RESPONSIBLE AUTHORITY: Surf Coast Shire Council

Medium Neutral Citation [2002] VCAT 155

The decision of the Responsible Authority is set aside. A permit is granted for the construction of a dwelling and the removal of native vegetation on the land situated at 67C Eagle Road Parade, Aireys Inlet in accordance with amended plans and subject to the following conditions:-

1. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted but modified to show:

a) a habitation envelope, beyond which no further native vegetation shall be removed, destroyed or lopped;

b) a survey of all existing vegetation and natural features showing plants to be removed;

c) a schedule of all proposed trees, shrubs and ground cover, which will include the location, number and size at maturity of all plants, the botanical and common names of such plants and the location of all areas to be covered by grass, lawn or other surface materials;

d) the landscaping being carried out progressively, in stages.

Note: It is recommended a range of native species, indigenous to the area is incorporated into the landscaping plan.

2. Before the development starts, two copies of a schedule of all external materials, finishes and colours must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will then form part of the permit. All buildings and works must be constructed and maintained in materials and colours which comply with the Surf Coast Subdued Colours Policy 1996 to the satisfaction of the Responsible Authority.

3. Prior to the commencement of the development hereby permitted a bond or bank guarantee to the value of $10,000 must be deposited with the Responsible Authority by the developer of the land as security against failure to comply with the landscape plan required by Condition 1 of this permit. The bond or bank guarantee must be refunded by the Responsible Authority upon being satisfied that the requirements of the landscape plan have been commenced and substantially carried out in accordance with the progressive planting shown on the landscape plan to the satisfaction of the Responsible Authority.

4. During construction of any building or the carrying out of any works on the subject land, areas surrounding the location of any tree must be fenced ("protection works") to prevent damage to a significant tree and its roots in the course of construction works. No machinery or materials are to be stored within the protection areas. Trees and root zones shall be appropriately mulched prior to, and during the course of, the construction works.

5. Landscaping as shown on the endorsed landscape plan must have been commenced and substantially carried out in accordance with the progressive planting shown on the landscape plan to the satisfaction of the Responsible Authority prior to the commencement of the use, and must thereafter be maintained to the satisfaction of the Responsible Authority.

6. The maximum building height must not exceed RL 104.500 to the satisfaction of the Responsible Authority.

7. A written statement from a licensed surveyor shall be submitted for approval to the Responsible Authority confirming:

a) that the buildings have been set out in accordance with the endorsed plan; and

b) that the roof levels will not exceed the roof levels specified on the endorsed plan.

The statement shall be submitted to the Responsible Authority at completion of the frame of the building.

8. No further native vegetation shall be removed, destroyed or lopped without the written approval of the Responsible Authority, except where:

a) within the habitation envelope shown on the endorsed plans;

b) the vegetation is listed as an environmental weed in Table 3 of Clause 22.01 of the Surf Coast Planning Scheme.

9. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

10. This permit will expire if one of the following circumstances applies:

a) The development is not started within two (2) years of the date of this permit.

b) The development is not completed within two (2) years of the date of starting.

11. The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Note: Any plan approved under the Building Act and Regulations must not differ from the endorsed plan forming part of this Permit.

Note: Prior to the commencement of any works within the road reserve, a permit for those works must be obtained, with any conditions placed on the permit adhered to. Permits are available from the Shire Offices. Failure to obtain a permit or adhere to the conditions placed on the permit may result in removal of any work completed and reconstruction to council standards. The cost of removal and reconstruction work shall be borne by the applicant.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Mr A Sang, Town Planner, represented the Responsible Authority.

Mr I Lonie, Solicitor of Clayton Utz appeared on behalf of the Applicant for Review.

Ms V Jackson, Town Planner, represented a number of respondent/objectors.

Mr J Ferguson and Ms V Morling, respondent/objectors, appeared in person.

Application under S.77 of the Planning and Environment Act 1987 (PE Act)

for review of a decision to refuse to grant a permit.

1. The review site is the rear most of a three lot battleaxe style subdivision situated at Aireys Inlet. It is accessed by the handle of the battleaxe which commences on the south side of an existing dwelling situated at No. 67c Eagle Rock Parade. At this point Eagle Rock Parade runs parallel to the sea, separated from it by an elevated strip of foreshore land which is heavily vegetated.

2. The land in question has a total site area of 845m2. Excluding the handle, the site comprises a rectangle with a width of 25m and a depth of 31m. Easements run the length of both northern and western boundaries. The site is vacant but carries a considerable amount of vegetation. It is convenient to describe that vegetation in the words of Mr Geoff Clarke, a Horticultural expert, who gave evidence on behalf of the Applicant:-

The vegetation on the site overall, is covered by many shrubby environmental weeds. If left to grow these weeds will and are taking over, altering the understorey, which consists of many indigenous groundcovers such as Themeda triandra, (Kangaroo grass) and Astroloma humifusum, (Cranberry Heath). There are no indigenous shrubs or trees over 2m found within the building envelope.

The vegetation type has altered due to weed invasion due to deliberate planting and seed dispersal and altered climatic conditions due to the surrounding neighbouring dwellings. The vegetation type would be classified as Grassy Coastal Heathy Woodland to Shrubland. Eucalyptus ovata (Swamp Gum) and Leptospermum continentale (Prickly Teatree) are dominant in the area, which could indicate wetter soils for longer periods.

3. The site has a crossfall of approximately 2.7m from the north-east to the

south-east over a distance of about 35m. That crossfall influences the type of development which can be carried out on the site.

4. Although the land has access from Eagle Rock Parade, that street is not visible from within the site. The northern boundary adjoins a number of properties which have frontage to Kerrie Court. Kerrie Court is a cul-de-sac which runs from a service road access along the Great Ocean Road. It contains approximately 20 houses. The majority of housing in Kerrie Court is two storeys. However three of the four dwellings most affected by the subject proposal are single storey dwellings situated at Nos. 11, 12 and 13 Kerrie Court. The exception, No. 14 Kerrie Court, is an "A frame", two storey residence. All these dwellings are located on the south side of Kerrie Court. They enjoy midground views to the Aireys Inlet lighthouse and more distant views across Loutit Bay to the hills beyond Lorne. However approximately 1 km of land exists between the dwellings and that view. It is a pleasant view, but not any immediate one.

5. Dwelling stock in the area is generally typical of coastal towns. It would appear that most were originally constructed as holiday accommodation for families. The lots are relatively small. Vegetation on these properties has been trimmed to allow views to be maintained.

6. The land adjoining the review site to the west is a large, undeveloped parcel of land which has frontage to the Great Ocean Road. The Tribunal estimates that the Great Ocean Road is located approximately 100m from the western boundary of the subject land.

7. The proposal was described in evidence given by Mr Biles, a Town Planning Consultant who gave evidence on behalf of the Applicant, in the following way:-

The garage will abut the eastern boundary (Lot 2, No. 67-68 Eagle Rock Parade) for a length of 8.31 metres and is set back 2.5 metres from the northern boundary.

The ground floor will contain a guest bedroom, bathroom, rumpus and second bedroom. The upper floor will contain an open plan kitchen, dining and living area, main bedroom and ensuite as well as a south facing deck, which is to be accessed from the main living area as well as the main bedroom. The proposed deck extends from the south west corner of the dwelling and meets the common boundary at an angle of approximately 45 degrees. In the modified plans it is set back 2.08 metres from the southern boundary. In addition to this deck, a sun deck is proposed to extend north from the main living/dining area.

Access to the site is via the existing battleaxe `handle' along the southern boundary.

The building design seeks to make strong reference to its Surf Coast setting. The building is composed in a series of layers that stand as a metaphor for an eroding cliff face.

Solid strong rock anchors part of the base while the upper level lattice frame has a more fragile and transparent appearance. The timber cladding of higher element thrusts up from the ground plane but is clearly `peeling' itself away from the main body of the building. This element also serves to give some wind protection to the upper level decks.

The building colours depicted on the applicant's plans are colours found in this coastal environment, namely; earthy browns, grey and cream.

8. It is convenient at this point to provide some further statistical information:-

* the ground floor component would have an area of 102.58m2 with a depth of 16.49m;

* the first floor component would have an area of 92.30m2 with a deck area of 38.55m2.

9. In short, the dwelling would comprise an area of around 20 squares plus a double garage and deck. Put another way, of the 775m2 which make up the rectangle available for development, approximately 250m2 will be covered by the ground floor footprint.

10. Notice of the application was given and four objections and a letter of support were received. The objections can be summarised as follows:-

11. Following the completion of the advertising period a site meeting was conducted by the Responsible Authority. Height poles were erected at various points in order to assess the impact on views. Subsequently, amended plans were submitted in which the building height was reduced, and the setback of the upper level deck from the southern boundary was increased.

12. On 23 April 2001 the application was considered by the Planning Committee of the Surf Coast Shire. It resolved to issue a Notice of Refusal based on the following grounds:-

1. The development would result in an unreasonable impact on the amenity of adjoining and nearby dwellings by way of interruption to the ocean and coastal views. The proposal does not achieve a reasonable sharing of the view and fails to meet the relevant performance standards of the Coastal Development Policy.

2. The proposed building height and bulk is excessive and results in a dominant building that is inconsistent with the low scale development of the surrounding area.

3. The external colour scheme fails to comply with the Surf Coast Shire's Subdued Colours Policy 1996 and would not adequately blend into the surrounding environment.

4. The development would result in excessive loss of native vegetation and habitat.

13. The Applicant now seeks a review of that decision.

14. On the hearing each of the parties tabled and read written submissions. Mr Lonie appeared on behalf of the Applicant for Review. He called evidence from the following persons:-

* Mr K Charles, the Architect responsible for the proposal.

* Mr P Christoff, an Architect who provided a peer review of the building design.

15. The Tribunal granted leave for Mr I McKenzie, an objector residing at No. 13 Kerrie Court, to make an individual submission notwithstanding that he was represented by Ms Jackson.

16. While the Tribunal heard from both Mr McKenzie and Mr Gell, it needs to be said that neither Mr McKenzie's status as a war veteran, nor Mr Gell's admirable record of care for the environment are matters which are relevant to the Tribunal's consideration of this matter. Its task is to judge the merits of the application against the relevant provisions of the planning scheme.

17. All the written material, together with the sketches, plans and photographs tabled at the hearing have been carefully reviewed by the Tribunal which conducted two inspections of the subject land. On 17 February 2002, the day prior to the hearing, it viewed both the site, the terrain, and it conducted a kerbside inspection of the dwellings in Kerrie Court. On 19 February 2002, it inspected the site and viewed in on a number of occasions from within the dwellings of the properties situated at Nos. 11 to 14 Kerrie Court. It was assisted in that inspection by the erection of height poles which indicated the profile of the proposed dwelling, and its impact on viewlines.

18. In February and March 2000 another division of this Tribunal considered an application for the subdivision of No. 67 Eagle Rock Parade into three allotments, and the construction of dwellings on the two newly created lots to the rear. This review was brought by objectors who challenged the Council's decision to grant a permit for the proposal. The Tribunal, while varying the decision by ordering some minor modifications to the design, nonetheless upheld the grant of a permit. It allowed the construction of a two storey dwelling on each of the two rear allotments.

19. The dwelling permitted on Lot 3 differs in a number of ways from the structure which is the subject of the present proceedings. It was lower in height (6.25m above natural surface level), located in a different position on the site and of a totally different (and somewhat utilitarian) design.

20. In the present case, the parties opposing this proposal sought to argue that the previous approval amounted to some sort of a benchmark for development of the review site. The Tribunal firmly rejects that notion. As in the present case, the Tribunal was required to make a judgement whether or not the proposal met the provisions of the planning scheme. It may well be that it would have approved a larger proposal or a different layout had that been the matter before it. It is simply wrong to contend that the previous approval set the upper limit for what the subject land is capable of supporting. This proposal must be assessed, not against what the previous permit allowed, but against the provisions of the planning scheme.

21. The review site is located within the Residential 1 Zone. Within that zone no permit is required to use the land for a dwelling.

22. The site is also situated within a Significant Landscape Overlay - Great Ocean Road and Coastal Environs. The key objectives identified by the Responsible Authority were as follows:-

* To preserve and enhance the scenic landscape values and environmental qualities within viewsheds of the Great Ocean Road and coastal environs.

* To protect and enhance the low density residential character and natural bush setting of the coastal settlements.

* To ensure that development and uses do not impact on significant remnant vegetation.

* To maintain the individual identity and landscape character of each township.

* To promote development which complements or is sympathetic to the streetscape character.

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

23. The site is affected by the following policies in the State Planning Policy Framework:-

* Clause 15.09 Conservation of native flora and fauna.

* Clause 16.01 Residential development for single dwellings.

24. The Municipal Strategic Statement also contains a raft of policies which are relevant. These were summarised by Mr Biles at pages 15 - 28 of his statement of evidence. The Tribunal does not believe it is necessary to repeat all that material here. However, some particular clauses are worthy of note:-

* Promote the retention of re-establishment of native vegetation, particularly where this is an important element of township character or serves to screen buildings from significant public viewing points.

* Protect residential amenity by encouraging a reasonable sharing of views between new and established properties, particularly where the view is of a significant landscape feature, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries and notable cultural landscape features.

* The height of buildings be determined by the surrounding context, taking into account the following principles:

- Buildings should not protrude above the tree canopy in areas where the canopy is a key feature of the area.

- Buildings should not protrude above ridge lines to form a silhouette against the sky when viewed from the Great Ocean Road or any significant public viewing point.

- Building heights should not cause a building to be visually prominent in the context of the surrounding streetscape or coastal viewshed when viewed from the Great Ocean Road or any significant public viewing point.

- Building heights should be consistent with the surrounding streetscape character where the character is itself consistent with the above principles.

* Buildings should not exceed a maximum height of 7.5 metres above natural ground level, although a lesser or greater height will be considered based on an assessment against the principles outlined above.

* A building height exceeding 7.5 metres may only be permitted where a proposal is consistent with all of the above principles and betters one or more of the performance standards outlined elsewhere in this policy.

25. In coming to its decision the Tribunal has had careful regard to the whole of the Policy Framework which is applicable in this case.

26. In essence, this matter can be reduced to three questions, all of which need to be decided in favour of the proponent. Those questions are:-

a) Will the proposal unnecessarily deplete native vegetation on the site?

b) Will the proposal detrimentally affect the habitat of the Rufous Bristlebird?

c) Does the proposal unreasonably affect the views of neighbouring properties?

The Tribunal will deal in turn with each of these matters.

27. As regards native vegetation, the Tribunal accepts the evidence of Mr Clarke. Environmental weeds have proliferated across the subject land and it is important to note that there are no indigenous shrubs or trees exceeding 2m within the proposed envelope in which the building would be located. This application thus provides an opportunity to eradicate the environmental weeds and progressively replace them with indigenous species. The Tribunal regards this as a positive aspect of the proposal which can be reinforced by appropriate conditions.

28. In relation to the Bristle Bird habitat, it is noteworthy that on the previous occasion, the Tribunal heard conflicting evidence from Dr John Aberton and Dr Meredith on this question. The Tribunal preferred the evidence of Dr Meredith. On the present occasion, the Tribunal has before it only the evidence of Dr Meredith.

29. What Ms Morling asks the Tribunal to do is to prefer the evidence of Dr Aberton, notwithstanding that this evidence was not part of the material put before it on the present occasion, and indeed was rejected by the Tribunal on the previous occasion.

The proposal is compatible with the long term conservation of the Rufous Bristlebird in the area. The site is clearly used by the bird but is not prime habitat and most likely forms part of a broad home range area. There will be some short term loss of habitat from the site due to clearing, but the revegetation proposed will result in a medium to long term increase in Bristlebird habitat on the land. The house, which is set in amongst many others, will not appreciably increase the level of cats and dogs, and the Rufous Bristlebird is tolerant of the presence of people (Wilson et al.2001 found no correlation between the abundance of Rufous Bristlebirds at Aireys Inlet and the level of human activity; in fact, the only positive correlation they found was with the presence of artificial food sources in areas such as house gardens and car parks).

32. The statistical analysis provided by Mr Christoff contradicts the assertion by Ms Morling that "most of the site will be built over". Mr Christoff's analysis suggests that something approximating two-thirds of the site will be available for landscaping.

33. The crux of this matter therefore comes down to an assessment of whether the proposal will unreasonably deplete the views available to the properties located in Kerrie Court. As to this, some preliminary observations need to be made.

34. First, a "reasonable sharing" of views does no mean that an equal sharing of views will result. Matters such as the prevailing topography and vegetation frequently influenced the manner in which views can be shared. That is so in the present case.

35. Second, despite some extravagant claims to the contrary, the proposed dwelling is not excessively large. It is a three bedroom dwelling which, in the old language, will occupy about 20 squares. Moreover it has been designed by a competent architect and, on any view, will be far more attractive in appearance than the previous approved dwelling and, indeed, any other dwelling in the immediate vicinity.

36. Third, while the dwelling will undoubtedly have some impact on all four properties between Nos. 11 - 14 Kerri Court, all but No. 14 are single storey. In the event those sites were developed to their full potential, all would enjoy the same panoramic view that the proposed dwelling will undoubtedly enjoy. Put another way, the objectors properties have not been developed to their optimal level. Ms Jackson conceded that this was a relevant matter which the Tribunal was entitled to take into account.

37. The Tribunal's inspection confirmed the accuracy of Mr Biles assessment in relation to the impact of the proposal on the views available to each of the four properties in question.

38. No. 11 Kerrie Court will retain its view to the lighthouse (which is largely obscured by vegetation in any event), and it will maintain a significant albeit distant view towards Lorne.

39. No. 12 Kerrie Court will also maintain its view to the lighthouse and, although its Lorne viewshed will be reduced by about 25%, it will still have a substantial view in that direction.

40. No. 13 Kerrie Court will lose its view of the lighthouse from the main rear viewing area, which is enclosed. It will maintain a significant part of its Lorne view shed.

41. It is noteworthy that the dwelling at No. 14, which has an upper storey, enjoys excellent views of both the lighthouse and Loutit Bay. Neither view will be affected by this proposal.

42. In essence Ms Jackson argued that the owners of No. 13 were entitled to retain both the viewshed to the lighthouse and also to the sea. The Tribunal considers this to be an unreasonable expectation. It would render development of the review site all but impossible. In the Tribunal's view the key viewshed here is the view to the sea. All four properties will retain that view albeit, in some instances, to a slightly reduced degree.

43. The Council's "preferred height limit" for this area is 7.5m. Much was made of the fact that the proposed dwelling is slightly higher than this. However, this is in part due to the fall of the land. A building that meets the 7.5m criteria would still impinge upon the view sheds of No. 11 - 13 Kerrie Court. The Tribunal rejects the contention that the building will be too high. It also rejects the argument that the setbacks are insufficient.

44. Having regard to all these factors, the Tribunal has come to the conclusion that the proposal does not unreasonably intrude upon the views of the Objectors' properties. Given its overwhelming compliance with other objectives of the Significant Landscape Overlay which triggers the need for the planning permit in this instance, the Tribunal is of the view that the grounds of refusal and of objection have not be sustained. Once the approved planting is put in place, the Tribunal believes the dwelling will enhance both the existing vegetation cover and the built form which presently characterises the area.

45. For all the foregoing reasons the Tribunal believes the decision of the Responsible Authority should be set aside. A permit will be granted subject to conditions.