1. This matter involved an application made under Section 82 of the Planning and Environment Act 1987 by objectors seeking the review of the Bass Coast Shire Council's decision to grant a permit for the construction of two dwellings on land known as 14 Flinders Street Ventnor,
2. The objectors oppose the grant of a permit and request that I set aside the council's decision. Mr Berry's ground of appeal express concern about the level of development proposed; the adverse impact on the nearby foreshore reserve; increased traffic and noise as well as the removal of vegetation. Mr Goode's grounds express concerns about the impact on the ambience of the area and neighbourhood character; the natural environment; parking and the suitability of the street to accommodate the traffic. Both objectors also referred to a previous proposal in 2004 involving the redevelopment of the property for four double storey townhouses which was ultimately refused by the tribunal[1].
3. The council and the permit applicant assert that the decision to grant the permit should be affirmed. In general terms, it is their position that the site is suited to being redeveloped for more than 1 dwelling; such development is supported by policy and the development form proposed is responsive to the emerging character of the area which is undergoing redevelopment. It was also submitted that the current proposal has responded to the tribunal's criticisms of the earlier proposal.

1. The site is located on the northwest side of Flinders Street, about 85 metres north of Graydens Road. The "site" comprises one of two lots created by the subdivision of the property known as 14 Flinders Street which was approved by the council in 2007. Originally comprising a single lot measuring 1720 square metres, the 2007 subdivision created two lots, one with direct frontage of Flinders Street, the other directly behind it and sharing a strip of common property which allows for access to Flinders Street.
2. The site comprises the front lot, which is rectangular in shape, with a frontage width of 15.92 metres, depth of 40.23 metres and an overall area of about 640 square metres. A double storey timber dwelling, as existing on the original parent lot, occupies the area comprised by this lot.
3. The second lot, located to the rear, is also rectangular, but with a larger area of about 911 square metres. It is vacant land supporting limited vegetation. A heavily vegetated foreshore area and beach exist to the north of this lot.
4. Access to the rear lot is via a 4.2 metre wide strip of common property that extends from Flinders Street and runs adjacent to the side boundary of the front lot.
5. The site has an abuttal with two properties, both of which are occupied by dwellings, as are the properties directly opposite on the southeast side of Flinders Street. Flinders Street has an informal construction, with gravel pavement and grass verges on either side.
6. Contextually the site is located within an established residential area in Ventnor, one of Phillip Island's townships. The modest beach style dwellings that occupy many of the properties within the township, like those on the site and adjoining properties; reflect the Phillip Island's role as a holiday retreat. However, as noted by the tribunal in the previous case, there is evidence of "gentrification", with the older beach holiday homes being replaced with more substantial, often double storey, contemporary dwellings.

1. The proposal involves the construction of two double storey dwellings on the site. The existing dwelling is to be demolished. The overall height of the building is 6.9 metres at its highest point. The building site coverage would be about 51 per cent.
2. The proposed dwellings are to be contained within a single building and in a side by side in a side by side layout, although not configured as an identical pair. The building has a contemporary styling, with flat roof form, with external finishes including brickwork, eco ply panelling and aluminium windows.
3. Each dwelling provides for two bedrooms and a sitting room at ground level, with master bedroom and main living areas in an open plan layout at first floor level. Open space is provided in the form of ground floor courtyard areas and first floor balconies.
4. Although a side by side layout is proposed, the building has been designed to give the appearance of a single, double storey dwelling when viewed from Flinders Street. This has been done through the design of dwelling A, which presents its front door and a double garage with crossing facing Flinders Street, while the entry to dwelling B is positioned to the side. The garage to dwelling B is also located to the rear of the site, and accessed from the common property strip.
5. Some trees would also be removed to accommodate the proposed development. This includes three trees located adjacent to the southwest boundary.

1. Pursuant to the planning scheme, the site is zoned Residential 1, the provisions for which are at clause 32.01. Under clause 32.01-4, a permit is required to construct more than 1 dwelling on a lot. An application must be assessed against the provisions of clause 55. All the objectives of this clause must be met for a permit to be granted. The standards under the objectives should also be met; however, it is open for the tribunal to find that the objectives have been met in a way that is different to the specified standard.
2. The site is also subject to 2 overlay controls.
3. The land is affected by the Design and Development Overlay [DDO]. Under this overlay, a permit is required to construct a building and works unless the need for a permit is exempted under the relevant schedule. In this case, the provisions of schedule 1 [DDO1] apply. The provisions of clause 2.0 in DDO1 say that a permit is not required for any proposed buildings and works that have a height of less than 7 metres. The building and works proposed reach a maximum height of 6.9 metres and as such, are exempt from the need for a permit under the DDO.
4. The land is also affected by the Vegetation Protection Overlay [VPO], with the provisions of schedule 2 [VPO2] being applicable. Under the VPO, a permit is required remove vegetation specified under the applicable schedule. Under the schedule:

A permit is required to remove, destroy or lop any tree or shrub with a girth greater than 30 centimetres (when measured 30 centimetres above ground level) or a height of at least two metres.

This does not apply to introduced species of ornamental shrubs or fruit trees or to species identified as being weeds; or to pruning.

1. A permit is required to remove the trees located along the southwest side boundary.
2. General decision guidelines are at clause 65. These require consideration of a range of matters including planning policy, the purpose of the zone and overlay, orderly planning and amenity.
3. There is a raft of policies, in both the State Planning Policy Framework [SPPF] and Local Planning Policy Framework [LPPF] that are in some way applicable to the consideration of this proposal. In general terms, they fall into three categories. The first category includes the policies that support and encourage the consolidation of areas that are already identified for urban use through the provision of more housing at a variety of densities. The second category includes the policies that support development that is respectful of neighbourhood character. The third category includes those policies that support development that is sensitive to the natural environment, particularly vegetation and the foreshore. I was also referred to the Phillip Island and San Remo Design Framework [2003]. I will elaborate on policy and the framework as appropriate later in these reasons.

1. After having considered the matters raised in the submissions, the details of the proposal and the relevant matters under the planning scheme and legislation, it seems to me that the key issues in this case are:
   • Is the redevelopment of the site for two dwellings supported by planning policy?
   • Does the proposed development represent an acceptable response to the neighbourhood character?
   • Will the proposed development have an adverse impact on the natural environment?
   • Will the proposal cause unreasonable impacts on the amenity of neighbours?
2. Before turning to these matters, it is appropriate that I first say something about the relevance of the previous tribunal decision.
3. It is clear that in her decision, Member Naylor expressed concerns about the design response, particularly with respect to the neighbourhood character and the connection with the foreshore reserve to the north.
4. I have considered the findings of my colleague in the previous case. There are good reasons for this. In Leonella Cox v Macedon Ranges Shire Council[2], the tribunal observed:

Consistency in decision-making is important and if an Applicant satisfactorily resolves concerns expressed by a Tribunal, then there is a reasonable expectation that a proposal should be approved if there are no substantive reasons such as a change in policy to do otherwise.

1. In this case, the planning scheme controls remain largely the same as those that applied when Member Naylor made her decision; however, there has been a change in policy with the introduction of local policy for Ventnor, as set out in clause 22.06-6. I will discuss the relevance of this later in these reasons.
2. Importantly, the tribunal in Leonello Cox went on to acknowledge that one tribunal is not bound by a decision of another. I accept and agree with this. Nonetheless, I also accept and agree with the views expressed by the former Planning Appeals Board in Benc v Doncaster and Templestowe as quoted in NC Lynn v City of Prahran & ors[3]:

In the case of a different but similar application which has been prepared in accordance with the advice of the Board, equity or fairness demands that considerable weight be given to the fact that the applicant has endeavoured to accommodate suggestions as to what would be appropriate.

1. To this extent, it is appropriate that I have regard to whether the current proposal has responded to Member Naylor's concerns and overcome the problems that ultimately led to the refusal of the first proposal.
2. In doing so, it is important to note that the current proposal is different to what was previously considered. First, the "site" is quite different in this case, comprising a smaller lot of 640 square metres compared to the original property which measured 1720 square metres. Second, the "site" in this case does not have a direct abuttal with the foreshore reserve. Third, less dwellings are proposed; two instead of four. Fourth, the design concept is different, comprising attached townhouse style dwellings within a single building, rather than separate free standing dwellings. Fifth, the design style of the building is different.
3. Having made these observations, I now turn to the key issues in this matter.

Is the redevelopment of the site for two dwellings supported by planning policy?

1. It was contended by the applicants that no further medium density development should be allowed in Ventnor. In particular, Mr Goode submitted that only one dwelling should be allowed on each of the new lots created under the subdivision of the land. He argued that there are enough dual occupancy developments in Ventnor, and that the subdivision of the land with one dwelling on each lot would be sufficient response to the planning policies calling for consolidation and the provision of housing.
2. I do not accept this submission. The strategic direction set out in the both the state and local policy frameworks within the planning scheme, as well as the purpose of the Residential 1 zone, provide strong support for the consolidation of existing urban areas and the construction of dwellings that add to the diversity of housing options that are available to the local community.
3. The township of Ventnor is an urban area, albeit one with a coastal character. The policies at clauses 14.01 and 16.02 of the SPPF provide clear support for the consolidation of existing urban areas. The provision of medium density housing is one method by which this policy outcome is to be achieved. Further, the purpose of the Residential 1 zone contemplates development of a variety of dwelling types and at a range of densities.
4. While the state policies and zone provisions are generic for the entire state, it is wrong to say that support for medium density is limited to state policy. It is also clear that the local policies, developed and put in place by the council, also provide support for the consolidation of townships like Ventnor. This was the case at the time that Member Naylor made her decision in the previous case. Member Naylor stated:

........The State and local planning policies of the Planning Scheme encourage and support the consolidation of residential development on land zoned for urban/residential purposes, making better use of infrastructure.

38. This municipality has a clear policy direction of encouraging continued urban growth within the existing townships and this includes, amongst others, Cowes and Ventnor.........

1. The introduction of the policy for Ventnor at clause 22.06-6 via Amendment C46 in April 2008 has only reinforced this policy position. In particular, the policy states:

The strategy for Ventnor is to position this settlement as a separate entity to Cowes. Over time, this would require the provision of commercial development to meet the needs of this population.

1. It is policy that the built form and future development:
   • Comprises the consolidation of development within the defined town boundaries, with a mix of densities to accommodate population growth without compromising the coastal village character.
   • Discourage expansion of the residential area into the area between the existing settlement and Ventnor.
   • Consolidate development within existing residential boundaries, as identified in the existing framework plan.
2. The words used in the local policy; consolidation, mix of densities, accommodate population growth, discourage expansion ...etc. send a very clear message. That message is that development is to be contained within the identified township boundaries, dwellings provided at mixed densities and at a level that is able to accommodate population growth.
3. Bearing this in mind, the position advanced by Mr Goode that there should not be any further medium density housing in Ventnor is contrary to the clear direction given by local policy. His position is unsustainable. While I appreciate that Mr Goode may not like and/or agree with the policies, this application must be assessed against the policies as they stand. If, as suggested by Mr Goode, the local community does not support further medium density housing in Ventnor, the appropriate course is to engage with the council to have the policies changed.
4. The site in this case measures about 640 square metres. It is rectangular, has a frontage to Flinders Street and secondary access from the strip of common property. The site is not subject to difficult constraints. The existing building is unremarkable, the slope is moderate and there are no awkwardly positioned easements to contend with. There are some trees along the southwest boundaries. However, for reasons that I will set out later, I agree with the council that they can be removed.
5. Accordingly, although the site is not overlay large, in principle, I accept that it is capable of supporting some form of appropriately designed two dwelling development.
6. It follows that the redevelopment of a suitable site for an appropriately designed medium density development is supported by both the purpose of he zone and the thrust of the planning scheme's housing and urban consolidation policies.

Does the proposed development represent an acceptable response to the neighbourhood character?

1. Ms Munn submitted that the proposal has achieved a satisfactory response and the problems that led to the refusal of the previous proposal have been overcome. Particular elements of the proposal that were said to demonstrate an appropriate response include the development of the two dwellings into a single building that presents much like one dwelling to the street; an appropriate front setback and replacement of a high timber fence with lower and more appropriate fencing; a building height that meets the DDO1 requirement and an overall building design and materials that are responsive to the coastal context.
2. Ms Munn acknowledged that the proposed development is larger than the older "beach houses", and that there is limited on boundary development. However, Ms Munn submitted that given the thrust of the planning scheme's policies supporting the consolidation of the township and redevelopment, it would be reasonable to expect more intensive development than what has previously occurred.
3. Mr Duffill supported these submissions and added that the built form proposed will appear similar to other developments that have been built and will not depart significantly from the scale and form of surrounding buildings.
4. In dealing with this issue, the first point to be made is that while planning policy clearly supports urban consolidation, the policies also call for development that is responsive to the character of the area. In particular, the objectives for Ventnor in the policy at clause 22.06-6 include:
   • Protect the existing coastal landscape character of the urban area.
   • Ensure that the built form is high quality and of an appropriate scale for Ventnor.
5. As noted earlier, while it is policy to consolidate development within the township and to provide for a mix of densities, this should be achieved "...without compromising the coastal village character".
6. There is little in the policy and the Phillip Island and San Remo Design framework plan that defines what is meant by the coastal landscape or village character. In relation to the built form, the framework plan provides some guidance when it says :

The sprawling built fabric of Ventnor generally comprises 'beach house' dwellings, with many houses used as holiday homes.

Ventnor appears to have larger houses than the other townships; many having two storeys with car parking underneath. The dominant materials are lightweight timber and fibro cement cladding.

1. In coming to her decision, Member Naylor had to come to grips with the character of this part of Ventnor and described it in the following terms:

I agree with Ms Jackson that the properties are generously sized and contain a dwelling that is either single or double storey. This neighbourhood has obviously been established for some time as there are two eras of housing styles, the first being the older predominantly single storey "holiday cabin style" houses and the second being the modern larger two storey dwellings that seek to capture views of Westernport Bay from the first floor. The dwellings are generally sited in the middle of the properties, with a single driveway, and walls on property boundaries are not common.

The properties generally contain grass and scattered trees or shrubs. The side and rear fencing is generally post and wire fencing, providing "clear views" between properties (as described by Ms Jackson). Some properties contain more dense vegetation screens along the boundaries to increase the privacy between properties.

1. On my inspection of the site and locality, it seemed to me that the character is largely derived from the informality of the setting. The "informality" of the setting is not simply due to the older style holiday houses. Rather, it is made up of elements such as the irregular positioning of houses on lots with some being sited on an angle; the space between dwellings usually comprising setbacks on both sides; a sense of openness that is created by the post and wire fencing and the "unmade" nature of the road reserve with its narrow gravel surface and grass verges.
2. There are some aspects of the proposal that have responded in a reasonable way to the neighbourhood character. The consolidation of the dwellings into a single built form, presenting as one house to the street is one. The graduated setback between the houses on neighbouring properties is another. The overall height of the building is compatible with those on neighbouring properties. The architectural expression is also appropriate.
3. However, in her decision, Ms Naylor expressed her agreement with a proposition put to her that "you cannot compare say Hawthorn East to Ventnor" and went on to identify a number of features about the proposal in that case which she found to be at odds with and not respectful of the neighbourhood character. These were the siting of dwellings down the length of the site with garages on boundaries; the provision of two driveways, with one along the east side boundary presenting a "gun barrel" form and the need for paling fences on side boundaries. Essentially, while the proposal in that case complied the quantifiable standards at clause 55, the design response was considered to be somewhat suburban in nature.
4. While I accept that the proposal before me is different, nonetheless, I have come to the conclusion that the design response is inappropriate for two fundamental reasons.
5. First, the design response in this case has not overcome the deficiencies identified by Ms Naylor in the previous case.
6. While the proposal involves two double storey dwellings, the building form stretches in a continuous way down the length of most of the site. With the exception of the 6.3 metre front setback, the building footprint extends from the front garage down to the rear boundary where the second garage is positioned. The lack of setback to the rear garage has the potential to facilitate further continuity in the built form if a garage associated with a dwelling on the second rear lot is positioned on the same boundary, whether it as part of a unit development or single dwelling.

Will the proposed development have an adverse impact on the natural environment?

1. There are two aspects to be examined. The first is the removal of the trees. The second is the impact on the foreshore.
2. The site is subject to the VPO with the provisions of VPO2 being applicable.
3. To facilitate this proposal, some native trees along the side boundary are to be removed.
4. The vegetation protection objective to be achieved is :

To protect and enhance existing indigenous species within the urban area of Phillip Island.

1. It was submitted by the council that the removal of the trees is acceptable given that they are poorly formed, multi-stemmed and unlikely to be part of a wildlife corridor.
2. I agree that the trees are poorly formed and isolated. Further, I note that Member Naylor did not express any concern about the loss of trees.
3. In my view, the removal of poorly formed trees is acceptable subject to suitable replacement planting being provided.
4. The interface between the site and foreshore reserve and the impact on the reserve was a matter of concern in the previous proposal.
5. However, this proposal involves the front lot and is well separated from the foreshore reserve by the second lot for which there is no development proposal. I accept that this proposal would not have adverse impacts on the foreshore reserve. Ultimately this will be an issue to be considered with respect to the development of the second lot.

Will the proposal cause unreasonable impacts on the amenity of neighbours?

1. I am satisfied that the proposal would not have unreasonable impacts due to such matters as overlooking, overshadowing or loss of daylight. The informal character of the area and lack of side fences allow for views between properties. This is part and parcel of the character and amenity offered by this neighbourhood. The surrounding properties are reasonably large and able to cope with shadows impacts while habitable room windows on neighbouring properties are well setback and compliance with the requirements of clause 55 is achieved.
2. I have no concerns about the amount of extra traffic generated by this proposal. Essentially there is one dwelling on the lot and this will increase to two, or one national dwelling. The additional traffic generated will be modest and difficult to perceive.
3. In relation to parking, compliance with the requirements of Standard B16 in terms of the number of spaces to be provided is achieved.
4. The road infrastructure in this case is somewhat informal, and although a narrow gravel pavement and grass verges exist. Parking on the grass verges is possible and I would expect this to occur from time to time. The parking demand generated by the proposed development will largely be met on site, with the occasional overspill on the grass verges to expected in this environment form time to time

1. I have come to the conclusion that the council's decision to grant a permit should be set aside and the proposal refused.
2. I accept that planning policy and the purpose of the zone support development that works to the consolidation of Ventnor as a township. The submission that there should not be any medium density housing is Ventnor cannot be sustained as this position would be contrary to the clear direction given by policy.
3. However, policy also requires development to be designed to be respectful of neighbourhood character. For the reasons given above I am not satisfied that the proposal achieves this.

[1] Goode v Bass Coast SC [2004] VCAT 2579

[2] [2003] VCAT 630