VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P311/2021
Permit Application no. 11/2020	

Applicant	Ann-Marie Sutherland	

Responsible Authority	Port Phillip City Council	
SUBJECT LAND	50 Foote Street, Albert Park	
HEARING TYPE	Hearing	
DATE OF HEARING	28 May 2021	
DATE OF ORDER	3 June 2021	
CITATION	Sutherland v Port Phillip CC [2021] VCAT 579	

Order

1	The decision of the responsible authority is varied.  
2	The Tribunal directs that Permit No. 11/2020 must contain the conditions set out in the permit issued by the responsible authority on 13 January 2021 with the following modifications:
(a)	Condition 1 is amended to read:
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 electronic copy provided.  The plans must be generally in accordance with the plans submitted with the application but modified to show:
a) 	Location of the water tanks as defined in the STORM report that accompanied the original application.
b) 	The visible sections of the new wall facing 48 Foote Street to be finished in a light colour to the satisfaction of the responsible authority.
c) 	The visible section of the ground floor facing 52 Foote Street to be in a light colour to the satisfaction of the responsible authority.
d) 	No greater than 25 per cent transparency for the permanently fixed vertical batten screens to a minimum of 1.7 metres above floor level on the northern and southern elevations of the upper terrace. 
e) 	A cross section elevation drawings of the screens must be submitted to and approved by the responsible authority.  The drawings must:
i. 	Be drawn to scale and fully dimensioned.
ii. 	Clearly delineate any solid parts of the screen and any louvre or batten parts of the screen.
iii. 	Clearly illustrate how any louvre or batten arrangement will prevent sightlines into neighbouring properties’ private open space and windows.
iv. 	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 precluded.
3	The responsible authority is directed to issue a modified permit in accordance with this order.    

Christopher Harty
Member			

Appearances
For applicant	Mr Rob McKendrick, Town Planner from Property & Planning Partners Pty Ltd
Ann-Marie Sutherland observing	
For responsible authority	Dr Robyn Clinch, Town Planner	

Information
Description of proposal	Partial demolition, alterations and additions including single and double storey extensions and roof terrace at the rear of the existing dwelling.	
Nature of proceeding	Application under section 80(1) of the Planning and Environment Act 1987 – to review the conditions contained in the permit. 	
Planning scheme	Port Phillip Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1 (NRZ1)
Heritage Overlay Schedule 442 – Albert Park Residential Precinct/Part Montague Precinct (HO442)	
Permit requirements	Clause 32.09-5 to construct or extend one dwelling on a lot less than 300 square metres
Clause 43.01-1 to demolish a building and to construct a building or construct or carry out works  	
Relevant scheme policies and provisions	Clauses 15, 21.05, 22.04, 22.13, 32.09, 43.01, 54, 65 and 71.02   	
Land description	The subject land at 50 Foote Street, Albert Park (site) is generally located on the west side of the street with a frontage of 5.54 metres, depth of 30.38 metres and overall area of 170 square metres.  The site is bounded by a laneway 3.7 metres in width to the rear.  The site is occupied by a single storey timber Victorian cottage with a contemporary rear extension.  There is an area of private open space at the rear and vehicular access from the rear laneway.   
The site adjoins a double front single storey Victorian era dwelling to the south at 52 Foote Street and to a single storey Victorian cottage with a single storey addition to the north at 48 Foote Street.	

Reasons
1	I delivered reasons for my decision orally at the conclusion of the hearing consistent with the Tribunal’s practice in the Short Cases List and this summary is provided containing the reasons for the decision.  
2	This is an application brought by Ann-Marie Sutherland (applicant) to review conditions imposed by Port Phillip City Council (Council) on a permit no. 11/2020 issued on 13 January 2021 for the partial demolition, alterations and additions including single and double storey extension and roof terrace at the rear of the existing dwelling at 50 Foote Street, Albert Park (site).
3	The conditions in dispute relate to the requirement for amended plans and include:
Condition 1 (a)
No built form to encroach on the neighbouring property at 52 Foote Street.
Condition 1 (c) 
New upper floor wall facing 52 Foote Street to be angled away from the boundary such that Standard A10 is met.
Condition 1 (f) 
Screening measures to the upper floor window above the lightcourt on the southern elevation and to the northern and southern sides of the upper terrace.  All screening measures must obscure views to a height of 1.7m above finished floor level and be fixed to a height 1.7m above finished floor level.
Condition 1 (h)
The setback of the wall of the ensuite on the northern elevation (facing 48 Foote Street) at first floor to be modified to meet the requirements of Standard A10 with associated internal redesign.
4	I have been provided with a detailed description of the review site and its environs, the proposal, the planning scheme provisions and applicable policies.  It is not necessary for me to repeat that material other than to record that:
•	The site is located in a residential area in Foote Street, Albert Park within a Neighbourhood Residential Zone Schedule 1 (NRZ1) and within Heritage Overlay 442 (HO442) relating to the Albert Park Residential Precinct/Part Montague Precinct, which I note is identified as ‘Significant’ in the precinct.  
•	The site comprises a single storey timber Victorian cottage with a contemporary extension at the rear.  There is an area of private open space at the rear and access to the site for a vehicle from a rear laneway.  
•	Generally, the residential area exhibits an intact heritage streetscape character typical of inner suburban areas.   
5	Council advised that generally, the conditions were imposed in response to objections raised from neighbouring properties to the north and south of the site concerning visual bulk and overlooking associated with the first-floor extension.
6	Council’s response to the review of the conditions was that:
•	Regarding Condition 1(a), it was originally imposed to assure the objectors that there would be no encroachment over site boundaries.  It was a response to the original objection that was not withdrawn following amendments to the plans.  Council does acknowledge however that the amended decision plans do not show any encroachment of built form over the boundaries and accordingly, Council concedes the condition could be deleted.
•	Regarding Conditions 1(c) and 1(h), Council’s initial response was that these related to compliance with Standard A10 under Clause 54.04-1 with respect to side setbacks of the first-floor addition to the abutting land to the north and south of the site.  They were a response to original objections from either neighbour concerning visual bulk.  The extent of non-compliance with Standard A10 amounts to 520mm from the southern wall of the first-floor master bedroom and ensuite and 680mm from the northern first floor ensuite.  Council admits that compliance with the conditions may result in the need for a re-design of the first-floor addition.  Although Council reiterated that visual bulk should be reduced, it conceded that treatment of the walls by way of a light colour may be acceptable.  
•	Regarding Condition 1(f), relating to overlooking, it appears the Council is seeking confirmation that first floor level windows and the terrace area can in fact achieve limiting overlooking.  The condition is a standard imposition Council uses to ensure prevention of overlooking.  Council also suggested that horizontal battens may be more effective at preventing overlooking than the proposed vertical battens.  Generally, it suggests that the condition should seek to achieve the requirements of Standard A15 under Clause 54.04-6.   
7	The applicant contended that the conditions are onerous and unnecessary.  It says Conditions 1(a) and 1(f) are already demonstrated by the plans to be met.  Conditions 1(c) and 1(h), it says deliver an unacceptable outcome which do not reflect the situation in inner suburban areas where sometimes compliance with ResCode standards are not appropriate and not possible and should be more aligned with an assessment having regard to the ResCode objectives.
8	At the commencement of the Hearing, the applicant referred to letters received from the adjoining neighbours to the north and south of the site at 48 and 52 Foote Street respectively stating that they agree to the deletion of Conditions 1(h) and 1(c) respectively.  Council’s response was that it concedes that these conditions can be deleted given the now lack of concern from both adjoining properties. 
9	The applicant also agreed with Council’s revised position.
10	Having regard to these arguments, I find the conditions are to be varied.  
11	Condition 1(a) is deleted as the plans clearly show no encroachment over site boundaries.
12	Conditions 1(c) and 1(h) are deleted based on the agreement of Council and the applicant that they are no longer necessary given the written acceptance of adjoining landowners of 48 and 52 Foote Street to their removal.  I also have formed the view that impacts from visual bulk are attenuated by the combination of setbacks and variation of cladding materials and colours. 
13	Condition 1(f) is amended to confirm that timber vertical battens screening either side of the upper terrace are permanently fixed and provides no more than a 25% transparency.  This is in accordance with the objective of Clause 54.04-6 to limit and not prevent overlooking and with the provisions of Standard A15.  Whether the screening battens should be vertical or horizontal is not referenced in the planning scheme and I accept the applicant’s view that vertical battens on the upper floor act to provide a contrast in design regarding the heritage aspects of the more horizontal cladding form found at ground level of the dwelling.  I also consider overlooking potential to the south will be limited due to the combination of setback and transient nature of use of the stairwell entry to the terrace and master bedroom area and to the north due to the close juxtaposition with the adjoining dwelling. 
14	Given these changes and noting the inner suburban location and small size of the site and surrounding properties and the presence of the existing dwelling where it is often difficult to achieve perfect compliance with residential development standards, I am satisfied an acceptable outcome can be achieved. 
15	For the above reasons I direct that Condition 1 in the Permit is amended.

Christopher Harty
Member