VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P847/2022
Permit Application no.PA210585 	
CATCHWORDS	
Single-storey extension; contributory building in Heritage Overlay; lot of less than 500m2; amenity impacts on neighbouring properties.	
Applicants	Graham Paul Conley, Melissa Conley & Others	

Responsible Authority	Hobsons Bay City Council	
Respondent	Claire Carey	

SUBJECT LAND	48 Power Street
WILLIAMSTOWN VIC 3016	

HEARING TYPE	Hearing	

DATE OF HEARING	20 March 2023	

DATE OF ORDER	21 March 2023	

CITATION	Conley v Hobsons Bay CC [2023] VCAT 300  	
Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and 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:	Bliss Building Design	
•	Drawing numbers:	VCAT Issue	
•	Dated:	16 January 2023	
2	In application P847/2022 the decision of the responsible authority is affirmed. 
3	In planning permit application PA210585 a permit is granted and directed to be issued for the land at 48 Power Street Williamstown VIC 3016 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	A single storey rear addition; and
•	Associated demolition to the rear of the existing residence.

Michael Nelthorpe
Member			
Appearances
For Graham Paul Conley, Melissa Conley & Others	Brian Obst, Julie Obst and Graham Conley	
For responsible authority	Louise Lunn, town planner of Louise Lunn Planning.	
For Claire Carey	Mr Mark Waldon, town planner of StWise Planning Professionals.	
Information
Description of proposal	A single storey extension to a contributory dwelling in a Heritage Overlay	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Hobsons Bay Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 4 – Heritage Areas, Altona and Williamstown.	
Permit requirements	Clause 32.08-5: to construct or extend a dwelling on a lot of less than 500m2; and
Clause 43.01-1: to demolish a building and to construct a building or construct or carry out works.	
Relevant scheme policies and provisions	Clauses 11, 15, 16, 32.08, 43.01, 54, 65, 72.01, 72.04 & 72.08.	
Land description	This rectangular lot is located mid-block on the east side of Power Street, Williamstown.  It has a 6.9m frontage, a 51m depth and an area of 356m2.  A single storey dwelling that is a contributory building in the Power Street Heritage Precinct occupies the site.	

  Reasons
What is this proceeding about?
1	Graham Conley and Others, including Brian and Marie Obst (‘the Joint Applicants’) seek a review of the Hobsons Bay City Council’s decision to grant a permit for a single storey extension at the rear of the dwelling at 48 Power Street, Williamstown.
2	Their objections relate to the impact of the extension on their amenity.  They also question the proposal’s response to local planning policies on neighbourhood character.
3	I made my decision and provided my reasons after the hearing.  The following is a summary of what I said.
my finding
4	I will affirm the Council’s decision.  A permit is granted subject to conditions.
5	I find that the Council’s assessment of the proposal was thorough and addressed the relevant issues.
6	I agree with Mr Waldon that this is a modest proposal in planning terms.  I find that its modest scale ensures that it is an acceptable planning outcome.
7	Speaking more generally, I consider it reasonable to propose to extend a dwelling in Williamstown or in any other part of Melbourne. From neighbour’s perspective, it is something that must be anticipated, and one must expect an extension to have some negative impacts to existing amenity.  Here, I find that the negative amenity impacts are acceptable.
8	Contrary to the Obst’s submissions, I consider that regard has been had to the amenity of their rear yard.  This is through the decision to propose a single storey extension.
9	I find that a single-storey wall that runs the length of their boundary is acceptable.  It requires a 1.15m variation to the standard and I find it is acceptable in this context of long, narrow lots where a reasonable amount of building on side boundaries already exists.
10	I find the extent of overshadowing of the Obst’s rear yard is acceptable as it is well within the standard for overshadowing.  This standard seeks to strike a balance between the need for infill development and the need to retain a reasonable level of amenity for neighbours.
11	I find that the exceedance of standards on site area and length of boundary walls does not erode the standards.  The standards are designed so that they can be varied according to a site’s context and circumstances.  The small size of this lot is a reason to consider a variation to the site coverage standard.
12	I find that the proposal is acceptable despite it not contributing greatly to the local planning policies on the greening of the municipality.  I agree with the Council and Mr Waldon that these general policies are trumped by heritage policies that seek to preserve streetscapes and seek to retain heritage dwellings by allowing them to be renovated or extended to meet modern standards of accommodation.
13	I find that the Obst’s loss of filtered light between the top of the existing fence and the height of the new wall is an amenity impact that is outweighed by the Planning Scheme’s support for extensions to dwellings.
14	I make the same finding on the question of visual bulk.  This applies to both the Obst and Conley properties.  I accept that this extension will be visible, but I do not agree that its visibility will be so great as to unfairly diminish the reasonable enjoyment of both adjoining properties.
15	I will not require the height of the wall on the Obst’s boundary to be lowered and will not require the wall to be set back further from the boundary.  Its height is already lower than what the standard allows, and it is already set off the boundary.  Only upper floors are expected to be set a greater distance off a shared boundary.
16	The Arborist’s Report combined with the independent assessment by the Council’s arborist persuades me that the proposed approach to the protection of the Obst’s trees on the shared boundary is appropriate.  The assessment and approach are consistent with common practice in this industry.
17	I will not require the air conditioning unit to be moved from its central location between the existing house and the extension.  Domestic air conditioning units are designed to operate within acceptable acoustic standards and I expect that it is centrally located to ensure that it efficiently cools the relevant spaces in the Carey’s house.  I have found that the design of this extension is acceptable and see no need for the Carey’s to make additional concessions to their neighbours.
18	Regarding issues raised by Mr Conley, I believe that my assessment has considered the proposal’s impact on its neighbours.  This is one of several matters that must be considered, including the expectation to extend a dwelling and due consideration of the standards that guide such extensions.
19	I consider that the existence of many sheds and garages on nearby properties assists the Carey’s proposal as it demonstrates that many lots have some degree of building on shared boundaries.  Apart from this, the aerial photographs show that building on shared boundaries or buildings in rear yards is not limited to the rear of properties.
20	I find that the use of galvanised iron roofing is acceptable given that it is a common roofing material in the immediate area.  Equity demands support for this roofing material despite Mr Conley’s concern about glare.
21	I do not anticipate an unreasonable degree of stormwater runoff after this extension is constructed.  All stormwater from the extension will be captured in downpipes and carried offsite in underground pipes.  I consider that runoff from the outdoor areas is likely to be well within the bounds of what is acceptable in an urban area.
22	I find that the size of the outdoor area (rear yard) is acceptable given that it is twice the minimum size required by the standard.
23	I find that the design of the extension is unlikely to contribute to unreasonable noise levels emanating from the Carey’s property.  Noise from neighbours is part of urban living, particularly in areas like Williamstown where dwellings are close together.  I am not concerned by the location of windows on the extension or the length of the sideway adjacent to the Conley property.  I note that the main recreational area (the al fresco) is deep in the lot and is some distance from the Conley dwelling.  I am not concerned by noise emanating from the sideway as it is primarily a service space.
24	I make the same finding regarding light spill from the windows of the extension.  This is part and parcel of urban living and is not a reason to refuse or modify the proposal.
25	It is not the Tribunal’s place to make findings on the fence on the Conley’s boundary.  Fencing is addressed by its own Act and there is a dedicated conflict resolution process.  The Carey’s plans propose a 2m high fence with trellis in some places as well as a tapered reduction in height towards the focus.  This is what they propose but the outcome needs to be resolved through the relevant process.
26	I regard the proposal’s impact on the Conley’s future development opportunities to be acceptable.  While the Planning Scheme encourages north-facing windows, the protection of such windows is one of many considerations to account for in any future development of the Conley’s property.  As I have said, some loss of amenity is likely to occur when small lots are developed, and some loss of amenity to the Carey’s north-facing windows may occur in any future development of the Conley’s property.
Conclusion
27	To reiterate the main points, I find that:
a	The single storey scale of the Carey’s extension is the main reason why it is an acceptable planning outcome.
b	The amenity impacts on the Obst and Conley properties are within reasonable bounds.
c	The measures to protect the trees on the Obst’s boundary are appropriate.

Michael Nelthorpe
Member			

Appendix A – Permit Conditions

Permit Application No	PA210585	
Land	48 Power Street
WILLIAMSTOWN VIC 3016	

What the permit allowS	
In accordance with the endorsed plans:
•	A single storey rear addition; and
•	Associated demolition to the rear of the existing residence.	

Conditions
1	Before the development starts, revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. 
The plans must be substantially in accordance with the plans prepared by Bliss Building Design – VCAT Issue dated 16 January 2023, but modified to show to the satisfaction of the Responsible Authority:
(a)	A schedule of all external materials and finishes. The schedule must show the materials, colour (including a set of physical colour samples) and finish of all external walls, roof, fascias, window frames and paving, and include the following:
i	The existing terracotta roof tiles to be retained. 
ii	The extended window within the existing dwelling on the south-east elevation to be painted timber to match the existing windows.
All wall cladding noted as ‘weatherboard’ must be notated as timber weatherboards or an alternative material with a profile consistent with timber weatherboard cladding.
(b)	The site plan to nominate a Tree Protection Zone in accordance with condition 3 of this permit and the Arborist Report and Tree Management Plan prepared by Jimmy Ross from Tree Care Consulting dated 2 February 2022.
(c)	A notation on the plans that an Arborist must be present during works along the row of trees at 46 Power Street and pruning and tree protection measures must be undertaken in accordance with the Arborist report and Tree Management Plan prepared by Jimmy Ross from Tree Care Consulting dated 2 February 2022. 
(d)	The bin enclosure removed and bins relocated within the western side setback or rear yard. 
(e)	The wall on the south-eastern boundary to be setback 200mm off the title boundary. 
(f)	The fence location at the rear, adjoining 11 Federal Street, to be retained in its current position. 
(g)	Any reference to replacing the fence along the northern boundary to be removed from the plans.  
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
3	Prior to commencement of works, the following provisions relating to the protection of existing street trees and the trees within the front and rear yards must be undertaken to the satisfaction of the Responsible Authority: 
(a)	A suitable Tree Protection Zone as per the Arborist Report and Tree Management Plan prepared by Jimmy Ross from Tree Care Consulting dated 2 February 2022 with barrier fence must be established around the street trees on the Power Street frontage and within the site. 
(b)	The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a ‘Tree Protection Zone’. 
(c)	The area within the Tree Protection Zone must not be disturbed by any means (including parking of vehicles or storage of plant & equipment, materials, soil or waste). 
(d)	No excavation is allowed within the Tree Protection Zone except with the consent of Council’s Town Planning Department and under the supervision of a qualified Arborist. 
4	The proposed development must be constructed in accordance with the tree protection measures outlined in the Arborist Report and Tree Management Plan prepared by Jimmy Ross from Tree Care Consulting dated 2 February 2022.
5	Prior to the occupation of the buildings, all boundary walls on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority. Any protruding floor slab must be cleaned and trimmed flush with the wall to the satisfaction of the Responsible Authority
6	All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
7	Once the development has started, it must be continued and completed to the satisfaction of the Responsible Authority.
8	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. 
The Responsible Authority may extend the period in which to start the development if a request is made in writing before the permit expires or within six months afterwards.
The Responsible Authority may extend the period in which to complete the development if a request is made in writing before the permit expires or within 12 months afterwards and the development was lawfully started before the permit expired.
– End of conditions –