Victorian Civil and Administrative Tribunal|2011-03-08

The application is allowed in part. Pursuant to section 87A of the Planning and Environment Act 1987, Planning Permit No. P53/2008 issued by the responsible authority in respect of the subject land on 8 May 2009 (as corrected) is amended as follows:
Condition 1 is modified so that it reads:
1. Before the development 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 generally in accordance with the plans described as Drawing No.'s TP1b, TP2b, TP3b, TP4b, TP5b dated 8 February 2010 by kvadesign but modified to show:

the location and layout of tables and chairs (maximum 120) within the function centre.

Condition 14 is modified so that it reads:
1. All patrons must vacate the premises no later than 30 minutes after trading ceases other than those patrons staying in the bed and breakfast guest rooms.
The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.

Amendment to Permit 53/2008 (including amending plans) to allow:

First floor addition with dimensions 6.98m x 15.25m[1] containing supplementary dwelling accommodation above the north wing of the function centre.
Deletion of basement floor plan (comprising garage, store room and cellar);
Replacement of a basement garage with a freestanding above-ground garage with dimensions 9m x 9m north of the function centre/dwelling;
Various minor internal and external alterations including glazing of verandahs for the bed and breakfast accommodation, creation of disabled and emergency access and relocation of a laundry;
Amending the wording of Condition 14.

Farming Zone (FZ).
Heritage Overlay (HO1712) part only.
Land Subject to Inundation and Floodway (LSIO) part only.

Clause 35.07-1 - Use of land for Place of Assembly (Function Centre)
Clause 35.07-1 - Use of land for dwelling where section 1 conditions are not met.[2]
Clause 35.07-4 - Buildings and works in FZ for uses in Section 2.
Clause 52.27 - Licensed Premises
Clause 52.06-1 - Reduction in car parking.

The review site is a 1.414 hectare lot within a rural setting with coastal salt-marsh to the south, south-east and south-west. Earthworks have occurred and were underway during my inspection and the site is being used to store building and landscaping materials. The site includes a dilapidated heritage listed cottage, a weatherboard dwelling, outbuildings and orchard. A fuller description of the site and surrounds is available in Finescape Pty Ltd v Geelong CC [2009] VCAT 582.

I inspected the site and surrounds on the afternoon of Saturday26th February 2011.

Finescape Pty Ltd v Geelong CC [2009] VCAT 582 (the "previous case").

Garnaut v Yarra CC [2010] VCAT 1089

The owner of the land and applicant in this proceeding, Finescape Pty Ltd, seeks to amend some conditions under Planning Permit 53/2008 ("the Permit") and the endorsed plans.[3] The most significant and contentious change involves the creation of a second level above the northern wing of the approved function centre building/dwelling/B&B accommodation.[4]
These additions would form part of the owner's proposed family home and include a sitting room, bedroom, sink, walk in robe, ensuite, separate WC and verandah.
The Permit was issued on 8 May 2009 at the direction of the Tribunal, constituted by Member Bensz. The permit allows the following:

Use and development of land in the Farming zone for a replacement dwelling and function centre; and a liquor license, in accordance with the endorsed plans.

In directing the grant of the permit, the Tribunal required deletion of a second storey element in an identical location to the current proposal. It would have provided similar facilities albeit in a slightly different configuration to the addition now before me.
Condition 1(a) presently reads "the function centre/dwelling to be single storey in height". The Applicant proposes that in addition to allowing amended plans, this condition be modified to read:

The function centre/dwelling to be primarily single storey in height with the exception of a small upper floor level.

Under section 87A of the Planning and Environment Act 1987, the Tribunal may amend a permit if it "considers it appropriate to do so" at the request of the owner or occupier of the land concerned or any person who is entitled to use or develop the land concerned.
The Council does not support the second storey addition on visual amenity grounds.

None of the other proposed changes to the development by way of plan amendments or conditions are contested by the Council.
I agree that none of these matters are problematic - they are essentially minor in nature. They include amending the wording of Condition 14 which presently reads:

All patrons must vacate the premises no later than 30 minutes after trading ceases.

I will require the following amended form of this condition which would limit any ambiguity as to its intent:

All patrons must vacate the premises no later than 30 minutes after trading ceases other than those patrons staying in the bed and breakfast guest rooms.

The Applicant's arguments in favour of the second storey addition

Mr Smith submitted that the second storey addition is required to provide the necessary space and amenity for the accommodation needs of his family, especially when the function centre is being used. More particularly it was explained that the north wing of the function centre at ground level would be occupied as the family home except when functions are held there during which time the second storey addition would become the primary living space.
It was also contended that the second storey would allow enjoyment of the Bancoora sand dunes to the south-east without causing any unreasonable visual impacts upon the surrounding area. In support of this latter argument, substantial reliance was made upon recent perimeter landscaping works undertaken by Mr Smith, including the creation of a landscaped earth mound along part of the south boundary.

I begin by affirming that because this proceeding has been brought under section 87A of the Planning and Environment Act 1987 it is not a repeat appeal. As the Tribunal observed in Garnaut, it follows that the Tribunal's long standing and consistently applied tests with respect to repeat appeals are not applicable.[5]
Notwithstanding, I also agree with the Member Hewet's observations in Garnaut where he said:
1. ... there are elements of the rationale underlying the Tribunal's approach to repeat appeals which remain relevant to the consideration of applications under section 87A of the Planning and Environment Act 1987. As the Tribunal stated in the Amoco decision, public policy seeks to ensure that there is an end to litigation. If Applicants were repeatedly coming before the Tribunal, perhaps seeking to exhaust the patience of the Tribunal or even in an attempt to pick and choose a suitable division of the Tribunal to hear the appeal, it would be to the detriment of the appeal system. Repeated appeals impose unnecessary costs on respondent parties.
I pursued a frank discussion with Mr Smith at the hearing as to the reasons for this latest proposal, during which he explained that he did not agree with the Tribunal's findings in the previous case.
Although I am not bound by the Tribunal's findings in the previous case, I adopt the following findings made by Member Hewet in Garnaut where he said:
1. ... it is appropriate that I exercise caution when determining whether different findings on the need for the conditions are warranted. This is especially the case in circumstances where the Tribunal made specific findings about matters where a judgement did need to be exercised ... It would be detrimental to the appeal system if repeated applications were made to amend permits on the basis that applicants did not agree with the judgement arrived at by the Tribunal in the original decision.
Following my inspection of the site and surrounds and having considered the submissions made at the hearing, I am not persuaded that I should arrive at a different conclusion to that reached by Member Bensz. The 2-storey element has many similarities to that which was considered in the previous case.
I note that the proposed second storey would have an overall height of 8m and would provide an additional 106.44sq.m of floor space, bringing the total amount of floor space associated with the function centre/dwelling/bed and breakfast accommodation to 870sq.m.[6]
The proposed 2-storey addition before me is 11.4sq.m greater in area than that originally considered by Member Bensz and is of an identical height.[7]
Notwithstanding, I consider that the proposed second storey addition would not achieve an acceptable visual outcome when the natural features of the surrounding area are taken into account. The land surrounding the review site comprises saltmarsh and wetlands - a landform that is inherently flat with low lying vegetation. It is a sensitive context which has an Environmental Significance Overlay (Schedule 2 - High value wetlands and associated habitat protection).
While the earth-mound on the review site with its young plantings and other perimeter planting has begun to grow and would to some extent soften the appearance of the proposed function centre in time, I consider that the two storey element would still potentially have a dominant presence in the landscape given its design and siting to obtain views of the Bancoora dunes to the south-east. This conclusion was similarly reached by the Tribunal in the previous case.[8] This is particularly so when viewed from the south along Breamlea Road north of Torquay-Barwon-Heads Road. Views of the building to the east of the earth-mound would be quite exposed across the flat landform of the neighbouring conservation reserve which comprises coastal saltmarsh and wetlands.
I also have some difficulty with approving the second storey addition, the effect of which would be to increase the extent of built form on a site zoned Farming, the purpose of which does not seek to facilitate residential development. While I acknowledge that the question of use of the land for a dwelling is not before me, I make this finding on the basis of the additional development proposed for this site in combination with other existing or proposed buildings and works elements.
I am not persuaded that the presence of buildings for the Black Rock Treatment facility about 1km[9] to the east can be relied upon as justification for this proposal. That site is within a Public Use Zone 1 - a different zone to that which applies to the review site. Although unquestionably large buildings exist on that site, they read as background elements when viewed from Breamlea Road given the distances between these two locations.
For these reasons I conclude that the permit and plans should not be amended to allow the proposed second storey.

I noted at the hearing that the plans which are the subject of this proposal do not show the location, number and layout of chairs and tables in the proposed function centre. These details should be shown on the plan and I will include a condition to this effect.

For the reasons I have set out, the application is allowed in part.
I will direct the grant of an amended permit although it will not allow the second storey dwelling addition.

[2] The dwelling is located on a lot with an area of 1.414ha and would not meet the Section 1 conditions for lot size.

[3] Plans were endorsed by the Council in conformity with the permit on 2 June 2009.

[4] This decision by Member Bensz indicates that the Bed & Breakfast use is to accommodate not more than 6 persons away from their usual place of residence. If this condition is met (and three carparking spaces are provided - which are proposed), a permit is not required for this use in the Farming Zone.

[5] See the principles for repeat appeals set out in Amoco v Berwick SC (1983) 1 PABR 166. In essence these principles establish that great weight ought to be given to the first decision of the Tribunal. In the absence of any material change of circumstances of the land, and its surrounds, changes in planning policy and/or changes in the interpretation of the facts or law relevant to the Tribunal's consideration, or changes in the proposal itself, the first decision of the Tribunal should be followed.

[6] Including verandahs (totalling 127sq.m on both levels) but excluding the free-standing garage, the latter which would add another 81sq.m.

[7] Excluding the verandah, the dimensions of the 2-storey addition were 5m x 19m.

[9] My estimates using aerial photography from www.nearmap.com/ and www.land.vic.gov.au measured from Breamlea Road near the review site and the largest buildings on the BlackRock Treatment facility site. At paragraph 29 of the previous decision, a distance of 300m is referred to. This however seems to be a reference to the closest point between the title boundaries of the review site and Black Rock Sewerage Treatment Plant.

Environment Act 1987

Finescape Pty Ltd v Greater Geelong CC [2011] VCAT 362 (8 March 2011)

Finescape Pty Ltd v Greater Geelong CC [2011] VCAT 362

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

Finescape Pty Ltd v Greater Geelong CC [2011] VCAT 362 (8 March 2011)