VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P605/2020 
Permit Application no. 511/2019	

APPLICANT	Jodie Dean – Whitechurch Developments Pty Ltd	
responsible authority	Port Phillip City Council	
RESPONDENTs	Adrian Betts, Tiffany Harding, Gwilym Box & Jacquelyn Anderson, Joanne Leonard	
SUBJECT LAND	207 Little Page Street, Middle Park	
HEARING TYPE	Hearing	
DATE OF HEARING	23 February 2021	
DATE OF ORDER	4 May 2021	
CITATION	Dean v Port Phillip CC [2021] VCAT 406   	
Order
Permit granted
1	In application P605/2020 the decision of the responsible authority is set aside.
2	In planning permit application 511/2019 a permit is granted and directed to be issued for the land at 207 Little Page Street, Middle Park in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Demolition of the existing dwelling and construction of a single double storey dwelling with basement and roof terrace.

Tracey Bilston-McGillen
Member			

Appearances
For applicant	Mr David Song, town planning consultant, SongBowden Planning.  He called the following witness:
Mr Bryce Raworth, heritage consultant, Bryce Raworth Conservation Heritage.	
For responsible authority	Ms Lucy Eastoe, Solicitor, Best Hooper solicitors.	
For respondents:
Ms Joanne Leonard
Mr Adrian Betts
Mr Gwilym Box
Ms Jacquelyn Anderson
Ms Tiffany Harding

No Appearance
Appeared in person.
Appeared in person.
Mr Gwilym Box.
Mr Peter Barber, town planning consultant, Urban Edge Consultants Pty Ltd.

Reasons
Background
1	I issued an interim decision on 15 March 2021 concluding that the demolition of the building was acceptable but the building, as proposed, failed to adequately respond to its neighbours and context.  Due to the willingness of applicant to modify the design to address the concerns, I provided an opportunity for amended plans to address a number of changes including amenity concerns relating to overshadowing, visual bulk, walls on boundary and the roof terrace.
2	In response, the applicant prepared a set of plans to address the above concerns.  The plans are identified as:
Auhaus Architecture (Drawings TP-2.01, 2.02, 2.03, 2.04, 3.02, 4.51, 5.01, 2.10 – 2.19 all dated 31 March 2021 Revision C) 
3	The amendments to the plans were described as:
Basement Level 
Removal of Lift Adjustment of living layout
Ground Floor Level 
Northern and Western courtyard walls adjusted to 2700mm height above natural ground level Entry court, laundry, per arrangement adjusted due to removal of lift and new alignment of western wall above on first floor due to increased setback to laneway 
First Floor Level 
Eastern facade adjusted with increased setback to laneway to meet overshadowing A15 standard 
Internal arrangement adjusted due to reduced envelope 
Roof garden to south boundary outside of secondary bedroom removed due to reduced internal area (now taken up with bedroom / ensuite instead)
Eastern and Southern facades adjusted to suit revised setbacks and internal arrangement 
Lift removed 
Courtyard areas shown with double layer of offset timber battens to limit downward overlooking and meet planning standard 
Roof garden areas clarified - now nominated as non-trafficable green roofs 
Garden to roof north and west of ensuite courtyard removed in lieu of non-trafficable roof 
Roof over BBQ area below amended to 1500mm setback off western boundary 
Wall on western boundary outside of bedroom removed, green roof behind the wall removed in lieu of non-trafficable roof and western window to master bedroom removed 
Screening to north and western edges of ensuite / bedroom removed in lieu of obscure glass to 1700mm height 
Stair to rooftop terrace nominated as external stair 
Roof Level 
Realigned roof terrace screening to meet overshadowing standard A15 
External staircase accessing roof terrace 
Air conditioning mechanical units nominated adjacent to staircase 
Folded roof line added to reduce height to eastern boundary in order to meet standard A15 
Lowered parapet height at North-East corner
4	Following circulation of the amended plans to all parties, the following response are recorded in summary.  Council submitted the following:
a	Council’s heritage advisor advised that the amended plans provide an acceptable outcome from a heritage perspective.
b	The plans generally accord with the Tribunal’s directions. 
c	The overshadowing concerns have been met as the changes made by the amended plans result in shadow impacts on 38-40 McGregor Street being contained within the line of existing shadows.
d	The extent of screening/size of balcony should not seek to encroach on the setbacks provided by the decision plans as there are a number of properties along McGregor Street that are not parties to the proceeding and the changes arguably result in additional bulk.
e	The roof gardens are nominated as non-trafficable and the following condition should be included:
Prior to the endorsement of plans to comply with Condition 1, a landscape plan must be submitted to an approved by the Responsible Authority to its satisfaction. When approved the plan will be endorsed and form part of the permit. The plan must be drawn to scale and must detail the following: 
•	Details for the construction of rooftop landscaping.
•	Irrigation and drainage specifications. 
•	Section drawings and construction specifications as appropriate.
•	Maintenance resume associated with the upkeep of the roof garden and green roots.
5	The objector from 206 Page Street made the following submissions:
•	Concern regarding the screening details, in particular that the proposed double battens will still allow for overlooking.  
•	No material label being provided for the 3.6m-6.85m high boundary wall and the 2.7m high rendered fence on the West Elevation of TP-3.02 and clarification is required.  
•	Clarification sought that there will be no overlooking from the landing of the proposed external staircase to the roof terrace into the private open space of 206 Page Street.
6	The objector at 42 McGregor Street made the following submissions: 
•	Identified changes to the plans suggesting that they should require further notice.
•	Concern regarding the appearance of the southern and eastern exterior walls of the property.  No material label is provided for the ‘folded’ section of roof which would not be visible.  
•	The increased area of black TB cladding on the south-east facade would influence the amount of light reaching the living room.
•	The design has become more ‘inward’ looking and a more factory like appearance.
7	Following receipt of the above submissions, an opportunity was provided to the permit applicant to provide comment.  The following response was received:
•	Overlooking – Draft permit conditions are accepted that relate to overlooking/screening details.  It was noted that the Council acknowledged that screening detail shown in drawing TP4.51 would limit downward views.  It was submitted that there is no overlooking from the landing of the proposed external staircase to the roof terrace into the SPOS of 206 Page Street. The parapet wall and roof obscure downward views from this location.  The applicant further noted that that stairwells/landings are not required to be screened under Standard A15 of ResCode.
•	Materials – The material for the wall on boundary with 206 Page Street is indicated to be a rendered finish and that the wall could be constructed from pre-cast concrete panel if the Tribunal considered this to be necessary.  Draft condition 9 was also accepted requiring that all boundary walls will be finished to the satisfaction of the Responsible Authority.  
•	The changes made in the amended plans have improved the interface to the laneway and reduced the overshadowing impacts to zero (i.e. no additional shadowing impacts into existing SPOS), and also reduce visual bulk impacts.
•	First floor courtyard/balcony would not create any additional visual bulk or privacy issue. 
•	Change to the courtyard – It was put that the change to the courtyard is a consequential change within the amended plans, but it could revert back to the original setbacks of the decision plans.  This could be addressed by way of a condition on any permit to issue, however it was submitted that it was not necessary. 
•	It was submitted that a condition regarding details of the proposed plantings, irrigation and maintenance of the proposed roof gardens is appropriate.
Assessment
8	My order of 15 March 2021 provided an opportunity for my concerns to be addressed.  The proposed plans as circulated and referenced as Rev C, have addressed my concerns.  I observe that the plans generally accord with my earlier Tribunal decision.  I do not consider that it is necessary to require further notice of the changes to the plans.  I do not consider the scale, or the impact of the changes has had a material detriment on any further properties, and I note that as a result of the changes, amenity issues such as overshadowing have been reduced.  I make these findings for the following reasons.
Overshadowing
9	A revised overshadowing plan was submitted for 3pm.  The plan demonstrates compliance with the provisions of clause 54.04-5.  The plan demonstrates no additional shadow to 36 – 42 McGregor Street.  I consider this to be an acceptable outcome and compliance with 54.04-5 which seeks ‘To ensure buildings do not unreasonably overshadow existing secluded private open space’.
Overlooking
10	Concern regarding the screening details was raised and in particular that the proposed double battens will still allow for overlooking.  The applicant submitted that the proposed screening would limit downward views.  The conditions of the permit include the following:
1e)	Amended timber screening to the east elevation first floor master bedroom windows designed to adequately limit downwards views into the adjoining secluded private open space and habitable room windows of the adjoining dwellings in accordance with condition 4; 
1f)	Screening to the roof terrace to adequately limit views into the adjoining secluded private open space of No. 206 Page Street in accordance with condition 4; 
1g)	Screening to the first floor level courtyard to the proposed master bedroom amended to adequately limit views into adjoining secluded private open space and habitable room windows in accordance with condition 4. 
4	Before the development starts (other than demolition or works to remediate contaminated land), cross section elevation drawings of the screens to the first floor master bedroom, first floor courtyard and the rooftop terrace must be submitted to, be to the satisfaction of, and approved by the Responsible Authority.  The drawings must: 
a)	Be drawn to scale and fully dimensioned; 
b)	Clearly delineate any solid parts of the screen and any louvre or batten parts of the screen; 
c)	Clearly illustrate how any louvre or batten arrangement will adequately limit sightlines into neighbouring properties’ private open space and windows; and
d)	Show the exact width and thickness of each louvre or batten, the exact spacing between each louvre or batten and a section detail from behind the screen demonstrating that views of neighbouring private open space and windows are adequately limited. 
11	The objective of clause 54.04-6 seeks ‘To limit views into existing secluded private open space and habitable room windows’.  I consider that the details of the overlooking screens are addressed by the permit conditions.  The objective is to ‘limit’ views.  It is noted that the proposed screening techniques are to be to the satisfaction of the responsible authority.  I therefore find that whilst I consider the plans provide the detailing of screening, Council may require additional detailing to satisfy the above conditions.  
12	As to the landing of the staircase, I agree with the objector that there may be potential for overlooking from the staircase as it rises from the western component of the staircase.  It is unclear from the plans.  I will require that condition 1(h) is amended to ensure that the roof top terrace staircase is adequately screened.    
Change to first floor courtyard
13	It was submitted the first floor courtyard extending from the ensuite was extended to the eastern boundary.  The applicant submitted that this was consequential change within the amended plans, but it could revert back to the original setbacks of the decision plans.  This was an unnecessary change and one that was not discussed or required as part of the amended plans.  I will require by condition that this courtyard is modified to reflect the first floor plan dated 23 February 2021.  
Eastern elevation
14	Concern was raised that the glazing along the eastern wall has been deleted and replaced with larger concrete surfaces.  This matter was also raised regarding the issue of visual bulk.  
15	I addressed the issue of visual bulk in my decision of 15 March 2021.  Regarding the proposed changes, I do not consider there is any additional concerns regarding visual bulk to the surrounding properties.  As to the change in materials on the eastern elevation, I find the changes acceptable.  The same materials are used but in different locations.  The elevation did not propose to use extensive glazed areas.  I also find that the use of the black timber battens, whilst darker, is a more layered approach.  I do not share the concerns that the use of this material would reduce light to the skylight of 42 McGregor Street given the distance between the two properties.  
Materials
16	It was submitted that there is no material label provided for the 3.6m-6.85m high boundary wall and the 2.7m high rendered fence on the West Elevation of TP-3.02.  It was further submitted that it was understood to be concreted but clarification is sought of whether the material of these will be C1- Concrete Board Form or C2-Render Finish.  It was noted that there is a preference that both the rendered fence and the boundary wall are C1.  
17	The applicant submitted that the material for the wall is indicated to be a rendered finish, but it could be constructed from pre-cast concrete panel if considered necessary.  Having regard to the design, I will require by condition that the 2.7 metre high rendered fence on the west elevation is C1- concrete board form.
Conclusion
18	I find that the proposed plans, Rev C circulated to all parties in response to my order of 15 March 2021, are acceptable.  I have included conditions requiring screening of the west facing stair access to the roof terrace as these details were unclear and adopted Council’s condition requiring details relating to the roof top gardens.  
19	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Tracey Bilston-McGillen
Member			

Appendix A – Permit Conditions

Permit Application No:	511/2019	
Land:	207 Little Page Street, Middle Park	

What the permit allows	
In accordance with the endorsed plans:
•	Demolition of the existing dwelling and construction of a single double storey dwelling with basement and roof terrace.	

Conditions:
Amended Plans Required
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. 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 an electronic copy must be provided. The plans must be generally in accordance with the plans identified as Auhaus Architecture (Drawings TP-2.01, 2.02, 2.03, 2.04, 3.02, 4.51, 5.01, 2.10 – 2.19 all dated 31 March 2021 Revision C) but modified to show: 
(a)	The first floor courtyard modified to reflect the first floor plan dated 23 February 2021.  The courtyard is set off the eastern boundary.  
(b)	The 2.7m high rendered fence on the West Elevation of TP-3.02 to be finished in C1 – concrete board form.  
(c)	Any modifications required by the Sustainable Design Assessment report at condition 6; 
(d)	Any modifications required by the Arborist Report at condition 11. 
(e)	Length and height clearance of the tandem car parking space area. 
(f)	Specifications of the proposed car lift, including platform width and minimum height clearance.
(g)	Amended timber screening to the east elevation first floor master bedroom windows designed to adequately limit downwards views into the adjoining secluded private open space and habitable room windows of the adjoining dwellings in accordance with condition 4.
(h)	Screening to the roof terrace and stair access to adequately limit views into the adjoining secluded private open space of No. 206 Page Street in accordance with condition 4. 
(i)	Screening to the first floor level courtyard to the proposed master bedroom amended to adequately limit views into adjoining secluded private open space and habitable room windows in accordance with condition 4. 
(j)	Full details of external finishes in accordance with condition 3.
(k)	Details of the proposed plantings, irrigation and maintenance of the proposed roof gardens.
All to the satisfaction of the Responsible Authority. 
No Alterations  
2	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority, unless the Port Phillip Planning Scheme exempts the need for a permit.  
External Finishes 
3	Before the development starts (other than demolition or works to remediate contaminated land), a full schedule of materials, finishes and paint colours, including colour samples (colour samples in a form that is able to be endorsed and held on file), must be submitted to, be to the satisfaction of, and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit. 
Privacy Screens – Cross-Sections Required 
4	Before the development starts (other than demolition or works to remediate contaminated land), cross section elevation drawings of the screens to the first floor master bedroom, first floor courtyard and the rooftop terrace must be submitted to, be to the satisfaction of, and approved by the Responsible Authority.  The drawings must: 
(a)	Be drawn to scale and fully dimensioned; 
(b)	Clearly delineate any solid parts of the screen and any louvre or batten parts of the screen; 
(c)	Clearly illustrate how any louvre or batten arrangement will adequately limit sightlines into neighbouring properties’ private open space and windows. 
(d)	Show the exact width and thickness of each louvre or batten, the exact spacing between each louvre or batten and a section detail from behind the screen demonstrating that views of neighbouring private open space and windows are adequately limited. 
Privacy Screens Must be Installed  
5	Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building and thereafter maintained to the satisfaction of the Responsible Authority.  
Landscape Plan
6	Prior to the endorsement of plans to comply with Condition 1, a landscape plan must be submitted to an approved by the Responsible Authority to its satisfaction. When approved the plan will be endorsed and form part of the permit. The plan must be drawn to scale and must detail the following: 
(a)	Details for the construction of rooftop landscaping.
(b)	Irrigation and drainage specifications. 
(c)	Section drawings and construction specifications as appropriate.
(d)	Maintenance resume associated with the upkeep of the roof garden and green roots.
Updated Sustainable Design Assessment 
7	Prior to plans being endorsed under condition 1 of this permit, an updated Sustainable Design Assessment (SDA) must be submitted to and approved by the Responsible Authority.  The updated SDA must be generally in accordance with the SDA submitted with the application titled ‘Low Impact Development Consulting’ dated 19 December 2019 but modified to address the following: 
(a)	Improvements made to all habitable rooms to achieve natural cross flow ventilation. 
(b)	Commitment to double glazed windows in all habitable rooms. 
(c)	Energy – provide a Nather’s modelling and split systems to be within one star of best available.
(d)	Rainwater tank and raingarden to be indicated on the architectural drawings and tank size consistent between SMP, BESS and STORM. 
(e)	Nomination of bicycle parking on the architectural plans. 
(f)	Location of waste bins nominated on architectural plans. 
(g)	Urban Ecology – incorporate a green wall or green façade to claim a credit in the BESS. 
Where alternative ESD initiatives are proposed to those specified in this condition, the Responsible Authority may vary the requirements of this condition at its discretion, subject to the development achieving equivalent (or greater) ESD outcomes.   
When approved, the updated SDA will be endorsed and will then form part of this permit.  The ESD initiatives in the endorsed SDA must be fully implemented and must be maintained throughout the operational life of the development to the satisfaction of the Responsible Authority. 
Implementation Report for Environmentally Sustainable Design 
8	Prior to occupation of the development approved under this permit, an ESD Implementation Report (or reports) from a suitably qualified person or company, must be submitted to and endorsed by the Responsible Authority. The Report must confirm that all ESD initiatives in the endorsed SDA and WSUD report have been implemented in accordance with the approved plans to the satisfaction of the Responsible Authority.   The ESD and WSUD initiatives must be maintained throughout the operational life of the development to the Satisfaction of the Responsible Authority.   
Construction Management Water Sensitive Urban Design  
9	The developer must ensure that throughout the construction of the building(s) and construction and carrying out of works allowed by this permit;  
(a)	No water containing oil, foam, grease, scum or litter will be discharged to the stormwater drainage system from the site;  
(b)	All stored wastes are kept in designated areas or covered containers that prevent escape into the stormwater system;  
(c)	The amount of mud, dirt, sand, soil, clay or stones deposited by vehicles on the abutting roads is minimised when vehicles are leaving the site.  
(d)	No mud, dirt, sand, soil, clay or stones are washed into, or are allowed to enter the stormwater drainage system.  
(e)	The site is developed and managed to minimise the risks of stormwater pollution through the contamination of run-off by chemicals, sediments, animal wastes or gross pollutants in accordance with currently accepted best practice.  
Walls on or facing the boundary 
10	Before the occupation of the development allowed by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority.  Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority.  Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority. 
No equipment or services  
11	No plant, equipment or domestic services (including any associated screening devices) or architectural features, other than those shown on the endorsed plan are permitted, except where they would not be visible from a street frontage (other than a lane) or public park without the written consent of the Responsible Authority. 
Arborist Report 
12	Before the development starts, a report and plan by a suitably qualified Arborist to comply with AS 4970 - 2009 Tree protection on development sites setting out how the existing trees within the rear secluded private open space of No. 208 Page Street will be protected during construction, must be submitted to, approved by and be to the satisfaction of the Responsible Authority.  When approved the report and plan will be endorsed and form part of the permit.  The tree protection measures outlined in the report must be complied with to the satisfaction of the Responsible Authority. 
Applicant to Pay for Reinstatement
13	Before the occupation of the development allowed by this permit, the applicant/owner must do the following things to the satisfaction of the Responsible Authority: 
(a)	Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.  
(b)	Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.  
Time for Starting and Completion  
14	This permit will expire if one of the following circumstances applies:  
(a)	The development is not started within two (2) years of the date of permit issue.  
(b)	The development is not completed within four (4) years of the date of permit issue.  
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

- End of conditions -