VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1175/2022
Permit amendment Application no. TP-1997-1218/B	
CATCHWORDS	
Section 77 Planning and Environment Act 1987, Amendment to planning permit, refusal to amend permit, overlooking, habitable room, indoor swimming pool, screening.	

Applicant	Ian Jones	

Responsible Authority	Melbourne City Council	
Respondent	Clare Lipe	
SUBJECT LAND	15-21 Acland Street
SOUTH YARRA  VIC  3141	
HEARING TYPE	Hearing	
DATE OF HEARING	8 November 2022	
DATE OF ORDER	22 November 2022	
CITATION	Jones v Melbourne CC [2022] VCAT 1335	

Order
Permit amended
1	In application P1175/2022 the decision of the responsible authority is set aside.  
2	Planning permit TP-1997-1218/A is amended and an amended permit is directed to be issued for the land at 15-21 Acland Street, South Yarra.  The permit is amended as follows.
(a)	New conditions 12) and 13) are inserted to read:
12)	Within 60 days of the date the permit is amended in accordance with the order of the Victorian Civil and Administrative Tribunal in proceeding P1175/2022, an electronic set of plans drawn to scale must be submitted to the Responsible Authority for approval. The plans must be generally in accordance with the plans identified as Drawing Nos. TP02B and TP03A, prepared by Edgard Pirotta Architects, dated 29 October 2021, but modified to show:
a)	The southernmost of the west-facing windows in the master bedroom of Dwelling 4, and both west-facing windows of the south-west bedroom of Dwelling 4 amended to show details of whether the windows are openable, and all of these provided with either:
•	fixed, obscure glazing in any part of the window below 1.7 metre above floor level with any part of the window below 1.7 metres above floor level that is openable, provided in a way that complies with Standard B22 at clause 55.04-6 of the Melbourne Planning Scheme;
or,
•	permanently fixed external screens to a height of at least 1.7 metres above floor level.  The screens must be no more than 25 per cent transparent.
b)	Screening to the west-facing windows to the study of Dwelling 4 which is in accordance with the plans endorsed on 21 June 1999, or is otherwise to the satisfaction of the responsible authority.
The plans must be to the satisfaction of the Responsible Authority, and when approved, will be endorsed and will then form part of this permit.
13)	Except with the written consent of the Responsible Authority, the works on plans endorsed pursuant to condition 12) must be completed no later than six (6) months of the date the plans were endorsed, to the satisfaction of the Responsible Authority.

Alison Glynn
Member	

Appearances
For Ian Jones	Hew Gerrard, town planner of Glossop Planning Pty Ltd.
	
For Melbourne City Council	Craig Murphy, town planner.
	
For Clare Lipe	Drisha Natarajan with Clare Lipe, in person.

Information
Description of proposal	The proposal is to amend an existing permit that allows development of four dwellings on the subject land.  The amendment seeks to alter the endorsed plans in respect of seven upper-level windows associated with dwelling 4 (No. 19 Acland Street).  This includes removing screening to two, study room windows and to a window to a walk-in-robe.  It also seeks to increase the size of four windows associated with two bedrooms.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to amend a permit. 	
Planning scheme	Melbourne Planning Scheme 	
Zone and overlays	General Residential Zone – Schedule 5 (GRZ5)
Design and Development Overlay – Schedule 15 (DDO15)
Heritage Overlay – Schedule 832 (HO832)	
Permit amendment requirements	Section 72 of the Planning and Environment Act 1987 (the Act) allows a person who is entitled to develop the land in accordance with the permit to amend the permit.  The application made to the council, and now under review by the Tribunal is made in accordance with Section 72 of the Act.	
Key relevant scheme policies and provisions	Clause 15.01, 21.06, 22.11, 21.16, 32.08, 55 and 65. 	
Land description	The land, subject to the amendment to the permit comprises a double storey dwelling, that forms one of four, double storey dwellings at 15-21 Acland Street, developed and maintained in accordance with planning permit TP-1997-1218/A.  
The dwelling subject of the amendment includes three habitable rooms (two bedrooms and a study) that have windows facing west.  It also has a window facing west from a walk-in-robe.	
Tribunal inspection	I inspected the review site, notably the upstairs rooms with windows sought to be amended, as well as the adjoining property at 23-25 Acland Street, after the hearing on 15 November 2022.  The view of the neighbour’s property was from an indoor swimming pool and a narrow area along the intervening boundary to the review site.	

Reasons
What is this proceeding about?
1	Mr Jones (the applicant) is the owner of a dwelling that forms part of four dwellings that were constructed and now maintained in accordance with planning permit TP-1997-1218/A for land at 15 – 21 Acland Street, South Yarra.  This permit includes endorsed plans that show screening to a number of west-facing, upper-level windows and other windows that are not screened but have a sill height of no less than 1.6 metres from finished floor level of the upper level of the dwelling.  The applicant’s dwelling is referred to as Dwelling 4 on the endorsed plans and known as 19 Acland Street.  The west elevation of the endorsed plans shows windows and screening for this dwelling as set out in figure 1 below.

Figure 1 - West elevation of endorsed plans of planning permit TP-1997-1218/A for dwelling 4.  The red line is my notation.
2	The west facing windows in this elevation align with windows as shown in the first floor plan, to the right of figure 2, below.

Figure 2 - Ground and first floor plans of Dwelling 4.  Upper level is to the right.
3	The applicant has applied to the Melbourne City Council (the council) to amend the endorsed plans that form part of this planning permit, in relation to Dwelling 4.  The changes sought are to increase the size of two windows of the master bedroom that face west, increase the size of two windows that face west in the other bedroom (in the south-west corner), and to remove screening to the windows of the study and walk-in-robe.  These changes are illustrated in an amended west elevation that forms part of the amended plans sought to be approved.  I have extracted part of this plan in figure 3 below.

Figure 3 - West elevation of amended plans sought to be endorsed.
4	The council has refused to amend the permit on the basis that the changes will result in unreasonable overlooking to a habitable room of the adjoining property to the west at 23-25 Acland Street (the objector’s property).  The owner of this adjoining property also objects to the changes to the endorsed plans and is a party to the proceeding.  The council’s singular ground of refusal is that:
The development unreasonably overlooks the habitable room windows of the abutting property to the west, failing to meet the objective of Clause 55.04-6 – Overlooking Objective .
5	The key issue in this proceeding is therefore whether the changes proposed to the endorsed plans will result in unreasonable overlooking of the objector’s property.  I find that the amendment sought will result in unreasonable overlooking from the southernmost west-facing master bedroom window, the two study windows and the two west-facing windows of what I describe as the south-west bedroom.  I therefore find that the amended plans should not be approved in their current form.  
6	At the conclusion of the hearing it was discussed that if I was satisfied that the windows to bedrooms could be increased in size, but not without screening, then it would be open to me to amend the permit conditions to provide for a different form of amended plan to be endorsed.  I have adopted this approach.  Given the amendment is to a development that has been completed, the amendment requires a timeframe for the amended works, including screening, to be completed.  The conditions required to be included in the permit by this order allow for this.
7	The reasons for my findings are set out below after I set out some context to decision making and procedural issues raised by parties.
proceedural issues and rulings
Application in context of enforcement proceeding
8	The council set out in its submission that the proposal to amend the existing permit arises from enforcement action being taken against the applicant for making changes to the relevant west-facing windows without planning permission.  As the council also set out, there are established principles for addressing what is a retrospective planning approval.  Notably principles set out in Knox CC v Tulcany Pty Ltd , and following the findings of Van Egmond v City of Knox, Bassett & Ors are that:
the permit applicant should neither be punished nor rewarded for undertaking work before a permit was obtained.
9	As I commented at the commencement of the hearing, it is not my role to address any potential issues of enforcement in the matter before me.  My role is to consider the amendment sought to the permit, as has been applied for, only.
10	References in reasons below to proposed changes to existing windows, is in context that the proposal before me is to amend the existing elements set out in the endorsed plans of the planning permit applying to the review site.  Any physical form of the proposed works already existing on the review site is simply a helpful visual aid to understand what may result from the planning permit amendment, if granted.
Should the amendment be dismissed due to the limits of Section 88 of the Act?
11	The objector submits that 
6.	.. the Applicant’s application should be dismissed as the application is an amendment to an order made by VCAT on 14 May 1999 (Initial VCAT Order) as a result of the Applicant’s breaches of those orders. 
7. 	The subject of the Initial VCAT Order is the same as this proceedings in that the predecessor in title sought to amend the Condition 1 of Permit No TP97/1218 issued by the Responsible Authority. 
8.	As the application is an amendment to an Initial VCAT Order, pursuant to section 88 of the Planning and Environmental (sic) Act 1987 the power to amend a permit issued under section 87 may only be exercised in the circumstances set out in that section. As the permit relates to a building that has already been completed pursuant to an order issued pursuant to section 88, the Tribunal does not have the power to amend the permit 
12	Section 88 of the Act sets out powers to ‘cancel or amend a permit under section 87’ of the Act.  Section 87 provides the Tribunal with power to amend or cancel a permit, as a result of an application made to the Tribunal by a person set out in that section of the Act.
13	The application before me has not been made under section 87.  It is review application made under section 77 of the Act, which is to review the council’s decision to refuse an application made to amend a planning permit under section 72 of the Act.  Section 88 of the Act does not apply to an amendment sought to a planning permit in accordance with section 72 of the Act.
14	At the hearing the objector then also made some oral submission that it would have been more appropriate for the review application to be made under section 87.  As I noted at the hearing there is nothing before me to indicate that that application to amend the permit, made to the council under section 72 is in some way unlawful or invalid.  
will the proposed changes result in unreasonable overlooking?
15	There are two parts of the proposal.  Firstly the proposal is to establish larger windows to the master and south-west bedrooms.  The existing windows to these rooms limit overlooking due to their elevated sill height above the floor level of the bedrooms.  Secondly the proposal seeks to remove existing privacy screens from windows to the walk-in-robe and study.  The screening to these windows shown on the endorsed plans is consistent with the requirement of the existing condition 1d) of the permit that ‘all first-floor screening measures to be installed or designed to be 1600mm above the first-floor level.’
16	I address the two parts of the proposal separately as they involve different nuances in consideration.  In both instances, however, the key issue is whether the proposed changes will result in unacceptable amenity impacts to the objector’s property from overlooking into a window to a room containing a swimming pool.  Before turning to the specific assessment I firstly set out the decision making context of this question.
Decision making context
17	The proposal is to amend an existing permit that establishes the building on the land and contains condition 10 that requires the development to comply with the endorsed plans and conditions of the permit and to be maintained this way to the satisfaction of the responsible authority.  
18	The endorsed plans show screening on the west elevation, to at least 1.6 metres, as required by condition 1d) of the permit.  The permit initially issued by the council on 10 June 1998 included a requirement in condition 1d) for the screening to be 1.7 metres above first floor level.  This condition, along with some other conditions of the permit were the subject of a Tribunal proceeding in Swintons Pty Ltd v Melbourne CC & Ors where, relevant to condition 1d), the Tribunal determined to require screening to 1.6 metres, being the requirement of the Good Design Guide for Medium Density Housing (Good Design Guide) that applied at the time of that decision.  The Good Design Guide also set out that 9 metres was the standard within which overlooking should be limited through use of screening.  In the Swintons decision the Tribunal stated: 
The 1.6 metre standard has been consistently applied and accepted by Councils, the Tribunal, developers and residents for many years and there seems no reason to conclude that people who reside in the City of Melbourne should be regarded as being any different to those who reside elsewhere.  
Furthermore, the separation of the screening from the façade by the landscaped planter boxes proposed on the terraces referred to in Condition 1(c) will effectively remove any potential for viewing over the screens and the Tribunal considers that the height of 1.6 metres will ensure that there will be no unreasonable amenity impact on the neighbouring residents.  
Considering the substantial overlooking that exists in the area from the existing two storey dwellings that were not subject to planning controls, the proposed units will be setting a new standard in this regard and are clearly respectful of neighbouring properties.
19	The endorsed ground floor plan, in figure 2 above, identifies a ‘window’ in the location of the swimming pool room.  The endorsed west elevation then shows bedroom windows with a raised sill height, a study and a walk-in-robe room with screening to at least 1.6 metres, consistent with condition 1d).  I was advised that the swimming pool room has existed for many years, pre-dating the permit for the dwellings at 15-21 Acland Street, but that the window to this room, as show on the endorsed plans, was altered sometime in the mid-2000s.
20	Any change to the existing permit needs to be considered in context of the planning scheme provisions, as they now stand.  The site is located in GRZ5 where pursuant to clause 32.08-6 a permit is required to construct two or more dwellings on a lot or to extend a dwelling if there are two or more dwellings on a lot.  This clause then sets out that a development must meet the requirements of clause 55.  Clause 55 sets out objectives and requirements for two or more dwellings on a lot which replaced the requirements of the Good Design Guide in 2001.  
21	The applicant’s submissions do not dispute the need to consider the provision addressing overlooking as set out in clause 55.04-6, but says that the objective of this clause is met for a number of reasons.  One of the reasons it relies on is that the proposed amendment does not result in any overlooking to a defined habitable room or a defined area of secluded private open space.
22	The relevant standard B22, as set out in clause 55.04-6, is:
A habitable room window, balcony, terrace, deck or patio with a direct view into a habitable room window of existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio should be either:
•	Offset a minimum of 1.5 metres from the edge of one window to the edge of the other.
•	Have sill heights of at least 1.7 metres above floor level.
•	Have fixed, obscure glazing in any part of the window below 1.7 metre above floor level.
•	Have permanently fixed external screens to at least 1.7 metres above floor level and be no more than 25 per cent transparent.
23	The windows that are subject of this application look out over and down into a window of a room that contains a swimming pool.  The applicant submits that the room containing the swimming pool is not a habitable room, nor is it secluded private open space, as defined by the planning scheme.
24	Secluded private open space is defined at clause 73.01 as:
That part of private open space primarily intended for outdoor living activities which enjoys a reasonable amount of privacy.
25	The swimming pool is enclosed by a room that has large opening doors on its western side to the main rear yard of the objector’s property.  However, the pool is in a room that can be enclosed and I agree with the applicant and the council that it is not what would commonly be referred to as ‘open space’ or a space primarily intended for outdoor living.  It is an indoor space, that has doors and windows to face its adjoining outdoor space.  
26	A habitable room is defined at clause 73.01 by exclusion, stating it is:
Any room of a dwelling or residential building other than a bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, stair, lobby, photographic darkroom, clothes drying room and other space of a specialised nature occupied neither frequently nor for extended periods.
27	Parties agree that the key issue in determining if the room containing the swimming pool is a habitable room, being a question of fact, is whether the room is not ‘a space of specialised nature’ that is ‘occupied neither frequently nor for extended periods’.  
28	The applicant submits that the room is of a specialised nature and one that is not used frequently or for extended periods of time.  In support of this position the applicant submits that is relevant that the room is not a room listed in part a) of a definition of a habitable room in the National Construction Code of Australia (NCCA).  This definition of a habitable room is a room that could be considered to be used for ‘normal domestic activities’ and:
includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom;
29	The list is a list of ‘inclusions’ and not exhaustive.  Not being listed as one of the inclusions is also of limited relevance, given it is not the definition used in the planning scheme.  If there is any relevance to the NCCA definition of a habitable room, it is that it uses a similar exclusive list, being:
a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods.
30	There is nothing in the NCCA definition that leads me to a different way of considering the question before me, as required by the planning scheme definition.  
31	Referring to the planning scheme, I find that whether the room is of a specialised nature is not conclusive as the swimming pool it contains would commonly form part of recreation activities.  I also note that using a domestic swimming pool is something that I would consider a normal domestic activity as referred to in the NCCA definition.
32	If I accept the proposition that the room is of a specialised nature, the second part of the consideration is what is critical in this instance, that being whether the room is neither occupied frequently nor for extended periods.  The swimming pool’s location inside a room means it has capacity to be used year-round and frequently.  It is certainly a room I would expect is used for extended periods of time.  
33	I am satisfied that the room is for a recreation use and while it is arguable that it is not of a specialised nature, it is a room that is intended for use for extended periods and may be used frequently.  On this basis I find the swimming pool room is a habitable room and the window on its east side is a habitable room window.
34	There is no dispute that this east-facing window of the swimming pool room is within a 9 metres horizontal distance of the windows that are sought to be amended.  The applicant submits that standard B22 is met as the swimming pool room window is ‘offset’ more than 1.5 metres down, from the windows that are sought to have screening removed.
35	I disagree with this interpretation of the standard.  As commented by the council, the edge of the window refers to the side of the window, as the next dot point of the standard then refers to the ‘sill’ of the window which is the bottom of a window.  Any offset is to the side of the window.  This is confirmed in the fact that the standard refers to the distance being 9 metres, measured at a horizontal distance.
36	Page 22 of the Planning Practice Note 27 – Understanding the Residential Development Standards (ResCode) assists in this understanding.  It includes two relevant diagrams that I have copied at figures 4 and 5 below.  Figure 4 confirms that overlooking into an existing window is any window within the ‘defined area of view’ that it has translated into an illustrative graphic.  It does not exclude overlooking to a window more than 1.5 metres vertically lower than the window that is being assessed.  It is any window within the volume depicted in the diagram.  This extends 9 metres out and then down.

Figure 4 - Applying the Standard: Overlooking into existing windows - Page 22 of Planning Practice Note 27.
37	The offset provision is then illustrated as a window that is more than 1.5 metres from the side edge of another window, as depicted in figure 5 below.

Figure 5 - Applying the standard: offsetting a new window - Page 22 of Planning Practice Note 27
38	If the standard is not met, the decision to be made is whether the objective of clause 55.04-6, to limit views into the habitable window is met, having regard to the decision guidelines set out in the same clause.  These require me to consider:
•	The design response.
•	The impact on the amenity of the secluded private open space or habitable room window.
•	The existing extent of overlooking into the secluded private open space and habitable room windows of existing dwellings.
•	The internal daylight to and amenity of the proposed dwelling or residential building.
39	I have considered these matters, in context of the standard and the objective of clause 55.04-6, for the two different parts of the amendment sought, being the removal of screens and the change to bedroom windows.  
Removal of screens to the study and walk-in-robe
40	The study windows are directly in alignment with the affected habitable room (swimming pool) window.  On inspection of the swimming pool room, it is a room that will be impacted by overlooking from the study if screens shown on the endorsed plans are removed.  I am not satisfied that removing the screening from the study window is an acceptable outcome when assessed against the provisions of clause 55.04-6.  Removing the screen will impact on the amenity of the swimming pool room by allowing views from the unscreened study window into this room.  It is not what I find can be considered ‘limited’ in the context of the standard and objective of clause 55.04-6.
41	The applicant submits I should have some regard to the existing vegetation between the properties that it says affords some protection.  My inspection of the properties confirmed that the vegetation affords little privacy protection but in any event there is nothing in the decision guidelines of clause 55.04-6 requiring consideration of vegetation.  I do not give the vegetation any weight as it is a transitory feature that cannot be relied on.  
42	Retaining the screening to the study will not unreasonably impact the daylight and amenity to the study.  I say this for two reasons:
•	Firstly, the study has been already approved and accepted in its design as a habitable space with the screens in place.
•	Secondly, the screens, as shown on the endorsed plans are to a small ‘Juliette-type’ balcony and are 1.6 metres in height.  Screens to similar windows at the dwelling to the north of 19 Acland Street, comprises louvres that are angled upwards.  This screening enables outward, but not downward views, retaining daylight and some outlook to the rooms.  
43	I therefore find the proposed removal of screens to the study windows is unacceptable and I will not approve the amendment to provide unscreened study windows.
44	I am satisfied that the screen to the walk-in-robe can be removed.  This is because the walk-in-robe is not a habitable room and does not require screening in order to comply with standard B22.  I therefore find the proposal to amend the endorsed plans to remove opaque glazing to the walk-in-robe is acceptable.
Amending windows to bedrooms
45	The proposal is to increase the size of the west-facing windows to both the master and south-west bedrooms so that they will have a minimum sill height of 0.975 from the finished first-floor level and be generally larger, than the windows shown on the endorsed plans in figure 1.  There is no notation on the amended plan to indicate if the new windows will be openable.
46	The endorsed plans, as shown in figure 1 do not dimension minimum sill heights of those windows which are proposed to be modified.  Condition 1d) of the permit required screening to the study windows to be at least 1.6 metres in height and the windows of the master bedroom appear to align with study window screens, at 1.6 metres.  This is depicted by a red line I have marked in figure 1 above.  In figure 1, the existing windows to the south-west bedroom appear to be set slightly higher, at what I estimate is about 1.7 metres from finished first-floor level.
47	The proposed larger window size to both bedrooms increases daylight and outlook to the relevant bedrooms, although in neither instance are the west-facing windows the only source of daylight and outlook from the bedrooms.  The master bedroom has a large, north-facing glazed door and side windows facing a courtyard to its north.  The south-west bedroom has a window in a north-facing side wall.  
48	I note that this north-facing window of the south-west bedroom is not depicted in elevations on the endorsed plans, but it is shown on the first-floor level plan.  This north-facing window has no screening and from inspection appears to have minimal direct view to its neighbour to the west.
49	The council has refused to approve an increase the size of the bedroom windows because it submits that the enlarged windows will result in unreasonable overlooking to the habitable room window of the swimming pool room.  At the hearing, the council acknowledged that it is not opposed to the windows being enlarged, only that such change will lead to unreasonable overlooking.  Therefore if the overlooking was addressed, the council would be satisfied with larger windows to these bedrooms.
50	The applicant’s submission included diagrams setting out the 9 metre view cone of standard B22 from the enlarged windows.  These indicate that Standard B22, is not met, although for the northernmost window of the master bedroom the encroachment into the view cone is very minor.  My inspection correlated with photos provided as part of the applicant’s submission, that there is limited view into the swimming pool window from this northernmost window of the master bedroom.  I am satisfied this window can be made larger as proposed, without screening.
51	The southern window of the west wall of the master bedroom is well within the 9 metre view cone set by the standard and from both my reading of the material provided and my inspection I find is only acceptable if it is screened in a manner that meets Standard B22.
52	My consideration of both the west-facing windows to the south-west bedroom from my inspection and review of material, including the overlooking diagrams provided by the applicant is that the larger proposed windows are only acceptable if they are screened in a manner that meets Standard B22.  This is because these windows do not limit views into the adjoining habitable room window as sought by clause 55.04-6.
will the proposed changes to endorsed plans result in any other unreasonsable impacts?
53	Submissions of the objector question whether the changes, if accepted with additional screening, would result in an incohesive character outcome as they will change what they say is a consistency in window sizes and screening across the western facade 19 and 21 Acland Street.  
54	From my inspection of the site, only glimpses of the west side windows, mostly to the north-west dwelling of the development, at 21 Acland Street, are visible from the street.  The western façade already has a mix of window sizes and screening mechanisms.  I find that a small change to the arrangement of windows and screening to the western façade of the development at 15-21 Acland Street will not result in any unacceptable character or general visual impact outcomes to the street or to neighbours.
need to change conditions
55	At the conclusion of the hearing there was some discussion about a without prejudice, draft condition, that could enable the windows of the bedrooms to be increased in size as sought, but with screening to meet Standard B22.  I have adopted this approach but with modification to address my findings about specific windows.  I have also included clarification that windows need to be identified as being openable or not, and if they are openable, details of how the opened windows maintain screening to avoid unacceptable overlooking to the swimming pool room window.
56	The plans to be endorsed will show works to be implemented as a result of the amendment.  This requires a related new condition to require the works, in accordance with the additional endorsed plans which show the amendments, to be undertaken within a defined time period.  I have nominated six months, given the works are only to apply screening, but this can be modified with the written consent of the responsible authority.  
Conclusion
57	For the reasons given above, the decision of the responsible authority is set aside and the permit is amended, subject to conditions.

Alison Glynn
Member