VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1656/2020
Permit Application no.MV/782/2012/C 	
CATCHWORDS	
Retrospective amendments to endorsed plans; rooftop stairwell enclosure; rooftop terrace; balconies on boundaries; extensions to balconies; changes to cladding.	

Applicant	Parkside Developments (Vic) Pty Ltd	

Responsible Authority	Moonee Valley City Council	
Respondents	Ange Panopoulos and Peter Geoffrey Cook	

SUBJECT LAND	43 Raleigh Street
ESSENDON VIC 3040	

HEARING TYPE	Hearing	

DATE OF HEARING	20 September 2021	

DATE OF ORDER	17 November 2021	

CITATION	Parkside Developments (Vic) Pty Ltd v Moonee Valley CC [2021] VCAT 1377 		

Order
1	Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the plans accompanying the application to amend the permit application are substituted by the following plans filed with the Tribunal:
•	Prepared by:	Point Architects	
•	Drawing numbers:	TP04 (Rev. L) dated 18 June 2020, TP05 Rev. O) dated 11 June 2021, TP06 (Rev. N) dated 14 April 2020, TP07 (Rev. N) dated 14 April 2021, TP08 (Rev. M) dated 14 April 2021, TP09 (Rev. O) dated 16 June 2021. TP10 (Rev. M) dated 18 March 2021 and TP11 (Rev. A) dated 18 June 2020.
Finishing Schedule provided by email on 28 August 2021.	
•	Prepared by:	Guiditta De Santis	
•	Drawing numbers:	Landscape Design Revision 1	
•	Dated:	22 April 2015	

2	In application P1656/2020 the decision of the responsible authority is set aside.  
3	Planning permit MV/782/2012/C is amended, and an amended permit is directed to be issued for the land at 43 Raleigh Street, Essendon.  The conditions in Appendix A will apply to the amended permit.

Michael Nelthorpe
Member			

Appearances
For applicant	Ms Roz Wilson, solicitor and urban planner.	
For responsible authority	Mr Callum Bryant, town planner of SongBowden Planning.	
For Ange Panopoulos	Mr Panopoulos in person.	
For Peter Cook	Ms Christine Cook in person.	

Information
Description of proposal	To amend a permit for a three-storey apartment building.	
Nature of proceeding	Application under section 87A of the Planning and Environment Act 1987 – to amend a permit issued at the direction of the Tribunal.	
Planning scheme	Moonee Valley Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1	
Permit requirements	Clause 32.08-6:  to construct two or more dwellings on a lot.	
Relevant scheme policies and provisions	Clauses 02.03, 0.03-1, 02.03-4, 11, 15, 16, 18, 19, 32.08, 55, 65 & 71.02.	
Land description	The site is on the south side of Raleigh Street to the east of its intersection with Nicholson Street.  A recently constructed three-storey apartment building with 21 apartments and basement car parking occupies the site.  
The properties to the west face Nicholson Street, while two narrow dwellings occupy the adjoining sites to the east.
Essendon Primary School is opposite the site.  The former VFL ground – Windy Hill – is diagonally opposite to the north-west.	
Tribunal inspection	11 November 2021	

Reasons
What is this proceeding about?
1	Parkside Developments (Vic) Pty Ltd (‘the Applicant’) seeks retrospective permission for several aspects of an apartment building at 43 Raleigh Street, Essendon.  Contrary to its officers’ recommendation, Moonee Valley City Council (‘the Council’) refused this permission on the following grounds:
a	The proposed roof terrace with result in unreasonable amenity impacts to the adjoining residential properties in relation to overlooking, noise and visual bulk;
b	the access structure is a visually dominant feature that will impact on the amenity of the adjoining properties; and
c	the provision of a new balcony to the west of the access stairs will result in overlooking impacts and visual bulk impacts to the adjoining property to the west.
2	The Applicant seeks a review of this decision.
3	Neighbouring landowners to the east and west have joined this review.  They share the Council’s concerns.  In addition, the neighbour to the east objects to the extension of the balcony for Apartment 19 and the change in materials from brick façade to rendered finish on the ground floor, while the neighbour to the west objects to the retrospective assessment of unlawful works.  
Amended plans
4	The Applicant relies on amended plans that show:
a	The contested amendments to the endorsed plans; and
b	Several changes that the Council would have supported via secondary consent, as being generally in accordance with the endorsed plans.
5	The contested amendments are:
•	Construction of a roof terrace, including an extension of the stair access structure;
•	inclusion of a new balcony to Apartment 16 that is extended to the western boundary;
•	extension of the balcony to Apartment 17 to the western boundary; 
•	extensions to the balcony of Apartment 19 by 0.9m east and 3.7m south; and
•	the rendered finish at ground floor level rather than face brickwork.
6	The changes that the Council would have supported via secondary consent are:
a	The removal of a pergola structure over the pedestrian path on the building’s east side;
b	the relocation of the service cabinet;
c	changes to the front fence;
d	alterations to window sizes and locations;
e	the change from a partially brick façade to a completely rendered façade; and
f	alterations to the mail box structure on the eastern boundary.
7	The Council also supports the removal of the following permit conditions:
a	Condition 1(i) – The pedestrian entry feature to be setback behind the front building line to the satisfaction of the Responsible Authority; and
b	Condition 1(k) – The height of the new 2-metre-high paling fence on the eastern boundary reduced in height and tapered to be no more than 1.2 metres at the street frontage.
8	On this last matter, the Applicant contends that Condition 1(k) should read:  The height of the 2-metre-high fence on the eastern boundary reduced in height to be no more than 1.6 metres north of the pedestrian gate.
What are the key issues?
9	Based on the above, I consider that there are seven contested matters:
•	Is it acceptable to seek retrospective approval for works completed unlawfully?
•	Is the stairwell enclosure to the roof an acceptable planning outcome?
•	Is the roof terrace an acceptable planning outcome?
•	Does the new balcony for Apartment 16 result in an acceptable planning outcome?
•	Does the extended balcony for Apartment 17 result in an acceptable planning outcome?
•	Does the extended balcony for Apartment 19 result in an acceptable planning outcome?
•	Does the change from part-brick clad to completely rendered result in an acceptable planning outcome?
10	I have used the phrase ‘acceptable planning outcome’ to address issues of policy, neighbourhood character, built form, and internal and external amenity.  The ultimate task of the decision-maker is to integrate the policies relevant to these issues and balance conflicting objectives in favour of net community benefit now and in the future.  
11	The balance of conflicting objectives in this case relate primarily to amenity impacts, i.e., do the benefits to occupants of the apartment building outweigh the detriments to neighbouring properties?  There are neighbourhood character issues as well, but the main issues relate to amenity.
12	Inevitably, my findings are not ideal for all parties.  The Applicant would ideally like to keep all the unlawful works, whereas the neighbours would ideally like all the unlawful works removed.  An ‘acceptable’ balance or what I have described as an ‘acceptable planning outcome’often means that neither side gets everything that they want. 
Is it acceptable to seek retrospective approval for works completed unlawfully?
13	At the hearing, Ms Cook could barely contain her fury that the planning process could accommodate the Applicant’s request.  This is understandable given the contrast between this apartment building and its neighbours to the east and west, and the extended and stressful planning process associated with this site.
14	However, the planning process is essentially facilitative.  It encourages new development that is deemed appropriate.  It applies a process of a proposal being made; the neighbours being consulted; the proposal being assessed; and, if approved, then plans being endorsed.
15	In this case, the retrospective approval of the amendments has undergone this process with a difference in that the changes have already been made.  I accept the Applicant’s submissions on these matters and repeat them below:
1.4. 	When a development is undertaken not in accordance with the endorsed plans or planning permit the reasons for such unlawful development is not a planning consideration.
1.5. 	Consistent with the long-established Van Egmond principle [Van Egmond v City of Knox, Bassett & Ors (1985) 3 PABR 249 [250]] the permit applicant ought not be put at a disadvantage, but nor should an advantage be derived from this circumstance. Affirming this principle, Osborne J observed in Knox City Council v Tulcany Pty Ltd [2004] VSC 375 that:
The permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained.
1.6. 	The court also held that this principle:
...	 expressly identifies the paradox that unlawful commencement of a use (or construction of a development) may enable a better appreciation of its impact on its context that plans or other descriptions of a proposal ever could. at [13(b)]
1.7. 	Therefore, the amendment application with respect to 43 Raleigh Street should be considered as if the amendments had not been built but with the Tribunal being able to ‘better appreciate’ the changes.
16	The key points from these paragraphs are:
•	The Applicant’s reason for constructing the unlawful works is not a planning consideration;
•	The Applicant ought not be put at a disadvantage, but should not derive an advantage.
17	Put otherwise, the Applicant runs the risk of having to undo works they have done, with the associated wasted time and cost.
18	This is the approach I have taken when making my findings.
Is the stairwell enclosure to the roof an acceptable planning outcome?
19	Having inspected the site and surrounds, I find that the stairwell enclosure to the roof is an acceptable planning outcome.  It is a minor element of the building and adds only marginally to the building’s impact on the neighbourhood’s character. 
20	I accept that there is an expectation of three storey buildings in this neighbourhood, and that the stairwell enclosure forms a fourth level.  I also accept that it is visible in some views from Nicholson Street.
21	However, there are several tall structures in this part of Essendon, such as the tall two-storey Primary School and the aged care facility to the east.  Apart from that, the taller structures at Windy Hill are also part of the area’s context.
22	On my site inspection, I was also reminded of the variety of built form in this part of Essendon.  Penleigh and Essendon Grammar School, on the opposite side of Nicholson Street, has some highly contemporary buildings and there are some distinctly contemporary dwellings and/or additions amongst the heritage dwellings on the east side of Nicholson Street.
23	In this context, I find the stairwell enclosure is another element in the area rather than a structure that is so discordant that it should be removed.  
24	My decision is also influenced by the status of roof top infrastructure in the Planning Scheme.  It is generally accepted that such infrastructure is not included in an assessment of a building’s height.  It is also accepted that infrastructure, whether it be air-conditioning units, solar panels, NBN antennae or WorkSafe compliant ladders, is commonly located on rooftops.  This infrastructure is screened by metal or timber cladding and is visible, yet it is generally regarded as acceptable, often due to necessity.
25	The amenity considerations at play relate to views from 32, 34 and 36 Nicholson Street.  I find that the visual impact of the stair enclosure is not so great as to warrant its removal.  Primarily, this is due to is small size compared with the three-storeys of the apartment building.  My finding is also influenced by the consistent use of colours and materials, and by the lack of overlooking from this enclosure.
Is the roof terrace an acceptable planning outcome?
26	My assessment of the roof terrace is made with reference to the same issues of context and neighbouring amenity.
27	I find that the context of the aged care facility to the east and the School opposite allows in principle support for a roof terrace.  From the street, the height of the aged care facility helps to absorb this rooftop feature, while the activity associated with the School (the noise of children playing and the bustle and activity that occurs during school drop off and pick up times) assists in accommodating the noise and movement that will occur on this rooftop terrace.  Put otherwise, this site is in a mixed-use area rather than an exclusively residential hinterland.
28	In terms of amenity, I agree with the Applicant that the roof terrace complies with the relevant ResCode standard and is designed to avoid unreasonable overlooking.  On my inspection, I could not see into the habitable rooms or private open space areas of the adjoining properties – at least within the specified 9 metres.  
29	I could see the upstairs windows of the property two doors to the east (beyond the specified 9 metres) but could not see into the room due to the sheen of daylight on the glazing.  I accept that the opposite would occur at night, where there would be clear views from the roof terrace to that room.
30	However, it is a very large roof terrace on a rather deep block.  I find that overlooking is not the sole amenity consideration and I give weight to the neighbour’s concerns regarding intrusive noise and loss of quiet enjoyment at the rear of their properties.  This is primarily the case for the dwellings at 39 and 41 Raleigh Street and at 32 and 34 Nicholson Street.
31	To this extent, I find the roof terrace is ill-conceived and not worthy of a permit as it stands.  I will require it to be reduced in size so that it ends at the southern wall of the stairwell.
32	I also agree with the Council officers’ assessment that some landscaping and fixed furniture must be installed on the roof terrace.  It is unrealistic to keep it as an open space with no facilities and expect residents to carry outdoor tables and/or chairs to and from the terrace.  If this occurred, it is likely that a disorderly array of furniture would remain permanently on the rooftop, and it would most likely be visible from outside the site.  I find that the terrace must be completed so that it is a usable, well designed space.  Further to this, the siting of any future furniture and landscaping must be placed centrally in the space available to discourage residents from gravitating towards the east and west edges of the terrace.  This would provide some relief for the immediate neighbours.
Does the new balcony for Apartment 16 result in an acceptable planning outcome?
33	I find the new balcony for Apartment 16 has unacceptable built form and amenity outcomes.  In a middle-ring suburb like Essendon, it is generally accepted that upper floors of new buildings are set off the boundaries.  This is the common pattern of development in these suburbs, and it shows respect for adjoining properties.
34	Views from the street to this balcony are limited however, this is not really the point.  The lack of space between this apartment building and the neighbouring properties to the west is perceptible when walking along Raleigh Street and it appears incongruous and disrespectful.  It increases the perception that the apartment building occupies too much of its site.
35	This new balcony is not justified by the fact that it sits on the roof of part of the ground floor.  The ResCode standard for side and rear setbacks allows a 3.2-metre-high wall on a boundary (a one-storey wall), then requires the levels above that to be setback from the boundary.  It does not encourage or support a 1.7-metre-high privacy screen above the ground floor wall.
36	The existing vegetation in the rear yard of 34 Nicholson Street also does not justify this balcony.  One must expect that the balcony will last the life of the building (50 to 80 years conservatively), and one must expect that the use of the rear yard of 34 Nicholson Street will change over that time.  It is not acceptable to reduce the amenity of this yard by having a first-floor balcony with associated privacy screens on the fence line.
Does the extended balcony for Apartment 17 result in an acceptable planning outcome?
37	I make the same findings for the same streetscape reasons as I have for the new balcony of Apartment 16.  Extending the balcony of Apartment 17 unduly compresses the space between the apartment building and the neighbouring structures on 36 Nicholson Street and results in an incongruent and unacceptable outcome.
Does the extended balcony for Apartment 19 result in an acceptable planning outcome?
38	This is a question of amenity impacts on the neighbour to the east and of the design of the building.  The neighbour to the east says that the 3.7 metre extension of the privacy screen near their dwelling’s entrance and other rooms encroaches on their privacy.
39	I am not convinced that it has this effect.  The apartment building’s pedestrian entrance creates a reasonable degree of separation next to the entrance to this neighbour’s dwelling and this tall privacy screen is a greater distance from the shared boundary.  It provides the benefit of obscuring any views from the balcony to the entrance and habitable room windows of the neighbour’s dwelling.  The currently endorsed plans do not provide this benefit, as they show a 1.2-metre-high balustrade on the eastern edge of the balcony.  This would allow views in this direction.
40	In terms of building design, retaining the high screen maintains the architectural symmetry of the façade, as the endorsed plans show a 1.7-metre-high privacy screen on the western side – presumably to avoid unreasonable overlooking into the rear courtyards of the adjoining properties to the west.
41	For these reasons, the balcony of Apartment 19 is an acceptable planning outcome.
Does the change from part-brick clad to completely rendered result in an acceptable planning outcome?
42	The neighbour to the east says that changing the façade to full render has diminished the fit within the neighbourhood character.
43	I find this is not a fatal flaw.  I agree with the Applicant that the aged care facility and the new childcare centre further to the east have introduced contemporary buildings into the Raleigh Street streetscape.  These have changed its character, at least by adding to its variety.
44	Apart from this, the rendered finish has the benefit of being consistent across all levels thus emphasising the building’s design.  I would expect that landscaping in the site’s frontage will soften the building’s appearance in time.
what conditions are appropriate?
45	I have amended Condition 1 of the permit to reflect my findings.  Given that the permit allows the buildings and works that are not in dispute as well as the contested issues, I have deleted the conditions that relate to the construction of the building.  These are no longer required given that the building has been constructed.
46	I have retained conditions requiring additional plans or reports, such as the acoustic report or waste management report, because I am not aware if these have been lodged and approved.
47	I have amended the permit expiry date to reflect the extension of time to complete the development allowed by the Council on 16 October 2018.  I note that the permit requires the development to be completed by 12 December 2021, which seems unrealistic given it is less than one month away.
48	I was unable to change this date because no application was made to do so.  In accordance with the expiry condition, the Applicant may seek the Council’s approval to extend this completion date. 
Conclusion
49	For the reasons given above, the decision of the responsible authority is set aside.  I order that Permit MV/782/2012/C is amended in line with my findings.

Michael Nelthorpe
Member			

Appendix A – Permit Conditions

Permit Application No	MV/782/2012/C	
Land	43 Raleigh Street
ESSENDON  VIC  3040 	
Conditions
1	Before the development starts, amended plans (three copies) must be submitted to and approved to the satisfaction of the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the substituted plans, prepared by Point Architects being TP04 (Rev. L) dated 18 June 2020, TP05 Rev. O) dated 11 June 2021, TP06 (Rev. N) dated 14 April 2020, TP07 (Rev. N) dated 14 April 2021, TP08 (Rev. M) dated 14 April 2021, TP09 (Rev. O) dated 16 June 2021. TP10 (Rev. M) dated 18 March 2021 and TP11 (Rev. A) dated 18 June 2020 and associated Finishing Schedule, but modified to show:
(a)	Deleted.
(b)	Deleted.
(c)	Deleted.
(d)	An amended landscape plan showing planted boxes and fixed outdoor furniture generally located centrally on the roof terrace.
(e)	Deleted.
(f)	Deleted.
(g)	Deleted.
(h)	Deleted.
(i)	Deleted.
(j)	The west elevation landscape plan amended to accurately represent the wall associated with the internal stairs.
(k)	The height of the new 2-metre-high paling fence on the eastern boundary reduced in height and tapered to be no more than 1.6 metres at the street frontage.
(l)	Deleted.
(m)	The elevation plans to accurately reflect the approved floor plans. 
(n)	Amendment to the roof terrace so that its southern edge as defined by a Frameless Clear Glass Balustrade 1250mm high abuts the southern wall of the stairwell enclosure and extends to the east to join the existing Frameless Clear Glass Balustrade 1250mm high along the eastern side of the roof terrace.
(o)	The deletion of the balcony area associated with Apartment 16 located along the western boundary.
(p)	Amendment to the balcony of Apartment 17 so that its western edge is a minimum of 1500mm from the western boundary.
Once approved these plans become the endorsed plans of this permit.
2	The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
3	Deleted.
4	Deleted.
5	Service units, including air conditioning units, must not be located on any of the balconies or terrace areas unless appropriately visually and acoustically screened to the satisfaction of the Responsible Authority.
6	Deleted
7	Deleted.
8	The privacy screens as shown on the endorsed plans must be installed prior to the occupation of the building.
9	All piping and ducting, excepting for gutters and rainwater downpipes, above the ground floor storey of the building must be concealed to the satisfaction of the Responsible Authority.
10	Deleted.
11	Deleted.
12	Provision must be made for the drainage of the land including landscaped and pavement areas (including rooftop landscaping and fixed outdoor furniture). The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the Responsible Authority.
13	An on-site stormwater detention drainage system must be installed and maintained on the subject land to the satisfaction of the Responsible Authority.
14	Prior to the installation of the rooftop landscaping and fixed outdoor furniture, an amended drainage layout plan, including stormwater outlets and legal points of discharge, must be prepared and submitted to and approved by the Responsible Authority.
Once approved by the Responsible Authority the plan must be carried out to the satisfaction of the Responsible Authority.
15	Prior to the issue of an Occupancy Permit, all boundary fencing must be erected as per the endorsed plans. The cost of such fencing must be met by the owner and carried out to the satisfaction of the Responsible Authority.
16	The development must be provided with external lighting capable of illuminating access to the basement garage, car parking spaces and pedestrian walkways. Lighting must be located, directed and shielded and of limited intensity so that no nuisance or loss of amenity is caused to any person within or beyond the site to the satisfaction of the Responsible Authority.
17	The garden areas shown on the endorsed plan and schedule must only be used as gardens and must be constructed, completed and maintained in a proper, tidy and healthy condition to the satisfaction of the responsible authority. Any tree or shrub damaged, removed or destroyed must be replaced by a tree or shrub of similar size and variety to the satisfaction of the Responsible Authority.
18	Prior to the occupation of the development hereby permitted, all landscaping, (including trees, shrubs and lawn) must be completed in accordance with any approved landscape plan to the satisfaction of the Responsible Authority.
19	Prior to the commencement of the development, the applicant shall submit a Waste Management Plan to the Responsible Authority for approval. The Waste Management Plan shall be in accordance with the City of Moonee Valley’s “Waste Management Plans – Guidelines for Applicants” and once approved shall be implemented to the satisfaction of the Responsible Authority.
20	This plan must specify that waste disposal/delivery trucks must not reverse out of the basement into Raleigh Street.
21	Prior to the commencement of the development an acoustic report prepared by a qualified acoustics expert must be provided to the Responsible Authority and be to its satisfaction. This report must detail the noise attenuation measures required to all habitable rooms within dwellings 1, 9, 10 and 17 to ensure minimal impacts from noise sources external to that dwelling. The recommendations of the acoustic report must be implemented prior to the completion of the development.
22	The street tree(s) must not be removed or replaced without the written consent of the Responsible Authority. The replacement is to be to the satisfaction of the Responsible Authority. All fees associated with the removal and replacement/replanting of the street tree must be borne by the permit applicant and must be undertaken prior to the issue of an Occupancy Permit to the satisfaction and requirements of the Responsible Authority.
23	This permit as it relates to development (buildings and works) will expire if the development is not completed by 12 December 2021.
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 –