Bosna v Colac-Otway SC [2018] VCAT 1192 (30 July 2018)

1. The review applicant's only concern is the loss of views from his dwelling looking towards the south and south west and towards the Skenes Creek Beach and ocean. He asks for this access to views be respected.
2. The photographs he tabled show the extent of views currently available from his dwelling, from both inside the building and the balcony. His other concerns were loss of property value and reduction in rental income as a result. He suggested the building to be set back a further 2 metres from the frontage.
3. Council's submission is that the Skenes Creek Kennett River Wye river Neighbourhood Character Study 2005 contains design objectives and recommends design response. The design guidelines for Skenes Creek, it explains, is "to provide for the reasonable sharing of views to the coast and the surrounding foothills" and "that buildings and structures should be sited and designed to take into account existing views to the coast from nearby properties".
4. Council's assessment is that the design and location of the dwelling is appropriate, observing all the requirements for the permit triggers in the various overlays that affect the site.
5. In the aspect of views, it submitted that the design has taken into account the constraints of the site: a wider frontage and a narrow rear width, a sloping topography, and the siting of the house in an already cleared area of the land without the need to remove vegetation and trees. It also submitted that the design is a custom designed home, and importantly the permit applicant has avoided a two storey house, which would completely obstruct the view for the review applicant.
6. It also submitted that the extent of views lost is not unreasonable, given the finished roof height of the house is 24.031 compared to the finished floor level of the review applicant's balcony at 23.56, meaning that a person of a height of 1 metres will have clear views of the water from the Mr. Bosna's balcony.
7. Further, council's satellite image shows that the view from Mr. Bosna's property has to cut through the review site to the Skenes Creek Shoreline. It also calculated that Mr. Bosna's property is 418 metres away from the foreshore, in between are lots that are directly in the way of the view that are yet to be developed, such as the subdivision in Treetop Terrace, and Nos. 12, 14 and 16 Old Coach Road, which are all vacant land and have the potential to be developed for two storey houses. Further, it observed that views towards the water from 38 Old Coach Road are restricted by vegetation cover, that over time, these views will be further diminished as tree growth occurs and vacant lots are developed.
8. Upon examining the photographs tabled by Mr. Bosna, Council further added that it is clear that views from 38 Old Coach Road is over the roof of No. 34, and will have to be over the roof of the proposal. Given the constraints of the site: its shape, topography, relationship with No. 38 and the need to meet all the overlays that affect the site, it is satisfied that there will still be sharing of views for No. 38.
9. The review applicant suggested the house to be set back a further two metres from the front. This should move the house to the extent that it should clear the balcony of No. 38.
10. The Kingstons submitted that such an additional setback is not feasible, because the building will be located in the narrower part of the land, which in turn would not allow adequate turning space for a vehicle to enter the garage area. They submitted that the turning circle, as indicated by the turning circle plans submitted, is already very tight, and moving the building further into the narrower part of the land will make it impossible to use the car park, apart from the difficulties in complying with the varied standards such as increased side setbacks in clause 54 pursuant in the Neighbourhood Character Overlay. They also allege that Mr. Bosna has removed trees from his land.
11. As commented at the hearing, Mr. Bosna's alleged removal of trees from his land is not before me. If a permit is required to do so, which I understand from Council to be the case, it is up to the responsible Authority which enforces its planning scheme to investigate.
12. With regard to the consideration of views, there are well established principles in assessing planning applications. The decision of Healy and others v Surf Coast Shire Council [2005] VCAT 990 expressed these principles as follows: