Larsson v Mornington Peninsula SC [2017] VCAT 444

Benjamin v Mornington Peninsula SC [2019] VCAT 997

Sprut v Stonnington CC [2012] VCAT 1675

Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954

Wu v Maribyrnong CC [2019] VCAT 1519

Chincilla Mountain Pty Ltd v Minister for Planning [2019] VCAT 190

Ostoljic v Greater Geelong CC [2020] VCAT 333

McDonald v Surf Coast SC [2021] VCAT 1123

SB&G - 40 Upper Heidelberg Road (Ivanhoe) Pty Ltd v Banyule CC [2018] VCAT 769

Zumpano v Banyule City Council [2016] VSC 420

1. Rod Larsson occupies a two-storey dwelling built around 1980 and located at the rear of an elevated lot in a residential area at Blairgowrie (the subject land). Some details of the subject land and the dwelling are set out in the Information section of this order.
2. The subject land is oriented to the north-east as shown on figure 1, below.

Source Written submissions on behalf of the Council, p 3

The outlook of the dwelling is to the north and northeast across to Port Phillip Bay (the Bay). The Bay foreshore is about 400 metres distant.[2]

1. Mr Larsson applied to Mornington Peninsula Shire Council (the Council) for permission under the Mornington Peninsula Planning Scheme (the planning scheme) to construct a two-storey lateral extension to the dwelling (the extension). The extension is constructed on the north-east side (ie the front of the dwelling).
2. The extension is a substantial building, extending the existing dwelling about 13 metres towards the street,[3] approximately doubling the dwelling's existing floor area and footprint.
3. One of the main purposes of the extension is to improve the outlook to the Bay.
4. The Council decided to issue a notice of decision to grant a permit subject to conditions. Daryl Degenhardt (the owner and occupier of abutting land at 16 Spencer Street to the rear of the subject land) and Esther Benjamin & Brian Benjamin (the Benjamins) (the owners and occupiers of abutting land along the southeast side boundary at 11 Jaanda Court) have separately applied to review that decision. These properties are also shown in figure 1.
5. Having regard to the main grounds relied upon by Mr Degenhardt and the Benjamins, the main issues in this proceeding, may be summarised as follows:

(a) Should a permit be refused because it is a 'classic repeat appeal'? > > (b) Is the extension prohibited because it exceeds the mandatory maximum building height in the planning scheme? > > (c) Does the development fail to protect shared viewlines? > > (d) Is the extension visually obtrusive or otherwise have an unreasonable amenity impact on dwellings in the area and, in particular, the dwelling at 11 Jaanda Court?

6. In summary, the answer to each of these questions is 'no' and I find that the extension is an acceptable planning outcome. I will affirm the Council's decision and grant a permit subject to conditions.
7. The reasons for this order are lengthy. Reasons of this length are highly unusual for a relatively modest development such as a dwelling extension.
8. However, this is an unusual case, in that the extension has been the subject of three proceedings over six years. This third proceeding required five days of hearing, evidence from four expert witnesses and complex argument about natural ground level and whether the extension complied with a mandatory maximum building height.

1. As stated, this is the third proceeding concerning Mr Larsson's proposed two-storey extension.
2. In 2017, the Tribunal refused to grant a permit in Larsson v Mornington Peninsula SC[4] (the first proceeding). In 2019, the Tribunal again refused to grant a permit in Benjamin v Mornington Peninsula SC[5] (the second proceeding). In both of these proceedings Mr Degenhardt and the Benjamins opposed permission being granted for the extension.
3. As with the second proceeding, this proceeding is a repeat appeal.
4. Having regard to the established principles for repeat appeals, I must consider the proposal in this (third) proceeding afresh, and on its merits, but to give 'significant' or 'great' weight to the Tribunal's previous decisions (ie those in the first and second proceedings).[6]
5. I am in an advantageous position to give weight to the decisions in the first and second proceeding because I constituted the Tribunal in the second proceeding. I did not constitute the Tribunal in the first proceeding, but I was required to consider the decision in the first proceeding as part of my determination in the second proceeding.

1. If I characterised this proceeding as a 'classic' repeat appeal, it would be open to me to give the decision in the second proceeding such weight such that a permit could be also refused in this proceeding.
2. This proceeding could be a classic repeat appeal if:

(a) There were no significant changes in the application itself. > > (b) There were no changes in the circumstances of the land and its surrounds. > > (c) There were no changes in planning policy. > > (d) There were no changes in the interpretation of the facts or law relevant to the Tribunal's consideration.

3. I emphasise 'could be a classic repeat appeal' because care must be taken to not apply these four principles 'in an overzealous manner'. The repeat appeal might be a correcting repeat appeal. As well, the new application must still be determined on its merits but, in so doing, giving great weight to the Tribunal's previous decision.[7]
4. On a careful consideration of these factors, I would not characterise this proceeding as a classic repeat appeal.

1. The floor plan and the elevations for the extension in the second proceeding are shown in figures 2 and 3 below.[8]

Figure 2 Floor plans of the extension in second proceeding

Figure 3 Elevations of the extension in second proceeding

1. The application in this proceeding is 'generally similar' to those in the first and second proceedings. This is shown by reference to the plans in this proceeding in figures 4 and 5, below.

Figure 4 Floor plans of the extension in this proceeding

Figure 5 Elevations of the extension in this proceeding

1. 'Significant' changes to a proposal does not mean a completely different proposal. A new proposal can be 'generally similar' to the previously considered proposal, as long as the changes are a 'genuine' attempt to address the Tribunal's reasons in refusing the previous proposal. A genuine attempt does not mean that the fresh application must be found to be a satisfactory outcome as to its merits but it does mean the attempt must be material and not merely superficial.
2. However, if after considering the new application afresh and on its merits, the Supreme Court has held that 'fairness demands that if a permit application is found to have satisfactorily addressed the matters raised in the previous Tribunal decision then there is a reasonable expectation that a permit will issue'.[9]
3. My main reasons for refusal of a permit in the second proceeding may be summarised as follows:

(a) On the evidence of Gary Martin, a land surveyor called by the Benjamins, I found that the natural ground level (the NGL) was below the existing surface of the land and that the building height exceeded the mandatory maximum building height of eight metres at the northernmost and easternmost points of the extension's roof by 1,100 mm and 300 mm, respectively.[10] > > (b) Accordingly, the affected (ie non-compliant) part of the footprint of the extension was not de minimis and was material. If the 'overall design and location of the roof of the extension' was retained, the building height of the extension would need to be lowered by a material amount in some locations and/or its northerly extent would need to be reduced.[11] > > (c) The limitations of Mr Martin's evidence meant that it was difficult to determine the extent of the footprint of the extension over which the mandatory maximum building height was not met. A fresh application would need to include 'more detail about [NGL] beneath the extension than [Mr Martin's] two cross-sections' so that the Council 'could be satisfied the [mandatory maximum building height] is met under all points of the roof of the extension'.[12]

4. The application in this proceeding is a genuine attempt to respond to my concerns, because the application to the Council included the following main changes.
5. First, the application included a 'geotechnical site classification investigation' report prepared by Chris Connelly, engineering geologist of Ground Science Pty Ltd (the Ground Science report). The investigation included analysis of eight boreholes of up to two metres depth at various locations below the extension.
6. Second, the application included a plan of 'levels and features' (the Charlton Degg surface levels) and 11 cross-sections showing existing surface levels and NGL (the Charlton Degg cross-sections). Both were prepared by Charlton Degg land surveyors and based on the Ground Science report.
7. Third, the application included photographs of the uncovered existing septic tank system and soak pits under the extension. It also included a copy of the original application for permit to install the septic system and associated plans, the installation instructions for the two soak pits and a copy of the Council's approval to construct the system.
8. This information was provided in response to my findings that the relevance of the original septic tank system beneath the extension to the question of NGL was inconclusive.
9. Fourth, the design of the extension was modified in various ways in the application, the main ones being:

(a) The maximum building height was reduced to 17.65 metres AHD, from 18.29 metres AHD in the first proceeding and from 17.94 metres AHD in the second proceeding. > > (b) The finished floor level of the upper floor was reduced to 14.45 metres AHD, from 14.70 metres AHD in the second proceeding. The finished floor level of the deck was also reduced to 14.45 metres AHD from 14.80 metres AHD in the second proceeding. The deck in its northernmost corner was cut back to include a one metre splay, although the depth of the deck was increased to 5.5 metres from 3.4 metres.

10. Fifth, the application included the erection of four height poles under the supervision of a land surveyor at locations indicated by me in the second proceeding to be preferred locations. The poles were available to the Council in assessing the application and to me in determining the proceeding.

1. There are no relevant changes to the land other than the new or updated information about site levels and sub-surface conditions to which I have referred.
2. There are no relevant changes to the land at 11 Jaanda Court. The only relevant change to the land at 16 Spencer Street is the almost-completed construction of a deck extension at a level above the existing deck at its southern end. I will refer again to this deck extension later in these reasons.

1. There are no relevant changes in policy since the date of the decision in the second proceeding.

1. Mr Larsson contends there has been a change in the interpretation of the law relating to what is 'natural ground level' since the decision in the second proceeding.
2. I will deal with that submission in the 'mandatory maximum building height' section later in these reasons.
3. The Benjamins contend that there is no change in the interpretation of the law relating to what is 'natural ground level'. They contend my decision in the second proceeding 'settled at law' what is the relevant NGL of the subject land and Mr Larsson's permit application is an impermissible attempt to 're-litigate' what is NGL.[13]
4. In a related submission, the Benjamins contend the Council is in 'contempt' of the Tribunal by 'repudiating' my decision in the second proceeding when it made its decision to issue the notice of decision that lead to this proceeding.
5. These contentions are misconceived.
6. I am not bound by my decision in the second proceeding. If, for example, the Supreme Court had made a later ruling contrary on what is NGL, I would be bound to follow it and to not follow any contrary ruling in the second decision. By way of another example, if other divisions of the Tribunal had made later decisions that did not follow my decision in the second proceeding, I could follow those later decisions if I preferred the reasoning in those decisions.
7. The criticism of impermissibly 're-litigating' the second decision is inapt having regard to the principles of repeat appeals. If there have been changes to the factors I have identified, the proposal in the new proceeding should not be refused on the grounds it is a classic repeat appeal.
8. A person is in contempt of the Tribunal in one or more of the relevant statutory circumstances.[14] The Council's conduct in its assessment and determination of Mr Larsson's permit application is not any of those circumstances. In particular, even if it can be said the Council did not follow my ruling on what is NGL when it determined the application, that is not a contempt of the Tribunal.

1. This proceeding is not a classic repeat appeal. The proceeding is a correcting repeat appeal having regard to the reasons in the first and second proceedings and the changes to the application in this proceeding to which I have referred. The proceeding must be considered afresh and determined on the merits of the submissions and evidence in this proceeding.

1. The question of whether the application in this proceeding complies with the mandatory maximum building height requirement in the planning scheme consumed most of the hearing time in this proceeding.
2. The relevant part of that requirement is that the building (in this proceeding, the extension) 'must have a maximum building height of no more than eight metres ...' (the requirement).[15]
3. At the request of the parties, the Tribunal raised a question of law at a practice day hearing on 15 September 2022. In essence, the question was whether the application complied with the requirement and

in determining the natural ground level of the relevant part of the subject land, whether the date for assessment of natural ground level is the date the permit application was lodged.

1. It is logical to deal with the second part of the question first and to deal with the first part of the question at the end of this section of the reasons.
2. The second part of the question is not framed satisfactorily. The real question, having regard to the submissions of the parties, is whether NGL in this proceeding is the surface level of the relevant part of the land on the date Mr Larsson lodged the permit application with the Council.

What is natural ground level for purposes of this application?

1. I start by referring to defined terms within the requirement. 'Building height' is 'the vertical distance from natural ground level to the roof or parapet at any point'.[16] 'Natural ground level' is not defined. 'Ground level' is 'the natural level of a site at any point'.[17] By previous decisions, 'ground level' has the same meaning as 'natural ground level'.[18]
2. As will be observed, 'natural' is a word that appears in the definitions of 'building height' and 'ground level'. There is divergent Tribunal authority on what is 'natural' in these contexts. I considered this divergent authority in Faversham Mews Pty Ltd v Boroondara CC.[19]
3. One line of authority is that the 'natural' level means the surface level of the relevant land at the date the permit application was lodged (the first line of authority).
4. The other line of authority is that the 'natural' level means the surface level of the relevant land before it was disturbed by human intervention for development such as excavation or filling (the second line of authority).
5. If I were to follow the first line of authority, it is not in dispute that the extension complies with the requirement. There is no part of the extension that is more than eight metres above the surface level of the land when the permit application was lodged.
6. In Faversham Mews, I followed the second line of authority. In doing so, I acknowledged there could be evidential difficulties from time to time, especially for longstanding interventions.[20] To overcome those difficulties if they arise in particular circumstances, I said it may be necessary to rely on inference, interpolation or extrapolation of levels.[21]
7. In the second proceeding, I also followed the second line of authority. Mr Martin, called by the Benjamins, was the only independent expert called to give evidence about NGL. The evidence relied on three borehole log results in a geotechnical investigation carried out for Mr Larsson by engineer Mr Oai of Civiltest Pty Ltd (Civiltest) in 2015 before the first proceeding.
8. Mr Oai gave evidence in the first proceeding. Mr Larsson called no expert evidence in the second proceeding. Mr Martin's cross-sections and his opinions about NGL were based on inference, interpolation or extrapolation. In short, I preferred Mr Martin's opinions to Mr Larsson's contrary submissions and found the extension exceeded the eight metre maximum building height at both the northernmost and easternmost corners of the extension's roof.[22]
9. Since the second proceeding, there has been neither amendment to the definitions of 'building height' or 'ground level' nor Supreme Court authority to clarify the meaning of 'natural' in NGL.
10. Mr Larsson invited me to decline to follow the second line of authority. In summary, he relied on:

(a) A number of Tribunal decisions since my decision in the second proceeding that have followed the first line of authority.[23] > > (b) The lack of evidence of any disturbance to existing surface levels since around 1980 when the existing dwelling and its septic tank system was constructed. > > (c) The design objectives of the clause of the planning scheme in which the requirement is located relating to ensuring development is responsive to 'landform [and] site conditions'.[24]

11. Mr Larsson also invited me to accept the opinion evidence of Mr Chapman, a qualified land surveyor and town planner. However, to the extent the question turns on the meaning of 'natural' in the relevant definitions, Mr Chapman's opinions cannot assist.
12. The Council accepted there is logic behind both lines of authority, but preferred the first line of authority because it 'represents a more equitable approach to enforcement and administration of the [planning scheme]'. The Council said the second line of authority imposes a 'significant burden' on permit applicants and the Council if the requirement was in contention.[25]
13. I am not persuaded to decline to follow the second line of authority that I followed in the second proceeding, for the following main reasons:

(a) The existing surface level of land when an application is lodged does not respond to the ordinary meaning of a 'natural' level. > > (b) Not all Tribunal decisions after the second proceeding have followed the first line of authority.[26] There remains divergent authority. > > (c) To the extent that the Council's preference and the later Tribunal decisions have both relied on the Supreme Court's decision in Shire of Gisborne v King,[27] I adopt my reasons in Faversham Mews about why Shire of Gisborne v King is not binding authority for present purposes.[28]

14. 'Burden' alone is insufficient reason to follow the first line of authority.
15. The Council is the author of the requirement and it can therefore be inferred that the Council preferred a mandatory provision. I remain of the view that the first line of authority leaves open the possibility of pre-application manipulation of surface levels, especially by filling. If the Council considered the 'burden' was such that it was very difficult to administer the planning scheme, the Council has the opportunity to prepare an amendment to the requirement.
16. I acknowledge the Tribunal in the first proceeding said there is a discretion to construe any pre-application filling of the land as forming part of the subject application and therefore maintaining the 'status quo' of NGL. In this proceeding, the Council agreed there was this discretion.
17. I am not attracted to accepting there is this discretion, mainly because:

(a) Permission may not be required for earthworks to fill relevant land so I do not understand how pre-application filling of the land could form part of an application. > > (b) Instead of providing certainty about the relevant level, it adds uncertainty if the filling was potentially undertaken many years before the making of the application.

1. In this section of the reasons, I summarise Mr Larsson's evidence in support of his submissions that the requirement is met having regard to what I prefer as the second line of authority on the meaning of NGL.
2. He relies on the permit application documents (including the drawings showing the building heights), the Charlton Degg surface levels, the Ground Science report, and the Charlton Degg cross-sections. He also relies on the expert opinions of Mr Connelly, Mr Chapman and Mr Leenstra.

1. On Mr Larsson's instructions, Ground Science conducted a new geotechnical investigation of the land beneath the extension. The investigation was supervised by Mr Connelly.
2. Mr Connelly's evidence emphasised the purpose was to help the Council (and the Tribunal, on review) determine NGL. He said:

Ground Science were originally engaged to only identify inferred fill and inferred 'natural ground' within the boreholes performed to assist in the determination of natural ground level. The term 'natural ground' refers to naturally recurring materials and soils within the subsurface profile and should not be mistaken with the 'natural ground level', or the level at which the natural form of the landscape existed prior to disturbance from manmade construction or earthworks.[29]

1. I agree with Mr Connelly's distinction between 'natural ground' and 'natural ground level'. Mr Holt concurred with this distinction. The distinction is an important one. It is one that the Benjamins insufficiently grasped.
2. The distinction can be illustrated by considering when a surface level undisturbed by human intervention is excavated and then filled to a point above or below that surface level. The level at the base of the fill in that example is below NGL and is not NGL at that point. The Benjamins incorrectly claimed, in my opinion, that the fill level at Civiltest borehole 3, being 1,100 mm below the existing surface level, was NGL. I will return to that borehole later in these reasons.
3. Civiltest had previously dug three boreholes in land under the extension. Ground Science dug eight boreholes in different locations.
4. As shown in figure 6, below, Ground Science boreholes 1, 2 and 5 were below the upper floor of the extension in this proceeding, Ground Science boreholes 3 and 4 were below the roof eave overhanging the upper floor deck, and Ground Science boreholes 6, 7 and 8 were below the upper floor deck.

Figure 6 Location of Ground Science boreholes 1 to 8

Source: Chris Connelly, statement of evidence dated 21 October 2022 - Appendix A, Geotechnical classification report dated 10 March 2020 (in these reasons, the 'Ground Science report')

Note: Existing dwelling footprint shown in pink; existing tree cover shown in green; lawn & hard surface area in extension footprint shown in purple

1. I will not set out the detailed results on the Ground Science borehole log results. It suffices to state that fill levels ranged between 5 cm and 40 cm. There was penetration refusal at borehole 5 at 30 cm depth. Before refusal, there was fill below 5 cm of topsoil. Mr Connelly said that refusal was likely due to reaching septic tank infrastructure and the fill was septic tank backfilling.[30] I will refer in more detail to this infrastructure later in these reasons.
2. I will also record that the Ground Science report carried out a number of 'dynamic cone penetrometer' tests. They can reveal lower relative densities of natural materials and thus can provide more confidence about the true extent of fill even if fill is not imported.

1. The Charlton Degg cross-sections are based on the Ground Science report
2. Figure 7, below, shows the location of the 11 cross-sections. Seven of them cross the land below the extension in a northwest to southeast orientation and four cross in a southwest to northeast orientation.

Source: Charlton Degg cross-sections p 1 (Tribunal Book p 482)

1. The cross-sections show 'estimated NGL' (marked as 'ENGL') as either the level of undisturbed ground beneath fill in Ground Science boreholes 1 to 8 or lines of the same level shown diagrammatically based on uniform levels of fill across the land.
2. In the latter case (ie lines of the same level), estimated NGL is based on interpolation or extrapolation of the kind I referred to in Faversham Mews and which I accepted in relation to Mr Martin's evidence in the second proceeding.[31]
3. The cross-sections also show 'estimated structure height' being the distance between ENGL and top of structure (ie top of upper floor roof or top of balcony balustrade) at various points along the cross-section. This height equates to estimated 'maximum building height'.
4. It suffices to reproduce two of the cross-sections. Figure 8, below, shows cross-section 'M-N'. It crosses Ground Science borehole 3 and between Ground Science boreholes 7 and 8. I include it because it reveals the point along all the cross-sections at which the estimated maximum building height is at its greatest ie 7.95 metres.

1. Figure 9, below, shows cross-section 'G-H'. It crosses near Ground Science boreholes 1 and 5. I include it because it crosses the land in the vicinity of the septic tank and soak pits.

1. For completeness, the maximum estimated structure height along cross-section 'A-B' is 7.51 metres, along 'C-D' is 7.78 metres, along 'E-F' is 7.80 metres, along 'G-H' is 7.18 metres, along 'I-J' is 7.10 metres, along 'K-L' is 7.63 metres, along 'M-N' is 7.95 metres, along 'O-P' is 7.84 metres, along 'Q-R' is 7.90 metres, along 'S-T' is 7.13 metres & along 'U-V' is 7.88 metres.
2. In all cross-sections, the maximum estimated structure height does not exceed eight metres.
3. If I am satisfied that ENGL in the cross-sections accurately represent NGL, the requirement is met along all points of each cross-section.
4. Mr Holt accepted that the Ground Science report and the Charlton Degg cross-sections were prepared according to normal professional standards.

1. The Council commissioned geotechnical engineer Timothy Holt of A S James Pty Ltd to prepare a peer review report of the Ground Science report and the Charlton Degg cross-sections to assist the Council in assessing the permit application.[32]
2. Mr Holt has considerable experience and knowledge of ground conditions on the Mornington Peninsula.
3. Figure 10, below, shows the Civiltest and Ground Science borehole locations in Mr Holt's peer review report.

Figure 10 Borehole locations (Civiltest in green and Ground Science in red). This figure also shows locations of additional boreholes recommended by Mr Holt shown in yellow within a rectangular part of extension footprint bordered in red dashed line.

Source: Mr Holt, peer review report (2 July 2021), p 5

Note: In oral evidence, Mr Holt conceded an error in identifying Civiltest boreholes 1 & 2 (shown in green) and they should be reversed.

1. On the basis of the Civiltest investigations and Ground Science reports, Mr Holt agreed the subject land beneath the extension had been filled with imported/disturbed material to a maximum depth of 40 cm below the existing surface, but with deep fill of about 110 cm below the existing surface at Civiltest BH3 (incorrectly shown as BH2 in figure 10).
2. The Council did not call Mr Holt to give evidence. As stated in the Information section of this order, Mr Holt attended the hearing and gave evidence in response to a summons issued at the request of the Benjamins.
3. Having regard to his qualifications and experience, his evidence is expert evidence in the field of geotechnical engineering.

1. In this section of the reasons, I refer to the main grounds on which Mr Degenhardt and the Benjamins rely in submitting the cross-sections should not be accepted as either accurate or sufficient and therefore do not prove the requirement is met.

1. Mr Degenhardt and the Benjamins claim Mr Larsson commissioned the collecting and analysis of an insufficient number of boreholes in the Ground Science report.
2. In part they relied on my comment in the second proceeding that a fresh application would need 'more detail about [natural ground level] beneath the extension than [Mr Martin's] two cross-sections'.[33] They contended that only three of the eight boreholes were beneath the outer walls of the extension and five were beneath the partly-roofed balcony.
3. In part, they relied on the definition of ground level being the natural level of a site 'at any point' which, in a repeat appeal at which NGL was and remains a central issue, required a more comprehensive investigation.
4. I do not accept the claims. It is always possible to do more investigation. Although Mr Connelly and Mr Holt conceded more boreholes could have been done and would have been helpful, I find the additional investigation by Ground Science was sufficient in respect of borehole numbers for the size and circumstances of the extension's footprint.
5. The reference in the definition to 'any point' does not infer a need to investigate every point beneath a building in some kind of fine-grained chequerboard approach.

1. Mr Degenhardt and the Benjamins claim the additional Ground Science boreholes omit investigation of a critical area. They rely on Mr Holt's evidence expressing uncertainty about the Civiltest BH3 result.
2. Mr Holt said the fill at Civiltest BH3 'may be localised ... due to backfilling of the (assumed) septic tank' at that location.[34] Mr Holt was unsure it was 'localised' (and unsure a septic tank was encountered at Civiltest BH3) because it was close to a Moonah tree that Mr Leenstra identified was at least 80 years old.
3. Mr Holt went on to say the fill might not be localised if NGL was at the same level as the tree, but also said NGL at Civiltest BH3 might not be the same as the tree due its location on 'a dune and significant variations in the level of the natural ground can occur over very short lateral distances on a dune'.[35]
4. The uncertainty led Mr Holt to say the fill at Civiltest BH3 'could' extend to a larger area being the rectangle within the dashed red line in figure 10 where he recommended three additional boreholes.
5. The Council did not commission Mr Holt or ask Mr Larsson to carry out this additional investigation. Mr Degenhardt and the Benjamins were critical of the Council in not following Mr Holt's recommendation, particularly as Mr Holt conceded this was unusual in peer reviews he had carried out for the Council.
6. I do not accept Mr Degenhardt's and the Benjamins' claims.
7. First, I had the benefit of Mr Larsson's further evidence (not available to the Council when it made its decision in this proceeding) about the location and design of the septic tank infrastructure in the relevant septic tank approval granted by the Council's predecessor in 1980.
8. The approval shows the location and dimensions (in width and depth) of a 3,200 litre all-waste tank and two connecting soakage pits. Mr Holt's evidence about sand stability in excavating for the tank and soak pits and in common practice at the relevant time was persuasive, as was the resulting excavation dimensions. I also had the benefit of observing the location of the tank and soak pits that had been uncovered for my inspection.
9. Second, Mr Holt had not viewed the septic tank evidence before completing his peer review. Upon the opportunity to consider it at the hearing, he resiled from his description of Civiltest BH3 as an 'anomaly'.
10. Although he was unsure whether Civiltest BH3 was plotted correctly in the Ground Science report (and his peer review), he was now more confident that NGL at Civiltest BH3 was not at the fill level (110 cm below the existing surface) and not the same as the ground at the base of the Moonah tree. That confidence was further underlined by his fortified opinion, based on local experience regarding sand dunes on the Peninsula, of significant variations in NGL over short lateral distances.
11. Ultimately, Mr Holt was less concerned about the need for additional investigation in the so-called critical area.
12. Third, the septic tank approval diminishes the doubt that the fill level in Civiltest BH3 was localised.
13. Fourth, the septic tank approval and Mr Holt's evidence casts doubt on the accuracy of the opinions about NGL in Mr Martin's cross-sections in the second proceeding.
14. Fifth, the Council's reluctance to commission or require the additional testing was sound because of the septic tank evidence and Mr Holt's opinions. As well, I accept that having regard to the Ground Science cross-sections, the Council correctly identified that Mr Holt's 'rectangle' was not an area in which compliance with the requirement was in serious doubt.

NGL is a 'uniform' 40 cm below the existing surface

1. Mr Degenhardt and the Benjamins claim the Ground Science report identifying NGL at between 5 cm and 40 cm across the new boreholes should be interpreted conservatively as a uniform 40 cm across the land beneath the extension.
2. If these claims are accepted, the requirement would not be met at a minimum of seven points based on the Charlton Degg cross-sections.
3. The claims rely on what they said was an agreement by Mr Holt, under cross-examination, that NGL could be a uniform 40 cm below the existing surface based on his review of the investigations.
4. I do not accept Mr Degenhardt's and the Benjamins' claims. Mr Holt's evidence was more nuanced and conditional than as stated in their claims. In my opinion, Mr Holt said under cross-examination that NGL 'could' be a consistent 40 cm below existing surface levels, but there would be variations due to dune undulations and due to logging practices. He said those practices may lead to results that are not 'absolutely accurate'.
5. Due to the tentative and conditional nature of Mr Holt's evidence on this point and due to the nature of his instructions (including not being engaged to inspect the land beneath the extension or carry out additional investigation), I give more weight to the results in the Ground Science report.

Borehole 5 is not at the septic tank infrastructure

1. Mr Degenhardt and the Benjamins claim the auger refusal at 30 cm at Ground Science BH5 due to 'likely' contact with septic tank infrastructure is unreliable. They claim the actual result could, in fact, be greater than 30 cm and could result in non-compliance with the requirement at that location.
2. Mr Degenhardt and the Benjamins rely on a combination of the Civiltest investigation, Mr Holt's opinions about the accuracy of the plotting of the Ground Science BH5 location and various photos taken at the time of the Ground Science investigations.
3. I do not accept the claims. To some extent they rely on speculation. I accept that boreholes may not be located with absolute accuracy on figures 6 and 10. However, the claims have not persuaded me that the doubt is such that I should prefer them over the results in the Ground Science report.

1. Mr Degenhardt and the Benjamins refer to the retaining wall up to 110 cm high near the northwestern side boundary with 23 Revell Street. Its northeastern extent is close to Ground Science BH2.
2. They claim the 5 cm fill above NGL is patently inaccurate and cannot be explained given the height of the retaining wall and the historical photographs of that location in Mr Degenhardt's affidavit.
3. I do not accept the claims. Under cross-examination, Mr Connelly and Mr Holt stood by the accuracy of the Ground Science results. Mr Holt said he did not doubt the result at Ground Science BH2 having regard to his earlier evidence about dune undulations on the Peninsula. The historical photographs lack probity, as I found in the second proceeding.

1. Finally, Mr Degenhardt and the Benjamins claim many of the maximum building heights on the Ground Science cross-sections are just under eight metres.[36] They claim the results have insufficient margin for error and some actual heights could exceed eight metres. They asked me to take a conservative approach, particularly as Mr Holt agreed borehole logging practices may lead to results that are not 'absolutely accurate'.
2. I accept the maximum building heights are close to eight metres. However, on the basis that Mr Holt agrees the Ground Science investigation was conducted to accepted professional standards, the claims do not rise to the level at which I could find the requirement is not met.

1. The Ground Science report and the Charlton Degg cross-sections provide additional evidence about ground conditions, including fill levels and NGL, at relevant locations under the extension footprint. I accept that no investigation is perfect and more investigation can always be conducted and may be helpful.
2. Nonetheless, the opinions of Mr Connelly, Mr Holt and Mr Chapman give me comfort the additional evidence is sufficiently reliable.
3. The maximum building height of the extension complies with the requirement and the extension is not prohibited by the planning scheme.

1. A design objective in the planning scheme is 'to protect shared viewlines where reasonable and practical'.[37]
2. Another design objective is to avoid visual obtrusiveness, particularly in terms of a silhouette above a skyline or existing tree canopy when viewed from surrounding properties.[38]
3. In this proceeding, the northeastern viewline to the Bay is shared by the occupants of both Mr Degenhardt's dwelling and Mr Larsson's dwelling (the shared viewline).[39]
4. I do not need to set out the relevant principles in case law about view sharing because they are well established.[40]
5. In the first proceeding, the Tribunal refused a permit largely because it was reasonable and practical to protect the shared viewline and the extension failed to adequately protect that viewline. The top of the roof ridge of the extension was 18.29 metres AHD. The Tribunal suggested non-binding changes to the extension that might provide sufficient protection of the viewline.[41]
6. In the second proceeding, there was some difficulty in understanding the effect of the changes suggested in the first proceeding.[42] I made no findings about view sharing in the second proceeding because of my findings about the mandatory maximum building height of the extension. In the second proceeding, the roof ridge was lower at 17.90 metres AHD.
7. In this proceeding, the roof ridge has been lowered again to 17.65 metres AHD. At the Council's direction, Mr Larsson erected surveyor-certified height poles at the four corners of the extension's roof to assist the Council's assessment.[43] The Council carried out a comprehensive viewlines assessment with the benefit of the height poles.[44]
8. Having conducted my own inspection, I accept the results of the analysis that the extension will not intrude beyond (ie above) the existing tree line from the standing position at or within the vicinity of the outer edge of Mr Degenhardt's rear deck. That means there will be no intrusion into views of the water in the Bay itself (ie from the horizon to the tree line) in both a vertical and horizontal perspective from those locations on the deck.
9. The particular reference in the design objective about avoiding intrusion above 'an existing tree canopy' is therefore met.
10. A view of one of the poles on the southeastern side of the extension's roof from a standing position in a central position on the deck at 16 Spencer Street and some metres back from the edge of the deck is shown in figure 11, below.

Figure 11 One of the views to height poles from the rear deck at 16 Spencer Street

1. From the various photographs in the Council's assessment, the Council prepared an image of the built form of the extension from the same viewing point as shown in figure 11. While the image quality is not high, it does assists in confirming the built form sitting below the tree line and not obstructing the view of the Bay beyond the tree line. This built form image is shown below, at figure 12.

Figure 12 Extent of built form in the extension shown in red from a viewing point at a standing position on the rear deck of 16 Spencer Street, being the same viewing point as shown in figure 11

Source: Written submissions on behalf of the Council, p 26

1. Mr Degenhardt's case is that although he accepts the extension is relatively small (in absolute terms above the existing roof), it will be obtrusive and will interrupt into a narrow and therefore valuable shared viewline, even if it does not protrude the tree line.
2. If a permit is to be granted, Mr Degenhardt seeks two conditions.
3. The first condition is a 300 mm reduction in the maximum height of the ridge in the extension ie to 17.35 metres AHD. This reduction is not reasonable because it goes beyond what is necessary to protect the shared viewline.
4. In making that finding, I have also taken into account that Mr Degenhardt has taken steps to improve his appreciation of the shared viewline by recently constructing an elevated section (in the form of a viewing platform of about two metres square) on the southeastern edge of his deck. From my inspection, the elevation above the existing deck is material at around one metre.
5. Accordingly, even if there is some loss of the shared viewline from the deck as it existed in the first and second proceedings, that loss in this third proceeding is reduced having regard to the newly constructed elevated section of that deck.
6. The second condition is a prohibition on roof top infrastructure, such as solar panels, that 'impose' on the shared viewline. The condition is unreasonable and vague. Some infrastructure would have little or no impact. The Council has adequately dealt with the concern in condition 13 of its notice of decision. The condition provides:

No further building and works or services normal to a dwelling, except those specifically required under the Building Act 1993, may exceed the building heights shown on the endorsed plans without the further permission of the Responsible Authority.

1. Accordingly, the Council can consider via a secondary consent whether any roof installations are appropriate after considering the impact on the shared viewline.
2. In conclusion, the extension is an acceptable response to the view sharing objective, subject to the secondary consent condition to which I have referred.

1. In this section of the reasons, I consider the Benjamins' submissions that the extension is unreasonably visually obtrusive. In the previous section of these reasons, I have considered Mr Degenhardt's submissions about visual obtrusiveness.
2. The relevant design objectives are to consider whether the 'bulk, location and appearance will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area' and 'whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs ...'.[45]
3. As I stated in the second proceeding, two of the planning scheme's 'general requirements' are a non-mandatory maximum wall height of 5.5 metres and a building height of 6 metres.[46] The application again does not meet these general requirements. If a permit is to be granted to vary the general requirements, the scheme provides that, in effect, the decision maker must be satisfied that compliance is 'unreasonable or unnecessary' and that 'no significant loss of amenity will result'.[47]
4. In the second proceeding, it was unnecessary for me to make any findings on this issue.
5. In relation to bulk and appearance, the extension in this proceeding differs little from that in the second proceeding. The main differences are probably the lowered overall height and the extended depth of the upper floor deck.
6. I am not persuaded the extension will be unreasonably visually obtrusive.
7. First, the extension is in keeping with the character of the area and there are many dwellings of similar scale and form to the dwelling at 13 Jaanda Court if extended in accordance with this application.
8. The height poles show parts of the extension will appear above the tree canopy from some locations (but not 16 Spencer Street, as considered in the previous section of these reasons) but this occurs in a similar manner to other dwellings. It will have no adverse impact from the street given the setback of more than 40 metres, its elevated position and intervening vegetation.
9. Second, the Benjamins' concerns about visual bulk impact from 11 Jaanda Court focus on its appearance from the dwelling's upper floor deck which largely faces the street and the Bay beyond, but is designed and constructed to enable views to the north towards the subject land and the extension.
10. The Benjamins refer to what I discern is cumulative obtrusion having regard to recent development at 9 Jaanda Court. The Benjamins describe the extension as creating an unreasonable 'tunnel' effect with the extension and development at 9 Jaanda Court projecting forward of 11 Jaanda Court.
11. This concern is overstated and I do not find it reaches the level of being unreasonable. The existing projection of 9 Jaanda Court and the proposed projection of the extension beyond the leading edge of the dwelling at 11 Jaanda Court are both relatively modest and to describe the impact as putting 11 Jaanda Court in a 'tunnel' is an exaggeration. The primary outlook of 11 Jaanda Court is towards the street and Bay and the lateral outlook towards the extension is secondary.
12. Third, the Benjamins have a secondary visual bulk concern about the extension at ground level. The impact is not unreasonable because most of the extension at ground level is open undercroft parking and most of it is opposite non-sensitive outdoor spaces at 11 Jaanda Court such as the dwelling entry.
13. Fourth, the Benjamins have a related concern about looking into the undercroft area and viewing what they describe as 'unattractive rafters' and seek the construction of a solid wall enclosing the undercroft area where it faces 11 Jaanda Court. This concern is also overstated, is an existing situation (in relation to the existing dwelling at 13 Jaanda Court) and a wall would add to visual bulk.
14. Fifth, I do not accept that the materials and finishes contribute to visual obtrusion. There was no dispute that the extension complies with the general requirements relating to the external building materials having muted tones and low reflectivity.[48] I accept Mr Chapman's opinion that the finishes are consistent with the policy directions of the planning scheme.[49]

1. I will briefly refer to two other grounds relied on by the Benjamins.

1. The Benjamins claim Mr Larsson and the Council have misrepresented the impact of the extension on existing trees, particularly trees located beneath the proposed upper floor deck.
2. Mr Larsson and the Council accept that some pruning of those trees will be necessary to accommodate the deck. The Benjamins contend some or most of those trees will die due to excessive pruning.
3. The Council states no permission is required to prune or remove trees directly impacted by the extension. The Benjamins have not persuaded me that permission is required. That being the case, the Benjamins' claims are irrelevant in a legal sense.

1. The Benjamins claim the extension will unreasonably impact on the privacy primarily of two ground floor bedrooms and a living room that have windows facing the subject land.
2. It is a requirement relating to the provision of the planning scheme under which permission is required for the extension that the extension meet the objective of the planning scheme relating to privacy.[50] That objective is to limit views into existing secluded private open space and habitable room windows.[51]
3. Having regard to the design of the extension, those impacts do not arise, because:

(a) Part of the existing upper floor living area is converted as a bedroom with a southeast-facing window towards 11 Jaanda Court. The objective is met for this window because it has a sill no less than 1.7 metres above the floor. > > (b) The southeast-facing window in the upper floor rear bedroom is an existing situation and is not part of the application. > > (c) The extension's upper floor living room has no southeast facing window. > > (d) The new deck has a 1.7 metres high balcony screen on its southeast-facing edge. The objective is met having regard to its height and its proposed maximum 25% transparency.

4. The Benjamin's privacy concerns are not so much related to overlooking from new habitable room windows and new balconies but to movement of people and vehicles near the shared side boundary around the carport, undercroft area and new dwelling entry.
5. The concerns emanate, in part, from the boundary having no solid fencing. The concerns are unreasonable or irrelevant because, first, they are not relevant to the privacy provisions of the planning scheme and, second, they are an existing situation.

1. I have already referred to the conditions Mr Degenhardt and the Benjamins requested. Before the end of the hearing, I gave them further opportunities to make submissions about conditions, in the event I ultimately decided to grant a permit.
2. The conditions in the Council's notice of decision are reasonable. No modifications are required.

1. For the above reasons, I will affirm the Council's decision. I will grant a permit subject to the conditions in the Council's notice of decision.

The development of dwelling additions and alterations and associated works in accordance with the endorsed plans

1. The layout of the land, the size and type of the buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

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

1. Prior to the initial occupation of the dwelling external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.

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

1. The trees retained on the subject site and adjoining land must be protected from damage during development in compliance with the tree management process, tree protection zones and tree protection measures (including the erection of tree protection fencing) contained in Australian Standard AS 4970-2009 Protection of trees on development sites.
2. Any pruning of trees must be undertaken to the minimum extent necessary by a qualified arborist in compliance with the procedures and practices described in AS 4373-2007 Australian Standard pruning of amenity trees.
3. The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and are advised of any obligations in relation to the protection of those trees.
4. No trenching or soil excavation is to occur within the Tree Protection Zones of retained trees unless shown on the endorsed plans without the prior written consent of the Responsible Authority. No vehicular or pedestrian access, storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.

1. Prior to the initial occupation of the development, all required privacy screening devices shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.

1. All sewerage and sullage waste must be discharged into a reticulated sewerage system to the satisfaction of the Responsible Authority prior to the occupation of the dwelling.
2. Any existing waste water disposal system located on the subject site must be desludged, cracked and backfilled prior to use of the development.

1. To ensure compliance with this permit a licensed surveyor's report confirming relative levels as shown on the approved plans with particular regard to the finished floor levels and roof levels must be submitted to the Responsible Authority within 14 days of the completion of the relevant floor(s) and roof. Floor levels and roof levels must not exceed those shown on the endorsed plans.
2. No further building and works or services normal to a dwelling, except those specifically required under the Building Act 1993, may exceed the building heights shown on the endorsed plans without the further permission of the Responsible Authority.

1. This permit will expire if the development is not completed within four years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the Responsible Authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed 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] Jaanda Court runs approximately southeast from the corner with Revell Street. The subject land is rectangular and on the southwest (or inland) side of the street. It therefore faces northeast. In these reasons, its street frontage is referred to as the northeast boundary, the rear boundary as the southwest boundary and the two sides boundaries as the northwest and southeast boundaries.

[3] This dimension includes a 5.5 metres deep balcony.

[4] [2017] VCAT 444 (Wright SM).

[5] [2019] VCAT 997 (Code SM).

[6] 'Great weight' was the expression used in Sprut v Stonnington CC [2012] VCAT 1675 [18] (Dwyer DP); approved in Zumpano v Banyule City Council [2016] VSC 420.

[7] Sprut v Stonnington CC [2012] VCAT 1675 [12]-[18].

[8] It is unnecessary to include plans and elevations of the additions relating to the first proceeding.

[9] Zumpano v Banyule City Council [2016] VSC 420 [24] (Garde J).

[10] Benjamin v Mornington Peninsula SC [2019] VCAT 997 [22], [71], [75] ('Benjamin').

[13] Written submissions on behalf of the Benjamins [25], [38].

[14] Victorian Civil and Administrative Tribunal Act 1998 s 137(1).

[15] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0.

[16] Mornington Peninsula Planning Scheme cl 72.01.

[17] Mornington Peninsula Planning Scheme cl 73.01.

[18] See eg Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 [14].

[19] [2016] VCAT 1954 ('Faversham Mews').

[23] Wu v Maribyrnong CC [2019] VCAT 1519 [36]; Chincilla Mountain Pty Ltd v Minister for Planning [2019] VCAT 190 [47]-[48]; Ostoljic v Greater Geelong CC [2020] VCAT 333 [10]; McDonald v Surf Coast SC [2021] VCAT 1123 [34]-[35].

[24] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0.

[25] Written submissions on behalf of the Council [96]-[97].

[26] SB&G - 40 Upper Heidelberg Road (Ivanhoe) Pty Ltd v Banyule CC [2018] VCAT 769 [24].

[27] [1994] VicRp 23; [1994] VR 364.

[28] Faversham Mews (n 19) [44]. The Benjamins made detailed and persuasive submissions about why Shire of Gisborne v King is not binding authority, which were broadly consistent with my reasons in Faversham Mews.

[29] Chris Connelly, statement of evidence, p 3-4.

[30] Chris Connelly, statement of evidence, p 5.

[31] Extrapolation of NGL must be approached with care. Extrapolation over longer distances between boreholes carries more risks. The Charlton Degg cross-sections are generally over shorter distances that the Martin cross-sections.

[32] Timothy Holt, A S James Pty Ltd, Peer Review - Existing Ground Level v Natural Ground Level 13 Jaanda Court, Blairgowrie, dated 2 July 2021.

[33] Benjamin v Mornington Peninsula SC [2019] VCAT 997 [79].

[34] Timothy Holt, A S James Pty Ltd, Peer Review - Existing Ground Level v Natural Ground Level 13 Jaanda Court, Blairgowrie, dated 2 July 2021, p 4.

[36] I have specified the actual heights earlier in these reasons.

[37] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, fifth objective.

[38] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 1.0, sixth objective.

[39] The dwelling at 11 Jaanda Court has a viewline to the Bay but it is not shared with the subject land.

[40] See eg Charlton v Mornington Peninsula SC [2017] VCAT 1770 [27]-[28].

[41] Larsson v Mornington Peninsula SC [2017] VCAT 444 [28].

[42] Benjamin v Mornington Peninsula SC [2019] VCAT 997 [85]-[90].

[43] The height poles respond the inadequacies in the height poles erected in the second proceeding to which I referred to the reasons in the second proceeding.

[44] Tribunal Book pages 649-683. The assessment included 71 photographs, most of which were of the viewline from the rear deck of 16 Spencer Street.

[45] Mornington Peninsula Planning Scheme cl 43.02-6 dot point 4 & cl 43.02 sch 2 cl 6.0, fourth objective.

[46] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, General requirements.

[47] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, Permit required.

[48] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, General requirements.

[49] Matthew Chapman, statement of evidence [40].

[50] Mornington Peninsula Planning Scheme cl 43.02 sch 2 cl 2.0, Permit required, third dot point.

[51] Mornington Peninsula Planning Scheme cl 54.04-6.