VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P803/2023
Permit Application no.0835/97 - 1 	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Stonnington Planning Scheme; 
Amend permit – off-site amenity impact (overlooking) 	

Applicant	Barbara Allen	

Responsible Authority	Stonnington City Council	

SUBJECT LAND	324 Glenferrie Road
MALVERN VIC 3144	

HEARING TYPE	Hearing	

DATE OF HEARING	22 September 2023	

DATE OF ORDER	29 November 2023	

CITATION	Allen v Stonnington CC [2023] VCAT 1302	

Order
Permit amended
1	In application P803/2023 the decision of the responsible authority is set aside.  
2	Planning permit 835/97 - 1 is amended and an amended permit is directed to be issued for the land at 324 Glenferrie Road Malvern VIC 3144.  
3	Condition 3 in the permit is amended to read:
Screening in accordance with TP12, 13 and 14, with no screening necessary for the north-facing dining room window and the north-facing breakfast room window of Apartment 3.
4	Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing the:
(a)	Deletion of the externally mounted screens to the north-facing dining room window and the north-facing breakfast room window of Apartment 3.

Tracy Watson
Member			

APPEARANCES
For Applicant	Michael Meyer, town planner.
	
For Responsible Authority	Edward Wilkinson, town planner.	

INFORMATION
Description of Proposal	It is proposed to amend planning permit 835/97-1.
	
Planning Scheme	Stonnington Planning Scheme.
	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to amend the permit.
	
Zone and Overlay	Clause 32.08 - General Residential Zone, Schedule 1 (GRZ1).
Clause 45.06 - Development Contributions Plan Overlay (DCPO).
	
Land Description	The subject site is located on the eastern side of Glenferrie Road.  The site has a frontage of 20.02 metres and a maximum depth of 45.72 metres, with a site area of 915m2.
The subject site is currently developed with an apartment building. 
	
Tribunal Inspection	24 October 2023.	

REASONS
What is this proceeding about?
1	The applicant is seeking a review of the Stonnington City Council’s decision to refuse to amend the existing planning permit.  The existing permit (no. 835/97) allows the “development of a three storey building (and basement garage) for the use as five flats”, and was issued by the Council on 6 July 1998.  
2	The applicant is seeking to amend the development plans endorsed under this permit to allow clear glazing to two of the existing north facing windows of Apartment 3.
3	The Council has refused the proposed changes on the basis that they would result in unreasonable overlooking.
4	The Tribunal must decide whether the proposed changes achieve an acceptable planning outcome.  Having considered all of the submissions presented with regard to the applicable policies and provisions of the Stonnington Planning Scheme, I have decided to set aside the decision of the Responsible Authority.  My reasons follow.
Is the existing extent of overlooking an acceptable planning outcome?
5	The two windows in question are located on the first floor of the existing apartment building.  They are both habitable room windows, with one window to a reading/ sitting area, and the other window to a dining area. 
6	Currently both of these windows are installed with clear glazing, and previously these windows featured solid paint to a height of 1.35 metres above finished floor level, with clear glazing above.  The applicable development plans endorsed under the existing permit show an externally mounted screen (noted on the plans as ‘fully obscure glass’) to each of these windows to a height of 1.35 metres.  These details are shown on the floor plan endorsed on 25 November 1998 (being Sheet 2 of 6), and the north elevation plan endorsed in July 1998.  I note that the existing reading room is noted as a ‘breakfast room’ on the endorsed layout plan.
7	It is understood from the Council’s submission that the positioning of these external screens was intended to prevent downward views into the abutting private open space areas, and the ground level windows of no. 2C Woodmason Street.  The endorsed external screens were never intended to prevent views to the first floor window of no. 2C Woodmason Street.
8	The amendment is seeking the modification of these endorsed plans to permit the current situation (that is, the endorsed plans would be modified to delete the two external screens).
9	The Council does not support the proposed modification of the endorsed plans (to delete the screens) as it submits that the overlooking from the two existing windows does not comply with Standard B22 of the planning scheme.
10	Standard B22 includes the following opening statement:
A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio. Views should be measured within a 45 degree angle from the plane of the window or perimeter of the balcony, terrace, deck or patio, and from a height of 1.7 metres above floor level.
11	The applicant prepared a diagram showing the viewing arc from the two windows for a horizontal distance of 9 metres and within the 45 degree angle, as per the above statement, in relation to the two abutting properties at nos. 2C and 2B Woodmason Street.  On the basis of this diagram, I accept the Council’s submission that retaining the existing clear glazing to the two windows does not achieve technical compliance with Standard B22.
12	However, I need to determine whether it is necessary to install the two externally mounted screens to the windows, as per the plans endorsed under planning permit no. 835/97, in order to avoid unreasonable overlooking. 
13	This then leaves me to consider whether the objective at Clause 55.04-6 of the planning scheme is met, which is “To limit views into existing secluded private open space and habitable room windows.”  In doing this, I need to consider the following decision guidelines:
The design response.
The impact on the amenity of the secluded private open space or habitable room window.
The existing extent of overlooking into the secluded private open space and habitable room windows of existing dwellings.
The internal daylight to and amenity of the proposed dwelling or residential building.
14	Given the circumstances of this case, it is the impact on the neighbour’s amenity and the extent of existing overlooking which are the key decision guidelines.
15	The side open space areas of the two abutting properties and the south facing windows of no. 2C Woodmason Street are within a 9 metres viewing arc.  Importantly, both of the ground level side open space areas are not the principal/ primary secluded private open space areas of either of these properties.
16	Conducting my site inspection from within Apartment 3 was critical in this proceeding, as it allowed me to assess the degree of actual overlooking in ‘real time’.  In other words, I was able to look out the two windows and fully appreciate the existing conditions of both the subject site and the abutting properties.  I was also able to appraise the extent of existing overlooking from the other indoor and outdoor living areas of Apartment 3.
17	On the basis of my site inspection, I find that the outlook from the two windows in question does limit views into the neighbouring properties to a reasonable and acceptable extent.  I do not consider the side areas of either property to be sensitive principal private open space areas.  Further, given the distance of the existing south facing windows of no. 2C Woodmason Street, and the viewing angles towards these windows from within Apartment 3, I find that there is no unreasonable views into these windows.
18	Another factor in my decision is that I do not consider the installation of the 1.35 metres high screens (as per the endorsed plans) to create a situation which protects the abutting properties from overlooking to any real degree.  I note that the Council accepted that, given the nature of the endorsed plans, it is not possible in this case to require screening to a height of 1.7 metres above finished floor level as per the current provisions of Standard B22.
19	I am satisfied that the retention of the clear glazing to the two windows will not unreasonably impact the amenity of the two abutting properties.  I therefore find that the overlooking objective at Clause 55.04-6 of the planning scheme is met.
20	It is therefore appropriate to amend the endorsed plans such that the 1.35 metres external screening details shown on these plans is deleted.  As per the Council’s submission, the wording of Condition no. 3 of the planning permit also requires modification to align with this change to the endorsed plans.
Conclusion
21	In summary, I find that there is no unreasonable overlooking from the existing clear-glazed reading room and dining room windows of Apartment 3.
22	I have concluded that the decision of the Responsible Authority will be set aside.  The effect of this is to permit the existing clear glazing of these windows, and the deletion of the external 1.35 metres high screens shown in the endorsed plans.
Tracy Watson
Member