An irregularly shaped, but generally rectangular piece of land on the south-east corner of the intersection of the Esplanade with Finlayson Avenue with a splay at the corner of 9.14 metres, a frontage to the south side of Finlayson Avenue of 27.43 metres, a side abutment to the east side of the Esplanade of 33.37 metres and an area of 970 square metres

MEDIUM NEUTRAL CITATION [2003] VCAT 1796

The Responsible Authority is directed pursuant to s.91(1) of the Planning and Environment Act 1987 to cancel planning permit P992143 issued by the Responsible Authority on 18 October 2002 allowing the construction of a two storey dwelling, swimming pool and associated works on the land.

__________________ _____________________________

Ms. M. Quigley SC, Barrister, appeared on the instructions of the firm of Deacons Solicitors for the Responsible Authority. She presented written and oral submissions and called three witnesses. They were Michael Dafnomilis, planning officer of the Shire of Nillumbik but previously of the Shire of Mornington Peninsula, Ms. Sotirios Katakouzinos, Town Planner and Team Leader in Statutory Planning of the Shire of Mornington Peninsula and Andrew Gordon Robertson, Town Planner. The first two witnesses gave evidence on oath or affirmation, adopting two affidavits in the case of Mr. Dafnomilis and an affidavit in the case of Ms. Katakouzinos. Mr. Robertson was called as an expert witness. He presented and adopted a written report.

Mr. Gavin L. Rice, Barrister, appeared on the instructions of the firm of Stidston and Williams Weblaw for the Requestor, Donna Brown. In addition to oral argument he presented two written submissions and called five witnesses. First was Richard Gordon Umbers, Town Planner, who presented and adopted a written report. The others, who each gave evidence on oath or affirmation, were his client, Donna Brown, Process Worker; Phillip Nicholas Evans, Physics Teacher; Margaret Faye Walsh, Retired and Noel John Walsh, Retired. In addition to giving oral evidence and being cross-examined Ms. Brown adopted her three affidavits, Mr. Evans his one, and in relation to each of the Walshs, their two affidavits.

Mr. Graeme Peake, Barrister, appeared on the instructions of Simon Nixon, Solicitor, for the Respondents Aldo Zumpano and Rosemary Zumpano. He presented written and oral submissions and called three witnesses. They were Peter John Richards, Surveyor, his client Aldo Zumpano, Builder, and Ms. Colleen Yvonne Peterson, Town Planner. The first two gave sworn evidence adopting their affidavits. Ms. Peterson gave evidence as an expert. She presented and adopted a written report.

Various plans, photographs and other documents were tendered. The submissions and evidence in documentary form have been retained on the file of the Tribunal.

After arranging for the erection of height poles and strings to indicate the dimensions of the proposed house if constructed in accordance with the endorsed plans, we inspected the land and the partly constructed house thereon, the adjoining property of Donna Brown at 4 Finlayson Avenue and the area more generally. Some delays were encountered in having the height indicating equipment installed for that purpose and conducting this inspection.

Request under Section 87 of the Planning and Environment Act 1987 (PE Act) for the cancellation, or alternatively, amendment to a permit.

Cancellation of, or alternatively amendment to, planning permit P992143 issued by the Responsible Authority on 18 October 2000 which permit allowed the construction of a two storey dwelling, swimming pool and associated works (and clearing of some vegetation for that purpose).

Residential 1 Zone and subject to a Design and Development Overlay (Schedule 3) and a Vegetation Protection Overlay under the Mornington Peninsula Planning Scheme.

In so far as this proceeding may have been against the firm Petridis Cornetta, Architects, it was discontinued in relation to that firm or its principals by consent.

1. This case concerns a partly constructed house on the property of the Respondents, Aldo Zumpano and Rosemary Zumpano at 369 Esplanade, Mount Martha. That is a substantial, and highly advantageous block of land located on the south-west corner of the intersection of Finlayson Avenue with Esplanade. For the purpose of these reasons we have taken it that Finlayson Avenue runs east to west and Esplanade, at this point, runs north to south. That assumption is adopted here, as it was in the course of the hearing, to simplify an understanding of the locality. In fact those directions are in the order of 45° away from the true directions.

2. The portion of Esplanade that forms its "T" intersection with Finlayson Avenue is really a service road in relation to the main carriageway of Esplanade. Esplanade is, in fact, a coastal road that generally follows the line of the coast of Port Phillip Bay in this locality. Private land, including the site we are concerned with, is located on the inland or eastern side of this road. On the other side there is foreshore, beach and the waters of Port Phillip Bay.

3. Hearn Road is the next east-west road north of Finlayson Avenue. It connects with the main Esplanade Road. Then, a short distance inland from that intersection, Esplanade service road runs off to the south approximately parallel to the main Esplanade roadway. It continues south to form its "T" intersection with Finlayson Avenue, which runs off to its east whilst the service road continues further south along the side of the relevant site, and then across the front of other houses fronting its western side. It is sealed as far south as the southern extremity of the site we are concerned with. Finlayson Avenue is also sealed.

4. The topography in this immediate locality is such that the land rises fairly steeply from the water line up to the main road of Esplanade, and then further up to the level of the service road. It continues to rise to the east going up Finlayson Avenue for quite a distance, and quite steeply. The land east of Esplanade is zoned residential and generally developed for that purpose. There are houses on either side of Finlayson Avenue, as well as facing The Esplanade, with others served by further access streets higher up the hill, including Martin Street, the next north-south street parallel to the service road.

5. The Zumpano land is a highly desirable allotment. It is substantial in area of 970 square metres. It falls from east to west across its 27.43 metre frontage to the south side of Finlayson Avenue, and less steeply from south to north along its side abutment of 33.37 metres along the east side of the service road. Those frontage and "sideage" dimensions are given without regard to a splay of 9.14 metres at the corner. The land is irregular in shape, but generally rectangular. It is large enough to support a large, even a very large, double storey dwelling. In fact the house that is partly constructed on the land at present has four levels, although the restrictions in the design and development overlay applicable to the land prevents it having more than one storey directly above another. By stepping the house down the east-west slope a number of levels can be achieved facing the "long" side of the allotment and enjoying spectacular panoramic views to the west of the bay and the coast line. These views are available around almost 180° from the coast line to the south, to the Heads, past a distant view of Indented Head on the far side of Port Phillip Bay and right around to a distant view of the Westgate Bridge, the City skyline and the coast line to the north. There are also closer views across The Esplanade to the bushy foreshore area and the waters closer in to the coast.

6. Mr. Zumpano, who is a builder specialising in the construction of architect designed houses, said that had searched for such a site for a number of years. An important feature of it, he explained is not just its magnificent views, but also the fact that, being located closest to the road and coast line, there is no possibility of the views being built out by the development of private land between his allotment and the bay.

7. Beside the Zumpano land, to its east and also fronting the south side of Finlayson Avenue, is the modern two storey house of the Requestor, Donna Brown. It is on higher land, above the Zumpano land. At first floor level it has north facing floor to ceiling glass windows and doors giving on to a front balcony that also faces to the north. These features afford a slice or segment of view along the coast to the north, and a distant view (in clear conditions) of the City skyline and Westgate Bridge in the far distance, together with a segment of the bay in between. This view is available from the balcony, and the living room behind it.

8. A more striking feature of this living room, immediately apparent upon entering it at the head of the stairs leading up from the ground floor, is the spectacular view of the bay to be obtained from a west facing picture window in its west wall.

9. The Macquarie Dictionary, second edition, defines "picture window" as " a large window in a house, usu. dominating the room, and sometimes designed to focus attention on the view through it". There could hardly be a better demonstration of the concept than this west facing window, notwithstanding that its sill is a metre or more above floor level. The view can still be obtained from standing or sitting positions within the room. Of course, the closer to the window, the wider the angle of view. From reasonably close to the window it sweeps around from the Heads to the south through perhaps 140° or more, and links onto the view through the north facing windows towards the City with only a minor obstruction constituted by the masonry pillar or wall segment in the corner separating the two windows. As with the Zumpano land, the total sweep of view approaches 180°

10. There is a kitchen area on the south side of, but really part of, the large first floor living room. The kitchen also has a west facing window, although it is smaller, and with a higher sill. Nevertheless, a person standing in the kitchen area can also enjoy an expansive view of the bay and the coast from this kitchen window.

11. There are also some other, much more minor, views to the south. For example, there is a door in the south wall of the kitchen area opening onto external back stairs with a small landing at their head. Also there is a recessed south facing window in the southern wall to the east of the kitchen door. These southern views from that window and the stair landing are mere scraps compared to the magnificent sweep of view obtained from the west and north facing windows combined.

12. By far the major part of this main view is that obtained through the west facing windows, particularly the picture window.

13. The main dispute in this case concerns that view. The partly constructed house on the Zumpano land, if completed in accordance with its current endorsed plans, will mask that west facing view more or less completely. The top level of the proposed house, yet to be completed, will be so high, so wide and so close as to leave only mere shreds of the existing view. The proposed structure, protruding up into the view, will be so high as to block out the view of the sea and the distant water horizon.

14. Ms. Peterson, the Town Planner called as an expert witness on behalf of the Zumpanos gave evidence about this view and the affect on it of the proposed structure. In answer to Ms. Quigley SC (who appeared on behalf of the Responsible Authority) she agreed that she had been in Ms. Brown's house. She agreed that on entering the living room, one's eyes immediately go to the bay. She agreed that Ms. Brown has a panoramic view of the bay, almost the whole bay, from the window in the primary living area. On being asked if the Zumpano property was built to the proposed height, how much of the view would be lost she answered, almost all of it. When it was put that it would be 90% loss she replied that the loss would be "in that order". We agree with her. Of the existing combined panoramic view through the picture window together with the north facing windows, the remnant left would be a meagre 10 - 20% of the original. Although Ms. Peterson was not able to be certain on this point, on our inspection, and with the advantage of poles and lines being erected to describe the limits of the proposed building, we are satisfied that the westerly view to the sea-sky horizon would be lost. The effect on the amenity of Ms. Brown's house, in terms of views, would be huge. It would be like extracting the large main diamond from a setting leaving a hole supported by a couple of minor stones on either side.

15. Mr. Phillip Evans is the owner of the property at 6 Finlayson Avenue. It is the next house to the east and adjoining the property of Ms. Brown. It is further up the hill. Although the house on Mr. Evans' property faces Finlayson Avenue, it presents broad expanses of window and balcony, at ground and first floor levels, facing west to capture the seascape views.

16. Mr. Noel Walsh lives with his wife, Margaret Faye Walsh, at 13 Martin Street. They also enjoy westward views.

17. The permit application in relation to the Zumpano house was lodged on 1 October 1999. The land is actually owned by their company, Greenhill Homes Pty Ltd, of which the Zumpanos are the only directors. Nothing really turns on that. The application was made in the name of Petridis Cornetta Architects as their agent. Mr. Joe Cornetta, architect of that firm, handled the matter from their point of view. He lodged the permit application and dealt with the Responsible Authority in relation to it on behalf of the Zumpanos. He and his firm are also responsible for the plans for the house. A Ms. Lynne Robinson, Planning Officer, initially dealt with the application in the office of the Responsible Authority.

18. This land (and locality) are subject to a Design and Development Overlay under the Mornington Peninsula Planning Scheme. The control provisions in this overlay and its schedule are the relevant ones, so far as this case is concerned. The land is in a Residential 1 Zone, but the zone provisions are of no particular concern, and no planning permission is needed under them. The land is also subject to a Vegetation Protection Overlay. Permission is needed under the provisions of that overlay for the removal of vegetation, but that is a matter more of background interest than vital relevance, so far as the disputes in this case are concerned.

19. Under cl.43.02-2, which is amongst the Design and Development Overlay provisions, a permit is required to construct a building. Apart from the implementation of general policy provisions, the purpose of the Design and Development Overlay is to identify areas that are affected by specific requirements relating to the design and built form of new developments. Clause 43.02-5 specifies a number of design guidelines which, in addition to the general guidelines in cl.65 of the Planning Scheme, are to be taken into consideration in deciding upon an application. They include a number of matters including the bulk, location and appearance of proposed buildings and their design, form, layout, proportion and scale. There is specific reference to the design objectives of the relevant schedule of the overlay and any other matters specified in such schedule.

20. A number of design objectives are set out in cl.1 of schedule 3 of that overlay. A number have some relevance including the need to ensure that new development has proper regard to the streetscape and development pattern in terms of building height, scale and siting. Of particular relevance in this case is the following:

"To protect shared viewlines where reasonable and practicable."

21. Clause 2 of schedule 3 deals with buildings and works. It includes a list of general requirements, and a further list of mandatory requirements. A proposal to construct a building should meet the general requirements, except where it has been demonstrated to the satisfaction of the Responsible Authority that compliance is unreasonable or unnecessary and that no significant loss of amenity will result. On the other hand, the mandatory requirements must be observed, whether or not a permit is otherwise required.

22. Amongst the general requirements is one requiring that no building may exceed a wall height of 5.5 metres or a building height of 6 metres. The mandatory requirements also deal with maximum building height. It specifies that a building must have a maximum building height of no more than 8 metres and must contain no more than two storeys above natural ground level. That rule is subject to a partial exception. The requirement does not apply in an area that has been specified, but still subject to a limit of only two storeys or less above natural ground level. This site is within the specified area. The result is that it is not subject to the mandatory height limit of 8 metres, but it is subject to a mandatory limitation of being no more than two storeys above natural ground level.

23. It is obvious, from what we have said, that the height of buildings is of importance, and is one of the matters to be considered in relation to whether a permit for the construction of a building should be granted, and if so, upon what conditions including potential conditions in relation to height. We observe, by the way, that there have been some variations to these planning scheme provisions since the permit application was first lodged, although we have not detected or been directed to any that are material for present purposes.

24. The Council planning officer Ms. Robinson was concerned, from the beginning, with certain aspects of the proposal, including its supporting plans. These concerns are set out in a letter to Petridis Cornetta dated 26 October 1999. Her first concern was that the plans disclosed a building containing more than two storeys above natural ground level, at least in parts, and that such a development is prohibited. She said the proposal should be modified to enable the application to be considered. She also observed that a preliminary assessment of the application indicated that there was a need to consider an increase in the setback of the development from Esplanade and to

"Have regard to the effect of the development on the views obtained from the adjoining development in Finlayson Avenue."

25. It was also indicated that the plans should be further modified to show accurate dimensions and particulars about setbacks, natural ground level, wall heights, height above natural ground level, extent of cut and fill, external materials and colours and proposed removal of vegetation from the site.

26. It is clear that the question of views from Ms. Brown's property next door were an issue, from the very outset.

27. Mr. Cornetta replied by a letter dated 22 November 1999. With it he submitted revised architectural drawings. He raised a number of argumentative points, including in relation to the three storey structure and the setbacks. He considered Finlayson Avenue should be the street frontage where a setback of 7 metres was proposed, thus justifying the 3 metre setback to Esplanade. In relation to the adjoining property he did not discuss views, but contented himself with saying

"The adjoining property is significantly taller than the proposed dwellings on the subject land. The proposed dwelling has a wall height of less than 7.0m, with a setbacks of approximately 2.0m."

Perhaps that not very responsive observation was intended to allay concern about the view issue.

28. By letter dated 14 December 1999 Ms. Robinson acknowledged receipts of the new plans but observed

"However, the issues raised in the previous correspondence regarding the design of the dwelling have not been addressed."

29. The Council file then passed through the hands of another planning officer before becoming the responsibility of Mr. Dafnomilis. He had started with the Shire in May 1999 and the file came to him between 26 May 2000 and 5 July 2000. He was subsequently satisfied that the plans had been rearranged in such a way that, although there were four levels, there were not more than two storeys at any one point so that the problem of the proposal being prohibited as a three storey development was resolved. He was also satisfied as to setbacks on the basis of accepting that Finlayson Avenue should be regarded as the frontage. We will discuss the question of building height and views from the adjoining property hereafter.

30. Whilst he was in charge of the file there was a requirement for notice of the application to be given pursuant to s.52 PE Act. With the authorisation of the Applicant such notice was given by the Responsible Authority. Apart from a sign on the land, individual written notices were given to the owners and occupiers of a number of nearby properties including Ms. Brown, Mr. Evans and Mr. & Mrs. Walsh. They all subsequently lodged objections with the Responsible Authority. Their concerns included visual detriment, clarification of height levels, clarification in relation to roof top installations such as airconditioning units, satellite dishes etc. loss of view, decrease in property value, overshadowing and reduced front setback to Finlayson Avenue.

31. As can be seen, the question of loss of view continued as an issue, being picked up in objections.

32. Mention was made of the need for erection of height poles to enable lay objectors to accurately assess the proposed height of the building and its potential impacts, including impacts on views. Such a request for height poles was made in writing by Ms. Cathryn Webb of 368 and 367 Esplanade, Mount Martha. She did not actually lodge an objection, although she expressed concern about the proposal. She was informed that a Planning Application Conference (PAC) would be organised and she would be kept in touch in relation to the case.

33. The legislation does not make provision for, or require, such conferences. It is an initiative, in the first place, of the Responsible Authority. The idea is that an informal meeting is convened by the Responsible Authority of Objectors and the Applicant to discuss concerns about the proposal, and perhaps to resolve such concerns. According to the evidence of Mr. Dafnomilis he asked if the Applicant wanted him to organise a PAC, and organised one when Mr. Cornetta said that the land owners would be interested. He faxed a copy of Ms. Webb's written comments to the Applicant prior to the PAC which was held at 10:00am on 29 August 2000.

34. That meeting was held at the premises of the Responsible Authority. Mr. Dafnomilis convened the meeting which was attended by Ms. Brown, Mr. & Mrs. Walsh, Mr. Zumpano and Mr. Cornetta. Mr. Webb was unable to attend, but continued to take an interest in the application.

35. We have received evidence, in affidavit form and also oral evidence subject to cross-examination, from each of the persons at this PAC meeting, except Mr. Cornetta. There is a summons to witness directed to Mr. Cornetta on the file, but he was not called as a witness by any of the parties. No-one kept any notes or minutes of the meeting, save for some rough notes and a rough sketch made by Mr. Dafnomilis. Mr. Zumpano said, in his affidavit and confirmed in his oral evidence, that he has no notes and cannot recall what happened in any detail. The other witnesses who were present claimed to have clear recall. The following account represents our findings in relation to it. There is not really any dispute about the material matters.

36. We accept that the main topic and principle concern of the meeting was the proposed height of the building on the Zumpano land, its height in relation to viewing points on neighbouring land, particularly that of Ms. Brown, and its affect on seaward views from those properties, particularly that of Ms. Brown. We also accepted this was known before hand, not only to Mr. Cornetta, but also to Mr. Zumpano. In his evidence he made reference to that in terms of the question of the erection of height poles.

37. At the PAC meeting the architect who designed the house, Mr. Cornetta, put the minds of the Objectors and of Mr. Dafnomilis at rest in relation to the height of the proposed building and its potential affect on the view from Ms. Brown's house and other premises. The Objectors complained that, then and now, they have difficulty in reading plans and could not understand the relative levels and scales involved, including the need to convert from one scale to another. There was also some ambiguity in relation to a notation on a survey plan prepared by Mr. Richards, or under his supervision. A notation reading "R.L: 21.74m (UPPER STOREY)" appears on the garage roof in relation to Ms. Brown's house beside the indication of two second storey windows. Another notation indicates that it is a double storey house. It is not altogether clear what part of the upper storey this level refers to; whether first floor level, wall height or roof level. This is especially so when it is seen that other notations in relation to other buildings on adjoining lands are much more specific. There is little doubt what "R.L: 23.90m (ROOF APEX)" or "R.L: 23.77m (ROOF APEX)" mean. The level R.L: 21.74 has been mistakenly taken to refer to Ms. Brown's first floor level.

38. Ms. Brown produced plans of her house(which were to a different height datum) and asked for an indication of where the roof of the proposed Zumpano house would come to. Mr. Cornetta, who was sitting beside Mr. Zumpano, dealt with this matter on the basis of the plans on the table before them. He borrowed the scaling ruler from Mr. Dafnomilis. One witness recalled this as a "funny looking ruler" and another that Mr. Dafnomilis left the room to fetch it. Mr. Cornetta, who is after all the architect responsible for the design of the Zumpano house, calculated its height in relation to the adjoining property and marked its roof level by ruling a line in red ball point pen on the elevation drawing of Ms. Brown's house appearing on her plans. We have this plan. It is common ground that the red line indicates a level approximately 0.7 metres below the first floor level of the house of Ms. Brown. We accept that the line was drawn as an indication of the height of the Zumpano building, and not as the height of any other feature, and that this was understood by the Objectors present and Mr. Dafnomilis. This plan, with the red line on it, represents the most important documentary record of which we are aware in relation to the PAC meeting.

39. After it was drawn, and its meaning understood, the Objectors were pleased, relieved, and relaxed. There was some further discussion about secondary matters such as the height of a chimney and possible roof structures like an air-conditioning unit. However, the Objectors were satisfied that the proposed house would not impinge on views that were important to them at all, or only to a minor and acceptable extent.

40. They did not subsequently withdraw their objections, but they did not apply to this Tribunal for a review of the subsequent decision of the Responsible Authority to grant a permit based on the information conveyed by Mr. Cornetta at the PAC. He was relied on both in relation to the grant of a permit and as to the conditions imposed. We accept that the Objectors would have made such applications for review but for the reassuring information provided and recorded by Mr. Cornetta.

41. The other Objector, Mr. Evans, who was absent from the PAC meeting, subsequently did withdraw his objection upon being informed of the result of the meeting. He did so in a letter dated 14 September 2000 in the following terms:

"This letter is to confirm that, given the dimensions of the proposed building will not exceed the upper floor level on the adjacent building, No. 4 Finlayson Avenue, I withdraw my objection."

42. We also accept Mr. Evans' evidence that, but for this assurance, he would have maintained his objection, if necessary by means of a review at this Tribunal.

43. Unfortunately, it is now apparent, and common ground, that the representations as to the height of the building made at the PAC meeting by Mr. Cornetta, and in the presence of his client Mr. Zumpano, contained a material mistake. The plans in fact represented a building that would rise to approximately 0.5 metres below the roof level of Ms. Brown's house so as to more or less completely mask the view from her west facing picture window.

44. The slightly puzzling aspect of the evidence given by Mr. Zumpano is that he maintains that he always knew that this would be the affect of his proposed building. For a man so conscious of the importance of seaward views that he looked for years to find a place where his views could not be built out, he might have been surprised to find his neighbour, Ms. Brown, acquiescing so readily in a proposal that would mask the view from her west facing picture window. That she would happily agree to such an arrangement seems to us to be so surprising as to be hard to believe. It is also hard to understand how Mr. Zumpano could have sat through a meeting where the main issue was this very question, beside his architect and agent, whilst Mr. Cornetta satisfied everybody, presumably including Mr. Cornetta himself, that the new building would not rise above 0.7 metres below Ms. Brown's first floor level.

45. Mr. Zumpano did claim that, although he was able to give his evidence satisfactorily, he suffers from some degree of industrial deafness and finds it easier to understand someone if he can see the face and lips as well as hear the voice. He also said that the meeting was conducted in an informal way so that people could speak at will, rather than as ordered by a chairperson. Nevertheless, he is a builder and was present throughout whilst this issue was dealt with by his architect, including the ruling of the red line and the discussion and explanations in relation thereto.

46. Whilst these circumstances seem a little surprising, we also note that Mr. Zumpano frankly admitted that he has only a poor recollection of the meeting and what transpired, and that he gave frank answers in relation to some other questions, apparently with more regard to being truthful than to favouring his own side of the case.

47. There is no doubt, and it is not contended to the contrary, that Mr. Dafnomilis adopted and relied upon the proposition that the new house would not rise above 0.7 metres below first floor level of the house of Ms. Brown. This is patent upon reading his officer's report as will be apparent from the following extract in which the emphasis has been added by us:

"A Planning Application Conference was held in the Mornington office with the objectors and the applicant and owner of the land 29 August 2000. All objectors were present with the exception of the property owner at 6 Finlayson Avenue. The main concern was with regard to the actual height of the development. Floor levels were provided on the plans and these were explained to the objectors. The property owner from the adjoining property at number 4 Finlayson Avenue brought in her house plans which assisted in clarifying the fact that the proposed dwelling would have an overall height of 0.7m lower than the upper storey floor level of the adjoining property. This immediately resolved the fear that the proposed dwelling may have been sitting higher than the adjoining properties. The owner also clarified that they would need to install an airconditioning unit on the higher level of the dwelling. The reduced front setback was discussed and was not seen as a major concern to the objectors after they realised that the development closest to the adjoining property at number 4 Finlayson would be setback at least 10m on the closest side. The PAC was useful in that it clarified to the objectors some questions and concerns they had with regard to the overall height of the development and how it may affect them.

All of the DDO3 requirements have been met, with the exception of two. It is sought to vary the wall and building height from 5.5m and 6m respectively. The special clause allows the overall building height to exceed the usual 8m allowable maximum, (east elevation). Although the setback to the south/east title boundary does not meet the Vic Code side setback requirement, it is considered to be reasonable as any overshadowing that may occur, would be to the adjoining garage and not to the dwelling. The proposed height for the development is therefore considered to be reasonable. It is similar to other developments in the surrounding area and the dwelling has been designed in a way to step it down with the natural slope of the land, and therefore minimise earthworks. The overall height of the development will be 0.7m lower than the floor level of the adjoining property to the south/east and this is a good indication that any loss of views to the adjoining properties will be minimal. Three of the objectives of the DD03 schedule include:

* To ensure that the design of subdivision and housing is responsive to the environment, landform, site conditions and character of coastal villages, hills and clifftop areas;

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

* To protect shared viewlines where reasonable and practical.

It is considered that the proposed development is reasonable in that the dwelling blends in with the character of the surrounding area. Any loss of view from the objectors properties will be minimal (not total). The development has been designed in a way to gain some views whilst at the same time minimising the loss of view to its neighbours to a reasonable and practical extent."

48. The proposition is also integral to his recommendation to grant a permit subject to conditions and his recommendation as to conditions including condition 1C requiring plans to be approved to show that:

"C. The roof ridge of the building not to exceed RL21.24 based on the plan of feature survey prepared by Peter Richards surveying and dated 13 July 1999;"

49. That level of RL21.24 is 0.5 metres below the equivocal level of 21.74 on the Richards' plan previously referred to. It is based on RL21.74 being the first floor level, not the roof level.

50. Mr. Dafnomilis' recommendation was considered and approved by a Planning Delegate Committee of three senior planners of the municipality on 19 September 2000.

51. A notice of decision to grant a permit was accordingly issued on the that day. As all the Objectors, including Mr. Evans, were happy and satisfied on the basis of the top of the building being below Ms. Brown's first floor level, nobody applied for a review of the decision. On 27 March 2001 revised architectural plans in accordance with the permit were approved and endorsed.

52. Thereafter no-one was aware of a problem in relation to the project until on or about 7 March 2003 when Ms. Brown noticed and became concerned about the height being reached by the partly constructed house being built on the Zumpano land. The part of the building closest to her boundary is a boat storage room with a notably high ceiling. If, as proposed, a further level is to go above that, with the building rising even higher a short distance further away, her view, which had been her real concern throughout, appeared to be threatened. She complained to the Responsible Authority on 7 March 2003 calling for action to be taken. She regarded the matter as urgent. Council enforcement officers looked into the matter but were disinclined to take action on the basis that the building was in accordance with the permit and its endorsed plans. Ms. Brown instructed solicitors. An urgent fax was sent to Mr. Bergman of the Responsible Authority on 13 March 2003. On the following day, the current request proceedings, seeking cancellation or amendment of the permit were issued and a stop development order was applied for. Such a stop development order was made by the Tribunal on 20 March 2003. There was no appearance by or on behalf of the Respondents on that day. There was on 2 April 2003 when further stop development and other orders were made.

53. Ms. Brown has commenced these proceedings seeking cancellation or modification of the permit to prevent the completion of the house in accordance with the plans so as to preserve her view particularly, of course, the view from her westward windows. The Responsible Authority concedes her case in paragraphs 1 to 4 of its statement of grounds. The Respondents, however, resist cancellation or amendment of their permit.

54. One possible basis of resistance would be pursuant to s.89(3) PE Act. That sub-section gives the Tribunal a discretion to refuse to consider a request unless it is satisfied that the request was made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.

55. There is no real issue in relation to this matter. Mr. Peake said, in the course of the hearing, that he was not seriously pressing it. He did not raise it again and it does not appear in his written submission. In any event, Ms. Brown acted so promptly, when she became aware of the danger, that we are satisfied that the request was made as soon as practicable. The question of the discretion that would arise if we were not so satisfied, does not arise.

56. To succeed in this proceeding Ms. Brown must satisfy us of one or more of the grounds in s.87(1) PE Act. The grounds she has relied upon are those in s.87(1)(a) and (c). First of these is material mis-statement or concealment of fact in relation to the application for a permit and the second is material mistake in relation to the grant of the permit.

57. Mr. Peake suggested that the grounds open to Ms. Brown, in bringing this proceeding, are specified in s.89(1)(b) rather than s.87(1). The propositions he refers to in s.89(1)(b) require that the requestor believes certain propositions appear in the list of grounds in s.87(1). We believe that the true position is that s.87(1) sets out the various grounds available for making a request for cancellation or amendment of a permit. Section 87(3)(b) calls in s.89(1). Together they relate to the question of standing, or in other words, the legal right to bring request proceedings. They should be seen as relating to standing, rather than setting out grounds. Nevertheless, this appears to make little material difference in the present case. We accept that Ms. Brown believes that she has been adversely affected by material mis-statement of act in relation to the application for a permit and a material mistake in relation to the grant of the permit.

58. We think it is clear, indeed abundantly clear, that the second of these grounds is made out. The Responsible Authority through its Planning Delegate Committee decided to grant the permit on the basis of the report and recommendations of Mr. Dafnomilis. In doing so it made a fundamental mistake, as Mr. Dafnomilis had done, in relation to the issue of views from Ms. Brown's property. The decision of the Responsible Authority was founded on the understanding that the top of the proposed building would be 0.7 metres below first floor level of Ms. Brown and thus would not interfere, or would interfere only to a very minor degree, with westerly views from the west facing picture window and the west facing kitchen window on the first floor of her property. The mistake was that the plans forming part of the application and being relied upon, and the building height level being specified in condition 1C of the permit, were not keeping the building below that floor level, but allowing it to rise to about 0.5 metres below its roof level, thus masking out the view. The importance of these views had been recognised as an important issue from beginning to end, starting with the concerns expressed by Ms. Robinson about the proposal. At 1.14 of his written submissions Mr. Peake really recognises that this mistake was made. He says that Mr. Cornetta apparently told the PAC that the level would be 0.7 metres below the first floor level. It was apparent to him, and we have found the same effect. As he says at 5.1 of his written submissions, "It appears that the responsible authority made a mistake in relation to the grant of a permit".

59. He then argues that there are four requirements in relation to a mistake before it can constitute a ground under s.87(1)(c). He makes some fine divisions in deriving his four requirements. Nevertheless, we will set out his four propositions, each followed with our decision as to whether the requirement is satisfied. Our statement appears in brackets after each suggested requirement as follows:

(i) "there must be a mistake" (There was certainly a mistake as we have said, and as has been admitted by Mr. Peake on behalf of his clients.)

(ii) "the mistake must be in relation to the grant of the permit" (For reasons already given it is obvious that the mistake was in relation to the grant of the permit.)

(iii) "the mistake must be material to the grant of the permit" (The mistake was certainly material to the grant of the permit. We are satisfied that the permit would not have been granted, or would only have been granted in materially different terms, but for the mistake.)

(iv) "the mistake that is material to the grant of a permit must adversely affect the requestor" (It is also obvious that the mistake adversely affected the requestor in a serious way. We have already detailed the manner in which the grant of the permit, in reliance on the mistake, has given permission for an adjoining structure that greatly diminishes her views and her amenity.)

a. At paragraph 5.6, Mr. Peake suggests that unless we hold that the Applicant is entitled to protect her views to the west, then she is not adversely affected by the mistake. He then goes on to argue that the starting point is that there is no right to a view citing Tashounidis v. Shire of Flinders (1988) 1 AATR 116. There is no legal right, outside planning considerations, but Mr. Peake goes on to cite Clausen v. Shire of Mornington 4 AATR 125 and Kempe v. City of Greater Geelong (1999) VCAT 472 for the proposition that the protection of an existing view as a relevant planning consideration to which regard should be had in making a planning decision. In fact there are many other cases that recognise the advantages of views as an important amenity consideration relevant to planning decision, and which refer to the maintenance of views and sharing of views.

60. Furthermore, we have already been through the planning scheme provisions noting that one of the design objectives in cl.1 of schedule 3 to the Design and Development Overlay specifically brings in the question of views where it states that one of the design objectives is

"To protect shared viewlines where reasonable and practical."

"It is submitted that there can be no reasonable expectation, arising under the planning scheme, that a view that exists across a side boundary, from secondary side windows to a dwelling will be maintained."

He means maintained in the event of new development in front of such windows.

62. No such rule can be laid down. Cases have to be determined, in relation to this issue, on their own particular circumstances. Circumstances can vary greatly.

63. The above quotation from Mr. Peake brings in what might be called the secondary view argument relied upon by him and his witness Ms. Peterson. They argue that the westerly views from the west facing windows are secondary, and the primary views from Ms. Brown's house are to the north. In this respect they rely on the fact that the house is oriented to face north and to address Finlayson Avenue. They rely on the existence of large floor to ceiling windows and transparent glass doors on the north side of the living room opening on to the north facing balcony. They claim that the very design of the house, in this fashion, makes it clear that the "primary" views are to the north.

64. In so far as this argument purports to rely on the design of the house, we have no evidence that the house was particularly designed for this block. It may be a standard design, for all we know.

65. Even if the westerly view were secondary, we do not say that it need not be considered or that it is not material. In fact, we find that it is the primary view, notwithstanding the positioning of the other windows and balconies. If a division is to be made between the west facing picture window and the north facing windows to the balcony, it is only necessary to step into the living room to realise that the primary view is that from the western window, and the secondary is to the north. Another way of looking at it, and the way we have viewed it, is that it is one view, a minor segment of which (amounting to perhaps 10 to 20% of the whole) is obtained through the north facing viewing facilities. In so far as Mr. Peake chooses to argue in terms of legitimate expectations, Ms. Brown could expect that a correct or best decision on the merits of the Zumpano application would result in a concern for a protection of her westerly views to be taken into consideration, and for them to be protected, at least to a substantial extent. An appropriate decision, which the Responsible Authority thought it was making, would protect a substantial view of the sea around the sweep of the view with any obstruction being well below the sea-sky horizon. The opportunity of viewing the sea and sky in their changing colours and modes, the passing of boats and ships, sunsets and moonscapes with moonlight reflections and water reflection paths, the view of distant features and lights at night are all part of it. In the circumstances of this case all this should have been preserved, and would have been if the intention of the Responsible Authority had been realised. It could be preserved without unduly inhibiting the scope for development of the Zumpano land.

66. It was argued that the protection of a view is not absolute and that the design and development overlay, with its schedule, does not protect the view at all costs and that the protection of a share of view is only "where practical".

67. All that is true. There can be circumstances where an inland property can expect to enjoy a seascape view only until other land between it and the sea is developed. On flat or almost flat land the building of a perfectly reasonable double storey, or perhaps even single storey, house might block out a view from a property further inland. In other cases there may be a question of positioning and design to allow an existing house to retain a diminished but reasonable share of a view.

68. In this case the topography and the position and extent of the Zumpano block is such that an ample, even an extravagant, house can be constructed providing the facilities and space of the one under construction and taking full advantage of seascape views without intruding, or without intruding to any but a quite minor and insignificant extent, on the views from the Brown property. In the circumstances of this case protecting shared viewlines where reasonable and practical means little or no interference with Ms. Brown's westerly seascape views. The current plans are the antithesis of this design objective in the circumstances of this case.

69. We are therefore satisfied that the ground of material mis-statement in relation to the grant of the permit is made out.

70. That means it is not strictly necessary for us to deal with the question of whether the ground of material mis-statement or concealment of fact is also satisfied. We will therefore seek to deal with it more briefly, although Mr. Peake has sought to raise quite a number of points. They are points that we do not find persuasive.

71. Mr. Peake submits that the material mis-statement of fact is not in relation to the application for the permit. He then goes on to argue as to what constitutes a permit application. He seems to imply that the material mis-statement has to be in the application itself, that is, in the application form or some other document constituting part of the application. However, this is a misreading of s.87(1)(a). The ground is not that there is a material mis-statement of fact in the application for the permit, but rather that there is a material mis-statement of fact "in relation to" the application. It is fortunate that the provision has been drafted carefully enough to include this phrase because otherwise a meritorious request, like this one, might have been defeated because the mis-statement was in relation to, rather than actually in, the application. There is no just or reasonable basis for such a distinction, particularly having regard to all the other safeguards in the permit amendment and cancellation provisions. Mr. Cornetta's statement, both oral and in writing, in as much as he scaled the distance and ruled the red line on Ms. Brown's elevation, plan was certainly in relation to the application.

72. It is true that the Responsible Authority did not require further information under s.54 PE Act or require a streetscape plan or the erection of height poles, and that it could have required these things. However, it is equally obvious that these things were not done as they were considered to be unnecessary because the mis-statement was accepted and relied upon. That is why the Council officer decided he had sufficient information. He was mislead by Mr. Cornetta, the agent of Mr. Zumpano, in the presence of Mr. Zumpano and when Mr. Zumpano had the opportunity to correct him.

73. We do not think it is material whether the meeting was a statutory requirement or not, or whether the statement was made orally or in writing, although, as we have noted, it was partly in writing.

74. At his paragraph 4.15 Mr. Peake states that reference cannot be made, when interrupting planning permits, to extraneous documents, much less extraneous verbal (sic oral) comments. The authorities do indicate very tight restrictions on the degree to which extraneous documents can be referred to in interrupting a permit, but we are not here interrupting a permit.

75. In so far as paragraph 4.16 seems to try and put the blame on Ms. Brown for not engaging an expert town planner, architect or other professional when she admits she can't read plans, we are unimpressed. For her part, she relied on expert professional advice provided by Mr. Cornetta in the presence of Mr. Zumpano, both of whose professions require them to be able to read plans. It was reasonable for her to rely on what she was told in the circumstances.

76. Section 91(3) provides that the Tribunal must not direct the Responsible Authority to cancel or amend a permit on a request under s.89(1) unless it is satisfied that the person making the request was substantially disadvantaged by the issue of the permit or the matter set out in the request. We have no doubt that Ms. Brown was substantially disadvantaged by the issue of the permit and the matters set out in the request. They lead directly to the elimination of her primary seascape view which is a very important amenity aspect of her property.

77. At his paragraph 6.1 Mr. Peake said that the true test of substantial disadvantage is whether there was a denial of an opportunity to participate in the planning process. He suggests that on the basis of Lord Haven and ors. v. Greater Geelong City Council (1999) 2 VPR 20. From the beginning of this jurisdiction in its present form, with the coming into operation of the PE Act in February 1988, there have been many cases decided, and, an early stage, there was a division of view amongst members of the Administrative Appeals Tribunal (predecessor of this Tribunal in relation to planning matters in Victoria) as to what is necessary to amount to substantial disadvantage for the purposes of this provision. One view, expounded in Ellul and ors. v. Shire of Melton and Hansen (1989) 3 AATR 179 was that it is a sufficient substantial disadvantage if the requestor was excluded from the planning process, that is excluded from the opportunity to object and or appeal (as it then was) or participate in an appeal. The other view was that more than this was needed. The mere exclusion from the process would not be sufficient if the ultimate result was inevitable in any event. There needed to be substantial disadvantage in the form of something disadvantageous being allowed that would not otherwise have been allowed, or at least that there was an arguable basis for another result not containing that disadvantage. The present presiding member sought to resolve this division of view in Sunraysia Water Board v. City of Mildura and Kelly AAT appeal 1994/013733 in favour of the latter view that mere exclusion from the process was not necessarily enough. The Lord Haven case refers to Ellul but not to Sunraysia Water Board, and does not deal with the arguments in the Sunraysia case. If it was necessary to decide the point here we would prefer the Sunraysia view.

78. In any event, we are not aware that Lord Haven or other cases have said that the only test of substantial disadvantage is exclusion from the planning process. If there are such other cases, we would not follow them on this point. Ms. Brown has suffered a substantial disadvantage by the grant of this permit, which we are satisfied would not otherwise had been granted, and that is more than sufficient.

79. Furthermore, she, and the other Objectors were mislead into a belief, that was reasonable in the circumstances from their point of view, that they had no occasion to continue further in the planning process. They have sworn, and we accept, that they would have pursued the process further to the Tribunal if they had not been mislead. That had the effect of excluding them from the planning process. They could legally have lodged a review of the decision of the Responsible Authority to grant a permit, but, to borrow concept from another part of the law, we accept that they had an honest and reasonable belief in a state of facts which, if it were true, would have rendered any such review proceeding frivolous and vexatious. In those circumstances, they were right, rather than wrong, in not initiating a review. At the end of the day, Ms. Brown still has her substantial disadvantage in real and practical terms. Also she was effectively excluded from the planning process from the PAC meeting onwards. She would have been excluded if she had never received notice of the application. She was not excluded at that stage, but she was soon after. She was excluded by a credible but wrong indication that her concerns were met and she need pursue them no further.

80. According to s.91(3)(c) the Tribunal must not direct the Responsible Authority to cancel or amend a permit unless it would be just and fair in the circumstances to do so. In relation to this Mr. Peake contends, at his paragraph 7.1, that we must consider whether, on the merits, the Tribunal would have directed that a permit be granted, had there been a merits review.

81. So far as this is concerned, we are able to say decidedly that we would not, individually or together, have granted this permit. We would have had regard to the design objective of protecting shared viewlines where reasonable and practical. We already discussed that issue. That discussion, in terms of what reasonable development could be achieved on the Zumpano land, and, in the circumstances of this case, the need to protect a substantial view from Ms. Brown's west facing windows of the sea, horizon and sky. We do not accept that the planning merits of the application favour the granting of the permit that was issued to Mr. & Mrs. Zumpano. There are possible arguments about setbacks, or the affect of shadowing and overlooking if the true scale of the proposed building had been appreciated. Without going into them, we have made it sufficiently clear that the question of views would have determined the matter. We would only grant a permit that afforded a reasonable protection of views from the west facing window because that is both reasonable and practical in this case.

82. At his paragraph 8.17 Mr. Peake observes that there are 12 design objectives in cl.1 of schedule 3 of the Design and Development Overlay. He goes on to say that each must be given equal weight. We are not sure what he means, or what that observation adds. Each must be given appropriate weight, according to the circumstances of a particular case. In some cases some of the objectives might not be relevant at all whilst some may have greater weight in one case or another. It is sufficient for us to say that the one in relation to protecting shared viewlines should be given appropriate weight and we have already explained our view of what that means in the circumstances of this case. Nothing said or not said in the Municipal Strategic Statement in cl.20 of the planning scheme or Mr. Peake's quotations from cl.21 changed our view on this.

83. From his paragraph 8.35 onward Mr. Peake maintains that a control like the Design and Development Overlay should not be used to prevent reasonable development of land. Of course, the existence of the Design and Development Overlay, as part of the planning scheme, means that what is reasonable on planning merits takes into account the provisions of the Overlay control. Perhaps he means that the design objective in relation to shared viewlines should not prevent reasonable development of land. We agree. We have only come to our decision on the basis that reasonable development of the Zumpano land is quite feasible without this grievous impact on the views from the Brown land. Mr. Peake goes on to refer to several cases, but they do not assist us greatly. Quite appropriately, each is decided on its own circumstances. We must decide on the circumstances of this case.

84. Mr. Peake's final section is in relation to whether it is just and fair, in all the circumstances, to interfere with the existing planning permission.

85. In this connection his first point is to seek to allocate blame. This problem was created by Mr. Zumpano's agent, Mr. Cornetta, in Mr. Zumpano's presence. We do not accept that blame attaches to Ms. Brown because she did not seek professional assistance at objection stage, although she did so readily enough immediately prior to commencing this proceeding when she realised there was a problem. That is the point. She obtained professional assistance when she realised there was a problem in relation to which she needed such assistance. She acted reasonably, in the circumstances, before and after obtaining such assistance. Although the primary cause of the problem is the mis-statement inducing the mistake for which Mr. Zumpano either directly and/or through his agent is responsible, a careful examination and analysis of the plans by the Council planning officer could and should have lead him to realise that he had been mislead.

86. It is said that by the time of the making of the stop development order $200,000 had been spent on construction of the dwelling together with a further $50,000 for materials. Apart from that, a good deal of time has been lost, from the point of view of Mr. & Mrs. Zumpano. They have relied on the permit and acted upon it. Any attempt to modify the building to restore views to Ms. Brown would be difficult and expensive, and may not meet the preferences of Mr. & Mrs. Zumpano in relation to the house they wish to build. Indeed, apart from saying that modifications would necessarily be substantial, it may be that little of what has been built would remain in the event of a substantial remodelling and redesign. Mr. Zumpano has said that, if he had realised that there was a problem about the views, he could have redesigned the house before commencing the building. It is very unfortunate that this did not occur. He should have realised. He should have realised because of communications that his architect should have made to him. He should also have realised because of the PAC meeting and its principle purpose, which was known to him.

87. Mr. Umbers points out that the partly constructed house on the land does not, in any event, comply with the endorsed plans. He says that extra rooms have been created at lower levels so that there, after all, three levels, and that the current structure is therefore prohibited. On our inspection we noticed that there are aspects of what has been constructed that are not in compliance with the endorsed plans. Beyond making that observation, at this stage we leave it to the Responsible Authority to decide whether any enforcement action is indicated.

88. In so far as the remedies sought in this proceeding are cancellation or amendment, the only relief we can realistically grant is cancellation of the existing permit. Amendment would present us with overly difficult problems as to what amendments should be imposed, and how. It is not for us to design or redesign the house. If the permit is cancelled, an application can be made for a new one. Consideration would then have to be given to whether any and if so how much of the existing structure can be utilised. The application will create an opportunity for people to object, if considered necessary, and ultimately one or some parties may resort to review proceedings before the Tribunal.

89. We are conscious that cancellation of this permit will come as a heavy glow, financially and in other respects, to Mr. & Mrs. Zumpano. In fact, it is impossible to resolve this case without some heavy burden being placed upon someone. We are satisfied that the necessary ground has been made out and that the other requirements for cancellation are satisfied, including that it is just and fair in the circumstances to cancel the permit. For these reasons we propose to cancel it.

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