1. Amended plans marked TP01C, TP02-K, TP03-J, TP04-J, TP05-J, TP06-J, TP07-J, TP08-I (all dated April 2010) and LDCP01 (Landscape Concept Plan) are substituted for the application plans.
2. The decision of the Responsible Authority is set aside.
3. In permit application P08/2576 a permit is granted and directed to be issued for the land at 55-75 Sunnyside Road, Mount Eliza. The permit will allow:
   • The use and development of a dwelling, tennis court, pavilion and associated works in accordance with the endorsed plans.

Mr Ian Pitt, SC of Best Hooper Solicitors. Dr Rodney Wulff, Landscape Architect of Tract Consultants Pty Ltd gave written and oral evidence.

Mr Geoff Nicol, Town Planning Consultant. Mr Allan Wyatt, Landscape Architect of Environmental Resources Management Australia gave written and oral evidence.

Ms June Horner, Secretary Mount Eliza Action Group Inc.

Dr Jeff Yugovic, Mount Eliza Coastcare (27 May only).

Construction of a single dwelling and associated tennis court and buildings and works.

Section 77 Planning and Environment Act 1987.

Heritage Overlay (HO2350 - part of the driveway near Sunnyside Road which is not affected by the application).

Cl. 35.04-1 & 5 (use and development of land for a dwelling in GWZ3).

Cl. 42.01-2 (buildings and works and removal of native vegetation in ESO1).

Cl. 52.21 (construction of private tennis court because land is in ESO1).

I inspected the locality, the foreshore and the review site after the hearing.

The review site forms part of the Pinecliff horse training facility located on the eastern side of Sunnyside Road. The property comprises two lots with a total area of 48.4 hectares. The smaller lot on which the dwelling is to be constructed has an area of 17.6 hectares and a 20 metre wide strip of land provides a physical connection with Sunnyside Road. The site has a 575 metre frontage to the waterline.

1. Council has refused a permit for the construction of a dwelling on the site, despite an initial recommendation to approve the application. The favourable recommendation was superseded by a supplementary report based on advice received from ERM Australia concerning unacceptable visual and landscape impacts.
2. The Mount Eliza Action Group Inc (MEAG) and Mount Eliza Coastcare support Council's decision for the reasons I outline in the next section.

1. The key issue in this case is the visual and landscape impact of constructing a new dwelling in the location proposed, and was the focus of submissions and evidence presented by Council, the permit applicant and Dr Yugovic representing Mount Eliza Coastcare. In addition to the landscape and visual aspects of the proposal, Dr Yugovic also submitted that the locality was of recognised scientific interest and importance, and that the proposal would affect the amenity of, and opportunity to expand, the Moondah South Coastal Reserve.
2. The Mount Eliza Action Group Inc dealt with visual impacts but also submitted that:

1. Allowing a second dwelling on the total property is contrary to the Green Wedge Zone provisions and policy guiding development in the green break between Mt Eliza and Mornington. 2. The land occupied by the dwelling, tennis court and surrounds would diminish the agricultural land on the site.

1. The dwelling is too large and an overdevelopment.

1. The dwelling is contrary to the ESO1 by being too close to the escarpment. 2. The proposal is on a landslip area and an independent geotechnical report should be undertaken to protect Council and legal liability.

Some issues are not central to a consideration of this application

1. In my view, many of the matters raised by MEAG and Mount Eliza Coastcare are peripheral to the key issue to be decided in this planning application, and in some cases are misconceived.
2. The new dwelling replaces a much smaller dwelling demolished in 2006. It is not in the same location as the original dwelling but is further upslope and, with the latest amendments, further away from the escarpment. It is situated within a large area that is highly disturbed and not used for any form of agricultural or farming purpose. It is best described as 'a service area' similar to that found on any rural property. It contains sheds, shipping containers, rubbish, stock piles of materials, farm and other equipment and general storage. It is incorrect to submit that use of this area will in any way diminish the agricultural land on the site. This is an entirely different circumstance to one where a dwelling is constructed on open farmland previously used for cropping or grazing or in a vineyard or orchard where vines or trees have to be removed to allow the construction of a dwelling and associated structures and gardens.
3. Although the proposed dwelling will be a second dwelling on the property, it is in fact the only dwelling on this particular lot and is not, as suggested by MEAG, in contravention of the Green Wedge Zone condition that it must be the only dwelling on a lot. The lot size is of some relevance and would be of much greater importance if it were a separate lot, not forming part of a larger property and not used as part of an agricultural activity or enterprise. However, in this case I am satisfied that the dwelling is associated with the agricultural use of the land and do not agree that the dwelling is some form of 'stand alone' lifestyle development. Pinecliff is a very intensively developed horse training facility that is clearly a major rural enterprise. My inspection confirmed that large sums of money have been expended on establishing the training facilities and that the level of day to day management (and staffing) is very high. I did not try to count the amount of vegetation to confirm the permit applicant's claim that 500,000 plants have been established in recent years, but have no reason to doubt that a huge number of trees and shrubs have been planted throughout the property. My clambering up and down the escarpment revealed the amount of planting that has, and is, being undertaken in that area alone.
4. I do not accept any suggestion by MEAG that this building is not a dwelling and that it is instead a boutique hotel. I accept that it is a very large dwelling, and that it has many bedrooms. That in itself is not peculiar or remarkable and large dwellings (mansions) have been constructed throughout our rural areas since European settlement began. There are no limitations on the size of dwellings in the Green Wedge Zone and it is irrelevant unless there are specific impacts arising from that size. Size is more likely to matter in an urban setting where adverse off-site impacts, such as overshadowing and visual bulk, may well arise as a direct consequence of a very large dwelling. In this case there are no such direct off-site impacts.
5. Although submissions were made that a strip of land along the beach should be given over to public ownership, there is no justification for requiring such a land transfer. There is no Public Acquisition Overlay in place and this dwelling application is quite different to the application for a re-subdivision of the large C J Farms property closer to Mt Eliza where land is to be transferred into public ownership. I accept Dr Yugovic's submission about the scientific importance of the foreshore but am satisfied that the construction of a dwelling, tennis courts and other works as shown on the amended plans will not adversely affect those features or an appreciation of them in the landscape and visual setting. Geotechnical issues have been assessed for the permit applicant by Civiltest Pty Ltd and Council has obtained its own peer review by Douglas Partners Geotechnical Engineers. Those reports related to the earlier proposal but found that the stability of the cliff face would not be adversely affected provided design and construction followed the recommended guidelines. Relocation further away from the cliff is likely to have reduced the potential for adverse impacts but permit conditions require a new assessment based on the new layout. This is satisfactory.
6. An issue was also raised about the impact of the proposal on the use of Sunnyside Beach North as a clothing optional or nudist beach. The potential for overlooking this beach from the proposed dwelling was referred to by Mr Wyatt (see for example page 9 of his statement) but I agree with Mr Pitt that there is nothing in the Planning Scheme that makes the existence of an optional clothing beach a relevant consideration in my assessment of this application. Moreover, I am not convinced that there will be views onto the beach from the dwelling and, that if there are any at all, they will be so limited as to be of no significance for any unclothed people who have chosen to be naked in a public setting.
7. Inevitably parties in planning hearings at VCAT go away feeling they have either 'won' or 'lost' a case. However, it is not that simple and this case illustrates the point. Although I have found in favour of granting a permit, it is only because Council and residents opposed the original proposal that it has been modified to an acceptable degree. In essence, the dwelling has been moved further from the escarpment and lowered further into the ground. They are not insignificant changes.

Is the dwelling now acceptable given the landscape and visual context?

1. I accept that from the foreshore, part of the top section of the dwelling still remains visible amongst the vegetation, but to a lesser degree than when first considered by Council. As a result of my inspection and viewing of height poles from along the foreshore, it is my estimation that there will be glimpses of the top part of the dwelling from small sections of Sunnyside Beach North between Receptor Points 1and 2, in the vicinity of Receptor Point 3 and for most of Moondah Beach on either side of Receptor Point 4 and on towards Mt Eliza. These Receptor Points were identified as key viewing points by Council and visual assessments provided from these points. I agree that an assessment of views is not only confined to these points and on my inspection I took the opportunity to assess views along the whole stretch of foreshore from the rocky point near Receptor 1 to areas well beyond Receptor 4.
2. The proposal shown on the amended plans needs to be compared with the proposal received and assessed by Council. The original plans located the dwelling just 1.5 metres from the escarpment edge with a maximum building height of 8.9 metres above ground level. Photomontages included in the Council report show the dwelling protruding very prominently above the escarpment. The recommendation to approve was conditional and required the dwelling to be relocated a minimum of 10 metres from the escarpment, and with a maximum height of 8 metres (parapet not to exceed RL 61.2). As already noted, Council sought a report from ERM Australia as to the visual impact of the conditional changes referred to above. The advice from ERM Australia was, in essence, that the conditional changes would not result in an acceptable development and that the application should be refused. The supplementary report did discuss the possibility of issuing a permit with even more stringent siting conditions, but there was a concern that it could produce unpredictable results and result in a transformation of the proposal.
3. Having seen those earlier plans and montages, I agree with Council that the dwelling was very prominent and that it was clearly visible on top of the escarpment. The latest proposal has the dwelling setback 23.6 metres from the edge of escarpment and the roof level has been lowered from 61.2 RL to 59.2 RL. The latest photomontages included in Dr Wulff's evidence statement demonstrate to my satisfaction that the dwelling will be largely hidden from view from the foreshore. More of it becomes visible as distance increases along Moondah Beach, but it becomes a relatively smaller element in the broader landscape, which then opens up views to other buildings along the coast.

Does policy for development in coastal locations support the proposal?

1. I have already made comment about whether the proposal is consistent with the Green Wedge Zone provisions concerning the number of dwellings on a lot and the agricultural use of the land. I also want to make it clear that I am satisfied that the construction of a dwelling on this site does not undermine the green, non-urban break between Mt Eliza and Mornington or policy aimed at, amongst other things, protecting agricultural land, avoiding inappropriate rural residential development and maintaining and enhancing the landscape and environmental values of rural areas.
2. Specific policy deals with development in coastal locations and parties and witnesses variously made reference to the most relevant of these including Clauses 15.08 and 21.08, the Victorian Coastal Strategy 2008, the Landscape Settings Types for the Victorian Coast (1998) and the Siting and Design Guidelines for Structures on the Victorian Coast (1998). Dr Wulff was a joint author of these last two named documents which were prepared for the Victorian Coastal Council and followed earlier work he had undertaken for the Port Phillip Authority on the Siting & Design Guidelines for Structures on the Port Phillip Coast (1983).
3. The Landscape Settings Types for the Victorian Coast includes the review site within Setting Type 17 Suburban Bushland Escarpment - Frankston to Safety Beach. The document provides a description of the setting and lists four special considerations. These note that development tends to be visually exposed due to slope and elevation, that the area is of important scenic quality and requiring of special landscape protection, that development should be well setback from cliff edges to reduce visual impact and that there is a need for appropriate planning controls to protect landscape values. Both Dr Wulff and Mr Wyatt made comment about these and whether the development responded satisfactorily to them. It is unfortunate that Mr Wyatt did not have access to the photomontages for the amended proposal when he prepared his evidence statement, as there is clear difference between the ones he has included in his statement, and the more recent ones included in Dr Wulff's statement.
4. Dr Wulff also discussed the philosophy and method for assessing visual and landscape impacts and made reference to identifying the design intent and a site's visual absorption capacity (see pages 8-11 of his statement). Design intent can be put into three categories - highlight development, merge development in landscape, and disguise development in landscape. Dr Wulff suggested that along the Victorian coast it is only at Wilsons Promontory and the Capes near Portland that development should be disguised and that on a site such as this one at Mt Eliza, a merging into the landscape is what is required of any development. It his opinion that the development has merged/blended into the landscape. I agree with him - but only on the basis of the amended proposal with its much greater setback from the escarpment edge and lower overall height.
5. Dr Wulff also provided an assessment against the Cultural and Aesthetic Guidelines which is one of three categories contained within the Siting and Design Guidelines for Structures on the Victorian Coast. The other two categories (Functional and Ecological Guidelines) are of less relevance to this particular application. His responses indicate that the dwelling largely satisfies these guidelines, an opinion not seriously questioned during cross examination. Dr Wulff did suggest however, the use of muted non reflective materials and suggested that the upper façade be clad in copper to reduce its prominence. I agree with his suggestion and have amended condition 1(c) accordingly.
6. Achieving invisibility is not a necessity for either visual or landscape reasons. Mr Pitt is correct in noting that the Planning Scheme does not seek invisibility for new development. Buildings are evident right along the coast, although I accept that in the Green Wedge Zone between Mt Eliza and Mornington they are few in number, and only a handful in this green break are visible from the foreshore. However, I am satisfied that construction of what is, in effect, a replacement dwelling on the review site does not undermine that overall character, despite it being very much larger than the dwelling it replaces and in a more elevated, upslope position.

1. The original application required the removal of two large native trees but I am now advised that it is no longer necessary to remove vegetation for which a permit is required (i.e. under the ESO1, plants indigenous to Victoria and native vegetation removal under Clause 52.17). Originally a southern Mahogany Gum and Bracelet Honeymyrtle were required to be removed for the tennis court. No other vegetation is to be removed including any on or near the escarpment. I have therefore amended the permit description to delete reference to vegetation removal.
2. In both the original application considered by Council and the proposal incorporating a 10 metre setback from the escarpment, the planting of new vegetation was quite critical in helping to minimise the visual impact of the proposed dwelling. While the planting of vegetation in the manner shown on the amended landscape plan is still important, the latest montages included in Dr Wulff's evidence statement suggest that it is less critical in achieving a satisfactory visual outcome. The time series montages of the site viewed from Receptor 4 show that the top of the dwelling will be visible above and amongst the existing vegetation, but by about year 5 it will appear to be nestled amongst the vegetation. Even if this depiction is optimistic, I am still satisfied that the building does effectively merge with the landscape in the manner discussed by Dr Wulff and referred to above in paragraph 18. The upper parts of the building will be seen, but I do not accept that this is an unreasonable or unacceptable impact on views from along Moondah Beach. Suggestions that the escarpment will become denuded of vegetation, thereby fully exposing the dwelling to views from the foreshore, are not plausible unless there is a major natural catastrophe. I have already commented about observing the significant landscaping and vegetation works that are being undertaken on the escarpment. That work, together with the landscaping shown on the landscape plan, will provide additional screening around the dwelling but without obscuring more horizontal views from the dwelling. This is a very positive outcome.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing, as well as changes arising from my discussion in these reasons.

1. Having regard to the above I will set aside Council's decision and direct that a permit issue subject to the conditions set out in the Appendix.

The use and development of a dwelling, tennis court, pavilion and associated works in accordance with the endorsed plans.

1. Before the use and/or development starts, amended plans (three copies) must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the substituted plans but modified to show:
   • (a) The plans must indicate that all heights are taken from the Australian Height Datum.
   • (b) Except for the lift overrun and plant area, no part of the dwelling must exceed a height of 8 metres above natural ground level and the depth and extent of excavation must not be increased to meet this requirement.
   • (c) A schedule of construction materials, external finishes and colours including samples and incorporating non-reflective, neutral tones which blend with the surrounding landscape, to the satisfaction of the Responsible Authority. The glass used on the dwelling must also be a low reflectivity type and copper must be used for the façade of the top floor.
   • (d) With the exception of the area marked as lawn, the Landscaping Plan (prepared by Tract Consultants, Revision 04) must be amended, if necessary, to indicate the retention of all indigenous vegetation within 3 metres of the edge of the escarpment and landscaping within 5 metres of the escarpment to integrate the dwelling into the environment and assist in stabilizing the site.
2. The layout of the site and the size, design and location of the buildings and works permitted must always accord with the endorsed plan and must not be altered or modified without the further written consent of the Responsible Authority.
3. Except with the written consent of the Responsible Authority, within 12 months of the occupation of the approved dwelling, vegetation in accordance with the landscape plan endorsed as part of this permit must be planted to the satisfaction of the Responsible Authority.
4. All planting must be maintained in a healthy condition to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.
5. All disturbed surfaces on the land resulting from the development must be revegetated and stabilized to the satisfaction of the Responsible Authority.
6. All plant, equipment, services on the roof of the building must be located behind the parapet wall indicated on the plans and must not exceed 8.2 metres above natural ground level except with the written consent of, and to the satisfaction of the Responsible Authority.
7. Before the commencement of any buildings and works associated with this development, a geotechnical investigation of the dwelling site as shown hatched on Plan TP02-K (April 2010) is to be undertaken by a person or firm to the satisfaction of the Responsible Authority with expertise in slope stability who must prepare a report to be submitted to and approved by the Responsible Authority. The geotechnical investigation undertaken for the slope stability assessment must be in accordance with the Australian Geomechanics Society's (AGS) references called 'Guideline for Landslip Susceptibility, Hazard and Risk Zoning for Land Use Planning 2007' and 'The Australian Geoguides for Slope Management and Maintenance 2007'.
8. Prior to the commencement of works, the proposed footings and retaining walls are to be designed by a qualified Structural Engineer registered as a Civil Engineer with the Building Practitioners Board of Victoria. Proposed footings for the dwelling and retaining walls must be designed in accordance with parameters provided in a Geotechnical Investigation and Report prepared by a suitably qualified Geotechnical Consultant.
9. All construction works relating to the proposed dwelling and retaining walls are to be completed in accordance with the engineer's design.
10. Prior to the occupation of the approved dwelling, the dwelling must be connected to a waste water disposal system approved by the Responsible Authority.
11. Before the initial occupation of the development approved by this permit, all earthworks, retaining walls and drainage works must be completed to the satisfaction of the Responsible Authority in accordance with the endorsed plans approved by the Responsible Authority.
12. All excess soil/spoil from the works and other waste material must be removed from the land at regular intervals or stored on the land in an appropriate manner to ensure that the amenity of the area is no detrimentally affected to the satisfaction of the Responsible Authority.
13. This permit will expire if one of the following circumstances applies:
    • (a) The use and development is not commenced within two (2) years from the date of issue of this permit;
    • (b) The development is not completed within four (4) years from the date of this permit

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.