The decision of the Responsible Authority in permit application no. P04 - 1132 is varied. A permit is granted and is directed to be issued. The permit relates to the land at No. 900A Pt Nepean Highway, Rosebud. The permit will allow the development of roof deck in accordance with the endorsed plans and subject to the conditions included in the Notice of Decision dated 6 September 2004, with the following variations:

• Condition 1(a) is deleted and replaced with the following:

(a) The roof deck reduced in size by setting back the northern elevation by no less than 2.5 metres and setting back the western elevation by no less than 2 metres from the lower level western elevation (so that the layout of the deck narrows in its southern half to become L-shaped).

(b) A comprehensive schedule of materials, external finishes and colours.

• Condition 6 is amended by the addition of the following words: "with the exception of the vertical projection of the concertina staircase when the roof deck is in use. The circular staircase to the north-west of the dwelling is not permitted to be used to access the deck".

• Condition 7 is deleted and replaced with the following:

7. No shade sails, umbrella, other shading device, plant, equipment or furniture may be fixed, installed or stored above the roof line of the dwelling, with the exception of an umbrella, table(s) and seating that may be on the roof deck on a temporary basis and only when the deck is in use by the occupants of the dwelling.

Mr A Jones of Melbourne Town Planning Consultants Pty Ltd.

1

These proceedings relate to two Applications arising from a decision made by the Mornington Peninsula Shire Council ("the Council") to determine to grant a permit in application no. P04-1132. The Notice of Decision ("the Notice") was issued on 6 September 2004. The Applications are:

•

under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Alderock Investments Pty Ltd, K Camm and E M Dewar seeking review of the Council's decision. The Applications for Review were lodged on 28 September 2004.

•

under Section 80 of the Act brought by A Kaufman seeking review of conditions included in the Notice. The Application was lodged on 11 October 2004 seeking review of Conditions 1(a), 2, 6 and 7.

2

The subject site is located on the north side of Pt Nepean Road, opposite the Rosebud Village shopping precinct. The land is to the rear of an existing dental clinic that, as Lot 1, was subdivided from the subject land by a permit issued by Council in 2001. The existing house on the review site is substantial and attached to the dental clinic. The structures are distinctive for their height, form and pink colouring. The dwelling was approved with a height to 7.3 metres. It is double storey and setback from a carriageway easement to the east by a minimum of 2.3 metres, from the north or rear boundary by 2.6 metres and from the west boundary by 1.3 metres. The dwelling has a large upper level balcony around the structure and expansive windows that overlook adjacent properties. I was advised that landscaping in the form of screen planting along the rear boundary has not been completed, although it is required by the relevant permit.

3

The adjacent properties to the east, north and south are single storey. These are the properties owned and occupied by the Applicants seeking review of the Council's decision to grant a permit and all enjoy a northern boundary abutting the foreshore reserve. Each has open space that faces to the north. Some of the features of the adjacent properties are:

•

The dwelling to the east, at No. 896 Pt Nepean Road, is setback by some 30 metres from the street and further north than the dwelling on the review site. There is some planting on this lot that causes the dwelling and front garden to be quite secluded from the main road.

•

The dwelling to the north, at No. 898 Pt Nepean Road, is accessed via an easement along the eastern boundary of the review site leading to a paved parking area south of the single storey dwelling. There is an indication that this area is also used as open space, with a further small area on a raised porch adjacent to the dwelling's entry. There are openable opaque windows in the rear (south) elevation. This dwelling is used on occasion as a bed and breakfast facility.

•

To the west of the review site, at No. 1 Rosebud Parade, is a dwelling that has a narrow area of private open space to its south (side when viewed from Rosebud Parade). There are habitable room windows in the eastern elevation of the building.

4

There is an optometrist operating from a former dwelling at the north-east corner of Rosebud Parade and Pt Nepean Highway that also abuts the review site.

5

The area includes a diverse mix of older and more recent single and double storey dwellings and varied vegetation cover.

6

The permit applicant seeks approval to construct a deck on the roof of the existing dwelling. The "garden terrace" would measure 9 metres by 5 metres and would be accessed by a concertina staircase that would fold down within the first floor living room. The deck would be located to the west side of the roof, with a setback of 0.75 metres from the north façade, between 3 - 5.5 metres along the west elevation, and between 5 - 7.5 metres from the east elevation. A 1 metre high stainless steel wire balustrade is proposed around the deck that would match the existing balconied areas. No fixed sail structures or the like are proposed.

7

The following provisions of the Mornington Peninsula Planning Scheme ("the Scheme") are relevant to the proceedings:

•

The subject land is zoned Residential 1 where a permit is not required for the proposed works pursuant to the provisions of Clause 32.01.

•

Two overlays apply to the land where the provisions of the Schedule and Clauses 42.01 and 43.02 are relevant:

o Design and Development Overlay Schedule 1 Township Design where a permit is required for works that exceed 6 metres in height;

o Environmental Significance Overlay Schedule 25 Port Phillip Coastal Area where a permit is required for buildings and works.

•

Local policies at Clause 21 and Clause 22.13 (township character).

•

Other Clauses including Clauses 11, 14, 15.08, 16, 19.03 and Clause 65 (general decision guidelines). The provisions of Clause 54 are brought into consideration pursuant to the provisions of DDO1.

8

In addition I have had regard to Melbourne 2030.

9

I have considered the submissions presented assisted by my inspection of the review site (from the roof aided by markers showing the edges of the proposed deck) and adjacent sites. I do not recite all of the material presented, although I do refer to some of the main points. I set out my findings in relation to the key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issues are whether the proposal is acceptable in terms of the character of the area or would result in unreasonable off-site amenity impacts.

10

I start with a matter that is common ground between the parties in terms of the submissions presented at the Hearing, being that the provisions of the ESO25 are not in issue in this case. That ESO is most concerned with the relationship of a proposal involving buildings and works to the coastal area. The relevant objective under that control is whether the works would have an unreasonable or unacceptable impact on the natural features, vegetation, ecological diversity, landscape quality, heritage values and recreation opportunities of the Port Phillip Bay coastal area and associated intertidal and marine habitats. More broadly, it is reasonable to consider whether critical and scenic viewpoints from the public realm would be impinged upon (Clauses 15.08, 19.03, 21.08 & 22.13 and the Victorian Coastal Strategy Design and Siting Guidelines). I accept the positions put by the parties that the permit application does not fail on any of these matters.

11

I now refer to the broad considerations of streetscape and neighbourhood character before addressing impacts on adjacent properties. The provisions of Clause 54 and DDO1 refer to buildings and works being respectful of neighbourhood and streetscape character particularly (as specified in DDO1) in terms of height, scale and siting. The DDO1 design objectives include other specific outcomes, including:

To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.

12

The objective of Clause 54.06, referring to detailed design, is to encourage design detail that respects the existing or preferred neighbourhood character. Standard A19 provides that the design of buildings including roof form, verandahs, eaves and parapets should respect the existing or preferred neighbourhood character. Relevant decision guidelines that must be considered include the design response, the effect on the visual bulk of the building and whether this is acceptable in the neighbourhood setting as well as whether the design is innovative and of a high architectural standard.

13

Mr Jones submitted that rooftop decks are not characteristic in the area. He submitted that the existing building on the review site already well exceeds the general requirements of DDO1 and is highly visible. Consequently, Mr Jones said that the proposed works would draw unwanted attention to the building and he contended that the addition would undermine the mandatory requirement of the Overlay to restrict the height of buildings to two storeys (albeit acknowledging that a roof deck in the form proposed is not technically a third storey). Mr Jones went further to contrast the proposal that would allow 360 degree views with existing dwellings in the locality that rely on balconies with more courteous limited oblique views toward the foreshore and sea.

14

In response, Mr Rogalsky and Mr Newman submitted that the proposed works would not be visually intrusive or incompatible with the area or streetscape. Reference was made to the extent of vegetation in the locality that may impact on views as well as the location of the review site opposite the retail precinct.

15

Mr Rogalsky said that it would be reasonable to allow some shade device, such as an umbrella. Mr Newman expressed concern about sail cloths or other shading devices that would add height to the building and add to visual intrusion and explained that this was the basis for Condition 7 of the Notice. On this matter, Mr Jones stated that such items would simply add to the visual impact by also drawing attention to the building and have the potential to be blown off if not fixed. He also expressed concern about the enforceability of the proposed Condition 7.

16

In considering these submissions, it is evident that roof decks do not currently form part of the character of the area. However, such a structure cannot be precluded simply because there is no other example of a roof deck found in the neighbourhood. Structures such as roof decks are now not uncommon in seaside locations and I do not think it is an unreasonable prospect in principle. Clause 55 Standard B28 specifically provides for them as an acceptable form of private open space and they are alluded to in Clause 54. Although Clause 55 does not apply, my point is that on such a constrained site given the scale of the dwelling allowed by the Council there is no real option other than the rooftop to achieve a sizeable area.

17

The appropriate tests under Clause 54 and DDO1 are whether the buildings and works proposed would be respectful of the neighbourhood character and not unreasonably intrusive. While the proposal would add to the height of the existing building by 1 metre, the stainless steel wire balustrade around the deck would be largely of transparent. I do not think it can fairly be said that this would substantially detract from or exacerbate the visual appearance of the building when viewed from the public realm (street or foreshore) or the character of the area.

18

The only obvious elements associated with the deck would be furniture and people as well as the top of the concertina stair when the deck is in use. I am not persuaded that would be a rare or infrequent occasion and often one might expect that an umbrella and a table/chairs would be used to provide a level of comfort. The use of the roof deck would not be unreasonable in terms of streetscape and neighbourhood character considerations and instead would simply be reflective of the seaside location. However, it is appropriate to preclude the permanent fixing of furniture, sail cloths and other elements to the rooftop and also to avoid the permanent storage of goods and materials on the terrace. A condition requiring those elements to only be located on the deck when in use by the occupants would also assist to address concerns about items being blown off and causing damage and nuisance to adjacent properties.

19

In my view, the critical issue to the determination of these Applications is the potential for unreasonable off-site amenity impacts most notably in terms of overlooking and noise.

20

Mr Jones expressed concern about the extent to which the proposed works would add to the considerable overlooking and visual bulk presented by the existing dwelling on the review site. He submitted that screening around the deck, say to 1.7 metres in height, would add to bulk and would not be desirable. He referred to the main desire of occupants of the dwelling as being to gain long distance views and that could be achieved by a smaller deck set back from the adjacent properties, although his clients would prefer the deck to be refused entirely. Mr Jones said that an additional setback of 4 metres, rather than 1 metre as proposed by the Council, "would eliminate the most intrusive vantage points of the terrace in terms of views into the private open space of adjoining properties". There was also a concern raised about a possible extension of the spiral staircase to the north-west of the building to access the rooftop deck.

21

Mr Newman submitted that a 1 metre setback is necessary to achieve an acceptable outcome albeit it would not prevent all views to private open space to the north. He said that the Council supported the circular stair not being extended to access the deck as addressed by proposed Condition 6.

22

In response, Mr Rogalsky stated that the deck had been positioned to avoid causing detriment to neighbouring properties and was a desirable adjunct to the existing dwelling. He submitted that the deck would not be used all year; rather, it would be most desirable in the warmer months. He questioned the useability of the paved area to the rear of No. 898 Pt Nepean Road as private open space and tendered a range of photographs taken from the roof of the dwelling to demonstrate the extent to which private open space on adjacent properties would (or would not) be visible.

23

It is common ground that the existing dwelling is an imposing element and does give rise to overlooking from the expansive balconies. The proposed roof deck would be a major private open space area for the dwelling given that there is little space at ground level around the building and the first floor areas are narrower and linear in form. In that context, the proposal has the prospect of exacerbating what is already an intrusive situation and I therefore believe that a fair degree of caution should be exercised as the amenity of adjacent residents has already been quite compromised.

24

The relevant objective at Clause 54.04-6 is to limit views into existing secluded private open space and habitable room windows. The relevant standard at A15 is for balconies, terraces and decks to be located and designed to avoid direct views into habitable room windows within a horizontal distance of 9 metres. The private open space of all adjacent properties would be within that radius from the extremities of the proposed terrace. I do not consider impacts to windows are significant as the angle would be quite oblique or the windows are opaque (albeit openable).

25

In making that finding, I am making an allowance for the paved area associated with No. 898 Pt Nepean Road and southern open space to No. 1 Rosebud Parade to serve as private open space from time to time - I do not accept that the occupants would always be to the sea-ward side of a dwelling when a more sheltered location may be desired on occasions. Moreover, north-facing open space for these adjacent properties presents to the foreshore and can not be said to be secluded in the usual manner.

26

The position of the deck, with intervening roof elements, would limit views to the east (No. 896 Pt Nepean Road) assisted by existing vegetation on the adjacent property. More distant views to the properties further to the east would be possible but not in such close proximity to refuse or vary the proposal.

27

With the benefit of my inspection from the roof of the dwelling on the review site, I find that there are valid grounds to set the terrace back from the northern façade by a greater distance than proposed by the Council. A 1 metre setback would allow views into the southern areas associated with both No. 898 Pt Nepean Road and No. 1 Rosebud Parade as well as the northern area to No. 1 Rosebud Parade and side area to the north-west of No. 896 Pt Nepean Road. A setback of 2.5 metres would produce a much more balanced outcome mindful that the views to activity on the deck from adjacent residential properties would not be excluded once an umbrella and people are positioned on the structure. A setback of 4 metres (as sought by Mr Jones as a fall-back) is not necessary to achieve the same outcome.

28

In addition, there are grounds to require the deck to be setback from the western elevation, where it would otherwise be closest to, or aligned with, the first floor western elevation (that being the southern half of the deck). I will require the setback to be no less than 2 meters from the western elevation of the dwelling, primarily to limit views to No. 1 Rosebud Parade.

29

These changes would reduce the size of the deck to around 20 square metres generally result in an L-shape. That remains a useable size and configuration.

30

Condition 6 seeks to prevent a situation of the circular staircase being extended to access the deck but it may be desirable to confirm precisely. That can be addressed by modifications to the wording.

31

For the above reasons I will allow both Applications in part and affirm the decision by the Council but vary some of the conditions:

•

As a result of my findings above I will vary Condition 1(a) and therefore I will not uphold the appeal by the permit applicant that had sought the deletion of that Condition entirely.

•

I propose adding a new part to Condition 1 requiring a schedule of materials, external finishes and colours to ensure that the details are to the Council's satisfaction.

•

Condition 2 is a standard permit condition and is appropriate.

•

It is reasonable to vary Condition 6 to allow the concertina stair to rise above the height of the roof when the deck is in use. I will also add a sentence that the circular staircase not be used to access the roof deck as discussed above.

•

Condition 7 is appropriate to be retained for reasons that I have set out above but should be varied to allow the temporary use of an umbrella and furniture such as a table and chairs when the deck is in use.