The order of the Tribunal is that the decision of the Responsible Authority is varied.

A permit is granted for the development of a new dwelling at 18 St John's Avenue, Camberwell generally in accordance with the endorsed plans and subject to the conditions contained in Permit No. PA06/00095 issued by the Responsible Authority on 13 June 2006 modified by:

•

Delete condition 1(a), 1(b) and 1(c).

•

Insert new condition 1(a):

1(a) The upper level Bedroom 1 and walk-in robe area must be set back a minimum of 1.95m from the southern boundary.

1(b) The upper level balcony must be reduced in width from 2.2m to 1.6m.

1(c) A plan notation indicating the provision of obscure glazing to a height of 1.7m above the upper floor level for the most easterly window pane adjacent to the stair landing on the south side windows. Such window may be openable provided such opening does not allow for a downward view.

1(h) A schedule of colours and materials are to be provided to the Responsible Authority.

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

1 This was an application requesting the Tribunal to review a number of conditions imposed on Permit No. PA06/00095 issued at the direction of the Boroondara City Council authorising the development of the site at 18 St John's Avenue, Camberwell for the purposes the construction of a new dwelling.

2 Essentially, the permit authorises the construction of a three level dwelling consisting of a basement, ground floor area consisting of one bedroom and living areas and a first floor level comprising of two bedrooms and amenities.

3 This particular site has been the subject of a previous decision by the Tribunal when it considered an application to carry out alterations and additions to the existing dwelling in 2005. The Tribunal in that proceeding directed that no permit issue having given the applicant an opportunity to modify the plans and concluded the plans did not satisfy the Tribunal's direction.

4 At the commencement of this hearing a number of preliminary issues arose. The first was a request to amend plans. Mr Zuzek circulated amended plans which purported to address half of the Council's conditions which he was not seeking reviewed. The last dot point in the accompanying explanatory note with the plans stated:

Supplementary site plan, shadow diagram TP5 and TP6 with upper floor ceiling level 2.4m.

Two A4 sheets were attached to the accompanying explanatory note and showed the difference in shadows cast between a 1.9m high springing height[1] and a 2.4m high springing height for the upper level. The plans to be substituted consisted of plans TP2, TP3 and TP4 all marked Revision A. The elevation plans are all contained on TP4 and all of these plans showed a springing height at the upper level of 1.9m.

5 Mrs Zuzek stated at the hearing that it was his intention to request an amendment for the springing height to be increased to 2.4m. However, that was not clear in his covering letter accompanying the drawings and the drawing themselves clearly did not mention the springing height at any but 1.9m. Mr Zuzek then attempted to substitute elevation drawings in an A4 format. However, while these drawings indicated a line with a 2.4m high springing position would be the drawings still did not mention the springing height at 1.9m. The responsible authority indicated it did not consider the change in the springing height as being significant. Its position was still seeking the changes set out in its conditions on the permit and did admit that being slightly confused by the amendment application.

6 Mr Cameron and Ms Goss objected to the substitution of the plans and indicated once again, the uncertainty they had in understanding which plans were the plans that they were being asked to consider and comment on.

7 I must express my concern at the confusion sought by the amended plans circulated. My initial reaction when looking at these plans was that the amended plans were merely reflecting the conditions Mr Zuzek was not seeking review. The notation in respect of the 2.4m springing height I assumed was directed to perhaps an earlier proposal and the shadow diagrams circulated sought to demonstrate the benefit achieved by the reduced 1.9m springing height. It was not clear to me that the 1.9m springing height was in fact the original application plans.

8 Mr Zuzek's application on the day of the hearing to further amend the plans in my view further confused the situation. I indicated to Mr Zuzek that while he blamed his professionals for the confusion, he is the applicant in these proceedings and must take responsibility for information being circulated. Given the previous history of this matter, getting the plans right would be something I would have assumed was high in his agenda.

9 I indicated to Mr Zuzek that I would not accede to his request to amend the application plans and the plans as circulated if necessary could be used as tabled plans to demonstrate the effect of some of Council's conditions relating to the buildings front streetscape treatment. I also indicated that I would not consider the 2.4m high springing height as this would be unfair on the other parties, and given that the key issue in these proceedings is visual bulk, it was not a change I was prepared to make on the run. In any event a springing height of 1.9m is not an unusual building technique to reduce building mass and one can clearly provide for internal vaulted ceilings to give the sense of volume Mr Zuzek seeks to achieve.

10 The other preliminary issue raised was the scope of my consideration in this proceeding. Mr Cameron indicated he was not happy with the Council's decision particularly in terms of its streetscape/heritage response. I indicated to Mr Cameron and Ms Goss that if they were dissatisfied with the Council's decision they had the opportunity to lodge an application for review of that decision. My role I indicated was to consider the grounds of review in respect of the conditions being challenged and any consequential affect of that consideration. Given that the conditions relate to the rear of the site, streetscape issues per se were not particularly relevant. I also note the site is not located within a heritage overlay area of the planning scheme.

11 Turning to the conditions being challenged these were numbered 1(a), 1(b) and 1(c) and were part of an amended plan condition which stated inter alia:

(a)

Reduction in the upper floor (rear) by at least 7.5m.

(b)

The family room and feature walls to be set back at least 2m from the southern boundary.

(c)

Plan notations indicating the provision of obscure glazing to at least 1.7m in height above floor level in relation to the upper floor south facing bathroom window and the provision of fixed (i.e. unopenable) obscure glazing to at least 1.7m in height above floor level in relation to the upper floor north facing stairwell windows.

12 Mr Downie on behalf of Council presented a detailed submission outlining Council's justification for the imposition of the conditions. Mr Downie conceded that while the immediately adjoining area is relatively intact in terms of its Victorian streetscape, the broader area of St John's Avenue was quite diverse. Mr Downie also conceded that the site was more constrained than many other sites within St John's Avenue and that elevated additions to the rear were not uncommon within this area.

13 Mr Downie noted that the zoning of the land was Residential 1 and that no Overlays applied to the land. The permit trigger for this application was that the site was less than 500m2 in area and in considering any application in Clause 54 must be taken into consideration and the requirements of the clause satisfied.

14 Mr Downie also noted that the proposal was generally considered an appropriate design response to Clause 54 and the Local Planning Policy Framework but considered further efforts should be made to "limit the resultant visual impact presented to neighbours".

15 The reduction of the upper level by 7.5m is supported by the Council on the basis that the rear open space area of the adjoining property at 16 St John's Avenue to the south would be unreasonably affected by the projection of a two storey wall close to its boundary.

16 Mr Cameron and Ms Goss were both also concerned with the length of the wall and building mass along the site. Mr Cameron who spoke on behalf of himself and Mr Papoulias submitted that as a consequence of the height and length of the proposed wall the proposal would have an overbearing impact on their respective rear yard and amenity. Ms Goss was concerned that the upper level would impact on her privacy, access to light and that the dwelling was much larger than any other dwellings within the immediate area.

17 Mr Zuzek's submission was primarily based on comparing his proposal with what others had done or had been permitted to do in terms of additions, alterations and new dwellings.

18 As I indicated at the hearing this is not a sound practice as each site must be considered on its merits. That is one needs to assess each application having regard to the number of factors that affect a design response including the location of adjoining properties.

19 However, what is clear from Mr Zuzek's presentation and from my previous knowledge of this site and area is that development in the area particularly on narrow lots appears to be elongated and this is indeed reflected in Ms Goss's dwelling located at merely to the north and a number of other dwellings located along St John's Avenue. The rear extension of Mr Zuzek's property is essentially in line with that prevailing built form characteristic found on the western side of St John's Avenue.

20 However, I do have some concerns as to the unnecessarily generous upper level balcony which services Bedroom 1 only and the closeness of the upper level to the southern boundary. To that extent I believe the direction I gave in my previous application still holds true to this proposal. I believe the balcony width should be reduced from 2.2m to 1.6m and that the setback of the upper level should be increased from 1.7m to 1.95m for that portion west of the walk-in robes and the Bedroom 1 wall inclusive.

21 In my view the length of the upper level will no doubt have a visual impact on Mr Papoulias' property however I do not believe that that impact is unreasonable or is outside the standard type of impact that is to be anticipated within urban areas for development occurring next door.

22 The setback from the rear of this building to the rear boundary is in the order of some 14m which in my view is a reasonable setback.

23 Thus, in terms of condition 1(a) I propose delete that condition as being unjustified and propose to put in a modified condition reflecting my views set out above.

24 In terms of condition 1(b) which seeks a 2m setback for the family room and feature wall I am of the view that the family room wall generally satisfies the height to setback requirement of Clause 54. However, I believe the feature wall is too bold a structure and unnecessarily increases the bulk of the proposed dwelling at the ground floor level. Mr Zuzek informed me that a simple post could be substituted for the feature wall in this location.

25 I can see no real benefit in setting the family room or the feature wall further back and as a consequence I propose to delete this condition and propose a condition to modify the feature wall so that only a post is required to support the upper level balcony.

26 In terms of privacy issues the first observation I make is that the areas referred to are not habitable rooms and the potential overlooking from these areas is quite discrete.

27 Thus, in terms of the bathroom window located on the south side given the bath is located immediately beneath the window opportunities to overlook would be quite limited. As a consequence I do not believe it is necessary for this window to be screened.

28 In terms of the windows to the adjacent and northern stairwell these have limited opportunities to overlook the kitchen living room window of Ms Goss' property. In my view the stairwell itself is unlikely to be an area which will prompt people to prop and look over towards Ms Goss' property. As such, I have minimal concerns with that overlooking opportunity.

29 I note that at the ground floor level a masonry wall will be erected on the boundary to a height of approximately 1.7 to 2 metres and that should eliminate any overlooking opportunity from the ground floor area. However, the stairwell landing at the top of the stairs may be one potential location where people will prop and overlooking may occur. While the provisions of Clause 54 do not strictly apply in terms of non-habitable room areas, I am required to determine this matter on the basis of an acceptable planning outcome. As a consequence the easternmost panel window at the upper level of the stairwell should have obscure glazing to a height of 1.7m above the landing and not be openable so as to provide downward views.

30 As a consequence I will delete condition 1(c) and insert a new condition reflecting the above.

31 Mr Cameron raised other concerns in relation to the front appearance of the proposal and the likely impact on property values. Neither of these are matters I can place any weight in terms of this application for review. Ms Goss also raised concerns in respect of access to natural light as a consequence of the construction of this proposal. Mr Zuzek indicated that external masonry walls would be finished in a natural cement rendered colour which upon drying will be a light grey colour. I will impose a condition that requires a colour schedule to be provided on the plans and that such colours can be clearly articulated in the approval.

32 I also note that Mr Zuzek in his design has provided in most instances light courts opposite the windows located within Ms Goss' property. This is a positive design outcome.

33 I have not repeated details of locality or details of the proposal in this application as this proposed review is specifically in respect of the conditions relating to visual bulk and privacy.

34 While Mr Zuzek pleaded that any conditions restricting his proposal placed undue hardship on his family this needs to be balanced with the fact that the current dwelling on the site is quite modest and in a poor state of repair and the proposed dwelling is in excess of 400m2 represents a substantial home by any standard and the modifications proposed are unlikely to cause any hardship and these pleas have not been given any weight.

35 For the reasons above I propose to delete conditions 1(a), 1(b) and 1(c) and replace them with new conditions and include other conditions as appropriate.

[1] 'springing height' is the height above floor level that the roof pitch begins