Hesseen v Yarra Ranges SC [2006] VCAT 2166

In permit application no. YR/2005/77 the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr W Passauer, Mr J Rose & Ms F Pieterson in person. Mrs B Marsden for Save the Dandenongs League Inc. and on behalf of Ms J Tenner of the Upper Yarra & Dandenongs Environmental Council Inc.

1 Mr & Mrs Hesseen propose a substantial dwelling "Castle Chalet" with three bed and breakfast suites on a sloping site overlooking the Emerald Creek valley. Mr & Mrs Hesseen have sought review of the Council's decision to refuse the permit application. Thus, the Tribunal must decide whether a permit should be granted. The proposal is opposed by the Council and some residents. The key issues for my determination are:

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whether the proposal responds appropriately to neighbourhood character and related considerations;

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whether off-site amenity impacts would be reasonable;

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whether there are other impacts that warrant rejection of the proposal.

2 Having considered all submissions and evidence, assisted by my inspections of the site and adjacent properties[2], I will affirm the Council's decision for the reasons that follow. In setting out my reasons, I do not recite all of the material presented as all documentation is held on file.

3 Located to the south of Chalet Road with frontage to Toronto Road[3], the review site is 1.41 hectares in area and occupied by a double storey Tudor style dwelling. The land falls quite significantly from the north-west to the south-east, by more than 20 metres. There is existing planting on the land including gardens and 3-5 metre high pittosporum plus cypress and pines around the perimeter of the review site. A pool is to the north of the dwelling and a tennis court is to the south toward the lower part of the land.

4 The wider area is developed with rural living properties with a divergence of dwelling styles on lots of varied size. Directly to the north, upslope, of the review site are three lots each with a dwelling. These lots are each around 0.3 hectares. Chalet Road is steep in part. This section of Chalet Road is close to the R J Hamer arboretum, with stunning valley and mountain views. The Silvan Reservoir also on the north side of the Road. Chalet Road and Toronto Road are gravel with a recently constructed concrete section of Toronto Road south of the review site.

5 Approval is sought to construct a residence over three levels. The building would have six bedrooms, three bed & breakfast suites, a gallery and multiple living areas, recreational areas including a pool, spa, sauna and massage room, and multiple service rooms and amenities. The existing pool would be internalised. The dwelling would have a ground and first floor area each of 998 square metres with 403 square metres in the attic. The plans show two entries/halls with the western end of the building including 3 two level bed & breakfast suites and a gallery. Mr Hesseen explained at the Hearing that the gallery would house a private aboriginal art collection that would be able to be viewed by guests of the three suites. Two lifts are proposed.

6 The building's height would be 11.77 metres (highest parapet) with cylindrical towers to 14.17 metres. Dimensioned on the plans, the dwelling would be setback from the north boundary by a minimum of 16.9 metres, increasing as a result of the north-west orientation of the dwelling. It would be setback by a minimum of around 33 and 38 metres from east and west boundaries respectively. Excavation to 3+ metres is required. Three cypress would be removed and six trees planted.

7 A permit is required to develop a dwelling on the land under the provisions of the Green Wedge A Zone (Schedule 2) and Clause 53 of the Yarra Ranges Planning Scheme. No permit is required to use the land for a bed & breakfast facility for up to 6 persons or for a dwelling.[4] The review site is affected by two Overlays. In the Wildfire Management Overlay, a permit is required for buildings and works proposed in association with the use of the land for accommodation. Much of the review site is affected by an Erosion Management Overlay wherein a permit is required for buildings and works. The land is within a medium 2 landslip risk area.

Does the Proposal Satisfy Neighbourhood Character Objectives?

8 Mr Perry submitted the proposal is acceptable in terms of neighbourhood character and the policy directions of the Scheme. He submitted the proposed dwelling had been reduced in height and covers only 7.1% of the site area. The dwelling would not be significantly above the ridge level of the existing dwelling and this fact, together with the subtle colour, mean that the building would not be highly visible from many vantage points. He showed a number of photographs from places where the dwelling might be seen, these taken at a time when balloons simulated the height of the central tower and ridge. That simulation was repeated subsequent to the Hearing so that I could make my own observations. Mr Perry submitted the dwelling is essentially contained within that part of the site that has a slope of less than 20% and is already affected by development, and that the required setbacks of the Scheme are met. He referred to planting on the review site that would provide a landscape buffer and the Applicant's intent to plant additional trees.

9 These submissions were challenged by the Council and Respondent Objectors who expressed concern about the size and architecture of the proposed dwelling as well as its visual impact in the Emerald Creek valley, at a considerable distance (up to 10 kilometres away).

10 As relevant to this proceeding, the provisions of the Green Wedge Zone and applicable policies at Clauses 22.02 and 22.11 have common themes to:

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ensure that new development complements the scale and bulk of nearby buildings;

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maintain a low density character and protect existing amenity;

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provide a sense of spacing and setbacks to allow landscaping and to respond to the area's character;

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enhance the landscape and environmental qualities of these area.

11 Much was said at the Hearing about the building's height that is above the figure of 11 metres referred to in Clause 22.11-3.[5] Two things must be said about this local policy. Firstly, there is no automatic entitlement to a building of 11 metres. Conversely, and secondly, this "limit" is not mandatory and there is scope to consider a proposal that rises above this height in an assessment of all relevant considerations. Nonetheless, when read with other elements of the Clause and other parts of the Planning Scheme, the 11 metre policy is part of the strategic direction to ensure that a building's scale responds to the landscape and environmental character. These character elements are important in this location even though there is no Significant Landscape Overlay or like Overlay in place.

12 I do not enter into the debate about the merits of the castle architecture. This is an area with diverse architectural styles. Consequently, the more critical matters are the combination of the height, scale, breadth and positioning of the proposed building and it is in these respects that the proposal fails. The review site is not sufficiently large to absorb the building's mass and meet the Scheme's objectives. That partly arises from the intended position on the land as I explain next.

13 The building would rise to three levels (excluding roof deck and towers). It would have a breadth across the site of more than 50 metres (measured directly east to west across the land although the structure is angled on the land) thereby occupying a significant proportion of the width of the land. When also considering paving, excavated and battered areas, the opportunities for substantial screen planting become limited. That screen planting would have to be high. Reliance is placed on the existing 3-5 metre pittosporum rows around the perimeter of the site plus some new trees but these are unlikely to sufficiently soften the building bulk that would be demonstrably and vastly out of scale with dwellings in the area whether on large or small rural living lots.

14 Castles are usually big and sited on sizeable parcels of land where a sense of setting is created to enhance the experience, grandeur and significance of the building itself. Even if this large dwelling was not named as "Castle Chalet", that principle applies. The size and topography of the review site simply do not create a setting for this building when positioned upslope and relatively close to the northern site boundary. The proposal would be too dominating an element in a sensitive location where existing buildings are nestled into their environs, an outcome strongly advocated by policy. The impact is too great for the closest dwellings, discussed below; the outcome is not acceptable in terms of the directions advocated by the Scheme.

15 I reach my conclusion mindful of the limitations on the likely visibility of the proposed dwelling from the public realm given roadside landscaping and vegetation on many properties. Where the building could be seen, the visual impact would decrease with distance.

Would the Proposal Result in Unreasonable Off-Site Amenity Impacts?

16 In response to concerns by neighbours that the proposed dwelling would be visually intrusive and block views across the Emerald Creek valley, Mr Perry submitted the proposal would not have an unreasonable impact on adjacent properties to the north. He referred to the position of the dwelling downslope of residences to the north and the landscape buffer that together would assist to mitigate the visibility of the structure. Mr Perry and Mr Hesseen referred to screening that is proposed to north-facing windows to prevent inter-viewing between the proposed dwelling and properties to the north. That includes frosted glazing, screening to the central tower and roof deck, and screening vegetation.

17 While there is an ability to provide screening to prevent unreasonable overlooking, or perceptions of overlooking, the main issue in my view is the visual bulk associated with the proposed development. Even when taking into account the slope of the review site and its position relative to neighbours to the north, the development would significantly intrude upon the amenity enjoyed by the properties to the north and most notably No. 36 Chalet Road. The dwelling at No. 36 is positioned deep into its allotment with a large elevated rear deck. The proposed dwelling would extend across the whole of the rear boundary of this dwelling at a considerable height despite level differences between properties. Some view would remain for No. 36 but the substantial visual presence of the proposed building is unacceptable in this low density setting. The mass would not be attenuated by existing plantings and, moreover, new plantings to mask the structure would create quite a barrier into the existing open outlook across the valley. I find that insufficient attention has been paid to the physical presence the proposed dwelling would have on properties to the north and particularly No. 36 Chalet Road.

18 A number of other matters were raised by adjoining property owners in relation to the potential for noise emissions (such as from the roof deck) and light emissions from the building. These issues may not have been insurmountable but I do not need to explore them given my primary findings that the proposed dwelling is not acceptable for reasons of mass, scale and siting.

Are there any Other Reasons to Find Against the Proposal?

19 A series of other matters were raised in submissions opposing the proposal upon which I summarise my findings as follows.

20 Insufficient area for car parking. While the plans do not nominate areas for car parking, the size of the review site and extent of driveway areas would enable parking for the occupants of the dwelling and three bed & breakfast suites. On its face, the proposal would not fail for this reason.

21 Increased traffic. The proposal would add to traffic on these gravel roads including at the tight entrance into Toronto Road (which is affected by the position of a large tree). However for one dwelling and three bed & breakfast suites, I do not consider the impact to be unreasonable albeit there would be increased noise and dust.

22 Inappropriate location for bed & breakfast facility. Under the Green Wedge A Zone, no permit is required to use the dwelling for bed & breakfast suites if they cater for no more than 6 persons. It is therefore not appropriate to assess the proposal as though a permit was required. I add an observation that although the proposal may not meet parts of Clause 22.06 for small scale tourist accommodation if it was to apply, a proposal is not precluded if the policy is not met.

23 Inadequate geotechnical information. The Council was not satisfied on the geotechnical information available to it and sought further information. The Applicant indicated that could be dealt with by a permit condition. If I had found other aspects of the proposal to be acceptable I would have required further information on this matter to meet the obligations under the Erosion Management Overlay. Details of batters and retaining walls would be required. I note that some of the proposed batters are steeper that desired in the medium 2 risk area.

24 Inadequate daylight and sunlight access to rooms. Several rooms within the development have no access to direct daylight or sunlight and have little ability to borrow light from adjacent rooms.

25 Potential for commercial use. The size of the development and nomination of rooms with the dwelling have given rise to concerns about future commercial use. I do not intend questioning what facilities are reasonable for an individual to establish in association with a dwelling for the purposes of this proceeding. I have assumed that the proposed facilities are for personal use and the three suites can be used without a planning permit. Anything that is not as-of-right or beyond what can be regarded as ancillary to a dwelling or a home occupation in terms of applicable definitions and provisions of the Scheme would require a planning permit.

26 Disposal of waster water and potential impacts on the waterways. I have assumed that wastewater could be contained on the land but there remains a question as to outflows associated with the bed & breakfast use. That is potentially a matter upon which I would have sought further information or dealt with by conditions.

27 For the above reasons, I conclude that the proposed development is too expansive resulting in unacceptable impacts in terms of the landscape and environmental qualities of the area and the amenity of properties to the north of the review site and particularly No. 36 Chalet Road. I will affirm the decision made by the Responsible Authority.

[2] I advised the parties at the commencement of the Hearing that I had inspected the environs of the site before the Hearing. Subsequent to the Hearing, I inspected the review site, Nos. 34 and 36 Chalet Road, and wider area when balloons were erected simulating the height of the roof's ridge and central tower.

[3] Also referred to as McCarthy Road in some documents.

[4] Other Clauses that are relevant to the consideration of this Application include Clauses 11, 12, 14, 15.01, 16.01, 17.04, 19.03, 21, 57 and Clause 65 (general decision guidelines). In addition, the local policies at Clause 22.02 (rural living areas), 22.06 (tourism), 22.09 (fire risk) and 22.11 (development in (among other things) rural residential areas) and 22.12 (vegetation protection) have been considered.

[5] Clause 22.11-3 states that the construction of a dwelling should be of a height below the trees canopy level and (among other things) take into account slope and impacts on views into the land from adjacent viewpoints. It also states that no part of the building should be more than 11 metres above the natural surface of the ground directly below that part.