VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
  PLANNING AND ENVIRONMENT DIVISION
planning and environment LIST	vcat reference No. P2537/2018
Permit Application no. PP18/00300	
CATCHWORDS	
Section 80 of the Planning and Environment Act 1987, conditions requiring additional rear setback and relocation of secluded private open space to rear of dwelling, alteration of pedestrian access to other frontage, materials and colour selection      	

APPLICANT	Dilruk Manjula Galappathie	
responsible authority	Boroondara City Council	
Referral Authority	VicRoads    	
RESPONDENT	Jill Clark	
SUBJECT LAND	536 Burke Road, Camberwell	
WHERE HELD	Melbourne	
BEFORE	K Birtwistle, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	24 June 2019   	
DATE OF ORDER	9 July 2019	
CITATION	Galappathie v Boroondara CC [2019] VCAT 1004   	

Order

1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit PP18/00300 must contain the conditions set out in planning permit PP18/00300 issued by the responsible authority on 3 December 2018 with the following modifications:
(a)	Condition 1a)i) is deleted.
(b)	Condition 1a)ii) is deleted.
(c)	Condition 1b)i) is deleted.
(d)	Conditions 1b)ii) is deleted.
(e)	Condition 1g) is deleted.
(f)	Condition 1h) is deleted.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

K Birtwistle 
Member			

Appearances
For Dilruk Manjula Galappathie	Mr M Dobson, town planner of Multiply Town Planning	
For Boroondara City Council	Ms J Smith, town planner	
For VicRoads	No appearance	
For Jill Clark	In person	

Information
Description of proposal	Application to review conditions contained in the planning permit PP18/00300 which allows the construction of two dwellings on the land.  The conditions require an increased rear setback for Dwelling 2 and a relocation of its secluded private open space (spos) from the front to the rear of the dwelling, and alterations to the proposed entry to Dwelling 1.  The conditions also require a change to the submitted materials and colour schedule that formed part of the planning application.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Boroondara Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone – Schedule 3 (NRZ3)
Abuts Road Zone – Category 1 (RDZ1)	
Permit requirements	Clause 32.09-6 – Construction of two or more dwellings on the land
Clause 52.29-2 – To create or alter access to a road in the Road Zone – Category 1	
Land description	The site is located approximately 450 metres south of the Camberwell Junction, at the corner of Burke Road and Seymour Grove, Camberwell.  The site has an area of 642 sq.m. and is currently developed with a single storey brick dwelling which is proposed to be demolished.  Both Burke Road and Seymour Grove are a Road Zone 1.  The intersection adjacent the site is signalised, with a slip left-turn lane from Seymour Grove into Burke Road. High fencing exists across both frontages and there is a large canopy tree located near the street corner which is proposed to be retained on the site.  The existing vehicle access to the site is from Seymour Grove and there is extensive area of the frontage set aside for car parking.	
Tribunal inspection	Unaccompanied subsequent to the hearing   	

Reasons

1	Dilruk Manjula Galappathie (the applicant) proposes to develop two dwellings at 536 Burke Road, Camberwell. In October 2018, Boroondara City Council (the Council) determined to grant a planning permit for the proposed development subject to a number of conditions. There were a number of objections to the proposal however none proceeded to a Tribunal review and the planning permit was then issued on 3 December 2019.
2	The permit contained a number of conditions.  The applicant has requested the Tribunal to review a number of these conditions. The conditions in dispute are:
•	Condition 1a)i) – which requires that the plans be amended to relocate the spos associated with Dwelling 2 to the south (rear) and increase the southern setback of Dwelling 2 to a minimum of 4 metres.
•	Condition 1a)ii) – which requires that the plans be amended to make internal layout changes to Dwelling 2 to provide access to the relocated spos from a living room.
•	Condition 1b)i) – which requires that the plans be amended to delete the pedestrian pathway and front entry door to the north side of Dwelling 1.
•	Condition 1b)ii) – which requires that the plans be amended to replace the proposed front entry door with glazing and/or sliding doors similar to those depicted on the northern wall of the living room.
•	Condition 1g) – which requires the colour of the proposed brickwork altered to a warmer finish (ie. red)
•	Condition 1h) – which requires the deletion of the proposed stacked stone and replacement with brickwork
3	VicRoads are a referral authority as both roads that abut the site are main roads. They did not oppose the issue of a planning permit subject to the imposition of conditions that are contained on the planning permit.  These conditions are not in dispute and they did not attend the hearing on that basis.
4	Ms Clark resides to the south of the review site. She supports the Council’s grounds and she feels that the additional setback would improve the solar access to both her adjacent spos and habitable rooms.
5	The applicant says the conditions are unwarranted as the proposal has been thoughtfully designed to ensure the retention of a prominent tree on the site while providing a high level of amenity for future residents including solar access to spos.  He says the proposal satisfies the objectives of Clause 55 in regard to the provision of seclude private open space, integration with the street and dwelling entries, and that the proposed materials and colours are acceptable in light of the absence of any Heritage Overlay on the site and the wide variety of materials and colours exhibited on nearby dwellings.
6	I must decide whether the contested conditions should be deleted or amended.  Having considered all submissions presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme (the Planning Scheme), and undertaken a site inspection, I have decided to vary the decision of the responsible authority and direct that an amended permit be issued. 
7	My reasons follow.
is conditon 1a) (in its totality) reasonable?
8	The Council says the underlying purpose of this condition is to relocate the spos of Dwelling 2 to its rear, rather than within the front setback as was sought by the application.  They say that spos within a front setback is inconsistent with the existing neighbourhood character evident within the immediate area. They also say that the spos at the front does not reflect the definition of spos as defined by Clause 73.01 of the Planning Scheme as it is unlikely to receive a reasonable amount of privacy.  They say that this front setback is likely to only serve as an entry and front garden as opposed to an area primarily intended for outdoor living activities.
9	The applicant says that two areas of private open space are provided. One is the front and the second, secondary area, at the rear. He says that the specific site characteristics have driven the design response. 
What is proposed?
10	Dwelling 2 is provided with two areas of private open space.  The first is a rear service yard adjacent Ms Clark’s property, which is occupied by a rain water tank, storage shed and clothes line all accessed from a laundry.  The wall of Dwelling 2 is setback 3 metres from the rear boundary with Ms Clark’s property.  
11	At the front of the dwelling is the second area of private open space.  It has a depth of 7.2 metres from the Seymour Grove frontage and a width of 4.9 metres at its narrowest point. 
12	A 1.9 metre high picket fence is proposed across the frontage to Dwelling 2 to the enclose the front private open space. A gate through this fence will provide pedestrian access to a pathway to the front entry.   A crossover from Seymour Grove will provide access to a two car garage and car turntable within the front setback adjacent the area of private open space.  A 1.1 metre high metal picket fence will separate the car turntable area from the private open space area.
13	Based on the nature of the picket fencing proposed across the frontage and the low open fencing to the vehicle accessway, there will be some visibility into this private open space from the street.  The private open space is located on the north side of the dwelling and is accessible from the front living area of the residence.
What are my findings?
14	No party disputes that high front fencing is a characteristic of the immediate neighbourhood.  Both Seymour Grove and Burke Road are heavily trafficked roadways and as is common in these settings, many residents take the opportunity to construct high front fencing to mitigate noise associated with this degree of vehicular traffic.  Clause 55.06-2 of ResCode recognises the different amenity characteristics of properties adjacent a RDZ1 by allowing front fencing to be constructed to a height of 2 metres. 
15	Traditionally, spos is generally located at the side or rear of a dwelling and ideally located off a living area.  However, there are occasions in which spos is located at the front of a site, and apartment style developments are one example that comes to mind.  As with all matters though, the specific site context and design response determines whether such siting is appropriate.
16	Clause 55.05-4 Private Open Space objective of ResCode seeks to provide adequate private open space for the reasonable recreation and service needs of residents. To meet the objective, a development should have private open space consisting of an area of 40 square metres.  One part of the private open space should consist of spos at the side or rear of the dwelling with a minimum area of 25 square metres, a minimum dimension of 3 metres and convenient access from a living room.
17	The Council agrees that the proposal provides the quantum of space sought by clause 55.05-4. They say the intent of this condition is to relocate the spos to the rear of the dwelling, as sought by clause 55.05-4.  To achieve an appropriate width of this relocated spos, the Council seeks a further setback of the dwelling wall an additional 1 metre (to 4 metres) from the boundary with Ms Clarks property. They do not say that this additional setback is required for other amenity reasons (such as overshadowing issues). 
18	The spos will then be located on the south side of the dwelling. An internal reconfiguration of the dwelling would also be required to provide access to the spos from a living room, as sought by clause 55.05-4.
19	Having considered the specific site context, I am not persuaded that the condition will result in a reasonable outcome.  Firstly, the condition will result in a narrow area of south facing spos. It will comprise an area of approximately 30 sq.m. and contain a rainwater tank, storage shed and clothes line.  
20	Standard B29 of Clause 55.05-5 encourages private open space on the north side of a dwelling. If located on the south side it requires the southern boundary of the spos to be set back from the wall on the north of the space at least (2 + 0.9h) metres, where ‘h’ is the height of the wall. Based on the plans, the Standard would require a 5.2 metre wide spos.  Three metres is shown. Even at 4 metres, as sought by the condition, the width of this south facing spos would not meet the Standard.
21	Secondly, as written, the condition requires an increase in the ground level setback of the dwelling from the site’s southern boundary.  The condition does not require an increase in the setback of the upper level of this elevation.  This will result in an almost sheer wall across this elevation as the upper level of this dwelling is setback 4.2 metres.  I consider this would be a poorly resolved situation.
22	In this instance, I agree with the applicant that locating the spos within the front setback is site responsive.  A high front fence is unopposed by the Council.  As this area is north facing, locating the spos behind the fence  maximises solar access into this space.  It is both wide and deep.  While there will be some limited views into this private open space, the Standard requires the provision of a reasonable degree of seclusion not an ideal.  I consider that the space will offer reasonable opportunity to provide for the recreational needs of future residents.  While oblique views may be possible into this area across the open vehicle accessway, the applicant indicated that a Landscape Plan could detail hedge planting within the site to provide additional privacy screening.
23	The space will also benefit from the amenity values offered by the significant American Sweet Gum to be retained with the front setback of Dwelling 1.
24	For these reasons, I will require the deletion of Conditions 1a)i) and 1a)ii).
are condition 1b)i) and 1b)ii) reasonable?
25	Dwelling 1 is provided with vehicle access to and from Burke Road, however the pedestrian entry and front door faces the Seymour Grove frontage of the site. Condition 1b)iii), which is unopposed by the applicant, requires the provision of a pedestrian path adjacent the northern edge of the driveway of Dwelling 1, and a new front entry door along the Burke Road façade.
26	The Council says that without Conditions 1b)i) and 1b)ii), Dwelling 1 will have two front doors, one along each street frontage, which will confuse the sense of address and result in a pedestrian pathway which cuts through the primary area of spos. 
27	The applicant says there is no need to alter the north side doorway as it will perform a secondary function to the main Burke Road entry and will allow future residents to enter directly into their spos from the Seymour Grove frontage.
What are my findings?
28	I am satisfied that there are no character or Clause 55 matters that would warrant the deletion of the secondary entry door from the Seymour Grove elevation.  As a high front fence is to be provided across this frontage, the gate into this enclosed area of spos is likely to only be used by residents of the dwelling.  The principal entry to the dwelling will be immediately obvious along the Burke Road frontage as it adjoins the vehicle accessway to the dwelling and is provided with a porched entry over the access door.
29	For this reason, I will require the deletion of Conditions 1b)i) and 1b)ii).
are conditions 1g) and 1h) reasonable?
30	These conditions seek changes to both materiality and colours proposed.  The Council says that the use of stacked stone, as proposed, is inconsistent with existing materials in the area, and should be replaced with brickwork.  They say that the material palette is confused and that the brickwork proposed, being a glazed dark grey colour, do not reflect the warmer brick tones evident in the area.
31	To the contrary, the applicant asserts that the immediate area is robust in nature, constructed with a wide variety of materials and colours.  They say that a contemporary form of development requires the use of contemporary materials and colours.
32	I have carefully considered the material and colour selection in the context of what I observed during my site inspection.  While I accept that more earthy tones were evident in the immediate area, these colours reflect the period of their development.  Whilst I gave some consideration to reducing the tonal contrast (which is most obvious along the southern elevation), where the use of rendered finish in Lexicon Quarter (which is within the white colour palette) and Western Myall (which is within the grey colour palette) at the upper levels is proposed, on balance I am satisfied that the material and colour choice will sit within a robust urban setting and reflect the contemporary nature of the proposal.  
33	I will require the deletion of Conditions 1g) and 1h).
conclusion
34	For the reasons explained above, the decision of the responsible authority is varied.  A permit is issued subject to amended conditions.    

K Birtwistle 
Member