VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1879/2019
Permit Application no. WH/2018/1385	
CATCHWORDS	
Section 82 Planning and Environment Act 1987, Whitehorse Planning Scheme, overshadowing of secluded private open space, overlooking, tree protection, overdevelopment, two crossovers, loss of on-street car parking.     	

APPLICANT	Vassili Kopyssov	
responsible authority	Whitehorse City Council	
RESPONDENT	Anthony G and Associates Pty Ltd	
SUBJECT LAND	111 Koonung Road Blackburn North	
WHERE HELD	Melbourne	
BEFORE	Alison Glynn, Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	20 October 2020	
DATE OF ORDER	29 October 2020	
CITATION	Kopyssov v Whitehorse CC [2020] VCAT 1206	

Order
Permit granted
1	In application P1879/2019 the decision of the responsible authority is varied. 
2	In planning permit application WH/2018/1385 a permit is granted and directed to be issued for the land at 111 Koonung Road, Blackburn North in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of two double storey dwellings and buildings and works within four metres of protected trees.

Alison Glynn
Member			

Appearances
For Vassili Kopyssov	Mr Vassili Kopyssov, in person	
For Anthony G and Associates Pty Ltd	Mr Phillip Rygl, town planner of Connect Town Planning.	
For Whitehorse City Council 	Ms Louise Lunn, town planner of Louise Lunn Planning with Ms Fiona Little, town planner.	

Information
Description of proposal	Construction of two double storey dwellings in side by side configuration.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit. 	
Planning scheme	Whitehorse Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 3 (GRZ3)
Significant Landscape Overlay – Schedule 9 (SLO9)	
Permit requirements	Construction of two or more dwellings in GRZ3
Buildings and works within four metres of a protected tree in SLO9.	
Relevant scheme policies and provisions	Clauses 11, 15.01, 16, 21.06, 22.03, 22.04, 32.08, 42.03, 55 and 65.   	
Land description	The site has a 15.24 metre frontage to the east side of Koonung Road and a depth of 41.76 metres creating a 636.42 sqm site.  The land is occupied with a single storey dwelling.  To the direct south are two single storey dwellings with courtyards facing north, toward the review site.	

Reasons
What is this proceeding about?
1	Whitehorse City Council (the council) has issued a notice of decision to grant a planning permit for two, side by side, double storey dwellings at 111 Koonung Road, Blackburn North.  Mr Kopyssov (the review applicant) opposes this decision as he is concerned the development will shadow and overlook two dwellings that his family own to the south.  He is also concerned the proposal may impact a tree on his property and reduce on-street parking in the area.  
2	I must assess the proposed dwellings in context of the issues raised by the review applicant and the relevant provisions of the Whitehorse Planning Scheme.  From this I find the relevant issues I need to address are:
a	Is the general layout of the proposal a suitable response to the provisions of the planning scheme?
b	Are there any unreasonable amenity impacts resulting from the proposal, including:
•	Overshadowing
•	Overlooking
•	Visual bulk
•	Loss of vegetation
•	Loss of on-street parking.
3	I address each of these issues below.  In summary, I find the proposal is acceptable subject to some minor alteration to permit conditions to correct and clarify the requirements for a permit as set out in the council’s notice of decision.
Is the general layout of the proposal a suitable response to the site?
4	The proposal is to establish two, side by side, double storey dwellings.  The issues raised by the review applicant implicitly question if the dwellings are an acceptable outcome to the physical context of the site and its surrounding, noting that their site to the site has only single storey dwellings.
5	The site is located in an area of natural change in the Whitehorse Planning Scheme where some moderate housing growth is to be expected.  It is consistent with broader State planning policy at clause 16 of the planning scheme to locate greater housing intensity in well serviced locations.  This is such a location for moderate housing growth.  The proposed buildings are double storey and will have a somewhat robust presentation to the street being two, side by side dwellings but I am satisfied in its context it is acceptable.  There are similar examples of robust double storey form to the north-west of the site at 112 Koonung Road and a large single dwelling at 115 Koonung Road.  There are also larger institutional buildings such as the nearby church and childcare centre west and north of the site respectively.
6	In this context I am satisfied the general built form response is acceptable when tested against the general character objectives and policies of the planning scheme.
Does the propsoal result in any unreasonable amenity impacts?
Overshadowing
7	The review applicant is concerned that the proposal will result in additional shadow to two small secluded open space areas at 113 Koonung Road to the south of the proposed dwellings.  The council and the permit applicant acknowledge that the application plans do not meet the relevant tests of clause 55.04-4 for overshadowing but that a condition proposed by the council in its notice of decision to grant a planning permit addresses this issue.  Condition 1 of the notice of decision requires some amendment to the application plans, including a requirement that the plans be amended to show modification to the first floor of the southern dwelling ‘to demonstrate compliance with Standard B21 -Overshadowing, with no reductions to any other setbacks.’  
8	As part of the hearing process the permit applicant provided ‘without prejudice’ plans to show that the requirement could be met with a small adjustment to the upper level of the southern dwelling.  The council and the permit applicant also acknowledged that this may require further adjustment if changes to the floor level are required to meet proposed drainage conditions 10, 11 and 12 of the notice of decision.  
9	Both the council and the permit applicant submitted that it would be clearer if permit conditions refer to the need to comply with these drainage conditions in the amendment plans condition 1.  I agree this will clarify that the amended plans needed in condition 1 are to accommodate changes for both drainage and overshadowing.  Overshadowing analysis needs to account for any additional building height required to meet the drainage requirements.  Both the council and the permit applicant are confident that the development can be adapted to meet both requirements.  My review of the application plans and the plans provided by the permit applicant at the hearing concur with this assessment.
10	The review applicant questions if the shadow analysis provided by the permit applicant is accurate noting that the shadow line drawn by the intervening fence in cross-sections sits at a different angle to that of the building.  My review of the material is that this is derived by the angle of the sun hitting the top of the building at different times of the day, when the fence remains a singular height that leads to a more consistent shadow line.  
11	The proposed conditions are clear that they require the standard of clause 55.04-4 to be met.  This will require a technical assessment by the council as responsible authority when plans are submitted for endorsement.  The review applicant submits that ‘the revised plans should be available to us prior of the plans endorsement … for us to confirm that this particular condition is met.’  I do not see a need for this to occur, and nor is it conventional for such an approach to be undertaken.  Once the permit is issued it is a technical compliance matter between the permit applicant and the council to endorse the plans in accordance with the permit conditions.  
12	I have confidence that the process for plan endorsement and construction can fulfil the requirements for overshadowing as set out in the notice of decision that I have amended the notice of decision permit conditions to address a minor word clarification and he need to address stormwater water drainage in condition 1.  If a neighbour is concerned that construction of the resultant buildings are not in accordance with a permit there is opportunity for enforcement action to be undertaken.  I am aware of such matters that have come to the Tribunal to determine the need for the plan endorsement and construction to occur in accordance with conditions very similar to that proposed by the council.  The onus is on the permit holder and the council to ensure that compliance is maintained.
Overlooking and visual bulk
13	The proposal includes a number of upper level windows that are marked as screened to achieve compliance with the overlooking standards of clause 55.05-6 of the planning scheme.  The review applicant is concerned that ground level windows and outdoor terrace areas may also result in overlooking to their property if the finished floor area and terraces are increased in height due to stormwater management requirements.
14	Firstly, the permit applicant commented that it is not yet clear that there will be a need to significantly raise the external ground floor level or internal floor levels to address stormwater management.  At most it may lead to a 0.5 metre increase in finished floor level, but this is yet to be determined.  If it does lead to terrace floor areas that require additional screening I am satisfied this can be addressed through permit conditions.  I have amended the conditions proposed in the notice of decision issued by the council to confirm that the assessment should be undertaken from the finished ground and floor levels of the development that in turn are derived from the stormwater management plan.
15	During the hearing the review applicant sought to require additional screening to avoid any overlooking between ground floor spaces.  Likewise the permit applicant offered to screen some additional ground floor windows as precaution against any concerns of the review applicant.
16	I do not see any need to provide screening beyond what is required by the planning scheme.  Part of the decision guidelines of clause 55.04-6 is to consider the impact on the internal amenity of the proposed dwelling.  Adding screening limits outlook and daylight to the detriment of internal amenity of future residents.  On balance of the decision guidelines I see no need to screen beyond the requirements of the planning scheme.  I therefore will not direct any change to the condition relating to overlooking other than to refer to the finished levels of the development.
Management of vegetation
17	The review applicant is concerned that the proposal may impact the health and growth of a tree in their secluded private open space that sits close to the review site boundary.  The council and the permit applicant confirmed that the proposed permit conditions include requirements to protect this tree, Tree 2 in the arborist report and permit conditions.  This is also noting that the tree sits close to a drive on the review site.  The existing tree is growing in an environment that already has limited water and root growth due to this drive.  The arborist assessment about the capacity of the development to accommodate this existing tree has taken this existing situation into account in considering the change in growing conditions.
18	I am satisfied from the information before me that there has been satisfactory consideration to the protection of Tree 2 and that the relevant landscape objectives of the planning scheme. 
19	It was noted by the council that Tree 2 had been incorrectly referenced as Tree 1 in condition 5a)i).  The conditions in appendix A correct this condition to refer to Tree 2 which is the tree that requires protection.  
20	During the hearing the review applicant also questioned if large vegetation was proposed along the south boundary that may add to shadow to the secluded private open spaces on their site to the south.  I noted that the areas to the south of the development are limited and while the architectural plans show hedging to this boundary, it was likely to be relatively low planting due to the space provided.  
21	A permit condition proposed by the council requires a landscape plan to be submitted and approved by the council.  This can take into consideration any issues of shadow to the adjoining secluded private open space.  I have clarified this in the permit conditions.
Loss of on-street parking
22	The review applicant is concerned that the establishment of two crossovers proposed for the development will lead to a loss of one on-street car parking space that will add to car parking problems in the area.
23	The proposal relies on using an existing crossover near the south of the site and widening an existing crossover that sits to the north of the site.  It will reduce the existing 12 metres between crossovers that currently can accommodate two spaces to an area that can only safely accommodate one space.  
24	I agree with the review applicant that it is not appropriate to take into account existing private parking, such as the church opposite in assessing the provision of nearby parking.  However, I am satisfied that the general provision of parking in the area can accommodate the loss of one on-street space.  There was no evidence of a particular parking problem in the area.  I accept there may be days where the church and the nearby sporting oval both have high visitations and this may lead to occasions where parking is in demand.  These are existing situations that do not result from the imposition of this proposed development.  Planning is based on addressing the general not the exception and I am satisfied the general provision of parking in the area is acceptable.
Conclusion
25	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Alison Glynn
Member			

Appendix A – Permit Conditions

Permit Application No:	WH/2018/1385	
Land:	111 Koonung Road Blackburn North	

What the permit allows	
In accordance with the endorsed plans:
•	Construction of two double storey dwellings and buildings and works within four metres of protected trees.	

Conditions:
1	Before the development starts, or vegetation is removed, amended plans shall be submitted to and approved by the Responsible Authority in a digital format. When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:
(a)	The locations of Tree Protection Zones described in Condition 5, with all nominated trees clearly identified and numbered on both ground floor plan and landscape plan, and the requirements of Conditions 5 and 6 to be annotated on the development and landscape plans.
(b)	No encroachment greater than 10 percent of the tree protection zone of Tree 5 and Tree 6.
(c)	Any amendments necessary to comply with conditions 10, 11 and 12 including confirmation of the internal finished floor levels and external finished ground level.
(d)	The first floor of Dwelling 2 must be modified to demonstrate compliance with Standard B21 -Overshadowing with no reductions to any setbacks and based on the internal finished floor levels and external finished ground level depicted in condition 1c).
(e)	The development is to demonstrate compliance with Standard B22-Overlooking based on the internal finished floor levels and external finished ground level determined in condition 1c).
(f)	Notation on site plans indicating that all obscured glazing be manufactured obscured glass. Obscure film being applied to clear glazing will not be accepted
(g)	Landscape Plan in accordance with Condition 3.
All of the above must be to the satisfaction of the Responsible Authority. Once approved these plans become the endorsed plans of this permit.
2	The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
3	No building or works must be commenced (and no trees or vegetation are to be removed) until a landscape plan prepared by a suitably qualified and experienced person or firm has been submitted to and endorsed by the Responsible Authority. This plan when endorsed shall form part of this permit. This plan shall show:
(a)	All required changes as per Condition 6.
(b)	Canopy trees located in the secluded private open space (rear yard) of both dwellings must be a minimum one (1) metre from the internal dividing fence.
(c)	Planting along the south side boundary that considers the impact of any dense planting on shadow to adjoining secluded private open space.
Landscaping in accordance with this approved plan and schedule must be completed before the development is occupied.
Once approved these plans become the endorsed plans of this permit.
4	The garden areas shown on the endorsed plan must only be used as gardens and must be maintained in a proper, tidy and healthy condition to the satisfaction of the Responsible Authority. Should any tree or shrub be removed or destroyed it may be required to be replaced by a tree or shrub of similar size and variety.
5	Prior to commencement of any building or demolition works on the land, a Tree Protection Zones (TPZs) must be established on the subject site (and nature strip if required) and maintained during, and until completion of, all buildings and works including landscaping, around the following trees in accordance with the distances and measures specified below, to the satisfaction of the Responsible Authority:
(a)	Tree Protection Zone distances:
i	Tree 2 - 4.2 metre radius from the centre of the tree base.
ii	Tree 3 - 2.0 metre radius from the centre of the tree base.
iii	Tree 4 - 2.0 metre radius from the centre of the tree base.
iv	Tree 5 - 2.4 metre radius from the centre of the tree base.
v	Tree 6 - 3.6 metre radius from the centre of the tree base.
vi	Tree 7 - 3.0 metre radius from the centre of the tree base.
(b)	Tree Protection Zone measures are to be established in accordance with Australian Standard 4970-2009 and are to include the following:
i	Erection of solid chain mesh or similar type fencing at a minimum height of 1.8 metres in height held in place with concrete feet.
ii	Signage placed around the outer edge perimeter of the fencing identifying the area as a TPZ. The signage should be visible from within the development, with the lettering complying with AS 1319.
iii	Mulch across the surface of the TPZ to a depth of 100 millimetres and undertake/ provide supplementary watering/ irrigation within the TPZ, prior and during any works performed.
iv	No excavation, constructions works or activities, grade changes, surface treatments or storage of materials of any kind are permitted within the TPZ unless otherwise approved within this permit or further approved in writing by the Is Responsible Authority.
v	All supports and bracing should be outside the TPZ and any excavation for supports or bracing should avoid damaging roots where possible.
vi	No trenching is allowed within the TPZ for the installation of utility services unless tree sensitive installation methods such as boring have been approved by the Responsible Authority.
vii	Where construction is approved within the TPZ, fencing and mulching should be placed at the outer point of the construction area.
viii	Where there are approved works within the TPZ, it may only be reduced to the required amount by an authorized person only during approved construction within the TPZ, and must be restored in accordance with the above requirements at all other times.
6	During construction of any buildings, or during other works, the following tree protection requirements are to be adhered to, to the satisfaction of the Responsible Authority:
(a)	A Project Arborist must be appointed by the Applicant or Builder. Project Arborist qualifications must read Arboriculture' for example Diploma in Horticulture (Arboriculture)'. The Project Arborist must have a minimum Diploma qualification in arboriculture to be appointed as the project arborist. 
(b)	The Project Arborist must supervise all approved works within or adjacent to the TPZs of Trees 2, 3, 4, 5, 6 and 7. The Project Arborist must ensure that all buildings and works (including site demolition) within the TPZs of the trees do not adversely impact their health or stability now or into the future.
(c)	All buildings and works for the demolition of the site and construction of the development (as shown on the endorsed plans), must not alter the existing ground level or topography of the land within greater than 10 percent of the TPZs of Trees 2, 3, 4 and 5.
(d)	No roots greater than 40 millimetres in diameter are to be cut or damaged during any part of the construction process for Trees 2, 3, 4 and 5.
(e)	The paved area where within the TPZs of Trees 5 and 6 must be constructed above the existing soil grade using porous materials that allows water to penetrate through the surface and into the soil profile. There must be no grade change within the TPZs, and no roots are to be cut or damaged during any part of the construction process.
(f)	The project arborist and builder must ensure that TPZ Fencing Conditions are being adhered to throughout the entire building process, including site demolition, levelling and landscape works.
7	The development must be provided with external lighting capable of illuminating access to each garage and car parking space. Lighting must be located, directed and shielded and of limited intensity that no nuisance or loss of amenity is caused to any person within and beyond the site.
8	Prior to the occupation of the development, all boundary walls must be constructed, cleaned and finished to the satisfaction of the Responsible Authority.
9	The existing street tree must not be removed or damaged except with the written consent of the Responsible Authority.
10	All stormwater drains and on-site detention systems are to be connected to the legal point of discharge to the satisfaction of the Responsible Authority prior to the occupation of the building/s. The requirement for on- site detention will be noted on your stormwater point of discharge report, or it might be required as part of the civil plans approval.
11	Detailed stormwater drainage and/ or civil design for the proposed development are to be prepared by a suitably qualified civil engineer and submitted to the Responsible Authority for approval prior to occupation of the development. Plans and calculations are to be submitted with the application with all levels to Australian Height Datum (AHD). All documentation is to be signed by the qualified civil engineer.
12	Stormwater that could adversely affect any adjacent land shall not be discharged from the subject site onto the surface of the adjacent land.
13	Prior to works commencing the Applicant / Owner is to submit design plans for all proposed engineering works external to the site. The plans are to be submitted as separate engineering drawings for assessment by the Responsible Authority.
14	The Applicant/Owner must be responsible to meet all costs associated with reinstatement and/or alterations to Council or other Public Authority assets deemed necessary by such Authorities as a result of the development. The Applicant/Owner shall be responsible to obtain an 'Asset Protection Permit" from Council at least seven (7) days prior to the commencement of any works on the land and obtain prior specific written approval for any works involving the alteration of Council or other Public Authority assets.
15	The qualified civil engineer when undertaking civil design must ensure that the landscape plan/s and drainage plan/s are compatible. The stormwater drainage and on site detention system must be located outside the tree protection zone (TPZ) of any trees to be retained. 
16	This permit will expire if one of the following circumstances applies:
(a)	The development is not commenced within two (2) years from the date of issue of this permit;
(b)	The development is not completed within four (4) years from the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing pursuant to the provisions of Section 69 of the Planning and Environment Act 1987.
- End of conditions -