VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1398/2019
Permit Application no. 5/2018/380/2	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Bayside Planning Scheme, Neighbourhood Residential Zone (NRZ3), Design and Development Overlay (DDO1), amending permit condition requiring the building to be setback from side boundary.	

APPLICANT	Italo Taps Pty Ltd	
responsible authority	Bayside City Council	
SUBJECT LAND	13 Cloyne Street, Highett	
WHERE HELD	Melbourne	
BEFORE	Christina Fong, Member	
HEARING TYPE	Hearing 	
date of hearing	10 December 2019	
DATE OF ORDER	19 December 2019	
CITATION	Italo Taps Pty Ltd V Bayside CC [2019] VCAT 2013	

Order
Permit amended
1	In application P1398/2019 the decision of the responsible authority is set aside.  
2	Planning permit 5/2018/380 is amended and an amended permit is directed to be issued for the land at 13 Cloyne Street, Highett.  The permit is amended as follows.
(a)	Condition 1d) is amended to read:
d)	The garage of the southern unit setback a minimum of 1.5 metres from the southern boundary. The increased setback must be absorbed within the approved building envelope and incorporate a window to the façade treatment facing Cloyne Street. Any changes in the internal layout of this unit, including any changes to the location and/or changes to the internal layout of this unit, including any changes to the location and/or type of any windows must be to the satisfaction of the Responsible Authority.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Christina Fong
Member			

Appearances
For applicant 	Stephen Bitmead, town planner, Fastnet Consulting	
For responsible authority 	Anna Fajgman, town planner, Bayside City Council	

Information
Description of proposal	To amend Condition 1d) for a permit issued to develop the land for two side-by-side double storey dwellings.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to amend permit. 	
Planning scheme	Bayside Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone (NRZ3), and Design and Development Overlay (DDO1).	
Permit requirements	Clause 32.09-6 for development of two or more dwellings in the NRZ3.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 21.02, 21.05, 21.06, 22.06, 55 and 65.	
Land description	The land is located on the west side of Cloyne Street between James Street and Bay Road, Highett. It is regular in shape, with a width of 16 metres, a depth of 39.62 metres, and an area of 640 square metres. It is occupied by a single storey detached dwelling. Cloyne Street is an established residential area.
Adjoining the site to the north and south are single storey detached houses. Medium density development in Cloyne Street are dual occupancies, mostly in a tandem arrangement particularly for corner lots. An example of side-by-side dwellings can be found at No. 23.	
Tribunal inspection	11 December 2019, not accompanied by the parties.   	

Reasons
What is this proceeding about?
1	This is a review against council’s refusal to amend the permit by deleting condition 1d). Condition 1d) requires a modification to the design of the development, so that:
d)	The garage of the southern unit setback a minimum of 2 metres from the southern boundary. The increased setback must be absorbed within the approved building envelope and incorporate a window to the façade treatment facing Cloyne Street. Any changes to the internal layout of this unit, including any changes to the location and/or type of any windows must be to the satisfaction of the Responsible Authority.
2	The issue of this review is thus confined to the requirement to modify the design by setting the garage of the southern unit 2 metres from the southern boundary.
3	Council’s ground of refusing the proposal to construct the garage of Unit 2 to the southern boundary is:
1.	The proposed development fails to respond to the existing or preferred neighbourhood character of Character Precinct G1 as required by Clause 22.06 of the Bayside Planning Scheme.
4	At the hearing, council submits that this ground of refusal needs to be expanded to include the proposal not meeting Standard B20 of clause 55.04-4. Standard B20 relates to amenity impact on the north facing habitable windows of existing dwellings, where there are two habitable room windows opposite the proposed garage at the dwelling to the south.
5	Regarding the additional ground of refusal relating to Standard B20, I consider it relevant to the merits of the proposal. I offered the applicant an opportunity to consider this aspect. Mr. Bitmead indicated that that is not necessary, as he is prepared to proceed the hearing and make a submission on this issue.
What are the key issues?
6	The key issues of this review are the proposal’s design response to the neighbourhood character of the area and the amenity impact on the north facing windows at No. 11 Cloyne Street.
design response to neighbourhood character
7	Council’s primary concern is the proposal’s boundary to boundary construction of the two proposed double storey side-by-side dwellings, which it deems as contrary to the neighbourhood character of the area set out in clause 22.06. Council outlines the importance of neighbourhood character for development in Bayside, and that development is to contribute to the preferred future character identified for an area. 
8	In terms of design response to neighbourhood character, council submits that the site is in the Neighbourhood Character Precinct G1 in clause 22.06-4, where a design is to maintain the rhythm of visual separation between buildings, and for buildings to be sited to create the appearance of space between buildings and accommodate substantial vegetation.
9	Council submits that the existing neighbourhood character of Cloyne Street is characterised by a variety of development, including single storey dwellings, two storey dwellings, detached and semi-detached dwellings of varying architectural styles. Despite such a variety of development styles and configurations. it contends that there is a definite and consistent feature in the area, and that is the visual separation and spaciousness between buildings.
10	It submits that the application to delete condition 1d) would result in allowing a boundary to boundary development, which it considers as failing to comply with the existing character of the streetscape and the preferred future character and precinct guidelines of precinct G1.
11	Council concedes that there are two boundary to boundary dwellings on the eastern side of Cloyne Street. However, it does not consider they are examples to follow, as both dwellings are single storeys. It further submits that it has accepted the on-the-boundary construction of the northern dwelling, as the development further north is set back from the common boundary by 3.62 metres, whereby retaining the separation of buildings. However, the proposal’s on-the-boundary construction on the southern boundary will result in a solid built form across the lot, which does not respond to the existing or preferred character of the area.
12	As for the reason for a two metre setback specified in Condition 1d), council explained that this distance is appropriate, as it will respond to the consistent visual breaks in built form through larger setbacks from the boundaries of surrounding properties, including the two dwelling developments at 23 Cloyne Street, which has a two metre setbacks from both the northern and southern boundaries.
13	Council’s view is not shared by Mr. Bitmead. He said that there are examples of medium density development constructed boundary to boundary to the north, west and east, and at: 13 Cloyne Street, 37 Beaumaris Parade, 8 James Avenue, 15 Middleton Street, 8 Clonmult Avenue, 24, Clonmult Avenue, 18 Desmond Avenue, 33 Albert Road, 25 Albert Road and 7 Albert Street. He also submits that boundary to boundary construction is not confined to medium density development but includes example of single dwellings.
14	In reading the neighbourhood character policy at clause 22.06, he notes that it is policy to consider the extent of the characteristics of the built environment in the immediate vicinity of the site that may determine a preferred future character that is different from that applied to the remainder of the precinct. He reads this as the policy specifically dealing with situations where the existing or immediate environment of a site is different to that sought in the preferred future character of a precinct.
15	He further submits that deletion of Condition 1d) would respond appropriately to the identified character of the area, having regard to the following:
•	There is sufficient front garden area for the planting of two canopy trees and shrubs, and providing garden setting for the development;
•	The siting of the southern garage is reflective of the emerging character within the broader neighbourhood where boundary to boundary construction on infill medium density housing is evident. The driveway landscaping for this garage can create the appearance of space to the boundary while retaining the efficient layout of the southern dwelling;
•	The variations and the proposed treatment of the garages adds additional articulation to the façade already approved by council;
•	Construction to the southern boundary will not result in the domination of the garage to the front façade, as the garage is set behind the highly articulated façade of the southern dwelling;
•	The landscaping along the boundary in front of the garage will create a sense of separation between the garage and adjoining property to avoid the need to reduce floor area of the southern dwelling; and
•	The generous front setback in conjunction with the proposed planting along the driveway and an absence of front fencing would ensure that the development would continue to maintain the openness of the streetscape.
16	My inspection of the site and general area in the vicinity confirms that there are side by side dual occupancies, and some are boundary to boundary, such as at No. 24 Desmond Avenue currently under construction, and the pair at No. 8 and 8A Clonmult Avenue. However, a number of these side-by-side dual occupancies are not constructed boundary to boundary, but either setback from one or both side boundaries. The development at 23 Cloyne Street is an example, and the three double storeys side-by-side development at Nos. 18, 20 and 22 Desmond Avenue are others. 
17	The instances where side-by-side double storey dwellings are setback from one or both sides of side boundaries are high compared to those constructed to both side boundaries.
18	Notwithstanding the ratios of side-by-side double storey dwellings and how many are constructed to side boundaries, I do not share Mr. Bitmead’s view that side-by-side boundary to boundary construction is an emerging character, or to the extent that there should be a different preferred character.
19	Within close range of the review site, as explained in the Practice Note of Understanding Neighbourhood Character, there is one example of a side-by-side dual occupancy at No. 32 Cloyne Street, and this development is not boundary to boundary construction. In other words, no visual affinity can be drawn from the immediate area to validate a double storey boundary to boundary design for the site.
20	The preferred character of the site (Precinct G1) reads:
Preferred Future Character
The well-articulated dwellings sit within landscaped gardens, some with established trees. New buildings are frequent and are designed to respond to the site, and include a pitched roof form to reflect the dominant forms in the area. Buildings are occasionally built to the side boundary; however, the overall impression of the streetscape is of buildings within garden settings due to the regular front setbacks, well vegetated front yards and additional street tree planting in the area.
(Tribunal’s emphasis.)
21	The preferred character recognises that there are occasional constructions to side boundaries on the precinct, and the design objective for the precinct is still one to maintain the rhythm of visual separation between buildings.  To achieve this objective, the design response guidelines recommend buildings to be sited to create the appearance of space between buildings and accommodate substantial vegetation.
22	My finding on the proposal’s on-the-boundary construction for both sides is that it is not consistent with the preferred character identified for the area, and not consistent with the side-by-side configuration of double storey dwellings across the width of lots in the area. There are merits in council’s requirement to set the garage of Unit 2 back from the southern boundary, as council has already approved the on-the-boundary construction of the northern dwelling. It is then a matter how much it should be setback. The contested condition requires a 2 metre setback.
23	I consider a two metre setback appropriate, as it allows for more substantial landscaping along the side boundary, particularly along the driveway. However, I am mindful that a full 2 metre setback from the southern boundary may affect the symmetry of the building and a reduction of visual recessiveness between the ground and first floors for this dwelling.
24	I maintain that the garage should be set off the southern boundary, by at least 1.5 metres. This would allow a gap from the southern boundary and more importantly increasing landscaping along the driveway, by increasing it from the currently proposed 800mm maximum, and possibility of re-using the existing driveway and crossover, which I estimate as being set 3.9 metres or 4 metres from the southern boundary.
Amenity impact on north facing windows
25	On the south side of the land is a single dwelling at No. 11 Cloyne Street. There are four north facing windows at No. 11 Cloyne Street. Two of these are habitable room windows and face the on-the-boundary garage wall of the southern unit in the development.
26	The submitted plans did not show an entry area at No. 11 Cloyne Street, which is a single storey structure clad by metal sheeting. This structure, according to Mr. Bitmead, is the entry to the house, and partially obstructs one of the front windows.
27	Council submits that the zero setback of the garage of the southern dwelling fails to meet standard B20 of clause 55.04-4. It notes that these windows are setback 2.61 metres from the common boundary, and hence are not to the standard’s recommendation of requiring a one metre setback when there is a north facing window in an existing dwelling within three metres of the boundary. It further submits that the setback required by Condition 1d) will see to the proposal meeting this standard.
28	Mr. Bitmead’s submission is that, shadow diagrams he prepared show that these two north facing windows will not be subject to additional shadowing at the equinox, and therefore solar access to these windows will not be impinged by the proposed single storey boundary wall associated with the garage. Further, he also submits that the proposed boundary wall is sited to the side setback area of 11 Cloyne Street which is not part of the property’s principal secluded private open space of that dwelling.
29	The objective of Clause 55.04-4 north facing windows is:
To allow adequate solar access to existing north-facing habitable room windows.
Standard B20
If a north-facing habitable room window of an existing dwelling is within 3 metres of a boundary on an abutting lot, a building should be setback from the boundary 1 metre, plus 0.6 metres for every metre of height over 3.6 metres up to 6.9 metres, plus 1 metre for every metre of height over 6.9 metres, for a distance of 3 metres from the edge of each side of the window. 
Decision guidelines
Before deciding on an application, the responsible authority must consider:
•	The design response.
•	Existing sunlight to the north-facing habitable room window of the existing dwelling.
•	The impact on the amenity of existing dwellings.
30	Planning Practice Note 27 dated June 2015 provides assistance in the understanding of ResCode standards. For standard B20, this practice note says:
This standard protects the energy efficiency of existing dwellings which use north-facing windows for passive solar heating.
31	In applying the standard, the garage should be setback a minimum of 1 metre from the two habitable room windows concerned. 
32	I am not persuaded by Mr. Bitmead’s calculation using standard B21 to determine that there is no unacceptable impact on the solar access of the two windows concerned. Standard B21 is about overshadowing of existing private open space where the standards specifically set the time for assessing impact as the equinox. This is not the case for standard B20. Standard B20 is not about overshadowing but loss of solar access to north facing windows, where there is no recommendation that calculation is based on the equinox.
33	As for the decision guidelines for standard B20, one of the two habitable room windows currently enjoy un-hindered solar access, and this window appears to be the only window for that room. I understand that the front window is partially affected by the entry structure, and that this room has an east facing window to that room.
34	I am not convinced that the objective of clause 55.04-4 has been met. The garage wall opposite these two windows should be setback at least one metre from the common boundary.
35	Since my findings regarding neighbourhood character are to require the garage to be setback 1.5 metres from the common boundary, this additional setback ensures that standard B20 is met.
Conclusion
36	I am satisfied that Condition 1d) should be amended but not deleted, and in the wording set out in this order. For the reasons given above, the decision of the responsible authority is set aside.

Christina Fong
Member