W Property Group Pty Ltd v Boroondara CC [2014] VCAT 151 (13 February 2014)

1. On the one hand, I accept it is a plus for the Applicant's case on this contested condition that the 2nd rooms in question are not at the back of a very long and narrow apartment. Mr Bromhead also gave evidence that (despite what the application plans show) the sliding door could be modified by permit condition so that the 'sliding' aspect takes up a full 50% or so of this wall area (which would in turn allow more light into this room).
2. On the more negative side of things, the available light can only come into this 2nd room on an oblique angle from the nearest living room window, which is a significant constraint. I also see it as 'raising the bar' in terms of 'borrowed light' concerns that (even on Mr Bromhead's own admission[3]) this 2nd room, despite being labelled a 'study', could fairly easily be used as a second dwelling.
3. While I acknowledge the 'internal amenity' issues seem more evenly balanced if there was some reliable way of knowing that the 2nd room was only ever genuinely to be used as a 'study', I think it is fatal for the Applicant's case on this point that many potential occupants in my view would find this 2nd room attractive as a 2nd bedroom. I say this with particular reliance on the not insignificant size of this 2nd room and the ability to completely close the proposed sliding door. It also seems feasible for part of the 'common storage area' proposed between the main bedroom and this 2nd room to be allocated to the 2nd bedroom in the manner of a wardrobe. Assuming the 2nd room is used at least some of the time as a 2nd bedroom, I see substantial 'borrowed light', 'noise' and 'lack of ventilation' issues, which I find justify the retention of Condition 1(h).
4. I also agree with Mr Kerr that my finding here is consistent with the Tribunal's comments at paragraph 250 of Green v Hobsons Bay CC (Red dot) [2013] VCAT 2091. At this paragraph the Tribunal similarly was concerned about a room labelled as a 'study' where a screen allowed the room to be fully closed, making it more likely to be used as a 2nd bedroom.