Elg v Surf Coast SC [2015] VCAT 498

1. The decision of the Responsible Authority is set aside.
2. In permit application 14/0152 a permit is granted and directed to be issued for the land at 43 O'Donohue Road, Anglesea in accordance with the endorsed plans and on the conditions set out in Appendix A. The permit allows:
   • Construction of a dwelling, construction of a fence more than 1.5 metres in height and removal of native vegetation.

Mr Stephen Foster, Land Use Planning Program Leader.

For Fabiano, Moreno & Lillana Mazzocco, Lorena Ferri, Louise & Stuart Galloway

Mr Chubb Fadgyas, Town Planner of Fadgyas Planning Associates Pty Ltd.

Construction of a double storey dwelling, construction of a fence and removal of native vegetation.

Application under Section 79 of the Planning and Environment Act 1987 to review the failure to grant a permit within the prescribed time[1].

Cl. 42.03-2 (Remove, destroy or lop any native vegetation in SLO3).

Cl 43.02-2 (Construct a fence of more than 1.5 metres in height in DDO19).

Cl. 43.05-2 (Construct a building or construct or carry out works. It includes modifications to standards A3, A4, A5, A10, A11 and A19 in NCO3).

Cl. 44.06-1 (Construct a building or construct or carry out works associated with accommodation in BMO).

Clauses 10, 11, 12, 13, 15, 16, 21.02, 21.03, 21.11, 22.02, 52.06, 52.47, 54 and 65.

The review site is located on the eastern side of the street, one lot south of Eleventh Avenue. It has a frontage of 21.35 metres, a depth of 22.46 metres along the northern boundary, a depth of 26.33 metres along the southern boundary, a rear boundary of 21 metres and a total area of 512 square metres. Site fall is approximately 1.2 metres from the rear north east corner to the front south west corner.

The review site is the front lot of a battleaxe subdivision which also included realignment of the boundaries of the lots containing 41 O'Donohue Road and 62 Eleventh Avenue.

The 4 metre wide access driveway to the rear battleaxe lot is positioned along the southern boundary of the review site.

Both lots are currently vacant except for scattered vegetation.

I undertook an inspection on the afternoon of the hearing.

1. The permit applicant has appealed against Council's failure to make a decision within the prescribed time. Neighbours in the two adjoining properties at 41 O'Donohue Road and 62 Eleventh Avenue have lodged statements of grounds opposing the grant of a permit.
2. The permit application is seeking approval for the construction of a double storey dwelling. Ground level contains three bedrooms, bathroom, laundry, store, lounge, entry and double carport. First floor is located largely above the ground floor and contains a master bedroom and ensuite, lounge, kitchen and dining. A large deck accessed from the lounge/dining area is positioned above the carport below and provides westward and southward views to the coast and sea. At its closest point the dwelling is located 3.95 metres off the northern boundary, 4.54 metres off the eastern boundary, 3 metres off the southern boundary and 2.9 metres from the front boundary. Timber paling fences are proposed along the rear eastern boundary and along parts of the northern and southern boundaries. The front boundary will remain unfenced but is largely hidden from the street by vegetation along the road reserve.
3. Following lodgement of the application for review, Council has decided to oppose the application on four grounds. All relate to the Neighbourhood Character Overlay (NCO) or the variations to Clause 54 standards introduced by Schedule 3 to the NCO. These grounds are:
   1. The proposed development is contrary to Clause 54.03-1 (ResCode), Standard A3, Street Setback, Surf Coast Planning Scheme.
   2. The proposed development is contrary to Clause 54.03-3 (ResCode), Standard A5, Site Coverage as modified pursuant to Clause 43.05-3, Schedule 3 to the Neighbourhood Character Overlay - Anglesea Residential Areas, Surf Coast Planning Scheme.
   3. The proposed car storage facilities forward of the dwelling are contrary to the Statement of Neighbourhood Character under Schedule 3 to Clause 43.05, the Neighbourhood Character Overlay - Anglesea Residential Areas, Surf Coast Planning Scheme.
   4. The proposed design is contrary to Schedule 3 to Clause 43.05, the Neighbourhood Character Overlay - Anglesea Residential Areas, Neighbourhood Character objective to protect residential amenity by achieving a reasonable sharing of views.
4. Mr Fadgyas' submission on behalf of the two neighbouring property owners was that the proposal is too big. In essence it will unacceptably impact on blue water views from 41 O'Donohue Road and effectively eliminate the already limited views from 62 Eleventh Avenue. It will create unacceptable visual mass in backyards and the limited street setback will restrict landscaping opportunities to soften the impact of the visual bulk.
5. Ms Sincock on behalf of the permit applicant rejects criticisms raised by Council and neighbours. She submits that the dwelling is consistent with the NCO3, that it will sit comfortably within the streetscape and that compliance with the modified ResCode standards for site coverage and plot ratio, and to retain views from 62 Eleventh Avenue, would inappropriately and unnecessarily constrain any dwelling on the review site. She also submits that given the topography of the site and the intervening vacant residential lots sited directly in front of existing seaward views, it would not be reasonable to expect such views to be maintained in perpetuity.

WHAT ARE THE RELEVANT PLANNING SCHEME PROVISIONS?

1. The land is included in the General Residential 1 Zone and affected by four overlays. A permit is not required under the General Residential 1 Zone as the lot exceeds 500m2 in area. However permits are required to remove, destroy or lop any native vegetation in the Significant Landscape Overlay (SLO3), to construct a fence in Design and Development Overlay (DDO19), for buildings and works under the Neighbourhood Character Overlay (NCO3) and for buildings and works associated with accommodation in the Bushfire Management Overlay (BMO).

1. The site is within a serviced and long established coastal subdivision on the western fringe of Anglesea. Clause 11.05 recognises Anglesea as a settlement in the Geelong regional growth plan.
2. State planning policy[3] supports additional development within subdivided and serviced residential areas provided it:
   • Is sensitively sited and designed.
   • Achieves good urban design.
   • Improves safety, diversity and choice.
   • Ensures that sensitive landscape areas are protected.
   • Does not detract from natural qualities such as coastlines.
   • Ensures that development respects the character of coastal settlements.
3. There is also recognition in policy that planning should ensure that all development responds appropriately to its landscape, valued built form and cultural context. Elsewhere there is policy to avoid or minimise environmental hazards and to prioritise the protection of life over other policy considerations in areas at risk from bushfire.
4. Local policy at Clauses 21.02 and 21.03 reflect the themes of State policies including the sensitivities of development in coastal settlements such as Anglesea, the need to respond to local character and the risk of suburban style development threatening that valued character.
5. The Anglesea Strategy at Clause 21.11 identifies key issues and influences and lists a series of objectives and a large number of strategies under the themes of:
   • Settlement, Built Environment and Housing.
   • Environment and Landscape Values.
   • Economic Activity.
   • Community and Physical Infrastructure.
   • Implementation.
6. The strategies for Settlement, Built Environment and Housing, and for Environment and Landscape Values are most relevant to this proposal. In essence they seek to maintain the low density non-suburban coastal character, retain the sense of houses dispersed in a bush setting, limit the footprint and size of buildings to avoid excessive visual bulk, retain the openness between properties by discouraging solid fences, maintain an informal appearance to roads and driveways, retain and enhance native vegetation cover, particularly indigenous species, encourage a reasonable sharing of views of scenic landscape features from private land and apply the SLO to residential areas to protect native vegetation.
7. Policy at Clause 22.02 seeks to protect and enhance the individual landscape character of each town, promote the development of co-ordinated and visually pleasing streetscapes in residential, commercial and industrial areas and encourage ecologically and economically sustainable streetscapes and landscapes. The policy also requires a landscaping plan when native vegetation is to be removed.

1. The SLO3 seeks:
   • To Reinforce a landscape character that comprises:

- A low scale, non-suburban residential environment dominated by native vegetation, where the built form is visually recessive in the landscape and contained in a bushland setting.

- Viewsheds of natural landscapes including the ocean, cliff tops, Point Roadknight, Anglesea River, and the natural bush and heathland surrounding the town.

• To protect and enhance the native indigenous vegetation cover, and protect the flora and fauna values of local nature reserves and surrounding public lands from the effects of urban development.

1. Two native canopy trees are to be removed as part of this application and a permit is required for their removal.

1. Subject to some exemptions, the DDO19 requires a permit to construct fences over 1.5 metres in height. Because the proposal includes 1.8 metre high timber paling fences along the rear boundary and along parts of the southern and northern boundaries to create a secluded and secure private yard, a permit is required for their construction.

1. It is the NCO3 that has the most significant influence on the buildings and works components of this application. In summary, the NCO3 seeks to identify areas of existing and preferred neighbourhood character and then ensure that development respects the neighbourhood character. There are 11 neighbourhood character objectives of which nine are relevant to this proposal:
   • To preserve and enhance the low density non-suburban coastal village character of Anglesea and retain the sense of houses in a bush setting.
   • To retain and enhance the existing cover of indigenous vegetation with particular emphasis on Messmate Stringybark and Coastal Moonah Woodland species, where this does not increase bushfire risk.
   • To encourage development and infrastructure that retains a non-suburban and informal appearance, reflective of the coastal character of the town and its bushland/heathland environment.
   • To maintain a sense of space around buildings to support the preservation and reestablishment of vegetation that enhances screening of the development from adjoining properties and public areas, and to enable the creation and management of defendable space for bushfire protection.
   • To maintain a low profile building height that minimises the visibility of buildings in the broader landscape, particularly where the vegetation canopy height is low or a site is prominently located.
   • To ensure that buildings are sited and designed to avoid protruding over or above ridgelines or form a silhouette against the sky when viewed from the Great Ocean Road or any other significant viewing point.
   • To protect residential amenity by achieving a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, the Anglesea River and surrounds and natural bushland in the hinterland.
   • To encourage development that is well designed with a lightweight coastal image and avoids a typical suburban or historic replica appearance.
   • To encourage the use of natural colours as opposed to strong, bold or dark colour schemes to allow buildings to blend with the natural surroundings.
   • ...
   • ...
2. The NCO3 modifies six Clause 54 standards - street setback (A3), building height (A4), site coverage (A5), side and rear setbacks (A10), walls on boundaries (A11) and design detail (A19).

1. A permit is also required for buildings and works associated with accommodation in the Bushfire Management Overlay (BMO).

1. Based on my response to the material accompanying the application and presented at the hearing, I consider that the key questions to be decided are as follows:
   1. Is the proposal consistent with relevant planning policies and the NCO3 neighbourhood character objectives and decision guidelines?
   2. Is the double storey dwelling an acceptable response to the site context and the modified Clause 54 standards in the NCO3?
   3. Would there remain a reasonable sharing of coastal and ocean views?
   4. Is the removal of two native trees and construction of paling fences acceptable, and have bushfire risks been managed appropriately?

Is the proposal consistent with relevant planning policies and the NCO3 neighbourhood character objectives and decision guidelines?

1. Council's four reasons for opposing the development all relate to specific aspects of the Neighbourhood Character Overlay - street setback, site coverage, car storage and sharing of views - which Council submits are not satisfied (being contrary to the NCO3). I deal with each of these individual areas of non-compliance later in my reasons.
2. I consider it is important to consider the NCO3 in its entirety before discussing those four quite specific areas of non compliance.
3. The statement of neighbourhood character recognises that Anglesea is typified by a low density vegetated character and that dominance of vegetation over the built environment and the informal relationship between private and public realms contributes highly to that character. The preferred character is based on the positive aspects of the existing character and include:
   • A strong native bush landscape setting dominated by an indigenous tree canopy within which sit visually recessive, unobtrusive buildings that are screened by vegetation.
   • Buildings have a low profile building height, small footprints and large setbacks, which affords a sense of space between buildings.
   • Buildings adopt a contemporary coastal style of architecture, with reference to classic older style beach houses, utilising simple built forms and roof styles; a diverse range of natural, visually lightweight materials (e.g. timber), glazing and decks; and subdued colour schemes that blend with the vegetation.
   • Driveways and car parking areas are recessive in the streetscape and have an informal appearance.
   • Many properties have no boundary fences and where fencing does exist it is generally limited to post and wire.
   • The residential amenity is enhanced by views of natural features such as the ocean, coastline, river and hinterland from public and private spaces.
4. The difficulties in applying these character descriptions is that they are very generalised and not reflective of the gradual changes that have and are occurring in built form across Anglesea. I observe that new dwellings often have a different character and tend to have larger footprints, smaller setbacks and higher profiles than the original, more modestly sized dwellings first constructed in this part of Anglesea. The new and mostly large dwellings along Melba Parade and in Eleventh Avenue are indicative of the generally larger and more substantial dwellings that are now being constructed within Anglesea. Most are also of two storeys to take advantage of ocean views, have larger footprints and are not necessarily of the low profile designs referred to in the preferred character statement.
5. One notable difference between many of the new dwellings and the one proposed on the review site is that they are on much larger lots. As a result they can much more readily achieve low site coverage, large boundary setbacks and space to retain and plant vegetation as sought by the NCO3. Clause 21.11 (objective 1 and related strategies) draws that link between subdivision lot sizes and development density, or more accurately, intensity of development or built form. Although not relevant to this application, the minimum 800m2 subdivision lot size specified in DDO19 for this part of Anglesea reinforces that link between lot size and intensity of development.
6. Although it is now past history, the subdivision to create two small lots, one behind the other, does limit the ability to construct new double storey dwellings while still achieving the outcomes sought by the NCO3. The small size of these two lots will inevitably result in development which will have a much more intensive character than on the larger lots in the area. Even a relatively modestly sized, double storey dwelling such as proposed on the review site cannot physically provide the more spacious setting possible on larger lots in the area such as at 156 and 168 Melba Parade or even the dwelling at 41 O'Donohue Road.
7. It is also instructive that even though those dwellings are on larger lots, they have been, in many instances, built very close to one or more boundaries, with tall double storey profiles and relatively large footprints. The footprint of the proposed dwelling and its double storey form is generally consistent with nearby dwellings. The minimum 3 to 5.67 metre setbacks from the rear and side boundaries on the review site provides more scope for landscaping than on nearby sites where some setbacks are very small.
8. Although the character statement refers to a landscape dominated by an indigenous tree canopy, that character varies across Anglesea, with some areas containing far more tree canopy than others. I also observe that existing tree canopy and the planting of taller canopy trees can actually be counter productive because it has the potential as it grows to block all views of the coast and ocean. My inspection and the photos tabled at the hearing confirm that taller canopy trees on the review site and other private and public land are already partly blocking views from 41 O'Donohue Road and 62 Eleventh Avenue. In the absence of regulations requiring vegetation to be trimmed below a certain height, then taller vegetation could well block most views from these dwellings, particularly those set behind dwellings positioned in the 'front row' directly opposite the coastal reserve.
9. I have previously made reference to the outcomes sought by Clause 21.11 and the aim to preserve and enhance the distinctive low density, non suburban coastal character of Anglesea and the use of DDO19 to set minimum lot sizes. I later discuss front setback and site coverage, but I consider that a dwelling with a ground floor footprint of approximately 117m2 (or 162m2 including the carport) is not an excessive intensity of development on a site of 512m2. The dwelling adopts a modern skillion style design which has a lightweight coastal image consistent with the objectives in NCO3 and strategies for Objective 1 in Clause 21.11.
10. The landscape plan identifies the driveway as having an exposed aggregate concrete driveway. I accept that this may provide a more robust surface than gravel, but I am concerned it may appear too formal and suburban. Council's draft conditions refer to 'all-weather seal coat, gravel or crushed rock'. My preference would be gravel or crushed rock rather than concrete.
11. Based on my assessment, I have concluded that the proposal is consistent with the preferred neighbourhood character outcomes contained in the NCO3 and that it is not contrary to the broader built form and landscape outcomes sought by Clause 21.11.

Is the double storey dwelling an acceptable response to the site context and the modified Clause 54 standards in the NCO3?

1. Six Clause 54 standards are modified by NCO3 - street setback (A3), building height (A4), site coverage (A5), side and rear setbacks (A10), walls on boundaries (A11) and design detail (A19). I note that these standards, despite being called standards, are not mandatory because of the use of the word 'should' rather than 'must'.
2. Of the six, Council submits that the proposal does not meet street setback and site coverage. 41 O'Donohue Road has a setback of 2.8 metres to the front deck and tall nib wall and 5 metres to the wall. The dwelling to the south at 47 O'Donohue Road is separated from the review site by the driveway to the battleaxe lot behind the review site. It has a setback of 7.4 metres to the deck and 9.8 metres to the wall. Council submits that the setback on the review site should be 7.4 metres. Ms Sincock instead submits that the setback should be 5 metres based on the setback of the front wall of the only adjoining dwelling at 41 O'Donohue Road. I agree with her assessment.
3. The front wall of the dwelling is setback 9.134 metres and would meet the A3 standard. However the carport and deck above protrudes to within 2.9 metres of the front boundary in the north west corner of the site.
4. Ordinarily I would not find such a small setback acceptable. However, in this site context it both reflects the small setback of the deck of the dwelling to the north and positions the most visually bulky part of the building, being the front wall of both the ground and first floors, at a setback beyond 9 metres. The closest section of the building to the frontage is one storey in height with a balustraded deck above and roadside vegetation effectively screens the front of the dwelling from the street.
5. Although Council was critical of the carport located in front of the dwelling as being contrary to the NCO3, positioning the carport with the entrance at right-angles to the road and hidden behind vegetation very effectively limits any views of the carport or parked vehicles. Although positioning the carport forward of the dwelling façade is discouraged in the decision guidelines of the NCO3, the actual site context and design means that it is acceptable. It is also the case that achieving a larger setback of 7.4 metres as suggested by Council would either severely constrain development or result in car storage facilities being much more visible from the street without any benefit to the O'Donohue Road streetscape.
6. On balance, I find that the proposed front setback and position and orientation of the carport to be acceptable and would not reject the application because of these aspects of the proposal.
7. The other area of concern for Council with the modified Clause 54 standards is site coverage and, in particular, hard surface coverage and plot ratio. Site coverage including the deck is 32%. This satisfies the modified standard which is that the site area covered by buildings should not exceed 30%, or 35% where the percentage of building exceeding 30% is unroofed deck only.
8. Hard surfaces should not exceed 40%. Council says it is 60% and Ms Sincock agrees that the proposal exceeds the 40% modified standard.
9. She also agrees with Council that the plot ratio at 0.55 or 0.58 exceeds the modified plot ratio standard of 0.4.
10. I have already commented that one of the difficulties in constructing a dwelling on this small site, which will be replicated on the site behind, is that the area is relatively small compared to those for most lots in this part of Anglesea and over which the NCO3 applies. I have already discussed this issue earlier in my reasons but reiterate that on lots of approximately 750 square metres it would be relatively easy to fully comply with the modified Clause 54 standards whilst still constructing a four bedroom dwelling such as proposed in this application.
11. Despite the non compliance with these two aspects of site coverage, it should be remembered that the development does comply with the modified standards for building height (A4), side and rear setbacks (A10), walls on boundaries (A11) and design detail (A19). It also achieves the other component of the modified site coverage standard of not more than 35% coverage.
12. Given the overall level of compliance with these Clause 54 standards, I would not reject this application because of the extent of hard surfaces and plot ratio, and consider that an appropriate balance has been struck.

Would there remain a reasonable sharing of coastal and ocean views?

1. The protection of existing ocean and coastal views is the primary concern of the residents of 41 O'Donohue Road and 62 Eleventh Avenue. One of the objectives of the NCO3 is to protect residential amenity by achieving a reasonable sharing of views of significant features, including views of the ocean and coastal shoreline and natural bushland in the hinterland.
2. At the hearing I was presented with diagrams that variously sought to demonstrate the extent of views that would remain from 41 O'Donohue Road and 62 Eleventh Avenue if the dwelling on the review site was constructed in the position shown on the application plans.
3. I was also referred to relevant Tribunal cases dealing with views, including Tashounidis[4] and Healy[5], where the Tribunal set out a series of 'principles' to guide an assessment about view sharing. In Healy, Senior Member Marsden restated those principles as follows:

(b) Views form part of the existing amenity of a property 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) In addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) Added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

1. Although application of these principles provides a consistent way of dealing with view sharing in individual cases, ultimately it is necessary to undertake a site inspection to assess the particular impacts applying to any given proposal.
2. I undertook that inspection immediately after the hearing. Based on that site inspection I consider that the proposal does provide for a reasonable sharing of views from 41 O'Donohue Road and 62 Eleventh Avenue. In the following sections I deal with each property separately.

1. The coastal and ocean views from the first floor deck and living areas at 41 O'Donohue Road are in two directions - south over the review site towards an expanse of Bass Strait and west along the coast towards Aireys Inlet.
2. The properties along the eastern side of O'Donohue Road are directly opposite the coastal reserve. In effect they have a 'front row' view to the west over the coastal reserve without any intervening dwellings or vacant private land. In contrast, the views to the south do not enjoy a 'front row' position because of intervening private properties and dwellings. Unlike many coastal areas, the land in the vicinity of the review site is relatively level so that there is not the same opportunity for dwellings to be positioned upslope of the dwellings in front so that coastal views are not restricted.
3. For 41 O'Donohue Road, the views southwards are through trees and over and around houses positioned closer to the vegetated coastal reserve. Westward and south westward views are over vegetation in the coastal reserve and some views are blocked by vegetation and higher ground in the coastal reserve.
4. Based on my site inspection and the sight lines tabled at the hearing, I consider that construction of the proposed dwelling will still allow a reasonable sharing of views, although I acknowledge that the proposed dwelling will significantly block southward views over the review site. Given that the southward views are not 'front row', I consider it unreasonable that development on the review site should be constrained to retain such views. Although the sight line diagrams tabled at the hearing suggest that some very limited southward views will remain, I suspect that in time these views will be lost as new buildings and taller vegetation occur on intervening sites closer to the coastal reserve.
5. In making these observations, I acknowledge that the existing views to the south do contribute to the level of enjoyment and amenity for the residents in this dwelling but that westward and south westward views will remain.

1. The views from 62 Eleventh Avenue are quite limited by existing vegetation and dwellings positioned between 62 Eleventh Avenue and the coast and ocean. Photos tendered at the hearing and confirmed by my inspection show that the views from the first floor deck and living areas of 62 Eleventh Avenue are primarily southward over the vacant land immediately behind the review site and to the south west over the northern half of the review site.
2. I note that the new dwelling at 168 Melba Parade effectively splits the southern view line from 62 Eleventh Avenue into two - one to the east and one to west of the dwelling. The eastern view will not be affected by the proposed dwelling although the eventual construction of a dwelling on the vacant site directly south of 62 Eleventh Avenue will largely block all southward views except for a small sliver likely to remain between the proposed dwelling on the review site and any dwelling on the vacant site immediately south of 62 Eleventh Avenue. The assessment of a new dwelling to the south can only take place when a permit application is lodged for that site.
3. In contrast, development on the review site has the potential to almost entirely block views to the south west. Mr Fadgyas tabled a sight line diagram that identifies the main view from 62 Eleventh Avenue as being in this direction. Although the diagram suggests that the views are uninterrupted that is not the case. Existing foreground vegetation, including the existing 6 metre high Flowering Gum (Tree 1), 7 metre high Victorian Ironbark and 6 metre high Messmate (Tree 3), already block south westward views across the review site. Other vegetation on private land, along the O'Donohue Road reserve and in the coastal reserve further restrict views so that in reality, coastal views across the review site are quiet confined to narrow view corridors. Photos tendered at the hearing demonstrate that it is possible to obtain a narrow view between vegetation towards Aireys Inlet and the Split Point Lighthouse, although these two zoomed photos exaggerate the view that can be obtained with the naked eye.
4. Unlike the properties along O'Donohue Road or along Melba Parade, properties along Eleventh Avenue do not enjoy a front row position. As noted, intervening lots contain houses and vegetation which already significantly limit coastal views. I consider it is unrealistic and unreasonable to expect that the two vacant lots will not be built upon given the residential zoning, minimal site constraints and existing residential development in the locality.
5. I acknowledge that the existing, primarily south and south west views do contribute to the level of enjoyment and amenity for the residents in the dwelling at 62 Eleventh Avenue. However, I consider it is unreasonable to expect those views to be maintained given that 62 Eleventh Avenue does not enjoy a 'front row' position, the topography is relatively flat and vacant residential land should be allowed to be developed for dwellings consistent with other such dwellings in the area, including those at 41 O'Donohue Road and 62 Eleventh Avenue.

Is the removal of two native trees and construction of paling fences acceptable, and have bushfire risks been managed appropriately?

Native tree removal and the Significant Landscape Overlay

1. Only two native canopy trees are to be removed as part of this application. These are a 6 metre high Flowering Gum (Corymbia ficifolia) midway along the front boundary and a 6 metre high Messmate (Eucalyptus obliqua) midway along the rear boundary. Mr Galbraith, Arborist, undertook a tree assessment and observed that the Flowering Gum (Tree 1 in his survey) 'is in poor condition with the upper two thirds having died'. He also observed that the condition of the Messmate (Tree 3) 'is not great as it consists of sprouts from a stump, some of which are dying'.
2. He noted that Tree 2 (Victorian Ironbark) in the north west corner of the site as the only high worth for retention tree on the site. It is to be retained and has a Tree Protection Zone (TPZ) of 4.9 metres. Mr Galbraith states that the building encroaches into the TPZ by less than 10% which is considered a minor encroachment under the relevant Australian Standard (AS4970:2009) and therefore acceptable. He notes that stairwell does encroach into the TPZ by more than 10% (a major encroachment) but that construction with posts (rather than strip footings) can ensure no adverse impacts to the tree.
3. None of Council's grounds concerned the removal of Trees 1 and 3 or any potential adverse impacts on Tree 2. Although Mr Fadgyas made reference to the site being virtually stripped of any significant trees, and cast doubt on whether Tree 2 could survive, I do not oppose removal of Trees 1 and 3, being the only two trees for which a permit is required for removal. Although the review site has a somewhat bushy appearance, most of that character is created by vegetation in the roadside reserve or scrubby vegetation that does not require a permit to be removed. I consider that the landscape plan provides an opportunity to greatly improve the quality and quantity of vegetation on the review site whilst recognising that the small lot size necessarily limits the amount of taller vegetation that can be planted. My inspection also confirmed that taller vegetation in coastal settings can also have a negative impact of blocking views to the coast and ocean. That already occurs to some degree in the views from 41 O'Donohue Road and 62 Eleventh Avenue.

Construction of paling fences and the Design and Development Overlay 19

1. I accept that local policy and one of design objectives of DDO19 is to retain a sense of openness between properties by encouraging the use of open style fencing and vegetation in preference to solid forms of fencing. On my inspection I observed that solid fencing already exists in the immediate locality including along the Eleventh Avenue frontage of 41 O'Donohue Road and around some of the boundaries of 62 Eleventh Avenue. Although I accept that high solid fencing can adversely affect the sense of openness, that outcome needs to be balanced against the need for privacy in secluded outdoor areas.
2. In this application the 1.8 metre high paling fencing is along the rear boundary and along the rearmost sections of side boundaries. They are designed to create seclusion for the rear yard and are in a location which is barely visible from either O'Donohue Road or Eleventh Avenue because of the extensive roadside vegetation along O'Donohue Road and in the front and side yards of nearby properties.
3. I also observe that the proposed northern and rear fences are effectively westerly and southerly extensions to the existing timber fence along the southern boundary of 62 Eleventh Avenue and in my opinion will not be a discordant or jarring addition in this particular site context.

Bushfire risk and the Bushfire Management Overlay

1. The Country Fire Authority has given its conditional support to the proposal and Mr Foster attended the hearing and made a submission outlining the reasons for that position.
2. Neither the Council nor the neighbours identified bushfire issues in their reasons for opposing the application and I accept that a new dwelling could be constructed on the review site that satisfies the CFA requirements.
3. Part of those requirements is that the western side of the dwelling must be constructed to a bushfire attack level of BAL-29 whilst the other three sides must be constructed to a bushfire attack level to BAL-19. The difference is due to the likely direction of fire attack.
4. In answer to a question from me about whether the southern wall of any dwelling should also have a BAL-29 level of construction due to the south westerly direction of fire attack, Mr Foster agreed that such a level would be appropriate.

1. Having regard to all of the above, I will therefore set aside Council's decision and direct that a conditional permit is to be issued.

Construction of a dwelling, construction of a fence more than 1.5 metres in height and removal of native vegetation in accordance with endorsed plans.

1. A revised landscape plan generally in accordance with the submitted Facet Design plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must show:
   • (a) The location type and height of existing vegetation that is to be retained and removed;
   • (b) Planting in accordance with the requirements of Schedule 3 to the Neighbourhood Character Overlay NCO3 - Anglesea Residential areas, using species predominantly selected from the 'Indigenous Planting Guide (2003)', and 'Landscaping your Surf Coast Garden for Bushfire' with emphasis on canopy vegetation;
   • (c) A detailed planting schedule, which includes the botanical and common name, height and spread at maturity, quantity and size at planting;
   • (d) A notation that any construction with the 4.9 metre diameter Tree Protection Zone of Tree 2 (Victorian Ironbark) will be by post and beam with no excavation other than for postholes;
   • (e) All accessways, pathways, decking and paved areas;
   • (f) The replacement of environmental weeds listed in the incorporated document - _Environmental Weeds - Invaders of our Surf Coast' (2nd Edition, 2002) w_here appropriate.
2. Before the release of the approved development plans for the approved development a bond or bank guarantee to the value of $1000 must be deposited with the responsible authority by the developer of the land as security against failure to protect existing native vegetation to be retained or to comply with the landscape plan endorsed under this permit. The bond or bank guarantee must be refunded by the responsible authority upon being satisfied that the requirements of the landscape plan have been fulfilled to the satisfaction of the responsible authority
3. No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans must be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority
4. The 4.9 metre diameter Tree Protection Zone (TPZ) for Tree 2 (Victorian Ironbark) is to be fenced off with a 1.8 metre high chain and mesh style fence and no fill, rubbish, storage of materials or excavation other than for postholes is to occur within the TPZ of Tree 2.
5. Before the occupation of the development, the areas set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Properly formed to such levels that they can be used in accordance with the plans;
   • (c) Surfaced with an all-weather seal coat, gravel or crushed rock;
   • (d) Drained;

to the satisfaction of the responsible authority.

1. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

1. Before the occupation of the dwelling starts, and at all times thereafter, vegetation on the land must be maintained to at least the following standard:

Defendable space extending from the dwelling to all property boundaries

1. Within 10 metres of a building, flammable objects such as plants, mulches and fences must not be located close to vulnerable parts of the building such as windows, decks and eaves.
2. Trees must not overhang the roofline of the building, touch walls or other elements of the dwelling.
3. Grass must be no more than 5 centimetres in height and all leaves and vegetation debris are to be removed at regular intervals.
4. Shrubs must not be planted under trees and separated by at least 1.5 times their mature height.
5. Plants greater than 10 centimetres in height at maturity must not be placed directly in front of a window or other glass feature.
6. Tree canopy separation of 2 metres and the overall canopy cover of no more than 15 per cent at maturity.
7. Tree branches below 2 metres from ground level must be removed.

1. A site assessment for the purpose of determining the bushfire attack level for the site has been considered as part of the application for the planning permit. The construction of the dwelling must be to a bushfire attack level of BAL-19 (North & East) BAL-29 (West & South) in accordance with the relevant sections to AS3959-2009.

1. Before the occupation of the development starts, a static water supply must be provided on the land and must meet all of the following requirements to the satisfaction of the responsible authority:
2. The water supply must have a minimum capacity of 5,000 litres that is maintained solely for fire fighting purposes.
3. The water supply must be stored in an above ground water tank constructed of concrete, steel or corrugated iron.
4. All fixed above-ground water pipelines and fittings must be of non-corrodible and non-combustible materials.
5. The water supply outlet must incorporate a ball or gate valve to provide access to the water by the resident of the dwelling.

Mandatory Condition - Maintenance of bushfire mitigation measures

1. The bushfire mitigation measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply, and access, must be maintained to the satisfaction of the responsible authority and the relevant fire authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the issued date of this permit.
   • (b) The development is not completed within four years of the issued 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] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] I have considered the submissions of all the parties that appeared, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons.

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

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