VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1043/2020
Permit Application no. PLN/App20/037	
CATCHWORDS	
Wangaratta Planning Scheme; Section 82(1) Planning and Environment Act 1987; Neighbourhood Residential Zone; heritage place; contributory building; heritage streetscape; amenity considerations; response to local housing policy.     	

APPLICANTs	Bruce Johnstone & Others	
responsible authority	Wangaratta Rural City Council	
Referral Authority	Country Fire Authority	
RESPONDENT	North East Survey Design	
SUBJECT LAND	6 Crisp Street
WANGARATTA VIC 3677	
HEARING TYPE	Hearing	
DATE OF HEARING	19 April 2021	
DATE OF ORDER	31 October 2021	
CITATION	Johnstone v Wangaratta Rural CC [2021] VCAT 1230   	

Order

1	In application P1043/2020, the decision of the responsible authority is affirmed.
2	In planning permit application PLN/APP20/037 a permit is granted and directed to be issued in accordance with the endorsed plans and the permit conditions in Appendix A.
3	The permit allows a two lot subdivision, demolition of outbuildings and front fence, construction of a carport, roadworks and removal of vegetation.

Frank Dawson
Member			

Appearances
For applicants	Mr Willem Drent, counsel instructed by Ms Chelsea Campagna of Campagna, Gray & Mallinder.	
For responsible authority	Mr Jack Francis, town planner and Mr Jack Pickering, town planner.
Mr Martin Ireland (observing).	
For respondent	Ms Karen Watson of North East Survey Design.
Mr Peter Joyce in person.	

Information
Description of proposal	A two lot subdivision, demolition of outbuildings, the construction of a carport, roadworks and removal of vegetation.
The proposal is to retain the existing dwelling on the land within proposed Lot 1, construct a car port on Lot 1 and create a second lot at the rear, with access to both lots via a common property driveway along the eastern side of the land.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Wangaratta Planning Scheme.	
Zone and overlays	Neighbourhood Residential Zone – Schedule 1 (NRZ1).
Heritage Overlay (HO20).
Bushfire Management Overlay – Schedule 1 (BMO1).	
Permit requirements	Clause 32.09-3 (a permit is required to subdivide land).
Clause 43.01-1 (a permit is required to subdivide land; demolish a building; construct or carry out works; undertake roadworks that change the appearance of a heritage place and remove, destroy or lop a tree).
Clause 44.06-1 (a permit is required to subdivide land).	
Land description	The land is on the northern side of Crisp Street, approximately 45 metres west from Murdoch Road in Wangaratta. The land has a frontage to Crisp Street of 18.29 metres, a depth of 50.29 metres and a total area of approximately 920m2.
The site is generally flat, and contains a single storey weatherboard dwelling with a hipped roof of corrugated iron. There is a carport attached to the eastern side of the dwelling at the rear and a shed located within the rear garden.
Adjacent development consists of two single storey brick dwellings to the east at numbers 1 and 3 Millard Street and a single storey brick dwelling to the west at 8 Crisp Street. The property to the rear at number 1 Harper Street has a covered building next to a swimming pool in the rear garden, adjacent to the northern rear boundary of the subject land.
Crisp Street is a wide street containing established street trees and generally single storey dwellings set behind front gardens.	
Tribunal inspection	The Tribunal inspected the subject land and the surrounding area.   	

Reasons

what is this proceeding about?
1	 In June 2020, the Rural City of Wangaratta determined to issue a Notice of Decision to Grant a Permit (PlnApp20/037) for a two lot subdivision, demolition of a carport, roadworks and removal of vegetation at 6 Crisp Street Wangaratta. Objectors to the proposal request the Tribunal to review the Council’s decision.
2	In deciding to support the proposed subdivision, Council addresses the key issue of whether the subdivision of the land is consistent with the heritage character of the local area. The subject land is within the Heritage Overlay – Schedule HO20, described in the Council’s submission as:
The Water Tower District, Allan, Alexander and Lynton Courts, Crisp, Harper, Meldrum, Moore and Warby Streets and Murdoch Road. It also identifies that an incorporated plan applies to Schedule 20, that being the ‘RCOW HO Permit Exemptions Plan.’ The Exemptions Plan identifies Schedule 20 as being a heritage precinct.
3	I note the heritage citation for the Water Tower district (prepared in 2011) considers the area as a ‘coherent residential area’. The key heritage aspects are nominated as;
.. architecturally significant homes and high quality streetscapes.
4	The dwelling on the subject land at 6 Crisp Street is considered ‘contributory’ to the precinct. Specific reference is given to significant street trees in Crisp Street that contribute to the heritage character of the precinct. During my inspection, I noted that the street trees in Crisp Street remain a significant landscape element of the streetscape.
5	In relation to the proposed subdivision, the Council submission states at paragraph 7.3:
Council’s position is that the proposal provides for an additional residential lot which can be developed without adversely impacting heritage values. Future development of Proposed Lot 2 would require a planning permit and therefore Council would have the opportunity to assess any future proposal.
6	In their submission, the applicants for review set out the following grounds for objection:
•	The proposed two-lot division for the purposes of creating a new dwelling contravenes the heritage overlay and detracts from the neighbourhood character and identity. 
•	The proposal to reposition the carport to the rear of the current dwelling along with the subdivision with proposed second dwelling and carport will significantly increase traffic, noise and pollution for the adjacent lots relative to their current level of amenity. 
•	The proposed subdivision and any development will create considerable draining issues for the adjacent lots given the current ground levels and runoffs. The negative impact of the development on the surrounding properties of storm water runoff will not be adequately managed within any proposed permit condition. 
key issues 
7	The two key decision guidelines for consideration of a subdivision in the Heritage Overlay at Clause 43.01-8 of the planning scheme are:
•	Whether the proposed subdivision will adversely affect the significance of the heritage place.
and
•	Whether the proposed subdivision may result in development which will adversely affect the significance, character or appearance of the heritage place.
8	I agree with Council that these are the key guidelines for my consideration of this matter. However, in my reasons, I have also considered the issues raised by the objectors in relation to amenity (traffic, noise and pollution) arising from the prospect of a second dwelling on Lot 2 and management of storm water runoff.
9	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regard to the applicable policies and provisions of the Wangaratta Planning Scheme, I have decided to affirm the Council decision and grant a permit.  My reasons follow.
heriTage significance
10	All of the properties along the north side of Crisp Street between Roger Street to the west and Murdoch Road to the east are listed as contributory to the heritage significance of the Water Tower precinct. The nearest individually significant building is on the south-west corner of Crisp Street and Murdoch Road (number 2 Murdoch Road), diagonally opposite the subject land. This individually significant building presents a side boundary to Crisp Street, with a section of timber fence on the opposite side of the road from the subject land.

Figure 1: Proposed subdivision - 6 Crisp Street, Wangaratta

Figure 2: Existing dwelling - 6 Crisp Street, Wangaratta

11	Council’s consideration of the planning application included an internal referral to Ms Deborah Kemp, Council’s heritage advisor. Ms Kemp provides the opinion that the proposed subdivision is problematic because it limits the appropriate redevelopment of the existing dwelling on the land.
In particular, Ms Kemp notes the proposed subdivision will create a ‘new’ lot of 381m2.  Ms Kemp explains:
This marked reduction in the rear area will have the effect of virtually removing the capacity for any redevelopment that includes north facing living with an integrated alfresco area.
12	I note the heritage advice is dated 2 November 2019 and recommends two options; either refusal of the application, or to increase the rear boundary of Lot 1 a further 6 metres. Ms Kemp considers moving the rear boundary of Lot 1 will;
..give the heritage place the capacity to have a full north facing living and with a double carport set against the boundary. The 6-metre set back will ensure that there is sufficient sun penetration into the rear of this building and will provide some assistance with its energy ratings.
13	The proposed plan of subdivision before the Tribunal is dated 9 April 2020 and shows Lot 1 is 420m2 and Lot 2 to the rear is 371m2. The common property driveway is 129m2.
14	On the above plan (shown at Figure 1), the space to the north of the existing dwelling within Lot 1 contains a double carport of 6 x 6 metres and a secluded private open space area with the dimensions of 6 x 7.09 metres (42.54m2). My interpretation of Ms Kemp’s advice is that an acceptable amendment to the proposed subdivision is to move the rear boundary of Lot 1 back an additional 6 metres to;
 ..give the heritage place the capacity to have a full north facing living and with a double carport set against the boundary. The 6-metre set back will ensure that there is sufficient sun penetration into the rear of this building and will provide some assistance with its energy ratings. 
15	I draw the conclusion that Ms Kemp is suggesting the rear boundary be moved a further 6 metres to the north; that is, in addition to the 6 metre space between the rear verandah of the existing dwelling and rear boundary of Lot 1 shown on the application plans. I deduce this to be the case because as a result of this change, Ms Kemp calculates the size of the rear Lot 2 will decrease to approximately 242m2. 
16	Putting to one side the suggested amendment to the proposed lot sizes, Ms Kemp concludes that the proposed subdivision should be refused on two grounds:
i.	Dwellings such as 6 Crisp Street are generally redeveloped with a view to providing a sustainable living area and one that provides amenities that are not generally found in this construction period. Good heritage management should not restrict the capacity for modern amenities – such as sustainability and open plan living. This has become an accepted feature of most heritage places and accepted as being sustainable heritage management.
The accepted method for the redevelopment of most heritage places is for this to occur at ground level. If this capacity is reduced the only option remaining is to build a second storey for the increased floor area.
ii.	It has been a consistent approach with the subdivision of heritage places to ensure that there is scope for redevelopment to occur at the rear without compromising the architectural character and scale of the existing building. The cultural significance of this precinct is predicated on its 20th century residential character, and in particular the architecture and design.
17	The above reasons for refusal are of limited assistance to my assessment of this proposal, as they put forward assumptions that are not accompanied by supporting evidence. I agree with Ms Kemp that if the proposal included the prospect of expanding the existing dwelling to provide for ‘modern amenities’, the available space at the rear of the existing dwelling is constrained. There is also the option that additional space could be in the form of a double storey extension that incorporates the double garage and does not detract from the contributory significance of the building when viewed from the street. 
18	At point (ii) above, Ms Kemp refers to a consistent approach to the subdivision of heritage places to allow space for redevelopment without compromising the existing building. 
19	The options in point (i) are speculative and they are not before the Tribunal in this application. I also question the contention in point (ii) that creating space at the rear of heritage buildings is necessarily the ‘consistent approach’ to the subdivision heritage places. 
20	In this case, there is no proposal for development other than the creation of a car port. The heritage issue is not that the existing building is individually significant, rather, it is contributory to the significance of the heritage place; that being a residential area which includes architecturally significant homes and high quality streetscapes. 
21	Accordingly, the focus of my attention is on whether the proposed subdivision will detract from the contribution the existing building makes to the heritage place. 
22	Firstly, the proposed Lot 2 is at the rear of the existing dwelling with the southern boundary set back nearly 30 metres from the street frontage. Given this setback distance, combined with the screening effect of the existing dwelling, I find the potential use of Lot 2 for a new dwelling is not detrimental to the heritage place for the reasons that the existing dwelling remains intact within the streetscape and any new building on Lot 2 is unlikely to have unacceptable visual prominence when viewed from the street. Also, as mentioned earlier, any new dwelling will require a planning permit.
23	Secondly, the relocation of the double carport behind the existing dwelling, combined with a north facing secluded private open space area of 43m2 in addition to the existing rear verandah is sufficient to maintain good solar access. The existing dwelling contains three bedrooms, with room sizes and an internal configuration similar to a contemporary residential unit or town house. I consider restoration of the existing building remains a viable housing option, particularly in the context of local housing policy in the Wangaratta Planning Scheme at Clause 21.07-1, which notes that most of the housing in the municipality is detached housing and:
There is an identified need for more compact housing forms that is unlikely to be achieved without planning intervention.
24	The above issue is supported by the objective:
To provide for a diversity of housing stock in the Wangaratta Urban Area to meet the varying needs of the local population.
In this case, I consider the above objective can be fulfilled without detracting from the heritage value of the streetscape in Crisp Street.
25	Finally, in relation to the proximity of the individually significant building at 2 Murdoch Road, diagonally opposite the subject land, I find that due to the width of Crisp Street and the fact that the site of the individually significant dwelling presents a side boundary to Crisp Street, the proposed subdivision will not diminish the heritage significance of 2 Murdoch Road.
amenity considerations
26	The objectors to the proposal submit that the existing carport;
.. does not affect 1 and 3 Millard Street or 8 Crisp Street.
However, the objectors consider that the proposed subdivision will create an additional dwelling plus an additional carport that will;
..significantly increase traffic, noise and pollution for the adjacent lots.
27	The objectors submit the addition of up to four vehicles using the eastern driveway will be detrimental to the amenity for the adjoining occupants. Concern is also expressed that with occupancy of two dwellings on the site;
.. the back of the lots on the eastern boundary would no longer have the same privacy, sense of intimacy and amenity that have existed since their inception.
28	I find the creation of an additional lot and the development consequences that may arise from the additional lot is unremarkable in an urban context and unlikely to cause an unacceptable loss of residential amenity for adjoining residents. 
29	In relation to traffic, I note that the proposed subdivision has been designed and assessed by Council to have the capability for all vehicles to enter and leave the site in a forward direction. This is a departure from the circumstance of other properties in the immediate area, where with one exception, vehicles are required to back onto the street.
drainage
30	The objectors to the proposal also raised an issue with respect to drainage problems arising from the proposed subdivision, stating:
There are great concerns that the disclosed significant ground disturbance, repositioning of the carport and subdivision for the purposes of creating a new dwelling and double carport will create considerably more drainage issues for the adjacent lots resulting in further unnecessary expense for the landowners.
31	I note that permit conditions 9 and 10 for the subdivision contain comprehensive requirements for the management and discharge of storm water from the subdivision. I find the drainage requirements stipulated by the responsible authority in the permit conditions are acceptable.
conclusion
32	For the reasons given above, I have decided to affirm the Council’s decision and grant a permit. Except for a small change to the sequence of conditions, the permit conditions in Appendix A to my Order are unchanged from the conditions included in Council’s Notice of Decision to Grant a Permit dated 11 June 2020.

Frank Dawson
Member			

Permit Notes

Although my order does not include the ‘Notes’ suggested by the Council, such advisory information may be included in the permit that the Council is directed to issue.

Appendix A – Permit Conditions

Permit Application No:	PlnApp20/037	
Land:	6 Crisp Street, Wangaratta	

What the permit allows	
A two lot subdivision, demolition of outbuildings and front fence, construction of a carport, roadworks and removal of vegetation in accordance with the endorsed plans.	

Conditions:

1.	Before the commencement of works or vegetation removal, 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 detailed. The plans must be generally in accordance with the plans submitted with the application but modified to show:

a)	Details of front fence removal;
b)	Details of tree removal or lopping; and
c)	An amended Bushfire Management Plan in accordance with the Country Fire Authority condition.

2.	The subdivision, demolition works, road works, carport and vegetation removal as shown on the endorsed plans must not be altered or modified except with the prior written consent of the Responsible Authority.

3.	Before the issue of a Statement of Compliance all buildings marked for demolition on the endorsed plans must have been demolished, and the construction of the carport as shown on the endorsed plans must be completed, to the satisfaction of the Responsible Authority.

Mandatory Subdivision Conditions

4.	The owner of the land must enter into an agreement with:

a)	A telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and
b)	A suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
5.	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:

a)	A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and
b)	A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

6.	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time.

7.	All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.

8.	The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.

Technical Services Conditions - Drainage
9.	Before the issue of a Statement of Compliance the permit holder must satisfy the Responsible Authority that:

a)	A legal point of discharge has been established within the boundary of each lot and connected to the external drainage network according to Infrastructure Design Manual (IDM) standards without reducing the flow capacity or structural integrity of the external network.
b)	All stormwater runoff originating from or transferred through each lot in an 18% Annual Exceedance Probability (AEP) rainfall event will be collected and conveyed by underground pipes to a legal point of discharge
c)	All stormwater runoff originating from or transferred through the subject property in a 1% AEP rainfall event will be collected and conveyed to a satisfactory destination, without adversely affecting any person, infrastructure or natural features in or beyond the lot.
d)	When approval has been given for stormwater to be discharged to an open drain, the outlet has an approved concrete surround.
e)	A stormwater management plan including sufficient on-site detention to limit peak discharge from the developed site in an 18% AEP rainfall event to the corresponding predevelopment level has been submitted and approved by the responsible authority.

10.	Before construction begins, drainage plans and computations, prepared in accordance with IDM procedures and criteria, must be submitted to the Responsible Authority for approval.
Technical Services Conditions - Access
11.	Before the issue of a Statement of Compliance the permit holder must satisfy the Responsible Authority that:
a)	A vehicle crossing providing each lot with safe and convenient access to and from a suitable public road has been designed, constructed, sealed and drained to IDM standards.
b)	All common property driveways must be constructed, drained and sealed according to IDM standards to the boundary of each lot.
c)	Vehicles can enter and leave each Lot travelling forward, using no more than a three-point turn.

Technical Services Conditions - Construction
12.	Before the issue of a Statement of Compliance all areas and underground services disturbed in the course of the works must be restored to their original condition, to the satisfaction of the Responsible Authority.
Country Fire Authority Condition
13.	An amended bushfire management plan (BMP) must be submitted to and endorsed by the Responsible Authority. The BMP must be substantially in accordance with the Drawing No.: M6989_ODP, dated 24th February 2020 and must show the following bushfire protection measures, unless otherwise agreed in writing by the CFA and the Responsible Authority:

a)	Defendable space (Lot 2 only) 
Show an area of defendable space to the property boundary where vegetation (and other flammable materials) will be modified and managed in accordance with the following requirements:
•	Grass must be short cropped and maintained during the declared fire danger period.
•	All leaves and vegetation debris must be removed at regular intervals during the declared fire danger period.
•	Within 10 metres of a building, flammable objects must not be located close to the vulnerable parts of the building.
•	Plants greater than 10 centimetres in height must not be placed within 3m of a window or glass feature of the building.
•	Shrubs must not be located under the canopy of trees.
•	Individual and clumps of shrubs must not exceed 5 sq. metres in area and must be separated by at least 5 metres.
•	Trees must not overhang or touch any elements of the building.
•	The canopy of trees must be separated by at least 5 metres.
•	There must be a clearance of at least 2 metres between the lowest tree branches and ground level.
b)	Construction standards (Lot 2 only)
Buildings designed and constructed to Bushfire Attack Level (BAL)  12.5.
c)	Water supply (Lot 2 only)
•	Show 2,500 litres of effective water supply for fire fighting purposes which meets the following requirements:
•	Be stored in an above ground water tank constructed of concrete or metal.
•	Have all fixed above ground water pipes and fittings required for firefighting purposes made of corrosive resistant metal.
•	Provide an outlet for occupant use.  
Permit Expiry
14.	This permit will expire if any of the following apply:
a)	The subdivision plan is not certified within two years of the original issue date of this permit.
b)	A Statement of Compliance is not issued within five years of the certification of the plan.
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 -