With respect to permit application 040243, the decision of the Responsible Authority to grant a permit is set aside.

The Responsible Authority is directed that no permit be issued pursuant to the provisions of Section 85 of the Planning and Environment Act 1987.

Mr T Goode, Ms R Pella-Mounter, Ms P Meinhardt & Mr T Berry

1

This is an Application under section 82 of the Planning and Environment Act 1987 to review the decision by the Bass Coast Shire Council ('the Council') to grant a permit in application no. 040243 for the development of four double storey dwellings and vegetation removal at 14 Flinders Street, Ventnor.

2

The permit application was received by the Council on 30 March 2004 for the development of four double storey dwellings on the review site. The application was advertised and 11 objections were received, Ms Dunlop provided the following summary of the grounds of objection:

•

Neighbourhood character

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Impact on environment and foreshore

•

Impact on infrastructure

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Precedent

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Overlooking

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Overshadowing

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Development will detract significantly from the general ambience and amenity of the area

•

Visual impact

•

Second kitchen in Unit 4

3

The application was considered at a Council meeting on 21 July 2004 and it was resolved to approve the application and a Notice of Decision to Grant a Permit was issued on 28 July 2004.

4

This application for review of the Council's decision was received by the Tribunal on 16 August 2004 from Mr T Goode and others.

5

All parties made written and oral submissions during the course of the hearing.

6

The review site and surrounds were inspected prior to and after the hearing.

7

All of the material presented during the course of the hearing has been taken in consideration.

8

The review site is located in an established residential area of Ventnor, adjacent to the coastline and a foreshore reserve. It has a frontage to Flinders Street of 20.12 metres and a depth of 85.50 metres. It also has a rear abuttal to a vegetated area adjacent to the foreshore and beach, which includes an unmade road (McHaffie Street).

9

The site has a total area of 1,720 square metres and features a slope from Flinders Street to the rear of approximately 6 metres. It contains an existing single level dwelling that is elevated in part as the land slopes away from the dwelling, created an undercroft area utilised for storage and the like. The site also contains a number of trees and shrubs, predominantly located along the boundaries of the property or scattered throughout the back garden individually.

10

To the east of the site is a single property that contains a single storey dwelling close to the Flinders Street frontage and a row of mature cypress trees adjacent to the majority of the length of the common property boundary with the review site. This provides an effective visual screen between the two properties.

11

To the west of the site are two properties. One fronts Flinders Street and contains a two storey dwelling. The other property has frontage to the unmade McHaffie Street, and gains vehicle access via a driveway from the constructed section of McHaffie Street. It contains a two storey dwelling set close to its rear boundary which is adjacent to the approximate middle of the review site.

12

This pattern of two lots, one fronting Flinders Street and the other fronting McHaffie Street, continues for another two properties to the west and I was advised that a three lot subdivision has been approved on the last property to the west located on the corner of Flinders Street, Graydens Road and McHaffie Street.

13

Flinders Street is a gravel road and is predominantly of single car width. There is a wide grassed verge on either side and driveways that provide room for cars to be able to pass each other along its length.

14

The properties on the opposite side of Flinders Street again have dual frontages to both Flinders Street and Seacombe Grove.

15

The houses in this area of Ventnor are a mix of older single storey dwellings and newer double storey dwellings. It is clear that this is an area undergoing 'gentrification' with the older dwellings slowly being replaced with larger double storey dwellings that capitalise upon the availability of water views.

16

To the north (rear) of the review site is a heavily vegetated area that encompasses the unmade McHaffie Street and the foreshore reserve adjacent to the beach, a depth of approximately 50 metres. There is an existing walking track from the rear of the review site down to the beach, and it includes an old bench seat set amongst the existing vegetation.

17

It is proposed to develop four double storey dwellings on the review site which are approximately 6.9 metres in height above natural ground level.

18

The dwellings feature timber wall cladding, painted brickwork and grey colorbond roofs that feature both flat and skillion sections.

19

All of the dwellings contain either a double garage or two single garages, and three bedrooms with the main bedroom and living area on the first floor level.

20

The dwelling fronting Flinders Street is setback 6.95 metres and has a separate driveway, whilst the remaining three dwellings have vehicular access via a second common driveway on the eastern side of the site.

21

A pedestrian path is provided at the bottom (rear) of the driveway, providing access to the foreshore.

22

As part of the development, it is proposed to remove two trees and three shrubs.

23

The review site and surrounding land including unmade McHaffie Street to the north is contained within a Residential 1 Zone pursuant to Clause 32.01 of the Bass Coast Planning Scheme ('the Planning Scheme'). The purpose of this zone includes:

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To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

•

To encourage residential development that respects the neighbourhood character.

24

A permit is required to construct two or more dwellings on a lot and consideration must be given to the objectives, standards and decision guidelines of clause 55 of the Planning Scheme. I note that the purpose of this clause includes:

•

Achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character.

•

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

•

To encourage residential development that is responsive to the site and the neighbourhood.

25

The foreshore reserve on the north side of unmade McHaffie Street is zoned Public Park and Recreation.

26

The review site and surrounding land to the east, south and west is affected by Design and Development Overlay Schedule 1 ('DDO1') Residential Areas Near The Coast, which seeks to protect views to and from the coast and minimise the impact of development along the coastline. A permit is required for building and works of 7 metres or more in height above ground level. Ms Dunlop and Ms Jackson both submitted that the dwellings are less than 7 metres in height above natural ground level, and therefore no permit is required under DDO1.

27

The review site and all surrounding land is affected by Vegetation Protection Overlay Schedule 2 ('VPO2') Phillip Island, which seeks to protect all existing native and introduced mature trees, facilitate the planting of indigenous vegetation and enhance the natural environment. A permit is required to remove, destroy or lop vegetation on the review site.

28

The foreshore reserve on the north side of unmade McHaffie Street is affected by Environmental Significance Overlay Schedule 1 ('ESO1') Coastal Areas. A permit is required to construct a building or carry out works other than for "normal farming activities" and to remove, lop or destroy vegetation. Its statement of significance includes the following:

This environmentally sensitive area of high landscape quality is threatened by coastal urban settlement and tourist development.

29

In regard to the State Planning Policy Framework, the Council advised that the relevant policies are clause 14.01, urban settlement; clause 15.01 protection of waterways and catchments; clause 15.08 protection of coastal environment; clause 15.09 conservation of native flora and fauna; clause 15.12 energy efficiency; clause 16.02 medium density housing; and clause 19.03 design and built form.

30

The Municipal Strategic Statement ('the MSS') in the Local Planning Policy Framework acknowledges that significant population growth is expected in the municipality, higher than that projected for Regional Victoria and "such growth has significant implications for future planning of the Shire". The settlement pattern is described on page 4 of clause 21.02 of the MSS (including the following quote and my underlining of relevant aspects to this proposal):

Wonthaggi, Inverloch, and Cowes are the major towns within Bass Coast Shire. Other urban settlements are at San Remo, Grantville, Cape Paterson, Dalyston, Kilcunda, Corinella, Coronet Bay, Bass, Newhaven, Rhyll and Ventnor. Small residential estates are scattered throughout the Shire, particularly on Phillip Island and on the Western Port Bay coastline.

Many of the residential estates that have developed along the coastline were originally developed as holiday resorts, with the style and quality of building stock reflecting the non-permanent nature of occupation. Some of these estates have been located in sensitive environmental areas. ...

It is estimated that there are around 5,000 vacant residential lots within towns, either already existing or within areas identified as suitable for future residential development.

Projected dwelling commencements by the Department of Infrastructure indicate that the Shire will need to accommodate approximately 4,400 additional dwellings by 2011. This expected growth will absorb most of the existing vacant lots and will lead to the subdivision of other land in the Residential Zone which should cater for this expected level of growth. A strategic review of the supply of residential land will need to be undertaken towards the end of this period.

31

The MSS describes the coastline of Western Port Bay as a natural resource and highlights the environmental hazards, including stormwater drainage in urban areas where there is inadequate street drainage infrastructure.

32

Clause 21.03-1 of the MSS states that the Council has a strong commitment to urban consolidation and acknowledges the need to improve township character. The vision at clause 21.04-1 includes:

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Fully serviced residential development within defined town boundaries;

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Defined township character or themes for all settlements;

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Balancing the competing interests of protecting the environment and promoting development; and

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Design and siting guidelines for development within significant landscapes, including along the coastline.

33

One of the objectives for urban settlement in clause 21.05-1 of the MSS is "to consolidate urban development within existing urban boundaries separated by rural land". The strategies include:

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Encouraging subdivision of existing lots provided the natural environment and the local community is not adversely affected; and

•

Actively promote infill development.

34

The coastline is one of the identified "natural resources" of the Shire in clause 21.05-2 and the MSS seeks to "facilitate development which does not impact or conflict with the quality and sensitivity of the natural environment". The strategies to achieve this include:

•

Maintaining existing vegetation controls on Phillip Island;

•

Supporting the Island's Landcare group in establishing a wildlife corridor across the island; and

•

Discouraging development that adversely impacts on the coastline.

35

The housing objectives at clause 21.05-3 include providing a range of housing types and lot sizes and increasing residential densities. One of the strategies to achieve this states:

Encourage subdivision of existing lots where local amenity and the environment is not adversely affected, to provide greater diversity in lot sizes and development opportunities.

36

Having considered the submissions, I am of the opinion that a permit should not be granted for the proposed four double storey dwellings. Mr Goode and the other objectors raised a number of concerns that I have had regard to, but my main concern with this proposal is that the design is not respectful of the existing neighbourhood character.

37

The review site is zoned Residential 1 and, as such, makes it a candidate for the development of more than one dwelling. The purpose of the zone encourages the provision of a variety of dwellings at a range of densities. The State and local planning policies of the Planning Scheme encourage and support the consolidation of residential development on land zoned for urban/residential purposes, making better use of infrastructure.

38

This municipality has a clear policy direction of encouraging continued urban growth within the existing townships and this includes, amongst others, Cowes and Ventnor. However, I note that the services and facilities available in each of these "townships" are very different. Cowes has sealed roads, footpaths, shops and community, commercial and industrial facilities and services. This area of Ventnor has a high proportion of gravel roads, no footpaths and one convenience shop quite some distance away on the main road connecting Cowes and The Nobbies. Therefore, I am of the opinion that the infrastructure, services and facilities in this area of Ventnor to support increased residential densities is less than that of Cowes.

39

The vision in the MSS includes balancing the competing interests of protecting the environment and promoting development, and providing defined township character for all settlements. The Council has approved a four dwelling development in a neighbourhood that does not currently contain either this scale or form of development. Clause 11.01 of the Planning Scheme requires responsible authorities (and, upon review, this Tribunal) "to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development". In this instance, I find that the consideration of this proposal has not appropriately balanced the objectives of urban consolidation and respecting neighbourhood character.

40

In regard to neighbourhood character, the local planning policies in the Planning Scheme have been sufficiently developed to provide clear guidance on the preferred neighbourhood character to be established as part of the continued urban consolidation of Cowes. Other townships in the Shire have no such guidance in the Planning Scheme. Therefore, the appropriateness of the proposed medium density housing development on the review site must be considered having regard to the existing neighbourhood character.

41

The purpose of the Residential 1 zone is to encourage development that respects the neighbourhood character. The purposes of clause 55 and clause 55.02-1 include respecting the existing neighbourhood character or contributing to a preferred neighbourhood character. As already discussed, there is no preferred neighbourhood character for Ventnor contained in the Planning Scheme therefore this proposal must be considered having regard to the existing neighbourhood character.

42

The Department of Sustainability and Environment ('DSE') Practice Note "Understanding Neighbourhood Character" dated December 2001 defines neighbourhood character as "the combination of the public and private realms". It requires the identification of the key features of the neighbourhood and consideration of these features and the characteristics of the neighbourhood.

43

I note that Ms Jackson highlighted the following features of this neighbourhood in her submission:

•

No front fencing or low one metre high wire front fencing, except for the review site that has a solid timber front fence.

•

A mix of single and double storey weatherboard dwellings on generously sized allotments.

•

Clear views to and from the private realm of many of the properties.

44

I agree with Ms Jackson that the properties are generously sized and contain a dwelling that is either single or double storey. This neighbourhood has obviously been established for some time as there are two eras of housing styles, the first being the older predominantly single storey "holiday cabin style" houses and the second being the modern larger two storey dwellings that seek to capture views of Westernport Bay from the first floor. The dwellings are generally sited in the middle of the properties, with a single driveway, and walls on property boundaries are not common.

45

The properties generally contain grass and scattered trees or shrubs. The side and rear fencing is generally post and wire fencing, providing "clear views" between properties (as described by Ms Jackson). Some properties contain more dense vegetation screens along the boundaries to increase the privacy between properties.

46

Mr Goode described the neighbourhood as a semi-rural settlement and the "green heart of Ventnor". I agree that the neighbourhood has a semi-rural feel to it based on the spacing of dwellings between grass and vegetation screens, the lack of solid fencing and the narrow gravel roads. I find that this neighbourhood is also nestled amongst the foreshore reserve vegetation to the north and the vegetation found on further parkland and public use land to the west.

47

Mr Goode stated that the Planning Scheme requirements for medium density housing are the same throughout Victoria, but you cannot compare say Hawthorn East to Ventnor. I agree with this statement, but I also consider that the provisions of the Planning Scheme do provide for the consideration of the differences between suburbs in Melbourne, by requiring new residential development to be respectful of neighbourhood character. In this case, the features and characteristics of the proposal that I find to be at odds with (and not respectful of) the neighbourhood include:

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Four double storey dwellings sited down the length of the western boundary with garages built to the boundary;

•

Two driveways along the frontage with one driveway that follows the length of the eastern boundary and has the appearance of a "gun barrel driveway"; and

•

A new 1.65 metre high side paling "privacy" fence.

48

The DSE Practice Note on neighbourhood character states that respecting neighbourhood character does not mean preventing change or resulting in replication. It goes on to state:

In simple terms, respect for the character of a neighbourhood means that the development should try to 'fit in'. Depending on the neighbourhood, there are two broad approaches to respecting character:

•

Respecting the scale and form of surrounding development

•

Respecting the architectural style of surrounding development

49

Neither the Council nor the Permit Applicant was able to demonstrate during the hearing that the proposal is respectful of the neighbourhood character. Ms Dunlop did acknowledge that the proposal "does not directly imitate the character of the area". Having regard to the Practice Note, I am of the opinion that the extent of change in this proposal (being four double storey dwellings) is not respectful of the scale or form of the surrounding development in this neighbourhood.

50

Mr Goode and the other objectors were in general agreement that the development of the review site for two dwellings would be a more appropriate design response that respected the existing neighbourhood character. He pointed to the properties to the west of the review site that contain one allotment fronting Flinders Street and another allotment fronting McHaffie Street. I agree that the development of two dwellings on the review site would be a change that respects the existing neighbourhood character.

51

Ms Jackson and Ms Dunlop both highlighted the approved three lot subdivision at the end of Flinders Street as justification for allowing four dwellings on the review site. However I find that, in addition to the neighbourhood characteristics already discussed, the context of these two properties is different. The three lot subdivision site is situated on a street corner and has three street frontages, effectively one for each allotment, and is separated from the foreshore by the constructed section of McHaffie Street. Whereas the review site is sited mid-block and is immediately adjacent to residential properties on two sides, the narrow gravel Flinders Street at the front and the unmade McHaffie Street/foreshore reserve at the rear.

52

The Planning Scheme does not encourage residential development regardless of the potential impacts. One of the purposes of clause 55 of the Planning Scheme is to encourage residential development that provides reasonable standards of amenity for existing and new residents.

53

Ms Meinhardt expressed concern about overlooking and overshadowing of her adjoining property to the west (with frontage to unmade McHaffie Street). She also expressed concern about the garage walls on the boundary, and the bins and clotheslines to be located adjacent to her boundary.

54

The Council and the Permit Applicant both submitted that the amenity standards in clause 55 had been met by this proposal, therefore there are no unreasonable amenity impacts upon neighbouring properties.

55

As already stated, the character of this residential neighbourhood is different to a typical residential street in metropolitan Melbourne. This is due in part to the 'openness' of the neighbourhood with post and wire fencing or no fencing. This means there is a visible connection between properties and there is not the level of privacy found in metropolitan Melbourne where properties are provided with solid boundary fencing. In my opinion, a residential development on the review site needs to respond to the existing amenity by creating an intensity of development that is respectful of the existing 'openness' and the inter-relationship between properties.

56

The scale of this development and the extent of building form across the site create visual bulk on a site that presently has one building. The extent of building form across the site, in my opinion, creates an unreasonable visual impact upon the amenity of the neighbouring properties.

57

Mr Goode and Ms Pella-Mounter expressed concern about the inability of the proposal to provide for visitor and boat parking. Ms Jackson conceded that other VCAT cases have required additional car parking but submitted that it is not necessary here. I note that, technically, the standards of clause 55 have been met in regard to the provision of visitor parking, therefore I consider that the parking provision of this proposal (whether it be for visitors or boats) is not a ground for refusal of this application.

58

Mr Goode and Ms Pella-Mounter expressed concern about the difficulty of cars passing each other in Flinders Street due to its limited width and the unmade culvert. In my opinion, this is a constraint that needs to be considered in a design response not only for the development of the review site but for development within this neighbourhood generally. I adopt the findings of another division of this Tribunal in the matter of Sims v Bass Coast SC [2004] VCAT 971, where Member Cimino stated at paragraph 31:

The nature of the road infrastructure servicing the subject land and wider neighbourhood is a relevant factor to consider and may act as a constraint on the land's development potential. However, the nature of the road infrastructure does not, in my view, mean that there is no potential for the land to be developed for more than 1 dwelling. Rather, it is a factor that needs to be taken into account and it must be demonstrated that the design has responded to this factor in an appropriate way.

59

Mr Berry expressed concern about the impact of the development upon the dune in the foreshore reserve, adjacent to the review site and his adjoining property to the east. The review site currently provides a walking track from the rear boundary across the unmade McHaffie Street, through the foreshore reserve to the beach. Mr Berry and the other objectors advised me during the hearing that the owner of the review site had historically allowed this track to be used by other residents along Flinders Street.

60

The Council have imposed a condition in the Notice of Decision to Grant a Permit requiring, prior to the dwellings being occupied, the construction of a 60 metre by 1.5 metre timber edge Koonwarra gravel pathway from the rear of the review site to the shared crushed rock pathway in McHaffie Street road reserve, approximately 60 metres west of the review site.

61

Ms Dunlop explained that the Council's justification for this pathway is that there will be three new dwellings on the review site and hence there will be an impact upon the foreshore.

62

I have inspected the beach in front of the review site and note that there are three clearly identifiable tracks that provide access to this beach. One leads to the review site, another leads to the front of Ms Pella-Mounter and Ms Meinhardt's properties and the third leads to the corner of McHaffie Street and Graydens Road.

63

As I stated during the hearing, I have a number of concerns about the imposition of this condition. The first is that the foreshore reserve and unmade McHaffie Street are affected by an Environmental Significance Overlay that requires a planning permit to construct a building or carry out works and to remove, lop or destroy vegetation; and a Vegetation Protection Overlay that requires a permit to remove, lop or destroy vegetation. It is also possible that a permit will be required under the Coastal Management Act. No such permits have been sought or approved, and there is no guarantee that such permits will be approved, particularly given the environmental sensitivity of the foreshore reserve as was highlighted by Mr Goode and Mr Berry. Ms Pella-Mounter expressed concern about the pathway going along the front of her property, so I note that there may be objections to such permit applications. If these permits are unable to be obtained, the permit holder will be in breach of the permit.

64

The second concern is that the occupants of the dwellings on the review site will not be the only beneficiaries of this pathway as it will pass other properties between the review site and Graydens Road/McHaffie Street. Therefore, there is no equity to the owner of the review site being required to pay for its construction as other property owners will also have the benefit of it.

65

The third concern is the land that is subject of this planning permit application does not include either the unmade McHaffie Street or the foreshore reserve. Therefore, the imposition of such a condition is arguably invalid for lack of certainty that it can be complied with.

66

For all of these reasons, I am of the opinion that the existing arrangements for access to the beach should remain until such time as the Council and the applicable management body responsible for McHaffie Street and the foreshore reserve decide to undertake action (such as the construction of pathways) to formalise and limit the beach access arrangements.

For the above reasons, the decision of the Responsible Authority to grant a permit is set aside. It is ordered that no permit be issued.