VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P735/2020
Permit no. P745/2013	
CATCHWORDS	
Section 87A of the Planning & Environment Act 1987; Port Phillip Planning Scheme;  
Amend permit (Existing three-dwelling development):  Visual bulk & amenity impacts	

Applicant	Andreas & Sylvia Padelas	
Responsible Authority	Port Phillip City Council	
SUBJECT LAND	108 Argyle Street
ST KILDA  VIC  3182	
HEARING TYPE	Hearing	
DATE OF HEARING	1 June 2021	
DATE OF ORDER	30 July 2021	
date of correction order	16 November 2022	
CITATION	Padelas v Port Phillip CC (Corrected) [2021] VCAT 734   	

Order
1	Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the application is amended by substituting the following plans filed with the Tribunal:
•	Prepared by:	BN Design	
•	Drawing numbers:	1 to 12	
•	Dated:	22/02/21	
2	The request to amend Planning Permit No. 745/2013 is allowed.
3	Planning Permit No. 745/2013 is amended and an amended permit is directed to be issued for the land at 108 Argyle Street, St Kilda in accordance with the endorsed plans and on the conditions set out in Appendix A.  The amended permit allows:
•	Development of two or more dwellings on a lot in a General Residential Zone and variations to the car parking requirements pursuant to Clause 52.06, generally in accordance with the endorsed plans.

Tracy Watson
Member			
Appearances
For Applicant	Adele Patterson, barrister.	
For Responsible Authority	Emily Marson, solicitor.	

INFORMATION
Description of Proposal	It is proposed to amend planning permit 745/2013.
	
Planning Scheme	Port Phillip.
	
Nature of Proceeding	Application under Section 87A of the Planning and Environment Act 1987 – to consider the request to amend the permit.
	
Zone and Overlay	Clause 32.08 – General Residential Zone, Schedule 1.  Clause 44.05 – Special Building Overlay, Schedule 2.
	
Permit Requirements	Clause 32.08-6 – To construct two or more dwellings on a lot.
Clause 44.05-2 – A permit is required to construct a building or to construct or carry out works.
	
Relevant Scheme, policies and provisions	Includes Clauses 11, 13, 15, 16, 21.03, 21.04, 21.05, 21.06, 21.07, 22.12, 22.13, 32.08, 44.05, 52.06, 55, 65 and 71.02.
	
Land Description	The subject site is located on the northern side of Argyle Street and is developed with three dwellings.  The subject site has a frontage of 14.33 metres and a maximum depth of 41.50 metres.  The subject site is abutted by a laneway on its northern and western sides, and a single dwelling to the east.
	
Tribunal Inspection	17 June 2021.	

Reasons
What is this proceeding about?
1	The development of the subject site with three dwellings is permitted by Planning Permit No. 745/2013 (the Planning Permit), originally issued by the Port Phillip Council on 23 February 2015 at the direction of the Tribunal (Padelas v Port Phillip CC (Correction) [2015] VCAT 116).  Development plans were endorsed by the Council on 23 June 2015 as being in accordance with the requirements of Condition 1 of the Planning Permit.  Subsequent to this, the Council endorsed changes to the original plans, under the secondary consent mechanism afforded by the Planning Permit, in June 2017 and March 2019.  Condition 11 of the Planning Permit (Time for Starting and Completion) has also been extended a number of times, with the development now required to be completed by 26 June 2022. 
2	The subject site has been subdivided into three lots (permitted by Planning Permit No. 384/2015) and the dwellings have been constructed and are currently occupied by tenants.  
3	The as-built development includes a number of areas that do not accord with the Planning Permit and the latest set of the endorsed plans.  Pursuant to section 87A of the Planning and Environment Act 1987, the Tribunal may amend a permit that has been issued at its direction if it considers it appropriate to do so.  Thus, my role is to determine if the amendments sought by the applicant should be allowed based on whether the proposed changes are acceptable on their planning merits.  Although this is a retrospective application, I still need to consider the proposal from a neutral standpoint (that is, neither seeking to punish or reward the applicant), and simply consider the amendments on their planning merits.  
4	The Tribunal has received a number of non-party statements of grounds from nearby residents objecting to the proposed amendments to the Planning Permit.
Do the proposed amendments result in an acceptable planning outcome?
5	Some of the proposed amendments are shown on the plans substituted by the Tribunal, while other proposed amendments are to the wording of Condition 1 of the Planning Permit.  Each of the proposed amendments are itemised and discussed one by one in the following section.  
6	The Planning Permit is sought to be amended by deleting the hot water services from each of the rear garden areas; and deleting the single-width door from each of the garages.  These changes are supported as they are materially inconsequential.
7	The Planning Permit is sought to be amended by replacing the 2000L rainwater tanks for Dwellings 2 and 3 with rain gardens, and the inclusion of an additional Condition 1 requirement as follows:
Any modifications required as a result of the approved Water Sensitive Urban Design Report required by the corresponding condition below.
8	This amendment is supported as the use of a rain garden is an acceptable method of managing stormwater run-off, and allows for Clause 55.03-4 to continue to be met, as well as satisfying the policy objectives of Clause 22.12 of the planning scheme.
9	The Planning Permit is sought to be amended by the inclusion of a further additional Condition 1 as follows:
Inclusion of a note on the development plans which states ‘permeable substate under artificial turf’.
10	This allows for the use of the proposed artificial turf rather than natural grass in the garden areas.  This additional condition is appropriate as it does not impact on the amount of garden area, has a negligible visual impact and preserves the overall site permeability in accordance with Clause 55.03-4 of the planning scheme.
11	The Planning Permit is sought to be amended by increasing the ground floor finished floor levels from 10.70 AHD to 11.00 AHD to each of the dwellings.  This change is shown on the plans substituted by the Tribunal.
12	This amendment is supported as its purpose is to correct a clerical error.  The 300mm increase in the ground floor level was actually approved by the Council via its lawful secondary consent mechanism in June 2017.  This secondary consent was necessary to give effect to the requirements of the Special Building Overlay, Schedule 2 which was introduced in May 2016.
13	The Planning Permit is sought to be amended by deleting the garden sheds from the rear gardens of each of the dwellings and instead providing storage within each of the respective garages.  The proposed storage units are shown in the substituted plans.  Council opposes the deletion of the garden shed from Dwelling 3 as it considers that the proposed storage area within the Dwelling 3 garage is not conveniently accessible.
14	The applicable objective of the planning scheme is at Clause 55.05-6 and is, “To provide adequate storage facilities for each dwelling.”  Standard B30 at Clause 55.05-6 is that, “Each dwelling should have convenient access to at least 6 cubic metres of externally accessible, secure storage space.”  
15	I do not share the Council’s concern that the proposed storage unit in the Dwelling 3 garage is inconveniently accessible because of the size of the garage.  Further, the provision of storage units within garages, is an accepted alternative to providing storage within a garden shed.  See for example, the Tribunal’s findings in YAB Enterprises Pty Ltd v Darebin CC [2019] VCAT 294.  Further, the use of the in-garage storage option provides the necessary rear garden space for the provision of the proposed rain garden to Dwelling 3.
16	I therefore support the applicant’s request to delete Condition 1(a) of the permit which requires, “An area of 6m3 of externally accessible storage space for each dwelling.”
17	The substituted plans show the deletion of each of the canopy trees in the rear gardens of the dwellings, and Council opposes this amendment.  The applicant tabled photographs at the hearing demonstrating that a Magnolia tree has in fact already been planted in each of the rear gardens, albeit in a different location to that shown on the current endorsed plans.  As this tree species has a spreading crown I consider it to be a ‘canopy’ tree.  The retention of these canopy trees can be ensured by modifying Condition 12 of the permit to require the Landscape Plan to show one canopy tree in the rear gardens of each of the dwellings.
18	The Planning Permit is sought to be amended by replacing the aluminium finish to the first-floor balustrades to Dwelling 2 with dark finishes.  The proposed finishes are consistent with the overall design and appearance of the development and do not have an adverse visual impact on the presentation of the building to the street.  This amendment is therefore supported.
19	The final amendment sought is a modification of Condition 1(g) of the Planning Permit.  Currently, Condition 1(g) requires that:
The front wall of the third level of Unit 2 must be setback a minimum of 11.082 metres and the balcony must not be closer than 9.282 metres from the frontage.
20	It is proposed to change this condition as follows:
The front wall of the third level of Unit 2 must be setback a minimum of 11.082 metres and the balcony must not be closer than 8.082 metres from the frontage.
21	In other words, the amendment is seeking to increase the depth of the front balcony of Dwelling 2, from 1.8 metres to 3 metres.  
22	The Council opposes this change, as it says it is contrary to the findings of the Tribunal in Padelas v Port Phillip CC (Correction) [2015] VCAT 116, and will result in unreasonable visual bulk.  Further, the Council submitted that there has been no materially relevant changes to either the planning scheme or the physical context of the subject site which would justify the proposed amendment.
23	The principles in relation to considering retrospective applications from a neutral standpoint are enunciated in Van Egmond v City of Knox (1985) 3 PABR 249.  Nevertheless, I can still take advantage of the existence in reality of the proposed amendment to the balcony to fully understand its visual impact.  This concept is further elucidated in Knox City Council v Tulcany Pty Ltd [2004] VSC 375 in its paragraph 13(b).
24	I think this is particularly relevant in relation to the proposed changes to the Dwelling 2 balcony setback because I was able to assess in ‘real-time’ whether the 8.082 metres balcony setback results in an unacceptable visual impact.
25	Based on my site inspection, I am entirely comfortable that the proposed 8.082 metres front setback to the Dwelling 2 balcony does not result in any unreasonable visual impact.  My reading of the previous Tribunal’s decision is that this Tribunal sought to increase the recessiveness of the upper level of Dwelling 2 by increasing its setback behind the dwelling’s mid-level from 2 metres to 3 metres, resulting in a balcony setback of 9.28 metres and a front wall setback of 11.082 metres.  The important design outcome is that the upper level is recessive relative to the other components of the building, and in how the overall building interfaces with the street.  In this regard, it is the setback to the front wall of the upper level, rather than to the balcony, which is the critical element.  This setback of 11.082 metres remains unchanged.  Further, the materiality of the upper level balcony relative to the materiality of the mid-level of Dwelling 2 assists in enhancing its recessive quality.  Moreover, the increase in the width of the balcony does not impact on its compliance with Standard B22 at Clause 55.04-6 of the planning scheme. 
26	I am therefore satisfied that the objectives at Clauses 55.02-1 and 55.03-1 of the planning scheme are met.  I have therefore modified the relevant Condition 1 requirement accordingly.  
Conclusion
27	For the reasons explained above, an amended permit is directed to be issued.

Tracy Watson
Member			

Appendix A – Permit Conditions (as amended)

Permit Application No:	P745/2013	
Land:	108 Argyle Street
ST KILDA  VIC  3182	

What the permit allows	
In accordance with the endorsed plans:
•	Development of two or more dwellings on a lot in a General Residential Zone and variations to the car parking requirements pursuant to Clause 52.06, generally in accordance with the endorsed plans.	

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 three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
(a)	The height of the front fence reduced to 1.5m high;
(b)	All plant, equipment and domestic services (including air conditioning, heating units, hotwater systems, etc.) which are to be located externally;
(c)	All plan and elevation drawings fully dimensioned, including natural ground level, floor levels, and incremental and total wall and building heights and lengths, with heights to be expressed to Australian Height Datum (AHD) and/or reduced levels;
(d)	Screening of the first-floor front balcony of Unit 3 and first floor rear balcony of Unit 2 in accordance with the provisions of Clause 55.04-6 (Standard B22) of the Port Phillip Planning Scheme. Where louvre or batten screening is to be used, 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 system may allow horizontal or upward views but will prevent downward views to neighbouring properties;
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 direct views of adjacent private open space are precluded, while allowing outlook horizontally and upward from the balcony and/or window.
(e)	Remove the crossing and car space in front of Unit 1 and reinstate the area between the front boundary and the building with landscaping.
(f)	The front wall of the third level of Unit 2 must be setback a minimum of 11.082 metres and the balcony must not be closer than 8.082 metres from the frontage.
(g)	The first floor western elevation of Unit 3 must be setback a minimum of 1 metre from the western boundary for a distance of 7 metres from the building frontage and in addition the balcony must also be setback 1 metre with a screen of 1.7 metres in height on its western elevation.
(h)	The ground floor eastern elevation of Unit 1 must have a light court provided commencing 11.25 metres from the frontage and ending 19.75 metres from the frontage with a minimum depth of 1 metre.
(i)	The first floor of Unit 1 must be setback a minimum of 14 metres from the rear boundary.
(j)	Inclusion of a note on the development plans which states ‘permeable substate under artificial turf’.
(k)	Any modifications required as a result of the approved Water Sensitive Urban Design Report required by the corresponding condition below.
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.
Satisfactory Continuation
3	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Walls on or Facing the Boundary
4	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.
Sustainable Design Assessment
5	Before the development starts (other than demolition or works to remediate contaminated land) a Sustainable Design Assessment that outlines proposed sustainable design initiatives must be submitted to and approved by the Responsible Authority. Upon approval the Assessment will be endorsed as part of the planning permit and the project must incorporate the sustainable design initiatives listed.
Piping and Ducting
6	All piping and ducting (excluding down pipes, guttering and rainwater heads) must be concealed to the satisfaction of the Responsible Authority.
No Equipment or Services
7	Any plant, equipment or domestic services visible from a street (other than a lane) or public park must be located and visually screened to the satisfaction of the Responsible Authority.
Privacy Screens must be installed
8	Privacy screens as required in accordance with the endorsed plans must be installed prior to occupation of the building to the satisfaction of the Responsible Authority and maintained thereafter to the satisfaction of the Responsible Authority.
Vehicle Crossings
9	Prior to the occupation of the building(s) allowed by this permit, vehicle crossings must be constructed in accordance with Council’s current Vehicle Crossing Guidelines and standard drawings and all redundant crossings must be removed and the footpath, naturestrip, kerb and road reinstated as necessary at cost of the applicant/owner to the satisfaction of the Responsible Authority.
Alteration/Reinstatement of Council or Public Authority Assets
10	Before the occupation of the development allowed by this permit, the Applicant/ Owner shall 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 development;
(b)	Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement;
(c)	Comply with conditions (if any) required by the Council or other relevant Authorities in respect of reinstatement.
Time for Starting and Completion
11	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 this permit;
(b)	The development is not completed within two (2) years of the date of commencement of works.
The Responsible Authority may extend the periods referred to if a request is made in writing before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.
Landscape Plan
12	Prior to the commencement of works a landscape plan must be submitted and approved by the Responsible Authority.  The landscape plan must show one canopy tree planted in the front garden area of Dwelling 1 and Dwelling 3, as well as one canopy tree planted in the rear garden area of each of the dwellings.  Once approved the landscaping must be maintained to the satisfaction of the Responsible Authority

- End of conditions -