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Restall & Ors v Hobsons Bay CC  VCAT 1348 (10 August 2010)
Victorian Civil and Administrative Tribunal
Restall & Ors v Hobsons Bay CC  VCAT 1348 (10 August 2010)
Last Updated: 24 August 2010
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
|PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P545/2010
PERMIT APPLICATION NO. PA0919366
Hobsons Bay Planning Scheme, Section 77 Planning s & Environment Act
1987, Four attached Dwellings, Climate Change, Neighbourhood
Character, Bulk and
C Restall, M Fava and E Restall.
Hobsons Bay City Council
25 Beach Street, Seaholme
DATE OF HEARING
DATE OF ORDER
being no objections Mr Wayne Barnaby was joined as a party to the
the purposes of this hearing, the amended plans prepared by Active Design dated
the 6th of July and numbered S1, S2, S3, E1, E2, P3,
and P4 are adopted.
decision of the Responsible Authority is set aside. In permit application No.
PA0919366 a permit is granted and directed to be
issued for the land at 25 Beach
Street, Seaholme. The permit allows construction of four two storey attached
dwellings in accordance
with the endorsed plans and subject to the following
conditions as set out in Appendix 1.
Mr Dom Scally, solicitor of Best Hooper who called Mr Peter English, town
planner of Peter English and Assoc.
For Responsible Authority
Ms Louise Lunn, town planner of Louise Lunn Planning.
S Johnson, T & J Marion, J & L McKey, W Barnaby all appeared in
To construct four two storey attached dwellings
Zone and Overlays
Residential 1 zone
Design and Development Overlay(DDO4)
Reason(s) Permit Required
Clause 32.01-6 (Buildings and Works in a R1Z)
Development in a DDO4 Overlay Area.
The site is located on the north west corner of Garden Grove and Beach
Street, Seaholme and has a total area of 484.83 square metres
with a frontage to
Garden Grove of 57.91 metres and a frontage to Beach Street of 15.24 metres.
The site currently contains a single
storey dwelling garage and carport. The
site is generally flat and on the opposite side of Beach Street is the WD
and Port Phillip Bay.
Cases referred to
What is this review about?
Planning Pty Ltd on behalf of the land owners, C Restall, M Fava and E Restall
lodged an application with Hobsons Bay Council to
develop the subject site for
four two storey attached dwellings. Following receipt of a number of objections
from adjoining property
owners Council refused the application on a range of
grounds. The permit applicant has appealed that
Wayne Barnaby made application to be joined as a party to the proceedings, he
lodged an application to the proposal during the
advertising period, however due
to family illness was unable to provide a statement to the Tribunal within the
required time. There
being no objections to his being joined as a party Mr
Barnaby was duly joined to the proceeding.
response to requests for further information the permit applicant lodged amended
plans with the council and circulated these plans
to the other parties with the
aim of addressing some of the concerns raised. For the purposes of this
hearing, the amended plans
prepared by Active Design dated the
6th of July and numbered S1, S2, S3, E1, E2, P3, and P4
are adopted for the purposes of this hearing.
letter dated 9 July 2010, Hobsons Bay City Council foreshadowed that they wish
to rely upon an additional ground of refusal to
those set out in the original
notice. That additional ground is as follows:
- That having
regard to the sea levels and the proximity of the land to the coast, the site
might be vulnerable to coastal hazard an
inundation arising from a possible
future rise in sea level due to coastal climate change and from storm
parties agreed to this ground of refusal being added to council’s original
notice of refusal and submissions were made in
The issues to be determined
having viewed the site, and heard the submissions as part of this hearing I
consider the matters to be addressed as follows.
- Vulnerability of
the site to sea level rise.
- Bulk and mass of
the proposed development.
was no dispute among the parties that the site was well located in relation to
all services and was a suitable site for some
form of medium density
development. I agree with this assessment so will not make further comment on
Vulnerability of the site to sea level rise
15.08 required the consideration of climate change on development in close
proximity to Port Philip Bay and the permit applicant
was aware that sea level
rise would be a matter that could impact upon the proposed development and
sought advice from Melbourne
Water in relation to this issue. However, I note
that Melbourne Water was not a formal referral authority in this instance. But,
by detailed letter in response to this request, Melbourne Water recommended that
the floor heights of the proposed dwellings be increased
to 2.4 metres above
Australian Height Datum (AHD) and the fixed floor level of the garage be
increased to 1.9 metres to AHD to address
this issue. These requirements being
included in the permit conditions under the section dealing with Melbourne Water
Amended plans based on these requirements were prepared and this
consequently increased the overall height of the building.
Water considered that the property will be effected by the rise of 0.8 metres in
the mean sea level of Port Phillip Bay
by 2100 and would therefore be
potentially affected by flooding from the bay.
issue of vulnerability to sea level rise has been dealt with in the recent past
by a number of Tribunal decisions and I was taken
to two recent decisions that
are most relevant to a Port Phillip Bay side location. These being Cadzow
Enterprises v Port Philip
and Owen v Casey.
general practice note “Managing coastal hazards and the coastal impacts of
climate change (December 2008)” suggests
that “coastal vulnerability
assessments can be undertaken by suitably qualified coastal engineer or coastal
to assist with understanding, erosion rates and developing
appropriate setbacks or protection works”.
Water in their response indicated that it would be sometime before the analysis
of the impact of the mean sea level rises
in areas around both Port Phillip Bay
and Westernport is complete and that as a precautionary measure the finished
floor levels recommended
by Melbourne Water would be an appropriate response to
consider this issue is consistent with the policy of applying “the
precautionary principle” in decision-making when
associated with climate change such as a sea level rise.
was put to me that in this instance this is the best available knowledge to the
Tribunal is that from Melbourne Water. Having
read the decisions that were
drawn to my attention I consider that the situation in the Cadzow case in
Broadway, Elwood is appropriate
as it is a Port Philip Bay location and
Melbourne Water’s advice was accepted. I draw the distinction between the
that the Owen’s case was a rural situation on the coast in
Tooradin and not within Metropolitan Melbourne fronting Port Phillip
Therefore, I accept the recommended raised floor levels for
the buildings as required by Melbourne Water and will not require a further
Hazard Assessment be undertaken.
subject site is within Precinct 8 of the Hobsons Bay South Neighbourhood
Character policy. This policy description describes
the precinct as
This precinct was originally home to modest, low scale
1950’s and 60’s dwellings; however this area has been transformed
through the development of many sites with larger, contemporary style dwellings.
Despite the architectural mix, there is a consistency
to the streetscape due to
uniformly large front setbacks, low front fencing and sparse garden planting.
Open bay views and a row
of Norfolk Island Pines reflect the unique beach side
location of the precinct.
consider that although statement acknowledges the changing character of the area
it is now some years old and does not reflect the
levels of recent development
that have occurred and the lack of highly vegetated front gardens. The other
variants that I note are
that the setbacks in the immediate area of the site
show a variation along Beach Street ranging from 4.4 metres to 11.3 metres.
aim of the policy is to maintain the existing dwelling pattern encouraged
innovative architecture that reflects the coastal setting.
considerable diversity in built in forms in the immediate vicinity of the site,
some of which are large relatively boxy
forms and there is scope for development
on the site that could also respect the prevailing built form. This situation
evident upon Beach Street however, when one turns into Garden
Grove there is less new development and the dwellings are dominantly
single storey in style.
permit applicant put to me that the presentation of the development of Beach
Street provides for a modern articulated building
form that also presents a
range of lightweight building materials with a butterfly roof to break up the
height and bulk of the building.
is acknowledged as not a significant characteristic of the surrounding
residential properties fronting Beach Street with
the majority of the
significant contributions to landscaping being within the public realm.
are no specific controls in the Design and Development Overlay that require the
protection of shared view lines to the public
realm. This issue was raised
particularly in relation to the adjacent dwelling in Garden Grove that has a
large balcony that would
currently have views over the rear garden of the
subject site, and this will be affected in part by the two-storey development
on the subject site.
Design and Development Overlay – Schedule 4 requires a permit for
buildings and works, and discourages building forms higher
than two storeys.
The objectives and decision guidelines are consistent with the neighbourhood
character policy and I consider the
proposal is consistent with the decision
guidelines of the overlay in that it provides a modern articulated building form
consistent in height with surrounding developments, although slightly
elevated due to the raised floor levels required by Melbourne
Water. In general
terms it provides appropriate transition to adjoining buildings particularly the
unit development to the east.
Bulk and mass of the proposed development
development is presented in the form of two attached pairs of dwellings. Two of
those dwellings fronting Beach Street and two
fronting Garden Grove. Three of
the units in fact have access from Garden Grove. The developer has endeavoured
to recess the garages
for each dwelling to ensure that they are not a dominant
element in the streetscape and there is some secluded private open space
ground level. Although the majority of the open space is located at first floor
level in the form of balconies, obviously to maximise
the view towards the
foreshore and the bay, and it is these balconies that in part intrude into the
setback that was of particular
concern to the resident objectors in the area. Mr
English pointed out that these balconies were of lightweight construction with
glazed balustrades to minimise their appearance.
deal with some minor areas of non compliance with ResCode and to reduce the
apparent bulk of the development Mr English proposed
a number of minor changes
to the proposal and these are:
- Screen the first
floor west-facing living room associated with unit 4.
- Reduce the width
of the stairs within the single garages to 500 millimetres, and 380 millimetres
for the double garage.
- The western
ground floor wall associated with unit 4 be lowered to a maximum height of 3.6
- The western
first floor wall associated with unit 4 living room be setback a minimum of 1.9
metres from the western boundary.
- Increase the
size of the bedroom window associated with bedroom 2 of unit 3.
these changes proposed by Mr English to address some of the design issues
(supported by Council) and a further change that I
would discuss in the
conditions section I am satisfied that there is sufficient articulation, use of
materials and overall design
which is appropriate to a beach side location and
will have minimal impact upon adjoining property owners.
residents were concerned about the setbacks of the dwellings and I consider that
in this instance Beach Street is the primary
frontage to the property and the
buildings are setback 4.4 metres from the street consistent with the adjoining
dwelling to the north.
I consider that the balconies with their lightweight
structure and appearance are a suitable intrusion into the setback at first
the site is situated on a corner the required setback to Garden Grove is 3
metres and the setback of units 3 and 4 comply
with this standard.
regard to site coverage and permeability, the proposed site coverage is 56% and
this figure complies with the relevant standard
of ResCode that suggests a
maximum site coverage of 60%.
residents raised concerns regarding car parking and vehicle access to the site
noting that due to its proximity to the railway
station there were parking
restrictions of two hours on street.
parking in the form of garages has been provided to each unit with a double
garage to unit 2, and single garages for the remaining
dwellings with tandem
spaces as well. These garages are setback sufficient from the boundary to allow
an additional tandem space
and I note that unit 2 in fact has the ability to
park three cars on the site. Because four dwellings are proposed there is no
for a dedicated on site visitor space, and with the requirement that
electronically operable garage doors b e provided to each of
the units I do not
consider that there would be traffic difficulties due to cars entering the site
being able to do so without having
to prop into the street and manually open
to the elevated floor plate for each dwelling there is a potential for
overlooking to the north and west. Moreover, this has
particularly to the north with windows being set at a minimum height of 1.7
metres or are screened to a height of
1.7. There is the potential for some
overlooking from ground floor areas however, I note the screening has been
provided to the
decks associated with units 3 and 4, and the remaining
overlooking would be into service yards at ground level to the adjoining
which I do not consider to be in need of detailed attention.
draft landscape plan was submitted as part of Mr English’s submission, and
I note that Coastal Banksias are proposed in the
front setbacks to the
dwellings, however these trees can grow to a mature height of 8 metres and I
consider that the genus selected
may need to be modified in the final landscape
plan as at maturity they will obscure views from the deck areas and will
be pruned by future residents to retain those views with less than
the discussion regarding conditions to this development council indicated that
they would be satisfied with the adoption of
the recommendations put forward by
Mr English in his submission that dealt with screening and adjusted
however have one concern relating to the apparent bulk of the buildings as they
address Garden Grove. This concern is in relation
to unit 2 and in particular
bedroom 4 that fronts Garden Grove. I do not have an issue at ground level
which would be occupied by
a study however the first floor is very long in
length and bedroom 4 steps into the separation proposed between unit 2 and unit
I will therefore require that bedroom 4 for dwelling 2 be deleted which
would leave the main living area, kitchen and balcony at
first floor with the
study, three bedrooms and amenities at ground floor.
2 and 3 are separated by the double garage to unit 2 accessed off Garden Grove
so there is continuous built form along the length
of the site by the Garden
Grove setback. To further minimise the impact of this length of built form I
will require that the raked
roof to the double garage be amended to a flat roof
form that would minimise and further recess its appearance when viewed from
Grove. I can understand why this element was introduced to pick up the
butterfly roof elements in the other units however, I consider
this adds to the
perception of bulk and can be deleted without loss to the integrity of the
follows from the above reasons that it is my conclusion that the decision of the
Responsible Authority should be set aside and
a permit granted.
deciding the conditions to be included on the permit I have had regard to the
draft conditions provided to the Tribunal by the
Responsible Authority and the
submissions and evidence by the parties in addition to the matters that arise
from my reasons.
Construction of four
attached double storey dwellings in accordance with the endorsed plans
the development starts, three copies of 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
The plans must be substantially in accordance with the plans
submitted with the application, but modified to show to the satisfaction
survey plan of the subject land prepared by a licensed land surveyor showing the
location of existing boundary fences and any other
relevant land features in
relation to the title boundaries. Any discrepancies between the plans submitted
for endorsement and the
survey plan must be rectified to the satisfaction of the
schedule of all external materials and finishes. The schedule shall show the
materials, colour (including two sets of colour samples)
and finish of all
external walls, roof, fascias, window frames and paving (including car parking
surfacing). The driveways are required
to incorporate a high quality finish and
not plain concrete.
positioning of all plant and equipment (including air-conditioning units,
heating units, hotwater systems, etc) which is proposed
to be located
externally. Such plant and equipment must be positioned to prevent unreasonable
noise and visual impact.
of a Tree Protection Zone in accordance with Condition 5 of this permit.
location of all service meters generally located in the front of each dwelling.
location and design (including elevations) of any structure to be sited within
the front setback required to accommodate an electricity
meter box. The
structure must be a maximum height of 1.2 metres and designed to minimise the
visual impact on the streetscape and
possible impacts on pedestrian safety and
Sustainable Design Assessment, detailing sustainable design initiatives to be
incorporated into the development must be submitted
to, and approved in writing
by the Responsible Authority. The Sustainable Design Assessment must outline
proposed sustainable design
initiatives within the development such as (but not
limited to) energy efficiency, water conservation, storm water quality, waste
management, material selection and greenhouse emissions. Upon approval the
Sustainable Design Assessment must be incorporated into
that the garage door of each dwelling is remote opening.
upper level north facing kitchen window of Dwelling 1, the upper level north
facing ensuite window of Dwelling 2 and the upper
level west facing living room
window of Dwelling 4 screened to satisfy the requirements of Standard B22
(Overlooking objective -
Clause 55.04-6) of the Hobsons Bay Planning Scheme.
Use of adhesive film to obscure glass is not acceptable.
ground level north facing bedroom, bathroom and laundry windows of Dwelling 1
screened to satisfy the requirements of Standard
B22 (Overlooking objective
– Clause 55.04-6) of the Hobsons Bay Planning Scheme. Use of adhesive film
to obscure glass is not
the first floor west facing living room associated with dwelling
Reduce the width of the stairs within the single garages to 500 millimetres, and
380 millimetres for the double garage
western ground floor wall associated with dwelling 4 be lowered to a maximum
height of 3.6 metres.
western first floor wall associated with dwelling 4 living room be setback a
minimum of 1.9 metres from the western boundary.
Increase the size of the bedroom window associated with bedroom 2 of dwelling
Delete bedroom 4 to dwelling 2.
development as shown on the endorsed plans must not be altered without the
written consent of the Responsible Authority.
to the endorsed plans being made available a bank guarantee or bond of $2000
must be lodged by the owner with the Responsible
Authority to ensure the
satisfactory establishment of landscaping works. Once landscaping has been
completed in accordance with the
endorsed landscaping plan, Council must be
notified so that a site inspection can confirm the landscaping is compliant, and
a 6 week
establishment period will commence. The bank guarantee or bond will be
returned after landscaping has been initially maintained for
that period to the
satisfaction of the Responsible Authority. After the establishment period, the
landscaping must be maintained
in accordance with the endorsed landscaping plan
to the satisfaction of the Responsible Authority.
to the occupation of the buildings hereby permitted, landscaping works as shown
on the endorsed plans must be completed and
thereafter must be maintained to the
satisfaction of the Responsible Authority.
to commencement of works, the following provisions relating to the protection of
the existing street trees must be undertaken
to the satisfaction of the
suitable Tree Protection Zone of 2 metre radius with barrier fence must be
established around the street trees on the Beach Street
and Garden Grove
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’.
area within the Tree Protection Zone must not be disturbed by any means
including parking of vehicles or storage of plant &
soil or waste.
excavation is allowed within the Tree Protection Zone except with the consent of
Council’s Town Planning Department and under
the supervision of a
numbers contrasting in colour to the background must be fixed at the front
boundary of the property as near as practicable
to, or on the letterboxes.
Separate unit numbers must be placed adjacent to the front entrance of each
dwelling, such numbers must
be clearly legible from the access driveway.
service pipes, (excluding downpipes), fixtures and fittings must be concealed on
exposed elevations to the satisfaction of the
alteration of soil level involving an increased or decreased level at the
boundary must be retained by the provision of an adequate
constructed of brick or masonry or other suitable alternative approved by the
Responsible Authority, to buttress
the soil against the possibility of shift.
The construction of this retaining wall must be carried out by the owner. The
wall must remain in place whilst any increase or decrease level is
face brickwork 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.
to the occupation of the buildings hereby permitted, areas set aside for parked
vehicles and access lanes as shown on the endorsed
plans must to the
satisfaction of the Responsible Authority be:
(b) Properly formed to such levels that they can be used in accordance with
(c) Surfaced with an all-weather seal coat.
(d) Drained and maintained.
Parking areas and access lanes must be kept available for these purposes at
basic services, including water, electricity, gas, sewerage and telephone must
be installed underground and located to the satisfaction
of the Responsible
any construction or demolition works commence on the site, a secure fence must
be provided around the perimeter of the site
to prevent access to the site from
unauthorised persons. This fence must be maintained for the duration of the
construction and demolition,
be a minimum height of 1.5m (or such alternative
height as is approved in writing by the Responsible Authority), and be
to the satisfaction of the Responsible Authority. The gate or
opening to the fence must be securely locked at all times when work
on the site.
owner must meet the costs of all alterations to and reinstatement of, the
Responsible Authority and other Public Authority Assets
deemed necessary and
required by such Authorities for the development. The owner must obtain the
prior specific written consent of
the Council or other relevant Authority to
such alterations and reinstatements and must comply with conditions required by
Authority in relation to the execution of such works.
vehicle crossings must be constructed in the location shown on the endorsed plan
to a standard satisfactory to the Responsible
Authority. The relocation of any
services including electricity poles, drainage pits, Telstra pits, fire hydrants
and the like must
be at the expense of the owner and approved by the appropriate
authority prior to undertaking such works. Consent for such crossings
obtained through Council’s City Maintenance and Cleansing Department prior
to commencement of the development the owner must prepare stormwater drainage
design plans to the satisfaction of the relevant
Building Surveyor. An
application to Council must be made for a Legal Point of Discharge for the
disposal of stormwater from the
subject land and to determine the relevant
Council standards for the stormwater drainage system design. An on-site storm
system will be required if the volume of stormwater exceeds the
capacity of the legal point of discharge.
the nature strip is damaged during construction of the development approved or
during the construction of any services, it must
be reinstated and made good,
including the planting of grass at the cost of the owner to the satisfaction of
the Responsible Authority.
garages authorised under this permit must have either a panel lift door or a
roller door and be remote opening to the satisfaction
of the Responsible
fences must be replaced to the satisfaction of the Responsible Authority at no
less than 1.8 metres and no more than 2.0
metres in height and at the full cost
of the owner unless otherwise agreed to in writing by the Responsible
permit will expire if one of the following circumstances applies:
(a) The development is not started within two years of the date of
(b) The development is not completed within four years of the date of this
The Responsible Authority may extend the periods referred to if a request is
made in writing before the permit expires or within three
polluted and / or sediment laden runoff is to be discharged directly or
indirectly into Melbourne Water’s drains or watercourses.
new dwelling or building must be constructed with finished floor levels a
minimum of 2.4 metres to Australian Height Datum (AHD).
new garage must be constructed a minimum of 1.75 metres to Australian Height
fill must be kept to a minimum on the property and should only be used for the
sub floor areas of the dwellings, garages
and driveway ramps.