S.82 Planning and Environment Act 1987 - Shared views

Mr D McNeill appeared on behalf of the Responsible Authority.

Mr D Reid, of Collier and Reid Pty Ltd appeared on behalf of the Responsible Authority.

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Construction of two storey additions to existing dwelling.

1. Will involve the loss of privacy and will involve overlooking.

3. Will adversely affect the amenity of our property.

4. Do not accord with good planning principles as applied to the existing planning scheme, and

5. Would adversely impact upon our property by reason of their bulk.

The Tribunal was presented with written and oral submissions and photographs. The Tribunal has visited the site and surrounding area.

The subject land is situated on the corner of Wray Street and the Great Ocean Road, Anglesea, on the northern side of Wray Street.

The site is an irregular shape having a frontage of 20.94m to the Great Ocean Road and 28.65m to Wray Street. The total area of the site is 942.1m².

The site is currently occupied by a single storey timber framed, weatherboard dwelling.

The land slopes from north to south, the outlook to the south west is over the township of Anglesea, the river, the beach, and beyond to Point Roadknight, although the view is slightly obscured by tall trees.

The adjoining property to the north is occupied by a single storey dwelling. This site is elevated above the subject site and a 1.5m retaining wall extends along the shared boundary.

It is proposed to construct a two storey addition to the existing dwelling. The maximum building height proposed is 7.2m above natural ground level. The additions are to be located in the centre portion of the dwelling, within the existing footprint. The upper level is to incorporate a bedroom, study and gallery area with a small north facing balcony.

The site is within a Residential A Zone pursuant to the Surf Coast Planning Scheme.

A permit is required for the development under Clause 121 of the local section of the planning Scheme as the development exceeds one storey.

The Responsible Authority adopted Residential Guidelines in 1995 for consideration of single dwelling applications. Under the policy, single dwellings are required to comply with the requirement of "VicCode 1 - Subdivision and Single Dwellings", except that a maximum building height of 7.5m is specified.

The land is proposed to be zoned Residential 1 under the new Surf Coast Planning Scheme, to date no panel hearing has been conducted in relation to the new scheme.

Under the new scheme the land is proposed to be subject to two overlays: Significant Landscape Overlay - Coastal Townscape Character (SLO2) and Design and Development Overlay - Significant View Sharing (DDO2).

A permit would be required in accordance with the DDO2 overlay as the building would exceed 5m in height above natural ground level.

Reference was also made to the Municipal Strategic Statement and to the draft Anglesea Structure Plan (1998) and the following policies: Coastal Townships Policy and View Sharing Policy.

The Objectives of the Significant View Sharing Overlay are as follows:

"To provide for a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries, and notable cultural landscape features which form an important part of the amenity of a property."

"The impact of the proposed buildings and works on the view from another property as a result of the siting, height, size, bulk, colour and design of the building, including the roof.

The opportunity for a reasonable sharing of views having regard to the extent of the available view and the significance of the view from the properties affected.

Two issues have been identified as being contentious, they are loss of view and loss of privacy. Each of these issues will be dealt with separately.

Previous Tribunal decisions and the proposed new Surf Coast Planning Scheme take into account what is considered to be an accepted principle in relation to views. It is well recognised that no one had a right to a view but that in particular contexts then reasonable sharing of views should be aimed for.

Two decisions of the Tribunal, Ariss and Ors v Surf Coast Shire & Ors (unreported 1995/843, 1995/2048) and R. Hansen v Surf Coast Shire (unreported 1995/30567) both relating to the area the subject of this proposal refer to the reasonable sharing of views. In both cases it was concluded a balance should be achieved with regard to the sharing of views.

It was stated that the distant views to Point Roadknight and the Anglesea River are obscured by a canopy of trees and these along with other existing vegetation will result in the view being further obscured in the future. It was further stated that the removal of an existing gum tree would result in the property to the north obtaining a view which currently does not exist.

These are logical statements but it is not considered in the present case justify the approval of a second storey development that will obscure totally the current albeit distant and slightly obscured views that the property to the north currently enjoys.

The existing dwelling on the subject land is positioned on an angle to take advantage of the view towards Point Roadknight. This is a view of the ocean and of the waves breaking over the rocky point, this is a feature of a coastal landscape. This view is also shared by the property to the north, which has also been built to take advantage of this feature. Both properties having been constructed at least 30 - 40 years ago.

Whilst the current planning provisions do not require the Responsible Authority to consider views when assessing proposals the Responsible Authority in its proposed new planning scheme has recognised that ocean views form a significant feature that warrants specific mention in the planning scheme. Whilst there has not yet been a panel hearing or approval of the new planning scheme, it is what is considered to be a seriously entertained planning proposal and should be given significant consideration in any planning proposal. The Responsible Authority's Municipal Strategic Statement expresses the Council's overview which is supported by underlying policies one of which is the view sharing policy.

The proposed application does not take into account the sharing of views. It is stated on behalf of the permit applicant that creating a second storey above the existing bedrooms was not acceptable as the house would extend above 7.5m due to the fall of the land. It was considered that by siting the upper storey further to the east this would result in the upper bedroom level being sited closer to the Great Ocean Road. Whilst the property address is the Great Ocean Road the property is separated from the road by a service road and the property is already on the upward slope from the Great Ocean Road.

It was further considered that the more easterly siting would result in overlooking of the Anglesea Industrial Estate. The property is already separated from this Estate by the Service Road and Great Ocean Road as well as a considerable amount of existing vegetation along these roads. Siting the second storey to the east does not mean facing the Industrial Estate. It may have been an expedient consideration not to site the second storey on this east end of the existing dwelling but it will it is considered have an unreasonable impact on the adjoining property to the north. Siting further to the east could still result in retention of the ocean and river view.

Under the new scheme any proposal 5m above natural ground level would require a permit. IN the present case it would appear the second storey has only been sited in the central portion to come under the 7.5m limit with no consideration of the impact this will have on the adjoining property.

The proposal is for decking with an area of approximately 5mx2m and large glass windows to the north on the second storey. The Tribunal agrees with Mr Bergin that it is difficult to see what great advantage this is going to be. The view to the north will be directly into the adjoining property to the north it being situated on the upward slope above the subject property. The size of the proposed deck suggests it is to be used as an outdoor area. Whilst it is indicated the setback from the deck to the adjoining property is 13m, and there is a considerable amount of existing vegetation which will screen between the properties the result however will be the northern property's loss of its view of Point Roadknight and the subject property now looking directly into the living area of the northern property. The two storey addition directly in the view line of the property to the north will it is considered result in visual bulk, a loss of privacy and overlooking to that property.

It is considered that the Responsible Authority has not taken into account sufficiently its proposed planning scheme requirements particularly in having regard to the design guidelines that require consideration to be had to the impact the proposed buildings will have on the view from another property as a result of the siting and consideration of the opportunity for a reasonable sharing of views. The Tribunal considers that the desired outcome could more appropriately be achieved by siting the second storey further to the east, in doing this it is considered that both properties would retain existing views of Point Roadknight, the Anglesea River and surrounds. It is considered that in doing this the Great Ocean Road to the east as well as the Anglesea Industrial Estate will not impact on the proposed second storey.