Victorian Civil and Administrative Tribunal|2002-06-07

Edilan Pty Ltd v Surf Coast SC & Anor [2002] VCAT 828 (7 June 2002)

Application under s. 80 of the Planning and Environment Act 1987; Surf Coast Planning Scheme; Residential 1 Zone; Alterations to Dwelling; Impact on Views.

Edilan Pty Ltd (substituted from Second Codora Pty Ltd)

The decision of the Responsible Authority is varied. Permit 00/0634 is directed to be amended by the Responsible Authority as follows:

s Condition 1(a)(i) is replaced with the following: "a maximum building height of 7.2 metres (that is RL17.65AHD based on the concrete level in front of the existing garage being RL10.45AHD)."

s A new Condition 1(a)(iii) is added as follows "all levels to AHD".

s Condition 2 is deleted and replaced with the following: "Within three (3) months of the date of completion of the development allowed by this permit, landscaping shown on the endorsed landscape plan must be completed to the satisfaction of the Responsible Authority and must thereafter be maintained to the satisfaction of the Responsible Authority".

Mr M May and Mr M Clarke appeared on behalf of the Applicant for Review and made oral submissions.

Mr B Schmeid, Planning Officer, appeared on behalf of the Responsible Authority. He made written and oral submissions.

Mr D Seeley appeared on his own behalf of a Respondent Objector and made oral submissions.

A number of plans, photographs and other documents were tendered to the Tribunal. All material has been considered by the Tribunal and is retained on file. The site and locality were inspected by the Tribunal subsequent to the Hearing. This included an inspection of the property at No. 18 Felix Crescent, owned by Mr Seeley. A frame was erected on the roof of the existing dwelling on the land, showing the height of the proposal as sought by the Applicant.

1. This is an Application under Section 80 of the Planning and Environment Act 1987 brought by Edilan Pty Ltd for a review of conditions included on Permit 00/0634 issued by the Surf Coast Shire Council ("the Council") on 22 November 2001. The Application for Review was lodged on 22 January 2002. The contested conditions are 1(a)(i), 2 and 4, although it was agreed between the parties that it the application incorrectly refers to condition 4 rather than condition 3.

1(a)(i) a maximum building height of 6m above natural ground level, defined as the concrete level immediately in front of the existing garage. The reduction in building height must be achieved in a manner consistent with the objectives of the Surf Coast Design and Colours Policy.

2 Landscaping shown on the endorsed landscape plan must be completed to the satisfaction of the responsible authority prior to the commencement of the use, and must thereafter be maintained to the satisfaction of the responsible authority.

3 The maximum height must not exceed 6m above natural ground level to the satisfaction of the responsible authority.

3. At the commencement of the Hearing, Mr Clark sought leave to amend the name of the Applicant to "Edilan Pty Ltd". There being no objection, I granted leave for that to occur in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

4. At the commencement of the Hearing, the parties agreed that the wording of condition 2 should be varied, as the use has commenced (is. an existing dwelling). The parties agreed on changes to the wording that are reflected in my order.

5. At the conclusion of the Hearing, I requested that survey information be provided confirming the height of the existing dwelling on the subject site, levels at nominated points across the site, and the ridge height of roofs on nominated adjacent and nearby sites. I agreed with the parties that once this information was obtained, I would arrange to visit the subject site and No. 18 Felix Crescent. Mr Clark agreed to mock up a frame to be sited on the roof of the existing dwelling showing the proposed ridge height of the addition (at 7.2 metres in height).

6. The survey information was received by the Tribunal on 29 May 2002, with an amendment by facsimile dated 31 May 2002. The site visit was conducted in the presence of representatives of the parties on 3 June 2002.

7. The subject site has an area of approximately 809 square metres with a frontage to The Esplanade of 20.12 metres. The land falls from the rear to the front. The site is currently occupied by three single level attached units. Unit 1 is to the front of the land. Two crossovers and driveways service the dwellings, with private open space to the south.

8. Surrounding dwellings along The Esplanade and in nearby streets are mainly detached houses of both single and double storeys. The residence owned by Mr Seeley, at No. 18 Felix Crescent, is a recently constructed double storey dwelling that gains views over the subject site to the north-east, east and south-east.

9. The Esplanade abuts the foreshore reserve to the east (Fisherman's Beach).

10. The proposal is to construct alterations and additions to the existing dwelling. The works include an additional bedroom and internal stairway leading to a second level. The second storey comprises three bedrooms, bathroom, living area, deck and spa. The deck area includes some fin screening devices along the west elevation. The deck is partly over the existing garage and is in two sections oriented to the east and south.

11. The maximum height of the proposal is 7.2 metres, which as required by Conditions 1(a)(i) and 3 is required to be reduced to 6 metres. The survey information shows the highest point of the roof at RL 17.65, being 7.2 metres above the height at the concrete level immediately abutting the garage [referred to in condition 1(a)(i) which is at RL10.45].

12. The roof form includes a higher section over the proposed upper level living areas (with highlight windows facing north) and a lower form over the rear bedrooms. A pitched roof is proposed. Materials and finishes include fibre cement sheeting, metal roof, metal balustrades and timber deck.

13. A draft landscape plan was tendered by Mr Clark.

14. The subject site is located in a Residential 1 Zone under the provisions of the Surf Coast Planning Scheme. No permit is required for the proposal in accordance with the provisions of the Zone.

15. A Significant Landscape Overlay applies to the land. Schedule 2 relates to Coastal Townscape Character. A permit is required to construct a building or carry out works, subject to some exemptions which are not applicable in this Application. In this case, a permit is required as the height of the addition exceeds 5 metres and the total building area exceeds 200 square metres or 35% of the land area. The statement of significance for SLO2 refers to the unique lifestyle within a natural bushland environment offered by coastal settlements within the Shire. The landscape character objectives to be achieved include:

s To protect and enhance the low density residential character and natural bush setting...

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

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

16. Decision guidelines reference a number of local policies within the Scheme.

17. Other Clauses of the Scheme that are relevant to the consideration of this Application and have been considered by the Tribunal include:

s State Planning Policy Framework - Clauses 14, 15 (Coastal Strategy and Design & Siting Guidelines), 16 and 19.

s Clause 22.05 (Surf Coast Design and Colours Policy);

18. The key issues in this Application are the impact of the proposed development on views from the Seeley residence and the relationship of the proposed addition to The Esplanade streetscape. I consider these matters having regard to the submissions made by the parties (as assisted by my inspection) and the policies and decision guidelines of the Scheme.

19. I briefly refer to the key provisions of the Scheme that guide my consideration of this Application for Review.

20. The Torquay area is addressed at Clause 21.10. An objective for Coastal Townscape Character at Clause 21.10-3 is " To maintain and enhance the distinct identity and coastal township character of Torquay-Jan Juc". Strategies include:

s Develop a `Surf Coast Design' manual and conduct a program of community education to encourage residents to consider and take up Surf Coast Design elements when planning and designing their houses.

s Apply a building height limit in Torquay-Jan Juc to retain the low rise coastal character of the landscape.

s Develop landscaping and thematic tree planting programs to improve the character of streetscapes and encourage property owners to undertake similar programs on private property.

s Ensure future design and landscaping of development along the Surf Coast Highway and coastal boulevards evoke a seaside, coastal and surf culture character and a depth of view where the town's surfing, commercial and civic functions can be recognised at a glance. In particular, ensure that land on the corner of Surf Coast Highway and Grossmans Road is developed with buildings that are architecturally superior, make a high quality outstanding entrance statement to the town and build on the emerging Surf Coast Design theme.

21. The Coastal Development Policy at Clause 22.01 policy applies (inter alia) to land within Schedule 2 to the Significant Landscape Overlay. This policy seeks to preserve the unique character, amenity and environmental features of coastal areas and townships along the Great Ocean Road by retaining native vegetation cover, protecting viewsheds from the Great Ocean Road and encouraging the development of distinctive building designs which distinguish Surf Coast from conventional urban and suburban areas. Of relevance are the following objectives:

s To minimise the visual impact of development having regard to building size, height, bulk, siting, site coverage and external materials and colours.

s To recognise that views form an important part of the amenity of a property and to provide for a reasonable sharing of views of significant landscape features, including views of the ocean, coastal shoreline and notable cultural features.

s To facilitate a range of housing types and densities which will accommodate a diversity of housing needs and household types while retaining the generally low density residential character of coastal towns.

22. Discretionary performance measures and policies are set out in the Clause. The Clause states that "the primary consideration is whether the proposal protects the key assets which distinguish coastal character in Surf Coast Shire from conventional urban and suburban areas".

23. In relation to building height, Clause 22.01 states:

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

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

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

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

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

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

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

24. In relation to view sharing, Clause 22.01 states:

s Buildings be sited and designed to achieve a reasonable sharing of views between properties of significant landscape features.

s The colour of the roofing material of all buildings be of subdued toning to blend with the natural bush environment and minimise the visual impact and glare of the roof when viewed from beyond the site.

25. Mr Schmeid submitted that the 6 metres height sought by the Council would achieve a reasonable sharing of views, as required by SLO2. He submitted that the dwelling at No. 18 Felix Crescent experiences some loss of views to the land from existing two storey dwellings fronting The Esplanade. The condition seeks to bring the addition below the horizon to protect the most significant view, being to the Mornington Peninsula and heads (in contrast to the views of the ocean and foreshore). Mr Schmeid submitted that the reduction in height could be achieved without a flat roof form, but would require a lowering of the wall height(s).

26. Mr Seeley described existing views from the residence at No. 18 Felix Crescent to Arthurs Seat, the coastline and heads. He submitted that the proposed works would significantly intrude into views from the first floor deck and living area and that this is contrary to the reasonable sharing of views sought by the SLO2. Mr Seeley submitted that other two storey dwellings facing The Esplanade have a lower roof height and sit below the horizon when viewed from the living room and east facing deck. Mr Seeley submitted that it is possible to design an addition to fit within the 6 metre height limit sought by the Council and noted that other views are available to the Applicant from the ground level of his existing dwelling.

27. In response, Mr May submitted that even at 6 metres there would be some loss of views from one deck, because the addition would not sit below the horizon when viewed from No. 18 Felix Crescent. Views of landform would remain, including to the heads. He also submitted that the height is impractical given the existing raised floor level of the ground level of the residence and that changes would result in the need for a flat roof form. He contended that in turn would impact a wider viewing cone and that such a form is not sought by the policies of the Scheme.

29. The principles set out in Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others 4 AATR 125, cited below, are of assistance:

(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; and

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

30. 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, it is also relevant to remark that 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.

31. There is no doubt that views contribute to the amenity of Mr Seeley's residence. The rear of the dwelling is oriented toward the north-east, east and south-east with expanses of glass associated with the open-plan living area/kitchen. There are two deck areas - one east-facing and one north-facing. Views are available to the foreshore, ocean and landforms. Those views are partly obtained over the subject site, particularly for the east-facing deck. Foreground views include the rear of houses along The Esplanade.

32. I accept Mr Seeley's submission that it may well be possible to design an addition within the 6 metre height as sought by the permit conditions.

33. The survey information and a framed-up portion of the proposed roof form (at the requested maximum height) have greatly assisted in this matter. [Presumably it would have been of assistance for the Council to have also sought survey and level information]. I have also had the benefit of viewing across the subject site from the decks and living areas in the dwelling at No. 18 Felix Crescent.

34. Views from the east-facing deck and living area/kitchen in No. 18 Felix Crescent towards Arthurs Seat are those most impacted by the proposal. Contrary to what is sought by the permit conditions, at a maximum of 6 metres views of Arthurs Seat would not be retained from the east-facing deck and living area/kitchen. At 7.2 metres, there is an additional loss of views to the distant landform when contrasted with 6 metres, although a wide viewcone remains. From the east-facing deck of Mr Seeley's dwelling, given the lower form of roof proposed over the bedrooms and northern section of the addition, views to the heads would remain. It is also relevant that views to Arthurs Seat from the north-facing deck of No. 18 Felix Crescent are not impeded by the proposed addition.

35. Taking into account the existing views from No. 18 Felix Crescent from both decks, the change presented by the condition on permit and the additional building height sought by the Applicant, I consider that a reasonable sharing of views is achieved with the roof height of the addition being between 6.1 - 7.2 metres as proposed by the Applicant. Conditions 1(a)(i) and 3 will be modified/deleted accordingly. I will also add a condition ensuring all levels to AHD be marked on the plans.

36. A concern raised by Mr Seeley was the relationship of the proposed addition to other dwellings in the streetscape. He submitted that the roof line of the addition would be higher than other double storey dwellings and that the existing character is single storey or low two storey forms.

37. In response, Mr May and Mr Clark referred to the number of two storey developments in the area and the emerging trend for substantial double storey residences. Mr Schmeid submitted that the additions would be a positive contribution to the streetscape.

38. I find that the proposed works would not have a significant or negative impact on the streetscape character. The dwelling height is below 7.5 metres referred to in SLO2. While the addition would be visible in the streetscape and may be marginally higher than some double storey residences nearby, it would sit comfortably among others in this part of The Esplanade with its mix of one and two storey buildings. The inclusion of a second storey at the height of 7.2 metres is reasonable in this context. The architecture of the addition is simple and seeks to reflect the existing dwelling. That is appropriate. I understand that colours and materials can comply with the policies at Clause 22.05. I agree with the Applicant that a flat roof form may not be desirable.

39. The addition would not be visually intrusive from public viewpoints, such as the foreshore opposite the subject site, as its scale and form is generally consistent with much residential development in the immediate locality.

40. The requirement for, and implementation of, a landscaping plan (consistent with Clause 22.06) would produce a net benefit.

41. I appreciate that views from the Seeley residence are highly valued; most residents in coastal townships such as Torquay are concerned to maintain and protect their views to landforms, the horizon and water. While I can understand the concerns raised by Mr Seeley and the Council, for the reasons set out above, I conclude that the requested variations to Permit 00/0634 are acceptable in terms of the policies and decision guidelines of the Surf Coast Planning Scheme.

For the above reasons, the Application is allowed and I will order that the decision of the Responsible Authority be varied.

Environment Act 1987

Edilan Pty Ltd v Surf Coast SC & Anor [2002] VCAT 828

At a glance

Court

Decision date

Source

Judgment (79 paragraphs)

Edilan Pty Ltd v Surf Coast SC & Anor [2002] VCAT 828 (7 June 2002)

Parties

Legislation Cited (1)