VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1123/2023
Permit Application no.D/526/2022 	
CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Darebin Planning Scheme; 
Single dwelling – NRZ1, HO100 (Public realm interface; off-site amenity impacts)	

Applicant	Seth Brown	

Responsible Authority	Darebin City Council	
Respondents	Roger Sykes & Heather Hesterman	

SUBJECT LAND	64 Charles Street
NORTHCOTE VIC 3070	

HEARING TYPE	Hearing	

DATE OF HEARING	31 January 2024	

DATE OF ORDER	15 April 2024	

CITATION	Brown v Darebin CC [2024] VCAT 344	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	SMP Architects 	
•	Drawing numbers:	Sheet 1 (survey plan); and Sheets 2 to 23, VCAT Issue 2, Revision C	
•	Dated:	07-05-2022 (Sheet 1); and 12.12.23 (Sheets 2 to 23)	
2	The decision of the Responsible Authority is set aside.
3	In permit application D/526/2022 a permit is granted and directed to be issued for the land at 64 Charles Street, Northcote VIC 3070 in accordance with the endorsed plans and on the conditions set out in Appendix A.  The permit allows:
•	Demolition of existing dwelling and construction of a new double storey dwelling with roof terrace on a lot less than 300sqm within a Heritage Overlay and a reduction of the car parking requirement of Clause 52.06.
Tracy Watson
Member			

Appearances
For Applicant	Peter English, town planner.	
For Responsible Authority	Carmela Tornatore, town planner.	
For Respondent	James Livingston, town planner.  	
Information
Description of proposal	It is proposed to demolish the existing building and construct a new double storey dwelling with roof terrace, and a new rear studio building.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.	
Planning scheme	Darebin Planning Scheme.	
Zone and overlay	Clause 32.09 – Neighbourhood Residential Zone, Schedule 1 (NRZ1).  Schedule 1 does not contain any local variations.
Clause 43.01 – Heritage Overlay, Schedule 100 (HO100).
Clause 45.06 – Development Contributions Plan Overlay, Schedule 1 (DCPO1).	
Permit requirements	Clause 32.09-5 – Construct one dwelling on a lot less than 300m2.
Clause 43.01-1 – Demolish or remove a building; and Construct a building or construct or carry out works.
Clause 52.06-3 – Reduce the number of resident car spaces from two to one space.	
Relevant scheme policies and provisions	Includes Clauses 02.03, 02.04, 11, 15, 16, 32.09, 43.01, 52.06, 54, 65 and 71.02.	
Land description	The subject site is located on the south-eastern corner of Charles Street and South Park Street in Northcote.  The subject site is currently developed with a single storey building, is rectangular in shape, with a frontage of 5.18 metres and a depth of 41.71 metres, yielding a site area of 216m2.	
Tribunal inspection	13 March 2024 – public realm only.	

Reasons
What is this proceeding about?
1	The Darebin City Council issued a Refusal to Grant a Permit for the proposal in July 2023, on a number of grounds.  As a consequence of the amended plans, which have now been formally substituted by the Tribunal, and the gazettal of Amendment VC243, the Council’s concerns have narrowed, with the two main key outstanding matters confined to the neighbourhood character and heritage impacts of the proposal.
2	The respondent is the owner/ occupier of the dwelling at no. 66 Charles Street, which abuts the eastern side boundary of the subject site.  The key issues raised by Mr Livingston, on behalf of the respondent, relate to the proposal’s neighbourhood character and heritage impacts, as well as its off-site amenity impacts.
3	The provision of one, on-site resident car space is not in dispute.  A Traffic Engineering Assessment prepared by the Traffix Group has been prepared which supports the reduction in the on-site car parking from two spaces to one space, and includes a Car Parking Demand Assessment as required by Clause 52.06-7 of the planning scheme.  On this basis, I agree with the Council’s position that the proposed car parking reduction is acceptable and that permission should be granted for the proposed on-site car parking under Clause 52.06-3 of the planning scheme.
4	I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions, together with the applicable policies and provisions of the Darebin Planning Scheme, I have decided to set aside the decision of the Responsible Authority.  My reasons follow.
Does the proposal result in an acceptable planning outcome?
Heritage and Neighbourhood Character Considerations
5	The opposing parties argued that the proposed dwelling is too visually dominant and bulky, is not sympathetic to the scale and streetscape of the heritage precinct (HO100), is out of keeping with the area’s general character, and that of the abutting property at no. 66 Charles Street.  The focus of the submissions was on the scale, form and appearance of the new dwelling and not on the demolition of the existing building.
6	Clause 43.01 of the planning scheme contains the overarching heritage provisions.  The relevant purposes of the Heritage Overlay are as follows:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To conserve and enhance heritage places of natural or cultural significance.
To conserve and enhance those elements which contribute to the significance of heritage places.
To ensure that development does not adversely affect the significance of heritage places.
7	Ultimately, I need to determine if the proposed building meets these Heritage Overlay purposes.  In doing this, I need to consider the relevant Clause 43.01 decision guidelines and the applicable Statement of Significance for the HO100 heritage precinct.
8	The key decision guidelines at Clause 43.01-8 of the planning scheme, which I need to take into account, when considering the proposal, are:
The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
Any applicable statement of significance (whether or not specified in the schedule to the overlay), heritage study and any applicable conservation policy.
Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
9	The heritage place is defined/ described in the Schedule to the Heritage Overlay.  In this case the heritage place is a Precinct (which is area-based and includes a collection/ group of buildings) and is described as the ‘Area bounded by Clarke Street, Charles Street, Merri Parade, High Street, Northcote’.
10	I support the Council’s position in regards to the proposed demolition of the existing building as it has been clearly identified in the Darebin Heritage Review 2000 as being neither a significant nor a contributory building within the HO100 precinct.  The proposed demolition is therefore considered acceptable, as the planning scheme does not seek to conserve or retain non-contributory buildings (see for example, Clause 15.03-1L).  This leaves me to consider whether the replacement building is acceptable in its context, and whether it is “sensitive to heritage character” as per the strategy at Clause 15.03-1L of the planning scheme.
11	I agree with Mr English’s submission that guidance on the siting, setbacks and form of the replacement building is mostly provided in the Darebin Neighbourhood Character Study (a policy document), given the absence of detail at Clause 15.03-1L of the planning scheme.  In this regard, the subject site is located within Precinct A1 pursuant to Clause 15.01-5L of the planning scheme.  I have also considered the applicable heritage precinct Statement of Significance, as reproduced in the Council’s submission, and find that the proposed demolition and construction of a new replacement dwelling does not adversely impact the significance of the identified heritage place.  In addition, I find that the construction of a single dwelling is also consistent with the minimal housing growth and change identified for this area pursuant to the Strategic Housing Framework Plan at Clause 02.04-2 of the planning scheme.   
12	I am satisfied that, in general, the scale, siting (including site coverage), form and appearance/ design of the new dwelling is acceptable, and will not be visually dominant nor disrespectful of the existing context, as:
•	Its hard street edge to South Park Street, and minimal ground level setback to Charles Street, is reflective of corner development in this neighbourhood (such as at nos. 62 and 73 Charles Street), as well as the overall characteristic of attached construction.
•	The curvilinear alignment of Charles Street and the location of the train line and abutting public open space areas results in the subject site being largely visually separate from the Charles Street streetscape (west of South Park Street and Park Street).  This means that the primary context for the subject site is the highly diverse streetscape of South Park Street, along with its visual relationship with the abutting property at no. 66 Charles Street.
•	The 1 metre ground level setback (which replaces the current hard edge to Charles Street) provides for landscape softening.
•	The 4.24 metres upper level setback to Charles Street provides the desired ‘distance of one room’ specified in the applicable precinct guidelines, and is appropriately recessive to the single storey component of no. 66 Charles Street such that it is not visually bulky when viewed in comparison to the existing dwelling at no. 66 Charles Street.
•	The siting of the proposed dwelling and rear studio with an intervening 44.5m2 private open space area is characteristic of this neighbourhood. There are numerous nearby properties that feature similar siting arrangements (for example, at nos. 48A to 62 Charles Street).  This tight knit inner city neighbourhood results in relatively high site coverages, and in this context I find that the proposed site coverage of 78% is acceptable.  I note that Mr English confirmed at the hearing that the proposal complies with Standard A6 in regards to permeability.
•	The extent of double storey form constructed to the boundary along South Park Street is consistent with the ‘rather utilitarian’ and ‘almost back of laneway character’ as described in Mr English’s submission and supported by his photographic material.
•	The maximum building height is limited to a small element, being the stairwell accessing the roof terrace.  
•	The roof terrace is appropriately visually recessive due to its more than 7.2 metres setback from Charles Street and 1.075 metres setback from South Park Street, and its integration within the roof form.
•	Vehicular access is from the rear laneway as per the applicable precinct guidelines.
•	A pitched roof form and interpretive contemporary design has been provided as per the applicable precinct guidelines.  I do not consider that changes to the roof form are necessary or warranted.
•	A colourbond fence on the western boundary would be reflective of the typical corrugated iron fences found along South Park Street.
•	The building is further articulated through its materiality and fenestration and is appropriately integrated via the primary entrance to South Park Street, and another access point to Charles Street.
13	Overall, I find that the proposal respects the neighbourhood character of the area and does not adversely affect the heritage significance of the HO100, subject to conditions requiring modifications to fenestration and materiality.  I agree with the Council and applicant that the ambit of the permit conditions is acceptable, and that the scope of changes sought can be reasonably achieved via permit conditions.
Off-site Amenity Impacts
14	It was submitted that because this is a completely new proposal, it is reasonable to expect that the Clause 54 amenity-related standards will be met (or nearly met), particularly Standard A10.  In regards to the abutting property, the key concerns were the impact of the development on the amenity of the existing west-facing kitchen window, and the secluded private open space area located directly to the south of the dwelling at no. 66 Charles Street.  Mr Livingston fairly acknowledged that the primary secluded private open space of this property is located in the north-east corner of the allotment, and does not have a direct interface with the subject site.  However, he submitted that the secondary area located to the south of the dwelling is still well utilised and that the impacts on this area need to be considered.
15	In regards to the existing west-facing kitchen window of the dwelling at no. 66 Charles Street, I consider that the relevant issue is a consideration of the potential impact of the proposal on the amount of daylight this window receives.  
16	The Council submitted that this issue can be resolved by a condition of the permit which states:
Details confirming the location of the neighbouring habitable room window, the height of the existing wall on boundary (shown green on the floor plans and south elevation) and calculations and/or arc diagrams and/or additional dimensions demonstrating compliance with Standard A12 (Daylight to existing windows objective) of the Darebin Planning Scheme.
17	Mr English submitted that the above condition is likely to result in a reduction in the wall height to 3.0 metres.  Although the rear living space of the abutting dwelling also includes larger north and south facing windows, I think that compliance with Standard A12 in regards to the kitchen window is warranted and achievable.  I therefore endorse the suggested permit condition put forward by the Council.
18	There are also west-facing upper level windows at no. 66 Charles Street, but these are setback from the shared side boundary at a distance such that Standard A12 is met.
19	I do not think that it is warranted to reduce the length of the southernmost first-floor bedroom by one metre for reasons relating to the outlook from these upper level windows, given their existing side boundary setback distance.  I am satisfied that the length and height of the proposed double storey eastern boundary wall is acceptable and that the Clause 54.04.-2 objective of the planning scheme is met in regards to this wall.
20	The Council also agreed that no changes to the length or height of the double storey eastern side boundary wall is necessary, as its visual impact was deemed acceptable.  However, the Council did submit that the non-compliance of the eastern boundary wall of the rear studio results in an unreasonable visual impact on the secluded private open space of the property at no. 66 Charles Street.  The Council submitted that the following condition would appropriately resolve this issue:
The studio above the garage set back to comply with Standard A10 (Side and rear setbacks objective) of the Darebin Planning Scheme. 
21	Mr Livingston submitted that rather than providing for a boundary setback, this building should be reduced in height to approximately 3.9 metres.  I disagree with this submission, as the Council’s suggested condition will achieve compliance with Standard A10 in regards to the studio building and thus the associated objective in relation to the studio building and its impact on the amenity of the adjoining open space area is deemed to be met.
22	Whilst I acknowledge that this rear area is a secondary open space area, I still consider that a reduction in the visual impact on this space is warranted, as per the Council’s submission, in order for the Clause 54.04-1 objective to be achieved in relation to the rear studio building.  
23	Subject to the above conditions, and the Council suggested condition relating to overlooking, I find that the proposal does not result in any unreasonable off-site amenity impacts on the property at no. 66 Charles Street.
What conditions are appropriate?
24	The draft permit conditions were discussed at the hearing, and the conditions that have been included in the permit at Appendix A reflect these discussions as well as my findings.
Conclusion
25	I am satisfied that the proposal meets the purposes of the Heritage Overlay, and that all of the Clause 54 objectives of the planning scheme have been met.  I conclude that it is appropriate for the decision of the Responsible Authority to be set aside.  A permit is issued subject to conditions.

Tracy Watson
Member

Appendix A – Permit Conditions

Permit Application No	D/526/2022	
Land	64 Charles Street
NORTHCOTE VIC 3070	

What the permit allowS	
In accordance with the endorsed plans:
•	Demolition of existing dwelling and construction of a new double storey dwelling with roof terrace on a lot less than 300sqm within a Heritage Overlay and a reduction of the car parking requirement of Clause 52.06.	

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 this Permit.  The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application, identified as Sheet 4 – Sheet 9 (inclusive), VCAT Issue 2, Rev. 3 drawings dated 12/12/2023, prepared by SMP Architects, but modified to show:
(a)	A demolition plan, which includes all buildings and structures to be removed.
(b)	A site permeability plan, prepared in accordance with the A6 Permeability guidelines of Planning Practice Note 27 (December 2023), which demonstrates a minimum 20% permeability has been achieved.  A section diagram and/or specifications must be provided for any pervious applied surfaces and/or decking.  The built form is to be reduced (if required) to ensure compliance.  
(c)	Details of the fencing to the eastern boundary in accordance with Condition No. 6 of this Permit.
(d)	Details confirming the location of the neighbouring habitable room window, the height of the existing wall on boundary (shown green on the floor plans and south elevation) and calculations and/or arc diagrams and/or additional dimensions demonstrating compliance with Standard A12 (Daylight to existing windows objective) of the Darebin Planning Scheme.
(e)	The fence on the western boundary to be colourbond (to a maximum overall height not exceeding 2 metres), to the satisfaction of the Responsible Authority and the material/finish included within the colour schedule. 
(f)	The windows modified as follows to provide a consistent, unified fenestration style:
•	The western windows on both floors aligned vertically; 
•	The first floor window above the door widened to match the door width; and
•	The west facing ground floor recreation room and living room highlight windows removed.  
Window panels can be ‘blocked out’ between levels to provide architectural detail.
(g)	The first floor material to be consistent across the entire first floor and be a durable material (e.g. vertical metal cladding, vertical corrugated metal sheet, vertical aluminium cladding) in a light to medium colour (i.e. a light colour complementary to the streetscape with a solar absorption rating equal to or less than 0.60); and the ground level brick to be a recycled red brick or red brick. 
(h)	A window provided to the western, ground floor, external door to South Park Street (e.g. a narrow window with clear or semi-obscure glazing such as reeded glass).
(i)	Fixed external sun shading devices to all north facing habitable room windows where not located directly under an eave or overhang.  Where sun shading devices are used a dimensioned section diagram or photograph must be provided. Shading must not to extend within 1 metre of a property boundary.
(j)	External operable sun shading devices (excluding roller shutters to windows that face the street at Ground Floor) to all east and west facing habitable room windows.  Where sun shading devices are used a dimensioned section diagram or photograph must be provided.  Shading devices must not protrude or overhang the footpath.
(k)	The studio above the garage set back to comply with Standard A10 (Side and rear setbacks objective) of the Darebin Planning Scheme. 
(l)	Sections demonstrating that the eastern and southern sides of the rooftop terrace comply with Standard A15 (Overlooking objective) of the Darebin Planning Scheme, or provide fixed screening, with a maximum transparency of 25% to a height of 1.7 metres above finished floor level, with no increase in the building or balustrade height.  
(m)	Replacement planting of a minimum:
•	One (1) large sized canopy trees in the private open space of the proposed development, with a minimum mature height of 10m; and
•	One (1) medium sized canopy trees in the private open space of the proposed development, with a minimum mature height of 8m. 
These trees are to be from 100L pot sizes and must be at least 2m in height at the time of planting.
(n)	Annotations detailing tree protection zones and measures in accordance with Conditions No. 3 and 4 of this Permit.
(o)	A comprehensive schedule of construction materials, external finishes and colours (including colour samples).  Reference to ‘or similar’ is to be avoided, any colours/materials not being used are to be removed and all colours/materials (including roof) are to have a solar absorption rating equal to or less than 0.60.
(p)	The location of all plant and equipment (including air-conditioners, condenser units, rainwater tanks, solar panels, hot water units and the like). These are to be:
i	co-located where possible;
ii	located or screened to be minimally visible from the public realm;
iii	air conditioners located as far as practicable from neighbouring bedroom windows or acoustically screened; and
iv	integrated into the design of the building. 
(q)	The location of gas, water and electricity metres. Where metres would be visible from the public realm, these are to be:
i	co-located where possible;
ii	positioned on a side boundary or adjacent to the accessway; and
iii	screened from view using either landscaping or durable screening that integrates with the development.
When approved, the plans will be endorsed and form part of this Permit.
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3	Before the development (including demolition) starts, tree protection fencing (TPF) must be erected in accordance with the following requirements to provide a Tree Protection Zone (TPZ):
Tree*	Location	TPZ (radius from the base of the tree trunk)	
Tree 1 – Lagerstroemia indica CV (Crepe Myrtle) 	Road reserve (South Park Street)	2 metres	
Tree 2 – Lagerstroemia indica CV (Crepe Myrtle) 	Road reserve (South Park Street)	2 metres	
*as defined in the Arborist Report, prepared by Bluegum, dated 21/12/2022.	
4	The following tree protection measures must be implemented for trees identified in the table to Condition No. 3 of this Permit:
(a)	Tree protection fencing is to be erected around the TPZ of the street trees (Tree 1 and 2) to 2m, where occurring on the nature strip.  All fencing is to be erected prior to the commencement of all works on the site including demolition.
(b)	A qualified arborist must oversee all works in and around Tree Protection Zones (TPZ) for Trees 1 to 2. 
(c)	All services must be routed outside ‘Tree Protection Zones’. If there is no alternative to passing through the protection zone, the local authority and the consulting arborist must be advised in writing on the need for directional boring beneath root zone; this must be maintained at a minimum depth of 45cm in soil depth when inside the TPZ of a retained tree. 
(d)	All tree protection zones must be observed according to Australian Standard AS4970-2009 Protection of trees on development sites. Tree protection zones are to be shown all plans and must be put in place before any works occur on site. 
(e)	All pruning recommended is to be carried out to Australian Standards, AS4373-2007 Pruning of Amenity Trees. This work should be supervised or carried out by a qualified arborist.
5	A minimum two-year maintenance period is applicable to replacement trees and includes regular weed and pest control, watering, fertilising and mulching, formative pruning, and replacement in the event any die within that two-year period. This period starts once the trees have been planted.
6	The development must not be occupied until a fence to a minimum height of 1.8 metres above natural ground level is erected along the eastern property boundary.  The fence must be constructed to the satisfaction of the Responsible Authority. 
If the existing fences on the eastern boundary with a height less than 1.8 metres is structurally sound, the fence height may be increased by the addition of a free-standing, self-supporting trellis adjacent to the fence to the required height. If used, such trellis must be a maximum of 25% visually permeable and be fixed, permanent, durable and of materials, finishes and colour that will blend in with the development.
7	At the completion of the constructed ground floor level(s), and before the starting of the building frame or walls, a report prepared by a licensed land surveyor to the satisfaction of the Responsible Authority must be submitted to the Responsible Authority, confirming the ground floor level(s). The report must be submitted to the Responsible Authority no later than 7 days from the date of the inspection.  
The development must not be occupied until a report prepared by a licensed land surveyor to the satisfaction of the Responsible Authority is submitted to the Responsible Authority, confirming the floor level(s). 
8	The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.
9	The land must be drained to the satisfaction of the Responsible Authority.
10	All guttering, rainheads, pipes including downpipes, fixtures, fittings and vents servicing any building on the site including those associated with a balcony must be:
(a)	concealed in service ducts or otherwise hidden from view; or
(b)	located and designed to integrate with the development,
to the satisfaction of the Responsible Authority.
11	Any plant and equipment proposed on the roof of the building must be located to be minimally visible from the public realm or screened in a manner that integrates with the design of the development, to the satisfaction of the Responsible Authority.
12	No plant, equipment, services or structures other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
13	Provision must be made on the land for letter boxes and a slot for newspapers to the satisfaction of the Responsible Authority.
14	Before occupation of the development, the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
(a)	constructed;
(b)	properly formed to such levels that they can be used in accordance with the plans;
(c)	surfaced with an all-weather sealcoat; and,
(d)	drained
to the satisfaction of the Responsible Authority.
15	Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose. 
16	This Permit will expire if either:
(a)	The development does not start within three (3) years from the date of this Permit; or
(b)	The development is not completed within five (5) years of the date of this Permit.
As relevant, the Responsible Authority may extend the times referred to if a request is made in writing:
(a)	Before this Permit expires;
(b)	Within six (6) months after the expiry date; or
(c)	Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

– End of conditions –