VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P2389/2018

APPLICANT	Mr Hui Qian	
responsible authority	Whitehorse City Council	
RESPONDENT	Nicola M Smith	
SUBJECT LAND	17-19 Victoria Crescent
MONT ALBERT  VIC  3127	
WHERE HELD	55 King Street, Melbourne 	
BEFORE	Teresa Bisucci, Senior Member 	
HEARING TYPE	Hearing	
DATE OF HEARING	30 April  & 1 May 2019	
DATE OF ORDER	1 May 2019	
CITATION	Qian v Whitehorse CC [2019] VCAT 636
	
Order
Amend permit application 
1	Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting the following plans for the permit application plans:
•	Prepared by:	On Architects	
•	Drawing numbers:	TP-001, TP-007, TP-007a, TP-007b, TP-009 & TP-010 (all Revision O and dated 20.03.2019)
TP-006, TP-008 & TP-012 (all Revision AD and dated 25.07.2018)	
•	Landscape Plan prepared by:
•	Dated:	L.A. Garnett

21.3.19	

Permit amended
2	In application P2389/2018 the decision of the responsible authority is set aside.  
3	Planning permit WH/2013/207 is amended and an amended permit is directed to be issued for the land at 17-19 Victoria Crescent, Mont Albert.  The permit is amended as follows.
(a)	What the permit allows is amended to read as follows:
•	Construction of the land for a part double, part triple story dwelling to the rear of an existing dwelling, buildings and works within 4 metres of protected trees, generally in accordance with endorsed plans and subject to the following conditions.
4	Conditions in the permit are amended as follows:
(a)	Condition 1 is deleted and replaced with the following:
1	Within 60 days of the date that this Permit is amended by the Tribunal in VCAT reference number P2389/2018, amended plans (three copies in a one size and one copy reduced A3 size) shall be submitted to the Responsible Authority. When approved the plans will be endorsed and will then form part of the Permit. The plans must be drawn to 1:100 scale, with dimensions, and be generally in accordance with the plans prepared by On Archtiects comprising TP-001, TP-007, TP-007a, TP-007b, TP-009 & TP-010 (all Revision O and dated 20.03.2019), TP-006, TP-008 & TP-012 (all Revision AD and dated 25.07.2018) but modified to show: 
(a)	Deleted.
(b)	Deleted.
(c)	Deleted.
(d)		Deleted.
(e)	Deleted.
(f)	Deleted.
(g)	Tree Protection Zones for Tree 49 to be annotated in full on Site and Landscaping Plans in accordance with the Tree Management Plan required by Condition 1A.
(h)	A landscape plan generally in accordance with the plan prepared by L.A Garnett dated “Aug 15 (Altered 21.319)”, and in accordance with Condition 3, but amended to include the following:
i.	The site layout, including the location of the badminton court to be consistent with the site layout shown on the plan prepared by On Architects Job Number 14024, Drawing Number TP-07 Revision O. 
ii.	New Cyprus trees being planted:
a.	at the southern end of the hedge;
b.	immediately to the north and south of the pedestrian gate; and 
c.	at the northern end of the hedge.
iii.	The Weeping Lilypilly hedge located along the western boundary to be clipped to 6 metres in height.
iv.	All trees must be planted at a minimum height of 1.5 metres.
(i)	Deleted.
(j)	Deleted.
(k)	Deleted.
(l)	Deleted.
(m)	Deleted.
(n)	A Tree Management Plan as required by condition 1A.
(o)	The hedge growing over the top of the pedestrian entrance gate from Victoria Crescent.

(b)	New conditions are included as follows:
1A.		Within 60 days of the date that this Permit is amended by the Tribunal in VCAT reference number P2389/2018, a Tree Management Plan prepared by a suitably qualified arborist must be submitted to the Responsible Authority. When approved to the satisfaction of the Responsible Authority, the plan will be endorsed and will then form part of the Permit. The plan must include the following:
(a)	A minimum Tree Protection Zone (TPZ) for Tree 49 (Cupressus macrocarpa) of:
(i)	2.2m x 6.0m for the 3 stems south of the pedestrian entry gate; and 
(ii)	3.6m x 12.0m for the 7 stems north of the pedestrian entry gate.
(b)	That TPZ measures during construction and works must be established in accordance with Australian Standard 4970-2009 and are to include the following measures:
(i)	Erection of solid chain mesh fencing, or a similar type      of fencing, at a minimum height of 1.8 metres, supported on, and held in place by, concrete pads. 
(ii)	Signs placed around the perimeter of the fencing, identifying the area as the TPZ. The signs are to be visible from within the development site, and the lettering and wording are to comply with Australian Standard 1319. 
(iii)	Mulch placed over the entire soil surface within the TPZ, to a depth of 100mm, and supplementary watering applied during dry weather.
(iv)	No excavations, construction works, activities, grade changes, surface treatments or storage of materials of any kind are permitted within the TPZ unless otherwise approved by this Permit or further approved in writing by the Responsible Authority.
(v)	All supports and bracing outside the TPZ and any excavation for supports or bracing is to avoid damaging tree roots. 
(vi)	No trenching within the TPZ for installation of utility services, unless the Responsible Authority has approved tree sensitive installation methods, such as horizontal soil boring.
(vii)	Where construction is approved within a TPZ, fencing and mulch are to be placed up to, and along the line of, the approved proposal.  Fencing may only be repositioned by an authorised person, and only during approved construction within the TPZ, and must be restored in accordance with the above requirements at all other times.
(c)	Restricted Activities in the tree protection zone; 
(d)	The measures that must be followed and implemented when removing the constructed badminton court within the tree protection zone of Tree 49.
(e)	Any specialist excavation works;
(f)	Any Soil Remediation or other remedial works to be undertaken with the tree protection zone of Tree 49, including the method of removing fill, concrete and rubble.
(g)	Pruning and shaping measures to Tree 49 and that such works will be undertaken in accordance with AS 4373-2007 – Pruning of amenity trees.
(h)	The measures to be undertaken to mulch, fertilise and irrigate Tree 49 to mitigate the effect of the encroachments into the tree protection zone of Tree 49.
(i)	On-going maintenance of Tree 49 including vegetation and weed control within the tree protection zone;
(j)	A timeframe that each requirement, recommendation or action in the plan must be undertaken within and the duration that any maintenance measures must be undertaken.  

1B.	Unless otherwise agreed in writing by the Responsible Authority, all works on the subject land must be undertaken in accordance with the Tree Management Plan approved under condition 1A of this Permit to the satisfaction of the Responsible Authority.

1C.	The Tree Management Plan approved under condition 1A of this Permit must be complied with and implemented to the satisfaction of the Responsible Authority.

1D.	Within 120 days of plans being endorsed under condition 1 of the Permit, the works shown on the endorsed plans must be undertaken and completed to the satisfaction of the Responsible Authority.  

(c)	Conditions 4 and 5 are deleted.

Teresa Bisucci 
Senior Member 			

Appearances
For Hui Qian	Mr Reto Hofmann, lawyer, Rigby Cooke Lawyers	
For Whitehorse City Council	Mr Darren Wong, lawyer, Planology, Town Planning Law (Day 1) & Ms Kate Kennedy (Day 2)	
For Nicola M Smith	No appearance	

Information
Description of proposal	Amendments to Planning Permit	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to amend a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	General Residential Zone, Schedule 5
Heritage Overlay, Schedule 85
Significant Landscape Overlay, Schedule 9	
Permit requirements	Clauses 43.01-1 & 42.03-2	
Land description	The subject site is located on the west side of Victoria Crescent.  It is a large parcel of land comprised in an ‘L’ shape and approximately 2000 m².  To the north and west the subject site abuts laneways.  Planning Permit Number WH/2013/207 was granted on 12 February 2014 for the construction of a part double, part triple story dwelling to the rear of an existing dwelling.	
Tribunal inspection	Unaccompanied 1 May 2019	

Reasons DELIVERED ORALLY AT HEARING and subsequently revised

1	The parties provided fulsome, detailed submissions and supplementary material which assisted me in making my decision.  I was also assisted by undertaking a site inspection.
2	With the exception of some of the proposed landscaping works, the remainder of the amendment application before me seeks retrospective approval.  It is clear having regard to the permit history and background that I was taken to, that Council is frustrated with the ongoing nature of amendments sought to this permit.  Whilst Council may have good reasons to be frustrated and I do sympathise with Council, the task before me is to assess the merits of the amendments sought to the permit and plans. 
3	The nature of the amendments must necessarily be compared to the current permit and endorsed plans.  To that end, I note that whilst some 44 amendments are sought to the endorsed plans, many of these are minor and inconsequential.  This is evidenced by the fact that upon service of an application to amend plans the Council maintained its position of refusal against 8 of the 44 amendments.  It should be noted that this opposition is to the more substantial amendments.
4	In summary, the matters that remain in dispute between the parties are:
•	enclosure of the rear courtyard area to create a butler’s kitchen;
•	change of material to the fence adjacent to the car park entry;
•	the extension of the brick wall to the west of the pedestrian entry;
•	the modified western and northern fence heights;
•	the change in design of the western garden including the central walkway; and
•	amendments to the landscape design.
5	Essentially these matters can be broken down to the following: height and materiality of the northern and western fences, the enclosure of the alfresco area and the extent of landscaping.
6	I should make it clear that I do not condone a process of retrospective approval. However, following the long-established principles in Van Egmond v City of Knox I have considered the amendment application on its merits and hence there is no advantage or disadvantage to the applicant for review for any work that has been undertaken without approval.  In any event, in this case, the as built conditions assisted me to come to my decision on this matter.
Northern Fence
Height
7	The Council says that the height of the northern fence is unacceptable because it obstructs views to the heritage dwelling and presents as an imposing, hard edged presentation to the northern laneway and to Victoria Crescent.
8	The applicant for review submits that the northern boundary fence can be broken down into the following three sections: the eastern section visible from Victoria Crescent, the garage entry and the western section.  
9	The additional height above what is approved to the eastern section of the northern fence is 14.4 cm.  I agree with the applicant for review that the additional height will not result in any adverse impacts on existing residents nor will it impact upon the way the heritage dwelling at 17 Victoria Crescent is appreciated from the streetscape.  Moreover, the additional height to the eastern section of the northern fence does not have any adverse impact to the character of the laneway.  I noted during the site inspection that the elevated path along the south on the subject site allows for views to the property across the laneway and the minor increase in height coupled with the mature landscaping will reduce the ability to gain views into this property.
10	My impression of the laneway from my inspection is that, it is a utilitarian right-of-way used primarily for vehicle access and comprised in this section of side elements two dwellings of various materiality and landscaping treatments.
11	The western section of the northern fence seeks an increase of approximately 567mm above what has been approved.  This is more significant than the amendment to the eastern section of the northern fence. However, this part of the fence is located to the rear of the subject site and at a considerable distance from any public viewpoints.  I note that this part of the fence is not located near any sensitive interfaces or abuttals and is close to the junction between the two laneways which essentially provides vehicle access.  It is thus an acceptable planning outcome having regard to character and amenity considerations.  I also note that there is substantial landscaping proposed at this interface which will further improve the appearance of this interface to the laneways.
12	The part of the fence that comprises the basement entry varies in height between 3.648m and 3.36m.  These walls also return to form part of the basement entry.  The increase in height varies but at its maximum is 826mm.  Some part of this section of the fence is located opposite a high blank wall opposite the laneway although most of it is located opposite tall vegetation and a standard timber paling fence.  Whilst the height of this part of the fence may appear imposing when you stand immediately next to it, I note that when viewed from the east and west, this part of the fence is not imposing at all and blends into the remainder of the fence.  It is pertinent that the fencing will essentially be experienced by passing motorists. From properties to the north this higher part of the fence is not likely to be visible but if it is visible there will only be glimpses. 
13	Having undertaken a site inspection including the laneways I find that the additional height of the fence along the northern boundary is an acceptable planning outcome having regard to neighbourhood character and amenity considerations.
Materiality
14	To the extent that there is any residual argument in respect of the materiality of the northern fence, I consider the amended materials to be an acceptable planning outcome in this location noting that the use of render, bricks and timber is readily observed in this laneway on other properties.
Western Fence
Height & Materiality
15	Council’s grounds of refusal included the height of the western fence, however, submissions by the Council at the hearing did not press this issue. I note for completeness that I consider the height of the western fence combined with its materiality to be an acceptable outcome having regard to the location of the subject site. This fence is located to the rear of the subject site and opposite robust forms of enclosures including to a tennis court with a high fence and landscaping.  In any event, I note that the applicant for review says that the average fence height sought is 2.828 m which represents only a 2.8 cm increase above the average specified in the permit condition.  This in my view, is inconsequential.
Enclosure of the alfresco area
16	The Council is concerned with the enclosure of the alfresco area to create a butler’s kitchen for two principal reasons: it will result in a loss of functional outdoor space available to the residents and it will reduce daylight and ventilation to the abutting room.  Council also says that a second kitchen is not needed.
17	I note that the enclosure of the alfresco area is simply the creation of walls and doorways rather than adding to the roof area.  Whilst the provision of an outdoor courtyard in this location would be of benefit to a normal dwelling, this development is not of that ilk.  This dwelling is afforded vast and substantial areas of open space, a mixture of secluded and non-secluded open space which will more than adequately provide for the recreational needs of the occupants of this dwelling.
18	The theatre room will have less access to daylight and ventilation as a consequence of the enclosure of the alfresco area. Whilst there is no doubt that ventilation may be reduced, I do not consider this to be of such a consequence to the theatre room as to make the amendment unacceptable. Further, any reduction in daylight would be minimal given that this area was already covered by a substantial roof. In any event, a theatre room does not require substantial daylight. Whilst the purpose of the room may change, it appears by photographs provided to me that the area has indeed been created as a theatre room.
19	As to the need for a second kitchen, I give this submission little weight.  Firstly, it is not uncommon for more than one kitchen to be utilised by many cultures and secondly, because of the size of this particular dwelling. 
20	I also note that the location of the butler’s kitchen is to the rear and not located in close proximity to any sensitive abuttals.
21	Therefore, I find that the enclosure of the alfresco area to be an acceptable planning outcome in the circumstances.
Landscaping (including front entry)
22	I consider the extension of the brick work to the pedestrian entry to be inconsequential because of the extensive landscaping both existing and proposed to Victoria Crescent.
23	The applicant for review undertook a detailed analysis of the differences between the approved landscape plan and the amended landscape plan before me.  Whilst there are some differences, I note that the amended landscape plan provides for a landscape outcome that is consistent with Council policy regarding tree conservation and landscaping.  I come to this view having regard to the fact that the badminton court is proposed to be relocated, that substantial amounts of concrete are proposed to be removed to create a grassed area and the front hedge is to remain and be enhanced. I consider this to be a superior landscape outcome when compared with the endorsed landscape plan which provided for a badminton court and granitic sand surrounding this court in this area.  
24	The Council says that the changes to the western boundary which includes the division of the landscaping area into two with a central walkway will not provide sufficient area for the growth of the proposed landscaping. The Council says that the location of the current footpath will limit root access to water, nutrients and oxygen.
25	To the western boundary the endorsed landscape plan depicts seven canopy trees to a height of 8m. The amended landscape plan before me proposes 26 Weeping Lillypillys clipped to a hedge height of 4m and 4 canopy trees proposed to grow to a height of 15m.  With the exception of the height of the Lillypillys, I consider that the landscaping proposal to the western boundary is an acceptable planning outcome having regard to the location of this area relative to the subject site and the rear laneway. I say with the exception of the height of the Lillypilly hedge because I consider that it should be clipped at a height of 6m rather than the 4m proposed on the amended landscape plan. This outcome will provide for a superior landscape treatment and will provide a similar outcome as that shown on the endorsed landscape plan. 
26	I do not agree with Council that the relocation of the western walkway to the centre will reduce the available space for landscaping such that the overall growth of the proposed landscaping will be impacted.  In my view, there is substantial opportunity for landscaping noting of course that roots will make their way through the natural soil including underneath the concrete pathway.
27	To the northern boundary and in particular the eastern section the endorsed plan shows 10 Weeping Lillypillys and 2 canopy trees. The amendment before me seeks approval for 12 Weeping Lillypillys and 3 canopy trees.  Therefore, the amended plan improves the approved landscaping in this section of the northern boundary. I find this an acceptable planning outcome.
28	To Victoria Crescent the impact of the reduced hedge is notable. The removal of part of this hedge is regrettable from a streetscape perspective. It is my view that restoration of the hedge is the key from the streetscape perspective. Therefore, the additional planting to the existing hedge is crucial.  The applicant for review has agreed that the hedge planting should be allowed to join over the front entry gate and in that circumstance, that shall be included as an amendment to the landscape plan.
conclusion
29	Having regard to these reasons, I consider the amendments to the permit and plans to be an acceptable planning outcome subject to conditions. Accordingly, I will direct the amendment of the permit.

Teresa Bisucci 
Senior Member