VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	VCAT REFERENCE NOS.
 P390/2022 & P1111/2022
PERMIT APPLICATION NO.
GE/DP-34425/2021	
CATCHWORDS	
Section 82 of the Planning & Environment Act 1987; Glen Eira Planning Scheme; 
Two dwellings – Neighbourhood character & off-site amenity impacts	
 
ApplicantS		
P390/2022	Emily Lett & Matthew Cowman	
P1111/2022	Daniel John Webster & Kimberley Jane Webster	
Responsible Authority	Glen Eira City Council	
Respondent	Hopetoun Developments Pty Ltd	

SUBJECT LAND	10 Hopetoun Street
ELSTERNWICK VIC 3185	

HEARING TYPE	Hearing	

DATE OF HEARING	1 December 2022	

DATE OF ORDER	22 February 2023	

CITATION	Webster v Glen Eira CC [2023] VCAT 183	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Ray Dinh Architecture	
•	Drawing numbers:	TP-01 to TP-17 – Revision E	
•	Dated:	11.10.22	

2	In applications P390/2022 and P1111/2022 the decision of the Responsible Authority is varied.

3	In planning permit application GE/DP-34425/2021 a permit is granted and directed to be issued for the land at 10 Hopetoun Street, Elsternwick in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Construction of two dwellings on a lot.

Tracy Watson
Member	

Appearances
For Applicant 	Application P390/2022:  no appearance.
Application P1111/2022: Daniel Webster, in person.	
For Respondent 	Dominic Scally, solicitor.  Mr Scally called expert evidence from Andrea Pagliaro, town planner.	
For Responsible Authority 	Sunny Shan, town planner.
	
Information
Description of proposal	It is proposed to construct two, double storey dwellings on the subject site.	
Nature of proceedings (P390/2022 & P1111/2022)	Applications under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Glen Eira Planning Scheme.	
Zone 	Clause 32.09 – Neighbourhood Residential Zone, Schedule 1 (NRZ1).
No overlays apply to the subject site.	
Permit requirements	Clause 32.09-6 – Construction of two dwellings on a lot.	
Relevant scheme policies and provisions	Includes Clauses 11, 15, 16, 21.03, 21.04, 22.08, 32.09, 52.06, 55, 65 and 71.02.	
Land description	The subject site is located on the east side of Hopetoun Street and has a rectangular shape with a frontage of 12.08 metres, a depth of 35.89 metres and a site area of 449m2.  There is an existing dwelling on the subject site, and existing single dwellings are located immediately to the south and north of the subject site.	
Tribunal inspection	20 December 2022.  During my site inspection I looked at the broader neighbourhood including the full length of Murray Street, Hopetoun Street and Morton Street.  I also accessed the inside and outside areas of no. 8 Hopetoun Street.	

Reasons
What is this proceeding about?
1	In March 2022, the Glen Eira City Council issued a Notice of Decision to Grant a Permit (NOD) allowing the proposed development, subject to a range of conditions.  It is a decision that the applicants requested be reviewed by the Tribunal.
2	The applicants for P390/2022 (Emily Lett and Matthew Cowman) who reside at no. 12 Hopetoun Street, advised the Tribunal that, on the basis of the substituted plans, they no longer oppose the proposed development.  This is because the substituted plans have amended the proposed northern boundary setbacks and the screening treatments.  Upon review, I am satisfied that the proposed development does not cause any unreasonable off-site amenity impacts to the existing dwelling at no. 12 Hopetoun Street.
3	This confines the issues in dispute to the off-site amenity impacts of the proposed development on the property immediately to the south of the subject site (at no. 8 Hopetoun Street), as well as to the proposal’s broader neighbourhood character impacts.
4	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Glen Eira Planning Scheme, I have decided to vary the decision of the Responsible Authority.  My reasons follow.
Does the proposal have an acceptable impact on the property at 8 Hopetoun Street & the broader character of the area?
5	Mr Webster’s submission was that the proposed building is inconsistent with the existing neighbourhood character of the area because it: is too large and bulky (with insufficient articulation and a ‘box like’ form); does not appropriately respond to the area’s existing open rear yard character; and is inconsistent with the Minimal Change Area local policies.
6	Mr Webster also argued that the proposal does not respect the garden character of the area (that is, the area’s landscape character) particularly because of the: proposed site coverage which is more than the NRZ1 50% local variation; Morton Street presentation of Dwelling 2 including its setback from Morton Street (which he said should be 4 metres as per the NRZ1 rear setback local variation); inadequate level of landscaping for proposed Dwelling 2 (including a lack of canopy tree planting in the front garden interfacing with Morton Street); non-compliance with Standard B28; and high boundary fence to Morton Street.  Overall, Mr Webster submitted that the proposal is more suited to a Housing Diversity Area than a Minimal Change Area.
7	Part of Mr Webster’s submissions referred to the Design and Development Overlay, Schedule 4 (DDO4) which applies to nearby land in Murray Street, and also to the document titled “Quality Design Guidelines – Residential Areas”.  The DDO4 overlay does not apply to the subject site, nor to any of the properties in Hopetoun Street or Morton Street, with the closest property covered by the DDO4 being no. 3 Murray Street.  This means that the DDO4 provisions are not applicable to my deliberations and I therefore do not give them any weight.  I also do not give any weight to the “Quality Design Guidelines – Residential Areas” document as it is neither a reference nor an incorporated document under the planning scheme.  
8	Clause 22.08 (Minimal Change Area Policy) of the planning scheme applies to all NRZ1 land (which is some 80% of all residentially zoned land in the municipality).  Clause 22.08-2 includes objectives to promote both single and two-dwelling developments with diverse layouts and sizes.  In other words, this local policy explicitly supports the development of two dwellings on the subject site provided that the design response appropriately responds to the features of the site and surrounds, and the character of the area.
9	The Clause 22.08 local policy also includes a range of objectives, policy statements and decision guidelines relating to particular character elements such as street setbacks, building scale and bulk, site coverage and landscaping (with particular reference to maintaining garden character).  The policy also includes a statement that two storey dwellings at the rear of sites are discouraged.  It is important to recognise that these general aspects of Clause 22.08 apply to all Minimal Change Areas (as do the NRZ1 local variations).  However, relevantly Clause 22.08-1 provides a clear distinction between ‘Garden Suburban’ and ‘Inner Urban’ neighbourhood character types, with the vast majority of the Minimal Change Areas being categorised as falling within the ‘Garden Suburban’ type.
10	The only part of the Minimal Change Area categorised as having an ‘Inner Urban’ type is identified as Character Area 5, which is a very small area in Elsternwick.  The subject site and surrounds are located within Character Area 5.  Clause 22.08-1 identifies the key common character elements of the ‘Inner Urban’ type being:
Highly urban character with buildings dominating the street scene.
Smaller lot sizes with narrow frontages.
Small front setbacks and zero or small side setbacks that create unbroken ‘walls’ of built form along the street.
Minimal planting within front or rear gardens that allow space for only small scale vegetation.
Front property boundary typically expressed by a fence.
Fine grain, well connected street and laneway pattern that is highly conducive to walking and cycling.
Narrow footpaths often without nature strips, allowing space for occasional small-medium scale street trees.
11	The local policy goes on to describe Character Area 5 as:
This area has a Victorian and Edwardian base with a limited amount of modern infill.
The tight street pattern and small lot sizes, which were developed alongside the shopping and transport spine of Glen Huntly Road, are distinct.
As an ‘inner urban’ character type, there is minimal front and side setbacks and limited vegetation in private gardens or street planting. The buildings form the edge of the street and define its character.
12	Clause 22.08-3.4 of the planning scheme is to, “Ensure that all developments respect and enhance the prevailing character elements identified for each character area.” In other words, what is an appropriate design response for an ‘Inner Urban’ area is going to be quite different to that for the other fifteen identified Character Areas which all fall into the ‘Garden Suburban’ type.  Furthermore, I agree with the general description of the existing physical context of Morton Street provided by Mr Pagliaro as being a ‘varied and robust’ one.  This existing context includes built form extending into the rear of allotments and close to or on the boundary of the Morton Street interface, as well as high fences being commonplace.  It therefore makes sense for the proposed development to respond to the subject site’s dual street frontages by siting Dwelling 2 to front Morton Street.
13	For the above reasons, I am satisfied that it is acceptable to develop a contemporary, two-storey high dwelling (in this case proposed Dwelling 2) in the rear portion of the subject site with a narrow, 1 metre setback to Morton Street and minimal room for landscaping within the small front garden area.  Overall, I think this outcome is respectful of the existing Morton Street context, as well as the described character elements for the ‘Inner Urban’ type and Character Area 5, under Clause 22.08.  Similarly, I am satisfied that the proposed site coverage of 58.2% (as opposed to the NRZ1 local variation of 50% which applies to all Minimal Change Areas) is acceptable as this is not an area identified as having a ‘garden suburban’ landscape character under Clause 22.08.  The proposal includes the planting of one canopy tree in each of the courtyard areas, which, as they reach maturity, will be visible from the public domain.  I also accept Mr Pagliaro’s evidence that the proposed high eastern boundary fence of Dwelling 2 is acceptable given the nature of existing fencing along Morton Street (with the low fence of the new dwelling at the rear of no. 14 Hopetoun Street being the only identified exception to the prevailing high fences along Morton Street).
14	The Council endorsed the Clause 55 assessment undertaken by Mr Pagliaro and included at Appendix B of his evidence statement, with the only exception being that the amount of private open space for Dwelling 2 requires a variation to Standard B28 under the NRZ1.  Mr Webster’s submission also said that the proposal does not comply with Standard B28 in regards to Dwelling 2.
15	I agree with Mr Webster’s submission, and that of the Council, that the area of secluded private open space should not include the ‘dual purpose’ car spaces for Dwelling 2.  This results in the total area available for useage being some 30m2 when the car spaces are occupied.  However, I still consider that the private open space of Dwelling 2 provides for the “reasonable recreation and service needs” of future residents such that the Clause 55.05-4 private open space objective is met.  It is also noteworthy, that this objective (and the associated decision guidelines) are not about character considerations, which contrasts to the site coverage objective at Clause 55.03-3 of the planning scheme.
16	In regards to off-site amenity impact concerns, Mr Webster explained that the renovations to the house at no. 8 Hopetoun Street were specifically designed to maximise solar access during the wintertime and to reduce it during the summertime period.  He referred to the impact of the loss of direct sun for 5-6 months of the year to the three ground level north facing windows and the rear deck.
17	Mr Webster also submitted that the proposed length, height and setbacks of the southern side of the building results in an unreasonable level of visual bulk (and sense of enclosure), particularly as viewed from his rear garden and deck, but also as viewed from the north facing habitable room windows.
18	I sympathise with Mr Webster’s desire to protect solar access during the winter months.  However, in regards to overshadowing impacts, the planning scheme has been specifically drafted to provide for a consideration of the overshadowing impacts on the 22nd of September (the spring equinox) between 9am and 3pm (refer to Standard B21 at Clause 55.04-5).  The shadow diagrams at TP-09 to TP-15 of the substituted plans demonstrate that, on this day at each hour from 9am to 3pm, the additional shadows cast by the proposed building onto the rear garden area of no. 8 Hopetoun Street are minimal.  Put simply, the proposal readily complies with Standard B21.
19	Similarly, in relation to the existing north-facing windows of no. 8 Hopetoun Street, the planning scheme includes a specific quantitative standard which provides for the retention of adequate solar access, and does not refer to protecting solar access during the wintertime.  The proposal has been designed to comply with Standard B20, at Clause 55.04-4 of the planning scheme, to ensure that solar access to these north-facing habitable room windows is maintained to a reasonable degree.  
20	In relation to the visual impact of the southern side of the building on the abutting property to the south, I have already found that the design response is acceptable from a neighbourhood character point of view.  In terms of the potential for a visual bulk impact on the property at no. 8 Hopetoun Street, I carefully looked at this issue as part of my site inspection.  This included from the rear garden as well as the internal habitable rooms with windows looking towards the subject site.  I am not concerned about the views from the internal spaces given the general angle of the views available towards the subject site.  The key issue in my mind is the visual impact from the rear garden.
21	Proposed Dwelling 2 is setback 1 metre from the southern boundary at the ground floor level and 3.0 metres or 2.5 metres at the upper floor level.  The maximum height of the southern side of Dwelling 2 is 6.19 metres.  Under the NRZ1, while there is a local variation relating to the rear setback (which I have already found to be acceptable), there is no local variations to the side setbacks.  As detailed in both the Council’s submission and Mr Pagliaro’s evidence, the proposal complies with Standard B17 in relation to the southern side of the building.  Indeed, under Standard B17 the required setback where the wall is 6.19 metres is 1.78 metres (where the proposed setback is 2.5 metres), and as the wall decreases in height to 6.06 metres the required setback is 1.72 metres (where the proposed setback is 3.0 metres).  In other words, the proposal substantially exceeds Standard B17 where it interfaces with the rear secluded private open space of no. 8 Hopetoun Street.  I think that the proposed setbacks of the southern side of the building appropriately mitigates the length of the proposed southern walls which do effectively extend for the whole of the rear private open space area.  The visual impact of this side of the building is also tempered by the depth and size of the rear secluded private open space area of no. 8 Hopetoun Street.  For these reasons I am satisfied that the objective at Clause 55.04-1, “To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings” has been met.
22	Ultimately, I am satisfied that the proposal meets all of the Clause 55 objectives, including those related to neighbourhood character impacts, the amenity impacts on the abutting property to the south, and the on-site amenity provided.  This finding supports the position of both the Council and the expert evidence of Mr Pagliaro.
Conclusion
23	The draft permit conditions were discussed as part of the hearing, and I have adopted the evidence of Mr Pagliaro which has resulted in the deletion of draft conditions 1(f) and 1(g).  I have retained the draft condition relating to the dimensions of the Dwelling 2 car spaces as these dimensions comply with Design Standard 2 of Clause 52.06-9 of the planning scheme.
24	For the reasons outlined above I have concluded that the decision of the Responsible Authority will be varied.

Tracy Watson
Member	

Appendix A – Permit Conditions

Permit Application No	GE/DP-34425/2021	
Land	10 Hopetoun Street
ELSTERNWICK VIC 3185	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of two dwellings on a lot in accordance with the endorsed plans.	

Conditions
Amended plans

1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of this permit.  The plans must be drawn to scale with dimensions and must be generally in accordance with the plans substituted by the Victorian Civil and Administrative Tribunal (identified as TP01, TP-02a, TP-02c, TP-02d, TP-02e, TP-03 – TP-017 of 21, Revision E, dated 11 October 2022, all prepared by Ray Dinh Architecture) but modified to show:
(a)	A landscape plan in accordance with Condition 2.
(b)	Delineation of Tree Protection requirements and measures as detailed in the submitted Arboricultural Report – Impact Assessment, Lloyd Hetrick, Amended 30 December 2021, and any associated measures required by the Tree Protection Management Plan required by Condition 4.
(c)	A minimum 6 cubic metres of externally accessible, secure storage space for Dwelling 2.
(d)	Car spaces in the carport for Dwelling 2 must be at least 6.0 metres long and 5.5 metres wide, with these changes absorbed within the remainder of the approved building envelope.
(e)	The sectional diagram of TP-07 amended to include dimensions to demonstrate that overlooking will be limited to no more than 25%.
(f)	The first floor south facing windows of Bed 03 of Dwelling 2 to be identified as being fixed to a height of 1.7 metres above the finished floor level.
(g)	The secluded private open space and private open space of Dwelling 2 corrected in the areas schedule to reflect their actual sizes.
(h)	The materials schedule amended to include reference to TB-BL as black coloured timer battens.
Landscaping & tree protection conditions
2	Before the development starts, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the Landscape Plan will be endorsed and will then form part of this permit. The Landscape Plan must be prepared by a person suitably qualified or experienced in landscape design and must be drawn to scale with dimensions.  The Landscape Plan must show:
(a)	A survey, including botanical names, of all existing vegetation to be retained.
(b)	Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.
(c)	A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.
(d)	Landscaping and planting within all open space areas of the site.
(e)	Advanced canopy trees (minimum 3.0 metres tall when planted unless otherwise agreed to in writing by the Responsible Authority) in the following areas:
i	2 trees within the Hopetoun Street setback;
ii	2 trees within the rear private open spaces (one for each dwelling);
Trees are not to be sited over easements. All species selected must be to the satisfaction of the Responsible Authority.
3	Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, the landscaping works shown on the endorsed Landscaping Plan must be carried out and completed to the satisfaction of the Responsible Authority.
4	Before the development starts, including any demolition and excavation, a Tree Protection Management Plan (TPMP) in respect of all third party owned trees with TPZs that intersect the subject site must be prepared to the satisfaction of the Responsible Authority. When approved, the TPMP will be endorsed and will then form part of the permit. The TPMP must show:
(a)	Trees accurately located and numbered as per the arborist report with TPZs and SRZs represented to scale.
(b)	A clear image of trees required to be retained, taken prior to the commencement of works.
(c)	The type, installation, and maintenance of tree protection in accordance with AS4790-2009: Protection of Trees on Development Sites.
(d)	The protection of trunks and crowns of any specified tree.
(e)	How tree crowns will be managed, including any pruning requirements.
(f)	Specific details of any works proposed within any TPZ and how arboricultural impacts will be mitigated.
(g)	Excavation within or near a TPZ.
(h)	Requirements for movement in/out and throughout the site by vehicles, machinery, equipment, and workers that may affect management of any TPZ.
(i)	Specific methodologies and management for installation of services including, but not limited to, gas, electricity, telecommunications, storm water and sewerage.
(j)	Maintenance of TPZs in accordance with AS4790-2009, including mulching, watering and prohibited activities.
(k)	Schedule of project arborist inspections.
The TPMP must include a program to implement the proposed measures before, during and on completing construction (including demolition).
The tree protection measures set out in the TPMP must be implemented to the satisfaction of the Responsible Authority.
The plan must not be revised without the consent of the Responsible Authority.
General conditions
5	The development as shown on the endorsed plans must not be altered or modified (unless the Glen Eira Planning Scheme specifies a permit is not required) except with the prior written consent of the Responsible Authority.
6	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within three years of the date of this permit.
(b)	The development is not completed within five years of the date of this permit.
The Responsible Authority may extend the permit if a request is made in writing in accordance with Section 69 of Planning and Environment Act 1987.
7	No buildings are to be constructed over or works undertaken under any easement or other area of land where there is a restriction (including sewers, drains, pipes, wires or cables) under the control of a public authority, except with the prior written consent of the relevant authority.
8	Before the building is occupied, the walls on the boundary of adjoining properties must be cleaned and finished to the satisfaction of the Responsible Authority. Painted or bagged walls must be finished to a uniform standard and unpainted or unrendered walls must have all excess mortar removed.
9	Before the building is occupied, all screening shown on the endorsed plans must be installed and permanently maintained in accordance with the endorsed plans. The screening measures as shown on the endorsed plans are not to be altered or removed except with the prior written consent of the Responsible Authority.
10	Before the building is occupied, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	fully constructed
(b)	properly formed to such levels that may be used in accordance with the plans
(c)	surfaced with an all weather surface or seal coat (as appropriate)
(d)	drained and maintained in a continuously usable condition
all to the satisfaction of the Responsible Authority
11	Before the building is occupied, vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing vehicle crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

– End of conditions –