1. Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended by changing the name of the applicant to:

1. In application P122/2017 the decision of the responsible authority is affirmed.
2. In planning permit application PA1380 no permit is granted.

Mr Tom Vasilopoulos, Barrister instructed by Karavias & Associates Solicitors. He called the following witness:

• Mr Damien Hancox, Traffic Engineer, TTM Traffic Engineering.

Ms Nicola McGowan, town planning consultant, Planning Appeals.

Ms Adele Patterson, Barrister appeared on behalf of the Owners Corporation.

Construction of a dwelling to be used for short term accommodation.

The building is proposed as two storey comprising of eight bedrooms, four at ground level and four at the first floor. Each bedroom includes an ensuite. Separate to the bedrooms are ancillary uses including a kitchen area, a living/dining area and laundry. A sitting room is also provided at the first floor level.

The design of the building is based on a 'timber barn' design, using timber weatherboard cladding and a gable colourbond roof.

It is proposed to provide an additional eight car spaces are provided on site.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Environmental Significant Overlay Schedule 1 (ESO1).

Environmental Significant Overlay Schedule 2 (ESO2).

Clause 32.08-2. A permit is required for accommodation.

Clause 32.08-6 A permit is required for buildings and works.

Clause 42.01-2 A permit is required for buildings and works.

Clause 43.01-1 A permit is required for buildings and works.

Clause 52.06-5 Car parking must be to the satisfaction of the Responsible Authority.

Clauses 11, 15, 17, 21, 22.01, 22.08, 22.12, 52.06, 55 and 65.

The review site is located on Raglan Street (which is also referred to as the Midland Highway). The review site also has a frontage to Rosella Lane which runs in a north-south direction.

The review site has a total site area of 1.18 hectares. The review site is currently occupied by two buildings that provide short term accommodation knows as The Houses Daylesford. These existing houses are located toward the rear of the site with access via Rosella Lane to a gravel driveway. The front of the review site, the proposed location is a landscaped grassed area.

1. This is an application for review against the decision of the Hepburn Shire Council (Council) to refuse to grant a planning permit for the Construction of a dwelling to be used for short term accommodation at 15 Raglan Street, Daylesford.
2. Council refused the proposal on the following grounds:

[1] The proposed development will lead to an over development of the lot and will dominant the streetscape.

[2] The proposed development will detrimentally affect the amenity of the area through an increase in traffic movement along Rosella Lane and adjoining road network.

[3] The proposed development will lead to an intensification of the use of the lot which will affect the amenity of the adjoining and nearby dwelling in the General Residential Zone.

1. At the commencement of the hearing, the objectors raised a preliminary matter and put to me that in the absence of information, the Tribunal is unable to make an informed decision. It was put to me that the existing development does not satisfy the planning permit conditions of the current permit and therefore how can the proposal be considered in the absence of a compliant existing development.
2. Here is what we know about the review site. Planning permit 4502 was issued to 'change existing dwelling into tourist accommodation building with 4 guest rooms, erect business signage and new mezzanine floor to new tourist accommodation building adjoining'. Condition four was highlighted which reads:

[4] That a total of 20 car spaces are to be provided on the property site, for the overall development (as amended), in accordance with condition 3 of Planning Permit No. 4254.

1. The objectors put to me that the existing development fails to comply with condition 4 above as there is not 20 car spaces provided on site. It was further put to me that the application for permit plan that was advertised details a total of 26 car spaces. Mr Hancox however in his traffic evidence submitted that the existing site has a provision of 14 formal parking spaces.
2. What became evident during the hearing is that, according to the objectors, there has been a change in the operation of the existing review site from a Bed & Breakfast (B&B) type use (single rooms rented out to different people) to the houses being rented out for group accommodation. They also put to me that complaints had been raised with Council, although the level and timing of complaints is disputed by the review applicant.
3. My role is to assess the proposed development. My role is not to assess whether or not the existing operations comply with the existing permit attached to the land, although I consider it is valid to note that Mr Hancox detailed a level of non-compliance in terms of the provision of on-site parking.
4. I noted during the hearing that I do not have an application for any enforcement proceeding before me regarding the existing use. However, in considering the proposed dwelling and use of the review site, it is valid to consider the intensity of the existing use of the review site and the additional impact a further dwelling comprising of eight bedrooms would have.
5. The key issues in this matter include:
   1. Will the proposed development have a detrimental impact on the amenity of the neighbourhood?
   2. Is the proposed development an over development of the lot and will dominant the streetscape?
   3. Will the proposed development detrimentally affect the amenity of the area through an increase in traffic movement along Rosella Lane and adjoining road network?
6. I do wish to make the observation that the review applicant has some future work to do. I do not accept that the review applicant did not have a copy of the existing permit applying to the land and that the parking issue is a 'surprise'. Any owner of such a business should be aware and should be fully compliant with planning permit conditions. Part of that process is establishing what permits exist and what conditions apply.
7. Having regard to the evidence and submissions, I have decided to affirm the decision of the Council and order that no permit be granted. The key reason for my refusal is the impact that the proposed use would have on the surrounding residential properties. My reasons follow.

1. The review applicant put to me that the question before me is where the proposal, when viewed in its entirety, would produce 'acceptable outcomes', not optimal or the ideal outcome, but acceptable and that my decision is to be based on the full ambit of planning controls and policies applying.
2. The review applicant further put that purpose of the zone is to provide for a diversity of housing types and housing growth in locations offering good access to services and transport. It was also submitted that development opportunities like this one are rare in Daylesford.
3. There is no debate that Daylesford is a tourism mecca of B&B accommodation and weekenders. The population grows exponentially each weekend and holiday period. People flock to Daylesford and much of the local economy relies on tourism. I also agree with the review applicant that the proposal would 'build on the iconic tourism precinct by introducing short term accommodation for residents and visitors which would result "...in indirect employment and additional spend in 'downstream' industries such as retail suppliers, food production and construction".
4. However, planning policy also seeks to ensure that the amenity of local residents is also protected and can be adequately addressed. Clause 21.03-2 seeks that:

Protection, management and enhancement of the rural and urban environment and amenity that supports rather than detracts from the quality of life enjoyed by the Shire's residents and visitors.

1. In making a decision, the range of policies need to be balanced. Whilst tourism is encouraged, so is the protection of amenity for local residents. In this case, I find that achieving economic policies would be at the expense of protecting the amenity of the local residents.

1. The existing property accommodates two houses that provide up to 26 guests at any one time. I was provided with a copy of permit 4254 that refers to four guest rooms and which it was understood that this is the relevant permit governing the existing use. This fact however remains unresolved and unclear.
2. The review applicant acknowledged that a distinction needs to be drawn between the existing impacts associated with the use, and any additional impacts that might be associated with the proposed short-term accommodation use and made the following submissions:
   • The use is of a residential nature and is consistent with the surrounding residential area;
   • The noise and behaviour issues associated with the proposal would not have any detrimental impact on the adjoining residential properties;
   • The size of the allotment is sufficient to accommodate the intensification of the use including access arrangements, parking provisions without having a significant impact on the amenity to the surrounding area;
   • I was referred to McNaughton v Surf Coast SC[2] where Senior Member Liston directed that a permit be issued for two attached dwellings and one detached dwelling used for short term accommodation (group accommodation). The review applicant highlighted the following observations:

[50] Ms Mahlab in particular was concerned about the risks associated with the management of the proposed group accommodation and the loss of amenity which might stem from the behaviour of guests in the accommodation unit. It is reasonable to raise this issue Ms Mahlab has a very lovely house in a very beautiful location and it is a place of retreat for her and a husband at weekends.

[51] However, in assessing this issue one must try and understand whether or not there is in fact a significant risk. It is possible that for example a bunch of old surfies might rent these accommodation units for a reunion, reliving past glories overlooking the beach they loved in their youth. In their enthusiasm they may, for example, become excessively rowdy, playing loud music at an inappropriate time.

[52] However I think that the risk of this occurring is low and any such events would be infrequent. A more likely outcome is that future guests will come to enjoy the peace and beauty of this place as do the existing residents of the area.

[53] In general terms I think that small scale tourism ventures such as this are not the type of use that warrants complex management regime built into planning permits. Indeed, this complex raises no more risks than other homeowners in this locality making their own home available for rent by holidaymakers during summer. Moreover, I am reassured in this conclusion, that the tourist accommodation is unlikely to be a source of significant disturbance to the peace of neighbours, by the fact that there are quite significant distances between the proposed accommodation units and nearby residences.

1. I am not persuaded by the review applicant that the amenity impacts are 'not different to the amenity impacts that can be expected by any residential use in a residential area'. I find that based on the submissions, the proposal would have an unreasonable impact on the amenity of the adjoining properties for the following reasons:
   • The review site in total would accommodate up to 42 (existing 26 plus a further 16) guests at any one time, to be spread over three buildings. That number of guests is generally more than a single dwelling accommodates in a modest residential area such as the location of the review site;
   • Unlike the decision referred to above, I do not think that potentially 42 people on one property is considered to be a 'small scale tourism venture'. A number of 42 people arriving for a weekend visit would result in an increase in activity on the site, parking and traffic issues, guests arriving at different times and the potential for noise at varying hours. These impacts are beyond what is currently experienced as a dwelling within the immediate location;
   • This is a modest residential area accommodating single dwellings. A number of units are located to the east of the review site and share Rosella Lane for access. They are in close proximity to the review site;
   • Whilst planning policy encourages tourism in Daylesford, it also seeks to protect the amenity of residents. This may be a large site, but the proposed dwelling is to be located in the front portion of the review site with its frontage to Raglan Street. It is also the closest point to a number of residential dwellings. The review applicant noted the inclusion of double glazed windows, but I do not consider that alone addresses my concerns. For instance, an outdoor dining area is located to the west of the proposed building to the western boundary. This area would be a dining area for 16 people. It may be argued that single dwellings can hold dinners and parties for 16 people, so what is the difference. The key difference is that the occupants of the building are different each weekend and that according to the review applicant the existing operation is busy and successful. It is also noted that this dining area is located adjoining an existing single dwelling and their rear private open space;
   • There is potential for increased noise above what is existing. Objectors submitted that a further dwelling and eight bedrooms would result in a use that is too intense for this residential area. As Member O'Leary observed in JE Blundell v Surf Coast[3], even if conditions via a management plan were imposed, I am not convinced that they would be complied with. As I stated earlier, I have no enforcement order request before me, but the objectors submitted a range of concerns and complaints against the existing operation. I make no comment as to the validity of these complaints, other than to suggest that it would seem that the existing use is not currently 'a good neighbour' and there may be concerns with noise and impacts on the existing residential properties. There is potential for unreasonable noise impacts from a further eight bedrooms in the proposed dwelling. This is particularly because, as stated above, the proximity to a single dwelling and its rear private open space.
2. I am not persuaded that achieving planning policies seeking and encouraging tourism should be at the expense of policies that seek to ensure local residents amenity is protected. I am not persuaded by the review applicant that the proposed dwelling with a further eight bedrooms would not have an unreasonable impact on the amenity of the surrounding residential properties.

1. Council refused the proposed development on the ground that the proposed use would detrimentally affect the amenity of the area through an increase in traffic movement along Rosella Lane and adjoining road network.
2. The review applicant put to me that the provision of parking is 'to be to the satisfaction of the Responsible Authority', required by clause 52.06-6. It was further submitted that Council determined that the provision of eight additional car spaces dedicated to the new building is adequate. I agree with the review applicant and Council that eight spaces would seem adequate to meet the demand of eight additional bedrooms. However, the issue as raised by the objectors is the lack of parking overall for the existing use.
3. Mr Hancox in his evidence put that there are currently 14 car spaces provided on the review site. He further provided that the car parking spaces can be designed to meet the design criteria in clause 52.06-9. I find that the review site may be large enough to accommodate the extra spaces, but Mr Hancox's design and layout was not before me. Mr Hancox, under cross examination, advised me that as the car spaces were proposed (and advertised as part of the planning application), they were not considered acceptable.
4. This matter is unresolved. Whilst an additional eight spaces may be an acceptable number of car spaces for eight bedrooms, the layout as proposed and advertised is unacceptable. For example, three spaces are proposed behind the proposed building however there is vegetation in this location. There is no assessment of the impact of these spaces on the tree roots etc. There was also no assessment of the impact of parked cars along the boundary shared with the adjoining single dwelling. How will the impact on the adjoining private open space, such as headlight glare and noise be managed?
5. Concern was also raised regarding the use of Rosella Lane for increased traffic. The objectors advise that Rosella Lane operates as a single carriageway with vehicles having to wait on Raglan Street to allow traffic to exit. There was also a concern raised that vehicles reversing from the tandem spaces, reverse onto private property.
6. If cars are reversing onto private property, then measures may have to be taken to ensure this doesn't occur such as bollards or other measures. This is something that is not before me. I do however note that given this is an issue, it would be preferable for all car spaces provided on the review site to be able to exit the review site in a forward direction. This is currently not the case.
7. I am not refusing the proposed development because of reasons due to an increase in traffic to Rosella Lane. This is due to the fact that if in the future there is another proposal, traffic and parking measures will be required to be fully assessed.

1. Clause 22.08 - Daylesford Neighbourhood Character policy identifies the review site as within the Neighbourhood Character Precinct 11. The current character statement at cluse 22.13 - 2 describing Precinct 11 reads:

The precinct is distinct for its flat topography and predominantly post-war to recent housing stock with a number of older heritage listed buildings. The consistently large dwelling setbacks and low front fences add to the spaciousness of the area. The area forms the link between the open pastoral landscape beyond and the formal avenue planting of The Avenue of Honour at the entrance to the town which extends to Malmsbury along the Midland Highway. In contrast to this spacious context, the intersection of the highway with the local streets is partially delineated by historic buildings built to the boundary.

1. The preferred neighbourhood character statement reads:

The spaciousness of the dwelling settings will be maintained and the definition of the entrance way to the town will be strengthened by:

• Encouraging the development of buildings to better define the highway intersection, and provide a sense of entrance to the town.
• Encouraging low front fences.
• Maintaining and enhancing the avenue planting.

1. The proposed development is a 'barn like' structure located 1 metre off the east boundary. I note there was objection to the proposed built form on heritage grounds and I also have no objection in principle to a 'barn like' structure but do consider that any future design should consider the setback off the eastern boundary being Rosella Lane.
2. The subject area is a modest low scale area with single storey dwellings fronting Raglan Street. Despite being on a main road to the Daylesford township, the review site and immediate surrounds have an open front garden and rural feel to it, with dwellings generally sitting amongst gardens. The exception to this is seven units that are located off Rosella Lane, opposite the existing Station House (on the review site).
3. Rosella Lane is a narrow lane that serves a number of properties. The length of the proposed building at approximately 28 metres and two storeys in height will be an overwhelming built form to the laneway. There is an insufficient eastern boundary setback at 1 metre to provide any meaningful garden area.
4. I find that the proposed building is at odds with the garden setting of the review site and immediate neighbourhood and at odds with the preferred neighbourhood character statement which seeks to retain the spaciousness of the dwelling settings. The proposed built form will have a jarring visual impact to the review site and the neighbourhood.
5. The inclusion of the proposed building in this front garden is out of character with the area and is an overwhelming built form. It will create a sense of closure to the narrow Rosella Lane and will be overbearing. I find the proposed building in this location an unacceptable outcome for the neighbourhood.

1. I acknowledge the submission of the review applicant that development opportunities are rare in Daylesford and that this site achieves many policies regarding economic development and tourism. However, planning policy also seeks protection of the amenity of the local residents. In this case, I find that the proposed development of a further dwelling containing eight bedrooms for short term accommodation would have an unreasonable impact on the surrounding residential properties.
2. It is not good planning to make a decision in isolation of all the facts. In this case, it was evident that nobody understood what approvals applied to the land and what conditions were required to be complied with. These issues must be addressed. In considering this proposal, it is reasonable to take into account the intensity of the existing use as well as considering the impact of the proposed dwelling accommodating eight bedrooms.
3. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] [2016] VCAT 2107.

[3] [2007] VCAT 774.