The decision of the Responsible Authority is affirmed, and a permit is granted for a double storey dwelling at 3786 Point Nepean Road, Portsea, including basement car parking and associated works, in accordance with the plans to be endorsed as part of the permit and subject to the following conditions:
Prior to the commencement of any buildings or works, an amended landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit (3 copies must be provided). The amended landscape plan must show:
(a) The areas set aside for landscaping;
(b) A schedule showing a mixture of all proposed trees, shrubs and ground cover species which will include the quantity, location and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface material as specified;
(c) Planting along the eastern boundary of the site comprising a mixture of large/small shrubs, tussock grasses and groundcover species;
(d) More than 80% indigenous species to the locality;
(e) Paving, retaining walls, fence design details and other landscape works including areas of cut and fill; and
The layout of the land, the size and type of the proposed buildings and works, including the materials of construction, on the endorsed plan must not be altered or modified without the consent of the Responsible Authority.
The materials and colours of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.
To ensure compliance with this permit a licensed surveyor's report confirming finished floor and roof levels as shown on the approved plans must be submitted to the Responsible Authority on completion of the relevant floors and roof structure.
A reinforced concrete vehicular crossing must be provided to the standards of the Responsible Authority prior to the initial occupation of the development.
Prior to the initial occupation of the development a driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority.
All areas of the development must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.
Prior to the initial occupation of the development or other time approved by the Responsible Authority, landscaping works as shown on the endorsed plans must be completed and then maintained to the satisfaction of the Responsible Authority. Any dead or diseased trees or shrubs must be replaced as soon as possible.
All disturbed surfaces on the land resulting from the buildings and works must be revegetated and stabilised to the satisfaction of the Responsible Authority.
Air-conditioning or other plant and equipment must be baffled to prevent nuisance or annoyance to persons in dwellings nearby or adjoining land.
No plant equipment, services or architectural features other than those shown on the endorsed plan are permitted above the roof level of the dwelling except with the prior written consent of the Responsible Authority.
[4]
Prior to any excavation works, a geotechnical report must be submitted to the satisfaction of the Responsible Authority and DSE describing any potential negative impacts associated with the development on the water table, the stability of the subject site and the stability of the adjoining Portsea Foreshore Reserve, as well as any potential for the disturbance of acid sulphate soils.
Should soil erosion or slumping occur as a result of the development, immediate works by the applicant must be undertaken to stabilise the site to the satisfaction of the Responsible Authority.
There must be no removal of native vegetation on the site as a result of the proposed works without prior approval from the Responsible Authority.
There must be no storm water run-off or other flow of water onto the adjoining Crown land known as the Portsea Foreshore Reserve.
There must be no formalised access from the subject land to the adjoining Crown land known as the Portsea Foreshore Reserve.
There must be no access to or from the Portsea Foreshore Reserve (Crown land) during the construction phase.
There must be no storage of material or parking of vehicles on the Portsea Foreshore Reserve (Crown and) during or after the construction phase.
This permit will expire if one of the following applies:
(a) The development is not commenced within two years of the date of this permit.
(b) The development is not completed within four years of the date of this permit.
[5]
The Responsible Authority may extend this period if a request is made in writing before the permit expires or within the following three months.
Ms S Brennan, of Counsel, by direct brief. Ms Brennan called Ms C Heggen, a Consultant Planner of Fulcrum Town Planners Pty Ltd, as an expert witness (Day 1), and
[8]
Mr P Di Mattina and Ms P Di Mattina, in person (Day 2)
[9]
The proposal is for a double storey dwelling and basement car parking and associated works. It is proposed that the ground floor level comprise a living area, dining area, kitchen and a large terrace facing north with access from the dining room and living room. The upper level is proposed to contain four bedrooms, a sitting area and east facing terraces with access from two of the bedrooms. The basement is proposed to contain parking for four cars and a rumpus room. Vehicular access to the basement is proposed to be from (03.21) to the southwest corner of the part of the subject land to contain the proposed dwelling and then by ramp to the basement level.
[10]
This is an application under Section 82 of the Planning and Environment Act1987 ('the Act') brought by objectors for review of the decision of the Mornington Peninsula Shire Council ('the Responsible Authority') to grant a permit.
[11]
The subject land is covered by the Mornington Peninsula Planning Scheme and is in a Residential 1 Zone, which is the subject of Clause 32.01. A permit is not required for use or development under the zone provisions. An application in a Residential 1 Zone must comply with Clause 54.01 and a number of objectives and standards of Clause 54. There are a number of mandatory requirements, which apply whether or not a permit is required.
[12]
The subject land is covered by Schedule 3, Coast and Landscape Design, to Clause 43.02, Design and Development Overlay. Clause 43.02-2, Buildings and Works, provides that a permit is required to construct a building or to construct or carry out works unless a schedule states that a permit is not required. A dwelling is not exempted under the Schedule. Paragraph 2.0 provides that an application to construct a building or to construct or carry out works should meet the General requirements of the Schedule except where it has been demonstrated to the satisfaction of the Responsible Authority that compliance is unreasonable or unnecessary and no significant loss of amenity will result.
[13]
The subject land is covered by Schedule 25, Port Phillip Coastal Area, to Clause 42.01, Environmental Significance Overlay. Clause 42.01-2 provides that a permit is required to construct a building or to construct or carry out works, unless a schedule specifically states that a permit is not required.
[14]
The subject land is covered by Schedule 1, Township Vegetation, to Clause 42.02, Vegetation Protection Overlay. A permit is not required under this overlay because the development does not include removal of any vegetation from the subject land.
[15]
Under Zone and Development Schedule 3 for a dwelling and to vary some of the general requirements set out at paragraph 2.0 of the Schedule, and
Under Environmental Significance Overlay, Schedule 25 for a dwelling.
[16]
Clause 11.03 Principles of Land Use and Development Planning,
Clause 12 Metropolitan Development,
Clause 14.01 Planning for Urban Settlement,
Clause 15.05 Noise Abatement,
Clause 15.08 Coastal Areas,
Clause 15.12 Energy Efficiency,
Clause 16.01 Residential Development for Single Dwellings,
Clause 21.07-1 Housing and Integrated Local Area Planning,
Clause 21.07-2 Local Area Character,
Clause 21.08 Foreshores and Coastal Areas, and
Clause 22.12 Township Environment
[17]
The subject land is on the north side of Point Nepean Road, Portsea. It comprises two connected rectangles. The southern rectangle is on the north side of Point Nepean Road and has a frontage of 10.1 metres. The northern rectangle has a frontage to the foreshore of 18.4 metres. The western end of the south boundary of the northern rectangle abuts the eastern end of the north boundary of the southern rectangle. The rectangle abutting Point Nepean Road contains the driveway from Point Nepean Road, which enters the northern rectangle in its southwest corner.
[18]
There is a large cypress tree in the southwest corner of the lot and a single storey bungalow in the northwest corner of the southern rectangle. The lot is otherwise unoccupied. There is a high brick fence on the Point Nepean Road frontage and the foreshore boundary is unfenced.
[19]
The Portsea Pier is to the northeast of the subject land.
[20]
The lot at 3784 Point Nepean Road abuts the northern rectangle on its south boundary and the southern rectangle on its west boundary. This site is occupied by a double storey brick dwelling with a pitched roof. It has a centrally located balcony at first floor level on the north side. This property has a walkway access to the beach abutting the large rectangle on its west boundary.
[21]
There is a public park, playground, car park and pedestrian access at 3782 Point Nepean Road, which abuts the northern rectangle on its east boundary. This public park is also in a Residential 1 Zone.
[22]
The property abutting the subject land on its east boundary at 3788 Point Nepean Road contains a double storey setback approximately 5 metres from the foreshore. This dwelling has been developed to maximise views of Port Phillip. It is accessed from Point Nepean Road.
[23]
The land to the west generally comprises substantially detached dwellings oriented to take advantage of bay views. Dwellings are a mix of architectural styles and ages but contemporary dwelling designs dominate.
[24]
Holmbes v Mornington Peninsula SC[2008] VCAT 507 (25 March 2008)
[25]
Leverington v Mornington Peninsula SC[2009] VCAT 2364 (6 November 2009)
[26]
The hearing on Day 2 on site comprised a site inspection in the company of the parties and/or their representatives. I directed that the site poles be erected at the corners on the east side of the proposed dwellings, to indicate location only and lot height. I conducted my inspection from the balcony of the dwelling at 3784 Point Nepean Road, the property of the applicants for review/objectors, and from the subject land in the company of the parties. I conducted my inspection unaccompanied from the public park to the east of the subject land, from the beach near the subject land, and looking back from the Portsea pier.
[27]
The applicants desire to erect a double storey dwelling with basement car parking on their land overlooking the foreshore and pier at Portsea. I was told that the family has owned this land for many years and it was formerly occupied by a double storey dwelling that was burnt down in the 1980s.
The land is in a Residential 1 Zone and it is to be expected that it would contain a dwelling. The purpose of the Residential 1 Zone includes:
[28]
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
[29]
To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
[30]
It is also to be expected that a dwelling on this site would be double storey. Dwellings in the area are generally double storey and I would assume that this is to take advantage of views and also to make best use of lots that are not large. Double storey development is a legitimate form of housing and it can be argued that it makes better use of land, which is a scarce resource. The proposal for basement car parking also meets the objective.
The total area of the lot is 836m2. The northern section, on which the dwelling is to be erected, is approximately 16 metres wide and is not large. The southern section has a frontage to Point Nepean Road of 10.11 metres and is to contain the driveway from Point Nepean Road. It is not of much practical value for a dwelling. The two rectangles abut for a length of about 12 metres.
The applicants for review/objectors occupy the dwelling to the immediate south of the rectangle containing the proposed dwelling and to the east of the rectangle providing access from Point Nepean Road. They have a double storey dwelling with a balcony at the upper level looking north with views over the foreshore and the Portsea Pier. Their views are presently unimpeded by a dwelling on the subject land and are understandably concerned that they will lose view if the dwelling is erected.
The application for review of the decision of the Responsible Authority to grant a permit was on the following grounds:
The proposal does not comply with DDO3:
[31]
- The design response does not respect the neighbourhood character.
[32]
- The recommended maximum building height of 5.5m is exceeded.
[33]
- The proposal does not result in reasonable sharing of views.
[34]
The proposal does not comply with Clause 54 in relation to overlooking.
Noise from plant and equipment.
Mr Paul Rankin represented the applicants for review/objectors at the hearing on Day 1. Mr Rankin submitted that view was the "heart of the matter". Mr Rankin said that his parents had purchased 3784 Point Nepean Road at the end of 1980 and intended to retire there. He said that the key attraction of the property was the view. He said that they want to be able to stand on any part of their balcony and see the Portsea Pier. Mr Rankin provided me with a plan that showed viewlines from the centre of the balcony of the Rankin dwelling and the northwestern corner (the left hand side of the balcony when looking towards the foreshore). The plan showed a viewline from that corner of the balcony to the end of the pier, which would require a significant change in the proposed dwelling if this viewline was to be maintained. This viewline was endorsed "Required viewline to see the entire pier".
The plan also showed view lines from the left hand corner of the balcony and the centre of the balcony if the dwelling is erected as proposed. The view line from the left hand corner was endorsed "Actual viewline to pier" and indicated that about a quarter of the northern end of the pier and the western end of the east west leg of the pier would be obscured. A viewline endorsed "Viewline from centre of balcony to pier" indicated that from the centre of the balcony all but a small portion of the corner of the pier would be obscured.
The Rankins said in their objection:
[35]
The proposed dwelling will detrimentally affect the amenity of our adjoining existing residence by reason of unreasonable interference with shared viewlines to Port Phillip Bay and the Portsea pier. (The proposal will result in the loss of the major part of our traditional view to the whole of the Portsea pier and its environs. The proposal does not respect the historical view sharing between the two properties. We have a legitimate expectation for this view sharing to be maintained).
[36]
Overlooking from upper terraces and windows (none of which are screened) into the secluded private open space of our property is contrary to the purposes and objectives and standards of Clause 54.
[37]
Overshadowing of a significant area of our private open space will occur.
[38]
There will be loss of amenity from visual impacts and noise from plant and equipment on the roof of the proposal, and from noise from vehicles entering and exiting from the proposed basement car parking area.
[39]
The proposal has inadequate setbacks from the foreshore and our common property boundaries, particularly at the proposed upper level. The proposal will:
[40]
Visually intrude upon and unreasonably dominate the foreshore, Newton Reserve and our property;
Unreasonably impact on the amenity of those (including us) seeking to use the beach, the foreshore, Newton Reserve and the beach and cliff top access path on the foreshore in front of the site;
Significantly erode the policy basis for the 10 metre setback from the foreshore to protect the foreshore from dominant structures, particularly in this important location.
[41]
The proposed dwelling is not sufficiently responsive to:
[42]
The environment;
Its location adjacent to the Portsea Foreshore Reserve;
Its site context and neighbouring properties;
Its prime location adjacent to the Portsea foreshore and the principal Portsea swimming beach and pier environs; and
The character of this area.
[43]
Ms Brennan, in her written submission for the respondents/permit applicants, said:
(a) the proposal is a high quality contextual design responsive to its coastal setting;
(b) the new dwelling relates appropriately to the foreshore and the public domain;
(c) the amenity of adjoining properties is adequately protected;
(d) the revised design achieves a reasonable and practicable sharing of views;
(e) proposed landscaping is consistent with the vegetation patterns and themes along the foreshore.
Ms Heggen, who was called as an expert witness by Ms Brennan, gave evidence that:
The proposal is consistent with State and Local Planning Policies contained in the Mornington Peninsula Planning Scheme, as well as the zone and overlay provisions.
The proposal provides a valid design response to the site and its physical context having regard to local policy principles of "reasonable" view sharing and other DDO3 requirements.
The proposal provides a high level of amenity for future residents of the proposed dwelling without an unreasonable impact on the amenity of the adjacent dwellings to the west and south.
The Design and Development Overlay Schedule 3 provides that in the Residential 1 Zone an application must satisfy a number of objectives and should satisfy a number of standards at Clause 54, One dwelling on a lot. The concerns of the Rankins, as far as they relate to Clause 54, include overlooking. Mr Nicol, in his written submission for the Responsible Authority, provided an assessment of the proposal against Clause 54. The assessment indicated that the proposal either satisfied the relevant standards and objectives, or those standards and objectives were not applicable. The assessment with respect to the wall on the west boundary, which is to the ramp to the basement, was that it was acceptable subject to a proposed permit condition regarding its treatment. This wall is on the boundary with 3788 Point Nepean Road and is on the opposite side of the subject land from the Rankin property.
The separation between the proposed dwelling and the Rankin dwelling is some 12 metres, which exceeds the 9 metres referred to in Standard A15 of Clause 54.04-6, Overlooking objective. The Standard is therefore satisfied and the objective, which is to limit views into existing secluded private open space and habitable room windows, is satisfied.
One of the concerns of the applicants for review/objectors was noise from plant and equipment. Ms Brennan submitted that plant and equipment would be located in the basement so noise would be contained, and noise from plant associated with residential use is to be expected in residential settings and is already evident on rooftops in the vicinity. It was the evidence of Ms Heggen that any low grade noise associated with a domestic air conditioning plant would be absorbed by other noise sounds in a residential area. Condition 10 in the Notice of Decision to Grant a Permit provides that air conditioning and other plant and equipment must be baffled to prevent nuisance or annoyance to persons in dwellings nearby or on adjoining land. I consider it appropriate to add "to the satisfaction of the Responsible Authority" so that the Responsible Authority can enforce such a condition. I would have thought in any event that noise emanating from this dwelling would be no different from any other dwelling in the area.
Mr Nicol submitted that there is appropriate compliance with Clause 54, and I accept that submission.
A permit is required to vary some of the general requirements set out in paragraph 2.0 of Design and Development Overlay Schedule 3. These are:
The maximum wall height is 7.8 metres to the top of parapet, which exceeds the general requirement of 5.5 metres and the building height is 7.98 metres to the highest point of the roof, which exceeds the general requirement of 6 metres,
The dwelling is proposed to be setback between 5.6 metres and 6.5 metres at ground floor level from the Public Park and Recreation Zone (the foreshore) with the ground level terrace extending into this setback, which is less than the general requirement of 10 metres, and
Excavation of 2.4 metres is proposed, which is greater than the general requirement of 1 metre.
It was the evidence of Ms Heggen that the proposed dwelling height of approximately 8 metres equates to RL13.7, which would be lower than the dwelling to the west at RL15.33 and be consistent with the height of the dwelling of the Rankins to the south at RL13.59. Mr Nicol suggested that the variations proposed to wall and building height are typical for large houses on the foreshore side of Point Nepean Road in Portsea, and I agree.
It was stated in the officer report that having regard to the space in front of the northern boundary and the smaller setbacks of nearby dwellings, a setback of less than 10 metres was acceptable. It was the evidence of Ms Heggen that the three dwellings immediately to the west are setback considerably less than the general requirement of 10 metres. She said that the closest point of the dwelling to the west at 3788 Point Nepean Road to the Public Park and Recreation Zone is 5 metres and the three dwellings immediately to the west are setback considerably less than 10 metres. Ms Heggen said that the proposed setback is neither unreasonable nor uncharacteristic and it would not undermine the purpose and function of the coastal reserve. I agree with that assessment.
Ms Heggen said that because the height of the proposed dwelling is lower than the dwelling to the west and similar to that of the dwelling to the south and the strong vegetation canopy that backdrops the subject site the proposed dwelling would sit comfortably within its foreshore context when viewed from the foreshore and the pier. She said that the visual impact of the dwelling would be further reduced by the proposed materials and selected colours, and noted that Condition 1 in the Notice of Decision to Grant a Permit sets out detailed landscaping requirements.
Ms Heggen said that the dwelling would be difficult if not impossible to see from Point Nepean Road. This is a correct assessment because of the setback from Point Nepean Road and the intervening Rankin dwelling. Ms Heggen said that the proposed dwelling would sit comfortably within its foreshore context when viewed from the foreshore and the pier. I accept that evidence.
I consider that the proposed variations to the general requirements set out in paragraph 2.0 of Schedule 3 would satisfy the Decision Guidelines set out at paragraph 4.0, would not result in any unreasonable loss of amenity, and would not impact unreasonably on the character of the neighbourhood or the environmental and landscape values of the site and the area, including the foreshore. There will be some impact because a dwelling is proposed where no dwelling presently exists, but a dwelling on the subject land is not an unreasonable expectation.
I consider for these reasons that the proposal also satisfies the Decision Guidelines set out at paragraph 4.0 of Environmental Significance Overlay Schedule 25.
The remaining, and indeed the principal, issue is impact on views presently enjoyed from the upper level north facing balcony of the Rankin property.
One of the design objectives set out at paragraph 1.0 of Design and Development Overlay Schedule 3 is:
To protect shared viewlines where reasonable and practical.
Ms Brennan submitted:
[44]
This of course was common ground. Ms Brennan went on to say:
[45]
...and the proposal more than meets the threshold of protection for views afforded by the planning scheme.
[46]
This statement is clearly a matter of contention.
The Decision Guidelines for the Design and Development Overlay at Clause 43.02-5 include:
The design objectives of the relevant schedule to this overlay, and
Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
I consider that the proposal satisfies the second of these Decision Guidelines quoted for the reasons stated above. The issue is whether it satisfies the first, having regard to views.
Ms Brennan set out the correct position as follows:
The general principles in relation to view sharing are well established. Although there is no legal right to a view, views are part of the amenity of a property the loss of which is relevant, especially where the planning scheme makes express reference to view sharing. The basic test is one of reasonableness. As the Tribunal explained in Centrum Architects Pty Ltd v Surf Coast Shire Council note at 10 VPR 126,
[47]
A 'reasonable sharing' of views does not mean that an equal sharing of views will result. Matters such as the prevailing topography and vegetation frequently influenced the manner in which views can be shared.
[48]
The view enjoyed by the Rankins is presently unrestricted by any dwelling on the land to their north. I have already said that it is a reasonable expectation that there be a dwelling, indeed a double storey dwelling on the land to their north.
It was the evidence of Ms Heggen that the proposed first floor wall setbacks from the east boundary between 3 metres and 4.9 metres and the setbacks which control the extent of the view cone from the first floor balcony of the Rankin dwelling are to bedroom three and the bathroom (3.5 metres and 3.1 metres respectively). The view from the middle of the upper level balcony past these points takes in the full extent, or almost the full extent, of the Portsea Pier. The Rankins are concerned that their view of what I have described as the left corner of their balcony, would be restricted.
Ms Heggen said that the view to the north and to the northeast from the middle of the balcony achieves "quite a sharing of viewlines that is both reasonable and practical and in this context achieves the relevant design objectives of DDO3". Ms Heggen said that she did not consider it a "reasonable expectation" that views of the entire pier by maintained from the entire length of the balcony.
The subject land has a frontage of 18.1 metres to the foreshore but the width of that part of the subject land is 16 metres. The setback from the west boundary is constrained by the need for adequate width for vehicle access in the southwest corner. The minimum setback from the west boundary appears to be 2.103 metres at ground floor level and 2.431 metres at the upper level.
The setbacks from the east boundary are significant, particularly having regard to the width of the subject land and the constraint imposed by the requirement for vehicle access. Mr Rankin, towards the end of his submission on Day 1, said that he is an Architect. He suggested a number of substantial design changes to achieve greater setbacks from the west boundary and so improve viewing from the upper level balcony of the Rankin dwelling. The Council and the Tribunal on review have the responsibility of considering a permit application and deciding whether or not a permit subject to conditions should be granted. Conditions can include some design changes. I do not consider it appropriate that substantial redesign should be required by condition. If substantial redesign is required then it is appropriate to decide that a permit should not be granted. Put simply, it is the responsibility of the Council and the Tribunal on review to decide whether or not a permit for a particular proposal should be granted.
A reasonable sharing of views does not mean retaining forever all or most of the view that one enjoys if there is land within that view which has the potential for development of a dwelling. This is the case here.
The proposed dwelling is likely to have unrestricted views and the dwelling at the rear will have its view constrained following development of that dwelling. The question is how much should that view be constrained? It is the view of the Rankins that they should continue to be able to see the whole of the Portsea Pier from the full width of their balcony. It would seem that if the dwelling is erected as proposed they will not be able to see the end of the pier and about one quarter of the length of that pier but will have unrestricted views to the east of that viewline. It would seem that they would be able to see all or most of the pier from the centre of the balcony.
Holmbes v Mornington Peninsula SC[2008] VCAT 507 (25 March 2008), where Design and Development 2 Overlay applied, Member Hewit said:
Turning now to a consideration of the view line issue, the Tribunal has over a number of years formulated principles to be applied in cases relating to the consideration of the impact of developments on the views enjoyed by existing residents. These principles can be summarised as follows:
[49]
(b) Views form part of the existing amenity of a dwelling and their loss is a relevant consideration to be taken into account;
[50]
(c) The availability of views must be considered in the light of what constitutes a reasonable sharing of those views;
[51]
(d) Added emphasis will be placed on considerations B and C above if the question of views is specifically addressed under the planning scheme.
[52]
(e) The level to which the objectors had developed their own properties has been held to be a relevant consideration.
[53]
(f) It is relevant to have regard to the importance of the view to be lost within the overall panorama available.
[54]
I agree with these principles and, in accordance with their application, the initial task for me is to assess the impact of the view loss having regard not just to a quantitative assessment of the loss but also to the quality of the view to be lost within the overall panorama available.
The first point to be noted is that the proposed extension will not lead to an obliteration of the views currently available from properties on the elevated, north side of Myers Drive. Those properties will continue to gain the benefit of the panoramic views of the bay and Phillip Island over and through existing vegetation and over the roof line of the dwelling at 42 Myers Drive. What will occur as a consequence of the construction of the proposed extension is a very small intrusion into that panoramic view.
The impact of the proposal is entirely consistent with the concept of view sharing and with the outcomes sought by the Design and Development Overlay. In arriving at this conclusion, I make the observation that I do not regard the concept of view sharing as being synonymous with the protection of all existing views. The outcome being sought by the planning scheme is to ensure that where developments do intrude into existing shared view lines, a reasonable sharing of views continues to exist. I am satisfied that this proposal achieves that outcome.
In Peacock v Mornington Peninsula SC [2008] VCAT 1770 (28 August 2008), which involved Design and Development Overlay 4, Member Taranto said:
[55]
Would the proposed development interfere with the enjoyment of views from neighbouring properties?
[56]
Mr Peacock asserted that the development would interfere with westerly views of the tree canopy and his enjoyment of the setting sun.
The issue of loss of views is not always straight forward. In this case, I have considered the principles set out in Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others4 AATR 125. Those principles are that:
[57]
(b) views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account:
[58]
(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views; and
[59]
(d) added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.
[60]
In Centrum Architects Pty Ltd v Surf Coast SC, Morling and Others (noted at 10 VPR 126), Senior Member Marsden 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 full potential, they would be capable of enjoying the same panoramic views as those to be obtained by the proposal. Thus, the level to which the Objectors had developed their own properties was held to be a relevant consideration.
I adopt those established principles and have considered them in reaching my findings on the issue of views.
Firstly, I affirm that the question of views is specifically addressed in the Mornington Planning Scheme under the DDO4. The relevant design objective seeks:
To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical. [Tribunal emphasis added]
Secondly, I find that the open views towards the tree canopy from the indoor living areas and outdoor deck areas form part of the amenity enjoyed by occupants of the dwelling. I find however that expectations about the preservation of those views must be tempered by the following circumstances:
The views are partly across the middle of the neighbouring property. While the building will sit above the skyline and to some extent the existing tree canopy, this would most likely occur with any 2-storey development on this site. As I have mentioned, a development of this scale sited in the manner proposed is not unusual in the local context. It is true that the introduction of a two-storey building with a hipped roof will undeniably introduce a change to the outlook from the Peacock's property, On balance, I think however the outcome is acceptable given that some 24in of backyard space in a north-westerly direction would remain free of buildings.
I do not think it reasonable to expect full retention of those views having regard to considerations relating to view sharing.
Views are primarily towards neighbouring trees above Mr Peacock's landscaping in the foreground. Although clearly forming part of the area's character and pleasant ambience, these views do not terminate at a particular feature of significance such as a coastal view. That is, I regard the view as being more in the nature of a landscaped outlook rather than being defined by a feature having a unique quality.
On the question of whether the dwelling at No. 97 Old Mornington Road has been developed to its full potential, this is not easy to determine given the DDO4. However, I find it is unnecessary to answer this question given my findings that the partial loss of views would not be so unreasonable as to warrant refusal of this proposal.
These are only some of the matters in which the Tribunal has considered the issue of impact on views. The Tribunal has consistently held that whilst there is no legal right to a view, views do form part of existing amenity of a dwelling and their loss is a relevant consideration. It cannot be assumed that all existing views can be protected, particularly where a dwelling does not presently exist and where it might be expected that a dwelling would at some time be erected. This is the case here. A dwelling is proposed and it will impact on views currently enjoyed. I consider that the result of this proposal would be a reasonable sharing of views. The Portsea Pier in its entirety could not be viewed from the whole of the upper level deck of the Rankins, but a substantial part of the pier could be viewed from the whole of the balcony and the whole of the pier could be viewed from some of the balcony.
There are also views further easterly that will remain and cannot be built out because of the reserve on the east side of the subject land. I consider that what is proposed would result in a reasonable sharing of views. If the Rankins are to have a view of the whole of the Portsea Pier from the whole of their balcony, it would be necessary to increase the setback of the proposed dwelling from the east boundary. I consider that this would be unreasonable having regard to the width and area of the lot and the not unreasonable setback now proposed from the east boundary. I consider that the remaining view would represent a reasonable sharing of views.
It could be argued that the respondents/permit applicants will have unrestricted views, whilst the views of the applicants for review/objectors will be restricted. This is simply because the proposed dwelling is on the foreshore and the dwelling of the applicants for review/objectors is behind.
I do not consider that it would be reasonable to expect that the setback of the proposed dwelling from the east boundary be increased to ensure that the view of the whole of the Portsea Pier is preserved for the Rankins. Member Hewit said in Holmes that the outcome sought by the planning scheme is to ensure that where developments do intrude into existing shared viewlines, as does the proposed development, a reasonable sharing of views continues to exist. He was satisfied that the proposal that he was considering achieved that outcome and I am satisfied this proposal achieves that outcome.
Reference has been made in some decision as to whether an existing dwelling has been developed to its full potential. I have given no consideration as to whether the dwelling of the applicants for review/objectors has or has not been developed to its full potential. Senior Member Byard said in Leverington v Mornington Peninsula SC[2009] VCAT 2364 (6 November 2009):
The Design and Development Overlay is intended to achieve design objectives specified in the relevant schedule. In this case, it is schedule 2 to the Design and Development Overlay. There are various objectives mentioned, some of which have some general application to the case. Nevertheless, for present purposes the key and essential one reads:
[61]
To protect shared viewlines where reasonable and practical.
[62]
It is clear from this that preservation of existing viewlines and sharing of views is not always reasonable or practical. The desires of existing residents in this respect cannot always be met, and that is well recognised in this key provision.
I think that this aptly summarises my conclusions in this matter.
I have concluded, for the above reasons, that a permit subject to conditions should be granted. I consider that the conditions in the Notice of Decision to Grant a Permit are appropriate, but with the addition of the words "to the satisfaction of the Responsible Authority" in some conditions. I consider that the proposal satisfies the relevant planning provisions and planning policies.
[63]
For the above reasons it is appropriate that a permit subject to conditions be granted. I will so order.