1 This was an application for review brought by Objectors against the decision of the Surf Coast Shire to grant a permit for a second storey extension to a dwelling situated at 16 Evans Street, Anglesea. The principal ground of the objections stems from an assertion that the extension will unreasonably deprive a number of properties from the views they presently enjoy.

2 The review site is situated on the north eastern side of the road and comprises an area of 570 square metres. It is improved by a single storey "asbestos sheet" dwelling containing three bedrooms. Its owner seeks to add a second storey containing living quarters and a large rumpus room. It is his intention, in effect, to convert a holiday cottage into a permanent residence. The new storey would be recessed and rotated compared to the ground level footprint. The roof form was described by its designer as of a "butterfly style" with two skillion sections meeting at a low point in the middle. The butterfly roof would have a maximum height of 7.44 metres above natural surface level. A rooftop viewing platform was also proposed.

3 Five objections were lodged against the proposal. These, the Responsible Authority summarised as follows:

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Loss of views;

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Excessive height and bulk;

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Overlooking;

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Overshadowing.

4 The Objectors all reside in Little Street which runs parallel to Evans Street on higher ground to its rear. The properties of the Objectors overlook the review site. All enjoy panoramic sea views across the dwellings in Evans Street to the sea and hinterland that lies beyond.

5 On 31 January 2005, the Shire's Planning Committee determined to issue a Notice of Decision to Grant a Permit. It required deletion of the rooftop viewing platform. The Permit Applicant has not contested that condition. The Objectors have sought a review of the Responsible Authority's decision.

6 An inspection of both the review site and the Objector's properties took place on 13 May 2005. During that inspection, and under the supervision of a licensed surveyor, poles were erected at certain designated points in order to depict the profile of the proposed extension. The Tribunal found this exercise to be most helpful. Following the inspection, and with the agreement of all parties, a hearing was conducted at the Shire offices. At that time all parties made submissions, either written or oral, and evidence was given on behalf of the Respondent by Mr P Baulch, a Consultant Town Planner. Mr Baulch spoke to a written submission which has been placed on the Tribunal's file.

7 The submissions of the parties in this matter are relatively straightforward. Both the Responsible Authority and the Respondent submit that there is no legal right to a view and, insofar as the Objectors will suffer any interference with the views they presently enjoy, such a loss is to be expected and is reasonable. The Objectors contend that the loss is so great that it is unreasonable, and will impinge significantly on their enjoyment of their own properties.

8 The Tribunal turns now to examine these arguments. First, it notes that the land exceeds 300 square metres in area that is in the Residential 1 Zone. The proposal would be as of right but for the existence of a significant landscape overlay. Pursuant to the overlay provisions, a permit is required as the building will exceed a height of 5 metres above natural surface level.

9 Among the objectives set down in Clause 42.03 of the Planning Scheme, the following appears:

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To provide for a reasonable sharing of significant landscape features, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries, and notable coastal features, which form an important part of the amenity of coastal properties.

In Clause 22.01, the Municipal Strategic Statement addresses policies for coastal development. Again the importance of views is identified, and an objective being:

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To recognise that views form an important part of the amenity of a property and to provide for a reasonable sharing of views of significant landscape features, including views of the ocean, coastal shoreline and notable cultural features.

10 In his evidence, Mr Baulch justified his position with the following observations:

"I have viewed the review site from various locations on the Healy deck in both a standing and seated position. It is my opinion that views that will be lost from the Healy property at 5 Little Street will not be unreasonable for the following reasons.

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The property has a large deck that extends for the entire southern elevation with almost unimpeded views of the ocean and Point Roadknight. The development will result in the loss of some of these views, however from various locations on the deck there will still be views of Point Roadknight and the ocean. It is my opinion that the loss of views that will occur to this property is reasonable.

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When at the eastern end of the deck views of the ocean to the east and west will be available. In the order of 20% of the current view will be reduced.

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When centrally located on the deck views will still be available to the east and west and there will still be partial views of Point Roadknight.

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Views from the western end of the deck will be most affected when seated. However there will still be partial views of Point Roadknight, the ocean and the hinterland. It is noted that the Healy's currently have a table at this end of the deck. If the table was moved slightly to the east the views would be improved. It is my opinion that it is not unreasonable for this to occur."

11 All of the Objectors contested this assessment. Under cross examination, Mr Baulch conceded that, from the central point of the Healy deck, about 30% of the total view would be affected. He also conceded that the Healy's principal view was to Point Roadknight and that view would be lost save, perhaps, for a small sliver of ocean visible through the low point of the butterfly roof. This opinion accords with the Tribunal's own assessment formed during the inspection.

12 The principles formulated by the Tribunal over a very lengthy period in relation to views were summarised in Mr Connor's written submission as follows:

(b) Views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account.

(c) The availability of views must be considered in the light of what constitutes a reasonable sharing of those views; and

(d) added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme. (See Tashounidis v Flinders SC (1987) 1 AATR 116).

13 In Centrum Architects Pty Ltd v Surf Coast SC, Morling and Others (noted at 10 VPR 126), the Tribunal added another criterion. In that case, the owners of a number of single storey dwellings opposed the development of a two storey house on lower land. The Tribunal noted that, had the Objectors developed their properties to their maximum potential, they would have retained their panoramic views. Thus, the level to which the Objectors had developed their own properties was held to be a relevant consideration.

14 While the Tribunal accepts Mr Baulch's quantitative assessment that approximately 30% of the Healy's viewshed would be lost (viewed from the central point of the deck), it seems Mr Baulch did not give a great deal of consideration to making a qualitative assessment in which the value of the lost 30% was appraised. As both Mr Peeters and Mr Baulch conceded, the main viewshed of the Healy property is to Point Roadknight, across the picturesque cove of water, and taking in the sandy foreshore. That view will be almost totally lost. Views will still be available to the more distant hinterland, and to the deeper waters of Bass Strait, further to the south east. However, by comparison, the view that would remain is a secondary or ancillary view.

15 The Tribunal does not accept the proposition that the value of views can be assessed from peripheral points of the Objector's viewing areas. The most obvious and sensible starting point is to make that assessment from those positions that are most likely to be commonly utilised.

16 As earlier indicated, the Tribunal inspected the properties of both Mr White and Mr Orme whose properties lie on each side of the Healy residence. The Orme family also owns a vacant lot which lies to the rear of the review site. In each of these cases, although there would be a loss of view, it does not entail the removal or interference with the primary viewshed. Accordingly the Tribunal believes that neither of those two situations represents an unreasonable loss of view.

17 The Tribunal returns to the Healy situation. In its assessment, when viewed from the central portion of the deck, their loss would be both significant and dramatic. Moreover, their main living areas open directly onto the deck and enjoy similar views, views that would also be severely affected. It is perhaps unfortunate that the designer was not called to give evidence, as it may have been beneficial to explore whether the overall height of the building could be lowered while still leaving the basis of the design intact. It may also have been beneficial to explore whether a different and more modest roof profile could have achieved a better outcome. It seems to the Tribunal that other options do exist but it was not in a position to test the efficiency of alternative solutions.

18 It seems, from the submissions of the Objectors, that the Permit Applicant did not initiate a consultative process prior to lodging a formal application. There is, of course, no legal obligation to do so. However, in a situation such as this, where amenity is a key factor, it is regrettable that some prior discussion did not take place. Indeed, it is a key factor as to why the Permit Applicant now finds himself in his present position. The Tribunal has no doubt at all that the site can support an upward extension. It also accepts Mr Connor's submission that the site is ripe for redevelopment and an upgraded building would add to the ambience and appearance of the locality. However, it needs to be carried out with greater regard for the amenity of the Healy property.

19 In the Tribunal's view, the proposal fails to recognise the Planning Scheme directive that a reasonable sharing of views should take place.

20 This is not a situation where development of the "front row" will inevitably lead to an obliteration of views from the rows behind. With forethought and proper planning, most dwellings in the vicinity should be able to maintain good sea views, nor is this a case where the Objectors have failed to maximise their own opportunities. All three of the Objector's properties support substantial, two storey dwellings.

21 The Tribunal considers that the Tashouindis principles have now been refined to the extent that they should be re-stated as follows:

(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

22 The Tribunal holds that the loss of views to the property owned by Mr and Mrs Healy, has occasioned by the present proposal, is unreasonable. It therefore upholds the application for review, sets aside the Responsible Authority's decision, and directs that no permit issue.

Senior Member Ian Marsden