VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1950/2020
Permit Application no.0127/20 	

Applicant	Reza Bahrami	

Responsible Authority	Stonnington City Council	

SUBJECT LAND	28 Midlothian Street
MALVERN EAST VIC 3145	

HEARING TYPE	Hearing 	

DATE OF HEARING	22 March 2021	

DATE OF ORDER	23 March 2021	

CITATION	Bahrami v Stonnington CC [2021] VCAT 258	

Order
Conditions changed
1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit 0127/20 must contain the conditions set out in planning permit 0127/20 issued by the responsible authority on 23 September 2020 with the following modifications:
(a)	Condition 1 (b) is deleted.
(b)	Conditions in the planning permit are renumbered accordingly.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Jane Tait
Member			
Appearances
For Reza Bahrami 	Mr Micheal Meyer, Town planner, Urbis 	
For Stonnington City Council	Mr Tom Edwards, statutory planner	

Information
Description of proposal	The construction of two double storey attached houses, each with frontage to Midlothian Street.  Each dwelling has living areas, bedroom, en-suite and service areas at ground floor level.  The first floor contains three bedrooms, bathroom, en-suite and rumpus room.
Dwelling 1 (eastern unit) includes a double garage on the east boundary.  Dwelling 2 (western unit) includes a single garage that is set back 2 metres from the west boundary.  
The dwellings have an overall height of 8.89 metres, site coverage of 50.55% and Garden Area of 37.86%.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Stonnington Planning Scheme	
Zone and overlays	General Residential Zone Schedule 10 (GRZ10)	
Permit requirements	Clause 32.08-6 – Construction of two dwellings on a lot	
Land description	The site is located on the south side of Midlothian Street Malvern East.  It has a 15.24 metre frontage, depth of 43.31 metres and site area of 661 square metres.  The site is vacant as the existing dwelling has recently been demolished.
Abutting land uses include a single storey dwelling to the east at 30 Midlothian Street. This dwelling is set back 1.75 metres from the common boundary.  To the west are two single storey units at 26 Midlothian Street.  These dwellings are set back 1.7 metres and 1.21 metres from the common boundary.  To the rear is the Chadstone Shopping Centre.  There is some screen vegetation of varied heights growing adjacent to the south boundary.	
Tribunal inspection	The Tribunal conducted a site inspection prior to the hearing.   	

Reasons
What is this proceeding about?
1	Stonnington City Council (the ‘Council’) has issued Planning Permit 0127/20 for the construction of two dwellings on a lot in a General Residential Zone (GRZ) on 23 September 2020.  Condition 1 of the permit requires the submission of amended plans.
2	Mr Reza Bahrami (the ‘Applicant’) is seeking a review of Condition 1 (b) of the permit that states:
Dwelling 1’s garage amended to provide a minimum one (1) metre setback from the eastern boundary. There may be internal rearrangements without reducing setbacks.
3	The applicant argues the location of a single wall on a boundary is an appropriate response to the sites’ context and the relevant considerations of the planning scheme.
4	Council submits that construction on the boundary will have a detrimental impact on the streetscape and the preferred character of spacing around dwellings.
What are the key issues?
5	The main issue is whether the construction of the double garage on the east boundary for Dwelling 1 is acceptable given the GRZ10 and Neighbourhood Character Policy at Clause 22.23 seek to maintain the rhythm and spacing between and around dwellings.
6	The key issues to be addressed include:
•	What is the zoning and policy context?
•	What is the physical context?
•	Will the construction of the wall on the boundary have neighbourhood character impacts?
•	What is the impact on vegetation on adjoining properties?
7	Having considered all the submissions presented regarding the applicable policies and provisions of the Scheme and assisted by the photographic evidence, I have decided to vary Council’s decision and delete Condition 1 (b).  My reasons follow.
What is the zoning and policy context of the site?
8	The subject site is in a GRZ10.  This zone is applicable to Garden River and Garden Suburban Precincts.  The zone contains variations to Clause 55. Those of relevance to this decision are:
•	Standard B17 - For a distance of at least 5 metres behind the front facade of the building fronting the street, setback new buildings (including basements) a minimum of 2 metres from at least one side boundary and at least 1 metre from the other side boundary up to 3.6 metres in height.
•	Standard B18 - Walls should not be located on side boundaries for 5 metres behind the front façade of the building fronting the street.
9	My decision has considered the objectives of Clause 21.06 that states Built Form and Heritage seeks, for new development and subdivision to respect the existing subdivision grain and rhythm of the built form character.  
10	The subject site is also located in Garden Suburban 5 in the Neighbourhood Character Policy at Clause 22.23.  The design guidelines at Clause 22.23-4 for this precinct contain design objectives to maintain and reinforce the rhythm and spacing between and around dwellings.  The design response is to provide adequate space between and around buildings to accommodate vegetation. 
What is the physcial context of the site?
11	The tabled photographs show the subject site forms part of an established residential area that contains original cream brick single storey detached dwellings on large lots. However, the area is undergoing change with the more recent development of side by side developments within the surrounding area. These include the dwellings at 3, 7, 23, 33, 45, 51, 55, 57 and 65 Midlothian Street. To the rear of the site is an enclosed four to five storey building that is part of Chadstone Shopping Centre.
12	Council argues dwellings have generous front setbacks and most are set back from their side boundaries, this includes recently constructed duplexes.  It says side boundary walls of garages visible from the street are not a characteristic of the streetscape.
13	The applicant argues the Chadstone shopping centre is the dominant influence on the character in this section of Midlothian Street.  He says this proximity has influenced the degree of change from the existing character of the area with an emerging level of greater change in the neighbourhood.  He says the presence of walls on boundaries is not a foreign element in this neighbourhood and noted this is evident at 3, 8, 12, 22 ad 36 Midlothian Street.  
14	I agree with the applicant that the height and scale of the existing Chadstone four to five storey building dominates the built form scale and character of this section of the street.  I note this feature is not screened or filtered by landscaping due to its height.  I consider this feature allows a greater degree of flexibility to consider an alternative the built form response in the neighbourhood.
Will the construction of the wall on the boundary have neighbourhood character impacts?
What does Council say?
15	Council argues the variations to Standards B17 and B18 in GRZ10 have a clear intent to promote and respect the character of spacing around buildings that is a characteristic of the street and wider residential area.  It says dwellings on the adjoining properties have generous front and side setbacks that establishes what the rhythm of spacing between buildings is.
16	Council says the construction of the garage on the boundary is a discordant element and inconsistent with other more recent side by side developments including at 7, 23, 33, 45, 55 and 57 Midlothian Street, which all do not have walls on the boundary for a distance of at least 5 metres behind the front façade.  It says where walls have been constructed to the side boundary, they are inconsistent with the spacing of dwellings in the street.  
17	Whilst Council acknowledges Dwelling 2 is set back 2 metres from the west boundary, it says this is still contrary to the preferred neighbourhood character of the GS5.   
What does the applicant say?
18	The applicant argues construction of walls to one side boundary is not a foreign element in the area, including walls to boundaries towards the front of the dwelling.  He says the visual prominence of the shopping centre provides a unique character in this area.  
19	The applicant submits the proposal is in accordance with the objectives of GS5 and a 1 metre setback required in the condition will not provide sufficient space for additional canopy tree planting. 
My Findings 
20	I am not persuaded by Council’s arguments and find construction of the double garage on the east boundary an acceptable response in this neighbourhood for the following reasons:
•	The photographs and aerials indicate this area is varied and includes some dwellings and multi dwelling developments with walls on boundaries.  This includes 2/22 Midlothian Street that has a garage on the boundary;
•	The backdrop of Chadstone Shopping Centre creates a different context to the wider area as there is no landscaping but a strong, tall extended built form visible on the south side of Midlothian Street;
•	The provision of the 1 metre setback will not make any significant difference to the presentation of the two dwellings in the street.  The frontage will still contain the two garage doors and paving for both dwellings;
•	A 1 metre setback will not allow for the planting of a canopy tree adjacent to the boundary;
•	The provision of a low scale picket fence along the frontage will partially screen the garage in the streetscape;
•	Council has not raised concerns about the presence of the double garage and single garage in the street.  The reduction in width of the protruding framed elements, including the blade walls in front of the garages to not protrude more than 0.6m in front of the garages required in Condition 1 (a) will also soften the impact of the garages in the streetscape.  This condition was not contested by the applicant; 
•	The location of the garage on the boundary will not result in any significant amenity impacts to the adjoining dwelling as the wall is facing the side setback of the dwelling only;
•	Dwelling 2 is set back 2 metres from the west boundary. This provides a visual break to the side setbacks of the units at 26 Midlotian Street.  Therefore the dwellings will not appear boundary to boundary and generally reflect the existing dwelling spacing in the street; 
•	Existing vegetation growing along the common boundary in the frontage of 30 Midlothian Street will not be adversely impacted, subject to the implementation of standard tree protection measures; and  
•	There is 1.75 metre setback between the garage for Dwelling 1 and the side elevation of 30 Midlothian Street.  This setback includes landscaping along the common boundary that will partially screen views of the garage;
21	I am therefore satisfied the rhythm and spacing of the dwellings is maintained with a 2 metre setback of Dwelling 2 from the west boundary.  I will delete Condition 1 (b) from the permit.
Existing Tree 
22	There is an existing Limelight Pittosporum (Tree 6 – 4 metres) growing along the common boundary in the frontage of 30 Midlothian Street.  
23	Council says, based on the arborist report submitted with the application, this tree is at risk given the garage wall is within the Tree Protection Zone and Structural Root zone of the tree.
24	The applicant has commissioned another arborist to conduct a non-destructive root investigation was undertaken along the eastern edge of the building footprint.  This investigation revealed there were no significant roots around the works.
25	I am satisfied this evidence indicates there will not be significant impacts on the tree.  Condition 5 on the permit requires tree protection measures to be implemented.  Council also advised that the latest arborist report will be endorsed as part of the permit.
Conclusion
26	For the reasons given above, the decision of the Responsible Authority is varied to delete Condition 1 (b).  

Jane Tait 
Member