VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference Nos. P1741/2022 & P1742/2022
Permit amendment Application no. 5/2018/209/2 & 5/2018/210/2	
 
applicant	Michael Anthony Johnson	

Responsible Authority	Bayside City Council	
respondents	Lewis Igini	
	Julian Verwey	
subject land		
p1741/2022	28 Oak Grove
BRIGHTON  VIC  3186	
p1742/2022	30 Oak Grove
BRIGHTON  VIC  3186	
HEARING TYPE	Hearing	
DATE OF HEARING	2 May 2023	
DATE OF ORDER	30 May 2023	

CITATION	Johnson v Bayside CC [2023] VCAT 499	
		
Order
application P1741/2022
1	In application P1741/2022 the decision of the responsible authority is set aside.  
2	Planning permit 5/2018/209/2 is amended and an amended permit is directed to be issued for the land at 28 Oak Grove, Brighton.  The permit is amended as follows.
3	Conditions in the permit are amended as follows:
(a)	New conditions are included as follows:
[2]	Within 30 days of the date of this permit, plans are to be submitted to the satisfaction of the responsible authority providing:
[a]	A survey plan demonstrating the maximum height of the screen is no higher than nine metres above Natural Ground Level. 
[b]	Details of the screening including location, height above NGL, and construction of horizontal powder coated metal battens 65mm wide with 16mm gaps in a monument colour. 
[c]	Details of the air-conditioning units including location and height from Natural Ground Level.
[3]	Within 30 days of erection of the screening device above the roof the Applicant/owner must lodge a survey plan demonstrating the maximum height of the screen is no higher than 9 metres above Natural Ground Level to the satisfaction of the Responsible Authority.
(b)	Conditions in the permit are renumbered accordingly.
(c)	Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing:
Location of screening and air-conditioning units.
application P1742/2022
4	In application P1742/2022 the decision of the responsible authority is set aside.  
5	Planning permit 5/2018/210/2 is amended and an amended permit is directed to be issued for the land at 30 Oak Grove, Brighton.  The permit is amended as follows.
6	Conditions in the permit are amended as follows:
(a)	New conditions are included as follows:
[2]	Within 30 days of the date of this permit, plans are to be submitted to the satisfaction of the responsible authority providing:
[a]	A survey plan demonstrating the maximum height of the screen is no higher than nine metres above Natural Ground Level. 
[b]	Details of the screening including location, height above NGL, and construction of horizontal powder coated metal battens 65mm wide with 16mm gaps in a monument colour. 
[c]	Details of the air-conditioning units including location and height from Natural Ground Level.
[3]	Within 30 days of erection of the screening device above the roof the Applicant/owner must lodge a survey plan demonstrating the maximum height of the screen is no higher than 9 metres above Natural Ground Level to the satisfaction of the Responsible Authority.
(b)	Conditions in the permit are renumbered accordingly.

(c)	Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing:
Location of screening and air-conditioning units.

Tracey Bilston-McGillen
Member	

Appearances
For Michael Anthony Johnson 	Hamish Balzan, town planning consultant, Urban Edge Consultants Pty Ltd.	
For Lewis Igini and Julian Verwey 	Robyn Gray, town planning consultant, GrayKinnane.	
For Bayside City Council 	Peter O’Leary, town planning consultant, Polplan Pty Ltd.	

Information
Description of proposal	Amendment to Permits:
•	Inclusion of services and associated screening on the roof of the approved dwelling.	
Nature of proceedings	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Bayside Planning Scheme (planning scheme).	
Zone and overlays	Neighbourhood Residential Zone Schedule 3 (NRZ3).
Design and Development Overlay Schedule 3 (DDO3).
Development Contributions Plan Schedule 1.	
Key scheme policies and provisions	Clauses 15.01-1L, 15.01-2L, 15.01-5L, 54 and 65.	
Land description	The review sites are described in Council’s submission as follows.
The subject sites are located on the northern side of Oak Grove about 50 metres east of Cochrane Street in Brighton. 
The lots are rectilinear with lot 1 (30 Oak Grove) being 320 square metres and lot 2 (28 Oak Grove) being 321 square metres. The sites are relatively flat with a slight increase in site levels from north to south.  
Abutting properties to the west comprise two single storey detached Victorian dwellings at 48 and 50 Cochrane Street. 48 Cochrane Street has a recent contemporary single storey extension and garage extending to its eastern boundary abutting 30 Oak Grove.  Land to the east of the site at 26 Oak Grove comprises a two storey detached dwelling.	
Tribunal inspection	I inspected the site and surrounds.	

Reasons
What is this proceeding about?
1	This is an application for review against the decision of the Bayside City Council (Council) to refuse to grant an amendment to permits and endorsed plans 2018/209/1 and 2018/210/1 at 28 and 30 Oak Grove Brighton for the following:
•	To seek retrospective approval for air-conditioning units on the roof of the approved double storey dwelling.
•	The air-conditioning units are proposed to be screened with aluminium louver screens with a height of 1.2 metres.
•	The screens/air-conditioning units will increase the maximum height of the building to 8.878 metres above ground level.
2	Council planning officers recommended approval subject to conditions. 

Figure 1: Aerial of the review site and relationship with 48 and 50 Cochrane Street.  Source applicant VCAT submission. 

The proposal
3	The proposal has been described by the parties as follows.
•	The proposal includes six air-conditioning units, located in the central portion of the roof profile. Each unit is sited within the flat roof form, and has the following setbacks:
o	7.3 metres from the western (side) boundary. 
o	13.7 metres from the Oak Grove frontage (southern boundary); 
o	9.34 metres from the eastern (side) boundary.
o	16.4 metres from the northern (rear) boundary.
•	Screening to a maximum height of 1.2 metres above the top of the existing pitched roof plane is proposed around the perimeter of these units, with an overall height of 1.7 metres above the flat roof section. The screening would sit around the perimeter of the service units, allowing for maintenance access to each unit if required. The screens would have a north-south length of 5.5 metres and an east-west width of 1.2 metres.
•	The screens are to be constructed of horizontal powder coated metal battens (65mm wide with 16mm gaps) in the colour ‘monument’ which is similar to the existing pitched roof colour. 
4	The proposed amendments are detailed in the plans and photographs below.

Figure 2: Advertised plans. Location of air conditioning equipment.

Figure 3: Side elevation of proposed screening.

Figure 4: 50 Cochrane Street.  Source objector VCAT submission. 

Figure 5: 48 Cochrane Street.  Source objector VCAT submission. 
5	Council refused the proposed amendments on the following grounds (applicable to each property):
[1]	The proposed air-conditioning units/screening is contrary to Conditions 1 and 3 of the existing Planning Permit. 
[2]	The proposed air-conditioning units/screening is contrary to Standard A19 (detailed design) of Clause 54.06-1 of the Bayside Planning Scheme by creating unreasonable visual bulk when viewed from the street and neighbouring properties. 
[3]	The proposed air-conditioning units/screening will result in unreasonable amenity impacts to neighbouring properties by way of visual impact and noise which is contrary to the Decision Guidelines of Clause 65 (decision Guidelines) of the Bayside Planning Scheme.
What permission is required?
6	A planning permit is required for the proposed screening but not the air-conditioning units.  
7	Under the NRZ3 provisions, a permit is required for the construction or extension of one dwelling or a fence associated with a dwelling on a lot, under 500 square metres.  A permit is not required under this clause for the air-conditioning units as they are considered to be domestic services normal to a dwelling, which is described at clause 73.01 as:
Domestic services normal to a dwelling
A domestic appliance or apparatus that is normal to and services a dwelling. It includes disabled access ramps and handrails, an air conditioner, cooling or heating system, a hot water service, security systems and cameras, shade sails, a barbeque, downpipes and flues, a skylight, security screens, and the like.
8	Clause 62.02-2 ‘Buildings and works not requiring a permit unless specifically required by the planning scheme’ states:
Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:
…
•	Domestic services normal to a dwelling.
…
This does not apply if a permit is specifically required for any of these matters.
9	It was put by the parties that permission or the consent of the Responsible Authority is required for both the screening and air-conditioning units because conditions 1 and 3 read:  
[1]	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Bayside Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority. 
[3]	No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
reasons for Decision
10	I have decided to amend the planning permits for the following reasons. 
11	As observed from my site inspection and from the many photographs tendered at the hearing, the air conditioning units are visible but the degree of visibility is dependent on the location.  
12	I consider the visibility of the existing air-conditioning units to be a fair indicator of the level of visibility that can be expected of the proposed screening.  It is noted that the screening is intended to conceal the air-conditioning units.  The air conditioning units, have limited visibility from Oak Grove but are visible from the secluded private open spaces of 48 and 50 Cochrane Street, as can be seen in photographs at Figures 4 and 5.  
13	Council and the objectors submitted that the air-conditioning units and proposed screening do not respect the character of the area and in particular the heritage significance and value of the properties at 48 and 50 Cochrane Street, the screening will add visual bulk to the dwelling and would have a detrimental impact on the adjoining properties.
14	Infrastructure such as air-conditioning units can be considered generally unsightly and for that reason are often placed out of sight such as along the side of a house.  But this is not always the case.  
15	My assessment of this application for review, must be against the provisions of the planning scheme and, as discussed above, my consideration is limited in this case.  My findings cannot be personal preferences, likes or dislikes but must be against the provisions of the planning scheme.  Having said that, I find the proposed screening acceptable for the following reasons.
16	It was put to me that the screening is out of character with the area and would result in an unacceptable level of visual bulk. I was referred to the provisions of clause 15.01-5L and in particular the following objectives:
•	To use building materials and finishes that complement the dominant pattern within the streetscape or reflect the building materials in locations where there is particular consistency. 
•	Where adjoining an identified heritage building, design development to respect the height, building form, siting, materials and massing of the heritage buildings.
17	I was also referred to guidelines at clause 54.06-1 guidelines that include:
•	The effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting.
•	Whether the design is innovative and of a high architectural standard.
18	I agree that an assessment of character is not restricted to the streetscape, where the screening and air-conditioning units have limited visibility. Character can extend and take into account backyards with the character of a backyardscape often discussed in tribunal decisions.  But I am not persuaded by Council or the objectors that the proposal is out of character with the area or would have an unreasonable visual impact on the heritage value of the properties or the backyardscape. 
19	The character of the area is one of single and two storey dwellings, heritage and contemporary style buildings, a sense of green with trees on street naturestrips as well as in private gardens and the built form varies from modest to robust.  The screen is proposed to be 1.2 metres high constructed of metal battens in the colour monument (which is a dark grey colour).  The proposed screen will be visible but, in my view, will not be out of character with the area.  The proposed material and colour can be found used within the surrounding area and built form varies from modest to robust.  Therefore, I find that a screen as an extension to a roof will not be out of character with the area.
20	It was also submitted that the screening would result in an unreasonable level of visual bulk to the properties at 48 and 50 Cochrane Street.  The properties at 48 and 50 Cochrane have their secluded private open spaces as well as living rooms and studies orientated towards the review sites.  The proposed screen will sit approximately 7.4 metres from the shared boundary with 48 Cochrane Street. The visibility of the screen will vary dependent on where you are standing in the house or backyard of these properties.  That is, the closer you stand to the shared boundary, the less visible the screen will be.  It is acknowledged however that from the living rooms or studies of the dwellings, looking into their own rear yards, the screening will be visible.  It is my view that the screen will appear as a structure that extends from the roof line and will not visually overwhelm the property.  This assessment equally applies to 50 Cochrane Street.  Again, the screen will be visible but it will appear as an extension of the roof.  The test is not if you can see it, but if it is visually overwhelming causing detriment.  
21	I agree with the submission of Council that it is generally accepted as a guiding planning principle that mere visibility of the built form is not the reason to reject a proposal. The properties at 48 and 50 Cochrane Street have a lovely outlook to their rear yards and the sky.  Their outlook to the sky is retained but it will be altered by the installation of a screen.  Given this is an urban area of Melbourne, I find that the screening will appear as an extension of the roof and not overwhelm the adjoining properties.  
22	Potential for overshadowing was raised by the objectors but it was submitted that the overshadowing objective is ‘probably met’. I am persuaded by the applicant that given the height of the screening, the distance from the boundary and the structures that already cast shadow, the overshadowing objective of clause 54.04-5 would be met.
23	The issue of potential noise was raised but as noted by the objectors, air-conditioning and other domestic plant is subject to noise requirements in relation to the EPA legislation, I therefore make no further observations regarding this matter.
24	It follows that having found the screening appropriate, I therefore find that having regard to conditions 1 and 3, the endorsed plans are to be modified to reflect the location of the screening and air-conditioning units. 
What conditions are appropriate?
25	Not all of the parties actively participated in the draft conditions discussion, despite these discussions being on a ‘without prejudice’ basis. During the hearing, there was discussion around the accuracy or inaccuracy of the proposed plans and in particular reference was made to the overall height of the screen. The height of the screen was described by the applicant as:
The screen is shown on the advertised drawings with a height at the top of screen 1.2 metres above the highest point of roof (AHD 22.545), as shown on the east and west elevations on the advertised set of drawings. This provides for an overall height of between 8.6 metres – 8.8 metres from Natural Ground Level (NGL). It is noted that a maximum height of 9.17 metres from NGL to the top of screens is detailed on the front (south) elevation of the advertised drawings, however, this dimension has been calculated from NGL at the site’s frontage where the contours of the land are lower, which rise up towards the rear of the property.
26	The applicant submitted that if a permit was to issue, they would accept a condition requiring the preparation of a survey plan to demonstrate that the screens do not exceed a height of 9 metres above Natural Ground Level (NGL), which would be required to be provided to Council prior to completion of the overall development.  
27	I have decided that given the inaccuracy of the plans, it is appropriate to include a condition which will require further details of the screening and location of the air-conditioning units.  I will require the following conditions be included on each of the permits:
•	Within 30 days of the date of this permit, plans are to be submitted to the satisfaction of the responsible authority providing for:
o	A survey plan demonstrating the maximum height of the screen is no higher than nine metres above Natural Ground Level. 
o	Details of the screening including location, height from Natural Ground Level, materials including colour and width of spacing between the battens. 
o	Details of the air-conditioning units including location and height from Natural Ground Level.
•	Within 30 days of erection of the screening device above the roof the Applicant/ owner must lodge a survey plan demonstrating the maximum height of the screen is no higher than 9 metres above Natural Ground Level to the satisfaction of the Responsible Authority.
Conclusion
28	For the reasons given above, the decision of the responsible authority is set aside.  An amended permit is granted subject to conditions. 

Tracey Bilston-McGillen
Member	

Appendix A – Permit Conditions

Permit Application No	5/2018/209/2
5/2018/210/2	
Land	28 & 30 Oak Grove, BRIGHTON	

What the permit allowS	
In accordance with the endorsed plans:
•	Section 72 Amendment - Construction of a dwelling on a lot less than 500 square metres in accordance with the endorsed plans and subject to the following conditions	

Conditions
1	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Bayside Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2	Within 30 days of the date of this permit, plans are to be submitted to the satisfaction of the responsible authority providing for:
(a)	A survey plan demonstrating the maximum height of the screen is no higher than nine metres above Natural Ground Level. 
(b)	Details of the screening including location, height from Natural Ground Level, materials including colour and width of spacing between the battens. 
(c)	Details of the air-conditioning units including location and height from Natural Ground Level.
3	Within 30 days of erection of the screening device above the roof the Applicant/ owner must lodge a survey plan demonstrating the maximum height of the screen is no higher than 9 metres above Natural Ground Level to the satisfaction of the Responsible Authority.
4	Before the occupation of the site commences or by such later date as is approved in writing by the Responsible Authority, all buildings and works must be carried out and completed to the satisfaction of the Responsible Authority.
5	No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the Responsible Authority.
6	All pipes (excluding downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
7	Before the occupation of the site commences, screening of windows including fixed privacy screens be designed to limit overlooking as required by Standard A15 and be installed and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
8	The walls on the boundary of the adjoining properties shall be cleaned and finished to the satisfaction of the Responsible Authority.
9	Before the occupation of the development the landscaping works shown on the endorsed plans must be carried out and completed to the Satisfaction of the Responsible Authority.
10	The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
11	Any pruning that is required to be done to the canopy of any canopy tree to be retained is to be done by a qualified Arborist to Australian Standard – Pruning of Amenity Trees AS4373-1996. Any pruning of the root system of any canopy tree is to be done by hand by a qualified Arborist.
Street tree protection
12	Soil excavation must not occur within 2 metres from the edge of the Quercus (Oak tree) street tree asset’s stem at ground level. 
13	A tree protection fence is for the protection of a tree’s canopy and root zone. Conditions for street tree protection fencing during development are as follows:
(a)	Fencing is to be secured and maintained prior to demolition and until all site works are complete. 
(b)	Fencing must be installed to comply with AS4970-2009, Protection of trees on development sites. 
(c)	Fencing should encompass the Tree Protection Zone (TPZ) for all street trees adjacent to the development.
(d)	Fencing is to be constructed and secured so its positioning cannot be modified by site workers. 
(e)	If applicable, prior to construction of the Council approved crossover, TPZ fencing may be reduced to the edge of the new crossover to facilitate works. 
14	Prior to soil excavation for a Council approved crossover within the TPZ, a trench must be excavated along the line of the crossover adjacent to the tree using root sensitive non-destructive techniques. All roots that will be affected by must correctly pruned. 
15	Any installation of services and drainage within the TPZ must be undertaken using root sensitive non-destructive techniques. 
Development Contributions 
16	Prior to commencement of works under this Planning Permit and endorsed plans (No. PP2018/209/1), the permit holder must pay a drainage levy in accordance with the amount specified under the Bayside Drainage Development Contributions Plan. The levy amount payable will be adjusted to include the Building Price Index applicable at the time of payment.
The levy payment shall be submitted to Council with the Bayside Drainage Development Levy Charge Sheet and it must include the Building Price Index applicable at the time of payment.
Drainage
17	Before the development starts, the permit holder must apply to Council for the Legal Point of Discharge for the development from where stormwater is drained under gravity to the Council network.
18	Before the development starts, detailed plans indicating, but not limited to, the method of stormwater discharge to the nominated Legal Point of Discharge (and On-Site Detention System where applicable) must be submitted to and approved by Council’s City Assets and Projects Department.
Permit Expiry
19	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
(b)	the development is not completed within four years of the date of this permit.
In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

Date of Amendment	Details	
DATE TO BE INSERTED BY RESPONSIBLE AUTHORITY	Amendment to the permit and endorsed plans under Section 72 of the Planning and Environment Act 1987:
•	Inclusion of airconditioning services on the roof of the dwelling and associated 1.2 metre screening.	

– End of conditions –