VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P118/2020
Permit Application no. TP-2018-199	
CATCHWORDS	
Section 87A of the Planning and Environment Act 1987; Melbourne Planning Scheme; Extension to existing dwelling; Roof top terrace; Impacts on amenity of adjoining properties	

APPLICANTS	Drew Kitchen	
responsible authority	Melbourne City Council	
RESPONDENTS	Craig Patterson, Dr Lisa Carson, Adam May	
SUBJECT LAND	54A Canning Street, Carlton	
WHERE HELD	Melbourne	
BEFORE	Megan Carew, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	25 June 2020 	
DATE OF ORDER	22 July 2020	
CITATION	Kitchen v Melbourne CC [2020] VCAT 777	

Order
1.	The application is allowed. 
2.	Pursuant to Section 87A of the Planning and Environment Act 1987, Planning Permit No TP-2018-199 issued on 24 October 2019 is amended as follows: 
•	Conditions in the permit are amended as follows:
•	Condition 1 is amended to read:
1	Prior to the commencement of the development (including any demolition) on the land, two copies of plans, drawn to scale must be submitted to the Responsible Authority generally in accordance with the plans prepared by Drew Building Design, dated 10 January 2020; and marked Revision D, but amended to show:
a.	Alteration to provide a “cut out” in the north and western elevations in accordance with the VCAT plans dated June 2020.
b.	A landscape plan for the planter boxes including the size, depth, proposed growing media, plant species, irrigation and maintenance requirements.
c.	All existing screening to west facing windows noted as being retained.
d.	The north facing bedroom highlight window to have a minimum sill height of 1.7m.
e.	Screening of the west facing stair/ bedroom window.
f.	A note that screening, where required, meets the requirements of Standard A15 of Clause 54.04-6 (Overlooking).
These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

Megan Carew
Member			

Appearances
For applicant	Mr Drew Kitchen, Drew Building Design	
For responsible authority	Mr John Klarica, Town Planning Consultant, Calibre Planning	
For respondents	Mr Adam May and Ms Corinne op’t Hoog, both in person
Mr Craig Patterson, in person
Dr Lisa Carson, in person
	
Information
Description of proposal	To amend the existing planning permit to allow changes to the approved development for alterations and additions to an existing three storey dwelling, which was formally a warehouse.  The works include:
•	Demolition of a garage door and shed located at the ground floor;
•	Installation of a car stacker to hold two cars, including earthworks to construct a pit for the stacker;
•	Relocation of the dwelling entry;
•	A new ground floor services area;
•	A double storey addition including roof deck;
•	Increasing the size of the existing first floor east facing balcony and adding screening to the existing west facing balcony;
•	Altering the internal layout of the dwelling so that bedrooms and bathrooms will now be located on the ground floor with living areas on the upper levels.  	
Nature of proceeding	Application under section 87A of the Planning and Environment Act 1987 – to amend Planning Permit TP-2018-199 issued at the direction of the Tribunal on 24 October 2019.	
Planning scheme	Melbourne Planning Scheme	
Zone and overlays	General Residential Zone-Schedule 1 (GRZ1)
Heritage Overlay- Schedule 1 (HO1)
Parking Overlay Precinct 12 (PAO1)	
Permit requirements	Clause 32.08-5 to extend a dwelling on a lot less than 300 square metres;
Clause 43.01-1 demolition of a building and to construct a building and construct and carry out works.	
Relevant planning scheme policies and provisions	Clauses 11, 15,16, 21, 22.05, 22.17, 22.19, 22.23, 32.09, 43.01, 45.09, 52.06, 54, 65, 72	
Land description	The review site is a former warehouse building that was converted to a dwelling in 1994 TP94/955). It is located within a laneway context and is situated at the rear of residential properties fronting Canning, Elgin and Barkly Streets. The site is accessed via Nicholls Lane, from Canning Street (to the rear of 50-54 Canning Street). It is irregular in shape and has a total site area of 146m2. 

The endorsed plans show that the existing warehouse dwelling has 2 bedrooms at ground level; a bedroom, living area and balcony to the first floor; and a kitchen/living/dining area to the second floor. Ground level secluded private open space is located to the east and a car space and store are located to the north. 

The site is within a rear laneway context. To the north (beyond a narrow accessway of approximately 1.2 metres in width) are the rear courtyards of 39 and 41 Elgin Street. To the west, the site is separated by the laneway to the rear of a row of attached, brick, Victorian terrace houses fronting Canning Street. 
	
Tribunal inspection	26 June 2020   	

Reasons
What is this proceeding about?
1	Planning permit TP-2018-199 was issued at the direction of the Tribunal (the decision of Patterson v Melbourne CC [2019] VCAT 1616). The permit allowed additions to a dwelling within a former warehouse at 54A Canning Street, Carlton. The addition extends to the north of the existing building occupying the present car parking area. 
2	The original application included a car stacker at ground level, a first-floor bedroom and a roof terrace and was documented in plans prepared by Drew Building Design, described as Revision C. The design was required through conditions on the permit to be lowered in height through the deletion of the proposed roof terrace and a reduction in the floor to ceiling height of the first-floor bedroom to no more than 2.4m at the northern boundary. These changes resulted in approval of a maximum wall height on the northern boundary of 6.94m (but allowed the roof form to rake away from the boundary). No plans have been prepared or endorsed in the permit that reflect the approved building form.
3	The applicant seeks an amended design solution to enable the re-introduction of a roof terrace as part of the addition. To achieve this the applicant proposes to:
•	delete the car stacker (reducing the floor to ceiling height at ground level to 2.25m);
•	reduce the width of the interstitial spaces between the floors and ceiling and lowering the bedroom ceiling height to achieve an overall building height including the required screening to the roof terrace of 6.94m; and
•	decrease the setback to the western side (laneway) by deleting the west facing balcony and providing stair access to the first-floor bedroom.
4	The applicant submits that the proposed changes are in keeping with the current permit and will not result in unacceptable amenity impacts to neighbours.
5	Council says that due to the infilling of the balcony and decreased western setback, the proposal will increase the visual bulk of the development when viewed from the private open space of the neighbours to the north and west. The respondents support this position. In addition, they say that the reintroduction of the roof terrace will result in further impacts on their amenity.
6	The Tribunal must decide whether an amended permit should be granted and, if so, what conditions should be applied. Having inspected the site. considered all submissions and with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided to amend the permit, but have required changes to the plans. My reasons follow.
Interim orders
7	At the hearing, the permit applicant tabled some potential further amendments to the plans in response to the concerns raised by Council and the respondents. 
8	Several parties expressed concern about the late circulation of this material. At the conclusion of the hearing, I required the permit applicant to circulate the additional information to all parties. This included:
(a)	Clarification as to the correct reduced levels to the northern boundary wall;
(b)	The perspective of the north west corner of the proposed development tabled at the hearing;
(c)	The north and west elevation tabled at the hearing showing the reduction in wall height to the north west corner of the proposed development;
(d)	The internal section showing the stairwell to the bedroom tabled at the hearing.
Further plans were provided dated June 2020. I provided all parties a right of reply to the information and received further correspondence from each party. I have had regard to this further information and all further submissions in my reasons.
WHAT MUST I DECIDE? 
9	I am required to determine if the amendments sought are acceptable. An application to amend a permit does not create an opportunity to contest the permit in its entirety. It is not my role to revisit the granting of the original planning permit or to reconsider aspects that have been previously found to be acceptable.
10	In granting the current permit in the decision of Patterson v Melbourne CC, the Tribunal found that:
I [Member Patterson] have decided to grant a permit for the following reasons:
•	I am satisfied that the proposal will not have a significant impact on the heritage values of the building or the neighbourhood character of the area; and
•	With the changes I have made, which include the deletion of the roof top terrace and lowering the height of the boundary wall, I am satisfied that the proposal will not significantly affect the amenity of the nearby residential properties.  
11	As I have set out above, the changes made by Member Patterson included conditions requiring lowering of the building wall height on the northern boundary by a reduction in the floor to ceiling height of the bedroom and deletion of the rooftop terrace (noting that in the previous decision, Council had issued a notice of decision to grant a permit subject to conditions that required the removal of the roof terrace).
12	It is common ground that since the grant of the permit that there has been minimal change to the physical context of any consequence in relation to the review site and its immediate surrounds. I inspected the review site and surrounds following the hearing.
13	There have been some changes to the planning policy context. For example, following the conclusion of the hearing, Amendment C258 referred to by Council was approved (10 July 2020). This amendment introducing new Local Planning Policy at Clause 22.05 in respect to heritage and the incorporated document Melbourne Heritage Inventory February 2020 Part A. The policy in respect to the review site has not significantly altered and the site remains a contributory building (as in the previous decision) in the heritage review. The Tribunal in the previous decision was satisfied in respect to heritage considerations and heritage issues were not raised in the proceeding before me. 
14	The key issues in this application are whether the changes to the built form now sought and re-introduction of the roof terrace will significantly impact on the amenity of the adjoining properties. Council submitted that the substantive issues relate to amenity and visual bulk. 
WHAT ARE MY FINDINGS?
ROOF TERRACE
15	The respondents submit that the re-introduction of a roof terrace should not be supported. They say that the roof terrace was deleted by the previous Tribunal and that it will create noise and privacy issues. Mr Patterson submits that:
This amended plan has put back a rooftop terrace which I understand the Council and VCAT had disallowed. I am particularly concerned about the intended use for a rooftop terrace in a building that already has panoramic views. The intended use seems to be for the sole purpose of large entertainment gatherings. For this reason, I am also concerned about the likelihood of disruptive loud noise.
16	Dr Carson was also concerned that the roof terrace, being at second storey height will make it feel as though they are effectively ‘living on top’ of her courtyard. These concerns were shared by Mr May who submitted that
The noise from a rooftop garden would likely be intrusive to our children’s bedrooms: their windows open out to the northern elevation of the proposed building. 
A roof garden with odd noise angles is likely to be amplified by the existing remaining brickwork into ours and adjoining properties would likely be very intrusive.
17	The roof top terrace is proposed to be screened on all sides to prevent overlooking to adjoining properties. The applicant indicated that this screening would be solid. The proposed screening would comply with Standard A15 of Clause 54 and would not give rise to direct overlooking.
18	Given the elevated location of the terrace, there are likely to be occasions when noise associated with its use would be heard by neighbours. Noise was discussed in the previous decision. The Tribunal found that:
Whilst concern was raised about noise generated by persons using the balconies, there is no reason to suspect that the noise level generated by this property will be any greater than any other dwelling in the area.  If noise becomes an issue this may be dealt with through the usual law enforcement practices.  
19	I agree with these findings. Noise from residential use of private open space, whether that space is front or rear yards, balconies or a rooftop terrace, is part of a residential use. Any nuisance arising from their use would be subject to other controls.
20	While I note that this dwelling has other options for the provision of private open space, lack of need is not a relevant planning consideration. The previous Tribunal did comment on the availability of alternative spaces, but this is relevant ensuring that the dwelling would retain acceptable internal amenity.
21	Member Patterson in the previous decision considered the proposed roof top terrace from a heritage and neighbourhood character perspective finding that it is not necessary for the roof top terrace to be deleted for heritage or neighbourhood character reasons.  Likewise, I do not consider that a roof top terrace in this location inconsistent the neighborhood character given the highly urbanised laneway character and the reliance of dwellings on balconies as well as the traditional courtyard gardens.
22	The Tribunal in the previous decision went on the require the deletion of the rooftop terrace as part of overall changes that would result in a reduced wall height on the northern boundary (discussed below in respect to visual bulk). The key question is whether the built form changes result in acceptable visual bulk.
Visual Bulk
23	In the previous decision the Tribunal found that:
25	There is no doubt that the proposed addition will be visible from habitable rooms of neighbouring dwellings as well as the areas of secluded private open space.  The question is whether the proposal will unreasonably affect the amenity of these properties through visual bulk.  
26	I find that the proposed addition with its large boundary wall of 9.15 metres will appear visually dominant and will unreasonably affect the adjoining properties through visual bulk.  I therefore agree with the responsible authority that the height of this wall should be reduced.1(c) which seeks the removal of the roof top terrace would reduce the height of the wall to approximately 7.45 metres.  I find that this is not enough to prevent unreasonable visual bulk and more needs to be done.  
27	During the hearing I was advised that the proposed bedroom would have a floor to ceiling height of 2.87 metres.  Therefore, in addition to requiring the deletion of the roof top terrace, I have required the floor to ceiling height to be lowered to 2.4 metres at the [sic].  Based on the figures provided at the hearing, this change should reduce the overall height of the wall to approximately 6.94 metres.  I have required this as a condition of permit, together with the retention of condition 1(c).  I have allowed for a raked ceiling from the boundary to the height of 2.87 metres if desired by the owners.  This would create an angled roof form, which I find to be acceptable.  
24	The decision effectively establishes an acceptable wall height on the northern boundary. Figure 1 compares the approved wall extent with the proposal.
Figure 1: Council’s submission Figures 5 and 6 comparing the approved extent of northern wall with the proposed northern elevation.

25	The proposal before me increases the width of the wall towards the west and “infills” the west facing first floor balcony. Council submits that these changes significantly increase visual bulk to the west and north and are not acceptable. The respondents supported this. Mr May submitted that:
The existing building is quite intrusive already. This new version would intrude visually and sound wise into our enjoyment of our home. Extending a building that is already intrusive right up to the title boundary and adding a roof terrace would significantly affect our amenity and neighbouring properties. 
The proposal is darkly intrusive and not in keeping with the nineteenth century coloured brickwork. 
26	Neither the approved wall nor the proposed wall meets the standards set out in Standard A10 of Clause 54. In this area high and long walls are common on small urban lots and there must be flexibility in application of the standards in response to site and local features. The proposed wall height generally complies with that established in the previous decision and is acceptable. It is the increased length of wall and the reduction in the western boundary setback which needs to be considered.
27	When viewed from the rear yards of the neighbours to the north and west, I find that the changes are not acceptable and will result in increased visual bulk. The previous balcony arrangement offered some visual relief to the two elevations.
28	The applicant submitted that if I was concerned about the increased width of wall, that an alternative design could provide a “cut out” to the north west corner of the building to mirror the previously approved building envelope. A planter would be introduced. These changes would increase the western setback so that there is no cantilever (refer to Figures 2 and 3).
Figure 2 Revised north and west elevations June 2020.

Figure 3 Revised perspective June 2020 (note window in the northern elevation is not depicted).

Council and residents were critical of this approach and questioned the viability of the planter proposed. Council submitted that:
Council maintains the position asserted at the hearing on 25 June 2020 in relation to the plans provided by the applicant as required in Item 1 of the Order, reiterating that the proposal would result in an unacceptable level of visual bulk to properties to the west; and that, if approved, the lower planter as shown in the internal section required at Item 1(d) of the Order would be inaccessible for initial planting as well as ongoing maintenance, potentially becoming a safety issue for residents trying to access the planter, or unsightly in the adjoining laneway, also visible to neighbouring properties.
29	I do not share these concerns. The resultant building envelope would be almost identical to that approved. The viability of the planter would be dependent on the planting selected and the laneway provides access for maintenance. I have included a condition in respect to the proposed landscaping.
30	The level of articulation of the northern and western elevations is in my view acceptable. The windows in each elevation (the applicant indicated that these would be grey toned tinted glass) provide visual relief and provided overlooking is addressed are satisfactory. I am not persuaded that any differentiation in materiality or colour would be required if adopting the current permit conditions. I note that a schedule of materials, colours and finishes is required by condition 3 and that the dark colour scheme was supported in the previous Tribunal decision. 
Other amenity considerations
31	The Tribunal in the previous decision was satisfied that overshadowing, and loss of light were acceptable. With the changes to the building envelope above, I find that these aspects meet the required standards set out in the planning scheme.
32	In respect to overlooking, I note that the rooftop terrace will be completely screened. 
33	The proposal introduces a new north facing bedroom window which is highlight (sill height 1.8m) and does not extend in front of the proposed internal stair. The proposed screening would comply with Standard A15 of clause 54 and is acceptable. The window may give rise to perceived overlooking concerns but given the compliance with the standard is acceptable.
34	The proposal introduces a stairwell window to the west. The standards do not require screening of non-habitable spaces or transitional spaces such as stairwells, however given the integration with the bedroom I find that a screening solution would be appropriate.
Car parking changes
35	Council noted that the lowered garage height would result in restricted garage clearance. While a 2.1 m clearance is standard it is not required by the planning scheme or Clause 52.06 for this development. The applicant will be required to comply with any approved endorsed plans for this proposal. The applicant tabled alternative garage door solutions that the owner may choose to adopt should they require additional clearance. 
Impact on property values
36	Dr Carson expressed some concern about impact on property values. This concern is not a relevant planning consideration in this proceeding.
Conclusion
37	For the reasons given above, the application is allowed. An amended permit is granted subject to conditions.

Megan Carew
Member