Benjamin v Mornington Peninsula SC [2019] VCAT 997

1. In applications P1385/2018 and P1620/2018 the decision of the responsible authority is set aside.

1. In planning permit application P17/2475 no permit is granted.

Ms Louise Hicks of Counsel, instructed by Rigby Cooke Lawyers

• Mr Gary Martin, land surveyor, G J Martin Consulting Land Surveyors
• Mr Daryl Degenhardt

Mr Luke Dowdle, town planner, Nepean Planning Consultants Pty Ltd

Mr Gerard Gilfedder, town planner, Currie & Brown (Australia) Pty Ltd

Application P1620/2018 - Application under section 80 of the Planning and Environment Act 1987 - to review the conditions contained in the notice of decision

Application P1385/2018 - Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

General Residential Zone Schedule 1 (GRZ1) (Mornington Peninsula Town Areas)

Design & Development Overlay Schedule 2 (DDO2) (Bayside and Village Design)

Vegetation Protection Overlay Schedule 1 (VPO1) (Township vegetation)

Clause 43.02 sch 2 cl 2.0 (buildings and works for a dwelling extension with a wall height greater than 5.5 metres or a building height greater than 6 metres)

Clause 43.02 sch 2 cl 2.0 (buildings and works for a dwelling extension if the colouring of all cladding and trim is not of muted tones or if the external finish has more than 40% reflectivity)

Clauses 11, 12, 15, 21.04, 21.06, 21.07, 22.11, 22.13, 32.08, 42.02, 43.02, 54, 65 & 71.02

The land is on the southwestern side of the street about 40 metres southeast of Revell Street. It has a frontage of about 16.8 metres, a depth of about 68.9 metres and an area of about 1,155 square metres. The land slopes up about 7.5 metres from the street from its northeastern corner to the northwestern corner at the rear of the land.

The land is occupied by a detached two-storey dwelling that is located two metres from the rear boundary of the land and about 43 metres from the street. The ground floor footprint of the dwelling is about 11 metres by 9 metres. It includes a northeast-facing full-width (ie about 11 metres long) deck that is about 1.6 metres deep. The application drawings state that the existing dwelling has a maximum height to the ridge on the generally flat roof of RL 16.20 metres. The ridge is oriented northwest to southeast across the midpoint of the roof.

On 17 March 2019, the Tribunal conducted an unaccompanied inspection of the subject land, 11 Jaanda Court, 16 Spencer Street and the surrounding area

1. The land on the southwest side of Jaanda Court in Blairgowrie is elevated, sits on a dune and, from a high point at the rear of the land, enjoys views to the north and northeast across Port Phillip Bay (the Bay). The Bay foreshore is 400 metres distant from Jaanda Court.[2] There are several residential lots on this side of Jaanda Court.
2. Mr Larsson owns one of these lots and his lot is the subject land in this proceeding. Mr Larsson wants to alter and extend the two-storey 1960s brick veneer dwelling that sits at the rear of the lot (the extension).
3. The extension has two-storeys and is located at the front of the dwelling and is designed to retain the views to the Bay. It is substantial in size. In general terms, the extension almost doubles the size of both the footprint and floor area of the dwelling.[3]
4. Mr & Mrs Benjamin (the Benjamins) own and occupy a two-storey dwelling constructed about 19 years ago on the abutting lot to the southeast. The dwelling, like Mr Larsson's, sits at the rear of the lot on elevated land near the top of the dune. The high point of the dune on which the lots sit in Jaanda Court extends further to the southwest to land on the northeast side of Spencer Street. Mr Degenhardt owns and occupies a two-storey home constructed about 7 years ago on one of those lots, being the lot immediately to the rear of Mr Larsson's.
5. Mr Larsson applied to the Mornington Peninsula Shire Council (the Council) for a permit under the Mornington Peninsula Planning Scheme (the scheme) to carry out the buildings and works. The Council considered objections made by the Benjamins and Mr Degenhardt and issued a notice of decision to grant a permit subject to conditions. The Benjamins and Mr Degenhardt have applied to the Tribunal to review the Council's decision and Mr Larsson has applied to review conditions in the notice of decision.

1. This is not the first time Mr Larsson has sought permission for an extension to his dwelling. In 2017, the Tribunal considered an application by Mr Larsson to review the Council's decision to refuse a permit for a two-storey extension.[4] The Benjamins and Mr Degenhardt objected to the grant of a permit. The Council's grounds referred to the impact on the views to the Bay enjoyed by Mr Degenhardt. The Tribunal refused Mr Larsson's application and no permit issued (the Tribunal's 2017 decision).
2. The Tribunal's 2017 decision identified the main issues in that proceeding as whether Mr Larsson's extension would have an unreasonable amenity impact upon the viewshed of Mr Degenhardt's home, whether the extension would exceed the scheme's mandatory maximum building height of 8 metres, and whether the extension would be visually intrusive contrary to the scheme's design objectives.
3. The Tribunal's 2017 decision was based on the viewshed issue. The Tribunal did not have to decide the building height and visual intrusion issues, although the Tribunal made some observations about them.
4. To better understand the application in this proceeding, it is useful to refer to some of the Tribunal findings on the viewshed issue. The Tribunal pointed out that the general principles about view protection were reinforced by the scheme's objective to 'protect shared viewlines where reasonable and practical' if there would be a significant loss of amenity.[5] The Tribunal found the views of the Bay enjoyed by Mr Degenhardt from his dwelling at 16 Spencer Street were not panoramic, were constrained by vegetation, and were in a 'narrow corridor'.[6]
5. According to the plans that were before the Tribunal, the top of the 11 metre-wide generally flat roof of the extension reached RL 18.29 metres. The Tribunal found the extension would block about 70% of the view (measured horizontally) of the Bay and would leave but a 'narrow' corridor view to the Bay on the (northwest) side of Mr Larsson's lot.[7] I infer this finding related to a standing position on an undefined point on Mr Degenhardt's rear deck at 16 Spencer Street. The Tribunal also found that the view to the Bay from Mr Larsson's home (the deck would be at RL 14.85 metres) would remain the same but would be a more prominent feature having regard to the dimensions and design of the extension.[8]
6. The Tribunal made some 'suggestions' to the parties, should Mr Larsson make another application:

... in [the Tribunal's] opinion it would be acceptable for an extension to the upper level of [the dwelling at 13 Jaanda Court] to block the view from [the dwelling at 16 Spencer Street] for a distance of approximately 3.5 metres from the east side of the deck on [the dwelling at 13 Jaanda Court]. This would preserve about 70 percent of the present view from [the dwelling at 16 Spencer Street]. Any extension further to the west [than] this should keep the roofline below any view of the bay from [the dwelling at 16 Spencer Street].[9]

1. In this proceeding, Mr Larsson submits he has responded to the reasons for the Tribunal's refusal of the earlier application and has corrected the permit application. This proceeding is therefore characterised as a 'correcting' repeat review. It is well established that the Tribunal gives weight to the reasons in the earlier proceeding but is not bound by them and must consider the new proposal afresh having regard to all the current and relevant provisions of the scheme.

1. In this section of the reasons, I set out the relevant features of the proposed extension and describe how it has responded to the Tribunal's reasons.
2. The extension has the same basic footprint at both levels and same internal layout as the proposal in the Tribunal's 2017 decision. The extension remains split level and its roof sits above the roof of the existing structure at its junction. Materials and colours are largely unchanged. The existing flat roof had a ridge at RL 16.32 metres in the drawings considered in the Tribunal's 2017 decision (the earlier drawings), now corrected to RL 16.20 metres in the current drawings.
3. The main differences in relation to building height between the earlier drawings and the current drawings may be summarised as follows:

The highest point is a ridge about 11 metres long above the junction between the extension and the existing dwelling

The height of the roof of the extension at its most northerly point above the proposed deck

At the northernmost point of the wall of the extension.

At the easternmost point of the wall of the extension

Below the easternmost point of the roof of the extension to what was labelled as 'natural ground level' below that point

1. In a repeat review, a fresh application should not prima facie be favourably viewed unless material changes have been made in response to the Tribunal's earlier reasons, there have been no material changes to the physical context, there have been no material changes in planning policy, and no material changes in the interpretation of the relevant facts or law.
2. The application succeeds in these threshold matters. In the context of the Tribunal's 2017 decision, the lowering of the highest point of the roof is a material change. I accept the Council's submission that there have been no material changes in relation to the other three threshold matters.

1. In summary, the Council decided the viewlines to the Bay shared with 16 Spencer Street should be further protected by a lowering of the roof of the extension. The Council included a condition in its notice of decision that required amendments to the plans to show:

The maximum building height to be no higher than AHD 17.65.

1. There is no doubt that the Council's reference to 'AHD 17.65' was intended to mean '17.65 metres AHD'. The earlier and current drawing refer to 'RL' (ie reduced level), as set out in the above table, and the Council's assessment and decision refers to 'AHD' (ie Australian Height Datum) for the same dimensions. I have therefore proceeded on the basis that the drawings' references to 'RL' are the same as 'AHD'. In these reasons, I will proceed to consistently refer to 'AHD' dimensions.
2. I find the condition is vague. 'Building height' is:

The vertical distance from natural ground level to the roof or parapet at any point.[10]

1. Accordingly, maximum building height must be the point where the relevant vertical distance between the two stated points is the greatest. It must be expressed as a distance. It cannot be expressed as a spot level. The condition confuses different concepts.
2. Later in these reasons, I find that the maximum building height, on the evidence before me, is a little more than 9 metres and this point is located at the northernmost corner of the roof of the extension.
3. Based on the way the Council advanced its case, I will proceed on the basis that the Council intended that the height of the roof of the extension at its 11 metres long ridge where it sits above the junction of the existing dwelling and the extension must be no higher than 17.65 metres AHD. This equates to a lowering of 250 mm along this ridge of the roof. The Council intended that the roof would continue to fall 200 mm over its length to the northeast and would therefore be no higher than 17.45 metres AHD at its furthermost point above the proposed deck. The Council did not contemplate the condition authorising a re-design of the roof.
4. The Council maintained the condition was both reasonable and practical, having regard to the provisions of the scheme relating to shared viewlines (to which I will be return later in these reasons), the split level nature of the extension and the Tribunal's 2017 reasons. Mr Larsson has applied to review that condition. The Benjamins and Mr Degenhardt oppose Mr Larsson's application.
5. The Council also decided that the mandatory maximum building height of 8 metres was met and that the design and siting of the proposal was not visually obtrusive. The Council included a number of other conditions in the notice of decision but it is presently unnecessary to refer to them.

1. The three key issues in this proceeding are the same as those in the Tribunal's 2017 decision.
2. The first issue concerns building height. A threshold issue is whether the mandatory maximum building height of 8 metres is met.[11] If it is not met, the Tribunal cannot grant a permit unless conditions can be included that reasonably bring a building into compliance. If it is met, a permit may be granted for a wall height greater than 5.5 metres or a maximum building height of between 6 metres and 8 metres, subject to taking into account all relevant considerations. One of those considerations is the scheme's design objectives of ensuring the proposal has 'proper regard for the established streetscape and development pattern in terms of building height, scale and siting'.[12]
3. The second issue concerns viewlines. As I have mentioned, I must consider whether the proposal meets the scheme's design objective of protecting shared viewlines where reasonable and practical.[13]
4. The third issue is whether the proposal responds to the scheme's design objectives of ensuring the proposal avoids 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'.[14]

1. The scheme relevantly provides that, in respect of the subject land:

A building must have a maximum building height of no more than 8 metres ... .[15]

1. In these reasons, I will refer to this provision as the requirement.
2. As I have stated, the scheme provides no discretion for a decision-maker to allow a greater building height. It is therefore a threshold issue in this proceeding.
3. The Council relied on the dimensions on the current drawings and was satisfied the requirement was met.
4. After hearing the submissions and evidence, I am not satisfied the requirement is met for the following reasons.

1. The Benjamins claim the requirement is not met. They bear the evidential burden of establishing a prima facie case the requirement is not met. If they fail in that task, I may proceed to be satisfied. If they succeed in that task, the evidential burden transfers to Mr Larsson to rebut the prima facie case.

1. The highest point of the extension's new roof is the 11 metres long ridge between its westernmost and southernmost points (above the junction between the extension and the existing dwelling). However, the existing ground level below those points is materially lower than that below the roof's northernmost and easternmost points. Hence, the parties focused on the ground level below the latter points in their respective cases.
2. The current drawings show the gutter along northeast facing edge of the roof of the extension at 17.70 metres AHD and show a building height of 7.83 metres below the northernmost edge of the gutter. This equates to an existing ground level below that point of 9.94 metres AHD.[16]
3. As the existing surface level of the land below the extension falls slightly to the northeast, the building height below the easternmost edge of the gutter must be greater than the height below the northernmost edge. The current drawings confirm this fact and dimension the building height at this point as at 8 metres.
4. The south east elevation in the current drawings does not specify an existing ground level at this point. However, the site plan in the current drawings have a spot level of 9.54 metres AHD at or very close to this point. According to the plans, the ground level would have to be no lower than 9.70 metres AHD at this point to support a finding that the requirement is met.[17]

1. As I have stated, 'building height' means the 'vertical distance from natural ground level to the roof or parapet at any point'.[18] 'Ground level' means 'the natural level of a site at any point'.[19] Consequently, there is no difference in meaning between ground level and natural ground level. The scheme does not define 'natural' or 'natural level'.
2. In Faversham Mews, I considered these meanings and the various authorities and held that, by ordinary meaning and in context, natural or natural level means a level formed by nature and not artificially formed by human intervention.[20]
3. The Council submitted 'natural ground level' (in these reasons, NGL) means the level of the relevant land when a person makes a permit application. It submitted that it relied on the Supreme Court's reasons in King[21] and the Tribunal's reasons in Mrocki.[22] It also relied on the reasons in the Tribunal's 2017 decision in which the Tribunal stated it would adopt the findings in Mrocki and King and find NGL as the level of the relevant land when a person makes a permit application.[23] The Council invited me to make a similar finding.
4. It is unnecessary to set out in these reasons my complete reasoning as to why I would not adopt the meaning supported by the Council.[24] I set out the reasons more fully in Faversham. I am aware that the meaning of NGL is not settled and some divisions of the Tribunal have preferred the meaning supported by the Council in its submissions.[25]
5. I would not follow the reasoning in King because the Court was considering a different term ('natural conditions of the land') in a legislative definition of 'works' (not in a planning scheme definition of 'building height') and in the context of an enforcement (and not a review) proceeding. Accordingly, I do not consider myself bound by the reasoning in King.
6. The Council's reasoning also shows a misunderstanding of the Tribunal's reasons in Mrocki. In Mrocki, the Tribunal found NGL was not the level at the date the relevant permit application was made but was the level that existed when the land was subdivided about 15 years before the making of the permit application and before any fill was imported onto the land.[26]
7. The NGL in this proceeding is the lowest point below any part of the proposed roof before that part was disturbed by any excavation, levelling or filling for the development of the subject land. In Faversham, I recognised evidence may be difficult to obtain to establish NGL in some circumstances and that the fact finder may need to rely on 'incomplete evidence' and 'inferences, interpolations or extrapolations'.[27]

The prima facie case the requirement is not met

1. The Benjamins rely on the evidence of Mr Martin and Mr Degenhardt.
2. I find there is a prima facie case that the requirement is not met.
3. Mr Martin is an experienced and practising land surveyor who is based on the Mornington Peninsula. His instructions were to estimate the 'natural surface level' of the land in and around the extension. His opinions are based on his feature survey of the subject land and surrounding land.[28] They are also based on two cross sections of the land that he prepared.[29] His estimates are based on interpolation.
4. The first cross section ('A-B') is located parallel to the northeast-facing (or outer) edge of the ground level footprint of the extension (the footprint), about one metre inside (ie to the southwest of) the proposed upper floor wall. Mr Martin located it so that it passes through (or within 200 mm of) one of three bore holes (being 'bore hole 3') dug for Mr Larsson by his geotechnical engineering consultant Mr Oai of CivilTest Pty Ltd in 2015 in the footprint. I will return to the import of the bore holes shortly.
5. The second cross section ('C-D') is located along and below the outer northeast-facing edge of the roof of the extension. Cross section C-D is therefore parallel to cross section A-B and located about 2.7 metres to the northeast from the latter cross section.
6. Both cross sections extend beyond the footprint for an overall length of about 30 metres. To the northwest, they extend through the boundary of the subject land with 23 Revell Street and to the base of the southeast facing wall of the dwelling on that lot. To the southeast, they extend through the boundary of the subject land with 11 Jaanda Court to the northwest facing wall of the Benjamins' dwelling on that lot.
7. Mr Martin's opinion is that the boundary between the subject land and 23 Revell Street along the two cross section lines has not been subject to fill or excavation, having regard to surrounding features, including existing excavation at 23 Revell Street. He goes on to express the opinion that:
   • (a) The existing approximately 1.1 metres high retaining wall that crosses the two cross section lines and located about 1.15 metres to the northwest of the footprint supports an area of fill on the footprint.
   • (b) What is shown on the two elevations in the current drawings as NGL is the existing level of the filled ground. On his cross sections, he has marked 'estimated natural surface level' below what is shown as NGL on the current drawings and in his written statement he refers to this level as NGL.
8. I have had some difficulty in reconciling the levels on the current drawings and the results of Mr Martin's surveys, mainly because many of the measuring points are different. However, after considering Mr Martin's statement and his oral evidence, I find his opinions are as follows:
   • (a) The northernmost corner of the roof of the extension is at 17.70 metres AHD and NGL below that corner is about 800 mm below the existing ground level ie about 8.70 metres AHD.[30] Accordingly, his opinion is that the building height at this point is a little over 9 metres.
   • (b) The easternmost corner of the roof of the extension is at 17.70 metres AHD and NGL below that corner is about 200 mm below the existing ground level ie about RL 9.45 metres. Accordingly, his opinion is that the building height at this point is about 8.20 metres.
9. These two opinions relate to that part of the building along cross section C-D.
10. Mr Martin did not include specific opinions about the building height along cross section A-B in his written statements. However, this cross section shows a height of about 7.3 metres at bore hole 3 (ie a point near the northernmost point of the northeast facing ground floor wall of the extension from the top of the roof to the existing surface level below that point. At that point, the cross section shows the existing surface level is about 1.2 metres above 'natural surface level' (ie NGL). Mr Martin's opinion is that NGL is 1,000 mm ± 150 mm below the existing surface level at bore hole 3, based in part Mr Oai's report.
11. Accordingly, the cross section shows a building height at that point of about 8.50 metres. This point is about 4 metres from the northernmost corner of the roof where Mr Martin's opinion is that the building height is a little over 9 metres (as stated above).
12. The Benjamins also rely on Mr Degenhardt's evidence. The gravamen of that evidence is the tendering of photographs taken by associates of the former owner of the subject land in the 1970s claimed to be showing the construction by filling to create the existing surface level below the extension. Mr Degenhardt's evidence is insufficiently probative and I give little weight to it.
13. Mr Martin's spot level at this point (ie the easternmost edge of the gutter) is 9.48 metres AHD. Consequently, even if I were to interpolate the current drawings and find the existing ground level was 9.65 metres AHD, the building height at this point would be 8.05 metres AHD. If I were to accept Mr Martin's spot level at this point of 9.48 metres AHD, the building height at this point would be 8.22 metres.

1. I find that Mr Larsson has not rebutted the prima case, for the following main reasons.
2. First, Mr Larsson's rebuttal was by submission. As a general proposition, I give an independent expert's evidence, tested by cross examination, greater weight than an opposing submission by a party. I acknowledge that Mr Larsson relied, in part, on reports prepared by geotechnical engineer Mr Oai and arborist Mr Leenstra. Both were called to give evidence in the Tribunal's 2017 proceeding. However, those reports have the status of part of Mr Larsson's submissions in this proceeding because they neither filed reports in this proceeding nor were called in this proceeding. They have diminished weight because they were prepared for a different proceeding.
3. Second, Mr Larsson contends the prima facie case is entirely 'circumstantial'. If by that he means it relies on Mr Martin's opinions based on interpolation, the contention is without merit because it is established that interpolated levels can be sufficient in particular circumstances.
4. Third, Mr Larsson relied on an older base map[31] and Mr Oai's report to claim the existing surface level is NGL, contrary to Mr Martin's opinion. The base map does not have the accuracy to support his claim and I prefer Mr Martin's opinion that the base map is subject to an error of up to 3 metres based on the method of its preparation.
5. Fourth, Mr Larsson submitted that Mr Martin's cross sections showing an interpolated NGL should not be accepted for a variety of reasons, including:
   • (a) Mr Larsson submitted the cross section end points in 23 Revell Street and 11 Jaanda Court were unreliable. Mr Larsson was not able to successfully press that claim. I accept Mr Martin's evidence that those end points are where cuts in the surface levels on those lots start and I am satisfied those end points are more likely than not to be at NGL.
   • (b) Mr Larsson submitted Mr Martin's straight line interpolated NGL was speculative and failed to consider the possibility of a convex shaped NGL in a dune environment. Mr Larsson submitted it was likely that the land below the extension was part of a separate undulation in the land. Ultimately, I found this submission speculative and without sufficient evidence.
6. Fifth, Mr Larsson claimed that Mr Martin ignored evidence that the fill under and around the location of bore hole 3 was fill associated with a septic tank just at that location and not fill imported to create the relatively flat area broadly beneath the extension. This claim had insufficient merit.
7. The evidence of the septic tank was inconclusive. Mr Larsson did not adequately support claims that Mr Oai's report shows that the NGL equates to a level about 100 to 300 mm above the existing ground level at bore hole 3 due to slight subsidence around the claimed septic tank and soak pits.
8. I do not accept Mr Larsson's claims that any disturbance to the natural surface of the land beneath the extension should be properly characterised as disturbance that returned the surface level of the land to its natural state. The bore hole results, the retaining walls up to 1.1 metres high around the area beneath the extension and Mr Martin's opinions satisfied me that it is more likely than not that the existing surface of the land below most of the extension is not NGL.
9. Sixth, Mr Larsson claimed Mr Martin's evidence showed no surface level disturbance immediately before Mr Larsson made the permit application. Such disturbance is irrelevant based on my findings about the meaning of building height.
10. Seventh, Mr Larsson submitted that Mr Martin's evidence was contradicted by Mr Leenstra's opinion. Mr Leenstra's opinion was there was an 80-year old Moonah tree near the edge of the retaining wall under the extension's balcony which was healthy but which would not be healthy if its root zone was covered by nearly one metre of fill as contended by Mr Martin. Mr Leenstra was not called to give evidence and be examined. Accordingly, I do not give weight to Mr Leenstra's opinion.
11. Eighth, Mr Larsson ultimately conceded that Mr Martin's evidence demonstrated the requirement was not met. While Mr Larsson did not accept the extent of non-compliance found by Mr Martin, he did consider the building height below the northernmost point of the roof of the extension was 14 cm greater than the 8 metres requirement. Mr Larsson's submission that the exceedance was not fatal because NGL at that point was above the existing surface level was not persuasive.

1. The building height of the extension exceeds 8 metres and the mandatory building height requirement of the scheme is not met. A permit cannot be granted for the extension as shown in the application plans.

Grant of a conditional permit or an interim order?

1. I have considered whether to either grant a conditional permit requiring amendments so that the building height requirement was met or to make an interim order giving Mr Larsson leave to prepare amended plans that complied with the building height requirement.
2. These may have been possible courses of action if the merits issues regarding protection of shared viewlines and visual intrusion were ultimately resolved in favour of the grant of a permit.
3. I will not either grant a conditional permit or make an interim order.
4. My finding is that at the easternmost and northernmost ends of the extension's roof along cross sections A-B and C-D the building height exceeds the requirement by about 300 mm and about 1.1 metres, respectively.
5. The necessary changes to the plans to ensure compliance with the requirement are not straightforward. The difficulty is estimating the footprint of the extension over which the requirement is not met and estimating the impact of rectifying the vertical non-compliance. If the affected part of the footprint was a very small part of the footprint and if the vertical non-compliance was relatively minor, the necessary changes might be confined and relatively straightforward. I am not satisfied these circumstances exists.
6. A vertical non-compliance of over one metre at the two points to which I have referred is not minor. The location of bore hole 3 is at a point no less than 4 metres from the northernmost corner of the roof ie in the vicinity of those two points. I have already referred to my finding that the extent of non-compliance at the location of bore hole 3 is not less than 500 mm. These findings show the building height needs to be lowered by a material amount in some locations and that the affected part of the footprint of the extension is also material.
7. If Mr Larsson were to retain the overall design and location of the roof of the extension, he would have to lower it or reduce its northerly extent so that the requirement was met. However, Mr Larsson may choose to change the design and location of the roof of the extension so that the requirement is met in a different way.
8. If Mr Larsson makes a fresh application, it would need to be accompanied by more detail about NGL beneath the extension than the two cross sections in this proceeding so that the Council could be satisfied the requirement is met under all points of the roof of the extension.
9. I would not grant a conditional permit because the specification of the condition and its potential impact to collateral design issues is problematic and uncertain.
10. I would not make an interim order giving Mr Larsson leave to amend the plans because the necessary amendments would require material changes to the plans and this will involve a fresh assessment of all the relevant considerations. It might require additional notice of the application and the filing and consideration of new evidence and submissions. Fresh assessment is a matter for the Council, as the first-instance decision maker under the scheme, and not this Tribunal.

1. In the Tribunal's 2017 decision, the Tribunal refused to grant a permit because there was not a reasonable or practical protection of shared viewlines to the Bay with 16 Spencer Street.
2. In terms of sharing viewlines, it is relevant to state that the top of the 11 metres-wide ridge on the roof of the extension was at RL 18.29 metres, the 3.3 metres deep deck on the extension was 11 metres wide and at RL 14.85 metres, and its balustrade projected to a point about 12.5 metres from the existing dwelling.
3. Earlier in these reasons, I referred to the suggestions made by the Tribunal about an acceptable sharing of views of the Bay between the subject land and 16 Spencer Street. The Tribunal correctly stated that its suggestions were non-binding.[32]
4. In this proceeding, the parties were unclear on the meaning and effect of the suggestions. It appears to me that the Tribunal was suggesting that if Mr Larsson made a new permit application, a design that resulted in a loss of Bay views from standing eye level on Mr Degenhardt's deck at 16 Spencer Street for a distance of no more than 3.5 metres northwestwards from the southernmost point of the roof of the extension would be acceptable.
5. The Tribunal appeared to suggest that, having regard to the dimensions of the view corridor, this would result in a loss of 30% of the width of the Bay view from 16 Spencer Street and this loss would not be unreasonable.
6. The Tribunal appeared keen to ensure that no less than 70% of the views to the Bay were retained in the view corridor and suggested that the roof in this part of the extension should be below 'any view' of the Bay. It was initially unclear to me whether below 'any view' of the Bay meant any loss of a view of the water in the Bay or any loss of the horizon of the Bay should be avoided.
7. Carefully re-reading the Tribunal's 2017 decision leads me to conclude that the Tribunal meant the former ie any loss of a view of the water in the Bay.
8. It was also initially unclear whether the viewing point was a particular point on Mr Degenhardt's deck or any point on that deck.
9. In my view, any point on the deck at 16 Spencer Street is unreasonable given the width and varied depth of the deck and the vital difference between a standing and sitting location. I would therefore interpret the Tribunal's suggestion as being related to a standard eye level in a standing position (about 1.6 metres) from any point along the outer edge of the wider section of Mr Degenhardt's deck along its southeastern boundary.

1. The scheme requires the decision maker to consider the DDO2 design objectives, one of which is to 'protect shared viewlines where reasonable and practical'.[33] It is therefore a matter for consideration and is not a requirement.
2. The statutory provision needs to be considered in the context of the principles about protection of shared viewlines, established by many Tribunal decisions.[34] It is unnecessary to refer to those principles.

1. The second ground on which the Benjamins and Mr Degenhardt bring their applications relate to the alleged failure to respond to the design objective.
2. The main ground on which Mr Larsson brings his application is that the condition in the Council's decision that requires plans to be amended to lower the maximum building height by 250 mm from 17.90 metres AHD to 17.65 metres AHD is unnecessary to reasonably protect shared viewlines.

1. In the table included earlier in these reasons, I set out the changes in this application relating to building height. For the purposes of the viewlines issue, it is relevant to also state that the deck in the extension has the same width (about 11 metres), is slightly deeper (3.4 metres, being 0.1 metres deeper than in the earlier drawings), is at a slightly lower level (RL 14.70 metres, being 15 cm lower than in the earlier drawings) and projects slightly less towards the northeast (12.5 metres from the existing dwelling, being 0.1 less than in the earlier drawings).
2. Before the Council decided the current application, it required Mr Larsson to erect two poles and a horizontal bar at 17.90 metres AHD, being the highest point of the roof of the extension in the current drawings.[35] The poles were erected on the existing roof of the dwelling.
3. There is no evidence before me about the exact point on the roof the poles were located. I infer from the photographs that the poles were placed at points between the existing roof ridge and existing northeast-facing edge of the roof. The exact distance of the poles from the roof edge is unknown but it appears it is materially further than 500 mm from the edge at which point the junction between the wall of the existing dwelling and the extension would be located. The photographs indicate the distance is more likely to be at least 3 metres. That is a relevant finding for reasons I will come to.
4. The poles were not erected next to the roof at either end of its 11 metres width but on the roof itself about 5 metres apart and about 2 metres and 4 metres from the northwest and southeast facing edges, respectively, of the roof.
5. In its written submissions, the Council included a photograph of the bar at 17.90 metres AHD from a standing position on Mr Degenhardt's deck. It also included a photograph of the bar at 17.65 metres AHD from both a standing and seating position on Mr Degenhardt's deck, being the 'maximum building height' required by the Council in its notice of decision.
6. Mr Larsson and Mr Degenhardt also tendered photographs showing the poles and bar.
7. The Council's photographs show vegetation between Mr Degenhardt's deck and Mr Larsson's dwelling that generally does not exceed the height of the roof of the dwelling (ie 16.20 metres AHD). They also show vegetation between Mr Larsson's dwelling and the Bay (in a corridor formed by the width of the roof) the top of which forms an irregular line wholly below the horizon and thus affords views of the Bay over the roof.

1. The Council's photographs showing the bar at 17.90 metres AHD from a standing position on the deck at 16 Spencer Street show the bar at or below the line of the top of the vegetation and no impact on the horizon and little impact on the view of the Bay below the horizon.
2. The Council did not include a photograph of the bar set at 18.29 metres AHD, this being the highest point of the roof in the earlier drawings. By my reckoning of the photographs of the bar at 17.90 metres AHD and 17.65 metres AHD from a standing position showing the pole marked with intervals of 100 mm, I infer that the highest point of the roof of the extension at 18.29 metres AHD would be above the vegetation and, in general terms, obscure about 50% of the vertical view of the Bay.

1. The import of the suggestions in the Tribunal's 2017 decision was to encourage greater sharing of viewlines across the northwesternmost 7.5 metres long section of the roof of the extension. The Tribunal suggested the roof be lowered in this section. The Tribunal did not specify the amount this section should be lowered to satisfy its suggestions. Nonetheless, the location of the poles and bar enables a more focussed assessment of the impact on this section of the shared viewline.
2. The application does not adopt the two-level roofline suggested in the Tribunal's 2017 decision. The current drawings show a lowering of the highest part of the roof (the 11 metres long section above the junction of the existing dwelling and the extension) by about 390 mm, from 18.29 metres AHD to 17.90 metres AHD, across the full width of the roof. In other words, the current drawings include a lowered single level roof.
3. As a consequence of the lowering of the roof, it is unsurprising that the Council's photographs appear to show a greater sharing of viewlines (between the earlier drawings and the current drawings) across the northwestermost 7.5 metres long section of roof.
4. By implication, there would be a reduced impact over the remaining southeasternmost 3.5 metres long section of the roof. The impact on shared views across this section of roof was not in serious dispute. This is because a roof high point of 17.90 metres AHD would not result in any loss of Bay views. The loss is mainly of relatively less sensitive views below the tops of vegetation between the subject land and the Bay.[36]

1. I do not need to make any findings about this issue because of my findings relating to building height and the consequent requirement to refuse to grant a permit.
2. I have considered nonetheless making some observations about the merits of the submissions on this issue, if only to respond to the considerable efforts the parties made in those submissions. I will resist the temptation to make such observations. Any observations would not be binding on the Council (or Tribunal, on any future review) if Mr Larsson made a fresh application. The risk in making any observations is that they can be used as a shield or a sword in assessing any future application. That risk deflects from the non-binding nature of observations.
3. Also, any observations would be of little real benefit to the parties. I have come to that conclusion for a number of reasons.
4. Having regard to my findings about building height, any future application with a two-storey extension will be likely to have a materially different roof form, dimensions and/or maximum overall height. Consequently, there will be a different impact on the protection of shared viewlines. Observations about this application will be unlikely to be of any use in a future application.
5. While the matter is not entirely free of doubt, I have decided that the suggestion in the Tribunal's 2017 decision was that a reasonable and practical sharing of the relatively narrow viewline to the Bay with 16 Spencer Street requires retention of all views of the water in the Bay over the northwesternmost 7.5 metres long section of roof of the extension.[37]
6. Having regard to the submissions in this proceeding, I agree with this suggestion in the Tribunal's 2017 decision.
7. The Council's photographs of the poles and bar at 17.90 metres AHD show 'all' of these views of the Bay are not protected from the standing position on the eastern section of the deck at the rear of the dwelling at 16 Spencer Street. It would appear most of the views over this section are protected, but not all. This is because there are two sections of Bay views above the vegetation below 17.90 metres AHD. The two sections are broad (in total, more than half of the 5 metres horizontal distance between the poles) but narrow (about one-fifth of the vertical distance of the Bay between the top of the vegetation and the horizon).
8. If I had been relying on the Council's photographs to decide the issue, I would have been inclined to uphold the Council's condition because it better ensures achievement of the suggestion in the Tribunal's 2017 decision and better responds to the objective of protecting the relevant shared viewlines.
9. I would put one caveat on this observation. The scheme requires the decision maker to consider the protection of shared viewlines where 'reasonable and practical'. That connotes consideration of the viewlines to be obtained from the proposed building. I acknowledge the extension is split level with a deck finished floor level of 14.80 metres AHD.
10. The requirement for a maximum roof height that maintains the whole of the view of the Bay from 16 Spencer Street over a significant portion of the roof of the extension should not have an outcome that the viewline is lost or significantly diminished from a standing position on most of the proposed deck. This does not mean that the deck must project 12.5 metres northwards from the existing dwelling, as shown on the current drawings. A satisfactory shared viewline might be found, for example, with the deck with a lesser overall projection.
11. Mr Larsson submitted, in effect, that a deck level of 14.80 metres AHD is a minimum level from which to enjoy some viewlines to the Bay over the vegetation between the deck (with its balustrade in a location 12.5 metres northwards of the existing dwelling) and the Bay. Mr Larsson did not provide sufficient explanation of the viewlines at that level and location and this hampered my assessment of how the viewlines might change at other levels or with the deck balustrade in a different location.
12. I would not have been able to decide whether the Council's condition was ultimately required, for two main reasons.
13. First, I agree with the submissions on behalf of Mr Degenhardt that the poles and bar do not provide sufficient certainty about the impact on viewlines to the Bay from 16 Spencer Street. As the roof extends about 14 metres to the northeast from the pole position and falls only 200 mm, the impact on viewlines needs to consider the projection of the roof. The projection could raise the effective roof line.
14. Mr Degenhardt submitted consultant-prepared elevations showing the likely projection effect with the maximum roof height at 17.90 metres AHD, 17.65 metres (in line with the Council's condition) and 17.35 metres AHD (Mr Degenhardt's suggested 'compromise') in the location of that point above the junction of the existing dwelling and the extension (and not the pole position). The sketches show less protection of the viewlines to the Bay. He submitted a photograph that claimed the projection effect was about 300 mm higher than 17.90 metres AHD.
15. I do not give weight to these elevations or the photograph. The consultant who prepared them was not called and examined. The line on the photograph was included without adequate explanation. However, the geometric principle that the projection could affect the viewlines impact is a sound one that Mr Larsson was not able to dismiss.
16. If a fresh application is made, I would encourage the Council to ensure this principle is considered before deciding the application. One way of considering the principle would be to ensure any poles and bars are placed at the relevant high point of the roof of the extension and any projected point of the roof (if a basically flat roof is proposed). There may be other less complicated ways of considering this principle.
17. Second, and as I have already stated, the Council's drafting of the condition is incorrect and ambiguous and this hampers consideration of whether it should be affirmed, deleted or varied.

1. It is unnecessary to make any findings about whether the application is a satisfactory response to the scheme's design objective of ensuring protection of shared viewlines. If it had been necessary to make findings, I would not have had sufficient information to make a finding. If a fresh application is made, a fresh assessment will be required in relation to the design objective.

1. The scheme requires the decision maker to consider the relevant DDO2 design objectives, which include:

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.

To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.[38]

1. Visual intrusion is one of a number of relevant character and amenity considerations.
2. Two of the scheme's 'general requirements' are a non-mandatory maximum wall height of 5.5 metres and a building height of 6 metres.[39] The application does not meet these general requirements. If a permit is to be granted to vary the general requirements, the scheme provides that, in effect, the decision maker must be satisfied that compliance is 'unreasonable or unnecessary' and that 'no significant loss of amenity will result'.[40]
3. It is unnecessary to list other relevant considerations in the scheme relating to this issue.
4. In the Tribunal's 2017 decision, the Tribunal found the extension was acceptable having regard to visual intrusion, streetscape and amenity impacts (including overshadowing).
5. It is unnecessary to make any findings for the reasons I stated in the viewlines section of these reasons. I will also resist making observations because they would be of little if any assistance. Any subsequent application that complies with the building height requirement will have a different 'building height, scale and siting' and will therefore require a fresh assessment in relation to visual intrusion and general amenity considerations.
6. I will make an exception in relation to one observation. The Benjamins submitted, in detail, why the application was unsatisfactory and why a permit should be refused on these grounds. The submissions included criticisms that the current plans were of 'doubtful quality' and that the extension was 'bulky', 'top heavy', 'awkward in scale', 'simple', 'ungainly', a split-level 'box', a 'hotchpotch of surfaces and spaces', and 'overwhelmed' the existing dwelling.
7. The Benjamins' submissions were close to putting that Mr Larsson needed to demolish the existing dwelling and construct a new architect-designed dwelling. The scheme does not require such an outcome and any application for alterations and additions to an existing dwelling must be assessed on its individual merits.

1. The parties made detailed submissions about permit conditions. If I had been minded to grant a permit, I would have made various changes to the conditions in the Council's decision based on my consideration of those submissions. The parties agreed to some particular changes. As I have already stated, I will not grant a permit so it is unnecessary to determine conditions.

1. For the above reasons, I will set aside the responsible authority's decision. No permit will be 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] Jaanda Court runs approximately southeast from the corner with Revell Street. The subject land is rectangular and on the southwest (or inland) side of the street. It therefore faces northeast. In these reasons, its street frontage is referred to as to as the northeast boundary, the rear boundary as the southwest boundary and the two sides boundaries as the northwest and southeast boundaries. In these reasons, there is regular reference to two other lots. The first is 11 Jaanda Court (occupied by Esther & Brian Benjamin) which is also rectangular, abuts the southeast side boundary and has a similar orientation. The second is 16 Spencer Street (occupied by Daryl Degenhardt) which is also rectangular, abuts the southwest rear boundary and has a similar orientation.

[3] A fuller description of the proposal is set out shortly in these reasons.

[4] Larsson v Mornington Peninsula SC [2017] VCAT 444 (27 March 2017) (Wright QC SM).

[5] Larsson v Mornington Peninsula SC [2017] VCAT 444 [20] & [21].

[6] Larsson v Mornington Peninsula SC [2017] VCAT 444 [10].

[7] Larsson v Mornington Peninsula SC [2017] VCAT 444 [10]. As the Tribunal found the existing view corridor was 'narrow', I infer the Tribunal meant that, if the extension was approved and completed, the corridor would be more correctly 'narrower'.

[8] Larsson v Mornington Peninsula SC [2017] VCAT 444 [26].

[9] Larsson v Mornington Peninsula SC [2017] VCAT 444 [27].

[10] Mornington Peninsula Planning Scheme cl 73.01. The dimension in the condition should have added 'metres' but the parties effectively agreed this was assumed.

[11] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0 Buildings and works - Maximum building height.

[12] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, dot point 4.

[13] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, dot point 5.

[14] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, dot point 6.

[15] The scheme sets out some exceptions to this requirement, but none are relevant in this proceeding.

[16] The building height below the 1.2 metres high balustrade is dimensioned at 6.85 metres at this northernmost point.

[17] The building height below the 1.7 metres high balustrade is not dimensioned at this easternmost point. However, with the balustrade at RL 16.40 metres and the surface level immediately below dimensioned at RL 10.28 metres, it follows that the building height at this point is 6.12 metres, according to the plans.

[18] Mornington Peninsula Planning Scheme cl 73.01.

[19] Mornington Peninsula Planning Scheme cl 73.01.

[20] Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 [15].

[21] Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364.

[22] Mrocki v Bayside CC [2015] VCAT 1731 (29 October 2015) (Gibson DP & Keddie M).

[23] Larsson v Mornington Peninsula SC [2017] VCAT 444 [29].

[24] I set out a summary in Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 at [18]- [21].

[25] See eg Wake v Mornington Peninsula SC [2018] VCAT 1417 [23].

[26] Mrocki v Bayside CC [2015] VCAT 1731 [48]-[51].

[27] Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 [25].

[28] These comprised a feature survey of 11 Jaanda Court and 16 Spencer Street in 1998 and 2012 (respectively), a feature survey of 11 Jaanda Court and the rear of 23 & 25 Revell Street and (remotely) the subject land in the vicinity of the footprint in 2017, a further 'partial' survey of 23 Revell Street and the retaining walls, trees and grounds levels' in the vicinity of the footprint on 7 & 14 December 2018 and comprised sheets 1 & 1A (Exhibits O19, O21 & O22).

[29] The cross sections (Exhibit O22A) are based on the feature surveys' results.

[31] Mornington Peninsula Base Map Series Sheet 125, dated 1961, scale 1 inch equals 400 feet.

[32] Larsson v Mornington Peninsula SC [2017] VCAT 444 [28].

[33] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, dot point 5.

[34] See eg Healy v Surf Coast SC [2005] VCAT 990; Santamaria v Mornington Peninsula SC [2009] VCAT 2311; Van Hoof v Mornington Peninsula SC [2009] VCAT 2065; Mornington Peninsula SC v Tuscann Enterprises Pty Ltd [2010] VCAT 937 [19], [23]

[35] Mr Larsson's land surveyor conducted a survey of the poles and bar on 7 May 2018.

[36] The southeasterly pole in the Council's photographs, to which I have referred, is in the fortunate location of being near the point at which the 3.5 metres wide section ends.

[37] That equates to a line that is about 11 metres inside the northwest facing side boundary and parallel to that boundary for a distance of about 11 metres to the northeast from the northernmost point of the existing dwelling.

[38] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, dot points 4 & 6.

[39] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, General requirements.

[40] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, Permit required.