Construct a building or construct or carry out works.

Application under Section 77 of the Planning and Environment Act 1987 (Vic) - to review the decision to refuse to grant a permit.

Clause 32.09 - Neighbourhood Residential Zone, Schedule 3 (NRZ3).

Clause 42.03 - Significant Landscape Overlay, Schedule 22 (SLO22).

Clause 43.02 - Design and Development Overlay, Schedule 5 (DDO5).

Clause 43.02-2 - Construct a building or construct or carry out works.

Includes Clauses 02.03, 15, 42.03, 43.02, 65 and 71.02.

The subject site is an irregular shaped allotment located on the southern side of John Street and is currently developed with a single dwelling. The subject site has a frontage of 38.08 metres, a maximum depth of 32.87 metres, and a total site area of 902m2.

1. The permit applicant lodged an application for review with the Tribunal to review the Yarra Ranges Shire Council's decision to refuse to grant a permit for the proposed outbuilding.
2. The applicant is seeking retrospective approval of the outbuilding which is used for home occupation purposes (a hairdressing salon). The Council has opposed the outbuilding as it contends that it is not respectful of neighbourhood character. I note that in the case of a retrospective application, it is a long held principle of the Tribunal that the applicant should be neither advantaged nor disadvantaged due to the retrospective nature of the application (see for instance, Knox City Council v Tulcany Pty Ltd [2004] VSC 375). In other words, I need to assess the application as if it is a proposed development, from a neutral standpoint, based on its planning merits.
3. The only permit trigger for this proposal is under the DDO5 of the planning scheme. Under Part 2.0 of the DDO5 a permit is required if the total area of the site covered by buildings exceeds 30%. The Council submitted that the total area of the subject site covered by buildings is approximately 33%, and thus a permit is required for the proposed outbuilding.
4. I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions, with regards to the applicable policies and provisions of the Yarra Ranges Planning Scheme, I have decided to set aside the decision of the Responsible Authority. My reasons follow.

Does the proposed outbuilding result in an acceptable planning outcome?

1. In its submission the Council acknowledged that the proposed site coverage per se is not problematic. Rather, it is the location of the proposed outbuilding which is the concern.
2. The Council argued that the outbuilding's location adjacent to the front boundary, in front of the existing dwelling, disrupts the established streetscape character along John Street. The Council submitted that the average front setback along John Street is approximately 9 metres, with a range of setbacks from 3 metres to 18 metres, with the majority of dwellings being setback over 7 metres. The Council's position was that the outbuilding is contextually inappropriate and results in an adverse visual impact on the streetscape due to its visual bulk. Further, the Council submitted that the proposal does not allow for meaningful landscaping and is contrary to the existing open, spacious character of the area. Thus, the Council said that the proposal does not meet the objectives of the DDO5. This is the key reason why the Council did not support the proposal.
3. The DDO5, at Part 2.0, specifically states that a permit may be granted for buildings in excess of 30% provided the design objectives of the DDO5 are met. The overarching design objectives of the DDO5 are:

To provide a planning framework to guide limited residential development and subdivision.

To protect the special features and unique character of these areas from increased dwellings.

To ensure development is at a scale consistent with the unique character of the foothills and rural townships and enhances neighbourhood character as defined in the associated Significant Landscape Overlay [in this case the SLO22].

1. The DDO5 is titled 'Least Change Areas', and it is clear from the above overarching design objectives that the primary aim of the DDO5 is to carefully manage any proposals that involve an increase in the number of dwellings. The subject site is developed with a single dwelling, and the proposal does not impact this. In other words, the proposal has no impact on dwelling density, and thus the first two design objectives are not relevant to my consideration.
2. Overall, the SLO22 seeks to protect the landscape significance of the area. Specifically, in relation to Wandin North, the SLO22 identifies that it is "located in an undulating rural landscape with a village like character attributed to a mixture of houses and block sizes, low level gardens which provide views to its well treed setting in the Yarra Valley."
3. The scale of the proposed outbuilding is very modest, with a maximum height of 2.6 metres, and an overall footprint of 20.7m2. The outbuilding is largely obscured by the existing front fence and the existing screening vegetation planted along the fence line, eastwards of the existing vehicular access point. The outbuilding also sits nestled within a backdrop of the tall, mature trees which are planted along the western boundary of the subject site. In other words, I consider that the outbuilding has a discrete visual impact and does not affect the existing vegetated nature of the subject site, and thus has the desired 'inconspicuous profile' of the SLO22. Further, the proposal does not result in any tree removal, has been sited in a low-point of the land, and does not impact the existing mature vegetation planted along the western side of the site. This is consistent with the SLO22 landscape character objective, "To ensure development is sensitive to the natural characteristics of the land including slope, terrain and any existing vegetation."
4. The SLO22 also has a landscape objective, "To ensure setbacks are generous, consistent with nearby dwellings and allow sufficient space for mature plantings." As already noted, the siting of the outbuilding protects existing vegetation on the subject site, and allows for screen planting along some of its northern edge. The existing cubby house on the subject site also assists in partially screening views to the proposed outbuilding. Further, because of its very discrete visual appearance within the streetscape, it is still the existing dwelling which remains the dominant visual element within John Street. The existing dwelling has the desired generous street setback, being positioned over 9 metres from the John Street front boundary. I also do not consider that the siting of the outbuilding has a negative impact on the on-site amenity in terms of the maintenance of an appropriate amount of usable private open space.
5. I consider John Street to have more of a garden suburban feel than a semi-rural/ rural township feel. In addition, it features a high degree of diversity in terms of the existing front setbacks of dwellings to the street. Put another way, John Street does not feature a consistent front setback streetscape rhythm. Many of the existing dwellings are also located either on or close to one, or in some cases, both side boundaries. Moreover, some of the allotments in John Street (including land to the immediate rear of the subject site) are developed with medium density housing. Consequently, the existing sense of spaciousness is impacted and contributes to John Street having a more conventional suburban feel to it. In this context, and because of the very discrete visual appearance of the outbuilding within the streetscape, I do not share the Council's concern that it disrupts the existing streetscape pattern of John Street, nor is it visually dominant within the streetscape.
6. I am satisfied that the siting of the outbuilding, close to the front boundary, is acceptable as it does not unreasonably disrupt the existing spacing and rhythm of buildings along John Street. Also, the outbuilding does not have a negative impact on the existing landscape character of John Street, nor does it impact the existing vegetation on the subject site.
7. For the above reasons I am satisfied that the outbuilding meets the design objectives of the DDO5 and is respectful of the character identified in the SLO22.

1. Overall, I am satisfied that the proposal results in an acceptable planning outcome and is consistent with the built form and landscape outcomes sought by the DDO5 and SLO22.
2. For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is issued subject to conditions.

Construct a building or construct or carry out works.

1. Before the development is occupied, 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 form part of the permit. The plans must be drawn to scale with dimensions and a digital copy must be provided. The plans must be generally in accordance with the plans submitted with the application (date Feb 2024) but amended to show the following:

(a) An elevation plan with the following details

1. north, south, east and west elevations (four compass directions)
2. overall height (from natural ground level to the top of the roof)
3. Site plan must be amended to illustrate the correct measurement of the plans and also include a development summary.

1. The development as shown on the endorsed plans must not be altered or modified (unless the Yarra Ranges Planning Scheme specifies a permit is not required) without the prior written consent of the responsible authority.

1. The development must be managed so that the amenity of the area is not detrimentally affected including through the:

(a) Transportation of materials, goods or commodities to or from the land.

(b) Appearance of any building, works or materials.

(c) Emission of noise, artificial light, smell, fumes, smoke, vapour, steam, soot, ash, dust, water, waste products, grit or oil.

(d) Presence of vermin.

1. Once the development starts, the development must be carried out and completed to the satisfaction of the responsible authority.
2. All buildings and works must be maintained in good order and appearance to the satisfaction of the responsible authority.
3. All stormwater generated from the permitted development must be directed to the legal point of discharge to the satisfaction of the responsible authority.
4. Home-based business requirements in accordance with Clause 52.11-1 must be met at all times.

1. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit, or

(b) The development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within six months of expiry of permit of the commencement date.

An extension of time to complete the development or a stage of the development may be requested if:

• The request for an extension of time is made within 12 months after the permit expires; and
• The development or stage started lawfully before the permit expired.

[1] I have considered the submissions of all the parties, including all the exhibits tendered by the parties, and the statement of grounds. In accordance with the practice of the Tribunal, I do not recite or refer to all of the contents of those documents in these reasons.