VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P701/2022
Permit Application no.PP21/0812 	
catchwords
Section 82 Planning and Environment Act 1987; Neighbourhood Residential Zone Schedule 3; Heritage Overlay; Amenity Impacts; Daylight; Overlooking; Walls on boundary; Heritage; Neighbourhood Character.

Applicant	Mingfei Mao	

Responsible Authority	Boroondara City Council	
Respondents	Nicole Rees & David Rees	

SUBJECT LAND	38 May Street
KEW VIC 3101	

HEARING TYPE	Hearing	

DATE OF HEARING	30 January 2023	
date of interim order	31 January 2023	
date of order	13 February 2023	
citation	Mao v Boroondara CC [2023] VCAT 126	

Order
Permit granted
1	In application P701/2022 the decision of the responsible authority is affirmed. 
2	In planning permit application PP21/0812 a permit is granted and directed to be issued for the land at 38 May Street Kew VIC 3101 in accordance with the endorsed plans and the conditions set out in the Notice of Decision to Grant a Planning Permit issued by the Boroondara City Council dated 9 May 2022. The permit allows:
•	Partial demolition and construction of buildings and works associated with an existing dwelling in a Heritage Overlay and on a lot under 500 square metres in accordance with the endorsed plans.

Joel Templar
Member			

Appearances
For Mingfei Mao	Ms Mingfei Mao in person assisted by an interpreter.	
For Boroondara City Council	Mr Nikhil Shah, town planner of Boroondara City Council.	
For Nicole Rees & David Rees	Mr Darren Wong, lawyer of Planology.	

Information
Description of proposal	Partial demolition and construction of buildings and works associated with an existing dwelling in a Heritage Overlay and on a lot under 500 square metres.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Boroondara Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 3
Heritage Overlay Schedule 805	
Permit requirements	Clause 32.09-5 – to construct or extend one dwelling on a lot less than 500 square metres.
Clause 43.01-1 – to demolish a building and to construct a building or construct or carry out works.	
Land description	The site is located on the eastern side of May Street, approximately 96 meters south of its intersection with Wellington Street. It is regular in shape with a width of 6.74 metres and a length of 35.05 metres with an overall area of 236 square metres. The site also has slope of 1.69 metres from east to west.	
Tribunal inspection	30 January 2023 (following the hearing)	

  Reasons
What is this proceeding about?
1	This proceeding concerns a review brought by an objector of the council’s decision to grant a planning permit for the partial demolition and construction of alterations and additions on a lot less than 500 square metres at 38 May Street, Kew.
2	The applicant raised a number of concerns with the proposal including the built form from a heritage and character perspective, impact from overlooking, side setbacks and non-compliant walls on boundaries. The impact of the proposal on the daylight to existing windows was raised as a key concern.
3	At the hearing, the applicant produced new written material that was not pre-filed in accordance with the Tribunal’s previously issued orders. Whilst there was no objection raised by either the council or the respondent to the Tribunal receiving this material, this was on the basis that both parties be provided with an opportunity following the hearing to review the material and provide further written submissions responding to that material. I issued an order accordingly and both parties provided further written material, but the substance of this does not materially alter the submissions of the parties relied upon at the hearing. I have, nevertheless, had regard to that as part of my consideration.
4	The applicant made further submissions following the conclusion of the hearing in two separate pieces of correspondence. As no leave was granted to the applicant to do so, I have disregarded that material.
5	The council and the respondent (permit applicant) made submissions in support of the proposal, including justification for a number of non-compliances with Clause 54 Standards and in relation to the neighbourhood and heritage impacts.
6	I have found that the proposal will be an acceptable one, despite some non-compliances with Clause 54 Standards. My reasons are set out below.
amenity impacts
Daylight
7	The applicant was concerned about the impact the proposal would have on daylight to various existing habitable room windows.
8	There are a number of habitable room windows associated with the applicant’s dwelling that face the review site and are relatively close to the common boundary.

Figure 1: Proposed ground and first floors 
9	The applicant and the council acknowledged that the proposal does not fully comply with the Standard A12 of clause 54.04-3, Daylight to existing windows objective.
10	This standard has two components. The first is a minimum area measuring 3 square metres with a minimum dimension of 1 metre clear to the sky. The second is any new wall more than 3 metres in height opposite an existing habitable room window should be set back at least 50% of the height of the new wall.
11	On both parts to this standard, the proposal does not comply with the standard. A proposal is not required to comply with a standard under clause 54 of the Boroondara planning scheme but must meet the objective. The objective is:
To allow adequate daylight into existing habitable room windows.
12	This objective also includes the following decision guidelines:
•	The extent to which the existing dwelling has provided for reasonable daylight access to its habitable rooms through the siting and orientation of its habitable room windows.
•	The impact on the amenity of existing dwellings.
13	The two sets of windows that the proposal will cause a non-compliance two is a dining room window, approximately halfway along the southern wall of the adjoining the dwelling. The second set is a series of kitchen windows which wrap around the south-eastern corner of the dwelling.
14	The respondent said that the non-compliance to the dining room window is a ‘technical’ non-compliance because the window does not have 1 metre clear to the sky because of an eave. This eave is at the top storey height whereas the window is at ground floor, but there is no ground floor eave directly above this window and so it will still receive ample daylight if the proposal is a constructed. 

Figure 2: dining room window of the applicant’s dwelling with the first-floor eave above.
15	The respondent also said that this room also has other natural light sources as it is part of an open plan arrangement, with windows at the front of the dwelling also providing light to this room.
16	In relation to the kitchen windows, these windows are already impacted by a verandah on the dwelling itself which extends above all of the kitchen windows. The kitchen is also part of an open plan arrangement and has other natural light sources from other windows.
17	The proposal also does not meet the second component which relates to the wall height/set back requirement. The variation to the standard is less than 400mm setback.
18	The review site is a small and narrow site. The Tribunal has found on numerous occasions that small and narrow sites will often, if not always depending on dimensions, have difficulty complying with all ResCode standards but that this should not necessarily be fatal to an application seeking variation from the standards as this would make such sites almost impossible to develop and to bring small homes to modern day living standards.
19	In this case, I find that the variations sought are acceptable. They are not substantial variations and the windows affected have multiple light sources. The dining room window of the applicant’s property also has a large area clear-to-the sky, even though it will not meet the strict application of Standard A15.
20	In addition, the proposal also includes lighter tone colours on the non-compliant wall facing the applicant’s property which will assist with making the space between the two buildings lighter.
21	For these reasons, I find that the impact of the proposal on daylight to existing windows will be acceptable.
Overlooking
22	Concerns were raised about new windows that would potentially offer views into the applicant’s property. The new windows proposed are:
a.	One at ground floor level on the southern elevation of the existing building to be retained.
b.	A new ground floor kitchen window as part of the new addition.
c.	New windows/doors at the rear, ground floor of the new addition on the west elevation.
d.	A series of windows at the upper floor level on the western elevation.
23	There are no new windows proposed at the upper floor level that will allow direct overlooking from the south elevation into the applicant’s dwelling or property.
24	Standard A15 of clause 54.04-6, Overlooking, requires that new windows within 9 metres of existing secluded private open space or habitable windows be screened. 
Standard A15
A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space and habitable room windows of an existing dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio. Views should be measured within a 45-degree angle from the plane of the window or perimeter of the balcony, terrace, deck or patio, and from a height of 1.7 metres above floor level.
25	However, standard A15 also states:
This standard does not apply to a new habitable room window, balcony, terrace, deck or patio which faces a property boundary where there is a visual barrier at least 1.8 metres high and the floor level of the habitable room, balcony, terrace, deck or patio is less than 0.8 metres above ground level at the boundary.
26	The side boundary fence between the review site and the applicant’s property is noted as being 1.9 metres in height on the plans. The proposed floor level of the ground floor in the location of the new ground floor window in the existing building is approximately 0.3 metres above the natural ground level (NGL) and therefore does not require screening. 
27	The new window in the rear addition will be associated with the addition where the floor height above NGL is also approximately 0.3 metres maximum and therefore also does not require screening. This is also the case for the ground floor west elevation windows of the kitchen and dining area.
28	The upper floor windows of proposed Bedroom 3 of the new addition on the west elevation will either be screened, will offer no overlooking beyond the parameters of Standard A15 or will practically offer no unreasonable views under Standard A15.
29	I accept that there is a minor non-compliance with standard A15 as demonstrated in the overlooking diagrams reproduced below from the plans, however, I find the likelihood of someone being able to look into that non-compliant space is minimal. This is consistent with the Objective of clause 54.04-6 and the decision guidelines of that same clause which are, respectively:
To limit views into existing secluded private open space and habitable room windows.
The existing extent of overlooking into the secluded private open space and habitable room windows of existing dwellings.

Figure 3: Overlooking diagram for proposed first floor

Figure 4: Overlooking section demonstrating extent of non-compliance in 40 May Street
30	I therefore find that there will be no unacceptable overlooking.
Walls on boundaries
31	There are no walls on boundaries proposed along the applicant’s boundary. New boundary walls are proposed along the southern boundary, whereas the applicant’s property adjoins the northern boundary of the review site.
32	No objection was received by the council from the property to the south, nor is the owner or occupier a party to this proceeding.
33	The applicant, however, raised concerns with the proposed walls on the southern boundary of the review site.
34	The existing wall on the southern boundary is already non-compliant with Standard A11 by approximately 1.2 meters (in length). 
35	The southern wall on boundary is proposed to be extended an additional 5.8 metres towards the rear. This results in the total wall length on the southern boundary as 23.25 metres, exceeding the length allowed under Standard A11 by 6.6 metres. 
36	Further, the proposed extension to the existing wall on the boundary varies in height from 3.5 metres to 3.7 metres above natural ground level. This results in a variation from the height allowable under Standard A11.
37	The boundary wall is proposed to be constructed adjacent to the neighbour’s outbuildings and partially abutting the larger of those. Therefore, the visual impact of the new wall will not detrimentally impact the amenity from the neighbours SPOS given the current interruption created by the outbuildings. 
38	Further, a recently issued planning permit with endorsed plans exists for the adjoining property to the south, which displays a simultaneous wall to be constructed, and which will extend further towards the rear than the wall proposed in the application now before me.
39	For these reasons, I find that the variation to Standard A11 will be acceptable.
built form – heritage and character
40	The applicant said the proposal was not respectful of the character of the surrounding area and did not respect the heritage character of the existing dwelling.
41	Clause 15.01-5L (Neighbourhood Character) of the Boroondara planning scheme seeks that development makes a positive contribution to the identified preferred character, as described in the relevant Neighbourhood Character Precinct Statement. 
42	The review site is located within Precinct 17, which seeks to (as relevant): 

•	To enhance the landscaped character of streetscapes by providing sufficient space for vegetation. 
•	To maintain the predominantly single storey scale and pitched roof character of the precinct. 
•	To ensure buildings do not dominate the streetscape or disrupt the existing streetscape rhythm. 
•	To ensure building materials and façade articulation integrates with the streetscape. 
•	To maintain the predominant low to medium front fence heights. 
•	To ensure the height and design of front fences are appropriate to the era of the dwelling and integrates with the streetscape 
•	To maintain views of front gardens. 
•	To minimise the dominance of car parking structures. 

43	Clause 15.01-5L also seeks to ensure that within the NRZ3 that upper storeys of dwellings at the rear of lots are recessive and have a reduced footprint to the ground floor. The Neighbourhood Character Precinct seeks to ensure new buildings are composed of facades that contain a single storey element with recessive upper levels. It seeks to ensure new developments respect the predominant and building forms within the streetscape. 
44	The first floor will be setback 15.89 metres from the front boundary and will be finished in materials and colours that are both respectful of the heritage context yet adequate to provide differentiation between the new building work and the original heritage fabric.
45	The proposed additions demonstrate respect for the form of the buildings within the streetscape, providing articulation, pitched roofs, contemporary materials, sufficient side setbacks, and a first floor that is well set back from the street such that it will appear as a secondary element which does not dominate but which integrates with the streetscape. 
46	From a heritage perspective, I find that the proposal is consistent with what the planning scheme seeks to achieve.  
47	The proposed front fence will be 1.5 metres in height, ensuring that the low-scale character of front fencing in the area is maintained, consistent with what policy seeks in this context. 
48	For these reasons, I find that the proposal will be an acceptable outcome with respect to heritage and neighbourhood character.

Conclusion
49	For the reasons given above, the decision of the responsible authority is affirmed. A permit is granted subject to conditions.

Joel Templar
Member