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[2001] VCAT 252
respondent. The Responsible Authority's decision to grant a permit is varied: a permit is granted for the construction of the shed at 13 Myers Drive, Shoreham in accordance with endorsed plans and subject to...
VCAT varied the Council's decision and granted the permit for a large rear shed at 13 Myers Drive, Shoreham. The Tribunal held that where a Significant Landscape Overlay requires a permit, decision-making is limited to landscape-related matters; private amenity issues (bulk, private views) are not proper grounds under that overlay. The partly built slab and prior tree removal did not prevent a permit being granted; the shed was found not to adversely affect the coastal or National Trust landscape given its siting, height, form and proposed landscaping. The permit was granted with amended conditions requiring corrected plans and detailed landscaping.
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1,781 words · generated 03/07/2026
This is a planning review before the Victorian Civil and Administrative Tribunal (Planning List No. 2000/63870) concerning a permit application (P000908) for a substantial outbuilding (described as a shed) at 13 Myers Drive, Shoreham. The Responsible Authority (Mornington Peninsula Shire Council) issued a Notice of Decision to Grant a Permit on 25 July 2000. Objectors led by Ms Sue Humphries sought review under s.82 of the Planning and Environment Act 1987, challenging the grant on the grounds of size, bulk and visual intrusion, insufficient screening and unrealistic planting/screening conditions (see [1]-[2], [15]-[17]).
2 cited instruments linked from this judgment.
The shed measures approximately 8.0 m by 11.2 m (about 90 m2), is to be steel colourbond with 3 m wall height and 4 m to ridge, and is sited at the rear of the lot on a concrete slab set 1.2 m and 1.5 m from the north and east boundaries respectively (see [12]-[13]). Part of the factual background is that a concrete slab was poured in December 1999 after the Mornington Peninsula Planning Scheme had been introduced; earlier in late 1998 a row of cypress pines along the rear boundary had been removed to facilitate works (see [5], [14]).
At the hearing on 21 November 2000 Member S. R. Cimino heard submissions, inspected the site, and issued reasons and orders on 15 February 2001. The Tribunal varied the Responsible Authority's decision by granting the permit but amending and adding conditions (notably correcting plan orientation details and imposing specific landscaping requirements), and directed the Responsible Authority to issue the permit pursuant to s.85(1)(b) of the Act (Order and [51]-[53], [54]).
Two strands of legal reasoning dominate the Member's decision.
The scope of permissible considerations was constrained by the planning control which required the permit. The land was in a Residential 1 zone (where outbuildings of this kind are ordinarily permitted) but was affected by Significant Landscape Overlay schedules (SLO2 Coastal Landscape and SLO6 National Trust Classified Landscapes) which required a permit for buildings and works (see [18]-[20], [21]-[28]). The Tribunal emphasised the established legal principle that when a power or discretion is conferred for a particular purpose the decision-maker must confine itself to that purpose; it cannot refuse or grant a permit based on considerations extraneous to the purpose (see [39]-[41], quoting the Full Court in National Trust). Applying that principle the Member held that the SLO's purpose is to protect and enhance landscape values and to guard against visual intrusion into the coastal landscape; it is not directed to private residential amenity such as building bulk impacts on neighbours or loss of private views (see [41]-[43]).
The Tribunal then applied those landscape-focused criteria to the facts. Although the shed is comparatively large, the Member found the locality to be an established and substantially modified residential environment, with many double storey dwellings which already have a greater effect on the coastal landscape character than the proposed outbuilding (see [44]-[46]). The shed's location at the rear, its lower height relative to surrounding dwellings, pitched roof, and colour/materials meant it would be largely shielded from the public domain and would not significantly impinge on coastal landscape values or National Trust classification. Landscaping conditions could further mitigate any visual impact (see [46]-[50], [51]-[53]). The Tribunal therefore concluded that the SLO did not require refusal and that a permit should issue, subject to amended conditions (see [50], [54]).
Two interlocutory/legal points informed the decision. First, the Member confirmed the settled position that the existence of partly constructed works does not entitle an applicant to automatic approval; the Tribunal must assess the proposal against the current planning scheme (see [35]-[36]). Second, the Tribunal declined to treat alleged past vegetation removal as part of the merits of the current application where no evidence was brought that removal required a permit at the time or that enforcement action had been taken (see [37]).
Before this decision the law articulated in the cited authorities (notably the Full Court's National Trust decision and later authorities such as Salmal) established two propositions relied on by the Member:
Decision-makers must confine their discretion to the purpose for which it is conferred by a particular planning control; they cannot refuse or grant a permit on grounds extraneous to that purpose (quoted and applied at [39]-[41]); and
Partly constructed or unauthorised works do not automatically justify approval; a proper assessment against the controlling planning instruments must still be made (see [35]-[36]).
This VCAT decision applies those pre-existing principles in the specific context of SLO schedules covering coastal and National Trust classified landscapes. It reinforces the practical application that when an overlay's purpose is landscape protection, considerations of residential amenity (private views, perceived bulk as a neighbour's amenity concern) are not determinative unless they bear on the landscape objectives embedded in the overlay (see [41]-[43], [44]-[50]). The decision therefore continues and applies existing law rather than announcing a novel rule.
"[The existence of the concrete slab does not justify or lend support to the grant of a permit.]" ([36]). Plain English: Just because some works or foundations are already in place does not mean the Council or Tribunal must approve the rest; the proposal must still comply with current planning rules.
"The provisions which 'trigger' the need for a permit are those set out in the Significant Landscape Overlay ... the matters which I am able to consider are limited to those embraced by the purpose of the control." ([41]). Plain English: Because the overlay is about protecting landscape values, the Tribunal's job is to consider only landscape-related impacts, not every neighbourly complaint.
"I do not consider that it is open to me to consider impacts on residential amenity such as building bulk ... and loss [of] views when the purpose of the control is directed towards issues associated with the coastal landscape." ([42]). Plain English: Issues like blocked private views or whether neighbours think a building is too big are not relevant when the rule triggering the permit is about landscape protection.
"I consider that the double storey dwellings ... would have a greater impact on the coastal landscape character of the area than the proposed shed." ([46]). Plain English: In context, the shed is less visually intrusive than other buildings already there, so it is not a major landscape problem.
"Given the context of the land, the nature of the provision that triggers the need for a permit and the merits of the proposal, I am of the view that a permit should issue." ([50]). Plain English: After applying the correct legal test and looking at the facts, the Tribunal decided to allow the shed, subject to conditions.
This decision will be most directly relevant where:
The planning control requiring a permit is an overlay directed to landscape protection (for example significant landscape overlays such as coastal landscape or National Trust classified landscapes), and objectors argue primarily on residential amenity grounds (bulk, private views, loss of outlook).
The subject site is in a suburban or semi-urban setting that has already been modified, where a new outbuilding or redevelopment could be compared with existing built form.
Development has commenced or partial works exist on site prior to a permit being obtained, but the applicant now seeks retrospective approval.
Objectors rely on alleged past vegetation removal when the permit application itself does not seek permission for vegetation removal.
In these circumstances Humphries v Mornington Peninsula emphasises that decision-makers must confine their inquiry to the overlay's purpose: landscape protection. Private amenity and speculative future uses are likely to be of limited weight unless they can be connected to the overlay's landscape objectives (see [41]-[44], [37]-[38]).
The judgment itself is a single VCAT member’s decision from 2001 and does not document later judicial or Tribunal treatment of this specific decision. The Member expressly applies and cites Full Court and other Tribunal authorities for the key legal propositions (see [35]-[40]). To determine how later courts or VCAT panels have treated Humphries would require targeted subsequent-case research (the decision is not accompanied by later treatment in the text). Practitioners should check subsequent VCAT and appellate authorities for any elaboration, distinction or departure from the principles applied here, particularly concerning scope of overlay discretion and treatment of private amenity claims in landscape overlays.
Several practical and doctrinal questions remain open or require careful attention on a case-by-case basis:
Boundary of relevance between landscape objectives and amenity: While this decision excludes private amenity as generally irrelevant under an SLO, there will be cases where an adverse amenity outcome (for example, large-scale bulk that alters the visual character as perceived from public vantage points) may bear directly on the overlay’s landscape objectives. Determining where to draw the line requires careful factual analysis and may be litigated in future cases.
Evidence and timing of vegetation removal: The Member declined to treat past vegetation removal without evidence that a permit was required or that enforcement action occurred ([37]). The legal effect of unlawful vegetation removal on later permit applications will turn on evidentiary proof and enforcement history; different facts might produce a different result.
Retrospective works and equitable considerations: The Member confirmed that earlier unauthorised works do not oblige approval ([35]-[36]). But there may be nuanced situations where partial works materially change the assessment (for example, if the completed works materially alter landscape values or public safety). How tribunals balance equitable remedies, enforcement expectations and planning merits remains fact-specific.
Interaction with other overlays and cumulative controls: This case involved a Residential 1 zone plus SLO and DDO controls. Where multiple overlays have overlapping purposes (heritage, landscape, vegetation protection), the permissible matters for consideration and the weight to be afforded may be more complex than in Humphries.
Conditions and enforceability: The Member amended and reformulated conditions, especially landscaping requirements, to respond to objections and ensure enforceable mitigation ([51]-[53]). The sufficiency of conditions as a remedy to permit otherwise contentious development remains a point of practical importance.
Conclusion: Humphries v Mornington Peninsula is a clear application of the principle that the permitted scope of assessment under an overlay is defined by the overlay's purpose. It is useful authority for practitioners contesting or defending permits where objectors rely primarily on private amenity arguments to resist developments regulated by landscape-focused overlays. For further reliance or distinction, practitioners should undertake up-to-date case law research to see how subsequent tribunals and courts have applied or refined these principles.
IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Planning List - S. 82 - Planning and Environment Act 1987 - Mornington Peninsula Planning Scheme - Residential 1 zone - Design and Development Overlay 2 Bayside and Village and Design- Significant Landscape Overlay 2 Coastal Landscape - Significant Landscape Overlay6 National Trust Classified Landscapes - Vegetation Protection Overlay 1 Township Vegetation - outbuilding.
RESPONSIBLE AUTHORITY: Mornington Peninsula Shire Council
With respect to planning permit application no. P000908, the Responsible Authority's decision to grant a permit for the construction of a shed is varied. A permit is granted for the construction of a shed in accordance with the endorsed plans at 13 Myers Drive Shoreham. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 25 July 2000, except with the following variations:
1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to an approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans drawn submitted with the application but modified to show:
(b) All elevations to nominate the correct orientation.
(c) The provision of trellis as required by condition 6.
(d) Landscaping details as required by condition 7.
2. The word "western" where appearing in condition 5 as appearing on the Notice of Decision to Grant a Permit to be replaced with the word "northern".
3. Conditions 1, 2, 3, 4 and 5 as appearing on the Notice of Decision to Grant a Permit issued to be renumbered conditions 2, 3, 4, 5 and 6 respectively on the permit.
4. Conditions 6, 7 and 8 as appearing on the Notice of Decision to Grant a Permit to be deleted.
5. A new condition 7 to read as follows on the permit:
7. Within two months from the date of this permit a detailed landscaping plan must be submitted to and approved by the Responsible Authority. Such plan must be prepared by a person suitably qualified or experienced in landscape design and must show:
(a) A schedule of plants which specifies the quantity of plants, size at time of planting and mature height and canopy spread.
(b) The provision of screen planting along the north and east boundaries adjacent to the outbuilding hereby approved.
An endorsed copy of the plan must form part of this permit.
6. A new condition 8 to read as follows on the permit:
8. Landscaping works as shown on the endorsed plan must be completed and thereafter maintained to the satisfaction of the Responsible Authority.
Pursuant to s. 85 (1) (b) of the Planning and Environment Act 1987, the Responsible Authority is directed to issue a permit in accordance with this order.
Mr John Castle, Planning Officer, appeared on behalf of the Responsible Authority.
Mr Sue Humphries appeared on her own behalf and on behalf of the other applicants for review. Mr Henk Knol also appeared and made further submissions.
1. This is an application under s. 82 of the Planning and Environment Act 1987 (P & E Act) brought by objectors against the Responsible Authority's decision to grant a permit with respect to permit application no. P000908. The permit application seeks permission for the construction of a shed on land known as 13 Myers Drive Shoreham.
1. Size, bulk and visual intrusion accepted by the Shire Council.
2. Screening clauses hastily drafted and extent insufficient.
3. Planting/screening requirements insufficient and unrealistic.
3. The subject land is located on the northern side of Myers Drive, Shoreham, west of Nelson Street. The land has an irregular shape with a frontage of 27.5 metres and a depth ranging from 41.5 metres on the west side boundary to 47.0 metres on the east side boundary. The land narrows to a width of 14.7 metres at the rear boundary. The land has an overall area of about 950 square metres. The land has a relatively moderate slope which falls from the rear boundary down towards the south-west.
4. The land is occupied by a two storey timber dwelling setback about 18 metres from the frontage and 2 metres from the west side boundary. The existing dwelling is in the process of being renovated. A gravel driveway extends along the subject land's east side boundary leading to the rear of the property.
5. A concrete slab with dimension of 8 metres by 11.2 metres has been poured in the "backyard" area, setback 1.2 metres and 1.5 metres from the rear and east side boundaries respectively. Given the fall of the land, the construction of the slab required a relatively minor level of excavation towards the rear north-east corner to achieve a level surface. I understand that a row of tall cypress trees existed along the subject land's rear boundary, but these were removed to facilitate the construction of the concrete slab. The concrete slab was constructed to support the shed which is now the subject of the application before me.
6. The subject land has a direct abuttal with a number of properties.
7. The property immediately to the east of the subject land at 15 Myers Drive (the Humphries property) is occupied by a double storey dwelling which is located approximately adjacent to the dwelling on the subject land. The dwelling on the Humphries property has an elevated rear deck which has an outlook, in part, over the subject land towards a vegetated scenic backdrop. The backyard area of the Humphries property presents an attractive landscape setting which includes a number of tall trees.
8. The property immediately to the west of the subject land (11 Myers Drive) comprises vacant land substantially covered in low cut grass with some established planting towards the west side boundary.
9. The property immediately to the north or rear of the subject land at 4 View Court, (the McNamara property) is occupied by brick dwelling which is two storeys high at the rear. The McNamara dwelling is well setback away from the rear boundary with the backyard area largely comprised of lawn with a small amount of other vegetation. The deck and windows within the rear part of the upper level of the McNamara dwelling provide for long range views of the coastline, with the main part of these views being available over the vacant property to the west of the subject land.
10. The property immediately to the east of the McNamara property at 6 View Court (the Knol property) is occupied by a dwelling which provides for an elevated rear deck at the rear. At present, views of the coastline are available from the deck and some rear facing windows, with such views possible given that both the rear part of the subject land and the property to its west being vacant.
11. The subject land is located within what can be regarded as an established residential area with most lots being of similar overall size and developed for residential purposes in the form of either single or double storey dwellings. According to Mr Castle, dwellings in the area are used either as places of permanent residence or as holiday homes. Although the extent and standard of vegetation and landscaping varies from property to property, garden areas are generally established and combine to create what can be described as a rather attractive leafy landscape.
12. The proposal is to construct a reasonably large outbuilding, described as a "shed" in the application, at the rear of the subject land. I understand that the proposed building is to be used for a number of purposes including the garaging of Mr Woodward's four wheel drive vehicle and boat, storage and a workshop. I also understand that Mr Woodward intends to keep two ride on mowers associated with his garden maintenance business within the building.
13. The proposed shed is to be constructed on the existing concrete slab and accordingly will be setback 1.2 metres and 1.5 metres from the north and east boundaries respectively. The building dimensions are 8 metres by 11.2 metres giving an overall floor area of about 90 square metres. The building is to be constructed in colourbond steel with a wall height of 3 metres with the height increasing to 4 metres when measured at the ridgeline of the gable roof. Two 3 metre by 3 metre wide openings with roller doors are proposed on the south elevation to provide for vehicle access.
14. Given that part of the building for which permission is being sought (ie: the concrete slab) has already been constructed and in light of assertions made about whether vegetation that previously existed had been removed lawfully, it is appropriate that I set out the relevant history of events that led to the permit application being made. Mr Castle set out the history of events as follows:
An application P981299 received by Council on 19 September 1998 proposed dwelling additions and erection of a shed (the shed subject of the current application) at the above address.
[At the time application P981299 was made] The subject land was administered under the Flinders Planning Scheme and zoned Village Residential 2.
The application was considered and it was determined that no permit was required for dwelling additions or shed, the [permit] applicant was advised by letter dated October 20 1998 that no permit was required.
A subsequent re-examination however determined that planning consent with respect to the dwelling additions was required as the applicant proposed to use unpainted galvanised materials on the roof. A permit was subsequently issued on November 1998, permitting the use of galvanised materials to maintain the harmony with existing roof materials.
In respect to the shed, as the building satisfied the provisions of the Flinders Planning Scheme in regard to siting and materials there was no control over the size [and accordingly] no permit was required .
The applicant proceeded with the dwelling additions and further on the understanding no permit was required to erect the shed proceeded to commence work.
Initial works included the removal of 16 large cypress pines along the southern and western boundaries [corrected to northern and western boundaries] and the excavation of a site cut for the shed, a concrete slab was poured for the shed's foundations.
The removal of the cypress [which I was advised by Mr Castle occurred in November 1998] required no approval under the previous scheme and the site excavation was also undertaken prior to the new Planning Scheme.
The concrete slab however poured in December 1999 after the new Scheme came into operation [ie: the new Victoria Planning Provisions based Mornington Planning Scheme with notice of the approval of the new scheme published in the Government Gazette on 6 May 1999]
A complaint was received and the [permit] applicant was requested to stop work as with the introduction of the Mornington Peninsula Planning Scheme a permit was now required.
15. Mr Woodward subsequently lodged permit application P00908 with the Responsible Authority on the 16 May 2000. The Responsible Authority required notice of the permit application to be given, and in response, received objections from Ms Humphries and Mr Knol. Mr Castle summarised the grounds of objection as follows:
* Compliance with the requirements of the Planning Scheme and Overlay controls.
* The height and size of the building and setbacks from boundaries
* The building is out of character with the surrounding area.
* Little vegetation retained to hide the development.
16. The Responsible Authority subsequently considered the permit application and on the 25 July 2000, issued a Notice of Decision to Grant a Permit subject to conditions.
17. Ms Humphries filed her application for review with the Tribunal on the 10 August 2000. On the 29 August 2000, Ms Humphries applied to amend the application for review by seeking to join Mr McNamara together with Mr and Mrs Knol as joint applicants. In so doing, Ms Humphries also requested that Mr McNamara be given leave to appeal pursuant to s 82B of the P & E Act and requested that time Mr and Mrs Knol to appeal be extended pursuant to s. 126 of the Victorian Civil and Administrative Tribunal Act 1998. On the 20 September 2000, a senior member of the Tribunal gave leave for Mr McNamara to appeal and extended the time for Mr and Mrs Knol to appeal.
18. Pursuant to the Mornington Planning Scheme, the subject land is located within the "Residential 1" zone, the provisions for which are found at clause 32.01. "Dwelling" is an as of right use in the zone. An ancillary outbuilding is embraced within the definition of "dwelling", as set out at clause 74, and therefore does not require separate permission under the zone controls.
19. The land is, however, also affected by a number of overlay controls. These are:
* Vegetation Protection Overlay Schedule 1 Township Vegetation (VPO1), the provisions for which are found at clause 42.02.
* Significant Landscape Overlay the provisions for which are found at clause 42.03. In particular, the requirements set out under Schedule 2 - Coastal Landscape (SLO2) and National Trust Classified Landscapes (SLO6) apply to the land.
* Design and Development Overlay Schedule 2- Bayside Village Design (DDO2), the provisions for which are found at clause 43.02.
20. In relation to the above overlay controls, I note that:
* A permit is not required under the provisions of VPO1 given that the proposal does not involve (nor is permission being requested for) the removal of vegetation.
* A permit is not required for the construction of buildings and works under the provisions of DDO2 if the requirements set out under clause 2.0 of the schedule are complied with. In this case, I accept the Responsible Authority's assessment that the requirements set out in the schedule are met.
* A permit is required to construct buildings and works pursuant to SLO2 and SLO6. The provisions of the relevant schedules to the overlay do not exempt the buildings and works proposed in the permit application.
21. The purpose of the Significant Landscape Overlay is:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To conserve and enhance the character of significant landscapes.
22. In relation to proposals requiring permission under this overlay, the Responsible Authority must consider:
The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.
The conservation and enhancement of the landscape values of the area.
The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.
The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.
The impact of buildings and works on significant views.
Any other matters specified in a schedule to this overlay.
23. The "Statement of nature and key elements of landscape" under schedule 2 of the Significant landscape Overlay (Coastal Landscape) reads as follows:
Coastlines and coastal hinterland areas have been identified as key landscape features. These areas have an open rural character, and are often cleared, with a history of broad scale grazing. They act as a landscape foreground to coastlines and seascapes, with transitional areas ranging from extensive dune and beach areas to abrupt high basalt and limestone cliffs. The open landscape character makes these areas susceptible to visual intrusion from inappropriate development and the use of landscaping to screen buildings and works must be balanced with maintaining extensive viewlines.
24. The landscape character objectives to be achieved under the schedule are:
To protect and enhance the visual, natural and cultural heritage values of coastal landscapes.
To protect coastal landscapes from visual intrusion resulting from the inappropriate siting, design or materials of buildings and works, including infrastructure service lines.
To encourage siting, design and landscaping of buildings and works that is responsive to the coastal landscape character.
To maintain vegetation as an important element of coastal landscapes.
25. The "Statement of nature and key elements of landscape" under schedule 6 of the Significant landscape Overlay (National Trust Classified Landscapes) reads as follows:
National Trust classified landscapes have been identified as key landscape features. The National Trust classification combines the immediate visual values of the landscape with an assessment of cultural heritage significance. Development within these areas may substantially effect the perception of landscape quality unless it is carefully sited and designed.
26. The landscape character objectives to be achieved under this schedule are:
To protect and enhance the visual, natural and cultural heritage values of classified landscapes.
To protect classified landscapes from visual intrusion resulting from the inappropriate siting, design or materials of buildings and works.
To encourage siting, design and landscaping of buildings and works which is responsive to the landscape values of classified landscapes.
To maintain vegetation as an important element of classified landscapes.
27. Both schedules set out similar matters or decision guidelines relevant to be consideration of the proposal including:
The landscape character objectives of this schedule.
The protection and appropriate enhancement of the landscape, having regard to:
* Protecting landscape areas and vantage points of high quality.
* Maintaining visual sequences along access routes.
* The conservation of significant areas of natural vegetation and significant stands of trees in coastal landscapes.
* The control of the density of buildings and subdivision in areas of scenic value.
Whether the siting, height, scale, materials and form of proposed buildings and works, including infrastructure service lines, has been designed to have least visual effect on the coastal landscape and scenic views.
Whether approval of the proposed buildings and works is compatible with maintaining the visual, natural and cultural heritage significance of the coastal landscape.
28. In addition I note that the decision guidelines under schedule 6 also provide for the comments of the National Trust to be taken into account "...where proposals may significantly effect the classified landscape."
29. Other matters of particular relevance to be considered include:
* Clause 19.03 of the State Planning Policy Framework which sets out the policy for Design and Built Form.
* Clause 21.07 -2 of the Municipal Strategic Statement which relates to "Local area character".
30. Although Ms Humphries submitted that the policy provisions of clause 15.09 also apply, I note that the proposal does not involve vegetation removal nor does it seek permission for vegetation removal that has already occurred.
31. At the commencement of the hearing, I advised the parties that I had become aware that Ms Humphries is a current sessional member with the Tribunal, although not with the Planning List. For reasons that are obvious, I invited Mr Woodward and Mr Castle to express any concerns which they had. After a short recess, Mr Woodward and Mr Castle advised me that they had no objection to my hearing the matter.
33. The parties then presented their submissions. Mr Castle, Ms Humphries and Mr Knol tabled and spoke to written submissions whilst Mr Woodward made oral submissions. In addition I was presented with other material including plans, maps and photographs of the subject land and surrounding area. The submissions and other material have been considered and where in documentary form, have been retained on the Tribunal's file. After the hearing I inspected the subject land and surrounding properties.
34. Before setting out my findings with respect to the merits of the proposal, it is appropriate that I make a number of observations which I consider relevant.
35. First, there was no dispute that a permit can be issued for the proposed building albeit that part of the structure (ie: the concrete slab) has already been constructed. Indeed authority for the grant of a permit in circumstances where the building in question has been constructed (or as is the circumstance in this case where part of the building is constructed) without the necessary permit being issued can be found in Wilson v Shire of Winchelsea 1AATR 26 and G & L Phillips & Ors v Shire of Moorabool & Stirling (19995) 15 AATR 212. However , it is also relevant to note that in the Phillips case the Tribunal said:
......... the building should not be authorised simply because it is there. If the building fails to meet the tests laid down in the planning scheme, as the Tribunal holds is the case here, then the consequences which flow from that finding fall squarely upon the applicant.
36. The above comments set out the correct approach to be taken. The proposal must be assessed against the provisions of the planning scheme as they currently apply. The existence of the concrete slab does not justify or lend support to the grant of a permit. For the record, however, it seems clear to me that Mr Woodward proceeded to construct the outbuilding only after he had received written advice from the Responsible Authority that a planning permit was not required.
37. Second, the permit application does not involve nor does it seek permission for the removal of vegetation. Although Ms Humphries asserted that vegetation has been removed without a permit, the practicality of the situation before me is that I must consider the merits of the proposal based on the permission being sought by the applicant and the existing conditions. This is particularly so given that no evidence or submissions were presented demonstrating that a permit was required for the removal of vegetation at the time it was removed and no enforcement action has been taken in relation to this alleged breach of the planning scheme by either the Responsible Authority or any of the surrounding residents.
38. Third, the permit application does not seek permission to change the use of the land or to use it for any commercial purpose. Although Ms Humphries alluded to proposed building's suitability for the "storage of equipment and office space for a place of business", the reality is that the land must be used in accordance with the planning scheme or a planning permit. The potential use of the building for purposes contrary to the planning scheme's provisions is speculative. If the proposed building, or any other part of the subject land for that matter, is used in contravention of the planning scheme then this is separate matter to be dealt with at the time such contravention occurs.
39. Fourth, it is clear that the scope of the matters which I may consider is constrained by the nature of the planning control which `triggers' the need for a permit. This principle is well documented and clearly set out in the following passage of the Full Court's decision in National Trust (Vic) v T & G Mutual Life Association Ltd at 606 (see 7 AATR at 2 editorial comment)
"The discretion conferred by cl.24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by Cl. 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area within which the land is situated and the amenity of the neighbourhood, in other respects other than with the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme under such considerations and could not properly have regard to them in determining whether or not to grant a permit or not."
40. This principle was again confirmed by the Court in Salmal Construction Pty Ltd v Richards & City Of Hobsons Bay, (22AATR 339) where, in setting aside a decision by the former Administrative Appeals Tribunal, Her Honour Balmford J said:
"In my view, the Tribunal, in reaching its decision on the basis of its required consideration of the matters referred to in the second guideline, relied on matters of general amenity which were not referable to the purpose of the discretion. Adapting, as italicised, the language of the Full Court in the National Trust case, I would say that, to use that discretion for the purpose of endeavouring to ensure the privacy of a neighbour and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the conservation and enhancement of an area of architectural and historic significance and the encouragement of development that is in keeping with it, is to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The Tribunal could not properly refuse the permit under the planning scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not"
41. In this case the provisions which "trigger" the need for a permit are those set out in the Significant Landscape Overlay at clause 42.03, and accordingly, the matters which I am able to consider are limited to those embraced by the purpose of the control. In this regard the purpose of the SLO is clearly directed towards the identification, conservation and enhancement of significant landscapes and not to matters which are related to residential amenity.
42. The subject land is located within a Residential 1 zone within which no permit is required for the construction of the type of outbuilding proposed in the application before me. Although the outbuilding proposed in this case is relatively large, neither the definition of "dwelling" as set out in the planning scheme or the zone provisions make any distinction between a small or large outbuilding. Accordingly, if the land were not affected by the overlay controls, no planning permit would be required for the proposed outbuilding. As such, based on the principles set out in the above decisions, I do not consider that it is open to me to consider impacts on residential amenity such as building bulk (ie: the impact of the size of the building on the amenity of the adjoining residential properties) and loss views when the purpose of the control is directed towards issues associated with the coastal landscape.
43. Although the decision guidelines at clause 42.03-3 require consideration to be given to the impact of buildings and works on significant views, it seems to me when one considers the purpose of the overlay control, the intent of this provision is directed towards consideration of the impact on significant views of the coastal landscape from the public domain and not towards the protection of private views. In any event after inspecting the subject land and the area, it seems to me that the proposed shed will not have any substantial impact on views of the coastline from the McNamara property as these are largely obtained over the vacant property to the west of the subject land. Similarly coastline views obtained from the Knol property are also substantially reliant on the lack of development on the property to the west of the subject land. If this property is developed (and it is reasonable to assume that it will be in the future) the current views available from the Knol property will be substantially impeded. In such circumstances even if the loss of private views were a relevant consideration, I do not consider that it would be reasonable to refuse permission for the proposed shed having regard to these circumstances.
44. Accordingly the fundamental issue to be determined in this matter is whether the size, design and siting of the proposed building will adversely affect the significance of the coastal landscape character of the area. In this regard it is relevant to consider that although the "Statement of nature and key elements of landscape" as set out in VPO2 describes the landscape as having "...an open rural character...often cleared, with a history of broad scale grazing", as Mr Castle correctly pointed out, the reality of the situation is that the subject land is located within an "urban environment which has been substantially modified".
45. The subject land is located in an area which has a leafy but none the less distinctly urban character given the subdivision pattern, size of the lots and the form of housing which exists. As such it is somewhat difficult for me to accept that the land is located in an area within an area which fits the description set out in VPO2.
46. When consideration is given to the context of the land, I do not accept that the proposed outbuilding, albeit that it is large, will have any greater impact on the coastal landscape character of the area than that which has resulted from the subdivision of the area as well as the development which already exists on the subject land and surrounding properties. Rather, I consider that the double storey dwellings in the area, such as those on the subject land and the Humphries property, would have a greater impact on the coastal landscape character of the area than the proposed shed.
47. I also consider that the design and siting of the proposed shed is such that it will be acceptable. The proposed building will be lower in height than the most dwellings in the area and it is to be located at the rear of the property resulting in it being largely shielded from public viewing points. As such I cannot find that the proposed shed will impinge on or have any substantial impact on scenic views of the coastal landscape when viewed from the public domain. Furthermore, I consider the pitched roof form and the external materials and colours to be acceptable having regard to the residential context of the land. In addition I note that a number of the conditions on the Notice of Decision require landscaping to be provided. Although the wording of some of the landscaping conditions is clumsy, in principle, these are appropriate. In my view, I consider that the proposed outbuilding will have very little impact on the natural values and significance of the coastal landscape character of the area.
48. For similar reasons, I also do not accept that the proposed outbuilding will have any impact on the significance of the area as a "National Trust" classified landscape.
49. Whilst I appreciate that the applicants for review hold the view that the proposed outbuilding is visually "intrusive" when viewed from their properties, this is a matter that relates to their residential amenity and not the significance of the landscape character of the area.
50. Given the context of the land, the nature of the provision that triggers the need for a permit and the merits of the proposal, I am of the view that a permit should issue.
51. I have reviewed the conditions that are set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority. I note that the elevations on the application plans have been erroneously labelled due to the north point being incorrectly positioned. Accordingly a new condition requiring amended plans to be prepared correcting these details will be included on the permit. It will also be necessary correct the wording of condition 5 (as appearing on the Notice of Decision to Grant a Permit) to reflect the correct orientation of the land.
52. In relation to Ms Humphries concerns about the wording of the conditions setting out landscaping requirements, I consider that:
* the wording of condition 6 should be revised to include more specific requirements in terms of the planting to be shown on the landscape plan; and
* the requirements set out in conditions 7 and 8 are somewhat repetitive and should be consolidated into a single condition requiring the landscaping to shown on the endorsed plan to be implemented and maintained to the satisfaction of the Responsible Authority.
53. Given the need to add and delete conditions, it will also be necessary to renumber conditions.
54. The Responsible Authority's decision to grant a permit is varied. A permit is granted subject to conditions. The permit will contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority save for amendments to conditions set out above.
Humphries S & Ors
Mornington Peninsula SC and Woodward [2001] VCAT 252
The Responsible Authority's decision to grant a permit is varied: a permit is granted for the construction of the shed at 13 Myers Drive, Shoreham in accordance with endorsed plans and subject to amended conditions (including corrected plans, landscaping obligations and renumbered conditions), and the Responsible Authority is directed to issue the permit pursuant to s.85(1)(b) of the Planning and Environment Act 1987 (Order, whole).