1. a defect of form.
2. I am satisfied that a mistake or error has occurred here, comprising an error arising from an accidental slip or omission, and find it appropriate to authorise a correction of the order.

Section 82 of the Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; General Residential Zone; amenity; overlooking; visual bulk; screening; vehicle access.

Ferndale Cottage Pty Ltd v Mornington Peninsula SC [2016] VCAT 1289

1. The decision of the Responsible Authority is affirmed.
2. In permit application P15/0608 a permit is granted and directed to be issued for the land at 3457 Point Nepean Road, Sorrento in accordance with the endorsed plans and on the conditions set out in the Appendix to this order. The permit allows:
   • Development of alterations and additions to the existing dwelling and associated works (including modifications to side boundary fencing) in the General Residential Zone.
   • Removal of vegetation in the Vegetation Protection Overlay Schedule 1.

Mr Peter O'Farrell, barrister instructed by Harwood Andrews Lawyers.

Mr Colin Bowden, town planner of Colin Bowden and Associates Pty Ltd.

In this proceeding, the proposal is to develop a dwelling addition and associated works to the rear of an existing dwelling at 3457 Point Nepean Road, Sorrento. The existing dwelling has frontage to Point Nepean Road, with a side access to the rear of the property via a carriageway easement within 3459 Point Nepean Road adjacent to the northern boundary of the subject land.

• a living dining and kitchen area connected directly to the central passage of the existing dwelling,
• an associated timber deck and spa on the northern side of the existing dwelling and the eastern side of the proposed extension,
• a basement double garage and adjoining bedroom, and
• vegetation removal, fencing and landscaping.

The proposed external deck has a wall along the northern side to a height of 1.7 metres above the finished level of the deck, set back approximately 2.6 metres from the northern side boundary. The amended plans are annotated to describe the wall as "smooth limestone wall cladding".

The connection between the proposed living area is at grade with the existing dwelling. The site slopes down from south to north with a fall of approximately 2.26 metres, allowing the proposed lower bedroom to have a northern exposure and the proposed double garage to have driveway access to the carriageway.

The existing building is a late 19th Century limestone dwelling with a hipped roof, recently renewed. The building is included in the Heritage Overlay of the planning scheme as Fairholme (HO183). The proposed addition is contemporary in style and the amended plans show a maximum height of 6.37 metres.

Application under Section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

General Residential Zone - Schedule 1 (GRZ1); Design and Development Overlay - Schedule 2 (DDO2); Heritage Overlay (HO183); Vegetation Protection Overlay - Schedule 1 (VPO1).

The land abuts a Road Zone Category 1 (RDZ1).[1]

The land is within an area of Aboriginal Cultural Heritage Sensitivity.[2]

Clause 43.01 (A permit is required to construct a building or construct or carry out works on land in the Heritage Overlay).

Clause 43.02 (A permit is required to construct a building or carry out works in the Design and Development Overlay. In this case, the subject land is in Schedule 2, which requires a permit to construct a building that exceeds 6 metres in height).

The subject land is located on the western side of the Point Nepean Road and contains an existing heritage dwelling known as "Fairholme".

Point Nepean Road has a wide nature strip along both sides of the road providing a buffer between the road and adjoining development. The nature strip is extensively vegetated, although the section in front of the subject site and the adjoining residence to the north is mostly cleared.

The land has a frontage to Point Nepean Road of 24.68 metres and a depth of 45.72 metres. The northeast corner of the site has a 'splay' of approximately 11.7 metres.

Surrounding development consists of a single storey detached weatherboard dwelling to the north at 3461 Point Nepean Road and a tennis court at 3459 Point Nepean Road to the rear (west), with access via the carriageway mentioned above. To the south at 3455 Point Nepean Road is a single detached weatherboard dwelling with double storey section at the rear.

On a wider perspective, the surrounding landscape to the north and west is characterised by an open undulating terrain with views toward a natural lake and the Sorrento Golf Club.

The subject land is approximately 800 metres north of the Sorrento commercial centre.

The Tribunal conducted an unaccompanied inspection of the subject land and surrounding area on the 1 June 2016.

Charbord Constructions Pty Ltd v Stonnington CC [2015] VCAT 1976.

1. In August 2015, the Mornington Peninsula Shire Council determined to issue a Notice of Decision to Grant a Permit to develop alterations and additions to the existing dwelling, vegetation removal and associated works in accordance with the endorsed plans and subject to conditions. An objector to the proposal, Ferndale Cottage Pty Ltd, requests the Tribunal to review the Council decision.
2. The issues of concern to the objector centre on the potential for overlooking from the proposed deck and pantry window toward the rear garden and verandah of the dwelling at number 3461 Point Nepean Road. This property is located on the northern side of the intervening carriageway easement at number 3459. In the original submission to Council, the objector also sought clarification on the width of the entrance to the garage area from the driveway within the carriageway easement.
3. At the hearing, Mr O'Farrell introduced a further matter concerning the scale of the proposed addition, submitting the proposal will be detrimental to his client's amenity due to visual bulk.
4. In response, Council cites the permit applicant's view that the separation distances of the proposed deck and pantry window to the boundary of number 3461 are acceptable. The permit applicant submits:
   • The terrace area referred to is 10.83 metres from the nearest point of the rear yard of No. 3461 Point Nepean Road. The ResCode overlooking dimension is 9.0 metres.
   • Due to the existing elevations of the site there is currently a high degree of overlooking into the private open space of No. 3461 Point Nepean Road.
   • The butler's pantry window is located 10.23 metres from the rear yard of No. 3461 Point Nepean Road and the butler's pantry is not a habitable room.
   • The architect originally advised that the family room should be on the northern side of the dwelling and that the whole northern elevation should be glass overlooking the valley, lake and golf course. It was resisted due to the general overlooking and the current plan was more of a compromise.
   • The paling fence to the northern boundary is shown on TP07 and TP08.
   • The opening to the right of way is 9 metres.
5. During the hearing, discussion occurred regarding the amount of information shown on the plans, particularly ground levels and some key dimensions. The permit applicant conceded that further information is needed and agreed to provide additional information on the plans. Accordingly, I issued an interim order requiring the circulation of revised plans addressing the following matters:
   • Natural ground level references at various points around the proposed buildings and works, including the screening of the proposed spa and deck.
   • A north-south section through the proposed kitchen/pantry area showing the pantry window and the natural terrain through to the adjoining property to the north.
   • Design options for protecting view lines from the pantry window.
   • A vehicle movement plan for the carriageway, driveway and garage.
6. The Tribunal's interim order includes the opportunity for the parties to respond to this additional information.
7. In response to the Tribunal's interim order, Council informed the Tribunal that:

Council has reviewed the proposed revised plans submitted on 03 May 2016 and has no objection to the changes and the substitution of plans.

As such, Council's position remain as per the Notice of Decision issued on 18 August 2015 and submission at the Tribunal on 21 March 2016.

1. The applicant for review retains concern that the additional information does not adequately address the matters raised in objection. In particular:
   • That the height of the proposed masonry wall on the northern side of the deck will prevent overlooking.
   • The adequacy of vegetation screening for the proposed spa.
   • The undertaking of works associated with an existing retaining wall for a car parking area approved under existing planning permit P15/0370 (13 April 2015).
   • The adequacy of the 400mm external surround for the proposed pantry window to prevent overlooking.
   • The design of the proposed garage and driveway in relation to the movement of vehicles.
2. The above points are contested by the permit applicant, who submits:
   • There is sufficient survey information and design detail on the revised plans of the 27 May 2016 to determine the height and "assess the issue of overlooking from the deck."
   • The set back of the proposed spa from the northern boundary is sufficient to establish screen planting and/or screening.
   • The works associated with the retaining wall for the car parking area is permitted in accordance with planning permit P15/0370 (granted on 13 April 2015) and are works separate from the current application.
   • The proposed pantry window on the northern façade is a minimum of 13.66 metres from the deck of the dwelling to the north, with an oblique line of sight. The proposed 400mm external surround for the window is a design feature and not intended to restrict overlooking. The permit applicant submits the pantry is a non-habitable room and is acceptable due to the separation distance and 'off-set' position from the deck at 3461 Point Nepean Road.
   • In relation to vehicle movement the permit applicant states:

The plan also depicts that the garage (6.3 x 11.6 metres) is more than adequate in size to accommodate 2 vehicles and that a vehicle parked on the west side of the garage will be able to reverse out of the garage, avoid the existing bluestone wall and drive forward in one movement, especially given the existing access road has a width of 8.32 metres i.e. well in excess of the 6.4 metre reversing distance required by Clause 52.06.

1. A further issue for my attention is correspondence received at the Tribunal following Mr Bowden's additional information in response to the Tribunal's interim order. The Tribunal also received correspondence from Harwood Andrews on behalf of the applicant for review on the 18 May 2016 and subsequently from Council on 30 May 2016.
2. The correspondence from Harwood Andrews refers to matters associated with the retaining wall permitted by permit P15/0370 referred to earlier, and a timber paling fence along the northern boundary permitted by permit P08/3050 and now completed. The content of the letter queries the location of the retaining wall and contemplates whether additional planning approval will be required should further works be undertaken to alter or demolish the existing paling fence.
3. The correspondence from Council of the 30 May 2016 states in part:

In light of recent information received at this office since the correspondence dated 06 May 2016. Council wishes to draw to the Tribunal's attention that the existing site context has changed in that a new retaining wall with associated earthworks/fill has been constructed along the northern boundary and this information is not detailed on the substituted plans submitted on 03 May 2016.

As such, Council has not been able to comment or consider the extent of this information on the proposed plans prior to its response of 06 May 2016.

1. It is not clear whether the above correspondence is supplementary to the letter from Harwood Andrews of the 18 May 2016, or the result of Council's independent observation (or perhaps both).
2. I inspected the subject site on 1 June 2016. In addition to making observations pertaining to the substantive matters of amenity, particularly overlooking and screening, I noted the relatively recent construction of concrete retaining walls defining the future car parking area, set back from the northern boundary in accordance with permit P15/0370.
3. I also noted:
   • a short section of 'unattached' timber fencing at the north-west corner of the site, adjacent to the bluestone gate within the carriageway easement. To my observation, the purpose of this fence is to provide a section of temporary boundary fencing pending completion of the car parking area.
   • A completed timber boundary fence permitted by P08/3050. This 1.8 metres high fence extends along the northern boundary for approximately 30 metres, tapering down in height towards the front of the property. The fence terminates approximately 11 metres from the rear (western) boundary of the subject land. Along the northern side of the fence, within the carriageway easement, screen trees have been planted at an interval of 1-2 metres.
4. I find the matters concerning the fencing and the retaining walls are not germane to the issues in the application before me, other than to observe that the space available between the existing northern boundary fence and the bluestone gates near the end of the carriageway is more than adequate to accommodate vehicle movement to and from the subject land. I consider the issues of the parking area and the existing fence to be matters more properly administered under the existing permits for these works.
5. In relation to the information from the parties in response to the Tribunal's interim order of 30 March 2016 and the submissions made at the hearing, I consider there is now sufficient information before me to decide this matter.
6. Accordingly, I find the principal question to be asked in this proceeding is whether the views and sight lines from the proposed deck, spa and pantry window at number 3457 Point Nepean Road will result in an unreasonable loss of privacy for the occupants at number 3461.
7. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Mornington Peninsula Planning Scheme, I have decided to affirm the Council decision and grant a permit. My reasons follow.

1. The properties along the western side of Point Nepean Road are on elevated terrain commanding a westerly view toward the lake, with the Sorrento golf course in the background. These properties generally maintain an open landscape that also allows views between properties, making overlooking an often unavoidable consequence of the natural terrain.
2. The plans show an extensive outdoor timber deck on the eastern side of the proposed addition, set back 2.6 metres from the northern boundary and more than 10 metres from the southern boundary of 3461 Point Nepean Road, due to the width of the intervening carriageway easement. The permit applicant proposes a masonry wall to a height of 1.7 metres above the finished floor level of the deck, extending along the full width of the northern edge of the deck between the proposed addition and a proposed outdoor spa.
3. Taking into consideration;
   • the separation distance between the subject land and the rear garden at number 3461,
   • the location of the verandah and deck at number 3461, and
   • the height of the proposed wall along the northern side of the proposed deck,

I find the proposed design provides an acceptable degree of protection from overlooking.

1. The proposed spa is located at the north-eastern corner of the deck, with dimensions of 4.2 x 2.5 metres. The spa is set back 2 metres from the northern boundary and the separation distance to the verandah and deck at 3461 Point Nepean Road is approximately 11 metres. The top of the spa is flush with the level of the proposed timber deck and will be elevated 2.74 metres above the existing deck at number 3461.
2. There are two fences between the proposed spa and the timber deck to the north; a timber boundary fence of 1.8 metres on the northern boundary of the subject land and a post and wire fence of 1.1 metres height on the southern boundary of number 3461. Due to the slope of the terrain, the timber boundary fence does not prevent a view from the proposed spa to the open space areas to the north.
3. The permit applicant proposes to screen the northern side of the spa with screen trees planted within the 2 metre setback. As mentioned earlier, there is also a row of screen trees planted along the northern side of the boundary fence within the carriageway easement. Given the elevation of the spa relative to the private deck area at number 3461, I find it appropriate to require the spa to be screened on the northern side to a minimum height of 1.7 metres above the maximum height of the finished level of the spa floor. This could take the form of an extension of the proposed masonry wall or an obscure balustrade. Sound attenuation should be a consideration in the design of this screen.
4. I find the combination of screening and the proposed landscaping will afford an acceptable level of protection from overlooking.

1. The proposed pantry window is shown on the plans at a sill height of 1.1 metres and a vertical dimension of 800mm. As described earlier, the permit application seeks to retain the proposed specification on the basis that the separation distance to the verandah/deck at number 3461 is more than 9 metres, the sight line is oblique and the pantry is not a habitable room.
2. On this issue of reasonable overlooking, Mr O'Farrell's submission refers to a recent Tribunal decision of Member Deidun (Charbord Constructions Pty Ltd v Stonnington CC [2015] VCAT 1976) where protection from overlooking beyond 9 metres is discussed. The circumstances of the Charbord decision are quite different from the circumstances of this proceeding, however, I agree with Mr O'Farrell that the overlooking context is relevant. In Charbord, Member Deidun comments as follows:

19 I accept that the intent of Standard B22 is to restrict and not eliminate any potential overlooking from one residential property to another. That intent is captured in the Overlooking objective, which is:

To limit views into existing secluded private open space and habitable room windows.

20 I also accept that, in most typical suburban locations, the standard of screening windows within 9 metres of a sensitive location will be sufficient to achieve the objective. I am not persuaded. however, that the strict application of the standard will of itself always achieve an appropriate outcome. In making this statement, I realise that I am stepping into a much debated area as to whether satisfaction of the ResCode standards is sufficient of itself in order to demonstrate compliance with the relevant objective.

21 My view is that compliance with a standard will not always be sufficient in order to achieve an appropriate planning outcome. For example, compliance with the side and rear setbacks standard (B17) will not always appropriately limit the impact of visual bulk on a residential interface. Further, compliance with the building height standard (B7) will not always achieve a building of a height that respects the surrounding neighbourhood character. Similarly, not screening windows that are located further than 9 metres from a boundary will not always appropriately limit views of nearby secluded private open space. What is required is an appreciation of the context of a development site, and a careful assessment of whether an approach that is different from the standard should be adopted, in order to achieve an appropriate and reasonable outcome. (emphasis added)

22 The context that is before me in this proceeding is one that demands an outcome different to the approach set out in the overlooking standard... What is required here is a contextual response to the unusual suburban context that surrounds the review site, where one property is developed with expansive areas of secluded private open space that would be viewed en masse by the proposed fourth floor. This contextual response supports the extent of screening sought by condition by Council.

1. During my inspection, I noted that the rear deck of number 3461 is a focal point for outdoor eating and relaxation for the occupants, making good use of the western aspect to the lake.
2. In my assessment, the width of the proposed pantry window is sufficient to allow a direct view to the outdoor deck at number 3461, despite the angle of the sight line and the distance of approximately 13.6 metres. The context of this view is that garden spaces in this area are not enclosed areas such as may be found in a suburban context, but open areas with long views. The lack of high fences contributes to the landscape quality the lake and the open character of the surrounding garden spaces. In my assessment this landscape justifies reasonable protection from overlooking beyond the guideline of 9 metres in Standard B22.
3. The plans show the proposed pantry window does not provide light to an enclosed space, but sits at the northern end of a large room, divided from the open kitchen/dining area by an island bench. Taking into consideration the elevation of the proposed window relative to the deck at number 3461, I find the views obtained from this window, as proposed, will result in unreasonable detriment to the amenity of the occupants to the north. In this regard, I agree with the reasoning set out in Charbord that in the context of the open landscape around the lake, the application of Standard B22 may not be sufficient to;

...limit views into existing secluded private open space.

1. Accordingly, I consider it appropriate to require the pantry window to have a sill height of 1.7 metres above finished floor level.

1. Mr O'Farrell submits that in relation to building form;

..the visual bulk associated with this development will be overwhelming.

1. In particular, Mr O'Farrell considers the proposed development, being at the rear of the existing dwelling, will 'load up' the rear and sides of the building as it relates to the Fernhill dwelling to the north.
2. The proposed addition certainly occupies a large proportion of the land behind the existing heritage building, although I note there are many large buildings within the surrounding area. In this case, the proposed addition extends west from the existing heritage building at eave height. Due to the fall of the land, the form of the addition presents a maximum northern elevation of 6.22 metres, albeit set back more than 10 metres from the southern boundary of number 3461. Taking into consideration the height of the proposed addition relative to the existing building, the setback from the northern boundary and the intervening carriageway, I find the visual bulk of the proposed development is acceptable.

1. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions of the parties in addition to the matters which arise from these reasons.

1. For the reasons explained above, the decision of the Responsible Authority is affirmed. A permit is issued subject to conditions.

• Development of alterations and additions to the existing dwelling and associated works (including modifications to side boundary fencing) in the General Residential Zone.
• Removal of vegetation in the Vegetation Protection Overlay Schedule 1.

1. Before the developments starts, 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 3 copies must be provided. The plans must be generally in accordance with the plans submitted with the application and supplemented by the additional information shown on the plans dated 27/4/2016 provided in response the Tribunal's Interim Order of 30 March 2016, but modified to show:

1. Width of the proposed accessway opening and details of boundary fencing on the site plan. 2. Detail showing the elements of the existing dwelling that are required to be demolished.

1. Screening along the northern side of the spa to a minimum height of 1.7 metres above the maximum height of the finished level of the spa floor. The screen may take the form of an extension of the proposed masonry wall or a balustrade designed to obscure a view to the north.

1. The pantry window modified to have a sill height of 1.7 metres above finished floor level.

1. The layout of the land, the size and type of the dwelling additions, 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 dwelling additions must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

1. Prior to the occupation of the dwelling additions, 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.
2. Within 6 months of the practical completion of the development (or other time agreed to in writing by the Responsible Authority), the landscaping works shown on the endorsed plans must be carried out and completed, to the satisfaction of the Responsible Authority.
3. The landscaping referred to in Condition 6 above must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.

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

1. This permit will expire if the development is not completed within three 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 period referred to in this condition.

[1] In this proposal, there is no change to the existing street entrance.

[2] The Council Delegate Report (12/8/2015) states that a Cultural Heritage Management Plan is not required as the proposal does not constitute a high impact activity under the Aboriginal Heritage Regulations 2007.

[3] I have considered the submissions of all the parties that appeared, all the written and oral evidence, 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.