Maintain the informal streetscape character through:

• Informal landscaping with an emphasis on indigenous vegetation and tall canopy trees.
• The general absence of solid fencing.
• Driveway surfaces and finishes that are informal in appearance, including gravel, dark coloured concrete and exposed aggregate.

Protect and enhance the tall gum tree canopy and its role in providing a backdrop and canopy cover to the town and a border to the water's edge around Louttit Bay.

Conserve and enhance the preferred character of recessive built form within a tall canopy treed setting.

Reinstate the preferred character of a tall canopy treed setting in areas that are substantially cleared of vegetation.

Encourage development that provides openness between properties.

Protect the views between the ocean and Mountjoy Parade for its contribution to the character of the town.

SHOULD THE SOUTH-EAST CORNER OF THE DECK BE SPLAYED?

The south-eastern corner of the elevated deck to be splayed, with the splay commencing a minimum of 2.8 metres north-west of the north-eastern front deck and a minimum of 2.8 metres south-west of the south-eastern (side) deck.

1. Council's submission provides a mark-up of the plans to show what is intended by the condition:

Figure 3: Mark up of application plans showing the splay be provided in the south-eastern corner of the deck[3]

1. Council summarises the objectives of the NCO2 as policy direction that encourages buildings with small footprints with large setbacks that are not visually bulky or prominent, and screened by vegetation. Council has imposed the condition on the basis that the proposal does not comply with standards relating to front setback and site coverage and the splay will maintain the functionality and amenity of the deck, whilst reducing the bulk from the street.
2. The applicant submits that the deck on the south-east corner is elevated due to the natural topography of the land and the form of the deck in this corner adopts a similar approach to that taken on both adjoining properties. The prominence of the deck structure in the streetscape will be reduced given the minimalist structure, and the layout of the road reservation which has no footpath and a setback greater than 9.0 metres to the edge of the sealed road.
3. Having heard the submissions of the parties I find that the splay is not necessary to respond to the NCO2.
4. I find many of the strategies that apply to Lorne are seeking to maintain or reinstate the tall canopy tree setting that gives Lorne its unique coastal landscape. Given the location of car parking beneath the elevated deck, the deck splay will not create any landscaping opportunity.
5. I am persuaded by the applicant's submission that the form and presentation of the dwelling is consistent with the sense of space and separation in the street. Aided by my site inspection, buildings within this streetscape step up the hill. It follows, that buildings within this street have a high point and a low point. Council seeks the splay to be located at the high point however I do not consider it necessary to peel back the building in this location given the deck's open nature with post and wire balustrade, and no roof or walls.
6. Any resultant reduction in site coverage will be inconsequential, and from submissions put to me, the splay of the deck did not arise from potential amenity impacts with the interface of the dwelling located on the adjoining property to the south.

SHOULD THE NORTHERN EDGE OF THE SOUTH-WESTERN DECK BE SCREENED?

Measures to limit direct overlooking into accordance with Standard A15 (overlooking) of Clause 54 for the northern 3.0 metres of the south-western (side) deck, not the stairs, into the secluded private open space of 24 Deans Marsh Road, Lorne.

1. Council's submission provides a mark-up of the plans to show what is intended by the condition:

Figure 4: Mark up of application plans showing the location of the screen[4]

1. Council submits that it has carefully balanced amenity gained due to panoramic ocean views with the privacy outcomes sought by the scheme. It says this on the basis that the condition does not seek to reduce or limit potential overlooking over the entire sizeable secluded private open space at 24 Deans Marsh Road, but rather, seeks a customised approach to screen the area to be immediate south of the dwelling.
2. Even with this customised approach, the applicant states that this area does not need to be screened as no objections were received from this dwelling, the area is already overlooked and the primary open space with connection to the living areas is at first floor level which is more than 9.0 metres from the proposed dwelling.
3. For the assessment of overlooking, clause 54.04-6 of the scheme provides the following objective 'To limit views into existing secluded private open space and habitable room windows'.
4. The standard states:

A habitable room window, balcony, terrace, deck or patio should be located and designed to avoid direct views into the secluded private open space and habitable room windows of an existing dwelling or small second dwelling within a horizontal distance of 9 metres (measured at ground level) of the window, balcony, terrace, deck or patio. Views should be measured within a 45 degree angle from the plane of the window or perimeter of the balcony, terrace, deck or patio, and from a height of 1.7 metres above floor level.

1. I find that the condition council has applied results in a balanced outcome acknowledging that the future amenity of the dwelling could be affected by the screening, but at the same time providing a requirement to screen the parts of the deck with closest proximity and outlook to the primary open space, the terrace and habitable room windows that the clause seeks to protect.
2. I agree with the submission of council that there is the opportunity to explore design solutions for the overlooking screens that balances the internal amenity of future occupants with the amenity interests of neighbouring properties.
3. I also agree with the submission of council that screening part of the deck will not unreasonably affect the expansive panoramic ocean view from the open plan living, dining, kitchen and the primary area of the deck facing the ocean.
4. Whilst the applicant produces material to demonstrate that there is already some overlooking from the property to the north-west of the site towards the area that council seeks to protect through the screening, the views from this balcony is greater than 9.0 metres and not within the defined area of view when applying the overlooking standard.
5. Whilst I recognise that the deck centrally located within the building at the upper level of 24 Deans Marsh Road provides a convenient location for selected outdoor living activities and enjoys a reasonable amount of privacy, the overlooking standard makes no distinction between primary or secondary private open space areas when applying the overlooking standard. There is no indication that the occupiers of 24 Deans Marsh Road do not use or enjoy secluded private open space provided at ground level.
6. I give little weight to the fact that there are no objections that have been received from 24 Deans Marsh Road, or any other property. I say this as there are no decision guidelines that attributes particular weight be given to the lack of objections received.
7. I am not persuaded that the overlooking standard does, or should only, apply to suburban locations. It is clear that coastal locations will try to maximise views, but this also needs to be balanced with purposes of clause 54 that includes 'to encourage residential development that provides reasonable standards of amenity for existing and new residents'.

1. For the reasons given above, the decision of the responsible authority is varied.

[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] [2010] VCAT 660 at [15].