VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P239/2020
Permit Application no. GE/SP-33119/2019	
CATCHWORDS	
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; General Residential Zone Schedule 1; Construction of one double storey dwelling; Overshadowing; Daylight to Windows; Daylight to Open Space; Bulk; Side and Rear Setbacks; Development Opportunities.     	

APPLICANT	Celina Cruz	
responsible authority	Glen Eira City Council	
RESPONDENT	Sync Design	
SUBJECT LAND	9 Faulkner Street
BENTLEIGH  VIC  3204	
WHERE HELD	Melbourne	
BEFORE	Alison Slattery, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	19 August 2020	
DATE OF ORDER	26 August 2020	
CITATION	Cruz v Glen Eira [2020] VCAT 894  	

Order

Permit granted
1	In application P239/2020 the decision of the responsible authority is varied. 
2	In planning permit application GE/SP-33119/2019 a permit is granted and directed to be issued for the land at 9 Faulkner Street, Bentleigh in accordance with the endorsed plans and the conditions set out in the Notice of Decision to Grant a Permit dated 16 January 2020 but modified to include the following conditions:
3	Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority.  The plans must be drawn to scale with dimensions and must generally accord with the plans submitted with the application but modified to show:
(a)	The development constructed wholly within title boundaries;
(b)	Alteration to the frontage of the dwelling to the south to the Master Bedroom window to ensure the window framing element is contained wholly contained within the title boundary.
3	Remaining conditions are renumbered accordingly.
4	The permit allows:
•	Construction of one double storey dwelling.

Alison Slattery
Member			

Appearances
For applicant	Ms Celina Cruz in person	
For responsible authority	Mr Julian Berzins, Town Planner 	
For respondent	Mr Stephen Bitmead, Town Planner 	

Information
Description of proposal	Partial demolition (no permit required) and construction of one double storey dwelling.  The dwelling will retain car parking to its western elevation and extend to the east, and include one further level above the existing level.  Habitable living areas are located at the upper level	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Glen Eira Panning Scheme	
Zone and overlays	General Residential Zone Schedule 1 (GRZ1)
Parking Overlay (PO2-2)	
Permit requirements	Clause 32.08-4 construction or extension of one dwelling on a lot less than 300 square metres 	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 22.07, 54 and 65   	
Land description	The land is located on the northern side of Faulkner Street, around 30 metres to the east of the intersection with Jasper Road, Bentleigh.  The site is roughly rectangular in shape (with the exception of the eastern boundary) and has a frontage of 12.32 metres and a maximum depth of 8.47 metres for an overall area of approximately 105 square metres.  There is a covenant attached to the site requiring construction in accordance with planning permit no GEPP-26811/2014, which contemplates a two storey dwelling for the site.  To this end, a strata title includes lower and upper boundaries.  To the east, the boundary is ‘dog legged’ with the lower level set in from the upper level, allowing for possible cantilever over part of the car parking space of 17 Jasper Road.  The land is reasonably flat and includes a small studio and parking to the western elevation.  A 1.83 metre wide drainage and sewerage easement traverses the west and south boundaries.
The character of this part of Bentleigh is informed by a suburban vernacular with older dwellings and an increasing number of multi level, multi unit developments.  Newer infill development of multi units is becoming the dominant form, with contemporary architecture readily apparent in the streetscape.  
The area has good access to transport (buses and trains) and daily shopping facilities in Moorabbin.	

Reasons
What is this proceeding about?
1	Sync Design applied to the Glen Eira City Council for a permit to develop the land at 9 Faulkner Street, Bentleigh for the construction of a double storey extension to the existing dwelling.   
2	Council issued a Notice of Decision to Grant the Permit on 16 January 2020. The decision was based on Council’s view that the design shows proper regard to the character of the neighbourhood and results in reasonable amenity impacts. Council contends that this development complies with the objectives of ResCode regarding to built form, amenity and character and meets the objectives of local policy. Council put that it was satisfied with the built form presentation to adjoining properties and in the streetscape.  
3	The review applicant, Ms Cruz, disagrees with Council and asserts that the design has not taken into account the constraints of the site and is not site responsive insofar as amenity impacts on her property have not been appropriately attenuated. These impacts of concern include shading of windows and private open space (car space), visual bulk and interaction between the car parking and leisure area and the proposed master bedroom.  
4	Mr Bitmead, for the permit applicant submitted that the design is thoughtful, in response to the previous subdivision on site that intended for two storey development at this point, and was responsive to the neighbourhood character of the area.  He submitted that the PPF, the local policy and ResCode Clause 54 lend support to the development.  He submitted that the proposal responds well to the standards of ResCode and meets the objectives of ResCode.  
What are the key issues?
5	The key issues for determination are:
a.	Is the proposal consistent with the planning policy framework of the Glen Eira Planning Scheme?
b.	Does the development achieve a satisfactory level of compliance with Clause 54 (ResCode)?
6	Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions with regard to the applicable policies and provisions of the Glen Eira Planning Scheme, I have decided to affirm the Council’s decision. My reasons follow.
Is the proposal consistent with the planning policy framework of the Glen Eira Planning Scheme?
7	The Glen Eira Planning Scheme includes a Local Planning Policy Framework that identifies where medium density housing should occur within the municipality. Clause 21.04 of the scheme seeks to encourage new development which, amongst other things, provides a contextual approach that responds to the character of existing residential areas whilst targeting development towards Neighbourhood centres, such as this.  The site is located within the Moorabbin neighbourhood centre and is located in a housing diversity area. There was agreement with all parties that the site was suitable for development of two storeys, due to the previous approval and the locational attributes of being in close proximity of public transport and shopping.  It was the resolution of the design and the attendant amenity impacts that was of primary concern to Ms Cruz.  
8	I am persuaded that the development is positioned on the site so as to respond to the predominant siting and scale characteristics of the area.  I find that the two storey scale of the development represents a good transition to the one storey abutting built form.  I am satisfied that the car parking space at 17 Japser Road, which may be used for open space, provides an adequate break in form between the dwellings on the two lots.  I agree with Mr Bitmead that were the lot at 17 Japser Road to be developed, the construction of a wall without windows on the boundary will not diminish development opportunities.  I have not been persuaded that the form as proposed will not be in keeping with the character of the area, where larger form predominates, and limited breaks between buildings area evident.  
9	To this end, I am satisfied that the proposed development responds wells to the local policy that seeks to ensure built form responds to the outcomes sought for the area within Clause 22.07.
Does the development achieve a satisfactory level of compliance with Clause 54 (ResCode)?
10	Several issues of amenity, which are generally able to be categorised as ResCode compliance issues, were included as grounds of review for Ms Cruz.  These include visual bulk of the two storey form, impacts on the sunlight to the open space of the car space, impacts on sunlight to the sunroom window and noise impacts to and from the new dwelling. 
11	I am satisfied that the proposed development responds well to the objectives and standards of Clause 54 (ResCode).  I say this for the following reasons:
a.	The proposal responds well to the state and local planning policy as noted previously.
b.	The scale at two storeys is consistent with the scale of existing larger dwellings and newer infill development in the area.  At a maximum of 6.95 metres, the height of the development is reasonably minimised and responds well to the previous subdivision of the site which contemplated and directed two storey form on this lot.
c.	The front setback of 2 metres is reasonable given the small lot size and the expectation set within the previous subdivision of the site.
d.	The built form has been appropriately set back from side and rear boundaries at the upper level (west 3.058metres, north 1.645 metres) whilst being located on the eastern boundary line.  I am satisfied that the intervening spacing on the lot at 17 Jasper Road serves to minimise the impacts of the bulk to that properties open spaces and windows.
e.	These setbacks minimise impacts of visual bulk on sensitive interfaces and limit the imposition into the open space spine.  The extent of built form on the lot maximises the opportunities of development on the land without unduly impacting on the amenity of the adjoining properties by way of visual bulk, shading or intrusion into formal private open spaces.  
f.	I am satisfied that the wall on the eastern boundary, whilst not complying with Standard, A14 meets the objective at Clause 54.04-5 “to ensure buildings do not unreasonably overshadow existing secluded private open space”.  I am satisfied that the character of the area includes new infill development where walls on boundary are a common occurrence.  In this way the wall to the east reflects the prevailing neighbourhood character.  
g.	As noted above, I am satisfied that while there will be offsite impacts from the wall on the eastern boundary, these will be reasonable, with shading falling over what is identified as a car parking space, albeit noted by Ms Cruz as being used for open space.  This open space is not fenced to the street, and as such, I find its amenity potential, in comparison to the secluded private open space provided to this dwelling elsewhere, is limited.  This space is not secluded private open space as it is open to the street.  I am satisfied that this eastern wall, with a maximum height of 6.95 metres will not unreasonably shade an area of secluded private open space.  
h.	Similarly, I have not been persuaded that the shading impacts on the window to the sunroom will be unreasonable.  It was put that this room was used as a study area, from which Ms Cruz and her partner work.  Mr Bitmead suggested that the room, being in and around the area of the laundry, was more utilitarian in nature.  Whilst Council agreed this room was most likely utilitarian, it assessed it conservatively as being a habitable room.  Council found that the impacts of shading on the window were not felt till the afternoon, around 3pm, and determined that this level of shading to that room was reasonable.  I agree.  Both with the method of assessment and the findings that whilst there may be some loss of sunlight to this window, the impacts of the loss would not be unreasonable due to the limited period of loss.  It is notable that this is not the only window to this room, and that it is a west facing window.  
i.	The varying materiality between ground and first floors (lighter render at the upper level for the box element) creates an impression of articulation.  This serves to minimise the appearance of sheer walls.  The use of cantilever elements provides articulation to the eastern elevation. 
j.	There is no impact on places of environmental or heritage significance.
k.	The dwelling entry is highly visible.
l.	Infrastructure is readily available with the area having been well established for residential development over many decades.  
m.	The site is not located in an area that is specified as being susceptible to flooding by Melbourne Water.  
n.	Cross ventilation is possible from the windows to the west, south and north elevations.  West facing windows are provided to living areas with further highlight north facing windows provided.
o.	There is no change to the crossover which maintains the rhythm and character of the streetscape.  
p.	The existing parking regime will be maintained providing reasonable access to the dwelling.
q.	Secluded private open space for the dwelling is appropriately located with access to northern light.  A terrace of 16 square metres is provided with direct access from the living area.   
r.	Overlooking is minimised with sill heights and screening at first floor to 1.7 metres above FFL where required.   
s.	I see no sources of noise that are located close to boundaries, such as mechanical devices.  Hot water systems can be appropriately set back from adjoining proprieties.  Noise impacts from habitation of people are a reasonable expectation in a residential area.  Any new inhabitant will be well aware that there is a car space adjacent to the master bedroom, and as such, cannot be surprised by vehicle noise close to the bedroom.
12	I am satisfied that the proposed dwelling is reasonably articulated, sited and designed in a manner that is in keeping with the scale and typology of emerging built form in the neighbourhood.  In this way, I am satisfied that the objectives of Clause 54 have been satisfied.
Conclusion
13	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions included in the Notice of Decision to Grant a Permit dated 16 January 2020 but modified as iterated in this decision.

Alison Slattery
Member