VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2070/2018 
Permit Application no. P1133/2017 	

CATCHWORDS	
Section 80 of the Planning and Environment Act 1987; Port Phillip Planning Scheme; General Residential Zone - Schedule 1; Elongated small-grain lot; Side setbacks; Neighbour’s amenity at rear SPOS.	

APPLICANT	Sharon and Riley Scott	
RESPONSIBLE AUTHORITY	Port Phillip City Council	
RESPONDENT	Mr Graham Jephcott	
SUBJECT LAND	151 Dow Street, Port Melbourne	
WHERE HELD	Melbourne	
BEFORE	Graeme David, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	27 March 2019	
DATE OF ORDER	24 April 2019	
CITATION	Scott v Port Phillip CC [2019] VCAT 511	

Order
1	The decision of the Responsible Authority is affirmed.
2	No modifications are made to the conditions in Permit No. 1133/2017 issued by the Responsible Authority on 25 September 2018. 

Graeme David
Member		

APPEARANCES
For Applicant	Mr Liam Riordan, Town Planner, Tract Consultants. 	
For Responsible Authority	Mr Richard Little, Urban Planner, City of Port Phillip.	
For Respondent 	Mr Stephen Jephcott appeared in person.	

INFORMATION
Description of Proposal	Demolition of the existing dwelling, (permit not required), construction of buildings and works including a three-storey dwelling, a two-storey garage/studio to the rear, and a reduction in the car parking requirements. 	
Nature of Proceeding	Application under Section 80 of the Planning and Environment Act 1987 – to review conditions 1a) and 1b) in the permit.	
Zone and Overlays	General Residential Zone - Schedule 1 (GRZ1). 	
Permit Requirements	Clause 32.08-4: Construction or extension of one dwelling on a lot less than 500m2. A development must meet the requirements of Clause 54.
Clause 52.06-3: To reduce the number of car parking spaces required under Clause 52.06-5.	
Relevant Scheme, policies and provisions	State: Clauses 11 (11.01-1R1, 11.02, 11.03), 13 13.07), 15 (15.01-1, 15.01R, 15.01S; 15.014R; 15.01-5S; 15.02-1, 15.03; 15.03-1S), 16 (16.01, 16.01-1R, 16.01-3R). 
Local: Clauses 21.04 (21.04-1), 21.05 (21.05-2), 21.06 (21.06-4), 22.12.
Other: Clauses 52.06-3, 54, 65. 	
Land Description	The review site is a flat elongated almost rectangular lot of 230m2 (about 5m to 5.4m wide by 45.45m deep) fronting onto the west side of Dow Street, Port Melbourne and backing onto Adams Lane (a public laneway). It contains a single-storey brick and timber cottage with a pitched iron roof, a front verandah and a high front fence. There is private open space (52m2) to the rear of the dwelling, and a car port at the rear accessed off Adams Lane.	
	There is a street tree, and unrestricted street parking in Dow Street at the site. 	
Tribunal Inspection	5 April 2019. Unaccompanied.	
REASONS
What is this proceeding about?
1	This is an application under Section 80 of the Planning and Environment Act 1987 to review Conditions 1a) and 1b) in Planning Permit 1133/2017. The permit was issued by Port Phillip City Council and allows the construction of buildings and works including a three-storey dwelling, two-storey garage/studio to the rear, and a reduction in the car parking requirements, generally in accordance with the endorsed plans and subject to the permit conditions. 
2	The review site is a flat almost rectangular lot with dimensions lot of 230m2 (about 5.4m by 45.45m deep) fronting onto the westside of Dow Street, Port Melbourne and backing onto Adams Lane (a public laneway). Its existing modest dwelling is to be replaced by a contemporary styled development.
3	Dow Street contains fine-grained residential lots that mainly contain single-storey and double-storey single dwellings. To the west (rear) of the site the lots across Adams Lane front onto the east side of Bay Street, which is the main commercial precinct of Port Melbourne. This places the review site about 50m from Bay Street, and it is covered by the Bay Street Activity Centre Structure Plan. The following properties abut the review site.
•	North (153 Dow Street): The property contains a single contemporary-styled two-storey dwelling that extends for half the depth of the review site and fronts only to Dow Street. To the rear of the dwelling it contains a Secluded Private Open Space (SPOS) area of 31.4m2 (about 5.1m by 5.5m). 
•	West (1 Adams Lane): This property abuts the rear north side of the review site. It also abuts the rear of 153 Dow Street and fronts onto Adams Lane. Its rear SPOS of is of similar size to, and abuts the SPOS at 153 Dow Street. 
•	South (149 Dow Street): The property contains a single-storey timber cottage that is faced with faux masonry sheeting. The property extends through to Adams Lane at its rear, and the dwelling extends well to the rear of the site. The property’s SPOS is behind the rear of the dwelling.
4	The planning permit application was initially lodged with the Port Phillip Council (‘the Council’) on 14 December 2017. Five objections were received following advertising, and then four objections, including one from a new objector, were received following the advertising of revised plans dated 7 May 2018. The Council issued a Notice of Decision to Grant a Permit (NOD) on 22 August 2018. The permit conditions in the NOD in part require some side setback amendments to the plans, that are the subject of this review. No appeals were lodged against the NOD, and the permit was issued on 25 September 2018.
5	The Application for Review by the Tribunal was submitted on 19 October 2018. It relates only to Conditions 1a) and 1b) in the permit: 
1a)	The setback of the ensuite of bedroom 3 increased to 2m from the northern boundary. 
1b)	The setback of the bathroom and bedroom 4 to the first floor of the garage/studio building increased to 1.69 from the southern boundary. 
In this decision I do not refer to or consider other matters.
6	The proposed dwelling would be constructed at the ground floors to the northern boundary with partial setbacks of between 900-950mm to accommodate light courts. The first floor would also be built to its north boundary, through to the rear of the abutting dwelling at 153 Dow Street that is also built to the boundary. Beyond this, and opposite the rear SPOS of 153 Dow Street the plans propose for bedroom 3 and its associated ensuite at the rear of the dwelling to be setback by 1.3m from the common boundary. While this distance does not comply with ResCode Standard A10, the Council is satisfied with the setback distance in this fine-grained residential area, for the length of the bedroom, but not for its ensuite. Condition 1a) addresses this matter.
7	A roughly similar situation occurs at the southern boundary at the first-floor garage/studio relating to the interface with the rear SPOS at number 149 Dow Street. That matter is addressed in Condition 1b).
8	Mr Graham Jephcott, the Respondent in this matter, owns and resides at 153 Dow Street. His objections to the Council on the application plans related to side setback that is the subject of condition 1a), and to other approved scale and design matters that do not relate to the matter now before me. On the condition 1a) matter Mr Jephcott objects that the combined built form proposed in the application plans would substantially reduce residential amenity at his premises by dominating and overwhelming the rear SPOS. This would result from the combination of construction to the boundary at ground level, the proposed 1.3m setback to the first-floor bedroom and its ensuite, and the substantial third floor.
9	The application for review by the Tribunal seeks the deletion of conditions 1a) and 1b) for the following reasons:
•	The proposed setback of the ensuite of bedroom 3 from the northern boundary represents and acceptable response to the interface with the neighbouring property at No. 153 Dow Street, …… and does not impose any unreasonable adverse amenity impacts to that property.
•	The proposed setback of the bathroom and bedroom 4 to the first floor of the garage/studio building northern boundary represents and acceptable response to the interface with the neighbouring property at No. 149 Dow Street, …… and does not impose any unreasonable adverse amenity impacts to that property.
10	The Tribunal must decide whether permit conditions 1a) and 1b) provide for a reasonable planning outcome, that could not be achieved by the permit application plans as submitted. On consideration of all material before me, and following my inspection, I have determined to affirm the decision of the Responsible Authority. In permit application P1133/2017 the permit is not modified for the land at 151 Dow Street, Port Melbourne. My reasons follow.
Should condition 1a) be applied?
11	As previously identified, the permit application plans propose bedroom 3 and its ensuite on the first-floor level to be opposite the SPOS at 153 Dow Street for much of their length, and setback by 1.35m from common boundary between the properties on the north side of the review site. The bedroom length fronting to 153 Dow Street is 3.9m, and the ensuite length is 1.96m, totalling 5.86m. This extends to over half the length of the courtyard SPOS. Mr Jephcott argues that this is unreasonable and that his property was designed with a first-floor setback of about 1.5m to respect amenity at the review site. Condition 1a) endorses this objection.
12	The 1.35m setback represents a variance of 0.64m from the ResCode Standard of 1.96m in this situation. Relevant Decision Guideline considerations for Standard 10 in this situation include: 
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme. 
•	The width of the lot and the extent to which walls on boundaries are part of the neighbourhood character. 
•	The design response. 
•	The impact on the amenity of existing dwellings including the visual impact of the building when viewed from adjoining properties.
13	The Tribunal has regularly stated that some ‘give and take’ is needed in the interpretation and application of ResCode Standards in fine-grained residential areas. In these situations, residential amenity expectations must differ from those in middle and outer suburbia on larger lots with ‘more room to move’. Strict compliance with ResCode Standards in such areas can be unreasonably limiting for development. It is also the case that developers cannot assume that ‘anything goes’ and that reasonable consideration needs to be given to amenity at neighbouring properties in the design and layout of buildings in such areas. The ResCode Standard needs to be used as the yardstick around which reasonable variance might be applied.
14	In the current matter, as expressed through Condition 1a), the Council has considered it reasonable for amenity reasons in the SPOS at 153 Dow Street to vary the setback standard for the 3.9m length of the bedroom, but not for the additional 1.96m of the ensuite component beyond the bedroom. From my site inspection during which I was admitted to the SPOS at 153 Dow Street, I agree with the Council and the Respondent that the amenity impact within that SPOS would be visually confining. Also, while the ensuite wall length relating to condition 1a) is just 2m, I accept that this is significant in this fine-grained environment within an SPOS that measures only roughly 5m by 5m. Condition 1a) provides middle ground between the applicant stating that the planned 1.35m is adequate setback, and the preference of Mr Jephcott at number 153 for a 2m setback to apply for the entire 5.86m length. While the applicant identifies that the proposed plans will not impact on sunlight into the SPOS at number 153, Mr Jephcott seeks to retain what he considers to be a reasonable sense of openness in his SPOS.
15	I do not accept the Applicant’s argument that as the primary viewscape from the rear of the dwelling at 153 Dow Street is to the west, the impact of the proposed development to the south would be diminished. The viewscape from within the SPOS itself at number 153 is to all directions, and the scale of development at the review site will have significant amenity impacts. Condition 1a) will partially alleviate those impacts.
16	There is no precise science in this matter, and it is clear that the 5.4m width of the review site provides limitations. I accept that reduction of the first-floor level bedroom width to around less than 3m internal width if a 2m setback was to be applied would substantially diminish internal amenity. However, while maximising the width of an ensuite may be preferred by the applicant, functionality can still be achieved in the narrower dimension conditioned by the Council. Conversely, I accept that in a small enclosed SPOS any additional upper-level setback from a boundary will achieve significant amenity benefits.
17	In summary, find that the setback at the ensuite in the application plans is not reasonable in this situation where the consequences will be long-term given the young age of both developments, and find that condition 1a) presents a more reasonable planning outcome in this fine-grained residential area.
Should condition 1b) be applied?
18	On balance, I again accept the judgement of the Council relating to Condition 1b). 
19	The permit application plans propose the first-floor level bedroom 4 and its bathroom at the garage/studio to be opposite the SPOS of 41.18m2 (about 5m by 8m) in the rear section of 149 Dow Street. The plans propose a setback of 1.23m for the length of the bedroom and bathroom from the southern boundary. This is a 0.774m variation of the 2m ResCode Standard A10 for this situation. The Council has not accepted this element of the permit application plans. As identified in condition 1b) the Council’s permit requires a 1.69m setback which varies the Standard by 0.31m.
20	Some similar arguments apply here regarding amenity to the discussion under the above heading. However, an important distinction here is that only a portion of the SPOS at 149 Dow Street would be adjacent to a double-storey building component. Approximately half of the SPOS would abut rear SPOS at the proposed development, with that coincidence being the area closer to the rear of the dwelling at 149 Dow Street. The SPOS area at 149 Dow Street is larger than that at 153 Dow Street, and its section that would abut the two-storey garage/studio and be more enclosed and shadowed by the development on the review site, is to the rear of the property.
21	The 0.31m variance from the ResCode side boundary Standard contained in the condition recognises limitations associated with the narrow site width but also provides for reduced enclosure and overshadowing within the rear SPOS area at number 149. While I have considered the Applicant’s position that overshadowing should not be an influential matter at this location, it is a factor in my decision. While it is true for reasons already discussed that the ResCode overshadowing Standards cannot necessarily be expected to be achieved in fine-grained residential areas, it is also true that where overshadowing can reasonably be reduced, this is a positive outcome in confined sites. On balance, I lean to the latter in this decision.
22	I place no weight on the argument put to the Tribunal that the Condition 1b) can be deleted in part because of no objection from the owner/occupant at number 149, and because that property may be redeveloped in the near future. Planning decisions need to be made on the basis of reasonableness, which is a medium to long-term consideration that runs with the land. Conversely, property ownership is a ‘point in time’ matter and can change ‘overnight’. The rights or needs of future residents need to be considered as well as those of current owners and occupants. I am not able to predict the nature of features of any future development at 149 Dow Street.
Were other matters considered
23	I identify no issue relating to current or emerging neighbourhood character in this matter.
Conclusion
24	For the reasons explained above, the decision of the Responsible Authority is affirmed. No modifications are made to the conditions in Permit No. 1133/2017 issued by the Responsible Authority on 25 September 2018.

Graeme David
Member