Mr Ross Smyrk, for Arthur & Margaret Lund, Patricia & Trevor Peel, and Ross & Alison Smyrk

Ms Krystal Blizzard, town planner, Mornington Peninsula Shire Council

Application under section 82 of the Planning and Environment Act 1987

Clause 42.02-2 (removal of vegetation on land in VPO1)

Clause 42.03-2 (removal of native vegetation on land in SLO2)

Clauses 11, 15, 21.04, 21.06, 21.07-2, 52.01, 52.02, 56 & 65

The land is on the south side of Beach Hill Avenue, about 30 m east of Beverley Hill Road. It is broadly rectangular in shape, with a frontage of about 53 m, a depth of about 71 m and an area of 3,335 sq m. The land falls about 6 m from the northwest corner to the southeast corner. The land contains a single-storey brick dwelling setback about 11 m from the street. There is a circular driveway from the street in front of the dwelling, with crossovers 9 m from the east side boundary and 2 m from the west side boundary. There is a large well-maintained garden, comprising sections of lawn separated by curvilinear garden beds containing mainly exotic species, behind the dwelling. Side boundary fencing is mainly open wire fencing about 1 m high.

14 April 2013 (unaccompanied inspection of subject land, 7 & 8 Dover Court, 1 Beverley Hill Road and 87 Beach Hill Avenue)

1. Mr Pursell proposes to subdivide the subject land into two lots, as follows -
   • Lot 1 contains an existing dwelling. The lot has a frontage of about 40 m to Beach Hill Avenue, a depth of about 45 m along the east boundary and an area of 1,996 sq m. The rear garden of the lot would be about 30 m wide and between 17 m and 25 m deep.
   • Lot 2 is a vacant battle-axe lot. It has a 6 m wide axe-handle entry along the west boundary of the subject land to an area at the rear of lot 1 of about 25 m by 35 m. Lot 2 has an area of 1,339 sq m. A 3 m wide driveway is indicatively shown within the axe-handle so that is at least 2.5 m from the west boundary of the subject land (abutting 87 Beach Hill Avenue).
2. The front 10 m of the axe-handle includes the western crossover and part of the circular drive and is set aside as a carriageway easement in favour of lot 1. This will allow shared use of the crossover so that no new crossover is required for lot 2.
3. Lot 2 contains a building envelope of about 17 m by 21 m located 2.5 m from the west boundary (abutting 1 & 3 Beverley Hill Road) and 4 m from the south boundary (abutting 7 Dover Court).
4. There are some sheds and watertanks on the boundary between lot 1 and the axe-handle of lot 2 and they will be removed. There is some vegetation (about 15 trees or shrubs) in the axe-handle and the envelope that will be removed for the subsequent construction of a driveway and dwelling on lot 2.
5. The proposal includes creating a restriction on the plan of subdivision that restricts a future building on lot 2 to the envelope and to single storey form with a maximum building height of 6 m above natural ground level. The Council's notice of decision requires amendments to the restriction so that any tennis court, pool, spa or deck must not be constructed outside the envelope except with the Council's consent.[1]
6. A permit is required under the scheme to subdivide the land, to remove the vegetation and to create the restriction. A permit is required to construct a dwelling on lot 2, including construction of a driveway. Mr Pursell applied for a permit for these things. However, he did not apply for a permit to construct a dwelling on lot 2.
7. After considering objections filed by the Applicants and others, the Council issued a notice of decision to grant a permit subject to conditions. The Applicants have applied to the Tribunal to review the decision.
8. The Applicants are the owners of abutting land at 7 & 8 Dover Court, 1 Beverley Hill Road and 87 Beach Hill Road. Each of these lots contains a single dwelling. The land at 7 & 8 Dover Court are lots of similar size to the subject land (ie about 3,000 sq m and 2,750 sq m, respectively) and the land at 87 Beach Hill Avenue and 1 Beverley Hill Road are smaller lots (ie about 770 sq m and 960 sq m, respectively).

1. The main issues raised in this proceeding are -
   • Does the covenant prohibit the grant of a permit?
   • Does the proposal respond to the provisions of the scheme, including neighbourhood character?
   • Does the proposal create unreasonable off-site amenity effects for neighbours?

1. The land is burdened with a registered restrictive covenant. It requires an owner to not 'erect ... any building ... other than a private dwelling house of timber, stone, brick or brick veneer ...' with a floor area of less than 'twelve hundred square feet'. Any building must not be 'more than two storeys' including a garage under the building. No pinus radiata may be planted. No trees and shrubs may be permitted to grow more than 4.57 m high.
2. The responsible authority (or Tribunal, on review) may not grant a permit if it would authorise anything that would result in a breach of the covenant.[2]
3. In this proceeding, the grant of a permit would not authorise anything that would result in a breach of the covenant. First, although each covenant must be construed according to non-technical meanings of words, there is Supreme Court authority for the proposition that the indefinite article 'a' in the phrase 'a private dwelling house' does not prevent construction of a second dwelling.[3] Second, although it is reasonable to infer, as submitted by the Applicants, that a future owner of lot 2 will construct a dwelling, an inference or likelihood is not the same as an authorisation.[4] The application does not authorise the construction of any building.[5] The creation of a building envelope is not an authorisation to construct a building.
4. The covenant does not prohibit the grant of a permit in respect of the application.

Neighbourhood character, DDO3 and residential subdivision standards

1. These topics relate to the most relevant provisions of the scheme that apply to the proposal.
2. At a strategic level, the creation of an additional lot in an established urban area is consistent with State and local policy and the purpose of the R1Z.
3. DDO3 aims to ensure development is consistent with the character and environmental values of a coastal village such as Somers. Relevantly, particular attention needs to be given to site conditions, including vegetation cover, established streetscapes, development patterns and protection of shared viewlines.
4. The proposal meets DDO3 requirements that lots must have an average size of 1,500 sq m and each lot must be able to contain a rectangle of 25 m by 35 m. Both these requirements are met.
5. The subdivision protects the Beach Hill Avenue streetscape because the battle-axe configuration ensures the dwelling is behind and below the existing house and because there is no additional crossover. The 6 m wide axe-handle means the driveway can be about 2.5 m from the west boundary, thus retaining a generous landscape buffer. Although some vegetation will need to be removed for the driveway, the subdivision design enables this to be kept to a minimum and hence a minimal impact to streetscape vegetation.
6. The subdivision is responsive to surrounding lot pattern because the land is at the interface between, and transitions between, the smaller lots of under 1,000 sq m to the west and southwest and the larger lots of about 3,000 sq m to the northeast, east and southeast.
7. DDO3 does not prohibit battle-axe lots. Battle-axe lots can, subject to good design, offer minimal streetscape impact. If the vacant lot is at the rear, as in this case, amenity impacts to abutting land need to be carefully managed. This is considered shortly. Battle-axe lots are part of the existing character because there are such lots to the east on both sides of Beach Hill Avenue.
8. The building envelope is located so that buildings will be at least 2.5 m from the western boundary, 4 m from the southern boundary, and about 17 m from the eastern boundary. These setbacks are a satisfactory response to existing setbacks in an interface location. Lot 2 is not located in an area of particular topographic difficulty (in the context of its surrounds) because the envelope falls less than 2 m from its northwest to southeast corners.
9. DDO3 includes various requirements for buildings. These do not apply in this proceeding because no building is proposed in the permit application. They will apply when, if an owner intends to build a dwelling on lot 2, a future permit application is made. Other provisions will also apply at that time, such as the clause 54 ResCode provisions.
10. One of the design objectives in DDO3 that must be considered in assessing subdivision is the protection of shared viewlines where reasonable and practical. At my inspection, I was able to confirm that the occupiers of the dwellings at 1 Beverley Hill Road and 87 Beach Hill Avenue both enjoy a southerly view of Westernport Bay from south-facing living rooms or decks and parts of the rear garden. However, Westernport Bay is about 600 m away. There is much sharing of these views given intervening housing. In both cases the view line or angle is both narrow and shallow mainly due to intervening vegetation, particulary the three tall pines near the rear boundary of 3 Beverley Hill Road.
11. It is difficult to assess the proposed impact on shared viewlines because the proposal to assess is the subdivision and not any building on lot 2. A more detailed assessment can be made when a permit application is made to construct a building in the lot 2 envelope. However, as I may consider the 'possible future development' of a proposed lot when assessing a subdivision,[6] it is reasonable to consider impact if a dwelling subject to the proposed conditions is constructed. In other words, the impact of a single-storey dwelling with a maximum height of 6 m constructed anywhere in the envelope. This assesses the impact of a possible building on a worst-case scenario.
12. In my view, the viewlines from the indoor and outdoor living areas at 87 Beach Hill Avenue are barely impacted by a possible dwelling and the outcome is not unreasonable. The viewlines from the outdoor living area (being the elevated deck) at 1 Beverley Hill Road are more affected. A dwelling constructed right into the southeast corner of the envelope is likely to limit, but not to remove, longer range views to Westernport Bay. Even if a dwelling were ultimately permitted to be built right to this corner, the occupants of 1 Beverley Hill Road will continue to enjoy a narrowed outlook that is framed by the proposed dwelling, the nearby pines and the intervening vegetation. In the context of views at a significant distance from the water, I do not consider this outcome unreasonable.
13. The subdivision responds satisfactory to local policies for vegetation and coastal landscape protection. The envelope is located more to the west and closer to the driveway (thus minimising driveway length and potential additional vegetation removal) and in an area of the subject land more established as lawn. The east and west side boundaries of lot 2 are well vegetated on either the subject land or the abutting land. The southern boundary is not so well vegetated. However, the 4 m setback from this boundary will enable landscaping, required under condition 1 of the notice of decision, to establish a vegetated screen to 7 Dover Court (to the south) that does not breach the covenant. Little of the vegetation to be removed is native vegetation. Its removal does not affect the character or values of the coastal landscape which is the main relevant objective of SLO2.
14. Finally, the scheme requires the subdivision to meet the residential subdivision objectives. In short, all those objectives are met.

1. The proposal will not lead to any off site amenity impacts because it is just subdivision. A building on lot 2 may cause such impacts, but the proposal does not include any building on this lot. As stated, I may consider the construction of possible dwelling on lot 2 when assessing the proposal. This assessment is, by necessity, of a speculative nature. A permit is required under the DDO3 provisions of the scheme to construct a dwelling on lot 2 and when an application is made, it can be carefully assessed.
2. However, the construction of a dwelling on lot 2 should be capable of being carried out in a way that causes no unreasonable off site amenity impacts because -
   • The envelope, although located in the southwest corner of lot 2, is setback from the south and west boundaries that means that ResCode standards for side and rear boundaries can be comfortably met.
   • The envelope is reasonably setback from adjoining dwellings - about 10 m from1 Beverley Hill Road, about 20 m from 3 Beverley Hill Road and about 18 m from 7 Dover Court.
   • A restriction of single storey construction at a maximum building height of 6 m will apply, and this will ensure that no dwelling that dominates its setting could be established.
3. One potential amenity issue is overlooking from a dwelling into the secluded private open space of 7 Dover Court. Such potential exists because a potential 6 m high wall on or near the south boundary of the envelope may include south-facing decking or windows (towards Westernport Bay) above and across that private open space. The northernmost 5 m of the private open space, west of the eastern edge of the envelope, is within the ResCode sensitive area. That 5 m area does not include an outdoor living area (which is closer to the northern side of the dwelling at 7 Dover Court) and is largely devoted to lawn, vegetable growing and fruit trees. I am satisfied that a reasonable outcome is possible given sensitive design.

1. For the above reasons, the decision of the Council will be affirmed.

[1] Mr Pursell did not apply to the Tribunal to review this condition.

[2] Planning and Environment Act 1987 s 61(4). An exception applies in this section that is not relevant in this proceeding.

[3] Tonks v Tonks (2003) 11 VR 124; [2003] VSC 195 at [17].

[4] Wade v Yarra Ranges SC [2005] VCAT 111 at [10].

[5] It also does not authorise the planting of any pinus radiata.