The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

The layout of the site and the size of the proposed buildings and works as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

Prior to the commencement of the use and/or development, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided. The plans must generally be in accordance with the plans submitted with the application, but modified to show the first floor balconies facing Great Ocean Road constructed of transparent materials and the partition between the balconies of translucent material.

The various activities forming parts of the use as shown on the endorsed plan must not be altered without the written consent of the Responsible Authority.

Before the development starts, colour samples of all external roof and wall finishes must be submitted to the Responsible Authority for consideration. When approved, such information will be endorsed and will form part of the permit issues.

External lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

All run off from stormwater, including overflow from water storage, must be taken to a legal point of discharge to the satisfaction of the Responsible Authority.

Access onto and within the property must be constructed to the satisfaction of the Responsible Authority.

Prior to commencement of the use, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be:-

a) Constructed to the satisfaction of the Responsible Authority.

b) Properly formed to such levels that they can be used in accordance with the plans.

c) Surfaced with an all-weather sealcoat to the satisfaction of the Responsible Authority.

d) Drained and maintained to the satisfaction of the Responsible Authority.

e) Line-marked to indicate each car space and all access lanes to the satisfaction of the Responsible Authority.

Parking areas and access lanes must be kept available for these purposes at all times.

In areas set aside for car parking, measures must be taken to the satisfaction of the Responsible Authority to prevent damage to fences or landscaped areas.

No additional advertising signage is to be erected or displayed without the prior written consent of the Responsible Authority.

Prior to the commencement of the development, the owner of the land must enter into an agreement under Section 173 of the Planning and Environment Act 1987 with the Responsible Authority to covenant that it will:

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Maintain the condition of the buildings and works overhanging the public land adjacent to the living rooms of the first floor dwellings to the satisfaction of the Responsible Authority.

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Ensure that a Public Liability Insurance Policy is entered into to the value of not less than $10 million. The Insurance Policy shall stipulate that the policy covers the public footpath areas adjacent to the buildings and works referred to above. Evidence of this Policy shall be provided to the satisfaction of the Responsible Authority upon completion of the works hereby permitted and on each anniversary of that date.

The full cost of the preparing, checking and approval of the agreement must be met by the owner. This permit has no force or effect until such time as the agreement has been entered into.

Mr. W.D. Nelson, Harwood Andrews, Lawyers, represented the Shire of Colac-Otway

1 This is an application under sec. 77 of the Planning and Environment Act6 1987 against Colac-Otway Shire Council's refusal to grant a permit to extend an existing pharmacy, an existing dwelling, construct a second dwelling and waiver of car parking at 121-123 Great Ocean Road, Apollo Bay. The grounds of refusal were:

The proposal is not consistent with Clause 21.04-10 'Apollo Bay' which seeks to identify and protect key buildings that contribute to, and can maintain the 'village character' of Apollo Bay.

The proposal is not consistent with Clause 22.01 'Main Roads/Scenic Routes' which seeks to protect scenic roads from unsympathetic developments which would detract from the beauty of the area. Under this policy, buildings should not exceed 2 storeys or 8 metres in height and dominant roof slopes and bulk are to be avoided.

The proposal is not consistent with Clause 22.05 'Coastal and Otway Ranges Townships', which requires consideration be given to the visual character of the town and the likely impact of the development on the visual amenity of the town. It also requires consideration of the impact on views available to the site from the Great Ocean Road. Development exceeign2 storeys or more than 8 metres in height is discouraged under this policy, as is dominant or multiple angular roof slopes and designs.

2 The submitted grounds of application for review rebutted these grounds of refusal and that the proposal is particularly appropriate for the township's principal activity centre.

3 At the commencement of the hearing, Mr. Fadgyas requested the name of the review applicant be amended from Apollo Bay Pharmacy to 'Enterprise Pharmacy Pty Ltd'. As there was no objection to this request, leave was granted to substitute the name of the applicant as requested.

4 The review site is located on the west side of Great Ocean Road between Hardy and Moore Street, and in the business centre of the Apollo Bay Township. The size of the site is 625.46 square metres, having a combined frontage of 13.4 metres and a depth of 46.634 metres. It is made up of two allotments, one of which is developed with a two storey shop building and the other a single storey shop building. The ground floors of the buildings have been opened up and used as a pharmacy, pursuant to an earlier permit issued by Council (Permit No. 164/96 issued on 22 November 1996.

5 The business centre of Apollo Bay is developed with shops, single and double storeys, with newer mixed commercial and apartment buildings in three storey buildings. The newer developments in the three storey apartment buildings are modern in appearance, often making extensive use of glazing facing the foreshore and Southern Ocean.

6 The proposal is to extend the building both on the ground and first floors. The ground floor extension towards the rear would increase the floor area of the pharmacy by 85 square metres. The existing first floor dwelling is to be refurbished and a new dwelling to be constructed by a new floor above No. 121 Great Ocean Road. This new dwelling would be a mirror image of the existing dwelling, having three bedrooms, with balconies to the front and back, and an open plan living/dining/kitchen towards the front facing Great Ocean Road.

7 The proposed additional floor area and the new dwelling of this proposal would generate an increase in car parking provision pursuant to Clause 52.06. A total of seven car spaces are provided, in the form of a pair of double garages and three open car spaces. Car parking is accessed via a laneway from the rear. Council accepted the proposed car parking as adequate, and did not refuse the application on the basis of a lack of car parking.

8 The design of the refurbished and extended building is to build on the existing boundary-to-boundary form. The height of the building is a maximum of 9.5 metres above the natural ground level on the southern boundary and 9.35 metres on the northern boundary.

9 Part of the design is to provide for a 3 metre wide post supported ground floor verandah over the footpath. Above this verandah are the front balconies of the first floor dwellings. As the building is to be constructed to the building line, these balconies would protrude approximately 1.7 metres into the road reserve above the verandah over the footpath.

10 The appearance of the refurnished building is modern, with a butterfly roof form for the front section facing Great Ocean Road, and the balance of the roof with a saw-tooth appearance. The external cladding of the first floor walls is weatherboard, with the upper section of the wall using corrugated colorbonds. The first floor balconies security railing facing Great Ocean Road is solid timber infill panels 1 metre high.

11 As the building is constructed boundary-to-boundary, bedrooms in the centre of the units rely on skylights for ventilation and sunlight.

12 The review site is located in the Business 1 Zone of the Colac-Otway Planning scheme ("the Scheme"). A permit is not required for the uses but for buildings and works.

13 Pursuant to Clause 52.06 Car Parking, two car spaces are required for a dwelling, and 8 spaces per 100 square metres of leasable floor area for shop. A permit is required to waive the number of car spaces required for the proposal.

14 Pursuant to Clause 52.07, Loading and Unloading, a permit is required to waive or reduce the provision of loading and unloading on site.

15 The site is not affected by any overlay.

16 Relevant Planning Policies:

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Clause 15.08-3 Environment - Great Ocean Road

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Clause 16 Housing

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Clause 17.01 Activity Centres

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Clause 19.03 Design and Built form

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Clause 21.04-10 Apollo Bay

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Clause 22.01 Main Road/Scenic routes

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Clause 22.05 Coastal and Otway Ranges Township

17 At the hearing, both partied relied on written and oral submissions. Many photographs of the site, the business centre of Apollo Bay, and examples of three storey development were tabled. These photographs and the parties' submissions are kept on file.

18 The issues debated at the hearing were confined to the design of the development and the overhanging balconies of the two dwellings over the ground floor verandah and footpath. As far as waiving the number of car spaces pursuant to Clause 52.06 is concerned, Council considered the level of car parking provided as adequate. I also accept that the proposed two double garages for the two dwellings and another three open car spaces are adequate for the two three-bedroom dwellings and the one pharmacy.

19 Given the comprehensive photographic analysis of the site and the area, I indicated that it is not necessary for me to inspect the site before determining the application.

20 Having heard the submissions and reviewed the Colac-Otway Planning Scheme, I confirm my comments made at the hearing regarding the various aspects of the proposal, and that Council's grounds of refusal have not been made out.

21 The main issues are the height and appearance of the building, and the first floor balconies that overhang the footpath.

22 The development is to refurbish and extend the existing building for an extended pharmacy on the ground floor and an additional three bedroom dwelling on the first floor. The proposed uses are 'as-of-right' in the Business 1 Zone of the Scheme. They are also highly desirable for the Activity Centre of Apollo Bay.

23 The main issue of the design of the building is the proposed height. Council submission relied on policies Clauses 21.04-10 'Apollo Bay', the recommendations of the Apollo Bay Streetscape Study 1992, (a referenced document of that clause), Clause 22.01 'Main Roads/Scenic Routes', and Clauses 22.05 'Coastal and Otway Ranges Townships'.

24 Clause 21.04-10 'Apollo Bay' seeks to develop Apollo Bay as an attractive residential community which provides high quality environment as a significant tourist centre. The means to achieve a high quality identity for Apollo Bay, and inter alia, the implementation of the streetscape and landscape strategy for the Main Street, and the identification and protection of key buildings that contribute to and retain the village character of Apollo Bay.

25 This clause made reference to the Apollo Bay Streetscape Study - Green and Dale, 1992. This study canvassed local community on development in Apollo Bay. Their response at the time was that the local community wished the town to remain as it is with no radical changes to its appearance and function. They wished to maintain the single storey scale of development with no high rise.

26 With regard to appearance of buildings, this study recommended retention of the 1920's and 1930's architectural style as an integral part of the streetscape. It proposed to reinforce this character by the adoption of some of the architectural elements which form this style. This study provided a series of streetscape improvement plans for façade of commercial properties in Great Ocean Road. The improvement recommended for the review site was confined to changing the first floor windows of 123 Great Ocean Road and adding a parapet above the first floor, and the removing of signage from the parapet of 121 Great Ocean Road.

27 Clause 22.01 "Main Roads/Scenic routes" applies to a number of identified roads in Colac Otway, including Great Ocean Road. In assessing applications for buildings and works, it is policy that "a building should be clad with non-reflective external building material and should not exceed 2 storeys or 8 metres in height".

28 Clause 22.05 "Coastal and Otway Ranges Townships" is another local policy that provides guidelines for development in Apollo Bay. As far as height is concerned, this policy (Clause 22.05-3) is to discourage "new development which comprises more than 2 storeys or is more than 8 metres above natural ground level" unless special characteristics of the site justify it.

29 Mr. Fadgyas submitted that the design of the extension is the "best practice Design" referred to in Clause 15.08-3 for Great Ocean Road. This is because the development is creating a solar efficient shop-top living. The reference to height control put forward by Council cannot be found in planning policy of the scheme. None of the cited policies prohibit buildings of more than 8 metres. Nor there rationale for this 8 metre height limit given anywhere. Council's concern for the roof profile is not based on policy. Clause 21.01-03 seeks to have roof form that is to make "the slope of the roof relate to the topography of the surround landform", for example, "the deeply dissected luxuriant ridges and valleys" as described in Clause 21.01-03. This contrasts with the discouragement of dominant or multiple angular roof slopes and designs of policy Clause 22.05-03. He would submit that the proposed butterfly roof profile as consistent with the articulated and steep landforms of the immediately overlooking hills and the "deeply dissected luxuriant ridges and valleys" that rims the Apollo Bay Township. The proposed roof form is no fewer representatives than the curved roof form emerging around the township.

30 He further submitted that the façade treatment of the development is stimulating and pleasing enhancement of the streetscape. The roof line compliments the adjoining curvilinear roof of the two storey building at 125 Great Ocean Road. The proposal will encourage future development on the main strip of Apollo Bay to adopt a more contemporary coastal style of architecture in the future, and a more adventurous interpretation of the "deeply dissected luxuriant ridges and valleys" character of the background area.

31 In order to determine whether the proposal is acceptable, I observed at the hearing that an absolute prescription in height may not necessarily determine the visual impact of a development. An 8-metre high apartment building often has more visual presence than a 9 metre high building, if this 9 metre height is caused by architecture features such as chimneys, decorations, as pediments, or a 45o roof rather than the solid massing of a structure. This is the case before me.

32 The highest part of the proposed building is 9.5 metres, and they are the top and tips of the eaves of the "butterfly" roof at the front and the overhang of the saw-tooth roof for the balance of the roof. They are slender features rather than solid massing. The height of the pediment or 'cartouche' of the existing building is already 9.3 metres. I am not prepared to say that a two storey building, with a wall height 7.4 metres as proposed with a maximum height of 9.5 metres because of these features, is a visually more dominant building than a three storey apartment building achieving a lower height of 8 metres.

33 One must consider the reasons for the 9.5 metre height, when the perceived 8 metre limit is breached: whether they are for a valid planning reason.

34 The height of the building is affected by the existing structure, with an internal floor to ceiling height of 3.8 metres for the ground floor (including the false ceiling), and 2.885 metres for the existing dwelling. The proposal does not seek to change the floor to ceiling heights of the floors. The change is to lift the current flat roof on one side and at an angle to provide for north facing skylights to provide for ventilation and sunlight for bedrooms in the middle of the building. Otherwise, these rooms will have no windows.

35 My reading of the recommended 8 metres as contained in Clause 22.01 and 22.05 is somewhat different from Council's. The height referred to are either 2 storeys or 8 metres, and not 2 storeys and 8 metres.

36 As for the recommended streetscape treatment of the 1992 Streetscape Study, I agree with Member Baird it should not be accorded much weight. The growth of Apollo Bay has surpassed the low scale development promoted by that study. There has been many three storey development approved by Council that is not consistent with the single storey scale of development preferred by that study. It is not realistic to expect that development of the site is confined to cosmetic improvement by incorporating 1920's and 1930's architectural features.

37 There is no basis to refuse application because a development is over 8 metres, and ignore the fact that two storeys is acceptable. Such an approach also refuses to consider the reason for exceeding the 8 metre height.

38 Given the policy acceptance of a two storey scale and that the current streetscape of this part of Great Ocean road, I do not regard the two storey scale of the proposal in the context of single, two-storey and the more recent three storey developments in the main street of Apollo Bay as inconsistent with the existing or emerging streetscape character of the commercial centre of Apollo Bay.

39 The second issue is the proposed balconies of the dwellings over the footpath of the road. Council's consideration is that there is no sound basis for the balconies to be constructed beyond the title boundary saves to the extent of the verandah proposed. This is an area under Council's control by arrangements with VicRoads. Although Member Baird, has in P1711/2002, ruled that there was no planning reason to refuse balconies overhanging the footpath in Great Ocean Road (review site Unit 6, 57-63 Great Ocean Road), this tribunal should not follow that decision. The condition contained in that decision requiring public protection may break down or unable to be achieved or are no longer adequate or appropriate. Ultimately, Council as road reserve manager dictates what may occur over the road reserve. This is an additional reason for the Tribunal not to endorse any extension of the building into the public domain. Council, as Land Manager, is unlike to give consent.

40 Mr. Fadgyas' submission included examples where first floor balconies have been constructed over the footpath of Great Ocean Road, not just the one approved by Member Baird in the decision mentioned above. One is immediately abutting at 125 Great Ocean Road, a two storey building used as a bakery with a first floor balcony overhanging the footpath.

41 It is true that construction of first floor balconies over the footpath is a common feature in this main commercial strip of Apollo Bay. I agree with Member Baird's reason for allowing the proposed first floor balcony for the dwelling at unit 6 of 57-63 Great Ocean Road. I do not intend to quote her reasons extensively, suffice to say that there is no policy basis to reject such a proposal and for the presence of such balconies up and down Great Ocean Road in Apollo Bay. Likewise, there is no reason to reject the current proposal on planning or streetscape grounds.

42 To support balconies above footpath is not to say that the design of the proposed balconies is appropriate from an urban design point of view. I note that all first floor balconies over the footpath in Apollo Bay, and for that matter for first floor balconies observed around metropolitan Melbourne, are designed as low open structure, invariably involving a low barrier to provide safety and constructed of transparent materials. To me, this is a good indication of the visibility of the public realm although the area used privately. I do not consider the solid timber panels as balustrade achieve this open visibility. Instead, they denote an enclosure of public property for private purposes. As such, I would require transparent materials instead of the solid timber panels, and a translucent material for the dividing panel between the two dwellings.

43 Consistent with the decision of Member Baird and to provide public liability insurance for the balcony, it is appropriate to impose a similar condition, except in upgrading the value of public liability insurance from $5 million to $10 million.

44 The main issues of this review is the height of the proposed extension exceeding a customary 8 metre limit that Council has exercised, and the projections in balconies for the first floor dwellings over the road reserve.

45 Having considered the policy context for the proposed height and the commercial streetscape of Great Ocean Road of the Apollo Township, I do not find refusing the application based on the height exceeding 8 metres justified.

46 Likewise, the projection by balconies above the footpath is consistent with the character of this part of Great Ocean Road. Subject to an appropriate level of public liability insurance, there is no other planning reason to reject it. Should Council refuse to issue approval as land manager of the road reserve, it is an exercise of authority outside planning.

47 For the above reasons, the Application for Review is allowed and Council's decision to refuse set aside. I will order that permit, subject to the conditions stated in the order, is to issue.