VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment division	vcat reference No. P11106/2021
Permit Application no. 1078/20	
CATCHWORDS	
Section 82 of the Planning & Environment Act 1987; Stonnington Planning Scheme; Neighbourhood Residential Zone Schedule 2; Heritage Overlay Schedule 382; Construction of extension to Dwelling; Demolition; Alteration of access to a road in a Transport Zone; Shading; Bulk; Daylight access; Sunlight Access. 	

APPLICANTs	Timothy John Day, Kate Traeger, Desmond and Takayo Deckker	
responsible authority	Stonnington City Council	
referral authority 	Transport Victoria	
RESPONDENT	Terry Sullivan	
SUBJECT LAND	249 Williams Road
SOUTH YARRA  VIC  3146	
DATE OF HEARING	22 February 2022	
DATE OF ORDER	11 July 2022	
CITATION	Day v Stonnington CC [2022] VCAT 798	

Order
Permit granted
1	In application P11106/2021 the decision of the responsible authority is varied.
2	In planning permit application 1078/20 a permit is granted and directed to be issued for the land at 249 Williams Road, South Yarra in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Partial demolition and alteration and additions to a dwelling in a Heritage Overlay;
•	Alteration of access to a road in a Transport Zone 2; and 
•	Construction of an extension to a dwelling in a Neighbourhood Residential Zone.
3	The responsible authority is directed to issue a planning permit in accordance with this order. 

Alison Slattery
Member			

Appearances
For applicant/s	Ms Bethany Rote town planner of Metropol Planning	
For responsible authority	Mr Tom Edwards, town planner 	
For referral authority	No appearance	
For respondent	Mr Terry Sullivan 	

Information
Description of proposal	The proposal includes the construction of ground and first floor additions to the rear of the existing dwelling.  Of note and consequence in this application for review, the upper level is proposed to extend 7 metres to the rear, accommodating a bedroom and a balcony that faces south to the site at 247 Williams Road, from which the review applicants hail.  The extension at this upper level is located on the southern boundary to a height of 3.96 metres above which a 1.7 metre, obscure glazing balustrade is located.  The total height of the wall on this boundary is 5.66 metres, which is 2.01 metres greater than the existing wall on the boundary.     	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Stonnington Planning Scheme 	
Zone and overlays	Neighbourhood Residential Zone Schedule 2 (NRZ2)
Heritage Overlay Schedule 382 (HO382)	
Permit requirements	Clause 32.09-5 Construct or extend a dwelling on a lot less than 500 square metres
Clause 43.01-1 Construct a building or construct and carry out works 
Clause 52.29 Alter access to a road in a Transport Zone 2	
Relevant scheme policies and provisions	Clauses 15, 21.06, 22.04, 22.18, 22.23, 52.29, 54 and 65 	
Land description	The site is located on the western side of Williams Road, around 230 metres to the south of the intersection with Toorak Road.  The site is currently occupied by a double storey, stucco rendered dwelling.  The site contains a crossover to the majority of the front boundary to Williams Road, with a garage located with zero street setback to the southern portion of the frontage.  The site has a front boundary dimension of 7.62 metres and a maximum depth of 39.62 metres for a total site area of 301.9 square metres.  The site includes negligible slope.  The site contains a variety of fruit trees and shrubs to the rear consistent with a garden setting.  
Surrounding sites in Williams Road generally include single dwellings of up to two storeys and multi unit development of up to three storeys, such as at the property directly to the south at 247 Williams Road.  Dwellings are of varying ages.  
The site is well located in close proximity to fixed rail in trams and trains, has good access to shopping, and open spaces, schools and community facilities are close by. 
Vegetation in the area is varied with some properties including front and rear planting and modest street trees.	
Tribunal inspection	The Tribunal inspected the site and surrounds after the hearing.   	

Reasons
What is this proceeding about?
1	Terry Sullivan applied to the Stonnington City Council for a permit to develop the land at 249 Williams Road, South Yarra for the partial demolition of the existing two storey dwelling and extension at ground and first floor levels with a balcony facing the site to the south at the first floor.  
2	Council approved the proposal in a Notice of Decision to Grant a Permit dated 31 May 2021.  This position is based on Council’s view that the scale and massing of the design shows proper regard to the character of the neighbourhood and provides appropriate side and rear setbacks.  Council contends that the development also complies with the objectives of ResCode, particularly shading, daylight to windows and access to northern light.  In this way the Council has suggested the development responds well to local policy, including heritage policy.
3	Review applicants (residents of 247 Williams Road apartment building to the south) do not share the position of Council and hold concerns regarding shading of open spaces, and limitations of daylight and sunlight to windows.  The review applicants, through Ms Rote, disagree with Council and assert that the design has not considered the constraints of the site and is not site responsive.  Their concerns relate primarily to amenity issues rather than those of a character nature.  
4	Mr Sullivan, for the permit applicants, argued that the areas of non-compliance with the standards of ResCode are overstated by residents and contends that the proposal meets the objectives of ResCode.  It is his contention that the PPF and local policies lend support to the proposed development.  Mr Sullivan submitted that the extent of shading, bulk, daylight and sunlight access is not unreasonably impacted by the proposed extension.  
5	There having been no question of the impacts of the development on the heritage character or the neighbourhood character, the issues are discrete in that they relate to the impacts of the development on the amenity of the properties to the south at 247 Williams Road.  
What are the key issues?
6	The key issues for determination are:
a.	Are the amenity impacts of the development reasonable?  Does the development achieve a satisfactory level of compliance with Clause 54 (ResCode)?
7	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions about the applicable policies and provisions of the Stonnington Planning Scheme, I have decided to vary the Council’s decision.  My reasons follow.
Are the amenity impacts of the development reasonable?  Does the development achieve a satisfactory level of compliance with Clause 54 (ResCode)?
8	Ms Rote submitted that the extent of the built form was unreasonable and sited too close to the common boundary with the site to the south.  This, she suggested, would have an unreasonable impact on the enjoyment of both the open space and access to light from windows.    
Character 
9	Williams Road has experienced pressure for change, with more contemporary infill design apparent, replacing the older single dwelling stock, such as is evident with the three storey apartment style development directly to the south of the site at 247 Williams Road.  The emerging pattern of development is that large sites that are not subject to heritage constraints no longer accommodate single dwellings, rather, this pressure is brought to bear by way of multi-unit development.  These factors, along with the sites location close to reasonable public transport options and neighbourhood shopping explain why the infill character is that of large two to three storey scale, expansive built form, as evidenced in the surrounding area.  
10	I find that the siting, scale and massing of the proposed development is generally a reasonable response to the character of the neighbourhood, with the exception of the inclusion of the balcony area at the upper level, and provides opportunities for landscaping in line with the expectations of the PPF, local policy and the Neighbourhood Residential Zone and Heritage Overlay.  
11	That said, the review site includes heritage constraints that would otherwise militate against wholesale demolition and robust change.  It is within this milieu of increased form and density, that any new development ought be cognisant of the need for protection of amenity on adjoining properties, which, adjacent to apartment style developments, is harder to protect in some circumstances.  Such circumstances might include the location of an apartment building to the south, and with secluded private open spaces and windows within close proximity of the common boundary.  These are constraints that must be taken into consideration in any new development on a site to the north of such a concentrated apartment typology.  Such constraints are evident in this context.  
12	I have not been satisfied that the maximum height of the wall on the boundary of 5.66 metres, being 3.96 metres of wall and 1.7 metres of balustrading to the balcony is reasonable.  During my site visit to units 2 and 3 of 247 Williams Road I noted the current circumstances where the secluded private open spaces were constrained by the existing boundary treatment which is almost 4 metres.  This wall on boundary currently serves to create a sense of enclosure, and limits sunlight penetration into these open spaces.  I have not been satisfied that further reduction of the penetration of light into these areas is warranted.  Nor have I been persuaded that the result in bulk of the balustrading would be reasonable.  To that end, I will require a condition of permit that removes the balcony component of the development.  This will serve to remove the need for a 1.7 metre high balustrade on the boundary, which would otherwise constrain the open spaces of units 2 and 3 at 247 Williams Road and cause unreasonable shading.  
13	As a result of the deletion of the balcony and balustrade, conditions 1b and 1c will be deleted, as they include requirements relating to the balcony and balustrade.  Additionally, conditions will be included relating to the screening of the windows (previously doors) to the southern elevation of the upper level bedroom.  
14	I am satisfied that although a variation to ResCode Standards is still sought, the development satisfies the objectives of ResCode, subject to the removal of the balcony and balustrade.  I say this for the following reasons:
a.	The maximum height of the addition (to the bedroom) is 8.1 metres and is set back 2.3 metres from the common boundary.  This is sufficiently set back such that impacts from increased shading will be reasonably limited, with much of the new shade falling on the roof of the ground floor of the dwelling on the review site.
b.	Views to the upper level form will be minimised due to the narrow depth of the open spaces of units 2 and 3 of 247 Williams Road, in conjunction with the height of the boundary wall.  This wall serves to intervene to views of the upper level, such that increased experience of bulk will be reasonable.  
c.	With the balcony removed, the development responds well to the scale of the buildings on the immediately adjoining properties to the north, south and east.  I am satisfied that the scale of the building will not dominate the Williams Road streetscape as the two storey scale responds well to the inconsistent built form scale in the street, with built form ranging from one to three storeys.  I am satisfied that the development is appropriately graduated both down the length of the site and within the streetscape in response to this recent emerging construction typology where built form is evident in rear yards.  
d.	Subject to the removal of the balcony and balustrade I am persuaded that the development is appropriately positioned on the site so as to respond to the predominant characteristics of the neighbourhood, those being provision of built form with good side and rear setbacks and generous frontages.  
e.	I find that the development of the land as proposed responds appropriately to PPF and local policy objectives and will not have a detrimental impact on the future character of the area, as envisaged in local policy (Clause 22.23).  
f.	The development will not have an unreasonable impact on the street setback.
g.	The built form reflects the contemporary form sought within Heritage Policy, clearly delineating the new additions from the existing heritage dwelling.  
h.	I am satisfied that, subject to the removal of the balcony and balustrade, the proposed side and rear setbacks respect the existing neighbourhood character and limit the impact on the amenity of existing dwellings. 
i.	There is no sense of a ‘green spine’ to the rear yards abutting the review site due to the proliferation of multi-unit development in the street.  The development does not offend against this.  
j.	The removal of the balcony and balustrade will help protect north facing windows within 3 metres of the site.  
k.	The site coverage is 45.4% and is generous.
l.	The permeability is 27.5% which is reasonable in this urban context.
m.	Infrastructure is readily available with the area having been well established for residential development over more than a century. 
n.	Cross ventilation is reasonable.  Northerly oriented windows are provided to the dwelling’s habitable areas.  Northern light is available to open spaces and living areas.  
o.	Provision has been made for storage.  
p.	Bins can be stored in outdoor areas.  
q.	Overlooking is minimised with screening and sill heights at first floor to 1.7 metres above FFL where required.  A condition of permit will be included that requires the sliding doors to the upper level bedroom (previously accessing the balcony) to be changed to windows and to be screened in accordance with Standard A15.  
r.	Provision of open space complies with the Standard.
s.	I see no sources of noise that are located close to boundaries, such as mechanical devices.  
t.	Subject to conditions, I find that the development incorporates a reasonable design that adequately protects the amenity of the surrounding properties.
15	Subject to conditions, I am satisfied that the proposed extensions to the dwelling are reasonably articulated, sited and designed in a manner that is in keeping with the scale and typology of dwellings in the neighbourhood now and into the future.  In this way, I am satisfied that the objectives of Clause 54 have been satisfied.
Conclusion
16	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Alison Slattery
Member			

Appendix A – Permit Conditions

Permit Application No	1078/20	
Land	249 Williams Road, South Yarra	

What the permit allowS	
In accordance with the endorsed plans:
•	Partial demolition and alteration and additions to a dwelling in a Heritage Overlay;
•	Alteration of access to a road in a Transport Zone 2; and 
•	Construction of an extension to a dwelling in a Neighbourhood Residential Zone.	
Conditions
1.	Before the commencement of the development, one (1) copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plans (advertised in February 2021) but modified to show:

a)	Deletion of the vehicular gate at the property entrance or any vehicular gate being set back a minimum of 6 metres from the property boundary.
b)	The balcony and balustrade deleted.
c)	The south facing doors of the easternmost bedroom at the upper level changed to windows. 
d)	Compliance with Standard A15 of Clause 54 (Overlooking).
e)	Any modifications as required by Condition 3. 

All to the satisfaction of the Responsible Authority. 

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.
 
3.	Concurrent with the endorsement of plans, the applicant must provide a Water Sensitive Urban Design Response addressing the Application Requirements of the Water Sensitive Urban Design Policy to the satisfaction of the Responsible Authority.  All proposed treatments included within the Water Sensitive Urban Design Response must also be indicated on the plans. The response must be generally in accordance with the plans (advertised in February 2021) but modified to show:

a)	A maintenance checklist for the rainwater tank summarising the key treatment system elements, inspection and maintenance tasks and frequency. 
b)	A brief statement outlining construction measures to prevent litter, sediments and pollution entering the stormwater system. The statement should include the types of measures required to be implemented on site (such as adoption of ‘Keeping our stormwater clean’ guide by Melbourne Water and typical measures suggested). 

4.	The project must incorporate the Water Sensitive Urban Design initiatives detailed in the endorsed site plan and/or stormwater management report.
 
5.	Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking as required by the relevant Standard A15 of Clause 54.04-6 and in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.

6.	Prior to the occupation of the approved extension, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority.

7.	This permit will expire if one of the following circumstances applies: 

a)	The development is not started within two years of the date of this permit. 
b)	The development is not completed within four years of the date of this permit. 

In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the Responsible Authority within the prescribed timeframes for an extension of the periods referred to in this condition.

– End of conditions –