[Read the permit applicant response in a separate post below] This is a disclaimer. Please seek professional town planning or legal advice relevant to your needs. Do not rely on the information provided herein.
You can follow along using the links to view the exhibits submitted to VCAT in the appeal.
[see image exhibits- local]
[see image exhibits- neighboring municipalities]
[see image exhibits- overlooking]
[see image exhibits- permit applicant streetscape]
The following case study is about a couple living in the inner city Melbourne suburb of Fitzroy North who successfully challenged a City Of Yarra Notice Of Refusal for a planning permit in 2006. The couple (or permit applicant) had applied for a planning permit to have a screening device ( also commonly known as a privacy screen) erected on their first level balcony. The couple submitted that the privacy screen was necessary to mitigate the effects of overlooking caused a neighboring development, which was previously approved by City Of Yarra Planning Department. Although no part of this article should be construed as advice, the underlying message is that in cases where town planning matters are concerned, consulting a professional town planner for advice (or a town planning law firm for advice) should be considered if one is serious about challenging a Notice Of Refusal (NOR). When the couple in this case engaged the services of legal group Russell Kennedy they were advised that a day of professional representation at the appeals tribunal ( VCAT ) could amount to a costly exercise and were advised to try and settle the matter amicably with their local council if possible in order to save on costs. The couple attempted to negotiate and settle with the local council, but were largely ignored and subsequently issued with a Notice Of Refusal (NOR). The couple appealed the City Of Yarra decision at the Victorian Civil and Administrative Tribunal ( VCAT ) representing themselves at VCAT. The money which they had invested in obtaining the town planning advice was well spent. Their appeal at the VCAT was successful and the City Of Yarra decision was 'set aside'.
The notice of refusal was issued according the planning authority's interpretation of State Planning Policy and Local Planning Policy Guidelines. In his Delegate Report, planning officer, Mr. John Theodosakis for the responsible planning authority cited:
State Planning Policy Framework (SPPF)
Ensuring the design of buildings, public spaces and the mix of activities contribute to safety and perceptions of safety.
Remarkably, Mr. Theodosakis went on further to add that "the proposed screening will have no impact on the heritage significance of the precinct, as the building has no heritage importance", yet cited the following:
Clause 15.11 of the State Planning Policy Framework
To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific of social significance or other value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria’s image and making a contribution to the economic and cultural growth of the State ...
Local Planning Policy Framework (LPPF)
Clause 21.05-1 of the Yarra Planning Scheme was also used in the planning authority's submission.
To provide pedestrian spaces and links that provide a safe, inclusive, attractive, and vibrant public domain and a sense of community.
In his Delegate Report, planning officer, John Theodosakis for the responsible planning authority submitted that the proposed screen would undermine the visual amenity of the streetscape , create safety issues by obscuring passive surveillance of the street and was an attempt to produce a private open space area at the first floor, which the responsible authority claimed was"inappropriate"
Indeed the appropriateness or inappropriateness of the proposal was the pivotal point that was to be established by the presiding member of VCAT. The permit applicant argued that the privacy screen was appropriate, given that there were similar devices within the City Of Yarra and outside the City Of Yarra in what the permit applicant submitted were "arguably less needy situations" The permit applicant argued that many of the screening devices were even located in pristine heritage areas and presented comparisons between the existing structures and their own proposal to demonstrate that overlooking, glare and ventilation issues in their case added weight to their argument.
The permit applicant submitted that the screening device (privacy screen) would allow them once again to enjoy full use of their balcony. The permit applicant claimed that the construction of the five new three level apartments / townhouses opposite to their dwelling, had resulted in problems associated with overlooking. The permit applicant argued that balconies and windows of the new development directly overlooked the second level balcony and living area of the permit applicant dwelling. In addition to overlooking issues it was also submitted that at certain times of the year there was a significant amount of glare being reflected from the new building across the road to the permit applicant dwelling. Further to their cause, the permit applicant claimed that enjoyment of the interior and exterior private living space of the dwelling was diminished as they did not feel comfortable using the balcony space and also felt very uncomfortable leaving their blinds open.
Contrary to Yarra City Councils assertion that a privacy screen would diminish passive surveillance, the permit applicant argued that passive surveillance was already diminished by saying:
[Pictured: Prestigious development where privacy screens are used - Contrary to City Of Yarra argument. Note the lack of uniformity, as some apartments do feature screens whilst others do not]
Professor Ross Garnaut Case - A Precedent For City Of Yarra heritage Policy?
Since this Article was written, the media has widely reported a City Of Yarra decision to approve Professor Ross Garnaut's permit application for a modern structure in a a heritage sensitive area with Yarra City. As you may well be aware, Professor Ross Garnaut Is the renowned economist that recently handed down The Garnaut Report as the Rudd Labor Government's Climate Change Advisor.
Considering how seemingly impossible it is to get something as minor as a privacy screen approved by City Of Yarra in a semi industrial street; how does the City Of Yarra planning department justify approving a entire modern structure in a rich heritage character filled area? The fact that Yarra City has approved Professor Garnaut’s application in this case, despite the strong objections of ten neighbors who make a case for stringent heritage policing is a question which begs an answer. Another issue that needs to be explored is if future permit applicants (who are rejected on the basis of heritage) are going to be successful in using Ross Garnaut's permit approval as a precedent, if their circumstances are similar.
[see image exhibits- neighboring municipalities]
[see image exhibits- overlooking]
[see image exhibits- permit applicant streetscape]
The following case study is about a couple living in the inner city Melbourne suburb of Fitzroy North who successfully challenged a City Of Yarra Notice Of Refusal for a planning permit in 2006. The couple (or permit applicant) had applied for a planning permit to have a screening device ( also commonly known as a privacy screen) erected on their first level balcony. The couple submitted that the privacy screen was necessary to mitigate the effects of overlooking caused a neighboring development, which was previously approved by City Of Yarra Planning Department. Although no part of this article should be construed as advice, the underlying message is that in cases where town planning matters are concerned, consulting a professional town planner for advice (or a town planning law firm for advice) should be considered if one is serious about challenging a Notice Of Refusal (NOR). When the couple in this case engaged the services of legal group Russell Kennedy they were advised that a day of professional representation at the appeals tribunal ( VCAT ) could amount to a costly exercise and were advised to try and settle the matter amicably with their local council if possible in order to save on costs. The couple attempted to negotiate and settle with the local council, but were largely ignored and subsequently issued with a Notice Of Refusal (NOR). The couple appealed the City Of Yarra decision at the Victorian Civil and Administrative Tribunal ( VCAT ) representing themselves at VCAT. The money which they had invested in obtaining the town planning advice was well spent. Their appeal at the VCAT was successful and the City Of Yarra decision was 'set aside'.
When the couple (referred to herein as “the permit applicant”) first purchased their inner city three level dwelling, it faced opposite a small one-storey windowless building. However, a few years later, the town planning department of their local council, City Of Yarra, granted a planning permit allowing a developer to convert the one storey building into a three-storey apartment block. It was the view of the permit applicant that City Of Yarra's decision was a shortsighted planning decision which resulted in a loss of amenity. The loss of amenity was primarily due to overlooking issues caused by the heights and proximity of the two buildings which were situated less than 18 meters apart from one another across a very narrow street. [see image exhibits] Not wanting to be forced out of a home in addition to being compromised by a potential devaluation in property value, the permit applicant applied to have a privacy screen erected above the existing 1.17 meter high balustrade to the first floor balcony, but were refused a planning permit and issued with a Notice Of Refusal (NOR) by City Of Yarra Planning. In most municipalities the simple construction of a screening device (privacy screen) wouldn't require a planning or building permit, however, this area was located in Heritage Overlay 327 (North Fitzroy Precinct) so a planning permit was required to carry out works.
The notice of refusal was issued according the planning authority's interpretation of State Planning Policy and Local Planning Policy Guidelines. In his Delegate Report, planning officer, Mr. John Theodosakis for the responsible planning authority cited:
State Planning Policy Framework (SPPF)
Ensuring the design of buildings, public spaces and the mix of activities contribute to safety and perceptions of safety.
Remarkably, Mr. Theodosakis went on further to add that "the proposed screening will have no impact on the heritage significance of the precinct, as the building has no heritage importance", yet cited the following:
Clause 15.11 of the State Planning Policy Framework
To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific of social significance or other value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria’s image and making a contribution to the economic and cultural growth of the State ...
Local Planning Policy Framework (LPPF)
Clause 21.05-1 of the Yarra Planning Scheme was also used in the planning authority's submission.
To provide pedestrian spaces and links that provide a safe, inclusive, attractive, and vibrant public domain and a sense of community.
In his Delegate Report, planning officer, John Theodosakis for the responsible planning authority submitted that the proposed screen would undermine the visual amenity of the streetscape , create safety issues by obscuring passive surveillance of the street and was an attempt to produce a private open space area at the first floor, which the responsible authority claimed was"inappropriate"
Indeed the appropriateness or inappropriateness of the proposal was the pivotal point that was to be established by the presiding member of VCAT. The permit applicant argued that the privacy screen was appropriate, given that there were similar devices within the City Of Yarra and outside the City Of Yarra in what the permit applicant submitted were "arguably less needy situations" The permit applicant argued that many of the screening devices were even located in pristine heritage areas and presented comparisons between the existing structures and their own proposal to demonstrate that overlooking, glare and ventilation issues in their case added weight to their argument.
The permit applicant submitted that the screening device (privacy screen) would allow them once again to enjoy full use of their balcony. The permit applicant claimed that the construction of the five new three level apartments / townhouses opposite to their dwelling, had resulted in problems associated with overlooking. The permit applicant argued that balconies and windows of the new development directly overlooked the second level balcony and living area of the permit applicant dwelling. In addition to overlooking issues it was also submitted that at certain times of the year there was a significant amount of glare being reflected from the new building across the road to the permit applicant dwelling. Further to their cause, the permit applicant claimed that enjoyment of the interior and exterior private living space of the dwelling was diminished as they did not feel comfortable using the balcony space and also felt very uncomfortable leaving their blinds open.
Contrary to Yarra City Councils assertion that a privacy screen would diminish passive surveillance, the permit applicant argued that passive surveillance was already diminished by saying:
“We do not survey the street from the balcony, nor do we survey the balcony from the interior balcony windows of our dwelling. ...Our day to day environment has now become extremely uncomfortable, as we feel very confined.”
The responsible planning authority had conceded that: “…the [permit applicant] dwelling itself is of no heritage significance" but wanted to maintain an argument under heritage grounds by citing:
The responsible planning authority had conceded that: “…the [permit applicant] dwelling itself is of no heritage significance" but wanted to maintain an argument under heritage grounds by citing:
Clause 21.05.7 of the Yarra Planning Scheme which aims:
To conserve places of aesthetic, archaeological, architectural, cultural, historical, scientific and social significance which reflect Yarra’s historic development.
And
To conserve places of aesthetic, archaeological, architectural, cultural, historical, scientific and social significance which reflect Yarra’s historic development.
And
Clause 22.02-3.3 of the Yarra Planning Scheme which relates to additions and new works: all heritage places. [see images of heritage place in the context of the permit applicant street]
"...Will not visually dominate an existing heritage place or street in terms of size, height and bulk when viewed from surrounding streets"
Mr.Theodosakis wrote:
"While it is acknowledged that the subject site is not a heritage place, it is included within the heritage overlay and therefore it must be assessed against Council policy"
“The installation of the screening device (privacy screen) would effectively form a wall to the street that is not visually transparent, thereby creating a situation which is at odds with not only the subject site, but surrounding contemporary dwellings that form part of the overall development.”
[Pictured: Extremely large privacy screens in Richmond]
The planning authority clearly didn't take into account the fact that privacy screens were already in widespread use inside the City Of Yarra and outside the municipality but rather, had this to say:
"The design of the screening device (privacy screen) is considered to make a mockery of orderly planning as there are clearly other design options available from screening the first floor living room which does not involve construction of such a high screen."
The permit applicant submitted that the planning authority's assertion regarding the screen being detrimental to the character of the overall complex or street was flawed as there are many cases where visual elements are placed on buildings simply to provide interest [see images opposite and below] and successfully demonstrated this to the satisfaction of VCAT.
The permit applicant submitted:
"To cite an example where uniformity is intentionally broken to provide visual interest without detriment to the streetscape we refer to the dwellings [across the road from the permit applicant dwelling] Four dwellings are rendered solid brick units and the fifth contrasts very sharply and is of a completely different design as it is clad in metal and features thirteen wire cables stretched vertically down the full length of the building simply as a design element."
[Pictured: Example where design elements are employed to break uniformity]
Negotiations & Council Planning Dept Responses Prior To NOR
From the onset of the application, the permit applicant had requested a planner from Yarra City Council's planning section to conduct an on-site inspection and was told that the proposal was likely to be rejected if the permit applicant did not negotiate to agree to accept a smaller screen. A few more requests for on-site inspection later, the permit applicant felt that Yarra Council's planning officer was being resistant to the request and so engaged the services of legal group Russell Kennedy. With the help of a (urban planning qualified) paralegal representing, council finally committed to an on-site inspection.
Present at the inspection were the paralegal representative, two City Of Yarra Planning Department members and the two property owners who were applying for the screen. At some point during the meeting the two Yarra City Council planning officers made it clear that the council would in all likely hood reject the proposal. On behalf of the permit applicant the paralegal representative asked the planning officers it they were willing to negotiate and signaled to them that the permit applicant was willing to adapt the materials and nature of the proposed structure to achieve a mutually desirable outcome.
By the end of the meeting the two council town planners made it clear that they were not interested in seeing any structure being put in place, whether a transparent screen or a shade sail.
Legal Advice Received The Town Planning Specialist & Permit Applicant Strategy
Initially, the permit applicant was advised by their legal representatives to negotiate with the council planning department to avoid outright refusal. Some time after the onsite inspection, the council signaled to the permit applicant via the permit applicant's representative that it might consider a smaller 1.7m high screen proposal was put forward. Reluctantly, the permit applicant then asked the representative to put forward the proposal to the council's planning department. The proposal was rejected. The permit applicant suspected that this was simply a council strategy to weaken the permit applicant proposal should it go to VCAT for review.
Following the Notice Of Refusal for a planning permit, the permit applicant wanted to retain the representative and was advised to do so on a limited consultant basis, given the relatively small nature of the project. The permit applicant followed this advice and had also devised a strategy of their own. The strategy was to highlight a major inconsistency between the planning authority's basis for a refusal in this case against examples of previous developments.
In summing up the permit applicant argued:
" If the City Of Yarra wishes that our application be assessed against Yarra City council’s policy then we would submit that it be tested against some of the sample exhibits that we have provided."
The suggestion of precedent and use of photographic exhibits were invaluable in this case as they made the strongest point possible. In her summation, the VCAT Member presiding over the appeals case stated:
"[the permit applicant]... provided many many examples of screening found within the City of Yarra and neighboring municipalities. The photographs included examples of where within the one development some units were provided with screens, whilst others were not."
Mr.Theodosakis wrote:
"While it is acknowledged that the subject site is not a heritage place, it is included within the heritage overlay and therefore it must be assessed against Council policy"
“The installation of the screening device (privacy screen) would effectively form a wall to the street that is not visually transparent, thereby creating a situation which is at odds with not only the subject site, but surrounding contemporary dwellings that form part of the overall development.”
[Pictured: Extremely large privacy screens in Richmond]
The planning authority clearly didn't take into account the fact that privacy screens were already in widespread use inside the City Of Yarra and outside the municipality but rather, had this to say:"The design of the screening device (privacy screen) is considered to make a mockery of orderly planning as there are clearly other design options available from screening the first floor living room which does not involve construction of such a high screen."
The permit applicant submitted that the planning authority's assertion regarding the screen being detrimental to the character of the overall complex or street was flawed as there are many cases where visual elements are placed on buildings simply to provide interest [see images opposite and below] and successfully demonstrated this to the satisfaction of VCAT.
The permit applicant submitted:
"To cite an example where uniformity is intentionally broken to provide visual interest without detriment to the streetscape we refer to the dwellings [across the road from the permit applicant dwelling] Four dwellings are rendered solid brick units and the fifth contrasts very sharply and is of a completely different design as it is clad in metal and features thirteen wire cables stretched vertically down the full length of the building simply as a design element."
[Pictured: Example where design elements are employed to break uniformity]
Negotiations & Council Planning Dept Responses Prior To NOR
From the onset of the application, the permit applicant had requested a planner from Yarra City Council's planning section to conduct an on-site inspection and was told that the proposal was likely to be rejected if the permit applicant did not negotiate to agree to accept a smaller screen. A few more requests for on-site inspection later, the permit applicant felt that Yarra Council's planning officer was being resistant to the request and so engaged the services of legal group Russell Kennedy. With the help of a (urban planning qualified) paralegal representing, council finally committed to an on-site inspection.
Present at the inspection were the paralegal representative, two City Of Yarra Planning Department members and the two property owners who were applying for the screen. At some point during the meeting the two Yarra City Council planning officers made it clear that the council would in all likely hood reject the proposal. On behalf of the permit applicant the paralegal representative asked the planning officers it they were willing to negotiate and signaled to them that the permit applicant was willing to adapt the materials and nature of the proposed structure to achieve a mutually desirable outcome.
By the end of the meeting the two council town planners made it clear that they were not interested in seeing any structure being put in place, whether a transparent screen or a shade sail.
Legal Advice Received The Town Planning Specialist & Permit Applicant Strategy
Initially, the permit applicant was advised by their legal representatives to negotiate with the council planning department to avoid outright refusal. Some time after the onsite inspection, the council signaled to the permit applicant via the permit applicant's representative that it might consider a smaller 1.7m high screen proposal was put forward. Reluctantly, the permit applicant then asked the representative to put forward the proposal to the council's planning department. The proposal was rejected. The permit applicant suspected that this was simply a council strategy to weaken the permit applicant proposal should it go to VCAT for review.
Following the Notice Of Refusal for a planning permit, the permit applicant wanted to retain the representative and was advised to do so on a limited consultant basis, given the relatively small nature of the project. The permit applicant followed this advice and had also devised a strategy of their own. The strategy was to highlight a major inconsistency between the planning authority's basis for a refusal in this case against examples of previous developments.
In summing up the permit applicant argued:
" If the City Of Yarra wishes that our application be assessed against Yarra City council’s policy then we would submit that it be tested against some of the sample exhibits that we have provided."
The suggestion of precedent and use of photographic exhibits were invaluable in this case as they made the strongest point possible. In her summation, the VCAT Member presiding over the appeals case stated:
"[the permit applicant]... provided many many examples of screening found within the City of Yarra and neighboring municipalities. The photographs included examples of where within the one development some units were provided with screens, whilst others were not."
[Pictured: Prestigious development where privacy screens are used - Contrary to City Of Yarra argument. Note the lack of uniformity, as some apartments do feature screens whilst others do not]
Professor Ross Garnaut Case - A Precedent For City Of Yarra heritage Policy?
Since this Article was written, the media has widely reported a City Of Yarra decision to approve Professor Ross Garnaut's permit application for a modern structure in a a heritage sensitive area with Yarra City. As you may well be aware, Professor Ross Garnaut Is the renowned economist that recently handed down The Garnaut Report as the Rudd Labor Government's Climate Change Advisor.
Considering how seemingly impossible it is to get something as minor as a privacy screen approved by City Of Yarra in a semi industrial street; how does the City Of Yarra planning department justify approving a entire modern structure in a rich heritage character filled area? The fact that Yarra City has approved Professor Garnaut’s application in this case, despite the strong objections of ten neighbors who make a case for stringent heritage policing is a question which begs an answer. Another issue that needs to be explored is if future permit applicants (who are rejected on the basis of heritage) are going to be successful in using Ross Garnaut's permit approval as a precedent, if their circumstances are similar.
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