VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P745/2024
Permit Application no. P922/2013 	
CATCHWORDS	
Section 149(1)(a) of the Planning and Environment Act 1987 (Vic) - Banyule Planning Scheme – General Residential Zone (Schedule 1) – Vegetation Protection Overlay (Schedule 5) – Development Contributions Plan Overlay (Schedule 1) – Fence within street setback – Westpoint criteria – Sightlines – Streetscape    	

Applicant	Ozgur Cemal Halici	

RESPONSIBLE Authority	Banyule City Council	

SUBJECT LAND	24 North Crescent
HEIDELBERG WEST VIC 3081	

HEARING TYPE	Hearing	

DATE OF HEARING	16 October 2024	

DATE OF ORDER	17 October 2024	

CITATION	Halici v Banyule CC [2024] VCAT 1004	

Order
1	In application P745/2024 the decision of the responsible authority is set aside.
2	The responsible authority is directed to endorse under condition 5 of planning permit P922/2013 the plans showing the fence within the East Street frontage, but further modified to show:
•	a corner splay or area at least 50 per cent clear of visual obstructions extending at least 2 metres along the frontage road from the edge of an exit lane and 2.5 metres along the exit lane from the frontage, to provide a clear view of pedestrians on the footpath of the frontage road and any landscaping in those areas nominated to be less than 900mm in height.

Cassandra Rea
Member			
Appearances
For applicant	O. Halici and B. Halici	
For responsible authority	T. Bullen	

Information
Description of proposal	Review of refusal to grant consent to vary plans in respect of a fence within the East Street frontage	
Nature of proceeding	Application under section 149(1)(a) of the Planning and Environment Act 1987 (Vic)  	
Planning scheme	Banyule Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1
Vegetation Protection Overlay – Schedule 5
Development Contributions Plan Overlay – Schedule 1	
Original Permit requirements	Construction of three double storey dwellings	
Relevant scheme policies and provisions	Clauses 02.03-4, 15.01-5L-01, 52.06, 62.02	
Land description	The site is located on the corner of North Crescent and East Street in Heidelberg West.  The double storey dwelling is one of three dwellings approved and constructed under planning permit P922/2013 issued on the 3 April 2014.	

Reasons
What is this proceeding about?
1	The applicant seeks a review of a decision by Banyule City Council (‘council’) to refuse consent to a revised plans associated with planning permit P922/2013 issued on the 3 April 2014 (‘the permit’) at 24 North Crescent, Heidelberg West.  
2	The secondary consent request seeks the approval for a fence within the East Street setback.  The fence is a timber paling fence to a height of 1.8-2.0 metres.  The fence has been constructed on the site.   
3	The Council has refused the request to amend plans showing a new fence because of its impact on the streetscape and consistency with neighbourhood character policy at clause 15.01-5L-01.  Concern was also raised with regards to the elimination of sightlines associated with vehicle access from 2 East Street, Heidelberg West.  
4	I find that I am required to determine:
•	Can the proposed fence be considered under the secondary consent?
•	Is the fence appropriate?
5	Having regard to the submissions made at the hearing, I will order that the decision of the Council will be set aside and allow for the secondary consent plans to be endorsed under condition 5.  However, I will require the alignment of the fence to be modified to ensure that the vehicle sightlines associated with 2 East Street, Heidelberg West is achieved.  My reasons follow.
CAN THE fence BE CONSIDERED UNDER SECONDARY CONSENT?
6	Council advises that a planning permit is not required for the fence in this instance, however, there are endorsed plans under the original development that showed no fencing in this location.  
7	In accordance with Benedetti v Moonee Valley City Council the conditions of the original permit will continue to have effect for as long as the development which triggered the need for a permit remained on the land.   
8	The request to update plans to show the fence was requested under condition 5 that requires no changes to the layout of the development without the approval of council.  This is known as ‘secondary consent’. 
9	Secondary consent principles have been established in the Tribunal’s decision Westpoint Corporation Pty Ltd v Moreland CC and Cook v Mornington Peninsula SC.
10	Notwithstanding council does not support the fence in its current form, I confirmed that council agrees that the fence can be considered under secondary consent, as:
•	It does not result in a transformation of the proposal.
•	It does not authorise something for which primary consent is required under the planning scheme.
•	It is of no consequence having regard to the purpose of the planning control under which the permit was granted.
•	It is not contrary to a specific requirement as distinct from an authorisation within the permit, which itself cannot be altered by consent.
Is the fence appropriate?
Security
11	The primary reason the applicant seeks the fence is to provide security to his property.  The applicant submits that there have been a number of events and crimes in the street that has jeopardised the safety of their family.
12	Clause 02.03-4 of the Banyule Planning Scheme (‘scheme’) states:
Safer design
Crime and the fear of crime can be reduced by the proper design and use of the built environment. This is especially important when designing for uses and developments in a vulnerable setting, such as along access routes or in locations that are isolated, concealed, or generate a poor public perception of safety. 
Council’s strategic direction for safer design is to:
•	Create an attractive, well maintained built environment that minimises opportunities for crime and inappropriate behaviour to increase actual and perceived personal safety, and to encourage the use of public spaces. 
13	Whilst the applicant considers the provision of a fence provides security, planning policy includes guidance that building designs should encourage observation and surveillance towards public places.  Safe streets have a high degree of visibility and ’eyes on the street’ from adjoining properties.
14	I am not persuaded that the fence will create the safety and security that the applicant is seeking.  However, I do not consider that the fencing will lead to any personal safety issue as this specific dwelling will still have a balcony, a bedroom and ensuite at first floor level that will still allow surveillance over the street.  
Privacy 
15	The applicant also seeks the fence to create more privacy.  The dwelling has very large ground floor windows servicing the living area.  The previously approved plans had no physical barrier between the street and the ground floor living window.  This would result in any person in East Street to be able to view the living, kitchen and meals area.
16	I agree that the fence will enable residents to enjoy more privacy within the ground floor living areas.  
Appearance
17	The applicant provides a photo analysis of other examples of fences fronting nearby streets.  The photos show a combination of front and side fences within the neighbourhood.  The fences appear to be greater than 1.5 metres.  The fences include timber paling fences, such as the one subject to this request, and other styles with low permeability.  
18	The council relies upon neighbourhood character policy at clause 15.01-5L-01 of the scheme that states sites within the Garden Suburban Precinct 6 (GS6) should have ‘low and open style fences complementary to the era of the dwelling’. The request with a 1.8-2 metres solid timber paling fence on the boundary would be contrary to this strategy.
19	Council submits that the consequence of the height and location of the fence is that it does not allow views towards the dwelling or any connection to the streetscape.  The fence interrupts the rhythm of the street and fails to respond to the neighbourhood character policy to allow for open and low fencing.
20	Council is also critical that there is no vegetation to screen the fence and says it should be setback.
21	Council suggests that the fence ought to be painted to improve its appearance.  The applicant has agreed to this suggestion and Monument Grey has been selected that is in keeping with the dwelling colours.  
22	I find that for a corner site, taller and solid fencing may need to be contemplated to balance the functionality and privacy aspects of the site with the broader streetscape and character considerations of the area.  I accept the height and location of the fence on the basis that the length of fence facing East Street is minimal and the North Crescent frontage remains open.  I also acknowledge that there is a presence of fencing in the neighbourhood and there is sufficient fencing within the streetscape to support a fence along the secondary frontage.  
23	Whilst painting of the fence may improve the appearance of the fence, I do not consider it necessary to require this.  The timber paling fence will naturally grey as it ages.  However, the property owners may elect to paint their fence to improve the overall appearance of the property.  I will leave that decision to them.  
Vehicle Sightline Splay
24	Council submits that clause 52.06-8 of the scheme requires the provision of a car parking plan.  At the time of the original application, the council would have assessed all car parking spaces and driveways shown on the car parking plan against the design standards for car parking outlines at clause 52.06-9.  
25	Clause 52.06-9 outlines design standards for car parking.  In particular, driveways, amongst other things, must:
Have a corner splay or area at least 50 per cent clear of visual obstructions extending at least 2 metres along the frontage road from the edge of an exit lane and 2.5 metres along the exit lane from the frontage, to provide a clear view of pedestrians on the footpath of the frontage road. The area clear of visual obstructions may include an adjacent entry or exit lane where more than one lane is provided, or adjacent landscaped areas, provided the landscaping in those areas is less than 900mm in height.
26	I have emphasised the provision states ‘must’.
27	The current fence does not provide the vehicle sightline splay which inhibits vehicles leaving the driveway of 2 East Street, Heidelberg West from being able to see any pedestrians approaching from the east.  
28	The applicant does not want to modify the existing fence to provide the vehicle sightline splay due to the costs associated with altering the fence.  The applicant states that the property was purchased with a side fence between the site and the adjoining property at 2 East Street, Heidelberg West.  Therefore, the works undertaken by themselves did not create the sightline issue.  Furthermore, the applicant states that council has approved the fence.  
29	The applicant relies upon other examples in the locality that provide tall fences adjacent to driveways without sightlines.  
30	I find that I am not persuaded that the cost to modify the fence is a sufficient reason to potentially create an unsafe traffic arrangement associated with the driveway of 2 East Street, Heidelberg West.  A driveway without the necessary sightlines is contrary to one of the objectives of clause 52.06 which seeks ‘to ensure that the design and location of car parking is of a high standard, creates a safe environment for users and enables easy and efficient use’.
31	No evidence was provided to me that the side fence has been previously approved by council.  The endorsed plans provided by the council does not include a side fence. 
32	I acknowledge that there may be other examples of driveways and fences that do not comply with the prescribed sightlines.  There may be numerous reasons for these examples but it is not relevant to my consideration whether clause 52.06 design standards have been met.  
33	Overall, traffic and pedestrian safety is an important matter, and therefore I will require the sightline to be provided.  
Enforcement
34	It is not relevant to my determination what events lead to the lodging of the request to amend plans.  
Conclusion
35	For the reasons given above, the decision of the responsible authority is set aside.  The fence will provide privacy and useable area, without significant compromise to the appearance of the streetscape.  I will require the alignment of the fence to be modified to ensure that the vehicle sightlines associated with 2 East Street, Heidelberg West is achieved.  

Cassandra Rea
Member