Victorian Civil and Administrative Tribunal

[Home] [Databases] [WorldLII] [Search] [Feedback] Victorian Civil and Administrative Tribunal You are here: AustLII >> Databases >> Victorian Civil and Administrative Tribunal >> 2008 >> [2008] VCAT 1848 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help] Lomax v Yarra CC [2008] VCAT 1848 (11 September 2008) Last Updated: 22 September 2008 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ADMINISTRATIVE DIVISION PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P882/2008 PERMIT NO. PL03/0198 APPLICANT Giulian Ashton Lomax RESPONSIBLE AUTHORITY Yarra City Council SUBJECT LAND 508 Rae Street, Fitzroy North WHERE HELD Melbourne BEFORE Gerard Sharkey, Senior Member HEARING TYPE Hearing DATE OF HEARING Wednesday 25 June 2008 DATE OF ORDER Thursday 11 September 2008 CITATION Lomax v Yarra CC [2008] VCAT 1848 ORDER 1. It is ordered, pursuant to section 149 of the Planning and Environment Act 1987, that the Ashton Lomax Plan being Drawing Nos. TP.01, TP.02 both Revision E are endorsed and substituted as part of the endorsed plans in Permit No. PL03/0198 pursuant to condition 2 of that permit. 2. The date for application to apply for extension of time to start and complete the development pursuant to condition 4 of Permit No. PL03/0198 is extended to 17 November 2006. 3. The application is amended, pursuant to s 127 of the Victorian Civil and Administrative Tribunal Act 1998, to include review of the Council failure to extend time pursuant to condition 4. 4. Condition 4 is amended to read: This permit will expire if one of the following circumstances applies: Page 1 of 6

(a) The development is not commenced by 1 July 2009. (b) The development is not completed by 1 July 2011. The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three (3) months afterwards. G J Sharkey Senior Member APPEARANCES: For Applicant For Responsible Authority Mr G Ashton Lomax in person. Ms N Collingwood, solicitor of Maddocks Lawyers. REASONS 1. This is an application under Section 149 of the Planning and Environment Act 1987 ( the Act ) brought by the permit holder for review of a decision of the Yarra City Council ( the responsible authority ) to refuse to alter the plans endorsed as part of Permit No. PL03/0198 pursuant to Condition 2 of that permit. 2. Permit No. PL03/0198 was issued at the direction of the Tribunal following Ashton Lomax v Yarra CC [2004] VCAT 61 (23 January 2004). The permit authorised the fit out of the existing warehouse shell including partial demolition and façade works at 508 Rae Street, North Fitzroy including partial demolition and façade works. I ordered the decision of the responsible authority be set aside and granted a permit for fit out of the existing warehouse shell at 3/508 Rae Street, North Fitzroy including partial demolition and façade works subject to conditions, including condition 2 which reads: All development must accord with the endorsed plans. Any alterations must be approved by the Responsible Authority. 3. The permit was dated 23 January 2004. Amended plans were endorsed pursuant to condition 1 on 1 June 2005. 4. The permit holder has now applied for amendment of the plans endorsed under the permit by way of the secondary consent mechanism in condition 2. The application was dated 18 November 2007. 5. The Council on 1 April 2008 refused the application on the following grounds: 1. The amendment is consequential to the purpose of the planning control under which the permit was granted, as the removal of the private open space allowed by the second floor deck will result in the non-provision of nay private open space accessible from a living room and does not meet element A17 of clause 54 of the Scheme. 2. The amendment does not confirm to the neighbourhood character, which shows that other units in this development have a second-floor setback and the provision of decks and or balconies. 6. The dwelling, which is 208 Rae Street, is Lot 3 on Plan of Subdivision No. 990580. The site forms part of a former warehouse building on the north-east corner of Rae Street and Holden Street. Moran & Cato used the site, a large retail grocery chain that operated until around the 1950 s. I was told that Moran & Cato operated a retail grocery shop on the corner and the Page 2 of 6

remainder of the building or buildings along Rae Street and Holden Street were used for warehouse purposes, and the land at the rear was used for stabling delivery horses. 7. The complex was developed under Permit No. 985136 into 24 dwellings which incorporated much of the external fabric of the original warehouse building at the warehouse abutting Rae Street being hollowed out and a new building incorporating the residences built inside it with a void section between the warehouse shell fabric and the residences. 8. Mr N Milbourne, who represented the responsible authority at the previous hearing on Thursday 18 December 2003 which led to the grant of the permit which is the subject of this application said that the nine units fronting Rae Street share a consistent pattern of door and window styles and placements, the three levels of those dwellings share a consistent setback pattern, materials and finishes, and share architectural elements at the third level. 9. This warehouse shell is rectangular with a width of 4.52m and a depth of 15.23m. There are matching units to the north and south. It is proposed that this dwelling have a ground floor level of study and formal living area, two bedrooms at first floor level and living areas at the upper level. 10. Permit No. 990655 was issued on 29 July 1999 and this permitted alterations and additions including alteration of the ground floor entry façade, deletion of the west-facing balcony area to the first floor, a reduction in the size of the east-facing balcony to the first floor due to the introduction of angled wall, and a reduction of west-facing balcony to the second level and internal re-arrangement of room layout over the three levels. 11. The subject land is in a Residential 1 Zone and Clause 54, one dwelling on a lot, applies. 12. Clause 32.01-3, construction and extension of one dwelling on a lot, provides that a permit is required to construct or extend one dwelling on a lot less than 300m2 in area, and a lot between 300m2 and 500m2 in area if specified in the schedule to the zone, and such a requirement is so scheduled. 13. Ms Collingwood submitted with respect to the application for the permit now in place: Council refused to issue the Permit on the following grounds: 1. The proposal failed to satisfy the State Planning Policy Framework and Local Planning Policy Framework of the Yarra Planning Scheme, including Council s Local Planning Policy Development Guidelines for Heritage Places (clause 22.02) and the Heritage Overlay (clause 43.01). 2. The proposal fails to satisfy the objective and standards of clause 54 of the Yarra Planning Scheme more specifically: A1 (Neighbourhood character), A3 (street setback), A5 (site coverage), A6 (permeability), A17 (Private open space) and A19 (design detail). The delegate s report conveniently summarises Council s concerns, at page 7: The proposed alterations and additions fail to consider the architectural integrity of the heritage place, as the proposed works seek to incorporate setbacks and window forms that are inconsistent with the rest of the complex, which will detract from the heritage value of the building. The proposed alterations and additions fail to reflect the particular rhythm, spatial characteristics and characteristics of the surrounding historic streetscape. The use of inconsistent setbacks, different window forms and the deletion of the architectural feature at the second level breaks the rhythm created by the repetition and consistent use of these elements within the complex, and alters the spatial characteristics created by the void spaces between the new fabric and the existing warehouse shell. These alterations change the character of the complex as view in its entirety and within the context of the streetscape. Page 3 of 6

In respect of the objectives and standards of clause 54, the Tribunal in Ashton Lomax found that there would be little or no change in respect of neighbourhood character, street setback, site coverage, permeability, private open space and design detail. Ultimately, the Tribunal found that the proposed changes would not significantly alter the appearance of the building and supported the increased setback at the second level. It is submitted that the same cannot be said for the application currently before the Tribunal. The concerns expressed by Council in relation to the permit proposal are reiterated in respect of this application. 14. Ms Collingwood submitted with respect to the changes now proposed: Council s delegate s report contains an assessment of the proposed amendments and essentially identifies two primary changes which are consequential. Council is prepared to permit most of the changes requested by the Applicant, however Council is of the view that the deletion of private open space at the site and subsequent expansion of enclosed living areas are consequential changes which cannot be made by Council. Council is also of the view that the proposed changes cannot be supported on a merits assessment. 15. Ms Collingwood cited the decisions of the Tribunal in Westpoint Corporation PL v Moreland CC (Red Dot) [2005] VCAT 1049 (31 May 2005) and Zuzek v Boroondara CC (red Dot) [2007] VCAT 2174 (15 November 2007). 16. The officer report categorised the variations proposed in the secondary consent request according to whether it was considered they were trivial variations, inconsequential variations or consequential variations. 17. The variations considered to be consequential were: on the second floor removal of the deck and extension of the floor area of the living room, removal of the timber frame bi-fold doors and the installation of aluminium frame full height windows opening to the north and a glazed roof, to the roof installation of two glazed roof panels to the west and east boundaries. 18. Ms Collingwood submitted: Having regard to the Tribunal s findings in relation to the no consequence test in Zuzek, Council submits that the amendments sought are consequential. The relevant permit trigger in Ashton Lomax arose principally out of the Residential 1 Zone and the requirement to obtain a planning permit to construct or extend a dwelling on a lot less than 500 square metres in area, pursuant to clause 32.01-3. The purpose of that control were: To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households. To encourage residential development that respects the neighbourhood character. In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs. Page 4 of 6

The control states that a development must meet the requirements of clause 54. 19. I consider that my decision that led to the grant of a subject permit had greater impact on the character of the neighbourhood than what is now proposed. That decision changed the form of the upper level and viewed from Rae Street from an angular geometric form to a horizontal form. The change at the upper level when viewed from New Street would be less than the change I considered satisfactory, having regard to the character of the neighbourhood, in the decision that led to the grant of this permit. The responsible authority submitted that the concerns expressed by the Council in relation to the permit proposal are reiterated in respect of this application. I nevertheless consider that the changes now proposed are satisfactory with respect to the character of the neighbourhood and am certainly not consequential variations in that respect. 20. Ground No 2 of the Council decision to refuse the application under the secondary consent provision was that the amendment does not conform to the neighbourhood character which shows that other units in this development have a second floor setback and the provision of decks and/or balconies. It will be clear from what I have said above that I do not accept that there should be a refusal on this ground. 21. Ground No 1 was that the amendment was consequential to the purpose of the planning control under which the permit was granted as the removal of the private open space allowed by the second floor deck would result in the non-provision of any private open space accessible from the living room and would not meet Element A17 of Clause 54. 22. Mr C Wren SC, who appeared for the applicant in the hearing of the application for review of the refusal to grant a permit, provided an opinion with respect to this application but the applicant was self-represented. It was suggested by Ms Richmond that I should have little regard to what was said by Mr Wren having regard to the fact that he did not appear. An example provided by Mr Wren with respect to private open space is irrelevant. Mr Wren referred to the Melbourne Tennis Centre retractable roof and said that on pleasant sunny days and evenings tennis is played with the roof open and if the weather is inclement the roof is closed. Requested amendments to the private open space proposed for this dwelling would allow the private open space to be open when the weather is fine and that fine weather can be enjoyed. The fact that the private open space can be enclosed during periods of inclement weather simply means that it can be used then. It can be used as private open space when the weather permits it to be so used but it can also be used, on other occasions. 23. Clause 54.05-2, private open space objective, is to provide adequate private open space for the reasonable recreation and service needs of residents. I consider that when the private open space is open and used when it is so desired and weather permits it would be adequate for the reasonable recreation and service needs of the small dwellings such as this. Whether or not the relevant standard is met is another matter. Clause 54 requires that a developer must meet all the objectives of the clause and should meet all of the standards of the clause. I consider that the objective is met. 24. Clause 54.02-1, neighbourhood character objective, is to ensure that the design reflects the existing neighbourhood character or contributes to a preferred neighbourhood character and that it responds to the features of the site and the surrounding area. I decided in directing that a permit should be granted this objective was satisfied and I consider it is satisfied under this proposal for the reasons set out above. 25. I consider therefore that this proposal does not fail under ground of refusal No. 1. 26. Condition No. 4 of Permit No. P03-0198 provides that the permit will expire if the development is not commenced within two years of the date of the permit and completed within four years of the date of the permit, which is 23 January 2004. Section 81(1)(b) of the Act provides that a person affected may apply to the Tribunal for review of the failure of the responsible authority to extend the time within one month after a request for an extension is made. The Tribunal Page 5 of 6

under s 127(1) of the Victorian Civil and Administrative Tribunal Act 1998 may order that any document be amended, and subsection (2) provides that such an order may be made on the application for party or on the Tribunal s own initiative. 27. It is appropriate to s 81(1)(b) of the Act to extend the time to apply for extensions of time to commence and complete the development to 17 November 2006 and under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 to amend the application to include the Council failure to extend time. It is appropriate also to extend time in accordance with condition 4. 28. I will make orders as out above. G J Sharkey Senior Member AustLII: Copyright Policy Disclaimers Privacy Policy Feedback URL: Page 6 of 6