The Tribunal directs the Responsible Authority that no permit is to issue in relation to permit application Yarra Ranges 878 / 2005.

J M OSBORN

MEMBER, PLANNING AND ENVIRONMENT LIST

Mr Anton and Mrs Marcelle Yoxon appeared on their own behalf.

Ms Jacqui Wicks appeared on behalf of the Responsible Authority

Messrs Johannes and Jakob Laukart appeared on their own behalf.

1

At the commencement of the hearing Ms Wicks advised that Mr and Mrs Hickman, could not attend. She asked the Tribunal to note the written grounds which Mr and Mrs C J Hickman had lodged with the Tribunal.

2

This application for review was brought by Anton and Marcelle Yoxon. The review is in relation to the Yarra Ranges Shire Council's decision to refuse to grant a planning permit, for the use of the existing weatherboard dwelling on land known as 4 Chaundy Road, Belgrave South for the purpose of a habitable outbuilding.

3

I have inspected the site and surroundings and considered the submissions, plans, photographs and other material provided by the parties.

4

Ms Wicks provided the following description of the subject site and surroundings.

• Located on the northern side of Chaundy Road, Belgrave South;

• Is located approximately 150 metres to the south west of the intersection with Mount Morton Road;

• Has an irregular shaped allotment of 10005 m2 in size being 145 metres deep and a width of approximately 85 metres;

• Falls at varying degrees toward the north west away from the 39.41 metre Chaundy Road frontage;

• Has substantial views toward the west

There is minimal vegetation on the Subject site, except for an area along Chaundy Road frontage (predominantly in the road reserve) where there are established eucalypts.

There are two access points which form a semi circular driveway from Chaundy Road. This driveway provides direct access to the Temporary Dwelling. There is a secondary driveway that extends towards the permanent dwelling on the Subject Site.

The survey prepared by John Chivers and Associates accompanying an earlier application shows the location of all existing site features. The approximate setbacks of the subject building are:

Front setback = 17 metres from Chaundy Road (noting that this was corrected to 20m during the hearing)

The subject site is surrounded by larger rural properties which are generally occupied with a single dwelling. The fall of the land is consistent with the Subject Site.

Properties in nearby streets are generally large well established vegetated residential allotments. These areas are categorised as containing single dwellings on undulating allotments.

The surrounding land is predominantly rural in nature.

Opposite the Subject Site is the Mount Morton Reserve that is heavily forested with native vegetation.

Chaundy Road is a narrow unsealed carriageway that runs from Mount Morton Road in the north and terminates approximately 100 metres to the south.

5

Further details of the site and surroundings will be considered as relevant to the issues in these reasons.

6

The proposal is described in Ms Wick's submission as follows:

The permit application as submitted to the Council in July 2005 was for the use of the existing dwelling as a study and animal stock storage facility (outbuilding).

According to the report dated 6/7/2005 submitted with the Application (on page 7) it stated:

"The application proposes to use the existing temporary dwelling on the site as a study and animal stock storage facility.

The applicant proposes to live in the temporary dwelling on the site until construction of the permanent dwelling is complete.

The existing temporary dwelling is of weatherboard construction, is not clad in materials such as brick or stone and is installed on post footings. The temporary dwelling was transported to the subject site in three parts by truck.

It is proposed to supply a building surveyors report recommending the alterations needed to be made to the building to prevent it from being used as a dwelling.

7

Ms Wicks' submission states that the review site is subject to:

Clause 53 Upper Yarra Valley and Dandenong Ranges Region

8

In the RCZ2, a permit is required to use land for a dwelling. A dwelling must be the only dwelling on the lot. This does not apply to the replacement of an existing dwelling if the existing dwelling is removed or altered (so it can no longer be used as a dwelling) within one month of the occupation of the replacement dwelling and it must meet the requirements of clause 35.06-2.

9

A permit for an outbuilding normal to a dwelling can only be granted in association with a dwelling as it is not separately defined in the Scheme but falls under the Dwelling definition.

10

Clause 35.06-2 provides that a lot used for a dwelling must:

a.

Have access to the dwelling by an all weather road,

b.

Be connected to a reticulated sewerage system or if this is not available waste water must be treated and retained on site in accordance with the State Environment Protection Policy (Waters of Victoria) under the Environment Protection Act 1970.

c.

Be connected to a reticulated potable water supply or have an alternative potable water supply with adequate storage for domestic use and fire fighting.

d.

Be connected to a reticulated electricity supply or an alternative energy source.

11

Schedule 2 to the RCZ relates to conservation values. The purpose of the schedule is to aim to provide long term protection of the environmental and conservation values of those areas of private and rural land which contains remnant bushland, wetlands and areas of landscape significance.

12

The review site is affected by a Significant Landscape Overlay and a permit is required to construct or carry out works pursuant to Clause 43.01.

13

Ms Wicks provided the following with respect to Clause 53 of the Planning Scheme:

Clause 53 facilitates consistency between the Yarra Ranges Planning Scheme and the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan in accordance with section 46F of the Planning and Environment Act.

14

Ms Wicks submitted that the use of land must meet the requirements to this clause. The use of land for an outbuilding in excess of 50m2 requires a planning permit. The proposed outbuilding has an area of approximately 131m2.

15

Ms Wicks' submission refers to the existence of Planning Scheme clauses in relation to housing, settlement and environmental sustainability in Clause 21 and 22 of the Yarra Ranges Planning Scheme. Clause 22.03 highlights the landscape, farming, forestry and recreation / tourism values of the rural areas including the subject site (which is located outside the urban growth boundary in an 'Environmental Rural Area'). The policy objectives are set out in more detail in Ms Wicks' submission but, in general, emphasise the following for the area containing the subject land:

i. Protection from indiscriminate subdivision and intrusion from commercial and residential activities

ii. Protection and enhancement of this significant resource

iii. Ensuring that non-agricultural land uses will have a positive rather than a negative impact in terms of protection and enhancement of ecological systems

iv. Maintaining the existing low density of residential development in rural areas and protecting the rural character and visual qualities of the surrounding area

16

While not mentioned specifically in Ms Wicks submission, State Planning Policy in relation to the non-urban area and the Yarra Ranges is relevant to the subject application.

17

According to material provided by the Responsible Authority in response to Practice Note 1, Notice of application was given to adjoining property owners and occupiers, and a notice placed on the site. Three objections were made to the responsible authority. The objectors expressed the following concerns:

This is another attempt by the applicant to retain the dwelling

Original non-compliance with the requirements of previous permits

Other matters including problems with shipping containers and extra driveway remain

18

Council refused the application on the following grounds:

The proposed use of the building as an outbuilding is isolated from the existing dwelling

The proposed building cannot serve as an outbuilding as no existing dwelling has been constructed

The mixture of uses in the building within the existing framework is not practical.

The construction and appearance of the building and associated works does not meet the requirements of the local planning policy Policy 22.03 and 22.11

The proposal is aimed at the retention of a building that has been required by the Shire and VCAT to be removed.

19

An application for review was lodged with the Tribunal on the following grounds:

I believe that I satisfy all the reasons for refusal to grant a permit

I have evidence to support my beliefs that I can meet all the requirements of the Shire

I believe that my application meets all the requirements of a rural Conservation Zone

20

A number of issues were raised during the hearing. The emphasis was on:

a.

Use issues including whether the outbuilding use would be appropriate in the existing temporary dwelling ('the subject building') and at the distance from the partly constructed building proposed for use as a new dwelling; and

b.

The appearance and other impacts in relation to planning scheme provisions and policies ; and

c.

Whether permission for an outbuilding would be premature given that the building intended for use as a new dwelling is only partly constructed.

21

The use and development of the review site has been the subject of a number of previous permit applications and applications for review. Some other issues raised concerned past planning permission and construction activities at the site including excavation, driveway, the timing and fencing of the pool works and tree removal.

22

At present the subject building is used as a temporary dwelling while a new two storey building intended for use as a dwelling is constructed some 32 metres to the west on the site. Permission has been granted for temporary dwelling use of the subject building and extended a number of times. A full history of permit applications, commencing with an application in 1999 for the two storey dwelling is set out in Ms Wicks' submission which is attached to the Tribunal file. The first application for the construction and use of the subject building as a temporary dwelling was made in 2001, and a permit was granted for a "relocatable unit whilst dwelling is under construction" on July 30 2001.

23

A number of applications for review and Tribunal hearings have occurred since the granting of the aforementioned permit. These matters included a conditions appeal, initiation of enforcement proceedings in relation to additional building works to the temporary dwelling (which were subsequently withdrawn when a Tribunal order included conditions requiring the removal or alternative lawful use of the subject building) and a more recent application for a "dependent persons' unit'. It is understood that a section 173 agreement required by condition of permit granted by the Tribunal in P420/2004the has not been prepared nor has a copy been lodged with the Council.

24

An application to use the subject building for a dependent persons unit failed.

25

It is also clear from the Planning Scheme controls that a dwelling use in the subject building would not be supported within one month of the completion of the new dwelling under construction at the review site.

26

There is no separate definition of an outbuilding in the Planning Scheme however reference to 'Outbuilding' is included in the definition of "Dwelling" as follows:LAND UTERM DEFINITION INCLUDES INCLUDED IN

It includes out-buildings and works normal to a dwelling (Tribunal underlining).

27

As stated by Ms Wicks an outbuilding associated with a dwelling is generally a subordinate building to an existing dwelling. Ms Wicks provided the meaning, according to the Macquarie Concise Dictionary, of the term "outbuilding" as follows:

"a detached building subordinate to the main dwelling"

28

The area proposed for use as an outbuilding is 131m2 .

29

It is proposed that proportionately large areas of the subject building would be devoted to computer, reading / study, library and associated file and paper storage uses. Mr Yoxon explained that the need for areas for computers and a library was associated with his role with computers in his employment at a secondary school and this is the use that is proposed to occupy the main areas of the subject building. Office or study space would also be available in the new house. Although it was submitted that Mrs Yoxon would use the new home study in relation to a breast cancer support service, the additional study/computer/library and associated storage area, occupying a floor area in the order of 80 square metres, does appear to be a very large additional home office space.

30

Relatively secondary areas (three smaller rooms) are shown as providing for the storage of animal feed and tools. These uses would be located towards the front of the building which would present on the outside as a dwelling but would be used as a shed in the rooms closest to the front door. Mr Yoxon submitted that between 4 and 9 goats are kept the subject land. with 4 on the land at present. Agriculture can only be a very minor use on such a small (1.0005ha) steep land holding in the Rural Conservation Zone. I consider that insufficient connection between agriculture and the proposed outbuilding uses has been established.

31

I concur with the submission of the responsible authority that storage of animal feed and animal husbandry tools are not uses that are considered to be highly compatible with a home office /library space containing computers and books. It is considered likely that dust would be associated with the moving of feed and tools within what is essentially a house with connecting internal corridors and a lack of separate external doors to the rooms allocated for the storage of feed. It should be noted that I am not suggesting that external shed style doors or other alterations should occur as I have other concerns regarding this proposal. Further such an alteration would entail a different appearance of the building and the responsible authority and parties have not had the opportunity to consider such a change in a prominent location on the site. Each proposal has to be considered as a whole and in this matter there is a combination of factors to consider.

32

The shortest distance between the subject building and the main house is in the order of 32 metres however the most convenient access by foot is likely to be a longer distance given the location of steep land on the site.

33

It is considered that casual visitors to the property could well assume that the subject building is a dwelling since it is located closer to the frontage than the dwelling under construction and would continue to have a front door providing a clear sense of address to the road. The prominence of the subject building, with its appearance as a dwelling with a large deck attached mean that it does not appear as a subordinate outbuilding in association with the main or new dwelling.

34

Overall it is considered that the proposed use is not one that is consistent with an outbuilding that is subordinate to the dwelling nor does it sufficiently relate to agricultural use. In addition the applicant has not supplied details of the decommissioning of relevant services and the plans are not clear in this regard. The proposal has characteristics of not having been finalised to a stage where the use of the building as a dwelling would be precluded in the future.

35

Relevant policy objectives include reference to the need to protect the visual qualities and rural character and to maintain the existing low density of residential development in rural areas. The purposes of the Rural Conservation Zone include the conservation and enhancement of the cultural significance and character of open rural and scenic non urban landscapes

36

The subject site is located outside the urban growth boundary and this reinforces the need for a non-urban appearance of uses and structures on the land. The elements of rural and landscape character are reinforced in the immediate vicinity through the site fronting an unsealed road and its location is opposite the well-vegetated Mount Morton reserve. This reserve has a bushland appearance and has heritage and conservation values.

37

It was submitted that there are instances of two dwellings on some lots in the vicinity. In this non-urban locale and in particular in the relevant part of Chaundy Road, the appearance is one of very limited views of dwellings and associated structures other than those on the subject site. Mr Jakob Laukart's dwelling is set further back from the road than the subject building and is screened by vegetation. In some cases, only the front entry gates to properties are visible and the Mount Morton reserve further adds to the rural and vegetated appearance. The proposed use of the subject building would retain the appearance of a large structure, still with the appearance of a full scale dwelling and associated decking, in a visually prominent position on the site. No landscaping proposal was included with the plans. It is considered however that landscaping is unlikely to sufficiently screen all of the views (including side views and angled views from the road) given the timber deck and building in the context of slope and fire considerations. I am of the view that the combination of the appearance of the subject building as a full scale dwelling and the new dwelling on a relatively small area of largely cleared land would present as too much of a visual intrusion and appearance of suburbia. This is of particular concern in a locale where Planning Scheme objectives support a low density, spacious and rural character.

38

The Planning and Environment Act provides for, amongst other things, fair and orderly planning.

39

As submitted by Mr Yoxon the subject building is painted in colours that are reasonably appropriate for the environs. Further, the appearance of the existing building is not considered to be one of disrepair. It was nevertheless erected on the assumption that the positioning, design and use of the existing subject building was temporary and it was not built as an outbuilding but rather as a dwelling. Despite the possibility of an application for an alternative lawful use of the subject building the neighbours had a reasonable expectation that:

a.

in their neighbourhood they would be seeing a specific limit on the use and presence of the combination of the relocated house and a partially completed dwelling, on a lot that is relatively small in comparison with surrounding lots and in relation to the minimum 40ha subdivision size in the Rural Conservation zone Schedule 2, and

b.

that eventually they would see only one high quality main dwelling set well away from Mr Jakob Laukart's dwelling and that any other buildings associated with the dwelling would maintain the otherwise spacious rural character in Chaundy Road.

40

Given the somewhat unfortunate and lengthy history of the building process the timing of completion of the proposed new dwelling is difficult to predict. In these circumstances it is considered inappropriate and contrary to orderly planning to issue a planning permit for a relatively large and potentially permanent storage/study use in a building that retains most physical features of a dwelling.

41

Further, in the particular circumstances of long drawn out construction and multiple applications, it is not considered good planning practice to tie a condition regarding the use as an outbuilding to a time of possible occupancy for a partially constructed building which has been the subject of a number of extensions of planning permission.

42

Tree removal was raised in the Hickman's statement of grounds, however given that I am not prepared to grant a permit for the proposed use, I have not considered this matter in these reasons.

43

Permission for the existing driveway was clarified during the hearing.

44

The applicants for review and the other parties submitted concerns regarding the process of obtaining permission for works and use at the review site. While some matters concerning the history of building/ town planning matters on the site were provided to the Tribunal, these reasons concern the subject proposal.

45

It is clear that there have been some difficult personal and financial circumstances for the Yoxons. Nevertheless it is also apparent that the initial assumption behind the permission for the building was as a temporary dwelling while the main dwelling was completed. Two permanent dwellings on the land cannot be entertained under the current Planning Scheme provisions. The subject proposal is considered to be inappropriate for the reasons set out above.

46

The Tribunal will order that the decision of the Responsible Authority is affirmed and direct that no permit is granted.