In permit application no. 04/1279, a permit is granted and is directed to be issued. The permit relates to the land at No. 7 Browne Street, McCrae. The permit will allow the development of a double storey dwelling on the land, in accordance with the endorsed plans and subject to the following conditions:

1

Before the use and development starts, amended plans must be submitted to the satisfaction of the Responsible Authority. When the plans are to the satisfaction of the Responsible Authority they will be endorsed and will then form part of the Permit. The plans must be drawn to scale with dimensions and three (3) copies provided, substantially in accordance with the plans submitted with the application (Revision C) but modified to show:

(a)

All levels shown to Australian Height Datum.

(b)

A landscape plan in accordance with Condition 3.

(c)

A schedule of all external materials, finishes and colours (including colour samples), showing the materials, colour and finish of all external walls, roof, fascias, window frames, glazing types, doors, fences, and paving. The roof must be of a non-reflective material.

2

The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be altered or modified for any reason without the prior written consent of the Responsible Authority.

3

Prior to the endorsement of plans referred to in Condition 1, a landscape plan prepared by a landscape architect or suitably qualified and experienced person or firm incorporating:

(a)

an accurate survey of all existing vegetation to be removed and retained and other natural features;

(b)

the area(s) set aside for landscaping;

(c)

a schedule of all proposed trees, shrubs and ground cover, which will include the location, number, size at the time of planting, height and spread at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;

(d)

paving, retaining walls, fence design details, and other landscape works including areas of cut and fill and finished site levels;

must be submitted to the satisfaction of the Responsible Authority. When the landscape plan is to the satisfaction of the Responsible Authority it will be endorsed and will form part of this Permit.

4

Landscaping as shown on the endorsed landscape plan must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

5

All landscaping works shown on the endorsed landscape plans must be maintained and any dead, diseased or damaged plant replaced, all to the satisfaction of the Responsible Authority.

6

The materials and colour of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

7

All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

8

A vehicular crossing must be provided to the standards of the Responsible Authority prior to the initial occupation of the building.

9

A driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority. It must be completed prior to the initial occupation of the building.

10

Any air-conditioning or cooling units, condensers and other plant and equipment must be baffled to prevent nuisance or annoyance to persons in nearby dwellings. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

11

To ensure compliance with this permit a licensed surveyor's report confirming the levels as shown on the endorsed plans with particular regard to the finished floor levels must be submitted to the Responsible Authority on completion of the relevant floor(s).

12

This Permit will expire if:

(a)

The development does not start within two (2) years of the issue date of this Permit; or

(b)

The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

Mr N Crawford, solicitor of Best Hooper. Evidence was called from Mr S Linke, town planner.

Mr W Horsfall, town planner of Habitat Planning for J R Howard, G Schober, D McMillan and D Kennison.

1

This is an Application under Section 79 of the Planning and Environment Act 1987 brought by Dr P Danby and Dr J Sloan against the failure of the Mornington Peninsula Shire Council ("the Council") to determine permit application no. 04/1279 within the prescribed time. The Application was lodged on 10 September 2004.

2

The subject site is located on the south but elevated side of Browne Street, north of the Mornington Peninsula Freeway and south of Pt Nepean Road. The land has an area of 828.5 square metres with a frontage to Browne Street of 20.96 metres. The land was part of a larger lot that extended to Waller Place and was subdivided in 1976. The site is occupied by a single storey dwelling positioned toward the rear of the land. A garage is at a second level. The land falls by some 5 metres from the rear to the front.

3

Lots to the north-west (at No. 9 Browne Street) and south-west (No. 5 Browne Street) comprise elevated dwellings. A double storey dwelling is located at No. 3 Browne Street. As a result of the topography, the dwellings to the south-east of the review site enjoy views toward the sea and near and distant coastline across the review site. Dwellings on the south side of Browne Street are generally set back to the rear of their lots presumably to gain outstanding views.

4

The Applicant proposes to demolish the existing building and erect a double storey dwelling in the same location. The proposed dwelling would contain four bedrooms, a study and living areas with the garage set at a lower level to the ground floor. The dwelling would range in height from 3.9 metres to 7.5 metres at the highest point. Some excavation is proposed, but is no greater than 1 metre. A flat but gently sloped roof is proposed. In general, setbacks to the ground and first levels would range from 2.2 - 2.64 metres along the eastern boundary and the minimum setback from the western boundary would be 1.3 metres. The setback from the rear would be a minimum of 1.35 metres. A draft landscape plan was tendered at the Hearing.

5

The following provisions of the Mornington Peninsula Planning Scheme ("the Scheme") are relevant to this Application:

•

The subject site is zoned Residential 1 under the provisions of Clause 32.01. A permit is not required to develop a dwelling in this case.

•

A Design and Development Overlay (Schedule 3 - Coast and Landscape Design) applies to the land. A permit is required to construct a building or carry out works associated with one dwelling on a lot including where the height exceeds 6 metres and wall height exceeds 5.5 metres. A permit is also required where excavation exceeds 1 metre. The provisions of Clause 54 of the Scheme are brought into consideration by the matters set out in the Schedule. A requirement is that a building not exceed 8 metres in height or contain more than 2 storeys. Design objectives are set out in Schedule 3 to the Overlay. They include:

•

To ensure that the design of subdivision and housing is responsive to the environment, landform, site conditions and character of coastal villages, hillsides 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.

•

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.

•

To ensure that subdivision and development proposals have proper regard to heritage values and coastal landscapes, including those of areas such as the Portsea Clifftop area, the Sorrento Heritage Precinct and the Ranelagh Estate in Mount Eliza.

•

Decision guidelines are set out in the Schedule, in addition to the decision guidelines at Clause 43.02. These decision guidelines have been taken into account by the Tribunal in reaching a determination.

•

A Vegetation Protection Overlay (Township Vegetation Schedule 1) applies to the land. A permit is required to remove vegetation except where a development is otherwise approved. It is only proposed to remove one hakea.

•

Other Clauses particularly Clauses 11, 14.01, 15.07, 15.09, 16.02, 19.03, 21.06, 21.07, 22.11 (fire protection policy), 22.13 (township environs local policy) and Clause 65 (general decision guidelines).

6

Melbourne 2030 has also been taken into account by the Tribunal.

7

I have considered all submissions presented and have inspected the subject site, three adjacent properties and locality. I do not recite all of the material presented, as the written submissions and evidence tendered are retained on file, although I do refer to some of the main points. I set out my findings in relation to the primary issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme.

8

The key issue relates to the height and mass of the proposed dwelling. The Applicant argued that the design is acceptable as proposed, while the Council contended that the design is acceptable if reduced by 0.5 metres. Respondent Objectors sought a reduction in height of 1.5 metres, or that a dwelling not exceed AHD 51.5 metres, for reasons relating to neighbourhood character (in terms of Clause 54 and DDO3) and an equitable sharing of views. I address these matters in turn.

9

First I refer to neighbourhood character and streetscape considerations.

10

Concerns raised by Respondent Objectors in relation to the neighbourhood character focussed on the scale, height and bulk of the proposed dwelling that was said to be incompatible with existing built form. The "obtuse box-like appearance" of the building was also criticised. Reference was made by Mr Horsfall to the character that is highly valued by residents and the failure of the proposal to preserve that character due to the building's height and architecture. The extent to which the form would depart from existing development and the 6 metre height limit referred to in DDO3 was raised.

11

In response, the submissions by the Council and Applicant contended that the dwelling is not too large or high, noting the rear elevation is around 5 metres above nature ground level then rising toward the front of the building. It was submitted that other dwellings nearby are equally large or larger and that they contrast with the older style buildings, often single storey, dating from the 1950s and 60s. Mr Crawford submitted that the building would be well articulated, would use materials that blend with the area and would be framed by trees (notably existing trees within the front setback) when viewed from the rear. Mr Crawford submitted that the building would not be visually obtrusive albeit it would be seen.

12

Having had an opportunity to inspect the area, I am not persuaded that the proposed dwelling would jeopardise the valued character or streetscape for the following reasons:

•

The dwelling is quite large but is not significantly greater than many other, new, dwellings in the DDO3 area near to the review site. The styling reflects elements of newer dwellings and is not alien.

•

Although the subject lot is smaller, and the sense of spacing around the proposed dwelling would be reduced, the presentation to the street would be with a foreground of existing vegetation and most views from the private realm to the rear would include vegetation framing part of the dwelling. Further landscaping on the lot can be achieved.

•

The proposed dwelling would be no more obtrusive or prominent than many others of a similar scale that can be seen in the locality.

•

The position of the proposed residence to the rear of the lot is typical of the area where such a position, up-slope, enables views to be maximised.

13

Consequently, I am satisfied that the proposal represents an acceptable outcome in terms of the character of the area and the objectives of DDO3.

14

I now refer to issues relating to off-site impacts particularly in terms of visual bulk/intrusion and a loss of views, which is really the crux of submissions in this Application. Indeed, as I have observed, the point of difference between the parties is relatively narrow, being whether the building should be approved as proposed or the height reduced (0.5 metre proposed by the Council or 1.5 metres proposed by Objectors if not otherwise re-positioned or excavated lower). In reaching my finding that the proposal is acceptable as put forward by the Applicant, I have been assisted by the various images tendered by the parties, survey material tendered by Mr Horsfall and my inspection of the review site and adjacent properties when height markers were in place.

15

The principles in Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others 4 AATR 125 are usually applied in relation to cases involving a loss of view, and are not in dispute between the parties:

a. There is no legal right to a view.

b. Views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account.

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

d. Added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.

16

In this case, there is no doubt that views form part of the amenity of the residences to the south-east and east. Moreover, the Scheme specifically addresses views including from the private realm, for example, in DDO3.

17

In Edilan[1] I said:

The provisions of the Planning Scheme place a significant emphasis on the importance of views to the amenity of private residences in coastal townships such as Torquay. However, ... although a dwelling may be constructed before another site is developed or over another existing structure and therefore is afforded a view over that land, there is nothing in policy to direct that this confers a right to the whole of the view in perpetuity.

18

Those comments, with my added emphasis, are apt to the circumstances of the current Application. The primary test is whether there is a reasonable sharing of views rather than a starting point that there should be no loss of view or no loss of views to features or landmarks from private properties.

19

The information before me and my assessment of the material clearly indicates that No. 5 Browne Street would experience the greatest loss in view, in terms of the viewing arc and protrusion of building above the horizon. Other properties at No. 3 Browne Street and No. 16 Waller Place would also be affected, but the building would sit lower and occupy less of the view cone to the sea and coastline. Although there would be an impact, I am satisfied that a reasonable sharing of views is achieved. Reasonable is about being fair, just or suitable in the circumstances. In reaching my conclusion that the outcome is fair, I state that I do not under-estimate the value that specific features in a view have to an individual -seeing a lighthouse, shipping channel or coastal headland may be important to an individual and it is not my intention to form a judgement as to which parts of a view can be rated more highly than another; the fact is that residents value their views and that is properly part of the amenity they enjoy.

20

I now explain my findings in more detail. I first refer to the impact on No. 5 Browne Street. The survey information relied upon by Mr Horsfall estimates that a view cone of 111 degrees is enjoyed from the deck of the dwelling, including to Port Phillips Heads and the southern shipping channel. The proposed development, at the height sought by the Applicant, would result in an interruption of 36 degrees removing views to the southern shipping channel and Heads as well as Pt Nepean. While there is some doubt as to the height at which the measure is estimated, I have assumed the figure to be correct as a more conservative estimate, given that if the measure is taken from lower than eye height standing then the impact would be reduced. The view cone would vary dependent on where one is standing on the deck or from within the dwelling.

21

While I understand that reducing the height of the new dwelling, moving it down-slope or narrowing the width would reduce the impact that is not the test to be applied. I am satisfied on the information before me that the outcome is one with a reasonable sharing of views. I can appreciate that the owner may not feel the outcome to be fair when the occupants of the proposed dwelling would have an uninterrupted view at what might be regarded as the expense of the property to the rear. Described at a basic level, one third of the view would be affected but two thirds would be retained based on Mr Horsfall's figures. A decision can not be taken on that criterion alone; that is too simplistic an approach and it is valid to consider what in the view would be removed. In this case it would include coastline and headlands as well as activity on the water. What would be retained would be views to shipping activity, albeit at a reduced level, coastline and the sea, both in closer and more distant views.

22

There would also, obviously, be a new building in the foreground but some 20 metres away at the closest point. Thus, although the outlook would clearly change, I am not persuaded that the outcome is unreasonable. In addition, it is not irrelevant that some of the existing views could be lost without the current proposal if vegetation on other lots was to grow in height. Moreover, the potential would still remain for the dwelling at No. 5 Browne Street to achieve an improved aspect by additional works at some time into the future.

23

I now refer to No. 3 Browne Street. This dwelling extends over two levels and the lower level would lose views to the coastline and most of the McCrae lighthouse. There would, however, be views to the horizon over the proposed dwelling as well as a much narrowed view to the lighthouse from one part of the deck. The impact would be reduced from the upper level of the dwelling on No. 3 Browne Street, although that is not a living area. While I again can well understand why the owner may not wish to see any loss of view, or a new structure in the foreground, the outcome of the proposed development, at a maximum height of 7.5 metres, I find achieves a reasonable sharing of views. The development would be a visible element but nestled to an extent into the vegetated setting.

24

I reach a similar conclusion in relation to the impact to the residence at No. 16 Waller Place. That is a modest single storey structure to the rear of the review site and would be least affected of the three dwellings owned by the Respondent Objectors. There would be a loss of view to the sea but no significant loss of views to the coastline or features such as the lighthouse and Port Phillip heads. The proposed dwelling would also be seen in the foreground but framed by vegetation and below the horizon.

25

Thus, although concerns expressed by the Respondent Objectors in relation to building height are genuinely and understandably held, I am not persuaded that there are grounds to reduce the height of the proposed dwelling either by 0.5 metre as sought by the Council or any greater dimension. Rather, for the above reasons, I find that the proposal represents an acceptable outcome having regard to the policies and decision guidelines of the Mornington Peninsula Planning Scheme. I will therefore allow the Application and order that a permit issue subject to conditions.

[1] Edilan Pty Ltd v Surf Coast Shire Council and Others [2002] VCAT 827 at page 7 at paragraph 30.