Ms M Ryan, planning consultant of Nepean Planning Consultants

For Mornington Peninsula Shire Council (the responsible authority)

The subject land is a corner lot (southeast corner of T-intersection of Glenisla Drive and Pindari Street) in Mt Martha. Its northern frontage to Glenisla Drive is 17.678m, and its western frontage to Pindari Street is 25.032m. It has a total area of about 789sqm. The land contains a single storey house, has a 2.44m wide easement on its eastern boundary, and has existing vegetation scattered across the site, including near the street corner and Glenisla Drive. The land slopes approximately 3.34m from the southwest corner (adjacent to Pindari Street) to the northeast (adjacent to Glenisla Drive).

The land is affected by a restrictive covenant that requires a residential type of building with a floor area of 900 square feet excluding outbuildings, garages and carports. The parties agree the proposal does not contravene this covenant.

Mr Charlton's property is to the south and uphill from the subject land at 6 Pindari Street. This property is vacant. It has a planning permit (P16/1322) to remove vegetation and construct a two storey house of contemporary style with a generally flat roof. Much of the vegetation has been removed, so the land is largely devoid of vegetation. This property slopes down to the north, towards the subject land.

To remove some of the vegetation on the subject land and to construct a double storey house that has a 'cape cod' architectural style with a series of pitched roofs and gable ends.

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

General Residential Zone Schedule 1 - Mornington Peninsula Town Areas (GRZ1)

Design and Development Overlay Schedule 2 - Bayside and Village Design (DDO2)

Vegetation Protection Overlay Schedule 1 - Township Vegetation (VPO1)

Clause 43.02-2 To construct a single dwelling on a lot where the general requirements of DDO2 are not met. In this case, the relevant general requirements not met are a wall height greater than 5.5m (8m proposed), a building height greater than 6m (8.97m proposed and 8.52m approved by Council) and the external finish having a reflectivity greater than 40%.

Clause 42.02-2 To remove vegetation in VPO1 (refer to reasons for further details).

1. Mr Charlton has a planning permit from the Council to build a two storey house on his property (6 Pindari Street). The Council supports Mr Ryan and Ms Jacob's proposal to build a two storey house on their property (98 Glenisla Drive) that is located in front of Mr Charlton's property. Mr Charlton opposes the Council's decision as he considers the proposed design does not:
   • Protect his view of Port Phillip Bay, and
   • Achieve the built form and vegetation objectives contained in the relevant planning controls (DDO2 and VPO1).
2. The Jacob/Ryan proposed house is of a cape cod architectural style that includes a series of high pitched roofs and gable ends. Whilst the proposed siting and design of the house is acceptable in terms of the built form and vegetation objectives in the planning scheme, it is not acceptable in terms of its impact upon the shared viewlines with the Charlton approved house. The siting and/or the design of Ms Jacob and Mr Ryan's house needs to be modified to protect this shared viewline as achieving this outcome is both reasonable and practical in this case. Any modifications to the Jacob/Ryan house design will need to be considered afresh by the Council as part of a new planning permit application.

THE PROPOSED DESIGN RESPONSE TO THE ESTABLISHED STREETSCAPE AND DEVELOPMENT PATTERN

1. The DDO2 design objectives include:
   • To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.
   • To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
2. The Council submits the proposed greater level of reflectivity than the general requirement of 40% in DDO2 is acceptable in this case as the proposed house has a weatherboard finish. The Council is satisfied this minimises glare and reflection of light. This submission was not disputed by the other parties, so I see no reason not to find that the Council's assessment of this variation is acceptable.
3. Mr Charlton submits the proposed new dwelling does not meet the previously quoted DDO2 objectives because it:
   • protrudes above the tree canopy line when viewed from surrounding properties, including his; and
   • has a significant overall height that is unreasonably bulky in its siting when viewed from the street and surrounding properties.
4. Mr Charlton's submission particularly focuses on the heritage property next door at 100 Glenisla Drive, including the fact that its dwelling is well set back from Glenisla Drive. I am not persuaded the development of this site has an unacceptable impact upon the heritage significance of 100 Glenisla Drive. Further, the streetscape and development pattern is a broader consideration than just one adjoining property.
5. Mr Charlton acknowledges that there are numerous examples of elevated two storey houses sited to the rear of properties along Glenisla Drive. The parties all agree the siting and height of these houses is a deliberate design choice to capitalise upon the opportunities for views of Port Phillip Bay. None of the parties were able to say whether the elevated heights of other contemporary dwellings along Glenisla Drive are comparable to the height of this proposed dwelling. Nevertheless, there is no doubt that these other dwellings are elevated well above the street level. They include tall two storey designs, some of which are silhouetted against the sky when viewed from Glenisla Drive. This proposal is in keeping with these characteristics and achieves a similar outcome. As such, I am not persuaded the proposed design is unreasonably bulky or protrudes unreasonably above the general tree canopy height found in this neighbourhood.

1. Mr Charlton is concerned that the design does not achieve an acceptable balance between the extent of built form and vegetation on the site. In order to consider this issue, it is necessary to have an understanding about what vegetation exists on the site and what vegetation will remain as part of this proposal.

What vegetation exists and will remain on the site?

1. The Council approval given for this proposed dwelling includes 'vegetation removal', but during the hearing it appeared the Council is not clear about exactly what vegetation is to be removed.
2. The content of the Council officer report provides the following information:
   • One tree on the naturestrip of Pindari Street is to be removed to facilitate access to the site (which may not require approval as it is on the road reserve rather than this site).
   • All other vegetation is shown to remain.
   • The Applicant's Arborist report submitted with the permit application recommends removal of some vegetation considered to be dead or in poor health/structure, and the Council supports the removal of this vegetation.
3. The removal of the vegetation referred to in the last dot point (above) is not reflected in the permit conditions. There are only two conditions that make reference to tree removal/retention:
   • Condition 1(d)(i) requires a landscape plan showing the vegetation to be retained and removed; and
   • Condition 1(d)(v) requires retained trees to have protection barriers, including trees 10 and 12 in the Arborist Report.
4. Ms Jacob submitted in the hearing that her arborist says there are white ants in the trees, the tea trees are at the end of their life and that some trees have fallen over. She is of the view the Council arborist supports the removal of vegetation from the site. I note the Council officer report includes comments from Council's Vegetation Officer indicating support for the removal of some trees. However, I reiterate that it is not clear what is sought to be removed and retained or which trees are supported for removal by Council. This is demonstrated by the following:
   • The application plans do not clearly show what trees are proposed to be removed and retained.
   • The Arboricultural Report submitted with the permit application[2] contains recommendations to retain five trees, remove two trees, potentially remove one tree and is 'undecided' about four trees.
   • The Council's Vegetation Officer comments in the Council officer report suggest removing 'minor tea-tree' at the rear of the house, removing tea-tree on the eastern boundary 'as required' and that tree 10 is worth retaining.
5. Any new planning application for this site should be clear about what vegetation will be retained and removed. This knowledge is important to then consider and inform a decision about what new vegetation/landscaping is also required to achieve the objectives of DDO2 and VPO1.

Does the design achieve an acceptable balance between built form and landscaping?

1. DDO2 has a design objective to ensure site areas are large enough to accommodate development while retaining established vegetation cover and providing substantial areas for new landscaping and open space. VPO1 explains the nature and significance of vegetation to be protected includes:

... the impression is of buildings within a landscape rather than that of landscaping around buildings. This balance between natural or introduced vegetation and built form contributes substantially to local character. ...

1. Mr Charlton is particularly concerned with the rear setback of the proposed dwelling. It is generally between 1.0 and 3.0 metres, and includes around a metre of cut. Mr Charlton says this means there can be no confidence that any meaningful planting will be accommodated between the proposed dwelling and his property. I agree with this. The question is whether this is unacceptable? Mr Charlton submits this outcome is 'entirely inconsistent' with the objectives of DDO2 and VPO1.
2. The vegetation protection objectives of VPO1 include:

To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.

1. The clause 54 assessment submitted with the permit application states the site has an area of 791 square metres, there is a building site coverage of 36% (287 square metres) and the permeable area of the site is 61%. These characteristics appear generally consistent with the established development pattern of this area.
2. The ground level floor plan illustrates the proposed dwelling is set back between 5 and 6.1 metres from Pindari Street, between 7.6 and 9.6 metres from Glenisla Drive and between 3.9 and 8.1 metres from the east side boundary.
3. These setbacks create land area available for retained vegetation and new landscaping as necessary to supplement the existing vegetation. Further, much of this land area is adjacent to the street frontages, which are appreciable to the general public. Hence, when the available land area for landscaping is balanced against the potential limitations of the southern setback to provide landscaping, I am satisfied that the relevant objectives of DDO2 and VPO1 are being achieved in this proposal.

1. The issue of whether the proposed dwelling protects the available view of Port Phillip Bay from Mr Charlton's approved house is the key issue in this case.

1. There is no dispute amongst the parties that there is no legal right to a view. The issue in this case is one of amenity, as part of the amenity includes the views of Port Phillip Bay that can be enjoyed by both properties.
2. The Council submits this case is unusual because what is sought to be protected is an 'unrealised' view given that the approved dwelling on Mr Charlton's property has not yet been built. It was pointed out during the hearing that Mr Charlton's property is also for sale. Mr Charlton has recently received a planning permit and endorsed plans for the development of a double storey house with a pool and landscaping. The sale of the property includes information that a permit has issued for the development of a house. The fact that the land is for sale does not change the weight I have given to this permit as it is recently issued and the permit runs with the land regardless of who owns it.
3. From the Council's perspective, it has been fortuitous that the planning applications for both this site and Mr Charlton's property were lodged within months of each other. This has meant the Council and each neighbour knew what was proposed on each of the two properties as the applications were being considered. As was pointed out by all parties, the Council was able to consider the issue of views as part of each proposal. This has resulted in:
   1. Mr Charlton's house being approved at a particular height in order to maintain a viewline from the balcony of his southern neighbour at 4 Pindari Street; and
   2. Ms Jacob and Mr Ryan's proposed dwelling being approved by Council with modifications including a reduced roof pitch from 30 to 25 degrees to reduce the overall building height by 0.29 to 0.45 of a metre. The Council says this modification will achieve a shared viewline for Mr Charlton's approved house.
4. The Council and Ms Jacob submit the fact that Mr Charlton's approved house is not yet built or under construction warrants far less weight being given to the loss of view. They say the house has not yet been built, may not ever be built, and it can be modified in design to address any view loss that may arise from the approval of Ms Jacob and Mr Ryan's proposed dwelling. The Council submits DDO2 focuses on existing shared viewlines and not an unrealised view in an approved development. I do not agree with the Council and I am not persuaded this situation warrants 'far less weight'.
5. Mr Charlton's property has a planning permit with endorsed plans, and this is a relevant consideration. Mr Charlton has commenced the permit as some of the vegetation on his property has been removed, as is allowed by the permit. This permit allows the construction of a house of a particular design that addresses the viewline of the southern neighbour at 4 Pindari Street. In other words, this approved design has had to respond to its own context including a sharing of views with another neighbour. This means there is no certainty about what future modifications to the design of the Charlton House may or may not be acceptable to its southern neighbour and the Council.
6. My consideration of the acceptability of the proposed dwelling on the Jacob/Ryan property in light of the amenity impact in terms of views upon the Charlton house is based on the permit and approved plans for the Charlton house.

The relevant principles and case law about view sharing

1. The parties all agree that the relevant principles in regard to view sharing are derived from the combination of the decisions of Tashounidis[3] and Healy[4], being:

1. There is no legal right to a view; 2. Views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

1. The availability of views must be considered in light of what constitutes a reasonable sharing of those views;

1. In addressing the concept of 'reasonableness', it is relevant to consider: 1. The importance of the view to be lost within the overall panorama available; and 2. Whether those objecting have taken all appropriate steps to optimise development of their own properties. 2. Added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.
2. These principles outline that views are part of the amenity of a property and should be considered. Added emphasis is to be given to this consideration when the issue of views is specifically addressed in the planning scheme. In this case, it is as DDO2 contains an objective to protect shared viewlines where reasonable and practical.
3. Ms Jacob relies on previous decisions of the Tribunal[5] that have found that this particular DDO2 objective is a different consideration to the reasonable sharing of views objective that can be found in other planning schemes. I agree with this when DDO2's objective is compared to, for example, Surf Coast[6] and Greater Geelong[7] planning schemes. As evidenced in the footnotes below, these examples talk about view sharing and reasonable view sharing. In cases involving a reasonable sharing of views, it is commonplace to assess the totality of the views available, what the views include (e.g. water views, beach views, breaking surf, headlands, etc) and then to consider whether a 'reasonable sharing' is provided as a result of a proposed development. However, the DDO2 objective is about protecting a shared viewline (subject to provisos that I will deal with shortly).

1. There is no dispute in this case that both properties currently have the potential to share a view of the waters of Port Phillip Bay that are visible between the existing tree canopy of the intervening hinterland and the horizon. This view is to the north/northwest of both properties.
2. Ms Jacob submits the fact that her property is in front of the Charlton property means that there must be an expectation that their views will be affected. This is not correct because of DDO2. DDO2 contains the objective to protect shared viewlines and specifies a maximum building height of 6 metres (beyond which a permit is required). Hence, the expectation that a view will be affected is up to a maximum building height of 6 metres. For this proposed building height of 8.52 metres (as approved by the Council), the viewline objective of DDO2 must be considered on its merits.
3. Ms Jacob and the Council submit that the Charlton property would retain views to the west and east, which would be a sharing of the view. I am not persuaded of this. Ms Ryan submits for Mr Charlton that the northwest views are small glimpses of the bay through existing vegetation. The principal viewline of the bay is to the north/northwest over the roof of the proposed dwelling. Again, DDO2 is about protecting this shared viewline rather than sharing it by reducing it. Ms Ryan submits this view from a standing position (with an eye line of 1.6 metres in height) in the first floor of the Charlton house would be entirely obstructed by the Jacob/Ryan proposed dwelling at the reduced height approved by the Council. In making this submission, she referred to an illustration of the approved floor levels and heights of the two dwellings.[8]

Is protecting the shared viewline practical and reasonable?

1. Whether the shared viewline should be protected is subject to two provisos in DDO2 being whether it is reasonable and practical to do so.

1. Practical considerations include the site context and any constraints affecting its development potential including the nature of the development proposed and the relevant planning controls and policies. In this case, both properties have a slope that falls to the north and contain existing vegetation that is controlled through a Vegetation Protection Overlay. However, the Council supports vegetation removal on both sites and, as already explained, new landscaping does not need to be incorporated to the south of the proposed dwelling. So, there are no site constraints that significantly affect the development potential of the Jacob/Ryan property. DDO2 provides guidance as to an acceptable building height by allowing buildings up to 6 metres in height without requiring planning permission. In turn, this means that any impact on existing viewlines as a result of a maximum building height of 6 metres is acceptable. This proposal is to erect a house with an overall height of 8.52 metres (as approved by the Council), which is more than 2.5 metres higher than the 6 metre height provided for in DDO2.

1. The layout of the first floor of the Charlton house is effectively split into two halves - an eastern half and a western half. I have no concern about a loss of view from the eastern half as it contains a study/theatre that has no northern orientation and a large bedroom. Whilst views from a bedroom may be desirable, it is of secondary importance to the open plan living areas and balcony in the western half of the first floor. The western half has a large balcony accessed off an open plan kitchen, living and dining area that also has floor to ceiling north facing windows. This is the key area of the Charlton house to be considered in regard to a shared viewline.
2. DDO2 does not specify how a shared viewline should be considered, e.g. whether the view should be enjoyed in a standing or seated position and from where it should be assessed. As I said in Kennedy v Surf Coast SC[9]:
   1. In my opinion, assessing the impact upon the view with your face to the glass of the living area door/window to the deck is not the appropriate location or test. The amenity of the property includes the deck but also the main living area of this dwelling. As such, the assessment should be undertaken within the living and kitchen area. The view and photomontages provided by Ms Sincock from the living and kitchen area (view 1) have been taken from the middle of the area at a standing height of 1.65 metres, and I am of the opinion this is a reasonable position to undertake the assessment in this case. In every case, a judgement will need to be made as to where the assessment should be taken from.
3. Ms Ryan's submission for Mr Charlton has assessed a line of sight at a height of 1.6 metres above the first floor level of the Charlton house. As I stated in Kennedy, a standing height at eye level is a reasonable position for an assessment. In this case, my findings are the same whether the eye level is measured at 1.6 or 1.65 metres.

1. The proposed dwelling height is 2.52 metres above the 6 metre maximum building height in DDO2. It is evident from Image 1 in Ms Ryan's submission that a shared viewline is easily achievable based on the floor and ceiling levels of the Jacob/Ryan proposed dwelling. This is because the first floor ceiling level of the proposed dwelling in the plans that respond to the Council's approval and permit conditions is 71.39. I do note that this first floor ceiling height above natural ground level is generally around 6 metres in height (as specified in DDO2). As the first floor level of the Charlton residence is at 71.35, it is clear a shared viewline can be achieved dependent upon the height of the roof.
2. The proposed roof is where the problem lies in this case. The cape cod architectural style contains a series of high pitched roofs and gable ends that, even with the Council's approval to reduce the height, results in ridge lines that are higher than an eye line view from the Charlton house. There are at least four different ridge lines at differing heights across the proposed first floor roof. The combined ridge lines from the living room through to the beginning of bedroom 1 (in an east-west direction across the centre and the majority of the first floor of the Jacob/Ryan proposed dwelling) are higher than an eye line view from the Charlton house. These areas of the Jacob/Ryan house are located generally to the north of the Charlton open plan living area and balcony.
3. Hence, this case comes down to the reasonableness of Ms Jacob and Mr Ryan's choice of architectural style. Ms Jacob provided photographs of houses of this architectural style in Dominion Road, Melrose Drive and Somers Avenue. The acceptability of this architectural style on this site depends upon the design response to the objectives of DDO2, which in turn will be influenced by the characteristics of a site and its neighbours. The plans of the approved Charlton house and the tabled amended plans that address the Council's conditions to reduce the height of this proposed dwelling demonstrate that there is ample opportunity to achieve a shared viewline between the two properties. However, the proposed roof design does not do this. Whilst I understand Ms Jacob and Mr Ryan want a particular architectural style, I find this may not be a reasonable expectation in the context of DDO2. DDO2 contains objectives to be achieved, and provides guidance about maximum wall and building heights. The proposed roof form means the building height is exceeded quite a bit by this proposal. Whilst the floor levels and ceiling heights are acceptable, the roof form is not.
4. It would appear that either the roof form and/or the position of the house may need to be changed to create a reasonable shared viewline with the Charlton approved house. This is not something that can be dealt with by way of a permit condition(s) as the siting and/or the design of Ms Jacob and Mr Ryan's house are affected. Any modifications to the Jacob/Ryan house design will need to be considered afresh by the Council as part of a new planning permit application.

1. For these reasons, the decision of the responsible authority is set aside. No permit is granted.

[1] The submissions of the parties and the supporting exhibits given at the hearing have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Arboricultural Report prepared by Tony Hansen based on an inspection on 7 November 2016.

[3] Tashounidis v Flinders SC [1987] 1 AATR 116

[4] Healy v Surf Coast SC [2005] VCAT 990

[5] For example, Watkins v Mornington Peninsula SC [2017] VCAT 301, Middleton v Mornington Peninsula SC [2016] VCAT 1164 and Mitpan v Mornington Peninsula SC [2010] VCAT 1059.

[6] For example, DDO11 in Surf Coast Planning Scheme contains an objective - To achieve a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, the Split Point Lighthouse, the Painkalac valley and natural bushland in the hinterland.

[7] For example, SLO7 in Greater Geelong Planning Scheme contains an objective - To maximise opportunities for view sharing, particularly where views are available to the ocean and river from private dwellings.

[8] Image 1 on page 6 of Ms Ryan's submission. This image is an extract from an elevation plan prepared by Sabrosa Designs Job No. 16/300 TP5 Issue A dated 14/7/16.

[9] [2009] VCAT 1359