appellant. By consent, the decision of the Responsible Authority in relation to planning application No. D134/2009 is set aside. A permit is granted in relation to the land at 178 Wood Street Preston,...
Key principles
The Tribunal's decision to grant a permit for the construction of two double storey dwellings and one single storey dwelling at 178 Wood Street, Preston was based on a consent...
The Tribunal found that extending the front eaves of the front dwelling further than shown in the June 2010 plans would constitute 'overkill', as the benefits of additional...
The Tribunal accepted Council's proposal to relocate Unit 3 a further 400mm towards the rear boundary to create a 1400mm gap between Units 2 and 3, finding this a worthwhile...
The Tribunal determined that overshadowing of Unit 2's private open space at 3pm on relevant comparison dates was not a 'knock-out point' for this type of north-south oriented...
Issues before the court
Whether a permit should be granted for the construction of two double storey dwellings and one single storey dwelling at 178 Wood Street, Preston
Plain English Summary
A property owner wanted to build three dwellings on a block in Preston. The council refused permission. Before the case went to a full hearing, the owner and council negotiated and agreed on revised plans, with only a couple of minor issues left for the Tribunal to decide. The Tribunal approved the development, making small adjustments: it said the front eaves didn't need to be any bigger (as they'd look strange), agreed to move one building slightly further back to let in more light, accepted that some afternoon shadowing was unavoidable on this type of block, and required skylights and bigger windows in two bedrooms to make sure they weren't too dark. The Tribunal praised both sides for working together to reach agreement rather than fighting it out in court.
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Judgment (15 paragraphs)
[1]
This matter involves the land at 178 Wood Street in Preston, which is currently improved by a detached single storey dwelling. The owner proposes that it be redeveloped for two double storey dwellings and a single storey dwelling, in a "front and back" layout including a side driveway.
Whether the front eaves of the front dwelling should be extended further than shown in the June 2010 plans
Whether Unit 3 should be relocated further from Unit 2 to increase light penetration
Whether overshadowing of Unit 2's private open space at 3pm is a fatal objection
Cited legislation
1 cited instrument linked from this judgment.
Objections were received from neighbours and Council issued a Notice of Refusal to Grant a Permit.
To the credit of those involved, discussions were initiated between Council's planning consultant Mr Livingston and the Applicant in the lead up to the hearing. I understand these discussions in turn led to the revised plans shown as updated on June 2010, which were circulated for proposed substitution.
The hearing of this matter came before me on 8 September 2010, set down for a half day. There were no other parties to the proceeding apart from the Applicant and Council.
At the beginning of the hearing I was told by the parties that further discussions had taken place regarding the proposed revised plans, and the parties have essentially reached a consent position. In other words, apart from two further proposed changes to the June 2010 plans which Council was pursuing (and which the Applicant could live with), the parties were in agreement regarding the June 2010 plans.
The balance of the hearing involved discussion of these two further changes, plus one or two other minor design issues which came up in the course of this discussion.
In terms of the Tribunal's findings on these final points, they are as follows:
Council proposed that the eaves in the front section of the new front dwelling be extended even further, to provide additional protection from the elements. The important point here is that the June 2010 plans already show the basic design as providing what I regard as adequate eaves and an adequate front porch area providing protection from the weather. In my view it would be an overkill to extend the front eaves any further ie the benefits of additional weather protection would be outweighed by the disproportionally large eaves being likely to look strange when viewed from the public realm;
Council also proposed that the new rear Unit 3 be moved further away from Unit 2 by an additional 400mm, so as to create a 1400mm gap between the closest external walls of Units 2 and 3. The aim here is to provide maximum light penetration into the Unit 2 living room. While I do not see this as a big issue, I agree it is a worthwhile change and I revised the conditions to pick this up;
there was discussion at my initiative regarding the fact that at 3pm on the relevant comparison dates, the private open space of Unit 2 will be largely overshadowed. As mentioned at the hearing, whilst this situation is not ideal, I do not see this as a knock-out point, for this type of north-south oriented site where solar orientation is always a challenging issue;
there was also discussion at my initiative regarding whether the two bedrooms of the new rear dwelling could have their daylight penetration improved, with the aim of avoiding these bedrooms being unduly gloomy for the persons using them. In the final result, I see a fair compromise as being that the permit conditions be amended to provide for a suitable skylight for each of these bedrooms, plus expanding the existing window of the west-facing bedroom so as to make this window as large as practicable.
In closing, I strongly commend the parties on their ongoing discussions (despite Council having early issued a Notice of Refusal) which resulted in a consent position. Indeed, the Tribunal has been disappointed at the number of times in the past where councils have issued a Notice of Refusal, and then been unwilling to engage in further settlement negotiations. It is to be hoped that the type of situation here (at least for Darebin) will be more common in the future.
[2]
Construction of two double storey dwellings and one single storey dwelling in accordance with the endorsed plans provided
[3]
Before the development starts, amended to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be drawn to scale with dimensions and must be generally in accordance with the revised plans shown as updated in June 2010 prepared by SJ Cordell Pty Ltd but modified to show:
(a) In relation to the new Unit 3, it is to be relocated a further 400mm towards the rear boundary, so as to create a 1400mm gap between the closest external walls of Units 2 and 3.
(b) With respect to both bedrooms of the new Unit 3, installation of a suitable skylight for each bedroom to the satisfaction of the Responsible Authority, including consideration of whether the skylight should be vented and incorporate (if available) an internal blind feature.
(c) A comprehensive schedule of construction materials, external finishes and colours (including colour samples).
(d) A Landscape Plan in accordance with Condition No.5 of this Permit.
(e) In relation to the west-facing bedroom of the new Unit 3, its window is be widened as far as practicable.
[4]
When approved, the plans will be endorsed and form part of this Permit.
[5]
The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
This Permit will expire if:
The development does not start within three (3) years from the date of this Permit;
The development is not completed within five (5) years of the date of this Permit.
[6]
The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.
[7]
Prior to the issue of a building permit for any building or any works authorised by this permit; a development levy must be paid to Darebin City Council. The amount of the development levy for each charge unit must be calculated in accordance with Schedule 1 to the Development Contribution Plan Overlay.
Before buildings and works start, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will be endorsed and will then form part of this Permit. The Landscape Plan must be prepared by a suitably qualified person and must incorporate:
(a) details of all existing trees to be retained and all existing trees to be removed, including overhanging trees on adjoining properties. The genus, species, height and spread of all trees must be specified
(b) a planting schedule of proposed vegetation detailing .the botanical name, common name, size at maturity and quantities of all plants
(c) details of all surfaces including lawns, mulched garden beds and hard paving (such as asphalt, concrete, brick or gravel)
(d) street trees within the nature strip/s adjacent to the property
(e) all constructed items including retaining walls, letter boxes, garbage bin receptacles, outdoor furniture, lighting, clotheslines
(f) edge treatment between grass (lawn) and garden beds
(g) an outline of the approved building/s including any basement, the location of entry doors, windows, gates and fences. An outline of buildings on adjoining land, including the location of windows and doors which face the subject site must also be shown
(h) the location of both existing and proposed overhead and underground services. Conflicts of such services with the existing and proposed planting must be avoided
(i) clear graphics identifying trees (deciduous and evergreen), shrubs, groundcovers and climbers
(j) a scale, North Point and appropriate legend
[8]
The species of all proposed plants selected must be to the satisfaction of the Responsible Authority.
[9]
The landscaping as shown on the endorsed Landscape Plan must be completed to the satisfaction of the Responsible Authority before the development is occupied and/or the use starts or at such later date as is approved by the Responsible Authority in writing.
[10]
No later than seven (7) days after the completion of the landscaping, the permit holder must advise Council, in writing, that the landscaping has been completed.
[11]
The landscaping as shown on the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the endorsed Landscape Plan to the satisfaction of the Responsible Authority.
Floor levels shown on the endorsed plans must be confirmed. The confirmation of the ground floor level must take place no later than at the time of the inspection of the subfloor of the development required under the Building Act 1993 and the Building Regulations 2006. This confirmation must be in the form of a report from a licensed land surveyor and must be submitted to the Responsible Authority no later than 7 days from the date of the sub-floor inspection. The upper floor levels must be confirmed before a Certificate of Occupancy is issued, by a report from a licensed land surveyor submitted to the Responsible Authority.
All dwellings that share dividing walls and/or floors must be constructed to limit noise transmission in accordance with Part F(5) of the Building Code of Australia.
Before the dwellings are occupied, an automatic external lighting system capable of illuminating the entry to each unit, access to each garage and car parking space and all pedestrian walkways must be provided on the land to the satisfaction of the Responsible Authority.
[12]
The external lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land, to the satisfaction of the Responsible Authority.
[13]
Boundary walls facing adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
The land must be drained to the satisfaction of the Responsible Authority.
With the exception of guttering, rainheads and downpipes, all pipes, fixtures, fittings and vents servicing any building on the land 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/s without the prior written consent of the Responsible Authority.
Provision must be made on the land for letter boxes and receptacles for newspapers to the satisfaction of the Responsible Authority.
Before occupation of the development, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a) constructed;
(b) properly formed to such levels that they can be used in accordance with the plans;
(c) surfaced with an all weather sealcoat; and
(d) drained
[14]
Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.
[15]
Before the development is occupied, vehicular crossing(s) must be constructed to align with approved driveways to the satisfaction of the Responsible Authority. All redundant crossing(s) or crossing opening(s) must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
Parties
Applicant/Plaintiff:
SJ Cordell Pty Ltd
Respondent/Defendant:
Darebin CC [2010] VCAT 1481
Legislation Cited (1)
Building Regulations 2006
Cases Cited (1)
SJ Cordell Pty Ltd v Darebin CC [2010] VCAT 1481 (9 September 2010)
AI Analysis
Outcomeappellant
Disposition:
By consent, the decision of the Responsible Authority in relation to planning application No. D134/2009 is set aside. A permit is granted in relation to the land at 178 Wood Street Preston, allowing the construction of two double storey dwellings and one single storey dwelling in accordance with the endorsed plans and subject to 19 permit conditions.