VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1812/2019
Permit Application no. PL1313/18	
APPLICANT	Leigh Gauci	
responsible authority	Stonnington City Council	
RESPONDENTS	Martin Henry Ryan, Antony Egan	
SUBJECT LAND	11 Percy Street
PRAHRAN  VIC  3181	
WHERE HELD	Melbourne	
BEFORE	Peter Gaschk, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	12 August 2020	
DATE OF ORDER	27 October 2020	
CITATION	Gauci v Stonnington CC [2020] VCAT 1200	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Attic	
•	Drawing numbers:	Sheets 1 – 35 (inclusive)	
•	Dated:	29 January 2020	
2	In application P1812/2019 the decision of the responsible authority is affirmed.
3	In planning permit application number PL1313/18 no permit is granted.

Peter Gaschk
Member			

Appearances
For applicant	Mr Paul O’Shea, Town Planner with CS Town Planning Services	
For responsible authority	Ms Edwina Laidlaw, Town Planner with EL Planning	
For respondents:
Mr Anthony Egan
Mr Martin Henry Martin	
Appeared in person
Appeared in person	

Information
Description of proposal	Alterations and additions to a dwelling incorporating an extension to the existing three storey dwelling, with a rooftop terrace.  The rooftop terrace is to be accessed by a ‘pull down’ hatch from Level Two of the dwelling.  A variation is also sought to the building height under the Design and Development requirements of the Activity Centre Zone, Schedule 1.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Stonnington Planning Scheme (the Scheme)	
Zone and overlays	Activity Centre Zone, Schedule 1 - Chapel Street Activity Centre (ACZ1)
Design and Development Overlay, Schedule 1 (DDO1)	
Permit requirements	Clause 32.08-5: To construct a building or construct or carry out works.
Clause 37.08-6 and Schedule 1 Section 4.4): To vary a design and development requirement (Preferred Maximum Building Height – 9.0m) set down in the Schedule (s.5.3 – Precinct 3 – Prahran – sub precinct Greville Village) 	
Relevant scheme policies and provisions	Clauses 15, 15.01-1S, 21.02, 21.03, 21.05, 21.06, 21.06-4, 32.08, 54, 65, 71.02. 	
Land description	The site is located within the Chapel Street Activity Centre.  More specifically, it extends between Percy Street and Percy Place, situated between Greville Street and High Street, Prahran.
The subject site is a regular shape with a street frontage of 5.145m and an overall size of 78sqm.  It is currently developed with a three storey dwelling which, along with its northern neighbour forms a townhouse style dual occupancy.
The existing dwelling is set back 1.5m from Percy Street, and contains a bedroom at ground floor level and a garage, which is accessed from Percy Place, to the rear.  The dwelling’s main living area is located at first floor level, along with an east and west facing deck.  Two bedrooms are located at second floor level. The second floor level is recessed from both street frontages and from the south boundary.
The exterior of the building presents angled, feature walls in front of the second floor level. These walls have the effect of screening the upper level from the public realm.
To the north of the site, 11A Percy Street is developed as the review site’s ‘pair’.  Internally it is generally constructed in a mirror image of the subject dwelling with balconies within its east and rear (western) setbacks.  At both 13 and 15 Percy Street there is a two and a three storey dual occupancy respectively.  North of these townhouses there are single storey dwellings at 17, 19, 21 and 23 Percy Street.
9B Percy Street is located to the south of the site and is the northern most dwelling, of a three dwelling development, located at the southern end of the west side of Percy Street.  The dwelling at 9B is effectively three levels, although its upper storey is contained in an attic, lit by skylights.  This dwelling is served by balconies within its east and west setbacks.
Opposite the site in Percy Street is a row of four, older style, single storey dwellings at 4, 6, 8 and 10 Percy Street.  At the rear of the site, across Percy Place, there is a currently a row of single storey dwellings at 3-7 Percy Street.  Percy Street includes a right hand bend linking with Percy Place.	
Tribunal inspection	Not undertaken	

Reasons
What is this proceeding about?
1	Mr Leigh Gauci (the applicant) seeks to review the decision of the Stonnington City Council (the council) to refuse to grant a permit for alterations and additions to an existing three storey dwelling, incorporating an extension by a roof terrace, on land at 11 Percy Street, Prahran (the review site).  The council’s grounds of refusal are stated below:
1. The height of the proposed building extension and roof deck exceeds that sought under the Activity Centre Zone – Schedule 1, does not respond to the local building height character and is excessive.
2. The proposal will result in unreasonable overlooking into the private and secluded open space of 9A, 9B, 11A and 13 Percy Street.
2	The applicant submits the review site is located within a very urbanised context and is designated an Activity Zone under the Scheme.  He says:
•	The existing useable communal private open space is confined to a small deck off the living room. 
•	The proposal represents a sensible improvement to the amenity of the occupants of the dwelling while being sensitive to ensure the offsite impacts are addressed. 
•	Overlooking of existing windows is a common feature of inner urban extensions and the design response has provided screening while at the same time included lightweight glass at suitable locations in acknowledgement of the fact it is above the preferred height for the precinct. 
•	The imperative of not increasing the height of the building has been overstated in the council’s assessment of this proposal. 
•	Percy Street demonstrates proud buildings, on compact lots that have solar panels and plant rooms that exceed three storeys already. 
3	The applicant also relies upon the Evidence Statement and supporting photomontage material prepared by Mr Chris Goss from Orbit Solutions Pty Ltd. 
4	Two respondents (Mr Egan and Mr Ryan) lodged Statement of Grounds and provided detailed submissions at the hearing.  Mr Egan is the owner/ occupier of an immediately adjoining dwelling located at 9B Percy Street.  Mr Egan is concerned the proposed development will: 
•	Invade his privacy with direct line of sight to his internal rooms from the proposed balcony areas associated with the roof terrace; 
•	Impose excessive height and overlooking into his property and dwelling; 
•	Not provide an environmentally sustainable design; and 
•	Undermine local amenity, liveability and streetscape appearance.  
5	Mr Ryan resides at 6 Percy Street, located immediately opposite the review site.  He submits:
•	The proposal is misconceived on height and unjustifiable.
•	The proposed deck would create additional visual clutter and noise.
•	The rooftop terrace amounts to a commercial scale development.
•	VCAT has not supported large party decks on the basis of noise/amenity impacts.
•	The applicant is not respectful of neighbours.
•	The proposal will increase amenity impact by intensifying the use of the site, creates ‘unreasonable off-site amenity impacts’ and provides no ‘community benefit’.
•	The proposed internal stairway access is unsafe.
•	A gas flue chimney will need to be relocated to ensure emissions do not affect Mr Egan’s dwelling.
•	The proposal does not comply with relevant ResCode provisions.
6	During verbal submissions from the respondents I advised the parties that it was my view the proposed development was not seeking or required a permit for use.  My finding was the application was limited to buildings and works approval associated with the construction of the rooftop terrace.  This was the only permit trigger under the Scheme.  I advised the parties that any submissions in respect to the use of the rooftop terrace would not be given any weight in my assessment of this proposal.  This included reference to particular VCAT decisions raised by Mr Ryan and Mr Egan’s concerns around noise and use of the proposed rooftop terrace. 
the proposal
7	The council submission provides the following outline of the proposed development:
•	The permit applicant proposes to extend the existing three storey dwelling, with a roof terrace. The roof terrace would be accessed via a pull-down hatch at Level 2.
•	The roof terrace has an area of around 23.5sqm, and it is setback as follows:
•	Percy Street 3.616m
•	Percy Place 3.554m
•	South Boundary 1.16m
•	North Boundary 0.00-600mm
•	There is also balustrades and screening around the terrace of up to 1.7m taking the maximum proposed dwelling height to 10.74m.
8	The council provided the following description of the existing dwelling on the review site that is also relevant to my consideration of this matter:
•	The existing dwelling is setback 1.5m from Percy Street, and contains a bedroom at ground floor level and a garage, which is accessed from Percy Place, to the rear.
•	The dwelling’s main living area is located at first floor level, along with an east and west facing deck.
•	Two bedrooms are located at second floor level. The second floor level is recessed from both street frontages and from the south boundary.
•	The exterior of the building presents angled, feature walls in front of the second floor level. These walls have the effect of screening the upper level from the public realm.
9	The council advised the existing dwellings constructed on 11 Percy Street formed part of a dual occupancy development approved at the direction of VCAT (Reference P2940/2005) on land now described as 11 and 11A Percy Street.  The approved building height of this development was based on a maximum height of 8.8m to the roof peak.
PROCEDURAL ISSUES & RULINGS 
10	At the commencement of the hearing the applicant sought to substitute amended plans prepared by Attic, dated 29 January 2020.  
11	The plans were circulated in accordance with the Tribunal’s Practice Note PNPE9.  Key changes to the submitted plans included:
•	Deletion of the rooftop bathroom;
•	Replacement of the stairwell access to the rooftop terrace with a roof hatch;
•	Overall maximum height of the building reduced by 840mm;
•	Increased rear setback of the balustrade from Percy Place by 800mm; and
•	Screening measures on top of the proposed balustrade along the north and south elevations of the rooftop terrace.
12	The council did not oppose the substitution of these plans but maintained its grounds of refusal to the proposed development.  Mr Ryan opposed the substitution of the plans on the basis he considered they were incorrect and lacked sufficient detail.  
13	I was satisfied the plans provided sufficient level of detail to enable an assessment of the merits (or otherwise) of the proposed development.  In addition, all parties had prepared their submissions on the amended plans.  I therefore gave my verbal approval to the substitution of these plans and the hearing proceeded on that basis.  My order above reflects this.
STRATEGIC PLANNING CONTEXT
Zone provisions
14	The review site and surrounds are zoned Activity Centre Zone, Schedule 1 - Chapel Street Activity Centre (ACZ1).  Relevant purposes of the ACZ1 include:
•	To encourage a mixture of uses and the intensive development of the activity centre:
•	As a focus for business, shopping, working, housing, leisure, transport and community facilities.
•	To support sustainable urban outcomes that maximise the use of infrastructure and public transport.
•	To deliver a diversity of housing at higher densities to make optimum use of the facilities and services.
•	To create through good urban design an attractive, pleasant, walkable, safe and stimulating environment.
•	To facilitate use and development of land in accordance with the Development Framework for the activity centre.
15	In respect to new development proposals under the ACZ1, clause 37.08-6 specifically provides:
A permit may be granted to construct a building or construct or carry out works which is not in accordance with any design and development requirement in the schedule to this zone unless the schedule to this zone specifies otherwise.
16	This is relevant as the proposed development on the review site is seeking approval to construct buildings and works that exceed the 9.0m preferred building height at section 4.4 of the Schedule (Height and Massing).
17	In accordance with the preamble to section 4.4, a permit can be sought to vary this preferred height requirement.
18	Schedule 1 of the ACZ1 also includes the following Built Form Objectives at section 4.4 that need to be considered when assessing all new development within the ACZ:
•	To ensure that new development responds sympathetically to the Activity Centre’s historical urban fabric, identity and character.
•	To encourage innovative, high quality and well-designed buildings which complement the existing urban fabric and mixed use character of the Activity Centre.
•	To create a vibrant, active place with passive surveillance of streets and other pedestrian and public spaces.
19	The review site is located within Precinct 3 (Prahran) under the ACZ1.  More specifically, this is identified as the Greville Village Neighbourhood sub precinct, as described at sections 4.4 and 5.3 of Schedule 1 to the ACZ.  This sub precinct is shown in the map included with the council submission below:

20	Section 4.4 of Schedule 1 of the ACZ also provides:
A permit cannot be granted to vary a requirement specified as mandatory within this schedule, (including the Precinct Maps and Precinct Built Form Requirements at Clause 5.0).
All other requirements in this schedule are to be met unless the responsible authority is satisfied that an alternative proposal is acceptable.
The Guidelines should be met, where appropriate.
21	The section also provides the following provisions that must be considered if a permit is to issue for height exceeding the preferred height:
The preferred maximum building height may be exceeded in some circumstances if:
•	It can be demonstrated that a significant community benefit can be achieved; and
•	It continues to meet the objectives, requirements and guidelines in relation to visual impact and overshadowing with increased upper level setbacks.
(Tribunal emphasis added)
22	I note the preamble states the preferred maximum building height may be exceeded in some circumstances if….  I consider this places particular emphasis on the development within the sub precinct satisfying the preferred height as a starting position.  The section then sets out the circumstances that are to be considered if the preferred height is to be exceeded.  I find these particular provisions are integral in my assessment and must be given due and particular weight in my consideration of this matter.
23	Local policy at clause 21.06 also includes further design objectives at sub clause 4 (Built Environment and Heritage), Objective 1.  I consider these provisions are also relevant to this matter:
•	Require a high standard of built form, detailing and architectural design in all new development.
•	Encourage use and development that respects the preferred character elements of the street or any defined precinct character, and that respects and enhances Stonnington’s green and garden-like setting (as appropriate), including in areas where this character has been eroded.
•	Encourage good design which respects the scale, height, density, bulk, setbacks, style, form, building materials, colours and character of buildings, fences and gardens of the street or any defined character precinct.
•	Ensure the scale and forms of alterations and additions, particularly roofs, windows, doors and the materials used complement those of the existing building and respect the valued elements of its context.
•	Ensure building height is not significantly higher or lower than the surrounding buildings unless a different preferred height is specified for a particular area in another provision in the planning scheme or in a structure plan.
 (Tribunal emphasis added)
What are the key issues?
24	Having considered the written and verbal submissions, evidence and detailed information provided by the parties, the key issues I need to determine are stated in the questions below:
•	Is the proposal an appropriate response to the preferred building height and character sought under the ACZ1?
•	Is an appropriate level of amenity achieved by the proposed development?
25	I must decide whether a permit should be granted and, if so, what conditions should be applied in the context and policy setting of the Scheme.  
26	I consider the applicant has not adequately demonstrated that a significant community benefit is achieved if the proposed height variation for the proposed rooftop terrace was approved.  I find the proposed development will result in unacceptable planning outcomes, including a loss of consistent built form character and height in this section of Percy Street.  I also find the proposed rooftop terrace would result in adverse overlooking and loss of privacy arising from the rooftop terrace, specifically to the occupants residing in the adjoining dwelling at 9B Percy Street.  It is the combination of these matters that produces an inappropriate design outcome and response within this particular sub precinct of the ACZ.  I therefore affirm the council’s decision and direct no permit to issue.
27	I provide a detailed assessment of my findings below.
Is the proposal an appropriate response to the preferred building height and character sought under the ACZ1? 
28	The applicant says the design response has satisfactorily addressed the additional height associated with the proposed rooftop terrace, highlighting the existing site is constrained, having a narrow 5.1m width and three storey built form along both side boundaries.  
29	He says the following design features demonstrate that an appropriate scale and form has been achieved in the design of the rooftop terrace.  This includes:
•	Clear glazing has been applied to the front and rear of the structure with the solid elements of the proposal being applied to the sides only and only where required to comply with A15;
•	It is an open structure with no roof that presents very differently to the public realm than another storey on the building;
•	The finished colour of the screening adopts the finish colour of the existing building;
•	The balustrade is setback 3.6metres from Percy Street at the front and 3.5metres from Percy Place at the rear;
•	The balustrade is setback behind the large parapet feature at the front by 1 metre and the rear parapet feature by more than 2 metres.
30	The applicant acknowledges the proposed side and rear setbacks of the rooftop terrace do not comply with Standard A10 of clause 55 (ResCode).  A variation is sought.  However, he notes the rear setback is to a road and as such, is not considered to be a sensitive interface.  He also submits that other buildings are built to rear and side boundaries in the area and the rooftop terrace will not be visually dominant in this physical setting.  The applicant also relies on the photomontages that form part of Mr Goss’s Evidence Statement to support this position.
31	The council does not agree with the applicant’s assessment.  It says that incrementally, the scale and character of Percy Street is being progressively eroded.  The council submits the north-south setting of Percy Street is markedly different to surrounding streets, having a distinct feeling akin to a purely residential location.  It also says there is no community benefit being delivered on the basis that no broader based policy benefits are created by the rooftop terrace.
32	The respondents support the council’s submission.  Mr Egan says the proposed development will be the highest structure in the street and will have an adverse visual impact on the streetscape.  Mr Ryan submits the increased height lacks the necessary densification prerogative (public benefit) and results in excessive visual bulk to the street when compared to surrounding dwellings.  He is also concerned the rooftop terrace will include visual clutter such as seating, sun umbrellas, lighting poles and shade sails.  He says these elements will be clearly visible from the street view below.  He included his own photomontage in his submission to demonstrate this.
What does the evidence say?
33	Mr Goss’s Evidence Statement includes a photomontage of images that seeks to demonstrate potential visual amenity outcomes of the proposed rooftop terrace when measured against images of its existing context.  Photos include original views of the review site and superimpose the proposed rooftop terrace into this photo view.  Views are shown from the immediate frontage (Percy Street), rear (Percy Place) including oblique/diagonal views along these streets.  Silhouette lines of the proposed rooftop terrace are also included with these images.
34	I am satisfied the photomontage images provides a consistent and accurate pictorial record of the existing streetscape, superimposed with the proposed rooftop terrace form on the subject building at 11 Percy Street.
35	Based on the images presented in Mr Goss’s evidence, I find the proposed rooftop terrace will be marginally visible when viewed along Percy Place (Images 2.1 and 2.2) and will not dominate this physical setting or character of the street.  The longer range views presented in Images 4.1 and 4.2 indicate the proposed rooftop terrace will also be visible when viewed from Leggetts Lane, looking towards the review site along Percy Street.  Again, I do not consider the rooftop terrace will be excessively prominent when viewed from this location.  I come to this conclusion taking into account the massing, scale and siting of residential buildings situated in front of the review site.  However, the shorter range views presented in Images 1.1, 1.2, 3,1 and 3.2, demonstrate the proposed rooftop terrace will present a much larger and prominent built form when viewed from these particular street locations.  
36	As submitted by the applicant I also agree the row of existing pencil pines located in this section of the street provides some filtering of these particular views.  However, I find the trees do not screen the entire built form behind due to their conical shape and height.  I also note that these trees are not protected by any Scheme Overlays and could be removed without the need for a permit.
My Findings
37	Decision Guidelines in section 4.4 of the Schedule apply to an application seeking to increase building height over the preferred 9.0m height in this sub precinct.  I find the height and massing requirements contained in section 4.4, combined with relevant local policy character provisions at 21.06 of the Scheme, (as underlined above) are equally relevant here.  
38	Section 4.4 outlines matters that are to be considered when assessing the merits of building height above the prescribed preferred height.  Firstly, this requires addressing whether the proposed development has demonstrated a significant community benefit is achieved.  Secondly, whether the varied height of the proposed development meets the objectives, requirements and guidelines in relation to visual impact and overshadowing.  Finally, as highlighted at clause 21.06, the new development is to respect the preferred character elements of the street or any defined precinct character. 
39	Based on my assessment of the party submissions and supporting documents and photos of the area, (including a detailed review of the photomontages provided with the Evidence Statement of Mr Goss) I find this section of Percy Street has a distinct residential scale and massing that is of lower scale and height than the larger scaled buildings located at the periphery and beyond the boundaries of this sub precinct.  
40	The applicant highlighted the council has recently approved a residential development in this sub precinct up to 13.6m in height, on three lots located at 3, 5 and 7 Percy Street.  It says this demonstrates that the preferred height can be varied in this sub precinct.  I generally accept this latter premise but hasten to add the approval of new development above the preferred height in this sub precinct, must be undertaken and assessed in the context of the policy settings I have described above.   
41	In this context, I agree with the council three storey dwellings in this section of the street are largely recessive in appearance.  However, this building form still provides a consistent scale and massing to this side of the street.  I also agree with the council that the purpose of defining precincts and sub precincts within the ACZ1 is to ensure that each area’s attributes are recognised and protected in new use and development.  I find this is both logical and sensible from a planning policy setting and application of these Scheme controls and requirements. 
42	I find the preferred 9.0m height in this particular sub precinct is an important character element and design outcome sought in the Scheme.  As I have highlighted above, the preferred 9.0m height form must be the starting point for assessment of any new development proposed within this particular sub precinct.  
43	I find the applicant has not demonstrated increasing the height of the dwelling with the rooftop terrace up to 10.7m, achieves broader community benefits sought under the relevant provisions of the ACZ Schedule 1.  To support its position the applicant says the site is small and requires increased height over 9.0m to accommodate the rooftop terrace.  In my view, this alone is not sufficient justification to demonstrate the rooftop terrace achieves broader community benefit.  
44	The applicant also submits the rooftop terrace structure is open to the sky.  However, I find the rooftop terrace structure, with its associated balcony balustrades and screening treatment, will be visually prominent due to its rooftop location and generally lower surrounding built forms.  As pointed out by the respondents and council’s urban designer, I would also expect that further physical structures will be required on the terrace, particularly to address weather conditions.  This will add another layer of visual elements and structures to the proposed rooftop terrace, without the need for further planning approvals.  
45	The applicant also submits the proposed rooftop terrace is required to improve the existing private open space for occupants of the existing dwelling.  The council submits the existing dwelling has several, quite satisfactory outdoor spaces.  I note from the submitted plans there are three discrete, secluded private open space balcony areas provided for the occupants of this dwelling, at both first and second levels.  This includes a secluded balcony area located immediately off the living room at first floor level, with a relatively generous area of 10.7sqm.  The applicant’s submission highlights this area will continue to be used as the primary section of secluded private open space by the dwelling occupants.  I find this level of secluded private open space provision is typical of most inner suburban living environments.      
46	Having considered submissions from the parties, the evidence from Mr Goss and further verbal presentations put to me during the hearing, I have not been convinced by the applicant that a broader community benefit will be achieved by the construction of the rooftop terrace over the preferred 9.0m height for this sub precinct.  I find this to be a determinative matter in my overall findings.
Is an appropriate level of amenity achieved by the proposed development?
47	A further consideration in this matter involves assessing whether the proposed development continues to meet the objectives, requirements and guidelines in relation to visual impact and overshadowing with increased upper level setbacks. The council submits the amended plans have largely ameliorated its concerns for overlooking from the rooftop terrace area into adjacent properties.  It says some outstanding items around this matter can be satisfactorily addressed by additional permit conditions.  The applicant generally agrees.  However, the respondents say that concerns around overshadowing, overlooking and privacy, particularly associated with Mr Egan’s adjoining dwelling at 9B Percy Street remain.
48	The amended plans show that shadows are cast from the existing three storey dwelling at 11 Percy Street across the adjoining dwelling at 9B Percy Street.  This occurs to varying degrees throughout the entire day (measured at the summer Equinox).  I note that the proposed rooftop terrace will extend this shadow further across onto the adjoining double storey dwelling at 9A Percy Street.  Both these dwellings include north facing skylight type windows located on angled roof forms to provide light into habitable room areas.  
49	As explained by Mr Egan, these windows on his dwelling are important sources of natural daylight and solar access into the internal upper levels of his dwelling.  He is concerned there will be significant overshadowing into the upper level windows of his dwelling and says these windows have not been shown on submitted plans.  He is therefore unable to conclude the proposed rooftop terrace will not result in additional or adverse overshadowing/loss of daylight into these windows.  Mr Ryan provided additional diagrams in his written submission that sought to demonstrate increased shadowing and loss of natural daylight into Mr Egan’s skylight windows.
50	Having reviewed this material I am generally satisfied that the proposed rooftop terrace structure will not unreasonably increase the amount of adverse shadowing or loss of natural daylight into Mr Egan’s dwelling.  It would appear from my reading of the shadow diagrams submitted that a large portion of the new shadows cast by the rooftop terrace will fall within the adjacent streets, with some additional impacts on the front and rear balconies of 9A and 9B Percy Street in the mid-afternoon/ morning respectively.  
51	I agree with the respondents that the shadow diagrams submitted by the applicant would have benefitted from showing the respective skylight windows of the affected dwellings to validate these concerns.  However, the relevant amenity objective under clause 54.04 around this matter, seeks to allow adequate solar access to existing north facing windows.  I accept the council has appropriately considered the impacts arising from the proposed rooftop terrace and agree with its submission that an adequate level of solar access will still penetrate into the upper level windows of Mr Egan’s dwelling.  
52	However, I remain concerned that the amended design response has not adequately dealt with the potential for direct overlooking into the skylight windows located on the sloping roof of the existing dwelling at 9B Percy Street.  This was a specific concern raised by Mr Egan and Mr Ryan, particularly from various sections of the proposed balcony areas associated with the proposed wrap around rooftop terrace.  Again, I note it would have been useful if the particular windows on Mr Egan’s roof had been plotted on the final plans, showing directional views to and from the rooftop terrace layout.
53	Nevertheless, at the hearing, the applicant acknowledged that some overlooking may result/be possible from particular sections of the proposed balcony area of the rooftop terrace into Mr Egan’s skylight windows/balcony area.  He sought to address this by recommending additional screen treatment that could be angled over the direct view line into Mr Egan’s property.  I would not support this type of screening treatment in this instance as I consider it will increase the visual bulk and appearance of the rooftop terrace structure overall.  The appropriate screening treatment should result in reduced visual bulk, as well as appropriately managing concerns around direct overlooking.  I find the design response and recommendations by the applicant has not appropriately addressed these concerns.  I consider the proposed rooftop terrace at 11 Percy Street will not result in an appropriate level of amenity being maintained for Mr Egan’s enjoyment of his property.
54	The respondents also raised concerns regarding the location and safety aspects of an internal stair leading to the proposed rooftop terrace and location of a gas flue chimney associated with the dwelling on the review site.  I consider both matters could be appropriately addressed by permit conditions or compliance with building regulation and as such, are not considered fatal to this proposal.
Conclusion
55	For the reasons given above, the decision of the responsible authority is affirmed.  No permit is granted.

Peter Gaschk
Member