J & H Templer, B & E Stiel, J Dalhstrom, B J Barnes

[2001] VCAT 2382

The decision of the Responsible authority is affirmed. No permit is to issue.

The decision of the Responsible Authority is affirmed.

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For the Applicant for Review: Mr How S Ng, H & G Town Planning Pty Ltd

For the Responsible Authority: Ms M Foley, Solicitor, Maddock Lonie & Chisholm

For the Respondent/Objectors: Mr Templer, Mr Stiel and Ms Dahlstrom

1. Application P20601/2001 is an application pursuant to section 149(1)(b) Planning and Environment Act 1987 brought by Peter Wooldridge in relation to the refusal by the Responsible Authority to give consent to amend a section 173 agreement.

2. Application P20599/2001 is an application by Peter Wooldridge pursuant to section 77 Planning and Environment Act 1987 seeking review of the refusal of the Responsible Authority to grant a permit to construct two double storey attached dwellings at 15 Van Ness Avenue, Glen Iris.

3. On 26 November 1996 permit BOR 96/748 was issued for "use and development for the retention of the existing dwelling at 15 Van Ness Avenue and construction of a new double storey detached house (dual occupancy)".

4. Permit BOR 96/1031 was issued on 15 January 1997 allowing a two lot subdivision of the land now known as 15 and 15A Van Ness Avenue.

5. Condition 1 of the subdivision permit, BOR 96/1031 required the owner to enter into a s173 agreement to develop the land in accordance with permit BOR 96/748. This agreement was executed on 25 March 1997 and registered on the title to the land on 3 April 1997. Clause 3.1 of the Agreement is as follows:

3.1 Notwithstanding any rights conferred by the Planning Scheme, except with the consent of Council, the development of the Subject Land must be in accordance with:

3.1.1 the development authorised by planning permit no. BOR 96/748 issued by Council and the various conditions included in that planning permit; and

3.1.2 the plans from time to time endorsed pursuant to planning permit no. BOR 96/748 issued by Council.

6. On 14 February 2000 the Applicant applied for a permit to construct two dwellings at 15 Van Ness Avenue and also sought to vary the s173 agreement to permit the proposed development.

7. Six objections were received to the application for permit including an objection from the owner of 15A Van Ness Avenue, Ms Dahlstrom, who benefits by the covenants contained in the Section 173 Agreement.

8. On 17 January 2001 the Responsible Authority issued a Notice of Refusal to Grant a Permit. The grounds of refusal were:

1. The proposed development is not in keeping with the character of the area with respect to the scale of the buildings.

2. The proposal is an overdevelopment of the site.

3. That the applicant be advised that Council does not consent to the variation of Condition 3.1 of the Section 173 Agreement.

9. Following the lodging of the applications with the Tribunal the Responsible Authority filed a further statement of grounds on 17 April 2001:

1. The proposed development is not in accordance with the covenants contained in the Section 173 Agreement registered on the title to the subject land, insofar as it is inconsistent with planning permit No. BOR 96/748.

2. The owners of 15A Van Ness Avenue who are both benefited and burdened by the covenant contained with the Section 173 Agreement have objected to the proposed development.

3. The proposed development is out of character with the surrounding area.

4. The proposed development would be an overdevelopment of the subject land.

5. The scale and proportions of the proposed development is inconsistent with that of the surrounding development.

10. The Applicant provided further particulars grounds of review with respect to the s149PE Act as follows:

The s.173 agreement was to ensure that the 2 dwellings' envelopes stay the way it was approved so that the amenity of the area would not be detrimentally affected. It was not to prohibit anything other than the 2 dwellings as approved. The main thing the Council wanted to achieve was that no detached dwelling be permitted on the land unchecked.

If the subject proposal meets the provisions of the Good Design Guide, there is no good planning reason to refuse the permit in the first place. As a consequence, to facilitate its fruition, the Council should have consented to the variation. In this regard, the Council was unreasonable in not acting fairly in accordance to law.

11. Section 149(1)(b) states:

(1) A specified person may apply to the Tribunal for the review of -

(b) a decision of a specified body in relation to a matter if an agreement under section 173 provides that the matter must be done to the satisfaction, or must not be done without the consent, of the specified body and makes no provision for settling disputes in relation to the matter;

12. There is nothing within the agreement that makes any provision for the matter to be done to the satisfaction of the Responsible Authority. Clause 3.1 of the agreement provides that the development of the land must be in accordance with permit BOR 96/748 except with the consent of Council.

13. Under the terms of the agreement therefore the development of the land must be in accordance with permit BOR 96/748 unless the Council consents to it being something else. Permit BOR 96/748 clearly indicates that the existing dwelling that is on the subject land at 15 Van Ness Avenue is to be retained. This dwelling is shown on the plan. It was not uncommon that on a subdivision permit which allowed for the creation of two lots that a s173 agreement was required to ensure as in this instance that any potential development on either lot was permitted unchecked.

14. Mr Ng on behalf of the Applicant submitted that the importance of the agreement was to ensure that the development on what has become 15A Van Ness Avenue and what was permitted as new development under permit BOR 96/748 was carried out. This he submitted has been completed and to all intents and purposes as the Owner has complied with all the obligations imposed under the agreement then pursuant to clause 10.1 of the agreement it is at an end.

15. The Tribunal accepts the submission of the Responsible Authority that under section 149(1)(b) PE Act the Tribunal's task is not to determine whether or not the variation itself should be permitted, but rather the Tribunal is restricted to deciding whether or not the Responsible Authority should have consented to the application to amend the agreement.

16. In this respect the Tribunal refers to the decision of the Court of Appeal in Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd [2001] VSCA 2 and to His Honour Mr Justice Phillips:

This shift in emphasis is a critical one. Under the Planning and Environment Act, s173 entitles a responsible authority (such as the Council in this case) to enter into with the owner of land which is covered by a planning scheme, just such an agreement as was the s173 agreement in this instance. S149A as it stood until 1 July 1998, entitled either of the other parties to the s173 agreement in this instance to apply to the tribunal for the review of the decision of the Council to grant or withhold its consent in relation to a matter to be done under the agreement. While it became common ground between the parties that the tribunal had no power to determine the sewerage charges to be made and paid for the service being provided by the Club to the Resort in this instance, it was also common ground that the question whether consent should be given to increases in the charges as mentioned in the s173 agreement was something which the tribunal could decide: it was provided for by the old s149A and, from 1 July 1998 by the new s 149(1)(b).

The foregoing is sufficient to identify the contrast between on the one hand a provision purporting to confer upon the parties a right to refer to the tribunal the determination of the charges upon which they were unable to agree and on the other hand a provision purporting to confer upon the parties the right to refer to the tribunal the question of consent to any increase in charges under the s173 agreement. The first described a reference which could lead to no determination, for want of power in the tribunal to make the determination. The second describes a reference which, once made, the tribunal might determine because of the provision for review which is now contained in s149(1)(b).

17. The Tribunal agrees with the submission of the Responsible Authority that neither it or the Tribunal could vary the agreement to permit the proposed development. The agreement does not provide for variation. The agreement however provides for the consent of the Council to some other development and in the view of the Tribunal Council could so consent to a different development without the need for the agreement to be varied.

18. It is said that the only way in which the proposal could proceed is for the Applicant to file an application pursuant to section 184(3)PE Act and this has not been done. This section allows an owner of land to apply to the Tribunal for an amendment to the agreement to remove the land from the application of the agreement if parties to the agreement cannot agree the amendment should be amended. The Tribunal's powers are limited with respect to this section and it cannot be used to achieve an amendment of an existing agreement except to remove the land from the ambit of the agreement.

19. Under s178 PE Act a s173 agreement may be amended but only with the approval of the Minister and agreement between the Responsible Authority and all persons who are bound by any covenant in the agreement. In this respect it is clear from the Responsible Authority's refusal to vary and Ms Dahlstorm's objection to the permit application there is no agreement between all persons bound by the agreement.

20. In the Tribunal's view it is open to the Responsible Authority to consider the application by the applicant to grant a permit for 2 double storey attached dwellings at 15 Van Ness Avenue and the Responsible Authority has so considered such an application. Apart from considering the application under the requirements of the relevant parts of the Boroondara Planning scheme there is a second requirement the Responsible Authority is required to consider in relation to this particular land and that is consideration as to whether it should consent under the s173 agreement.

21. In deciding whether to give consent, under clause 3.3 of the s173 agreement, the "Council may consider any relevant design guide for medium density housing". In this respect it is submitted that the Responsible Authority has undertaken such an assessment.

22. The land is situated in a Residential 1 zone pursuant to the Boroondara Planning Scheme. Pursuant to clause 32.01-4 of the planning scheme a permit is required to construct two or more dwellings on a lot. Pursuant to clause 16.02-2 consideration must be given to the Good Design Guide for Medium Density Housing.

23. The land, on the northern side of Van Ness Avenue is irregular in shape with a total area of 619 square metres. Currently located on the land is a 1940's weatherboard part single part double storey detached house set back 8.0m from the frontage: the existing residence to be retained in Permit BOR 96/748. A number of large canopy trees are located within the front setback. The site has a moderate slope of 2.95m from south-west to north-west.

24. The rear of the land abuts 2 Webb Street owned by the Respondent Mr Templer and 4 Webb Street. A double storey dwelling constructed in the 1980's setback 9 - 15m from the common boundary is located on 2 Webb Street with a number of large trees close to the common boundary. A double storey dwelling is located on 4 Webb Street with three significant trees between 6-15m. To the north is the rear yard of 19 Atkins Avenue owned by Mr Stiel. To the southwest at 12 Van Ness Avenue are three double storey attached units. To the west at 13 Van Ness Avenue also owned by Mr Stiel is a single storey detached weatherboard 1940's dwelling setback 7.4m from the frontage and 5.2m from the common boundary. To the east at 15A Van Ness Avenue is the double storey Cape Cod style dwelling setback 4.36m from the frontage owned by Ms Dahlstrom and constructed in accordance with permit BOR 96/748.

25. The surrounding area consist of predominantly single storey detached 1940' brick and weatherboard dwellings with generous setbacks and large trees. At clause 21.05-2 of the Municipal Strategic Statement it is stated that "the distinctive urban character of the City is fundamentally important to its identity and to its residents. Growth and development need to be facilitated in such a way that they complement and enhance this distinctive urban character." It is recognised that "residential development is the dominant land-use within the City, offering residents a high quality and much sought after residential environment and providing some of the finest residential streets in Melbourne." It is also recognised that "it is often the case that poorly designed detached and multi-unit residential development is negatively affecting the very amenity which attracted such development to the City in the first place."

26. At clause 22.07-1 of the Municipal Strategic Statement the Neighbourhood Character Policy applicable to land zoned Residential 1 indicates that "new development should provide creative and site responsive design solutions". In this respect the policy indicates that if a site analysis is required in accordance with Clause 52.04 and the Good Design Guide for Medium Density Housing Revision No. 2, April 1998 then the relevant Neighbourhood Character Statement is to be considered, the design respond to existing land uses, the development compliment the existing building styles in building and roof materials, massing, roof forms and detailing and the prevailing subdivision patterns of the street are respected.

27. The land is located within Character Area No.140 of the Residential Urban character Study 1995-96. The study indicates "the area was developed in the inter-war period with the larger more substantial houses tending to be on higher ground close to Toorak Road. Most of these remain but there has been a considerable amount of redevelopment in the area, with some multi-dwelling development on larger sites. Most obvious, however, is the replacement of houses over the past twenty years." The element described as an important contributor to the area is the moderate sloping land form quite important contributors are the residential land use, limited original subdivision pattern, dominant lot size larger than 750sq m with 17 - 20m frontages and limited multi-unit developments.

28. The proposal is to construct two double storey attached dwellings with a single garage. Each unit is to be setback 1.5m from the east and west boundaries. Unit 1 to the west is to be setback 7.0m at ground level and 9.5m at first floor from the frontage. Unit 2 is to be setback at ground level 6.2m and 8.1m from the frontage. North orientated courtyards of 82sq m for Unit 1 and 75.2sq m for Unit 2 are proposed as private open space. The overall building site coverage is 43.16%. It is intended to use a combination of materials of face brick work and render, with a pitched terracotta tiled roof. The front fence is proposed to be 1.8m brick pier and wrought iron.

29. The Responsible Authority submits that the proposed development does not achieve the objectives of Element 3 - Neighbourhood Character of the Good Design Guide in that it is not respectful of the neighbourhood character in built form and rather than making a positive contribution to the neighbourhood it will detract from it. It is submitted the development will present significant visual bulk to the streetscape when viewed with only minimal setbacks on either side.

30. Although the Responsible Authority submitted the proposal met the standards of the Good Design Guide, compliance, it was submitted was only achieved with the minimum standards and the proposal did not exceed these base standards to achieve the Responsible Authority's desire as outlined in its MSS to "ensure new development is site responsive and designed to a high standard...".

31. Whilst there are a number of double storey dwellings close by, these dwellings are detached with a considerable amount of landscaping in both the front and rear setbacks. Although the proposed dwellings are setback from the frontage similar to existing dwellings and there is an intention to retain existing trees in the front setback the attached element of the two storey units will it is considered present an element of visual bulk when viewed from the street. This is considered to be emphasised when the units are only proposed to be setback 1.5m to the west and 1.8m to the east.

32. The proposal extends towards the rear on the east side 3m past the rear of Ms Dahlstrom's property, 1.5m from the common boundary and to an additional length of 2.5m, 5.5m from the common boundary. Ms Dahlstrom expressed concern that this will result in a significant impact on the use of her private open space. The first floor windows are setback 3.5m from the common boundary but are to have a sill height of 1.6m above floor level. This will reduce any likely impact from overlooking.

33. Certainly the built form of the proposal extends closer to the common rear boundaries of the properties at 2 and 4 Webb Street with the closest distance being 5.0m from the common boundary with Mr Templer's property. There is however considerable distance between the rear of Mr Templer's dwelling and the common boundary with heavy screening of existing vegetation in Mr Templer's property. Apart from Ms Dahlstrom's property all properties abutting the rear of the site have significant rear yards with buildings set well back from the common boundary and extensive vegetation.

34. Mr Stiel expressed concern particularly with regard to the impact of the proposed development on his property at 13 Van Ness Avenue. Although the proposed development is to be setback only 1.8m from the common boundary the only windows in the proposed development that will overlook this property are on the first floor which is setback 3.8m from the common boundary and are to have a sill height of 1.6m above floor level. There is unlikely to be any impact from overlooking.

35. There is unlikely to be any impact with regard to the proposed development on the properties to the rear although a greater separation distance from the rear boundaries would assist in the increase of planting that is typical of the area. It is considered that the extent of built form at minimum setbacks along either side boundaries will contribute to some impact to the adjoining properties and is generally inconsistent with the side setbacks between dwellings in the area. It is the Tribunal's view that the double storey attached element of the two units when viewed from the street will result in a significant impact and is out of keeping with the predominance of stand alone single detached dwellings within landscaped gardens in the streetscape.

36. It is the Tribunal's view that the Council has undertaken the requirements placed upon it under the s173 agreement in considering the giving of consent to a development other than that referred to in clause 3.1 in that it has assessed the application taking into consideration "the relevant design guide for medium density housing" and has resolved to refuse consent. In this respect the Tribunal can find no reason why after the Responsible Authority has properly assessed the matter that it should have consented.

37. In some respects the application to amend the s173 agreement is misconceived in that it is the view of the Tribunal that clause 3.1 of the agreement provides for Council to consent to another form of development, if it does not consent then the development must be in accordance with permit BOR 96/748 that is the retention of the existing residence at 15 Van Ness Avenue. The Tribunal notes that the new development referred to in BOR 96/748 has been completed. It is reasonable to conclude that the agreement may be at an end and that no consent is required under the s173 agreement merely an assessment under the provisions of the planning scheme which has occurred and resulted in the refusal by the Responsible Authority.

38. The Tribunal agrees with the conclusion reached by the Responsible Authority that the proposed development is not in keeping with the character of the area with respect to the scale of the buildings.

39. For the above reasons the Tribunal will affirm the decisions of the Responsible Authority in respect to applications P20599/2001 and P20601/2001 and determine that no permit is to issue.

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