VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P2221/2018
Permit Application no. PLN17/0800	
CATCHWORDS	
Part demolition, alterations and additions to single fronted house in heritage precinct; Impact on heritage significance; Visual bulk; Acoustic impact; Overshadowing.	

APPLICANT	Mr T Quinn and Ms R Saint	
responsible authority	Yarra City Council	
RESPONDENTs	Mr C Pattinson and Ms A Gallard
Ms S Reid	
SUBJECT LAND	156 Stawell Street, Burnley	
WHERE HELD	Melbourne	
BEFORE	Rachel Naylor, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	17 May 2019	
DATE OF ORDER	28 June 2019	
CITATION	Quinn v Yarra CC [2019] VCAT 988	

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 for the permit application plans, the following plans filed with the Tribunal:
Architectural plans
Prepared by:	DX Architects	
Drawing numbers:	TP01, TP02, TP02a, TP03, TP04, TP05, TP06, TP06a, TP06b, TP07, TP07a, TP07b, TP08, TP09, TP10, TP10a, TP10b, TP11, TP12, TP13, TP14 & TP15.  All Rev F	
Dated:	19-02-2019	

Landscape plan
Prepared by:	John Patrick Landscape Architects	
Drawing number:	L-VCAT01	
Dated:	March 2019	
No permit granted
2	In application P2221/2018 the decision of the responsible authority is affirmed.
3	In planning permit application PLN17/0800 no permit is granted.

Rachel Naylor
Senior Member			

Appearances
For Mr T Quinn and Ms R Saint (the applicant)	Mr B Minogue, town planner of Ratio Consultants	
For Yarra City Council	Ms K Thomas, 	
For Mr C Pattinson and Ms A Gallard	Ms A Gallard	
For Ms S Reid	Ms S Reid	

Information
Land description	The site is located on the west side of Stawell Street.  It has a frontage of 5.91m and a depth of 30.18m, with a site area of 179m².  It contains a single fronted, single storey weatherboard Victorian-era dwelling with a hipped roof form and a verandah across its frontage.
The dwelling is the middle one of a consistent row of three Victorian-era dwellings with similar setbacks and appearance from the street, and with private open space areas of similar size and dimensions at the rear.	
Description of proposal	It is proposed to retain the front two rooms and part of the original roof above these rooms, and demolish the remainder of the existing house.
It is proposed to construct ground and first floor additions.  The ground floor is constructed to the north side boundary and is setback 0.72 of a metre from the south boundary, except for a centrally located 7.335m length wall on the boundary.  The rear setback is 5.895m and provides for a single carport and shed.  The ground floor contains 3 bedrooms, a bathroom, laundry and ensuite.
The first floor is setback 11.6m from the front boundary, with a ‘pop-up’ roof set back approximately 21m.  The first floor is constructed to the north and south side boundaries, except at the rear where it is set back 0.865 of a metre from the south boundary.  The first floor rear setback matches the ground floor except that a first floor 24sqm deck is proposed to extend to the rear boundary.  The deck is set back 1.0m from the north side boundary and 0.865 of a metre from the south side boundary.  The 1.7m high screening around the edges of the deck varies between metal louvres and obscure glazing.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Yarra Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1 (NRZ1)
Heritage Overlay Schedule 322 – Golden Square precinct (HO 322)
Design and Development Overlay Schedule 5 – City Link Exhaust Stack Environs (DDO5)	
Permit requirements	Clause 32.09-5  To construct or extend one dwelling on a lot less than 500sqm in NRZ1
Clause 43.01-1  To demolish part of a building and to construct a building and to construct or carry out works in HO 322 	

Reasons
What is this proceeding about?
1	Mr Quinn and Ms Saint seek planning permission to modernise and extend their house located at No. 156 Stawell Street, Burnley to create a three bedroom family home with a rear car space and first floor deck/open space area above.  
2	Their property, together with the adjoining properties at Nos. 154 and 158 Stawell Street, are narrow lots that are also relatively small in area.  Currently, each of these lots contains a modest two bedroom single storey Victorian-era house.  These lots form part of a larger residential heritage precinct known as the Golden Square precinct.  
3	The Tribunal has often acknowledged in decisions relating to alterations and additions in a heritage precinct that there is a need to balance the enhancement of the heritage significance with the provision of residential accommodation that achieves modern living standards.
4	Whilst it is not unusual to propose rear ground floor and first floor additions to a heritage significant house, the detail of this proposal is a little unusual as it proposes to switch from a traditional house layout with living areas on the ground floor to what is described in planning terms as a ‘reverse living’ dwelling where the principal living areas and open space is provided on an upper floor level.  Generally speaking, what is proposed is a house that has its bedrooms on the ground floor and its primary living areas on the first floor or upper levels.  
5	A consequence of a reverse living style of design are challenges of building bulk and external and internal amenity impacts as it is necessary to provide a level of privacy from elevated primary living areas and open space areas.  
6	In this case, the first floor deck is proposed above the rear carport, adjacent to the private open space areas of Nos. 154 and 158 Stawell Street.  This arrangement is opposed by the Council because of its visual bulk impact on the adjoining properties.  The visual bulk impact is also a matter of concern raised by both of the adjoining properties.  In addition, the adjoining property to the south at No. 158 is concerned about the overshadowing impact upon their ground level rear secluded private open space area.  This concern is shared by the Council.
7	For reasons that are explained below, I find the extent of demolition is acceptable subject to correction of errors on the plans. I also find the extent and form of the ground floor and first floor additions to the house (excluding the rear carport and deck are generally acceptable subject to some minor modifications.  However, a reverse living style of accommodation has created an unacceptable impact by way of visual bulk because of the first floor deck above the rear carport.  
8	The Council submits the amount of private open space proposed is appropriate and acceptable for a three bedroom dwelling of this size, and it would not support the removal or reduction of this amount of private open space.  Hence, the location and provision of a suitably sized private open space area with direct access from a primary living area is unable to be easily resolved through permit conditions.  Rather, achieving this outcome is likely to necessitate fundamental changes to the proposed design.  Hence, I have explained the reasons why the general alterations and additions are acceptable to assist in all parties in the event that a further planning application is sought for the modernising of this house.  
9	There are three key aspects to the merits of this proposal:  
•	The heritage significance;
•	The neighbourhood character; and
•	The amenity impacts.  
Heritage significance
10	In order to make findings about the acceptability of the proposed demolition, alterations and additions to the existing house from a heritage perspective, it is necessary to understand the significance of this heritage precinct and the significance of this building within the precinct.

11	The site and surrounding properties to the north, east and south are within the Golden Square heritage precinct.  This precinct is identified as being aesthetically and historically significant to the municipality for the following reasons:
•	As a good representation of modest early housing in the area, from the late 19th to the early 20th century;
•	For some of the most intact and, in part architecturally distinctive, small Edwardian cottages to be found in the municipality;
•	For its Victorian residential housing development ranging from simple weatherboard dwellings to Italianate fillers and two unusual rows of two-storey terraces;
•	For the original bluestone lanes and gutters and other early street elements such as the pillar box in Madden Gr;
•	For the Golden Square Bicentennial Park and its mature trees, as symbolic of the Burnley primary school, and the adjacent church sites, as to significant elements on the area’s history;
•	For the contribution made by the Victorian-era Burnley Maltings as a major complex central to the history of the area over a long period, with its visually distinctive inter-war silos as remnants of the extensive industries that once crowded the banks of the Yarra.
(Underlining is my emphasis of the relevant aspects to this site)
12	The statement of significance identifies that the main development period evident in this heritage precinct is that of the Victorian-era with a substantial contribution from the Edwardian era.  All of the properties from No. 146 through to No. 158 Stawell Street are identified as being built in the period between 1870 and 1890, and all are identified in the property inventory as being contributory to the significance of the heritage precinct.
13	Victorian-era buildings are also specifically identified as being contributory elements to the heritage significance.  The specific contributory building elements identified that are of relevance to this site include:
•	Pitched gabled or hipped roofs, with some facade parapets;
•	One storey wall heights but with some two storey house rows; 
•	Weatherboard, face brick … or stucco walls; 
•	Corrugated iron roof cladding …;
•	Post-supported verandah or porch elements facing the street …;
•	Less than 40% of the street wall face comprised with openings such as windows and doors; and
•	Front gardens, originally bordered by timber picket front fences of around 1m height.
Demolition 
14	The proposed extent of demolition has changed throughout this permit application process.  The amended plans that I am considering propose to retain the front two rooms and the extent of the roof shown in the following extract:

15	The Applicant advises the extent of roof demolition shown on the southern side is an error left over from earlier plans of the proposal considered by the Council.  So, the intention is to keep the front two rooms and associated roof as shown on the north side.  
16	The Council wants the front two rooms and the associated roof above retained, which means the retained roof should extend further back to meet grid line C.  This requires a further half a metre of roof to align with grid line C.  The proposed first floor plan shows that this new floor level will be located in this section of the roof, and will sit half a metre forward of the ground floor additions, which includes a covered area built to the south side boundary.  I am not persuaded this accords with the Heritage local planning policy.  It allows for demolition of part of a contributory building that is not visible from the street frontage and maintains the main building form, including the roof form.  I agree with the Council that the retention of the front two rooms and the associated roof form is an acceptable extent of demolition that will not adversely affect the significance of the heritage precinct.  This means the new first floor area containing the dining area, and WC needs to be set back further from Stawell Street to enable the roof form of the front two rooms to be fully retained.  
17	
The demolition plan on the previous page also includes the removal of three sections of the roof to create three skylights – two on the northern side and one on the southern side.  One will provide light into the front hallway entrance and the other two will provide light to an attic storage area.  The Council submits what is proposed is too much, particularly given the visibility of this front section of the roof from Stawell Street.  The Council suggests an acceptable extent of demolition/alteration is one skylight for the hallway that is set further back from the street, adjacent to the rear room of the retained two front rooms.  
18	I agree with the Council that too many skylights are proposed and will adversely impact upon the retained fabric, which is a contributory part of the significance of the heritage place.  One new skylight located generally in proximity to the rear retained room would be an acceptable level of impact upon the heritage significance.  I leave it to the Applicant to decide if that skylight should provide light to the hallway or the attic storage area.  
The alterations and additions 
19	The Council has no concerns with the general extent or form of the ground and first floor additions in terms of their impact upon the significance of the heritage place.  The Council’s concern is (what it describes as) ‘the pop-up roof light’.  

20	The Council submits the pop-up roof section is not centrally located above the original roof (as evident in the above East Elevation), and would like to see an additional 1.115 metre setback from the southern edge of the retained section of the original roof.  The Applicant advised during the hearing that this modification would be acceptable.  I agree with the Council that it is preferable for this element of the proposed design to be centrally located in proportion to the original fabric of the house that is being retained, hence an additional setback from the southern side (and, consequentially, a smaller pop-up roof element) would be an acceptable outcome.  
Neighbourhood character
21	The Council submits its local planning policy framework in the planning scheme that is directed at neighbourhood character in a heritage context focuses on ensuring development does not adversely affect the significance of the heritage place.  I have already made findings about the proposal in its heritage context.  
22	From a neighbourhood character perspective, this site is one of four properties in a row of a similar size and width that have their respective house generally located in similar position on each lot.  The Council points out there are a total of eight residential properties between the street corner and the green roofed house that are zoned Neighbourhood Residential and contained in this heritage precinct.  

23	These residential properties contain predominantly single storey houses.  
24	In general terms, a two storey building height is an acceptable scale for a residential addition in this neighbourhood.  Also, a ground floor addition that has a similar rear setback to the adjoining properties and a rear first floor addition that does not extend beyond the ground floor addition is an acceptable response to the existing neighbourhood context.  However, the relevant considerations do not end there.  A number of the clause 54 objectives require a proposal to alter and extend a house on a small lot to have regard to both the neighbourhood context and the amenity of the neighbouring properties.  The amenity impacts are a key consideration in this case.  
amenity impacts
Visual bulk
25	The reverse living design of this proposal means there is an elevated first floor deck covering the majority of what is currently the rear courtyard.  This is illustrated in the following extract of the first floor plan.

26	The privacy screen on the north side of the deck is set back 425mm from No. 154 and the privacy screen on the south side is set back 865mm from No. 158.  This deck covers the majority of the area of the existing rear courtyard on the site.  This deck requires screening on all sides as it is intended to be the private open space area for the house.  The Council submits this element of the design creates an unacceptable visual bulk impact to the north and south adjoining properties.  

Extract of south elevation

Extract of north side boundary
27	The substituted amended plans include a landscape plan that contains a planter box on the north side of the deck and a creeper that can grow up the louvred screen on the south side.  The Council advises it does not normally require a landscaping plan as part of a proposal to alter and/or extend a single house.  Hence, this landscape concept is not something that the Council would either endorse or subsequently enforce as part of a planning permit.  In any event, Council’s traffic engineers have advised the shed on the north side of the ground level carport obstructs a car being able to effectively access the proposed carport, so it needs to be removed.  This, in turn, means the planter box on the north side will not be built as proposed.  Given all of these circumstances, I have not placed any weight on the proposed landscaping.  
28	I have inspected the site and Nos. 154 and 158 Stawell Street.  Their rear courtyards are all small in width (just under 6 metres) and there are boundary fences or walls enclosing each one that are around 1.8 to 2.0 metres in height.  There are slight differences in the ground level of each courtyard, with No. 154 being about 200-300mm above the site and No. 158 being about 200mm below the site.  Due to the narrowness of these properties, the rear living areas, porches/verandahs and outdoor seating areas are all appreciably close to each other.  
29	Within this existing context, an elevated first floor deck that is located close to the side boundaries and built to the rear boundary is not acceptable.  I agree with the Council that it creates an unacceptable visual bulk.  
30	I queried during the hearing whether reducing the size of the deck (and thereby increasing some of its side and/or rear setbacks) would create an acceptable outcome.  The Council submits this is not appropriate because this deck is the only area of secluded private open space for this proposed dwelling, which will provide a three bedroom family home.  The useable floor area of the deck is about 4 metres by 5.5 metres, so I agree with the Council that reducing its size is not desirable.  Also, I am not persuaded that reducing the deck will be sufficient to overcome the visual bulk impact given the context of narrow properties and small rear courtyards.  A different design solution to the provision of private open space is needed.  
Acoustic impact
31	Both neighbours are concerned about the impact of noise from the elevated deck/private open space area that is immediately adjacent to each of their properties.  The Council ‘deferred’ to a 2003 Tribunal decision that states:
15.	The potential for the general [sic] of noise is not a reason to refuse this proposal.  It is possible to have neighbours who indulge in frequent loud parties, but that can occur in relation to detached houses, just as well as in relation to medium density townhouses.  The prospect of finding oneself in close proximity to neighbours who create noise nuisances of that sort is one of the risk one takes in living in an urban area.  Of course, if the noise generation amounts to a nuisance there are other laws appropriate to deal with that sort of problem.  …
32	I advised the parties during the hearing that whilst residential noise from a new residential development in a residential area is often acknowledged by the Tribunal to be an acceptable impact, there have been circumstances where the Tribunal has considered this concern more closely having regard to the particular circumstances of the particular context.   
33	The context of the above Tribunal decision is quite different to the context of this site and its adjoining properties.  The above Tribunal decision concerned a six dwelling development on a property in Bentleigh East that the Tribunal described as ‘a substantial parcel of land with a total area of 1,537 square metres’.  I provided the parties with another Tribunal decision during the hearing that concerned two lots in Prahran.  One lot already had two dwellings under construction and it was proposed to construct two more dwellings on the other lot with a further dwelling at the rear sitting over the top of the rear car spaces, straddling both titles.  The Tribunal described this local area as a ‘relatively intensely developed inner city location’.  The Tribunal’s findings included concern about the upper level deck for the proposed rear dwelling unreasonably impacting on the amenity of the adjoining property:
27.	With respect to any potential external amenity impacts on the neighbouring properties, the main problem I see here is the likelihood of the proposed northern upper level deck unreasonably impacting on the amenity of the adjoining No. 40 Donald Street property.  In other words, a person wishing to use the backyard of the No. 40 Donald Street property would (if the proposal went ahead) face the prospect of dealing with a new adjoining deck area that is considerably higher and likely to be visually very imposing, combined with the risk that there will be significant noise impacts from users of the deck.  In this regard, while I appreciate that the proposed upper level deck includes a privacy screen, the privacy benefits that this would bring needs to be balanced against the visual bulk implications of this screen when viewed from the backyard of the No. 40 Donald Street property. In addition, the privacy screen would not be a panacea for any noise problems.
34	I advised the neighbours during the hearing that, if all other aspects of the proposed deck were acceptable, it is unlikely that I would refuse this proposal just because of this potential acoustic impact.  This is partly due to the fact that the Planning and Environment Act 1987 and the Victoria Planning Provisions contained in all planning schemes do not require a proposal to be ‘ideal’ but rather to be ‘acceptable’.  It is also partly due to the commonly applied finding by the Tribunal that residential noise is part and parcel of living in a residential area, including in a densely developed inner urban area.  
35	Some other Tribunal decisions have made reference to this Secen decision.  I advised the parties in the hearing that the acoustic impact is acknowledged in Secen as an issue, but it is not evident that it is an impact that determined the outcome to refuse the proposal.  It is probably more appropriate to describe this consideration as a secondary one, and one which can accentuate the original problem(s) of the proposed siting and design of a development.  The Secen decision identifies the importance of considering a proposed development within its context when considering the acceptability of impacts on neighbouring residential amenity.  That is what is relevant in this case.  It is not acceptable to have an elevated principal private open space area adjacent to, or very close to, other properties.  The screening proposed is not acoustic screening.  If it were, the screening would be solid and would create an even greater visual bulk impact.  
Shadow impact
36	The Council and the neighbour to the south at No. 158 consider the new shadow cast by the proposed additions and the first floor deck onto No. 158’s rear courtyard create an unacceptable impact.  No. 158 is also concerned about the loss of light into its skylights and clerestory windows that are in the roof of the rear open plan living area of their house.  
Overshadowing of No. 158’s rear courtyard
37	The rear courtyard of No. 158 is less than the 40 square metre minimum area contemplated in standard A14 of clause 54.  It is about 35 square metres.  The existing sunlight access to this courtyard is already less than 75% of the space for the majority of hours between 9am and 3pm.  Hence, the starting point in standard A10 is that the amount of sunlight should not be further reduced.  
38	On the basis that I have already found the first floor rear deck is not acceptable, I have excluded the shadow cast by this feature from my consideration of this issue.  
39	The shadow diagrams illustrate that the remaining new shadow is being cast by the new rear two storey addition.  The new shadow is being cast over both the rear open courtyard area and the area at the rear of the house that is covered by a laserlight verandah.  Whilst laserlight allows for sunlight penetration, the fact that the verandah exists means it is casting its own shadow to varying degrees and already filtering the amount of sunlight penetration.  Hence, the focus of my consideration has been upon the new shadow cast onto the rear open courtyard area.  The shadow diagrams illustrate that this area is affected by new shadow at 9am and 10am.  By 11am only a sliver of new shadow remains and that impact is acceptable.  
40	The Council submits the 9am and 10am new shadow impact is a significant increase in shadow and is unacceptable.  This submission was made in the context of shadow cast by the whole of the development, including the elevated rear deck.  The Council does acknowledge that ‘it is inevitable that there will be some increased overshadowing to the south due to the east-west orientation of the lots’.  The question is how much of an impact is acceptable.  
41	The 9am shadow is more significant due to the angle of the sun, so any reduction in the proposed first floor is unlikely to be able to significantly improve this impact at this time of day.  At 10am, about half of the rear of the first floor (behind the pop-up roofed area) is affecting the courtyard).  The Council calculates the impact (including the elevated deck shadow) reduces the level of sunlight into the courtyard from 40.9% to 23.4%.  I find this early morning impact from the two storey rear addition (excluding the rear deck area) is acceptable when balancing amenity, neighbourhood character and heritage.  By a little after 11am, the shadow of the proposed two storey rear addition will be gone from No. 158’s rear courtyard and for the remaining time the existing sunlight penetration will remain (if there is no first floor rear deck area).  
Loss of light into skylights
42	The Council tabled a Tribunal decision that identifies there is no specific guidance in the Yarra planning scheme regarding the consideration of effects of development on skylights.  That decision suggests it is necessary to distinguish the rooms that are affected, the purpose of the skylight and any other sources of daylight and solar access.  That decision also (quite rightly) identifies that a reduction in solar access to a corridor may have less weight than a reduction to a living room.
43	Having inspected No. 158, I agree with Ms Gallard that no weight should be placed on the existence of about eight glass bricks in the rear wall of the kitchen.  These are effectively a feature around which still exists the brick surround of a former chimney.  

Extract of photograph tabled by Council of rear of No. 158 with glass bricks on left-hand side of rear wall.
44	The primary sources of light into the kitchen appear to be via the rear glazed door and one of the skylights.  The second skylight and the clerestory windows provide additional light sources to the open plan lounge and dining area, which also benefits from a reasonably sized south facing window.  
45	There is no particular requirement in the planning scheme to consider impacts on skylights.  Each case needs to be considered on its own merits.  In this case, the combination of balancing first floor additions in a heritage area with the overshadowing of open space requirement in the planning scheme already creates a necessity for a degree of balancing of what is an acceptable outcome.  Whilst there will be a loss of sunlight to these clerestory windows/skylights, I have decided this impact is acceptable given:
•	It is reasonable to expect and provide for a first floor addition to a residential home;
•	It is necessary for the first floor addition to be set back to maintain the heritage significance; and 
•	It is appropriate and reasonable for the first floor addition to be sited at the rear so as not to create unreasonable amenity impacts in terms of visual bulk and overshadowing.    
CAR PARKING PROVISION
46	The proposal includes a new rear carport for one car space.  This site currently does not have a car space and it is not a necessary requirement under the planning scheme.  Hence, its removal from the proposal is a possibility.  At the moment, the incorporation of this car space is impacting upon the necessity to provide open space at an elevated level.  I reiterate that the rear first floor deck is not an acceptable part of the proposed development and needs to be reconsidered.  
Conclusion
47	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Rachel Naylor
Senior Member