VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11351/2021
Permit Application no. 5/2020/224/1	
CATCHWORDS	
Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	

Applicant	Chin Fang X’Lingson & X’Lingson Family Trust	

Responsible Authority	Bayside City Council	
Respondents	Li Zhang, Jiacheng Gu & Others	
	Nina Carlei, Marco Carlei & Others	
SUBJECT LAND	Unit 1 - Unit 2, 9 North Road
BRIGHTON  VIC  3186	
HEARING TYPE	Hearing	
DATE OF HEARING	16 November 2021	
DATE OF ORDER	17 November 2021	
CITATION	X'Lingson v Bayside CC [2021] VCAT 1383	

Order

1	The decision of the responsible authority is varied.  
2	The Tribunal directs that planning permit 5/2020/2241 must contain the conditions set out in planning permit 5/2020/2241 issued by the responsible authority on 13 August 2021 with the following modifications:
(a)	Conditions 1b and 1v are deleted.
3	Conditions in the planning permit are renumbered accordingly.
4	The responsible authority is directed to issue a modified planning permit in accordance with this order

Laurie Hewet
Senior Member			

Appearances
For applicant	Mr S Martin, town planner	
For responsible authority	Mr Ziqi Xi, town planner	
For respondent	Shirley Wang and Yanping Gong.	

Information
Description of proposal	Construction of a two storey multi-dwelling building over a basement car park including a front fence and a roof deck	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Bayside Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 3
Development Contribution Plan Overlay Schedule 1
 Design and Development Overlay Schedule 1	
Permit requirements	Clause 32.09-6 (Neighbourhood Residential Zone) – Construction of two or more dwellings on a lot
Clause 43.02-2 (Design and Development Overlay Schedule 1) – Construct a building or construct or carry out works.	
Land description	The site is located on the north side of North Road.  It has a frontage of 16.18m and a depth of 66.98m, with an area of 1083m2.  A dwelling currently occupies the site.  
The site is in an established residential area characterised by a mix of period dwellings, robust, modern infill development and medium density housing.	

Reasons

1	This is an application to review conditions placed on a permit issued by the Responsible Authority for the construction of a double storey multi dwelling development at 9 North Road, Brighton. The conditions in dispute are:
1b	Site coverage to be reduced to 50% in accordance with Standard B8 (Site Coverage) of the Bayside Planning Scheme. 
1v	The setback of the first-floor eastern elevation from the living area of apartment 3 to bedroom 1 of apartment 4 with the exception of the lobby area be increased by 750mm from the eastern boundary.
2	In relation condition 1b I advised the parties during the hearing that I was satisfied that the proposed site coverage of 51.9% is acceptable and a reduction of the site coverage to 50% is not required to achieve an acceptable outcome.  I have reached this conclusion because the character of this neighbourhood is influenced by a preponderance of large dwellings with high site coverages typically more than 50%.  In this context the reduced site coverage sought by Council would make no perceptible contribution to the proposal’s neighbourhood character response.
3	In relation to condition 1v the Council submits that the proposed increased setback is required to limit the proposal’s impact on the amenity of the dwelling abutting the review site to the west.  The Council submits that there is a visual bulk impact that would be reduced by the increased setback. The Council also submits that the increased setback would achieve a better integration into the character of the neighbourhood.
4	The residents of the dwelling to the west express concerns about the proposal’s amenity impacts in the form of overlooking, overshadowing, loss of daylight and visual bulk.  They say the increased setback required by condition 1v should be retained to reduce those amenity impacts to an acceptable level.  
5	I am satisfied the proposal is acceptable and the increased setback is not required because:
•	From a neighbourhood character perspective, the increased setback applies to a side boundary which is not visible from the public domain.  The setback has no perceptible impact on the character of the neighbourhood.
•	The proposal does not contribute to unacceptable amenity impacts on the dwelling to the west because:
o	The shadow diagrams demonstrate that the proposal complies with standard B21 of Clause 55 Overshadowing of private open space. The relevant Clause 55 objective is therefore met. 
o	The proposal complies with standard B19 daylight to existing windows.  The relevant Clause 55 objective is therefore met. 
o	Conditions 1d and 1r of the permit require all balconies, first floor windows and terraces be screened to comply with Standard B22 of Clause 55 Overlooking.  This condition is not disputed by the applicant and the relevant objective of Clause 55 is therefore met.  
o	The proposal does not comply in part with the varied Standard B17 of schedule 3 to the Neighbourhood Residential Zone (NRZ3), which relates to side and rear setbacks.  The departure from the varied standard is however acceptable because the non-compliant part of the eastern side wall abuts a generally non-sensitive side setback service area of the neighbouring dwelling which is in part roofed (to the rear).  The neighbouring property’s first floor habitable room window (a bedroom) aligns with the proposal’s lift core and has a physical separation of between 5.859m and 6.854m, which is quite generous. It is also relevant that the proposal is generously compliant with the State wide standard B17 of Clause 55.  This is relevant because compliance with that standard is an indication that the amenity impacts of the setback are aligned with those considered to be universally acceptable.  
conclusion
6	It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be varied.
7	The permit will include the conditions contained in the Permit issued by the responsible authority with conditions 1b and 1v deleted. 

Laurie Hewet
Senior Member