VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

planning and environment LIST

/ vcat reference No. TP616/2014
Permit Application no. TPA42034

CATCHWORDS

Section 77 Planning and Environment Act 1987; Monash Planning Scheme; General Residential Zone; Extension to existing dwelling; Loss of existing garage; Clause 52.06.
APPLICANT / Connie Allie
RESPONSIBLE AUTHORITY / Monash City Council
SUBJECT LAND / 28 Franklyn Street, Oakleigh East
WHERE HELD / Melbourne
BEFORE / Megan Carew
HEARING TYPE / Hearing
DATE OF HEARING / 25 February 2015
DATE OF ORDER / 6 March 2015
CITATION

Order

1  The decision of the Responsible Authority is set aside.

2  In application TPA42034, a permit is granted for land at 28 Franklyn Street, Oakleigh East in accordance with the endorsed plans and subject to the conditions contained in Appendix A to this order. The permit allows:

·  Extension of a dwelling on a lot less than 300m2 (storage room).

Megan Carew
Member

APPEARANCES

For Applicant / Ms Connie Allie
For Responsible Authority / Ms Sally Moser, Town Planning Consultant, Moser Town Planning Services Pty Ltd.

INFORMATION

Description of Proposal / Conversion of existing garage into a store/ workroom.
Nature of Proceeding / Application under Section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Zone and Overlays / General Residential Zone Schedule 2.
Permit Requirements / Clause 32.08-3 construction and extension of one dwelling on a lot less than 300m2.
Relevant Scheme, policies and provisions / Clause 11, 15, 16, 21, 32.08, 52.06, 54, 65
Land Description / The review site is located on the east side of Franklin Street, Oakleigh East. The site is developed with a single storey dwelling (Planning Permit TPA/24564 issued 4 May 1999). The dwelling is now contained within a separate land title that has an area of 269m2.
Cases cited / Benedetti v Moonee Valley Council [2005] VSC 434
Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246

REASONS[1]

What is this proceeding about?

1  Ms Allie seeks permission to convert her existing single car garage into a store/ workroom for the storage of files associated with her work. The works are limited to the construction of a wall consisting of a window and door across the front of the existing garage. The new wall is setback behind the roller door by 700mm. It has the appearance of a shop front with external roller door. The application is retrospective, in that Ms Allie has already undertaken the works.

2  Council did not raise any concerns about the proposed extension in terms of planning policy, its appearance, amenity or design of the wall. Council refused the application on the grounds that the proposal was not consistent with the provisions of Clause 55[2] and 52.06 (which requires the provision of two car spaces for a three-bedroom dwelling) and may set a precedent.

3  The key issue before me for consideration is whether the loss of the garage car parking space is acceptable.

4  Having considered the State and Local Planning Policy Frameworks, the purpose of the Zone, the decision guidelines of the relevant clauses of the Monash Planning Scheme and the submissions of the parties, I have determined to set aside the decision of the responsible authority. My reasons follow.

5  In coming to my decision, I have adopted the usual practice of the Tribunal in cases where retrospective approval is sought; that is, the applicant should not gain an advantage because the works are there, but at the same time, a permit should not be denied as a form of punishment if on the merits, the proposal is satisfactory.

WHY IS A PERMIT REQUIRED?

6  The need for permit arises pursuant to the provisions of the General Residential Zone at Clause 32.08-3. A permit is required to construct or extend one dwelling on a lot less than 300m2 (the subject land being 296m2). The provisions of Clause 54 would apply.

7  Although the proposal results in the loss of a car space for the existing three-bedroom dwelling, whether there is any need for approval for the loss or reduction of one existing resident car parking space under Clause 52.06 was not clear at the hearing. Under Clause 52.06, a three-bedroom dwelling would require two on site car parking spaces to be provided, unless a permit is granted for a reduction in the requirement. However, the provisions of Clause 52.06 do not apply to:

·  the extension of one dwelling on a lot in the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Mixed Use Zone or Township Zone. (my emphasis).

The provisions of Clause 52.06 do not apply to the extension of one dwelling on a lot.

8  Accordingly, the current provisions of the planning scheme would act to limit the matters I can consider to whether the dwelling extension proposed, through the enclosure of the garage, is acceptable but not whether a reduction in car parking is acceptable. If I were to consider the application solely on the built form matters, not taking into account the loss of the garage, the decision would be a simple one given Council has not raised any concern about the appearance of the wall or its impact on neighbours.

9  However, the existing dwelling was constructed as part of a dual occupancy that has since been subdivided into two allotments. Under the existing planning approval (TPA24564), condition 1 requires:

The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

10  This condition is similar to that considered by the Supreme Court in Benedetti v Moonee Valley Council [2005] VSC 434, where Justice Osborn considered the ongoing operation of development permits. In Benedetti, it was held that the condition continues to have effect while the owner of the land takes the benefit of the permit and consent is required to make alterations. The Tribunal has held that this applies even when the multi-unit development has been subsequently subdivided[3].

11  There are a number of ways in which consent may be sought, whether through secondary consent, by amendment to the planning permit or through a new planning permit application (as is the case before me). Because this application is also seeking to provide consent for changes to the original permit, the fact that the original approval was for a three-bedroom dwelling with two car spaces and that the owner continues to take the benefit of that approval is relevant to my consideration. This is the case, even though the provisions of Clause 52.06 do not apply to a dwelling extension.

Is the loss of the garage acceptable?

12  Ms Allie provided photos of dwellings in the area that only provided one car space or where former garages are now additional living space. In many cases, single dwellings and extensions to dwellings do not require planning approval, nor consideration of car parking standards. This is not the case before me, where the existing dwelling was approved with two car spaces. In addition, any proposal for a new dwelling on the subject site would require a planning permit and also be subject to the provisions of Clause 52.06 and require two car spaces. I need to determine if there are any reasons why in the circumstances of this particular application that the current provision of two car spaces should not continue to apply.

13  Ms Allie submitted that they presently own only one vehicle that is parked on-site in front of the garage. She submitted that even though this is a three-bedroom dwelling, the dimensions of the third bedroom were small and used as a study only. She submitted that the internal dimensions of the garage did not comfortably accommodate a modern vehicle. She considered that any visitors can park on the street and that this area has a good level of accessibility to public transport, bike paths, services and facilities. She also considered that less car parking would result in less traffic congestion and assist environmental considerations.

14  In contrast, Ms Moser submitted that the dwelling if constructed today would require two car spaces. She submitted that there is nothing usual about this site, in terms of its location or services, which would give rise to a reduction in the usual requirement of 2 car spaces. She noted that future owners might require two car spaces. Ms Moser submitted that the loss of the car space would reduce the amenity of the dwelling and that the location of this site opposite an industrial area resulted in potential conflicts with on-street parking. She also raised matters of building approval.

15  I find that the loss of the garage in the particular circumstances of this case is acceptable for the following reasons:

·  There is nothing within the planning scheme or within the conditions of the original planning permit that require that this garage be used solely for the storage of vehicles. Its use as an additional store/ workroom space could occur, even without the proposed enclosure by the wall.

·  The third bedroom/ study is small;

·  The internal width of the garage does not meet modern standards;

·  There are no significant off-site amenity impacts as a result of the garage conversion;

·  There is ample on street car parking near the site. Although this is affected by the industrial land use, it remains available to residents.

·  The loss of the garage would reduce the internal amenity but not result in sub-standard or poor liveability of the dwelling. I find that the dwelling would continue to provide comfortable accommodation for a range of household types.

·  If future owners find the car parking inconvenient, the works are reversible. Future purchasers would need to take into account the lack of garage car space when considering the review site.

·  The proposal is not for additional habitable room space but for storage facilities. I note that there is no internal door to the dwelling from the garage.

·  In respect to matters of daylight and the structural suitability of the wall, these will be matters for building approval.

Will the proposal set an undesirableprecedent?

16  Council submitted that the conversion of the garage would set an undesirableprecedent for future applications. I do not give significant weight to these concerns because each application that requires a permit is considered on its merits and on the law that applies at the time of the decision.

CoNDITIONS

17  Conditions were discussed at the hearing. Ms Moser sought the inclusion of a Section 173 Agreement or other mechanism to provide for the garage to be reinstated upon completion of occupancy. I find that this can be a matter for future owners.

18  Ms Moser also sought a more detailed set of endorsed plans that include an elevation and description of the proposed extension as a storage room. I agree that this would be useful to include for future reference. The use of the room described by Ms Allie for storage of documents associated with her work would accord with the proposed description.

COnclusion

19  For the reasons explained above, the decision of the Responsible Authority is set aside. A permit is granted subject to conditions.

Megan Carew
Member

APPENDIX A

PERMIT APPLICATION NO: / TPA42034
LAND: / 28 Franklyn Street, Oakleigh East
WHAT THE PERMIT ALLOWS:
·  Extension of a dwelling on a lot less than 300m2 (storage room).
in accordance with the endorsed plans.

conditions

1  Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with the advertised plans but modified to show:

a)  An elevation of the works proposed.

b)  Deletion of the notation “proposed garage” and its replacement with the notation “storage room”.

2  The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3  This permit will expire if one of the following circumstances applies:

(a)  The development is not started within two years of the issued date of this permit.

(b)  The development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

--- End of Conditions ---

VCAT Reference No. P616/2014 / Page 7 of 7

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

[2] Clause 55 is not a relevant consideration as this is an application under Clause 32.08-3 for one dwelling on a lot less than 300m2.

[3] Box v Moreland CC (Including Summary) (Red Dot) [2014] VCAT 246.