VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P92/2023
Permit Application no.GE/SP-35680/2022 	
CATCHWORDS	
Section 77 – Planning and Environment Act, 1987, Glen Eira Planning Scheme, visual bulk, overshadowing, site coverage, neighbourhood character.	

Applicant	Tania Lee Lawson & Gary David Cole	

Responsible Authority	Glen Eira City Council	
Respondent	P Thatcher	

SUBJECT LAND	2/13 Grafton Street
ELSTERNWICK VIC 3185	

HEARING TYPE	Hearing	

DATE OF HEARING	14 July 2023	

DATE OF ORDER	20 July 2023	

CITATION	Lawson v Glen Eira CC [2023] VCAT 834	

Order
Permit granted
1	In application P92/2023 the decision of the responsible authority is set aside.
2	In planning permit application GE/SP-35680/2022 a permit is granted and directed to be issued for the land at 2/13 Grafton Street Elsternwick VIC 3185 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	construction of a double storey extension to an existing dwelling on a lot of less than 300sqm, and 
•	construction of a front fence exceeding 1.5m in height.

Alison Glynn
Member			

Appearances
For applicants: Tania Lawson and Gary Cole	Andrew Clarke, town planner of Clarke Planning Pty Ltd.	
For responsible authority: Glen Eira City Council	Peter O’Leary, town planner of Polplan Pty Ltd.	
For respondents: Paul and Lindy Thatcher	Paul Thatcher.	

Information
Description of proposal	Partial demolition and extension to a dwelling on a lot less than 300 square metres.  The extension includes a larger upper level than currently exists and a new front fence.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 (Vic) – to review the refusal to grant a permit. 	
Planning scheme	Glen Eira Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1 (‘NRZ1’)
No overlays.	
Permit requirements	Clause 32.09-4 – Alterations and additions to a dwelling on a lot less than 300 square metres in NRZ1.	
Relevant scheme policies and provisions	Clauses 02.03, 15.01, 16.01, 32.09, 54 and 65.	
Land description	The site has a 7.9 metre frontage to the west side of Grafton Street and a depth of 30.15 metres.  In total it has an area of 237 square metres and is generally flat.  The site currently contains a double storey, attached dwelling.	
Tribunal inspection	I inspected the site and the adjoining property at 11 Grafton Street, unaccompanied after the hearing concluded, on 14 July 2023.   	

Reasons
What is this proceeding about?
1	Tania Lawson and Gary Cole (‘the applicant’) want to extend and modify their existing two storey house at 2/13 Grafton Street, Elsternwick (‘the review site’).  As the review site has an area of less than 300 square metres, the proposal requires a planning permit in accordance with the provisions of the Neighbourhood Residential Zone – Schedule 1 (‘NRZ1’) of the Glen Eira Planning Scheme (‘the planning scheme’).
2	The Glen Eira City Council (‘the council’) has refused to grant a planning permit for the proposal, contrary to its officers recommendation.  The grounds on which the council has refused the proposal are that ‘the proposal is not compliant with the following objectives of Clause 54 the Glen Eira Planning Scheme’:
•	Clause 54.03-3 (Site coverage objective), as the site coverage is excessive and does not respect the character of the area by means of landscaping opportunities.
•	Clause 54.03-6 (Significant trees objective), as insufficient landscaping opportunities for canopy tree planting is provided.
•	Clause 54.04-1 (Side and rear setbacks objective), as the proposed rear setback does not respect the preferred landscaped character of the area.
•	Clause 54.04-5 (Overshadowing open space objective), as the proposal will result in unreasonable overshadowing impacts to 11 Grafton Street.
•	Clause 54.06-2 (Front fence objective), as the fence height does not respect the fence height character of the area. 
3	The neighbour to the south of the review site also opposes the proposal on the basis that the extended upper level will increase visual bulk to their rear yard and living space that faces north, toward the review site, as well as adding unreasonable additional shadow to their adjoining property.
What are the key issues and my key findings?
4	From the submissions made and the information set out in parties grounds, I find there are several questions I need to determine:
•	Do the proposed side and rear setbacks, site coverage, and landscaping proposed provide an adequate response to the landscape character of the area?
•	Do the proposed additions create unreasonable visual impact on adjoining neighbours?
•	Do the proposed additions create unreasonable additional shadow to adjoining secluded private open space (‘SPOS’)?
•	Is the proposed front fence acceptable?
5	I address these questions below.  In summary, I find that the proposed additions are acceptable.  The additional visual impact and shadowing to the adjoining neighbour to the south are reasonable in the context of the site setting.  The impact on site coverage and landscape character is negligible.  Neither of these matters lead me to a view that a permit should be refused.  I am satisfied the proposal provides an acceptable response to the provisions of clause 54 and the NRZ1 objectives.  A permit is therefore granted with my reasons following.
does the proposal result in an acceptable landscape response?
6	The proposal includes a small addition to the ground floor footprint of the existing dwelling, increasing the site coverage from 52/53% of the site, to 58%.  This calculation of the existing site coverage varies depending if the existing garden shed is included or excluded.  It also is derived from the title boundary that sits slightly in from the rear fence of the property.  In figure 1 below I have included the proposed ground floor layout overlayed with the existing rear line of the dwelling (in red dashed lines) to be demolished, along with other internal walls also to demolished.
 
Figure 1 - Page 2 and 5 of advertised plans overlaid.  The black outline is the proposed new footprint and shows the demolished footprint in red, dashed lines.  (note various red ‘clouds’ identify notations made by the architect on the plans.
7	The ground floor rear wall of the dwelling will extend out approximately 0.6 metres from the existing wall, and up to 1.0 metre at its south-west edge.  The existing garden shed at the south-west corner of the site will be relocated and made a little larger to sit along the southern boundary.
8	At this southern boundary, the existing boundary fence is 2.7 metres high, so the shed will not be visible over the fence to any neighbour.
9	The proposal includes removal of birch trees that traverse the existing rear boundary.  A landscape plan proposes new planting that the council acknowledges meets its landscape policies.  The council acknowledged in its submissions to the hearing that it considers that the landscaping associated with the proposal now complies with the planning scheme and therefore its second ground of refusal could no longer be substantiated.
10	Clause 54 of the planning scheme includes various objectives and provisions to address amenity and character elements of a proposal.  As set out by the council, it considers the proposal fails the site coverage and set back provisions as it considers the proposed site coverage and side and rear setbacks do not respect the preferred landscaped character of the area.  This interlinks with the objective of clause 54.03-3 – Site coverage that is:
To ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site.
11	The existing and proposed site coverage do not meet the standard requirement of 50 percent site coverage.  The clause then directs a decision maker to be satisfied that the objective is still met, having regard to relevant decision guidelines also set out in clause 54.03-3.  These require consideration of:
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme.
•	The design response.
•	The existing site coverage and any constraints imposed by existing development or the features of the site.
•	The site coverage of adjacent properties.
•	The effect of the visual bulk of the building and whether this is acceptable in the neighbourhood
12	The site is relatively small.  The change in site coverage between the existing and proposal is very small and generally will not be perceivable to neighbours, or from the street.  This is because the area of rear yard for landscaping is generally maintained as currently exists, other than replacing non-significant trees across the rear of the site with new planting.
13	The council acknowledges that the objective for landscaping, required by clause 54.03-6 is now met, having regard to local policy at clause 15.01-1
14	I have reviewed clause 15.01-1L with clause 54.03-6 and agree with the council submission that the proposal meets the objective of clause 54.03-6 as it includes the provision of a new canopy tree in the rear yard and does not impact landscaping in the front yard.
15	The council also refused the proposal on the basis that clause 54.01-1 – Side and rear setbacks is not met.  This is on the basis that the proposed side and rear setbacks do not respect the preferred landscaped character of the area. In assessing this provision, the proposed rear setback is relevant.  This is because clause 54.01-1 sets standards for ‘a new building not on or within 200mm of a boundary’.  The proposed extensions to the side boundary abut the southern side boundary and assessed under clause 54.04-2.  I address the impacts of this southern wall as a question of visual impact, as raised by the neighbour below. 
16	The application plans identify a rear setback of 3.975 metres from the rear building line to the rear title boundary.  The schedule to NRZ1 sets the standard setback at 4.0 metres.  To the glass line of the rear of the building, the setback exceeds the 4 metre requirement.  The storage shed, a framing element and part of the upper level do not meet the rear setback standard.  The council acknowledges that the shed is of no consequence as it is too low to be seen over any fence.  
17	The upper level is set back approximately 3.8 metres from the rear boundary where there is a proposed study nook.  The objective of clause 54.01-1 is:
To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
18	The area of ground floor non-compliance is negligible and measured from the title boundary.  There is no material amenity or character impact I can identify from the slight reduction in rear setback resulting from the proposed extension.
19	At upper level I am also satisfied that the study nook and void area are acceptable.  The void area is a sloping roof down, reducing its visual impact to the neighbours to the rear and north.  I note that on the northern side, the mid-section of the upper level sits closer to its northern side boundary than would meet the standard of clause 54.04-1.  At this point, however, the building interfaces with a double storey section of 1/13 Grafton Street where there is no impact on visual bulk to this property to the north.  
20	The southern section, interfacing to the rear setback is a very minor non-compliance and sits directly north of an existing single storey pitched room area of the dwelling to the south.  Its setback at 3.8 rather than the standard 4 metre setback still limits the impact on the amenity of this adjoining dwelling. 
does the proposal result in unreasonable visual impact to its southern neighbour?
21	The neighbour to the south submits that the proposal will unreasonably impact the enjoyment of their dwelling that has a rear yard and a living space that orientates to the north, toward the review site.
22	The council did not refuse the proposal on grounds that the proposal fails clause 54.04-2: Walls on boundaries objective.  To assess the objector’s concerns, however, it is relevant to consider this provision that has an objective:
To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.
23	The proposal as it relates to the upper level expands the existing footprint and brings it to the southern boundary.  Figure 2 below illustrates the proposed new upper level in black, with the demolished existing upper level in red dotted outline.  The changes also introduce the balcony to the east of the proposed upper level, partly where the existing upper level is.  The new upper level has a flat roof (the existing roof is pitched).  At the north-west corner, over the void, and at the south-east corner, including over part of the balcony the flat roof ‘folds down’ to a lower point.  At the south-east corner this provides a roof over part of the balcony and a proposed privacy screen on the south boundary.

Figure 2 - Proposed upper level, with the existing upper level marked in red dashed lines.
24	A survey plan provided with the permit application material identifies the height of the existing upper level roof ridge on the review site sits at RL29.96 metres.  The ridge of the existing ground level is RL28.17 metres at the rear and RL27.98 where the balcony is proposed in front of new upper level.
25	The proposed new upper level is nominated on plans as sitting at RL29.52 metres, or about 0.4 metres lower than the existing ridge.  However, this new height will extend to the southern boundary, abutting the northern side of 11 Grafton Street.  The maximum height of the proposed wall on boundary being 6.63 metres, close to its western end, where natural ground level is slightly lower than at the front of the site.
26	The new wall on boundary exceeds the standard height for a wall on boundary as it exceeds an average of 3.2 metres and does not abut a higher existing or simultaneously constructed wall.
27	In determining if the wall height is acceptable it is relevant to consider the relevant decision guidelines of clause 54.04-2 that require consideration of:
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme.
•	The design response.
•	The extent to which walls on boundaries are part of the neighbourhood character.
•	The visual impact of the building when viewed from adjoining properties.
•	The impact on the amenity of existing dwellings.
•	The opportunity to minimise the length of walls on boundaries by aligning a new wall on a boundary with an existing wall on a lot of an adjoining property.
•	The orientation of the boundary that the wall is being built on.
•	The width of the lot.
•	The extent to which the slope and retaining walls or fences reduce the effective height of the wall.
•	Whether the wall abuts a side or rear lane.
•	The need to increase the wall height to screen a box gutter.
28	The objector comments that walls on boundaries in this area are not common and there are no examples of two storey walls on boundaries.  I accept this, but examples were put to me of robust two storey walls close to boundaries that have visual impact.  This includes the dwelling directly opposite the review site at 14 Grafton Street.  As a question of character I am satisfied the two storey wall on boundary will not predominate the street.  It will be visible in a distant view, but only in a similar way that other two storey walls in the area are visible.  Nor does the council rely on any grounds that the two storey form is an unacceptable character response.
29	Having regard to the above decision guidelines, the proposed wall will bring the upper level of dwelling at 2/13 Grafton Street closer to the adjoining rear yard and living space at 11 Grafton Street and the overall extent of building visible from the adjoining rear yard and living space will be about 2 metres longer.  The proposed upper level will have a maximum height that is about 0.4 metres lower than the existing ridge of the upper level.  In perspective view from the rear yard and living space of 11 Grafton Street the proposed double storey wall on boundary will be more visible, but not to an extent that I find creates an unreasonable visual impact on this adjoining neighbour.  This is because the proposed wall abuts an existing single storey wall on the north boundary of 11 Grafton Street.  Consequently, the ability to see the proposed upper level wall and general upper level will be limited from the rear yard and living space of 11 Grafton Street as demonstrated in cross sections provided by the applicant in information plans circulated prior to the hearing.  The proposed upper level will be partly masked by the existing single storey structure along the northern boundary of 11 Grafton Street.  
30	Where the new wall will be visible it will be some distance from the SPOS and living areas of 11 Grafton Street, diminishing its visual dominance.  This includes that while the structure will be visible from inside the southern living area of the dwelling at 11 Grafton Street I am satisfied that from this view the proposed structure is sufficiently distant and of a scale that it will not create unreasonable visual bulk.  This is also noting that the rear yard and internal living space at 11 Grafton Street should retain a sky view above and around the proposed upper level that has its wall to the boundary.  
31	Therefore, as a question of visual impact on the neighbour to the south at 11 Grafton Street I am satisfied the wall is acceptable.
32	The council submission to the Tribunal also questions the use of a large privacy screen about 4.9m+ high extending along the southern boundary forward of the new 2 storey wall.  This screen extends upward, above the balcony at an angle to the new first floor roof.  I note this matter was not identified in the council officer report, or specifically referred to in the council grounds of refusal.
33	The council submission addresses this under a discussion of clause 54.04-1, in discussion of side and rear setbacks.  However, it is a screen on the boundary where the more relevant tests are under clause 54.04-2.  As part of the ‘wall’ on boundary, it extends the length of the proposed wall from 13.38 metres to 15.62 metres.  This is 0.62 metres longer than the standard sets for the length of a wall.  Given that the screen is partly permeable, and lower than the other parts of the wall, its impact is less.  It sits just over 3 metres north of a habitable room window at 11 Grafton Street thereby meeting the relevant daylight and northern window requirements set out in clauses 54.04-3 and 54.04-4.  The intervening space is not secluded private open space of 11 Grafton Street, but is part of its landscape amenity.  As a screening element I am satisfied that it will not result in unreasonable visual bulk to this space, or the habitable window as it rakes down and is not a solid structure.
does the proposal result in unreasonable shadow to adjoining spos?
34	The proposed new upper level with its wall on boundary also needs to be tested against whether it results in unreasonable shadow to the SPOS of 11 Grafton Street, sitting to the review site’s south.  The council grounds of refusal raise issue that the relevant objective at clause 54.04-5 is not met.  The objective of clause 54.04-5 is ‘to ensure buildings do not unreasonably overshadow existing secluded private open space’.
35	The objector at 11 Grafton Street also submits the proposal will result in unreasonable shadow to their property.  This is noting that while the standard uses the equinox as the test, it has impact on shadow throughout the year, notably the winter months.
36	Additional shadow calculations and diagrams prepared by the applicant prior to the hearing demonstrate that the standard to meet this objective is easily met in terms of providing more than 40 square metres of area of sunlight in the adjoining SPOS for at least 5 hours, being between 10am and 3pm at the equinox.  This is illustrated in the tabulation of shadow changes and areas provided by the applicant, in figure 3 below.

Figure 3 - Extract of shadow statistics provided by the applicant information plans circulated to parties on 23 May 2023.
37	While the area as a total is met, there is dispute as to whether the area also meets the required minimum dimension of 3 metres.  If this is not met, then the second limb of the standard applies, which states that the amount of sunlight to the adjoining SPOS, should not be further reduced.
38	The council submits that the dimension between the north and south arms of rear of the dwelling at 11 Grafton Street is less than the required 3 metres and therefore the first of the limbs is not met.  The applicant acknowledges that it may be just less than 3 metres, but to confirm this it would require a more detailed survey measurements of the height and location of the dwelling at 11 Grafton Street.
39	At the conclusion of the hearing I stated I would consider if further information would be required to address the shadow objective at clause 54.04-5.  I have determined that it is unnecessary.  I have relied on the premise that the dimension between the two arms of the dwelling at 11 Grafton Street is a little less than 3 metres, based on the green shaded area in figure 3 below, and also general comments put by the council and the applicant about this space that were not disputed by the neighbour.  
40	This leads to a conclusion that the standard is not met as there is a further loss of sunlight, notably at 10am as shown in figure 3 below.

Figure 4 - extract of May 2023 shadow diagrams: 10am shadow shown.
41	The assessment, however, does not end here.  The provision requires a determination as to whether the objective is met, which is to ensure buildings do not unreasonably overshadow existing secluded private open space.  There is no dispute that the area marked green in figure 3 represents the area of existing shadow to the SPOS of 11 Grafton Street.  The modelled shadow of the new building is marked in a blue outline in figure 3 and shows that it is significantly further north of the green area, other than it is not certain of the dimensions to the last centimetre without detailed survey.  Even allowing for some minor error in the plans without precise survey data, the diagram shows that the shadow from the proposed upper level sits well short of the existing shadow where it sits directly south of the northern arm of building at 11 Grafton Street.  It is therefore reasonable to accept that the new upper level will not cast a shadow further south than already exists in the green area where it sits south of the northern arm of the dwelling at 11 Grafton Street.  
42	The only increase in shadow at the equinox is to a small section to the west of the northern arm of the dwelling at 11 Grafton Street.  The additional shadow is gone by just after 11am.  The council submits that the shadow could be made compliant with the standard by retracting the upper level about 1 metre from its rear, western boundary.  I find this unnecessary having regard to the objective and decision criteria of the clause.  Notably the area of additional shadow is minor and in an area where it should have little impact on the use of the secluded open space.  The shadow also only occurs for a short period of time in the morning.
43	Taking into account these matters I am satisfied the additional shadow is acceptable and that the objective to ensure unreasonable overshadowing does not occur is met, regardless of whether technical compliance with the standard is met.
44	With the relevant shadow and visual bulk objectives of the planning scheme met, I am satisfied that the impact on the overall amenity to this adjoining dwelling is reasonable and acceptable.  
Is the proposed front fence acceptable?
45	The council submits that the fence exceeds the standard height requirement of 1.5 metres, being proposed at 1.6 metres.  The objector has no issue with the proposed front fence.  The council acknowledges that the existing fence has posts that are about 1.6 metres high, but has palings that vary in height down to 1.4 metres.  
46	The applicant submits that the proposed fence height is acceptable in context of other fences in the street and that they measure the adjoining neighbours fence at 11 Grafton Street at 1.52 metres.  
47	Clause 54.06-2 Front fences objective is to ‘encourage front fence design that respects the existing or preferred neighbourhood character.’  The standard height for fences not on a main road is 1.5 metres.  
48	There are a range of fence heights and materials in Grafton Street.  This includes the existing picket fences at 11 and 13 Grafton Street and also other solid fences such at what appears to be a 1.6 metre high solid fence at 15 Grafton Street (based on the existing post heights at 13 Grafton Street that I was advised are also 1.6 metres).
49	I am satisfied that in the context of the range of front fences in the street that the proposed fence height is acceptable, particularly given it will retain some permeability and therefore views to the garden setting through use of a picket form.
Conclusion
50	Overall I am satisfied that the proposed amendments and extensions to the dwelling at 2/13 Grafton Street are acceptable when tested against the relevant provisions of the Glen Eira Planning Scheme.
51	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Alison Glynn
Member			

Appendix A – Permit Conditions

Permit Application No	GE/SP-35680/2022	
Land	2/13 Grafton Street
ELSTERNWICK VIC 3185	

What the permit allowS	
In accordance with the endorsed plans:
•	construction of a double storey extension to an existing dwelling on a lot of less than 300sqm, and 
•	construction of a front fence exceeding 1.5m in height.	

Conditions
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the advertised plans identified as ‘13 Grafton Street, Elsternwick’, Project No. J01228, TP300, TP301, TP302, TP502, TP503 (all Revision B, dated 5.10.2022), TP600 (Revision A, dated 15.08.2022), TP704, TP705, TP706 (all Revision B, dated 5.10.2022) and TP800 (Revision A, dated 15.8.2022), all prepared by DX Architects, but further modified to show:
(a)	The notes stating ‘highlight windows’ associated with the northern windows to the void area on TP301 (first floor plan) and TP704 (overlooking diagrams) removed. 
2	The development as shown on the endorsed plans must not be altered or modified (unless the Glen Eira Planning Scheme specifies a permit is not required) except with the prior written consent of the Responsible Authority.
3	Before the dwelling is occupied, the walls of the extension on the boundary of adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority. Painted or bagged walls must be finished to a uniform standard and unpainted or unrendered walls must have all excess mortar removed.
4	Before the dwelling is occupied, all screening shown on the endorsed plans must be installed and permanently maintained in accordance with the endorsed plans. The screening measures as shown on the endorsed plans are not to be altered or removed except with the prior written consent of the Responsible Authority.
5	Before the dwelling is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
6	The landscaping shown on the endorsed plans must be maintained to the satisfaction of the Responsible Authority including by:
(a)	Implementing and complying with the requirements of the endorsed plans regarding landscape layout.
(b)	Not using the areas set aside for landscaping on the endorsed plans for any other purpose.
(c)	Replacing any dead, diseased, dying, or damaged plants.
7	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within three years of the date of this permit.
(b)	The development is not completed within five years of the date of this permit.
The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of Planning and Environment Act 1987.
– End of conditions –