The decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted in relation to permit application P06/0079.

Mr Stephen Jones, barrister. He called Mr Richard Umbers, planning consultant.

Mr P Woollard. He also appeared on behalf of Mr D Tripcony

Ms B Hill on behalf of the Mt Eliza Woodland Residents Association Inc.

1 This case concerns a proposal for the construction of a second dwelling, which is to be single storey, on a 3100sq.m allotment within the Mt Eliza Woodland area. One gum tree is also proposed for removal.

2 Ron Beveridge is seeking a review of the Council's failure to make a decision on the application within the prescribed time. Council required notice of the application to be given to the owners and occupiers of adjoining and surrounding properties and 34 objections were received.

3 The Council advised that had it been in a position to do so, it would have refused the application.

4 The key issues for consideration in this case can be summarised in the following way:

•

Is the density of development acceptable having regard to the size of allotments in the area and the Design and Development Overlay affecting the land?

•

Is the siting and design of the dwelling acceptable in terms of the surrounding pattern of development and the character of neighbourhood?

•

Would the removal of vegetation and proposed landscaping allow this development to achieve a reasonable fit with its surrounds?

•

Would the development result in any unreasonable loss of amenity to neighbouring residents?

5 At the commencement of the Hearing, Barbara Hill, on behalf o the Mt Eliza Woodland Residents Association Inc. sought leave to be joined as a party to this proceeding.

6 In the absence of any objection from the parties I granted the request.[1]

7 The review site is almost square in shape with a frontage of 55.95m, side boundary dimensions of between 57.91m and 57.66m and a rear boundary of 51.58m. The site is located on the north[2] side of Hamersley Court just beyond the mid-point of this street which ends in a cul-de sac.

8 The site has a cross-fall from the south-west corner at the front to the north-east corner of about 8m.

9 Two easements are on the land - along the rear boundary and on the west side adjacent to No. 5 Hamersley Court.

10 There is a two-storey brick dwelling on the eastern portion of the land. It has a front setback of about 20m. Various outbuildings, a pool and spa are located on the north and west sides of the dwelling. A cross-over and gravel driveway are generally positioned on the east side together with a turning area at the front of the dwelling.

11 The portion of the site which is to contain the proposed dwelling comprises an elevated level platform that appears to have been created following some earthworks in the past. A grassed embankment with some shrubs is positioned on the east side of the platform. Of note is a eucalypt at the top of the embankment which is earmarked for removal.

12 Vegetation around the site is mixed comprising both native and exotic species in an otherwise fairly open, grassed garden setting.

13 The site abuts three other properties.

14 No. 6A Hamersley Court to the east previously formed part of the review site. It is vacant. The two lot subdivision which resulted in the creation of that lot and the review site was the subject of a hearing before a different division of the Tribunal in 2002.[3] Any future dwelling on this lot would need to be located within a building envelope located at the rear of the site in the north-west corner. This lot has a noticeable fall towards the east, draining to the Kackerboite Creek.

15 Surrounding land in Hamersley Court is otherwise developed with single houses on allotments that are similar in size or larger than the review site. These are typically set within informal semi-bushland gardens.

16 The abutting site to the west, No. 5 Hamersley Court is developed with a dwelling which is elevated on its east side. It has a setback of about 8.5m from the common boundary except for a carport near the front. A number of windows on the east side face the review site. Vegetation includes a row of eucalypts set close to the common boundary.

17 The third abuttal is with a large allotment developed with a dwelling which fronts Jamesbrand Court.

18 This proposal is for the construction of a second dwelling. It is to be single storey and is to be setback 15m from the front and between 3.5m and 4.5m from the western boundary. It would generally occupy the levelled fill platform which I have previously described.

19 The dwelling is to contain three bedrooms, living, dining, kitchen and family rooms together with other usual amenities. Main living areas open out onto a deck which wraps around the east and north sides. Private open space is proposed at the rear comprising an area of 295sq.m.

20 A double garage at the front faces the street and is to be accessed via a new cross-over near the western boundary. A reversing bay is also proposed within the front setback.

21 The dwelling is to be of brick construction with some render and stone cladding elements to the front façade. The roof is pitched and is to have concrete tiles.

22 One eucalyptus tree is to be removed in the vicinity of the deck.

23 The land is included in a Residential 1 zone. A planning permit is required[4] to construct two or more dwellings on a lot. Such applications must meet the requirements of Clause 55 of the Scheme (Rescode). These requirements are that a development must meet the objectives and should meet the standards of that clause. I observe that aside from neighbourhood character related considerations, the proposal would largely meet all other the relevant ResCode objectives.

24 The site is also affected by two overlays. They are the:

•

Vegetation Protection Overlay - Schedule 1 - Township Vegetation - ("VPO1"); and

•

Design and Development Overlay - Schedule 4 - Environmental Design ("DDO4").

25 The VPO1 requires planning permission to remove vegetation in certain circumstances. However, the controls under this overlay are not invoked in this case as an exemption applies to:

•

The removal of vegetation carried out in conjunction with a development approved under a planning permit and in accordance with an endorsed plan.

26 Under the DDO4, a planning permit is required for certain buildings and works. It also allows permission to be sought for the construction of a second dwelling on land with an area of not less than 2600sq.m in this particular locality east of Canadian Bay Road. Under the DDO4, there are certain "general requirements" that should be met and "mandatory requirements" that must be met. The parties agreed that the proposal meets both the general and mandatory requirements.

27 Design objectives of particular relevance under the DDO4 seek to:

•

To ensure that development densities are compatible with the environmental and infrastructure capacities of the area, including the capacity of local streets, drainage systems and sewerage systems. Where reticulated sewerage is not available, particular consideration must be given to the ability to contain all waste water onsite and the impact of development on ground water conditions. Particular attention must be given to the impact of development on streamlines, water ways and wetlands and to avoiding the development of land susceptible to stream erosion or flooding.

•

To recognise areas, including Mt Eliza, where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space. ...

•

To recognise the landscape character of environmentally sensitive areas, including the National Trust recorded landscape of the Mt Eliza escarpment.

•

To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical.

•

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 subdivision proposals will enable new buildings to be integrated with their site and the surrounding area in terms of the relationship to existing buildings, open space areas and the coastal landscape.

•

To recognise areas where a lower intensity of residential activity and traffic movement contributes to the amenity of the area.

•

To recognise areas, with limited access to infrastructure, services and facilities, including public transport, that are considered inappropriate for higher densities of occupation.

28 There were a number of State planning policies referred to at the hearing and I have taken them into account.[5]

29 The most relevant local policies are to be found at Clauses 21.04 (Mornington Peninsula Strategic Framework Plan); 21.06 (Strategic Framework and the Peninsula's Settlement Pattern); 21.07 (Housing and Integrated Local Area Planning).

30 Key themes that emerge from a review of these policies are that:

•

More diverse housing is required to meet the changing needs of households.

•

Areas of environmental, landscape, agricultural or recreational significance are to be protected.

•

The concentration and containment of new residential development within the boundaries of the Peninsula's major towns, including Mornington, Somerville, Hastings, Dromana and Rosebud is desirable as a means of strengthening economic activity within these towns while ensuring residents enjoy good access to services and facilities.

•

Township boundaries should reinforce the clear separation between Mt Eliza and Mornington having regard to lower density development in Mt. Eliza.

•

Neighbourhood character is a key consideration when decisions about land use and development are made. New development should endeavour to achieve site responsive designs that are integrated with natural landform and vegetation.

31 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering permit applications. Of relevance are the State and local planning policy provisions referred to above, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

32 Mr Newman and some objectors referred to the "Mt Eliza Woodland Neighbourhood Character Study".[6] This document has been prepared with community consultation, reviews existing planning scheme provisions and recommends the tightening of planning controls for the Woodlands area.

33 The subject site would be located in Precinct 2. The existing character of this area is described in the following terms:

This area is distinctive for its native bushy vegetation and large front and side setbacks. Dwellings are a mix of 1970-1990s style houses, most of which are large buildings set within grounds. Lot sizes are 2600sq.m or greater, with a number of larger lots having been subdivided. Generally houses are surrounded by gardens with native canopy trees and mixed species of shrubs. Streetscapes have a natural, woodland feel, with scattered clusters of native trees and shrubs and informal or no footpaths ...

34 I was told that the document was presented to Council in February this year and that ultimately it would form the basis of a future amendment to the planning scheme. I give this document only very limited weight given that it is in draft form and that any related planning scheme amendment is at a very preliminary stage. I do however agree with Mr Newman that the above description of neighbourhood character is fairly typical of Hamersley Court.

35 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted an inspection of the site and its locality. I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

36 Residents opposed to the application urged me to refuse this proposal for a second dwelling, submitting that the increased dwelling density would be contrary to the existing single dwelling character in a street where lots are at least 2600sq.m. To varying degrees, opponents sought justification for this view by reference to the Council's current strategic work and future planning scheme amendment.

37 I think it is important to affirm from the outset that the Council's current planning controls under the DDO4 allow applications to be lawfully made for the construction of second dwellings on lots greater than 2600sq.m. I appreciate that some residents may have different expectations and views about the suitability of that provision. Nonetheless that provision validly exists at the present time.

38 At the same time, I am also mindful that the planning scheme cautions that because a permit may be sought that does not imply that a permit should or will be granted. Ultimately, my task, standing in the shoes of the Council, is to decide whether the proposal will produce acceptable outcomes after considering the various State and local planning policies and other relevant decision guidelines in the planning scheme.[7]

39 That process involves the exercise of discretion. As always, applications will stand or fall on their merits - having regard to the particular facts and circumstances at play in each case. It would be wrong to refuse an application because of some fundamental or in-principle disagreement one may hold about the appropriateness of the control in the first instance.

40 Indeed from my reading of many decisions made by other divisions of the Tribunal for second dwellings in the Woodlands Estate, some with subdivision, that position has been repeated time and time again - see for example McGibbony v Mornington Peninsula SC[8]; Thornber v Mornington Peninsula SC[9], Martin v Mornington Peninsula SC[10] and Falcone v Mornington Peninsula SC.[11]

41 In the present case, I have come to the conclusion that a permit should not be granted for reasons that I will explain shortly. I make it clear however that for as long as the present regime of planning scheme provisions remain in place, a differently designed building on this site or indeed other applications for second dwellings in Hamersley Court or the Woodlands area more broadly may gain permission following a proper consideration of all relevant facts and circumstances.

42 I now consider the merits of this case.

Is the siting and design of the dwelling acceptable in terms of the surrounding pattern of development and the character of neighbourhood?

43 The impact of this proposal upon the particular treed and spacious character of this area is the key issue in dispute. More particularly, both the Council and objectors expressed concerns with the siting of the dwelling close to the western boundary - that is adjacent to the Woollards' property at No. 5. This was said to be inconsistent with the pattern of development in the street.

44 On the other hand, Mr Umbers who gave planning evidence for the applicant, expressed the opinion that the single storey design of the new dwelling would achieve a comfortable fit with its surrounds highlighting its full compliance with both the general and mandatory requirements of the DDO4. Other features relied upon in support of this proposition include the single storey design of the dwelling, the site's location away from any ridgetop, the minimal amount of excavation and fill required for the development and the loss of only one native tree. On the issue of the side setback, it was Mr Umbers' opinion that this would be acceptable, given the siting of the carport next door and other features in the area such as tennis courts located near boundaries and the pattern of development in Jamesbrad Court at the rear.

45 From my inspection of the area, it became apparent that dwellings are typically sited across the width of blocks rather than running parallel to side boundaries. Dwellings are also often well setback from the frontage and nestled amongst vegetation. Given the size of lots of at least 2600sq.m, buildings tend to be subservient to the landscape. This is accentuated by the space available around buildings for vegetation.

46 As well as the streetscape, I consider the site's interface with No. 5 Hamersley Court to be most sensitive. There are a number of windows, including 2 family room windows and a kitchen window that have an outlook towards the site and beyond. A related issue is that concerning views - a matter to which I will return.

47 I find that the siting of the dwelling would not be respectful of the prevailing pattern of development in Hamersley Court. This dwelling, extends for a length of 24m along the western side boundary, with setbacks ranging from between 3.5m and 4.5m. I consider that its location on the high side of the land and the design of the driveway are further factors that will tend to accentuate its incongruous presence when viewed from Hamersley Court and the dwelling at No. 5. I do not think that with the side setback proposed, a reasonable sense of spaciousness will be achieved that is consistent with the nature of surrounding development. This is to be contrasted with the dwelling at No. 5 whose setback from the common boundary is more than 8m.

48 While it is true that there are some elements such as the carport at No. 5 located close to the common boundary, that is a very open, modest structure whose presence is relatively minor in streetscape terms and from the review site itself. Similarly, I find that while the tennis court on this neighbouring lot is set close to its rear and west boundaries, its presence is not intrusive or obvious in any way given the nature of this structure, landscaping around it and location at the rear.

49 I have carefully considered other design cues that were said by proponents of the proposal to support the dwelling's siting. It is true that there is a double garage sited on a side boundary at No. 2 Hamersley Court. However I find that development to be anomalous in the context of the prevailing neighbourhood character. Moreover, I consider that its distance from the review site is an important factor that lessens its influence over what might be reasonably expected as an appropriate design response in the present case.

50 In relation to Jamesbrad Court, my observations are that this street has a different character to Hamersley Court. Development is more recent and the lot pattern different - lots are typically much longer and narrower. Vegetation also plays a lesser role in defining the landscape character of this street. I am therefore unable to be persuaded that the design response derives support from development in Jamesbrad Court.

51 Mr Umbers also referred to the decision of Member Hadjigeorgiou in Welsh v Mornington Peninsula Shire Council[12], for the construction of a second single storey dwelling and subdivision. In support of the proposed dwelling's siting, I was told that the side setback would be 2.5m from one boundary. From my close reading of this decision I find that there are a number of features that distinguish that case from the case before me. In Welsh, the dwelling was to be located behind the existing dwelling, involving the removal of existing outbuildings. The new dwelling would also be sited away from sensitive boundaries thus minimising any impact upon neighbours and utilised an existing driveway, unlike the present case.

52 With this proposal, I am left with the impression that the siting of the proposed dwelling has been driven by the constraints of the site itself. Those constraints include the land's topography including the embankment on the east side of the fill platform and the existing dwelling with its various ancillary outdoor facilities. While siting the dwelling in the location proposed seems obvious enough in the context of these site constraints, I find this to be a response that is inconsistent with the prevailing pattern of development.

53 I therefore conclude that the proposal would not meet one of the design objectives under the DDO4:

•

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

Would the removal of vegetation and proposed landscaping allow this development to achieve a reasonable fit with its surrounds?

54 One eucalyptus tree is to be removed at the top of the fill embankment. Some residents expressed concern about the removal of this tree, particularly the Woollards who referred to its habitat and landscape value.

55 Mr Dare's report submitted with the permit application, indicates that there is dieback within the crown and the possibility of decay within the trunk. Having inspected the tree I agree that it is in poor condition. I am therefore satisfied that removal of this tree would not be problematic. This conclusion was also reached in the officer's report on the application.

56 There were a number of other landscaping and vegetation related issues raised at the hearing. These include the proximity of the dwelling to eucalypts planted along the common boundary which appear to be within the Woollards' property and whether adequate opportunities are available around the dwelling for an appropriate amount of new landscaping.

57 I will address each of these matters in turn.

58 It is apparent that the dwelling would be located within 3.5m to 4.5m of the boundary eucalypts, some which I estimate to be at least 8m-10m in height. A low retaining wall is also proposed between the west boundary and dwelling. No arboricultural assessment had been undertaken by the permit applicant to determine tree protection zones or critical root zones and the need for any special construction techniques. Indeed I am somewhat surprised that this information was not sought by the Council at the beginning of the application process given the importance of vegetation in the area.

59 While it was Mr Dare's evidence that exploratory trenching could be undertaken and if necessary, post and beam footings implemented to protect any roots encountered, the provision of this information from the outset would have allowed all parties, including the Tribunal to obtain a better appreciation as to the true impact, if any, of the dwelling on this vegetation. While Mr Dare's techniques might well prove to be satisfactory, this evidence only came to light at the hearing and was unsupported by any documented examination of the subject trees. I am therefore reluctant to make any conclusive findings about this matter at the present time in the absence of a detailed arboricultural assessment having been conducted.

60 The final issue concerns the provision of new landscaping around the dwelling. In forming my view about this, I am guided by the DDO4, which has one design objective:

To recognise areas, including Mt Eliza, where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space. [Tribunal emphasis]

61 The landscape plan prepared by Mr Dare indicates that 15 additional upper and medium canopy trees and 235 local indigenous and native shrubs would be planted on the site. Along the western boundary, proposed planting comprises primarily of Silver Banksias and Sweet Bursarias, both of which grow to a height of approximately 4m. While I agree that these shrubs will provide an understorey that complements the eucalypts on the neighbouring land, my concerns about the adequacy of space within the west setback area remain. I do not think it can be fairly said that the after taking into account the space required for a proposed pedestrian path on this side that space available for this planting is in keeping with the design objectives for landscaping under the DDO4. The space available along this boundary allows for linear planting only and does not in my view constitute a substantial area for new landscaping and open space at one of the most critical interfaces. In many respects I am left thinking that the development largely borrows from the neighbouring tree-scape.

62 In relation to planting on the west side, at the toe of the embankment this is to comprise several eucalypts and sheoakes. Given the 8m difference in height to the top of the dwelling ridge and existing ground level at the toe of the batter, I would anticipate that this vegetation would take some time to become established before offering a reasonable landscape setting. As I have alluded to previously, I have some reservations about the driveway and reversing bay design which also limits landscaping opportunities within the front setback.

63 For all of these reasons I do not think the siting and design of the dwelling will allow for an adequate landscape response commensurate with the objectives under the DDO4.

Would the development result in any unreasonable loss of amenity to neighbouring residents?

64 The Woollards raised a number of amenity related concerns including the loss of their valley and ridge views from their windows that face the review site and overshadowing. Like other objectors who are resident of Hamersley Court, some concerns were also expressed about vehicle access and traffic volumes.

65 I firstly find no basis to refuse the application on traffic or access related grounds. One extra dwelling would generate about 10 extra vehicle movements in the street. I consider such an increase to be relatively minor and capable of being absorbed without any unreasonable traffic or amenity related impacts.

66 I also find that the development is unlikely to lead to any unreasonable overshadowing of the Woollards property. Any impacts would limited to the afternoon and would not, given the proposed dwelling's single storey design, be significant.

67 The issue of loss of views is less straight forward. I have considered the principles set out in Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others 4 AATR 125. Those principles are that:

(b) views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views; and

(d) added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.

68 In Centrum Architects Pty Ltd v Surf Coast SC, Morling and Others (noted at 10 VPR 126), Senior Member Marsden added another criterion. In that case, the owners of a number of single storey dwellings opposed the development of a two storey house on lower land. The Tribunal noted that, had the Objectors developed their properties to their full potential, they would be capable of enjoying the same panoramic views as those to be obtained by the proposal. Thus, the level to which the Objectors had developed their own properties was held to be a relevant consideration.

69 I adopt those established principles and have considered them in reaching my findings on the issue of views.

70 Firstly, I affirm that the question of views is specifically addressed in the Mornington Planning Scheme under the DDO4. The relevant design objective seeks:

•

To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical. [Tribunal emphasis added]

71 Secondly, I find that views from the two family room windows and to a lesser extent the kitchen window form part of the amenity enjoyed by occupants of the dwelling. I find however that expectations about the preservation of those views must be tempered by the following circumstances:

•

The views are partly across the middle of the neighbouring property. Any development on the review site would affect those views and I do not think it reasonable to expect full retention of those views having regard to considerations relating to view sharing.

•

Views are of the treed environs of Hamersley Court, the creek valley and ridge just beyond. Although clearly forming part of the area's character and pleasant ambience, these views do not terminate at a particular feature of significance such as a coastal view. That is, I regard the view as being more in the nature of a landscaped outlook rather than being defined by a feature having a unique quality.

•

Views would remain over the roof top of the dwelling and to the north-east.

•

While I have no doubt that the kitchen and family room are well utilised, main living areas are designed to face the central rear portion of the landscaped backyard in a courtyard type arrangement. I would anticipate that these other centrally located living areas would also be well utilised given the outlook available from them and the layout of indoor areas.

72 On the question of whether the dwelling at No. 5 has been developed to its full potential, this is not easy to determine given the DDO4. However, I find it is unnecessary to do so given my findings that the partial loss of views would not be so unreasonable as to warrant refusal of this proposal.

73 What remains most relevant however is the visual impact of the proposed dwelling given its design and siting as I have already explained.

74 This case has been a difficult one to determine. On the one hand the siting of the proposed dwelling has some clear logic given the constraints of the site. On the other, its siting would not in my view, be respectful of the surrounding pattern of development - a matter which is a very relevant consideration under the provisions of the DDO4.

75 At the hearing there was some discussion about increasing the side setback. I have some reservations about doing this given the dwelling's proximity to the top of the embankment on the east side and the consequential need for additional earthworks. I would also anticipate the need for modifications to the layout of the dwelling itself potentially giving rise to new issues that go beyond my examination of issues in this case for this particular design. As I have mentioned, I do not think the development of this site with a second dwelling can be completely discounted. A second dwelling might for example be achievable at the same level of the existing dwelling. I appreciate this would most likely involve modifications to the existing outdoor facilities /structures and the existing dwelling itself - matters which would require further careful consideration.

76 In its present form, I am unable however, to be persuaded that this proposal should be approved.

77 For the reasons I have set out, the decision of the Responsible Authority is affirmed.

78 I will direct that no permit is to issue.

[2] Technically the north-west side but I have for ease of reference I will describe the rear boundary as north, the front boundary as south and so-on.

[3] [2002] VCAT 1253

[5] These statewide policies include Clause 11 (Introduction), Clause 12 (Metropolitan Development); Clause 15.12 (Energy Efficiency) and Clause 16.02 (Housing).

[6] Prepared by Planisphere, dated April 2005.

[7] See Clauses 31.02 and 65 of all Victorian Planning Schemes including the Mornington Peninsula Planning Scheme

[8] [2006] VCAT 16]

[10] [2005] VCAT 2629

[11] 2006 VCAT 1504

[12] [2005] VCAT 2134