VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P908/2021
Permit Application no. 584/2020	

Applicant	Jessica Cracknell	
Responsible Authority	Port Phillip City Council	
SUBJECT LAND	105 Graham Street
PORT MELBOURNE  VIC  3207	
HEARING TYPE	Short Case Hearing	
DATE OF HEARING	11 August 2021	
DATE OF ORDER	12 August 2021	
CITATION	Cracknell v Port Phillip CC [2021] VCAT 911   	

Order
1	The decision of the responsible authority is varied.  
2	The Tribunal directs that Permit No. 584/2020 must contain the conditions set out in the permit issued by the responsible authority on 5 May 2021 with the following modification:
(a)	Condition 1(b) is amended to read:
Provision of a 1 .68m eastern setback to the 3.1m length of the first-floor bedroom 3 that extends beyond the wall of the adjoining dwelling at 103 Graham Street and the setback of the first-floor bedroom 3 from the rear boundary increased by 1m with no resultant reduction in any other setback.    

Christopher Harty
Member			

Appearances
For applicant	Mr Andrew Clarke, Town Planner from Clarke Planning Pty Ltd	
For responsible authority	Mr Edward Mahony, Solicitor from Best Hooper Lawyers	

Information
Description of proposal	Part demolition, and construction of buildings and works including alterations and additions to an existing dwelling.	
Nature of proceeding	Application under section 80 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 2 – Neighbourhood Residential Areas – Fine Grain Inner Urban (NRZ2)
Heritage Overlay Schedule 1 – Port Melbourne – Area generally bound by Clark Street to the north, Ingles and Boundary Streets to the east, Pickles Street to the south and Graham Street to the west (HO1)
Development Contributions Plan Overlay Schedule 1 – Port Melbourne Mixed Use Area Development Contributions Plan (Streetscape Works) July 1999 (DCPO1)	
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 11, 15, 16, 21.04, 21.05, 21.06, 22.04, 32.09, 43.01, 54, 65 and 71.02.   	
Land description	The subject land at 105 Graham Street, Port Melbourne (site) is generally located on the southern side of the street with a frontage of 5.37 metres, depth of 37.49 metres and overall area of 196 square metres.  The site is bounded by a laneway to the rear.  The site is occupied by a semi-detached single storey weatherboard dwelling with front verandah and includes a small courtyard and small outbuilding at the rear.     
The site adjoins a dwelling to the south-east with a contemporary two-storey addition and secluded private open space to the rear.  Adjoining to the north-west is a dwelling that forms one of six single terraces in the same row.	

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 Jessica Cracknell (applicant) to review Condition 1(b) imposed by Port Phillip City Council on a permit no. 584/2020 issued on 5 May 2021 for the partial demolition, and construction of buildings and works including alterations and additions to the existing dwelling at 105 Graham Street, Port Melbourne (site).
3	Condition 1(b) in dispute requires amended plans to include:
Provision of a 1.68m eastern setback to bedroom 3 and the overall setback from the rear boundary increased by 1m with no resultant reduction in any other setback.
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 Graham Street, Port Melbourne within a Neighbourhood Residential Zone Schedule 2 (NRZ2) and within Heritage Overlay 1 (HO1) relating to Port Melbourne – Area generally bound by Clark Street to the north, Ingles and Boundary Streets to the east, Pickles Street to the south and Graham Street to the west, which I note is identified as ‘Significant’ in the precinct.  
•	The site comprises a single storey timber dwelling.  There is an area of private open space at the rear and the site abuts a small laneway to the rear.  
•	Generally, the residential area exhibits an intact heritage streetscape character typical of inner suburban areas.   
5	Council advised that generally, Condition 1(b) was imposed in response to an objection raised from the neighbouring property to the south-east of the site concerning visual bulk and overshadowing associated with the first-floor addition.
6	The rear of the first-floor addition includes bedroom 3, which extends beyond the end wall of the adjoining dwelling to the south-east by 3.1 metres.  It is setback from the side boundary to the north-west by 1.01 metres and to the south-east by 1.175 metres.  It is setback from the rear boundary by 5.97 metres and is slightly cantilevered over the ground floor level below with the roofline set lower than the adjacent roofline extension and has an overall height at this point of around 6.83 metres.
7	It is this rear first floor bedroom 3 addition extending past the recent addition to the adjacent dwelling to the south-east and abutting its rear secluded private open space, that is the concern with this matter with amenity impacts arising from visual bulk and overshadowing.
8	The site and adjoining properties have a roughly north-south orientation with the rear yard areas located to the south, which incur impacts associated with existing overshadowing.  This, together with the small sizes of these secluded private open space areas, makes them sensitive to overshadowing impacts from new development.  They are small spaces where any access to sunshine is highly valued.
9	It is within the above context, that Council has imposed Condition 1(b).  Council says it has sought to strike a balance between allowing alterations and additions to the existing dwelling that creates contemporary living within a heritage context, whilst, seeking to lessen impacts on adjoining amenity from visual bulk and overshadowing.
10	The applicant says the effect of the changes sought achieves little effective improvement to either reducing the visual bulk or the extent of overshadowing from the proposal.  The benefit is minor compared to the impact on the useability of bedroom 3 and the effects on the overall design.
11	The applicant says the degree of visual bulk is not substantial and will be commensurate with the wall of the adjoining dwelling to the south-east.  The proposed wall that forms part of the addition will not create a sense of enclosure at 3.1 metres in length and height of 5.85 metres.
12	Regarding overshadowing, the applicant says the net result of Condition 1(b) is that it reduces/improves the shadow outcome by 1.79 square metres at 1pm, 3.24 square metres at 2pm and 1.76 square metres at 3pm.  On average, equivalent to a 2.26 square metres reduction/improvement from 1pm-3pm.  The applicant contends the level of improvement would be imperceptible.    
13	I find that it is true, the secluded private open spaces at the rear of the site and adjoining properties are not sun-bathed.  They are small, narrow areas that receive some sunlight.  Despite this, they are valued areas that remain useable within an inner urban setting where such space, albeit small remains important.
14	I am reminded of the objectives of Clause 54.04-1 regarding side boundary setbacks that seeks to ensure such setbacks limit impacts on amenity of existing dwellings and Clause 54.04-5 regarding overshadowing that seeks to ensure buildings do not unreasonably overshadow secluded private open space.  I note that in instances, such as this one, that, if existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of the standard (Standard A14), the amount of sunlight should not be further reduced.  It highlights the importance of situations, where, although there is less than optimal conditions present with the existing extent of overshadowing, new development should attempt to avoid making conditions worse.
15	I accept the situation that is present, however, I find the combination of small increases in setbacks will assist in lessening the impacts from both visual bulk and overshadowing that, although are small, are meaningful in these circumstances of small inner-city spaces where small improvements are valued.          
16	Having regard to these arguments, I find the condition is to be varied.  I find the focus of the condition should be on bedroom 3.
17	Condition 1(b) is varied to require an increase to 1.68 metres in the setback from the side boundary for only that section of the first-floor bedroom 3 (approximately 3.1 metres) that extends beyond the wall of the adjoining existing dwelling to the south-east and for the rear of the first-floor bedroom 3 to be increased in setback by 1 metre from the rear boundary.
18	Given these changes and noting the inner suburban location and small size of the site and surrounding properties and the presence of existing dwellings where it is often difficult to achieve perfect compliance with residential development standards, I am satisfied an acceptable outcome can be achieved. 
19	For the above reasons I direct that Condition 1(b) in the Permit is amended.    

Christopher Harty
Member