmed.

The Responsible Authority is directed to issue a permit for the construction of alterations and addition and associated works in accordance with the endorsed plans on land at 344 Napier Street Fitzroy. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority.

Responsible Authority: Ms A Kastaniotis, Planning Officer.

Permit applicant: Mr D Crowder, Planning Consultant.

Applicants for Review: Mr A Finanzio, barrister, by direct brief.

1. This was an application under Section 82 the Planning and Environment Act 1987 against the Responsible Authority's decision to grant a permit with respect to Permit Application No 00/426. The permit application sought permission for the construction of alterations and additions to an existing dwelling on land at No. 344 Napier Street, Fitzroy.

2. At the commencement of the hearing, Ms Neumann applied to amend the application for review by adding Ms Lynne Wilkinson as a joint applicant. Ms Neumann explained that Ms Wilkinson resides in a property opposite the site and wished to rely on the submissions that had been prepared on behalf of Ms Refshauge. Whilst Mr Crowder initially resisted this amendment, he subsequently withdrew his opposition. Ms Kastaniotis also offered no objection. I allowed the amendment as requested.

3. Mr Crowder applied to amend the application by substituting amended plans. There was no objection from the other parties. I allowed the amendment under clause 64 in schedule 1 of the Victorian Civil and administrative Tribunal Act 1998.

4. On the first day of the hearing, Ms Kastanoitis and Ms Neumann tabled and spoke to written submissions. Ms Neumann also called Mr Harry Gleitman, a registered building practitioner with expertise in the application of computer modelling and Ms Robin Riddett, a heritage consultant, to give evidence. Both witnesses were available for cross examination.

5. This matter had originally been scheduled for one day, on the 7th February 2002. By about 4 o'clock on this day, the witnesses called by Ms Neumann had given their evidence and had been excused and she had completed the presentation of her submission. It was clear that insufficient time was available for Mr Crowder to present his case. As such the matter was listed for continuation on the 14 March 2002.

6. When the hearing resumed, Mr Finanzio appeared for the applicants for review. Mr Finanzio first claimed that it was his understanding that his client's case had not been concluded, and as such, he wished to continue to make submissions. Mr Kastaniotis and Mr Crowder resisted this as it was their clear understanding that Ms Neumann had completed her submission and that it was on this basis that the hearing ended at about 4 o'clock rather than the usual time some 15 minutes later. My recollection of events was consistent with that of Ms Kastaniotis and Mr Crowder. Ms Neumann had quite clearly completed her submission.

7. Mr Finanzio then applied to re-open his client's case and advanced several propositions why this should be so. Whilst this application was resisted by the other parties, after hearing from them I found that Mr Finanzio should be given the opportunity present further information and evidence as it would enable me to be in the best position to make my decision in this matter. This included additional diagrams from Mr Gleitman.

8. After Mr Finanzio completed his submission which included recalling Mr Gleitman, Mr Crowder then made his submission and called Mr Briggs, a heritage consultant and Mr Dwyer, the project architect to give evidence.

9. I should also say that a substantial amount of time was taken up during the hearing concerning issues about the accuracy of the plans and the perspectives which had been prepared by the project architect. Mr Gleitman's evidence in particular, showed different outcomes to those shown in the streetscape perspective that formed part of the application plans. Many of the criticisms related to alleged discrepancies in the order of a few inches and appeared to me to be pedantic, particularly when they were based on scaled measurements. I also note that Ms Neumann was not prepared to call an architect who had identified the alleged inaccuracies in the plans to give evidence. I was advised that the architect in question was not willing to be subject to cross examination. Some claims alleging inaccuracies were just simply wrong and came about because the plans had not been read properly. It would seem that some of the alleged inaccuracies in the plans also came about because Mr Dwyer used information shown on plans for an extension to Ms Refshauge's dwelling which had been given to him.

10. None the less, to overcome concerns about the accuracy of how the proposal had been depicted on the plans, particularly the different outcomes shown on the streetscape perspectives prepared by Mr Gleitman and Mr Dwyer, Mr Crowder and Mr Finanzio agreed that I should inspect the land after a land surveyor had erected poles and tape on the land to depict the external boundaries and height of the proposed upper level extension.

11. These poles and tape were erected under the supervision of Mr Goodison, a land surveyor engaged by Ms Refshauge, so that there would be no dispute between the parties as to the accuracy of what had been erected. I had the benefit of inspecting the land with these structures in place and also viewing the land from within and outside of Ms Refshauge's property on the 12 April 2002. I was accompanied by the parties during my inspection.

12. I must say that the ability to inspect land with such aids in place is somewhat unusual. The impact of a proposal is usually left to professional judgement, a judgement which I and other members of the Tribunal are often called on to make. The availability of the poles and tape none the less provided me with an excellent understanding of the proposed development and its impacts.

13. Subsequent to the hearing and inspection, the parties were advised on my decision and given a statement of oral reasons. The written reasons set out in this document are based on that statement of oral reasons.

14. The subject land is located on the east side of Napier Street, Fitzroy, between Kerr Street and Argyle Street. The land is a slightly irregular rectangular shape with a frontage of about 5.4 metres, a depth of 19.2 metres along the south boundary and a total site area of 104.7 square metres. The land is currently occupied by a single storey Victorian style dwelling which forms part of a group of three similar dwellings. The other two dwellings are on either side at no. 342 which is to the south and no.346 to the north. It was common ground that although the dwelling at no.342 [Ms Refshauge's dwelling] has lost its above verandah parapet, these three dwellings form a distinct group along the streetscape.

15. The dwelling on the subject land covers most of the site with very little in the way of open space being available at the rear. The existing dwelling does not appear to be in a good state of repair and as is often the case with dwellings of this age, it is in need of renovation to bring it up the type of standard that one would expect today.

16. The dwelling on Ms Refshauge's property is built to the common side boundary with the dwelling on the subject land and also the common boundary with a double storey dwelling to its south. Although originally built as a single storey cottage, an upper level extension has been added to the Ms Refshauge's dwelling in the form of what I would essentially describe as a mezzanine level which has what was described as a "lantern roof" with windows that provide for light into the rear of the dwelling and for an upward outlook towards the sky. The "lantern roof" over Ms Refshauge's dwelling is set behind the pitched roof which covers the front part of her dwelling and therefore it cannot be seen from Napier Street.

17. Ms Refshauge's property also provides for a small courtyard to the rear of the dwelling with such courtyard located to the south of a small extension which continues along the north side boundary to the rear boundary.

18. The property to the north of the subject land is also occupied by a single storey dwelling. I understand that the Responsible Authority has issued a permit which allows a first floor addition to this dwelling with an upper level deck located in the front setback area.

19. The subject land is located in what appears to be a relatively intact Victorian setting which is of heritage significance. The built form and the immediate streetscape in neighbouring areas is comprised of a mix of single and double storey buildings which are essentially juxtaposed next to one another. An example of this is the relationship between Ms Refshauge's dwelling with the double storey dwelling on the property immediately to its south.

20. There is also some newer development evident, notably the medium density development to the north and to the east, however these have apparently not occurred on sites which required the demolition of buildings which contributed to the heritage significance of the area. From my observations, I consider that it would be fair to say that these new developments, although quite clearly contemporary in their appearance, have by and large being designed in a manner which is complimentary to the heritage and neighbourhood character of the area.

21. In addition it seems to me that Ms Riddett's observation that the precinct is largely intact is a fairly accurate. There are some examples of buildings which have been tampered with, but these seem to be few and far between.

22. The land subject land is located within the "South Fitzroy Heritage Precinct" which is bounded by Alexandra Parade, Smith Street, Victoria Road and Nicholson Street. The description of the precinct and the statement of its significance are set out in the City of Yarra's Heritage Review. The Statement of Significance for the precinct, as set out in the review, is as follows:

The South Fitzroy Heritage Overlay Precinct is of outstanding significance. Comprising most of Melbourne's first true suburb, the Precinct contains and extraordinarily high density of low rise, predominantly nineteenth century street patterns, building stock and urban infrastructure, dating from the first phase of permanent development and covering almost all building types. While many buildings are typical examples, many stand out as being individually significant, at either state, regional or local levels, for historic, aesthetic, technological and social reasons. Collectively the urban fabric sets the context which presents a microcosmic tableau of nineteenth century urban development and aspects of daily life ranging from the civic to the public, from the residential to the industrial, from the utilitarian to the commercial.

Buildings which are of individual significance and/or make a particular contribution to the precinct are listed in Appendix B

23. In relation to the above its relevant to note that the buildings on the subject land and those immediately surrounding do not have individual significance, rather they make a contextual contribution to the significance of the heritage place.

24. The proposal involves the demolition of the rear part of the existing dwelling, a relatively small extension at ground level plus the provision of a carport together with a new first floor level which is to be setback about 5.2 metres from the frontage.

25. The building works proposed will facilitate the reconfiguration of the use of the building with the ground floor level providing for a sitting room as existing but replacing the existing living/kitchen area with a bedroom. The main living areas, kitchen and what would seem to be the main bedroom are to be located at first floor level. It is relevant that part of the first floor setback area is to be developed as a deck or balcony area which is to be accessible from the bedroom. The balcony area is 2.6 metres wide and stretches across the entire frontage of the land.

* The carport is to be accessed from a 3 metre wide (approx) rear laneway, and

* The rear ground floor open space has an overall area of about 10 metres.

27. Pursuant to the Yarra Planning Scheme the subject land is located within the Mixed Use Zone, the provisions for which are at clause 34.01. The purpose of the zone is:

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

To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality.

To encourage residential development that respects neighbourhood character.

28. "Dwelling" is an "as of right" use within the zone, however, a permit is required under clause 32.04-4 to construct an extension to a dwelling which is located on a lot less than 300 square metres. Given that a permit is required under this provision, the proposal must be assessed against the provisions of the Good Design Guide for Medium Density Housing [GDG] because that the permit application was lodged with the Responsible Authority before the 24 August 2001. As such the transitional provisions of clause 52.04 apply.

29. The land is also affected by the Heritage Overlay [HO334], the provisions for which are at clause 43.01. A permit is required under the overlay to demolish a building and to construct building a building and works. The relevant decision guidelines for this overlay are at clause 43.01-5.

30. I also note that the land is affected by the Environmental Audit Overlay, the provisions for which are at clause 45.03. It would be fair to say that there was not a substantial amount of discussion about this particular overlay during the course of the hearing although Ms Neumann did make the point of saying that the requirements of the overlay had not been taken into account. However, on reviewing the provisions of the overlay, it seems to me that they do not trigger the need for the grant of a permit or the need for a condition to be imposed. Rather the overlay simply sets out a requirement to be met. In terms of the ability for the overlay requirement to be met, there was nothing brought to my attention which would suggest that the environmental conditions of the land would present a problem. This is not surprising given that it would appear that the land has essentially been used for residential purposes. I do not propose to refer to this overlay any further.

31. The other relevant requirements are the decision guidelines at clause 65 which call for, amongst other things, for consideration to be given to the planning scheme's policies [State Planning Policy Framework (SPPF) and Local Planning Policy Frameworks (LPPF)], the impact on the amenity of the area and orderly and proper planning.

32. The decision guidelines at clause 65 call for the various planning policies within the scheme to be considered. In this regard numerous policies within the planning scheme which are, to varying degrees, relevant or applicable to this particular proposal were identified by the parties. Those which are particularly relevant within the State Planning Policy Framework are those at clause 15.11 which relates to "Heritage" and clause 19.03 which is the policy for "Design and built form".

33. There are many references within the Municipal Strategic Statement at Clause 21 which relate to both the need for the urban character of the area to be respected and for the municipality's heritage character, particular its Victorian heritage, to be conserved and enhanced. This in particular is set out at clause 21.05-7.

34. The local policy at clause 22.02 sets out "Development Guidelines of the Heritage Places". This policy is directly applicable to the consideration and assessment of the proposal before me and was the subject of specific consideration by both Mr Briggs and Ms Riddett. I will refer to the various policies as appropriate.

35. After having heard and considered the submissions and evidence, the details of the proposal and the relevant matters under the planning scheme, it seems to me that there are fundamentally three key questions to be addressed.

36. The first is whether the proposed extension and works will have an adverse impact on the significance of the heritage precinct within which the subject land lies and the contribution which the existing building makes to that heritage precinct.

37. The second question is whether the proposed development will have unreasonable impacts on the amenity of the adjoining neighbours, particularly Ms Refshauge's property.

38. The third question is whether the proposed development will provide its future residents with an appropriate standard of residential amenity, particularly with respect to open space and car parking.

39. In considering the first question, the first thing to be said is that I generally accept Ms Riddett's view that the precinct is largely intact. In fact, the level of 'intactness"", that is the extent to which it is free from later intrusions, is, in my view, very high, more so than is often the case in many heritage precincts. There is clearly a presence of post Victorian era development in the precinct, however I do not consider these to be intrusive.

40. The building on the subject land quite clearly makes a contribution to the heritage place. It is a Victorian building that is part of a small group within the streetscape. Although not of individual significance, it none the less plays a role in defining the Victorian context of the precinct.

41. In considering the impact of the proposed extension, it is clear that it will be capable of being seen from Napier Street, particularly when viewed on the oblique from across the other side of the road over Ms Refshauge's property.

42. Whilst Mr Gleitman's block diagram and Mr Dwyer's perspective drawing showed different impacts from a streetscape point of view, it was clear to me during the course of my inspection that the top of the extension will be located about midway up the central pediment over the parapet.

43. Mr Briggs expressed some concern about the proposed extension when he viewed Mr Gleitman's diagram, particularly that the height of the extension would be beyond the height of the central pediment. However, he did say that he would not be concerned if the extension was below the top of the pediment which is what he had initially understood to be occurring based on the perspective prepared by Mr Dwyer. Based on this understanding, Mr Briggs' evidence was that he did not consider that the proposal is at odds with the local policy at clause 22.02 which seeks to avoid new additions which are visible from the street. Whilst the policy clearly discourages visible additions, Mr Briggs pointed out that the policy does not make this a mandatory requirement to be applied in all cases. He went on to say that whilst the extension would be visible, he did not consider it unacceptable given that it would not be a dominant or disruptive element in the streetscape or that it would change the Victorian character of the building. Accordingly, he expressed the view that it would not adversely affect the significance of the heritage precinct.

44. I think it would be fair to say that Ms Riddett took the view that the precinct's importance and high degree of intactness warrants strong application of the principles set down in the policy. Ms Riddett initially took the firm stance that the extension should not be seen at all from Napier Street, even limited views on the oblique. However, in response to some of my questions, Ms Riddett conceded that the ability to see only marginal or very minor views of an extension would perhaps set a more realistic standard. None the less Ms Riddett emphasised that, in her view, the aim should be for extensions of this type not to be seen and that the location, bulk and form of the extension proposed in this case would not be complementary to the heritage precinct as it would be disruptive element within a highly intact streetscape context.

45. At this point I should add that Ms Kastanoitis advised that the Responsible Authority's heritage adviser, who was not called as a witness, did not oppose the proposal in advising the Responsible Authority.

46. In considering this evidence I think that a few points need to be made.

47. First, it is clear that the policy at clause 22.02 encourages extensions to be setback so that they cannot be seen from the street. However, it is also relevant to note that policy cannot and does not set a mandatory requirement. Rather, it is necessary to consider each case on its merits to determine whether the strict application of the policy or otherwise brings about an appropriate and acceptable planning outcome.

48. Second, whilst the provisions of clause 22.02-3.4 say that extensions should normally be permitted only when hidden from the street, it goes on to say that this requirement can be varied in the case of exceptionally small sites provided that the other requirements at clause 22.02-3.3 are met. Therefore, the policy itself recognises that from a practical point of view, there will be circumstances when it is inevitable that part of an upper level extension will be seen from the street.

49. Third, I do not, as a matter of principle accept that because an extension to a building in a heritage precinct can be seen, that this automatically detracts from the heritage value of the building or the precinct. Indeed, as I put to Ms Riddett, there are many cases where first floor extensions are added to dwellings located within heritage precincts, such extensions are clearly visible yet permits are issued. In fact there are cases where extensions are added to buildings which are of regional or even state significance, yet this seems to be acceptable having regard to heritage considerations.

50. The common principles that are usually applied in cases such as this are embraced within the clause 12 of the policy at clause 22.02. In general terms these are that the new extension should be capable of being clearly identifiable as being different from the heritage building, it should be a recessive element which does not dominate the appearance or character the building and surrounding area, nor should the bulk presented be out of place in the precinct. However, I do not consider that these principles necessarily amount to a mandatory requirement that new additions should not be seen from the street. If this were the appropriate standard, then this would be set out as one of the decision guidelines in the heritage overlay and there would be no exception with respect to small sites as set out in the local policy at clause 22.02.

51. On the issue of sites which are "exceptionally small", it is relevant to consider that the subject land itself is around 100 square metres in area. This is a very small site even by inner city standards. There would not be too many sites that would be much smaller than this. In my view, the provisions of the policy at Clause 22.02-3.4 make it clear that there needs to be some common sense applied in dealing with these types of sites and the policy, quite correctly in my view, makes provision for this. It seems to me that the Responsible Authority agrees that this is an appropriate and fair way to interpret this policy evidenced not only by its decision to approve this proposal, but also by its decision to support a similar extension on the property to the north.

52. After having inspected the site and having had the benefit of viewing an outline of the proposed extension depicted by the poles and tape put in place under the supervision of Mr Goodison, I find that the proposed extension has been designed in an appropriate way having regard to the decision guidelines at clause 43.01 and the policy at clause 22.02. Glimpses of the extension will be visible from the street, in the main when standing on the opposite side of Napier Street and on the oblique. These are very limited views. I cannot find that the extension will dominate the street or the appearance of the building nor is the bulk out of place. The host building will still quite clearly retain its Victorian character and it will be apparent that the extension is a new addition and not part of the original building. I do not consider that the extension will detract form the contribution which this building makes to the significance of the heritage place.

53. Whilst still on the issue of the first floor addition and its impact on the streetscape, Mr Crowder raised concerns about the requirements set out in condition 1(c) which essentially requires the roof over the front section of the ground level to be maintained and the upper level deck to be set behind it. Essentially, I accept the Responsible Authority's submission that the condition is appropriate on the basis that the deck should be setback away from the front parapet.

54. Next I turn to the impacts on amenity of Ms Refshauge's property. I do not propose to go through all the evidence and submissions presented on this issue. They have been considered together with the observations which I made during the course of my site inspection. My consideration of the concerns raised follows.

55. First, in relation to concerns raised about the appropriateness of the visual bulk presented by the extension, it is relevant to consider that objective E6.O1 of the Good Design Guide refers to the need to ensure that the setbacks of buildings, building height, the length of walls on boundaries and the visual bulk are "acceptable within the neighbourhood". In other words, the benchmark in assessing what is acceptable relies on the neighbourhood context of the site.

56. In this regard it is difficult to ignore the somewhat mixed character of this particular neighbourhood setting. The subject land and its neighbours are not located in a residential environment dominated by single storey development forms. It is quite clearly a mixed neighbourhood, with double storey and single storey buildings, some of which are commercial, located cheek by jowl with each other. Buildings are typically built to side boundaries including some double storey walls and site coverage is generally high. An obvious example of double storey wall located on a side boundary is that of the building on the property to the south of Ms Refshauge's property, a building which forms part of the character and history of the area.

57. It is in this context, where a mixture of single and double storey buildings exists that I have some difficulty in accepting the proposition put to me by Ms Neumann that the visual bulk presented by the proposed extension is out of place or unacceptable within the neighbourhood setting.

58. Next I turn to concerns raised initially by Ms Neumann and then further argued by Mr Finanzio, about the potential loss of daylight into Ms Refshauge's dwelling due to the southern wall of the extension being located a little over a metre to the north of the lantern roof. On this issue it is relevant to note that daylight enters into the rear extension of Ms Refshauge's dwelling via the lantern roof which has windows facing in a number of different directions. In other words, daylight enters the extension from a number of different directions and is not limited to the north only. Accordingly, the level of daylight entering the extension via the lantern roof will still meet the relevant standard given that it comes from a number of directions. The proposed extension will not have unreasonable impacts on daylight access into Ms Refshauge's dwelling.

59. Next, I turn to the issue of sunlight penetration into the extension. This is perhaps one of the more difficult aspects of this proposal to assess, however, based on the diagrams prepared by Mr Gleitman, it is clear that, at the very least, for six months of the year, the extension will have no impact on sunlight penetration into the extension via the north facing windows of the lantern roof. Mr Gleitman's diagrams also demonstrated that for a short period of about a month, part of the direct north sunlight will be blocked and then for about five months, the northern windows will be full shade. It also needs to be noted that sunlight access is not only available from the north, but also from the east, albeit for a limited time during the morning period. Accordingly, it seems to me that direct sunlight penetration into Ms Refshauge's the dwelling will be available at most times, albeit that it will be reduced during the colder half of the year.

60. The question is therefore whether this impact is reasonable. In making this assessment it is relevant to consider the context of the land which is that of small dwellings within an inner suburban environment. In such a context the reality is that development on adjoining properties is more likely to impact on amenity than say compared to outer areas where there is more opportunity to provide setbacks given that the lots are bigger. Whether or not the impacts of this proposal are reasonable must be considered in light of the land's inner suburban setting and expectations as to what are reasonable impacts on amenity must be predicated on this.

61. In considering this proposal, the evidence demonstrates that the proposed extension will not deny direct sunlight access into Ms Refshauge's dwelling. Rather for six months of the year north sunlight will not be affected, for part of the year there will be access to sunlight from the north and the east whilst at other times direct sunlight will be limited to the morning period. When consideration is given to the inner urban context of the land, the small nature of the subject land and adjoining properties, that adequate daylight is maintained and that sunlight penetration is available, albeit to varying degrees for most of the year, I consider that the requirements of Objective E6.03 are met. I find that the impacts on direct sunlight penetration onto the north windows of the roof lantern are not such that they warrant rejection of the proposal.

62. On the issue of overshadowing, it is relevant to note that the courtyard at the rear of Ms Refshauge's property is relatively small, narrow and to the south of the rear section of buildings on her property. It seems clear to me that the main shadow impacts on the courtyard are those of the buildings on Ms Refshauge's property given. Based on the shadow diagrams presented it seems to me that the height of the extension on the subject land is such that any additional shadow cast would be marginal in nature and would be very difficult to perceive in practice on the ground.

63. Finally, concerns were raised about the loss of outlook through the windows of the lantern roof towards the sky. Again this assessment requires some subjectivity given that a direct view upward to the sky, as is available to Ms Refshauge, is not usually available in most dwellings. It is clear that the proposed extension will have some impact of the view to the north, however, this is not the only view available. The extension on the land will have an impact on part of the outlook, however there will also be parts which will not be affected. I cannot find that that would have an unreasonable impact in that regard.

64. Having gone through each of the amenity concerns raised, I find that the proposed extension will not have unreasonable impacts. I find that the impacts on are within the realm of what is acceptable and realistic having regard to the context of the land.

65. I now turn to the third of the key issues, namely, whether the extension and other works proposed on the land will result in a development that will provide its residents with a suitable level of amenity. On this matter, two concerns were raised by Ms Neumann with respect to open space and car parking.

66. There was a criticism of the open space being located at the front of the dwelling and at first floor level with access off what will in all probability be the main bedroom. It is an unconventional layout. However this is a small site and the more conventional or typical solutions that one would apply to a site which is less constrained in terms of its size do not necessarily bring about good planning outcomes on sites such as this. The location of the main area of open space at the rear of the land, as is presently provided, presents problems in terms of sunlight access, shadows etc and not much of an outlook. I do not think provides a good standard of amenity. This can however, be compared to locating the open space at first floor level via a deck which has better proportions, good sunlight access and an outlook. Whilst the deck is not located off the main living area, the somewhat open plan layout of the upper level makes the arrangement one which I find to be acceptable.

67. The car parking concerns raised are more problematic. I found it difficult to accept Mr Crowder's submission that the dimensions the car space and the access comply with the relevant techniques of the Good Design Guide. The simple fact of the matter is that what has been shown on the plans does not comply with the techniques. The dilemma here though is whether to deny the residents of the dwelling the opportunity to park a vehicle on their own land on the basis that access might be difficult. The options are to require the proposed carport to be deleted or alternatively to simply accept that in locations like this access is going to be difficult. In my view, I consider that the residents should be given the opportunity to park on their land. Whilst I acknowledge that access will be difficult, I just do not see how any one else will be affected by the residents of the dwelling being given the opportunity to park on their land and satisfactory open space is provided elsewhere.

68. The existing dwelling is in run down condition and clearly in need of updating. This is not uncommon with dwellings on this age. Taken overall, I find that the proposed extension will enhance the amenity of the subject land.

69. For the reasons that I have set out above, I will affirm the Responsible Authority's decision to grant a permit. A permit is granted in accordance with the conditions set out in the notice of decision issued by the Responsible Authority.

Environment Act 1987

Refshauge v Yarra CC [2002] VCAT 1230

At a glance

Court

Decision date

Source

Judgment (83 paragraphs)

Refshauge v Yarra CC [2002] VCAT 1230 (4 October 2002)

Parties

Legislation Cited (2)