TSA Architects v Boroondara CC [2007] VCAT 1476

The south facing windows of the meals area of Dwelling 1 as hi-lite windows with a sill height 1.5 metres above the level of the adjacent pedestrian path; 2. Modifications to the deign of the crossover adjacent to the north boundary so that it is at least 1.5 metres from the trunk of the street tree in the road reservation adjacent to the northern crossover; 3. Realignment of the pedestrian path adjacent to the bay window of Dwelling 2 and the provision of a garden bed in that location of sufficient width to accommodate medium sized shrubs; 4. The pedestrian path with a rubberised surface or some other surface material which limits noise; 5. Trellis at least 300mm high above the north boundary fence adjacent to the living room of Dwelling 2; 6. A landscaping strip with a width of 700mm adjacent to the south facing windows of the meals area of Dwelling 1.
The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

These reasons follow a decision and outline of reasons given orally at the conclusion of the hearing.
The subject land is on the west side of Winfield Road in Balwyn North. It is irregular in shape, with a frontage to Winfield Road of 2202 metres and an area of 838 square metres. It contains a single storey, rendered brick dwelling, constructed in the late 1940s or early 1950s. The dwelling has a minimum setback from Winfield Road of 3.5 metres. A carport and outbuildings are located adjacent to the southern boundary.
The subject land is located in a residential area on the boundary of the Boroondara municipality. The east side of Winfield Road is in Whitehorse. On the abutting property to the south is a single storey weatherboard dwelling set back between 6.8 and 9.0 metres. The garage of this dwelling is built to the common boundary with the subject land. The rear section of the dwelling has been orientated to take advantage of the open space area behind the garage and on the northern side of the dwelling. The setback of this rear section from the common boundary with the subject land varies between 7.5 and 9.0 metres.
Abutting the subject land to the north are two properties facing Cumberland Avenue. The lot at 36 Cumberland Avenue also has a frontage to Winfield Road and is vacant. It is divided by a fence which extends east -west across the middle of the lot. It seems likely that sooner or later that this lot will be the subject of a subdivision and/or development application which may result in two dwellings on the land - one facing Cumberland Avenue and one facing Winfield Road. The other abutting lot at 34 Cumberland Avenue contains a recently constructed two storey dwelling with a double garage built to the side boundary. The secluded private open space of this dwelling is adjacent to the subject land. The dwelling is set back a minimum of 7 metres from the subject land, increasing to in excess of 11.0 metres.
Directly to the east of the subject land on the opposite side of Winfield Road is a small, newly constructed housing estate containing large two storey dwellings. Their setbacks from Winfield Road generally vary between 5.0 and 7.0 metres.
On the abutting land to the west is a single storey clinker brick dwelling constructed in the post war period. It faces Cumberland Avenue and has a setback from the common boundary with the subject land in excess of 11 metres. A brick garage and shed have been constructed along the common boundary with the subject land.
It is proposed to construct three double storey dwellings on the subject land. Dwelling 1 is to have access via new crossover to Winfield Road, located adjacent to the northern boundary. It is to have a double garage built to the northern boundary. The setback of the garage and dwelling from the Winfield Road frontage is to be a minimum of 5.35 metres at ground floor level, with a portico extending forward of the dwelling by a metre. The upper floor is to be set back a minimum of 5.5 metres from the frontage and 3.1 metres from the northern boundary. The dwelling is to have three bedrooms, all at upper floor level, with an upper floor deck to its north and west. It is also to have a cellar and storeroom. All the dwellings are to have pitched roofs
Dwellings 2 and 3 are each to have basement parking for two cars. The car park ramp is to be located along the southern boundary. The setback of Dwelling 1 from the south boundary is to be a minimum of 5.5 metres, increasing to 6.5 metres at the front of the dwelling..
Dwelling 2 is to contain two bedrooms. It is to be set back a minimum of 2.2 metres at ground floor level from the southern boundary, increasing to 4 metres at the front of the dwelling. It is to be set back 5.0 metres from the northern boundary at ground floor level and is to have a separation distance of 4.0 metres from Dwelling 1 and Dwelling 3. Aside from the deck, the upper floor is to be generally stepped back approximately 800m from the ground floor. It is to have an upper floor balcony to its north and west.
Dwelling 3 is to contain two bedrooms. It is to be set back a minimum of 3.0 metres from the western boundary and 5.0 metres from the northern boundary. At ground floor level it is to be set back a minimum of 1.2 metres from the southern boundary. At upper floor level it is to have a deck to its north and west. Aside from the deck the upper floor is to be stepped back from the ground floor by approximately 800mm. .
The overall height of Dwelling 1 is to be 7.44 metres. The heights of Dwellings 2 and 3 are slightly less, due to the slope of the land down from west to east. 7.5 metres. Each dwelling is to have generous secluded private open spaces areas ranging upwards of 106 square metres (including the deck areas). The site coverage is to be 39%.
The responsible authority refused to grant a permit without first giving notice of the permit application pursuant to s 52 of the Planning and Environment Act. Following the lodging of the Application for Review, the Tribunal required that notification be given pursuant to s 83B of the Planning and Environment Act. Following the giving of notice, Mr Bernard Stewart of 24d Napier Street, South Melbourne informed the Tribunal by letter dated 8 May 2007 that Bob and Maree Stewart of 32 Cumberland Avenue and the Occupiers of 34 Cumberland Avenue and 9 Winfield Road wished to be heard and that he, Mr Stewart, would be representing them. The Registrar wrote to Mr Stewart on 10 May 2007 informing him that the signatures of the parties he was claiming to represent were not included in his letter and until they were provided the objection would proceed in his name only. Mr Stewart did not appear at the hearing. He was not an objector himself, as far as I can tell from his letter to the Tribunal, and I am a little suspicious that he was purporting to represent the occupiers of 34 Cumberland Avenue and 9 Winfield Road without specifying who these people were. I have not included him as a party to this proceeding.
The land is in the Residential 1 Zone. No overlays apply to it. Pursuant to the zoning, a permit is required to construct two or more dwellings on a lot.
The responsible authority refused to grant a permit on eight grounds. These included identification of deficiencies of the proposal, such as overlooking and the lack of a sense of address of Dwellings 2 and 3, which could be readily addressed by permit conditions. Leaving those matters aside, the substantive issues raised by the grounds of refusal and addressed in Mrs Rea's submission were the adequacy or otherwise of the front setback of Dwelling 1, the provision of basement car parking in an area where this form of parking provision is not found, and the impact of the development on a tree on the abutting property to the south.
Ms Rea's submission was that the front setback of Dwelling 1 was insufficient, given the front setback of the dwelling on the abutting land to the south. She was of the view that it should be 6.8 metres to match the minimum setback of the dwelling to the south. I do not agree with her. The setback of the dwelling to the south is significantly greater than the setbacks of dwellings further south and the setbacks of dwellings on the east side of Winfield Road opposite the subject land. Abutting the subject land to the north the land is vacant. A dwelling constructed on that land would not require planning permission. It would face Cumberland Avenue and present a sideage to Winfield Road, and could have a setback of only 2.0 metres. Further north, on the northwest intersection of Winfield Road and Cumberland Avenue, the dwelling on that property presents a sideage to Winfield Avenue and appears to have a setback of not more than a metre or so. I also note that the setback of the existing dwelling on the subject land is only 3.5 metres. It is the dwelling on the abutting land to the south which is the odd one out in terms of front setbacks and it would not be appropriate to "peg" the setback of the proposed development to it. The setback proposed would not have any unacceptable impacts in terms of neighbourhood character or streetscape, notwithstanding that Dwelling 1 is to have two storeys.
Ms Rea submitted that basement car parking is not found in this area and therefore the basement car park proposed should not be allowed. I simply cannot understand why not. It would not be visually intrusive - after all it would not be noticed unless one were standing on the footpath directly in front of the ramp. I doubt very much that it would be noticed by a person standing on the other side of the street. Basement car parking is becoming more frequently utilised as land values increase. It is a perfectly valid method of freeing up ground level space which would otherwise not be available to accommodate development.
On balance I agree with Ms Rea that Dwellings 2 and 3 would present unreasonably intrusively to the secluded private open space of the property to the south, even though the owners of that property have not lodged an objection to the proposal. I note that the separation distances between Dwellings 1 and 2 and between Dwellings 2 and 3 would play a significant role in ameliorating the visual impact of the proposal. With a slightly increased setback of Dwellings 2 and 3 their impact would be acceptable. I have imposed a condition that Dwellings 2 and 3 be set back an additional metre from the boundary.
According to an arborist's report commissioned by the applicant, the only tree on the abutting land to the south which would be detrimentally impacted upon by the proposed development would be a 5.0 metre tall lilly pilly. The owners of that property have entered into an agreement with the applicant that the applicant remove the tree and provide and plant two replacement trees. I have sighted this agreement, signed by both parties.
I do not agree with Ms Rea that there would be insufficient room on site to accommodate adequate landscaping, particularly canopy trees. I note that canopy trees are not a dominant or even strong element of neighbourhood character in this area. But in any event the indicative landscape plan accompanying the permit application shows 8 new canopy trees with a height in excess of 5.0 metres.
For these reasons I have set aside the decision of the responsible authority and ranted a permit subject to conditions. In doing so I wish to make it plain that I think the responsible authority would have acted more responsibly if it had, instead of refusing a permit without even giving notice of the application, turned its mind to framing conditions which would have made the proposal acceptable.

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Cases Cited (1)

TSA Architects v Boroondara CC [2007] VCAT 1476 (14 August 2007)