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[2001] VCAT 2296
respondent. The Tribunal affirmed Moyne Shire Council’s decision to grant a permit in Application 2001/100 and directed the Responsible Authority to issue the permit subject to the conditions in its Notice of...
The Tribunal allowed the permit decision to stand. It found that the dwelling’s 29% site coverage did not make it an overdevelopment, accepted the design and materials in the context of the neighbouring properties, and was not persuaded that the garage needed a two-metre setback. It also considered that existing and proposed vegetation would reduce the building’s visibility. The Tribunal treated the Port Fairy Guidelines as guidance to be applied in context, not as inflexible rules.
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In J & VJ Nominees PL v Moyne SC [2001] VCAT 2296, J & V J Nominees Pty Ltd, an objector, sought review under section 82 of the Planning and Environment Act 1987 of Moyne Shire Council’s decision to grant a conditional permit for a two-storey dwelling at 42 Griffith Street, Port Fairy ([1]). Swaney Draper Architects represented the permit applicants, Mr and Mrs Ritchie. The Tribunal was constituted by Peter J Avery, Member.
1 cited instrument linked from this judgment.
The review applicant identified three grounds: that the development would overdevelop the site, that its building and design were not of the highest standard, and that the rear garage wall was too close to the boundary and should be set back two metres ([2]). During the hearing, concerns were also advanced about vegetation removal, landscaping, visual prominence from the beach and visual bulk ([35]-[38]).
The land was in the Residential 1 Zone and within Design and Development Overlay Schedule 1, concerning buildings in Port Fairy ([32]-[33]). The proposal was on a battle-axe allotment with an effective width of 20.28 metres and a narrow access handle. The site rose towards the beach and contained tea trees and other vegetation ([11]-[12]). The adjoining properties included a single-storey timber house to the north and a two-storey rendered brick house to the south ([13]).
The amended plans showed a dwelling area of 228 square metres, a deck area of 108 square metres and 29% site coverage on a 1,175-square-metre site ([26]). The amendments reduced the garage and removed part of the deck along the southern boundary ([27]). The Tribunal inspected the site on 4 October 2001, after the hearing, and treated the inspection as useful to its assessment ([9]-[10]).
The Tribunal affirmed Council’s decision and directed it to issue the permit subject to the conditions in the Notice of Decision dated 14 June 2001. Costs were reserved ([Order], [49]).
The Tribunal resolved the review through a contextual planning assessment rather than treating the Guidelines as rigid controls. It considered the planning scheme, applicable policy and design guidance, the plans, photographs, evidence and its own site inspection ([34]-[38]). It expressly stated that the 1998 and exhibited 2001 Guidelines were “not fixed rules, but guiding principles” for design in the context of the particular site ([45]).
On overdevelopment, the review applicant did not pursue the ground at the hearing, and the expert planner did not conclude that the proposal was an overdevelopment ([39]). The Tribunal also noted that the proposal had 29% site coverage, compared with the 30% maximum recommended by the 1998 Guidelines ([26], [39]). It rejected the ground.
On the garage setback, the amended plans had moved the garage away from the southern boundary, leaving a one-metre setback for the single-storey wall ([27], [39]). The Tribunal considered the single-storey form and the Guidelines’ recognition that garage walls could be built to boundaries. It was not persuaded that the case justified an additional metre of setback merely to create more room for planting ([41]). It also observed that the review applicant could consider landscaping on its own property if concerned about overlooking, but that observation was not a condition of the permit or a separate legal finding ([41]).
The design issue was assessed against neighbouring development and the coastal setting. The Tribunal found the dwelling compatible with the adjoining house to the north and the scale of the two-storey dwelling to the south. It considered the flat roof acceptable in that setting, particularly because the southern adjoining dwelling also had a flat roof ([40]). It did not see a rational basis for increasing the building’s height by changing the roof form ([40]).
The Tribunal also addressed the difference between estimated and surveyed heights. A later drawing identified a parapet level of 13.43 metres AHD, which was 0.27 metres lower than the roof level of the two-storey house to the south. The Tribunal calculated the maximum height of the southern wall above existing ground as 7.2 metres, generally less than seven metres, rather than the 7.3 to 7.5 metres assumed by the review applicant’s expert ([46]-[47]). The judgment does not present those figures as a general height rule; they inform the assessment of this proposal.
For vegetation and visibility, the Tribunal relied on its site inspection, the survey and plans, and the landscape information. It was satisfied that the development would not cause excessive loss of existing vegetation and that planting and retained vegetation would filter views of the dwelling from the beach ([42]-[43]). The Tribunal considered the intended natural hardwood cladding, which was expected to weather to a “silver grey” colour, in assessing how the building would sit in the coastal environment ([43]). It agreed with the permit applicant that the dwelling would not be unduly prominent or excessive in bulk ([44]-[45]).
In the conclusion, the Member found Council’s decision reasonable and the permit conditions acceptable in the circumstances. He adopted those conditions without change and found the proposal generally satisfactory and sufficiently consistent with the relevant planning objectives, policies and guidelines ([49]-[50]).
This decision does not identify a before-and-after change in the law. It is a site-specific merits review, and the judgment does not overrule or distinguish any prior case. Its legal sources, as described in the reasons, are planning legislation and instruments: section 82 of the Planning and Environment Act 1987, the Moyne Planning Scheme, Design and Development Overlay Schedule 1, and the Port Fairy Guidelines ([1], [32]-[34]).
The clearest interpretive point in the decision is that the Guidelines were not treated as fixed rules. The Tribunal said they were “guiding principles” to be applied having regard to the particular site ([45]). That statement explains the approach taken in this review; the judgment does not claim to establish a new general rule governing every planning assessment.
The reasons record the 1998 Guidelines’ recommended maximum site coverage of 30%, and the proposal’s coverage of 29% ([39]). They also discuss the exhibited 2001 Guidelines, including a two-metre side setback and a combined setback measure for certain land within ten metres of a beachside frontage. The Tribunal described the latter measure as inapplicable to this dwelling because the proposed building would be at least eleven metres from that frontage, and addressed the side setback in its assessment ([39]). These are the Member’s explanations of how the cited guidelines applied to this proposal, not a finding that the guidelines were statutory requirements.
The decision’s practical contribution is therefore an example of contextual application: it weighs a numerical site-coverage recommendation alongside built form, adjoining development, roof design, vegetation and views. It does not set a binding formula for those matters. Nor does it state that compliance with one guideline necessarily determines the outcome.
At [39], the Tribunal said the overdevelopment ground was “totally rejected as not being justified on any basis.” In context, this followed the 29% site coverage figure, the 30% guideline recommendation and the fact that the ground was not pursued at the hearing. The passage is the conclusion on this proposal, not a general rule that a development below 30% coverage can never be an overdevelopment.
At [40], the Member said the architects had “achieved a satisfactory result.” He explained that assessment by reference to the adjoining buildings, the flat roof, the design and materials, and the placement of the dwelling to retain vegetation. In plain English, the Tribunal considered the proposal acceptable when judged against its surroundings and the relevant design guidance.
At [41], the Member stated that an increased setback could not be justified “simply so that additional planting can be introduced within an additional one metre.” The reasons also refer to the garage being single storey and the guideline recognition that garage walls can be built to boundaries. This explains why the requested two-metre setback was not imposed in this case.
At [43], the Member described the proposal as blending into the coastal environment, with views from ground level filtered by existing trees and vegetation planned by the permit applicants. This conclusion followed a site inspection and consideration of landscape material; it was not based on a universal presumption that vegetation will always resolve visual effects.
At [45], the Tribunal described the Guidelines as “not fixed rules, but guiding principles.” In plain English, the Member treated them as relevant design guidance to be applied in the circumstances of the specific site, rather than as automatic pass-or-fail standards.
At [49]-[50], the Member concluded that Council’s decision was reasonable, retained the permit conditions, and found the proposal generally satisfactory and sufficiently consistent with the relevant planning objectives and policies. Those paragraphs connect the issue-by-issue findings to the order affirming the permit decision.
The decision is most directly relevant as an example where an objector seeks merits review of a residential permit in a coastal setting and raises related concerns about density, design, setbacks, vegetation and visual prominence. Its facts involved land in a Residential 1 Zone and a Design and Development Overlay, an allotment near the beach, established vegetation, and two adjoining dwellings of differing scale and materials ([11]-[13], [32]-[33]).
The reasoning may be useful to compare with proposals where design guidance includes a recommended site-coverage figure or setback measure, but the decision indicates that contextual assessment matters. Relevant comparison points in this case included the building’s distance from the beach frontage, the single-storey form of the garage, the roof form of an adjoining dwelling, the placement of the proposed dwelling and the effect of retained planting ([39]-[47]).
The decision should not be read as deciding disputes with materially different planning controls or site characteristics. The judgment’s analysis depended on the Moyne Planning Scheme provisions, the particular Port Fairy Guidelines, the submitted plans and the inspected site. It also records that the objection’s overdevelopment ground was not pursued at the hearing ([39]). The case does not establish that a given site coverage, garage setback or height will be acceptable elsewhere.
The supplied judgment contains no discussion of later cases, and no later decisions or legal sources have been provided. Its precedent relationships therefore cannot be assessed from this material. The judgment itself cites no other court decisions in its reasons.
The source identifies the decision as a VCAT Planning List determination, not a court judgment. On the available text, it is safest to describe it as a fact-specific Tribunal decision rather than claim that later courts have adopted, followed or limited it. Any account of its subsequent treatment would require later decisions or an authoritative case-history source, neither of which appears in the supplied material.
The judgment does not resolve how the same Guidelines would apply to another site, or how a different planning scheme might treat comparable development. Its conclusions were tied to this proposal’s location, layout, relationship to neighbouring buildings and landscape setting ([39]-[47]).
The reasons also distinguish between the 1998 Guidelines and 2001 Guidelines that were exhibited as part of a planning scheme amendment process. The Member records that Amendment C3 was progressing through exhibition and review, and that the newer Guidelines had not completed that process ([34]). The judgment does not explain the later status of that amendment or the eventual legal effect of those Guidelines.
On landscape conditions, the Tribunal noted a condition requiring a professional landscape plan and observed that the plan provided to it was more comprehensive than the information initially available ([43]). It did not set out the final endorsed planting schedule or decide how any disagreement about later landscaping would be resolved.
Finally, the order reserved costs and set time limits for any application and response ([Order], [48]). The reasons do not record a later costs determination. The supplied material therefore supports no conclusion about whether costs were subsequently sought or awarded.
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Planning List; s.82 Application; Moyne Planning Scheme; Residential 1 Zone; Design and Development Overlay No. 1 (Buildings in Port Fairy); Design Guidelines for Port Fairy January 1998.
The order of the Tribunal is that the decision of the Responsible Authority to grant a permit in Application 2001/100 is affirmed.
The Responsible Authority is directed to issue a permit subject to the conditions set out on the Notice of Decision to Grant a Permit issued on 14 June 2001 for the construction of a two storey dwelling at 42 Griffith Street, Port Fairy.
Costs are reserved. If any party seeks to apply for costs, then a formal application and accompanying written submissions must be made within 21 days of the date of this order, with copies being served on all other parties to this review. If other parties intend to contest any such application, within 14 days of them receiving the claim for costs, they must file with the Tribunal and serve on the Claimant and other parties to this Application for Review, written submissions contesting that application for costs. Any party may request that the Application for Costs be the subject of a hearing, and the Tribunal may determine to do so.
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For the Applicant for Review: Mr Bill Gillies, Barrister, instructed by David A Ryan, Lawyer appeared for J & VJ Nominees Pty Ltd and called Mr Jamie Larmour-Reid, Town Planner, as an expert witness.
For the Responsible Authority Mr Russell Guest, Town Planner, represented Moyne Shire Council.
For the Permit Applicant: Mr Simon Swaney, Architect, represented Swaney Draper Pty Ltd who acted for the owner Mrs Eda Ritchie and Mr Robin Ritchie.
The parties made written and verbal submissions, and presented the Tribunal with a range of photographs, plans and other documents, which have been retained on file, and taken into consideration. The site and locality have been inspected by the Tribunal following the hearing.
1. This is an application under Section 82 of the Planning and Environment Act 1987 (P&E Act) brought by J & V J Nominees Pty Ltd as an objector to review the decision of the Shire of Moyne as Responsible Authority, to grant a conditional permit in Application 2001/100 for a two storey dwelling at 42 Griffith Street, Port Fairy.
2. The grounds provided on the Application for Review dated 2 July 2001 were:
(2) Building and Design is not of the highest standard;
(3) Rear garage wall of dwelling too close to boundary and should be set back 2(two) metres.
3. Mr Swaney for the Permit Applicant and Mr Guest for the Responsible Authority both informed me that they had each received a copy of a Statement of Evidence on planning issues by Mr Jamie Larmour-Reid of Fisher Stuart, on the afternoon of 25 September 2001, being the day before the listed hearing date. They had both prepared their written submissions to be presented to me, not knowing that the Applicant for Review was intending to call an Expert Witness, and they had not had sufficient time to prepare responses, or for Mr Swaney to seek instructions from the owners for whom he was acting, who were overseas.
4. Mr Gillies advised that the original Town Planner who had been engaged "had not performed" and that another planning consultant (Mr Larmour-Reid) had been engaged at short notice, and had only completed the report on 25 September 2001, when it was "expeditiously circulated".
5. A copy of the Statement of Evidence was handed to me at the hearing and I stood the matter down to quickly read it and assess the implications of the failure of the Applicant for Review to comply with the "Practice Note 2: Expert Evidence" of the Tribunal, (time for service).
6. It was noted that the Tribunal had received a letter from Mrs Ritchie (for whom Mr Swaney acted) dated 22 July 2001 seeking the hearing to be scheduled at the earliest possible date, advising that she did not propose legal representation and would "represent themselves for the hearing", and attaching grounds upon which she intended to contest the Review Application. A subsequent facsimile received by the Tribunal on 27 August 2001 from Mrs Ritchie again sought the hearing to be scheduled urgently ("the location for the hearing is not an issue for us and we would be prepared to attend anywhere in Victoria in order to have it expedited").
7. A further letter dated 2 September 2001 from Mrs Ritchie (received by the Tribunal on 4 September 2001, with copies being sent to Moyne Shire Council and David A Ryan as the solicitor acting for the Applicant's for Review) advised her "intention to seek reimbursement for the costs incurred by myself and I will encourage the Moyne Shire Council to do likewise." The letter went on to state:
"My advice is that the behaviour of the applicants in regard to this whole matter has been very poor", and further, "Therefore I will be seeking costs on the basis that this is a frivolous appeal".
8. On resuming the hearing, and in the light of these matters, after some discussion I advised that I proposed to proceed with the merits hearing but would afford both Council and the Permit Applicant representatives the right to make written submissions relating to the evidence to be presented by Mr Larmour-Reid, and with regard to the matter of costs, following the conclusion of the hearing.
9. While a series of photographs were provided, which gave a reasonable overview of the locality, and nearby houses, and site conditions, the parties suggested it would be of considerable assistance to me, if I undertook a personal inspection of the review site and locality, recognising the distance from Melbourne involved a significant number of hours travel, for the return trip.
10. I inspected the site, the area and nearby and adjacent homes on Thursday 4 October 2001, and found it to be extremely beneficial in determining this review.
11. The review site is a "battle-axe" block with an effective width of 20.28m, a frontage towards Beach Street (which is an unconstructed road to the east, which on plan separates the review site from the beach) and a depth of 53.77m to the "handle" which is only 2m wide and extends 42m westwards to Griffith Street. An appurtenant carriageway easement also 2 metres in width over the title of the site to the north, results in a 4 metre width for vehicles to access both the review site building area, and the existing house on the property to the north, which is owned also by the clients of Mr Swaney (Mr and Mrs Ritchie).
12. The site is low lying at its western end, but rises significantly towards the east, to nearly 7m above sea level (7.00AHD), approximately 20m from the edge of the water at the East Beach of Port Fairy Township. The higher section of site is well vegetated mainly with tea trees, with commanding wide views of the foreshore area.
13. There is a single storey timber house on the property to the north, and a large two storey rendered brick house on the property to the south of the review site (owned by the Applicants for Review). It appeared to me that there are houses on all other properties with abuttals to Beach Street between Rogers Place (to the south) and Lydia Place (to the north) with a number being two storey. Some buildings are more visible than others when viewed from the beach, due to their height, or the amount of vegetation retained or planted. There is a large timber deck area extending the full width of the site to the south, which appears to me to have been constructed not too long ago, which seems to be quite close to the eastern title boundary (Beach Street) which (by scaling from plans forming the basis of the application) is approximately 14.6m from the eastern face of the house on that property (ignoring the protruding balcony). There is a lawn area between the house and the timber deck. That existing house is set back approximately two metres from the southern boundary of the review site. There is a second balcony at first floor level to the west.
14. I was provided during the course of this review, with a number of survey plans and other drawings of an architectural nature, which comprised the development concept proposed. Copies of all of these plans are now retained on the Tribunal file.
15. It is my understanding that accompanying the original application form and received by Council on 20 April 2001, there were six drawings prepared by Swaney Draper Pty Ltd, Architects which were all dated April 2001 and labelled as follows:
Contour Plan (also showing ground floor of proposed dwellings) - Drawing 732/TP/06
16. During the hearing, Mr Swaney advised me that a Feature Level Survey Plan by Adshead & McQuie Pty Ltd, reference 1475 version 01 and dated February 2001 was also provided to the Council and this was not disputed by Mr Guest who represented Moyne Shire Council at the hearing, however he was unable to provide me with a copy during the hearing. Mr Swaney then tabled for me to retain, a copy of the Adshead & McQuie Pty Ltd plan, on which his office had superimposed the ground floor footprint of the proposed dwelling and deck, on which the circular symbols of "significant tree trunks" had been highlighted in red by Mr Swaney. A copy of the original surveyors plan was sent to the Tribunal by Mr Swaney along with a second survey plan prepared by Adshead & McQuie Pty Ltd, refence 1475/1 entitled "Title re-establishment Plan" with the date of survey being given as June 2001. I will make further reference to these survey drawings throughout these reasons as they provided me with valuable, basic information relating to the site conditions, as well as floor levels of both adjoining houses to the north and south and the roof level of the two storey house to the south which is owned by the Applicants for Review.
17. The Swaney Draper Pty Ltd plans referred to above ("the original plans") provided the Responsible Authority with perimeter boundary dimensions, the positions of the existing single storey timber clad residence to the north and the adjoining two storey rendered brick residence to the south, room layouts on both the ground and first floor of the proposed new dwelling, four elevations, and contours (200mm interval) without any reference to their source, datum, or guidance whether they reflect existing conditions or intended future conditions. The plans were not particularly clear regarding the position of the proposed new dwelling within the site, with only one setback dimension of 2020mm from the northern boundary of the site, and a notation to say that the proposed study was to be "setback in line with adjoining dwelling" to the north. No relationships were provided between the two faces of the proposed dwelling or the deck which was shown as wrapping around the southern, northern and eastern walls of the proposed new dwelling, to the eastern title boundary. The proposed levels of the ground floor, first floor, and parapets were not provided, although the elevations did provide the reader with some broader indications of apparent heights, however these were also somewhat ambiguous, implying that they were the heights above the existing ground levels, although it could have been equally implied that they were heights above the future ground levels after works had been carried out on the site. Having gone to the trouble of arranging for the feature and level survey, and incorporating a contour plan in the series of plans describing the proposed building (732/TP/06), I believe that it would have been a very simple exercise to annotate the plans to provide the reader with the floor levels, parapet level, so that easy comparisons could have been made with the existing conditions information obtained by survey by Adshead & McQuie Pty Ltd on the adjoining properties.
18. The "original scheme" showed approximately 9.5m (scaled) of the ground floor level of the proposed dwelling built to the southern boundary of the review site, to an apparent height of 3600mm. That part of the dwelling was labelled "sand rm", and appears to me to have been designed as an extension of the double garage with direct internal access to the laundry, and the space below the internal stairs leading to the upper floor. There were also two external doors providing access to a proposed service yard to the west, and to a deck shown to the east wrapping around the eastern, southern and northern walls of the proposed house, and which was proposed to be built between the northern and southern boundaries of the review site.
19. The first floor of the dwelling was shown to be setback 2020mm from the northern boundary and while no setback dimension was indicated on the plans I received, from the south boundary to the plane of the first floor, scaled approximately two metres on the plans.
20. All walls were proposed to be clad with vertical timber boards, except for the dining room single storey section of the northern wall, and those parts of the walls which were above the windows on the eastern elevation, where the plans showed "horizontal timber board cladding".
21. It is worth pointing out at this stage in these reasons, that the Adshead & McQuie Pty Ltd plan identified the level datum to be Australian Height Datum (AHD) and that the contour interval was 200mm. The plan showed approximately 26 symbols representing trees (circle with a cross inside) and the legend carried the following notation:
Tree canopies are irregular in shape and as they cover the entire site, have not been shown on the plan.
22. The legend also indicated that "title re-establishment is not the subject of this survey", however the plan indicated that there was a colorbond fence along the southern boundary of the area covered by the survey, and a lattice fence and concrete retaining wall at the western end. Other features indicated on the survey plan included a track and "top of bank" and an arrow indicating "view line to light house" from a point roughly midway between the two existing houses, and slightly to the west of the top of the bank, which is in reality the high point of the sand dune which falls to the east to the waters edge of the eastern beach of Port Fairy.
23. The survey plan showed that the high point of the site was at RL7 AHD and that the low point was close to the western boundary where the land was at 2.60 AHD.
24. Mr Guest for Council advised that the application and associated plans were advertised by letter to surrounding land owners and occupiers on 27 April 2001 with one objection only being received from J Astbury for and on behalf of the Applicants for Review, (J & VJ Nominees Pty Ltd). Mr Guest also advised that prior to the matter being put to the Council, a mediation meeting was held on site, and amended plans "moving the garage from the property boundary were submitted and circulated to the objector, who did not withdraw their objection". The application was also referred to Portland Coast Water Authority, who indicated no objections subject to standard conditions, and internally to Moyne Shire Councils Coastal Planner who also advised no objection to the granting of the planning permit subject to conditions.
THE AMENDED PLANS, USED BY COUNCIL IN ITS DETERMINATION
25. The plans as amended and submitted to Council as referred to (in paragraph 24) were all dated May 2001, and bore the same reference number except for the addition of the suffix "A" to each of the six drawing numbers (as listed above in paragraph 15).
26. The plans indicated the site area as 1,175m², the dwelling area 228m², deck area 108m² and the total site coverage being "29%".
27. The modified drawings cut back the extended garage and deleted the "sand RM" and a section of the deck along the southern boundary of the review site. Comparison of the two sets of drawings show internal minor modifications in the area of the ground floor powder room, laundry, storage within and access to the garage, however these are not considered to be so significant to influence my decision in this matter.
28. Other changes made to the plans noted by me, include the introduction of sun shading elements, and the introduction of skylights to the southern section roof of the garage, and the additional notations added to the ground floor plan drawing "existing planting". There does not appear to me to be any significant design changes to the first floor plan, other than the addition of the sun shading elements and an indication that the space on that drawing to the east of bedrooms three and four was in reality a roof over the dining and living area of the ground floor.
29. With respect to drawing 732/TP/04A, I note that the earlier notes relating to the cladding no longer appear on the amended plans, however this may simply be an oversight on the part of the architect. Of somewhat greater significance however, is the substitution of floor-ceiling heights in lieu of the overall dimensions (7,000 and 3600, and the variation to what is understood to be a ground line (existing or proposed).
30. With regard to the second elevation drawing, similar comments are made regarding the omission of descriptions of the form of cladding, however it is also noted that the horizontal timber board cladding referred to above, to the northern wall of the proposed dining room, as been shown as vertical lines in lieu of horizontal lines, and there is a further modification to the decking extent, as well as to the number, and shape of first floor windows, and to the substitution of highlight windows to the powder room on the ground floor which might reflect the re-arrangement of the design.
31. With regard to the sixth drawing (the contour plan) I note that there is a short extension of the northern deck so that it now extends outside the kitchen window, and that the previously identified barbeque location on the northern deck had been deleted, as had the "service yard" to the west of the garage, and the central section of the southern deck closest to the house to the south. It may be intended, that the service yard will be relocated into this location so as to be not in the line of sight from the upper level balcony (or the ground level seating area) of the objectors house (to the south).
32. The land and adjoining land is zoned Residential 1 under the Moyne Planning Scheme, and a planning permit is not required to use land for the purpose of a dwelling or to construct a dwelling on a lot greater than 300 square metres in area.
33. The site is also within the area covered by a Design and Development Overlay, and accordingly Clause 43.02 applies to this application. In particular, it is subject to DDO1 (Schedule 1 to the Design and Development Overlay) (Buildings in Port Fairy) and additional decision guidelines therefore apply to those decision guidelines found in Clause 43.02-5.
34. Both Mr Guest for the Moyne Shire Council, and Mr Larmour-Reid quoted extensively from both the Ordinance as well as from `The Decision Guidelines for Port Fairy, January 1998' which are referred to in the Ordinance as a reference document, as well as Mr Guest drawing my attention to more recently developed guidelines which have been exhibited by the Council as part of Amendment C3 which is currently being progressed through the exhibition and review process which is prescribed. I was advised that Amendment C3 had been taken off exhibition approximately two weeks prior to the hearing, and that there were around 25 submissions, some of which it had been established could not be accommodated and accordingly would need to be referred to a Panel and/or Advisory Committee, to be appointed by the Minister. Accordingly, while Mr Guest indicated none of the 25 submissions related to this particular area of Port Fairy, there were no substantial changes to the Guidelines or Objectives. Copies of both documents were provided to me, and used in my assessment of the proposal, along with those Clauses deemed by Mr Guest to be relevant, being Clause 19.03 Design and Built Form, Clause 21.05 Settlement and Housing, and Clause 22.02 Environment. Mr Larmour-Reid also referred me to other Clauses in the State Section (SPPF) he believed were important, (namely Clause 14.01, 15.08, 15.09 and 15.12).
35. The parties all made written submissions and a comprehensive set of photographs and other material have been provided for the Tribunal and have been retained on the Tribunal file. There were three fundamental issues originally presented by Mr Astbury in support of his application, and these three key issues were pursued to varying degrees, and resisted by both the Council and Permit Applicant/Respondent during the hearing as follows:
A. The development will be an overdevelopment of the site.
B. The building and design is not of the highest standard.
C. The garage is too close to the boundary and should be set back two metres.
36. It was the stated conclusion of Mr Larmour-Reid that the proposal was inconsistent with:
* Planning objectives relating to coastal development and vegetation protection as expressed in the State Planning Policy Framework and Moyne Municipal Strategic Statement;
* Key decision principles outlined in the Siting and Design Guidelines for Structures on the Victorian Coast 1998;
* The decision objectives and decision guidelines of Design and Development Overlay Schedule 1 - Buildings in Port Fairy; and
37. Mr Larmour-Reid summarised the key areas of his concern, based on these policies and decision guidelines, and Mr Gillies advised that the Applicants for Review relied on his report. I will refer to each of those areas of concerns below under the headings:
D. Extent of vegetation to be removed and proposed re-landscaping
E. Prominence of proposal when viewed from the beach or from adjoining property.
38. I will now attempt to summarise the submissions of the various parties under these five fundamental issues. I do not propose to repeat here, the comprehensive submissions made by each party, on each issue, or about each of the Clauses of the Planning Scheme Ordinance, to which I was referred. I have reread those clauses and submissions however, and taken them into account to arrive at my decision in this review.
39. On behalf of the Applicant for Review, Mr Gillies did not pursue the argument and ground of his clients that the development would be an overdevelopment of the site. Nor did Mr Larmour-Reid in his assessment conclude that it was to be an overdevelopment. Statistically, it complies with the Design Guidelines with a site coverage of only 29%. This ground is totally rejected as not being justified on any basis. The 1998 Design Guidelines of Council recommend a maximum of 30%, which is significantly less than maximum site coverages of other Codes including ResCode. Mr Guest drew attention to the proposed 2001 Guidelines which provided for a two metre wide setback from either side boundary with a combined setback of six metres within ten metres of any beachside frontage. Since the proposed dwelling will be eleven metres from that frontage as a minimum, the only applicable measure is therefore the two metres on either side, in the opinion of Council according to their own Guidelines. With respect to the proposed one metre setback of the southern single storey wall of the garage, I was not convinced by any argument advanced on behalf of the Applicant for Review, that a further setback was justifiable of either the garage wall or the two storey section above it, (which will be setback two metres). It was Mr Gillies' concluding submission that the garage length should be "shaved off" (by 1 metre I assume) or shifted to the north, however the consequential amendments by a relocation of the garage on the remaining elements of the dwelling mitigate against such a suggestion. Mr Larmour-Reid argued that the eastern face of the proposed building should be set back in line with the two storey dwelling to the south rather than in line with the single storey building to the north. I was not persuaded by his argument, recognising that the majority of the two storey section of the proposal was set back further than both dwellings, that I do not believe there will be any loss of views, and that there was only the southern portion of the dwelling (approximately five metres in width) which would be marginally closer to the beach than the 16 metre wide residence of Mr and Mrs Astbury. Even if that portion of the proposed new dwelling was shifted westwards by around three metres, I do not believe there would be any material advantage gained by the residents to the south in terms of viewlines or vegetation retention, which appears to be another factor expressed as being important in framing the conclusions of Mr Larmour-Reid, although this was not apparent as an influence on the position adopted by Mr Astbury in his original objection or in his grounds for review.
B. The Building And Design Is Not Of The Highest Standard
40. In terms of the standard of design, having regard to the Decision Guidelines and Policies expressed in the Ordinance by the Moyne Shire Council, I am satisfied that the architects have achieved a satisfactory result. I am satisfied that the new residence will be compatible with the existing character of the adjoining dwelling to the north, and the existing scale of the dwelling to the south. I was further impressed by the attempts made to position the dwelling so as to retain as much of the existing vegetation as possible, especially between the proposed dwelling and the beach. The decking, as indicated on the contour plan incorporated in the Swaney Draper Pty Ltd documentation, is intended to be built around several of the `significant trees' and from my own site inspection, visualising the outcome if built in accordance with the plans, I was satisfied that the view from the beach would be of a house set within the existing tree canopy and not as visible as others along this stretch of frontage including that of the Applicant for Review in particular. I am satisfied that the flat roof, rather than a pitched roof form, is satisfactory in the context of this site, especially having regard to the adjoining two storey dwelling also being a flat roof. There does not appear to me, to be any rational argument to justify the increase in height which would result from the modification to the form of roof. The standard of design, and choice of materials is perfectly acceptable in my opinion, and obviously to Council as well, who indicated that the design was not only satisfactory to Council, but was:
... considered to have been one of the more meritorious attempts made to site a dwelling in Port Fairy that complies with the design constraints of the Tea Tree area. The roof design also combines minimising intrusion with complying with the character of the adjoining two level dwelling with a flat roof to the south.
The design addresses the height issue, minimises damage to the significant vegetation on site and is regarded as being an efficient use of the available space. A reputable firm of architects submitted the design.
C. The Garage Is Too Close To The Boundary And Should Be Set Back Two Metres
41. I have already referred to my views (in paragraph 39) with respect to the need for the garage to be set back a minimum of two metres from the southern boundary. The single storey nature of this part of the proposed building, and the Design Guideline recognition that garage walls can be built to boundaries, further reinforces the position taken by the Council on this aspect. I do not believe that an increased setback can be justified simply so that additional planting can be introduced within an additional one metre. If the Applicants for Review remain concerned regarding this aspect, they could perhaps introduce such landscaping as a buffer on their own property to avoid overlooking the review site from their upper balcony, or their lower outdoor seating area below this balcony.
D. Significant Loss Of Vegetation And Absence Of Landscape Plan
42. Following my inspection of the site, and my examination of the documentation provided by way of plans, photographs and written statements of intention, I am satisfied that there will not be an excessive loss of existing vegetation arising due to the siting or design of the subject dwelling. The point was made during the hearing that there are no vegetation controls requiring a planning permit to be granted for removal of trees, and this aspect was acknowledged by Mr Larmour-Reid in his statement of evidence. The existing driveway along which I travelled in my car when performing the site inspection, is the alignment shown on the proposed plan for the future driveway, and for turning movements to the north of the proposed double drive and garage.
43. In the material submitted to the Tribunal and with copies being provided to the other parties following the conclusion of the hearing, Swaney Draper Pty Ltd provided additional information in response to criticisms levelled in the expert evidence of Mr Larmour-Reid. In terms of the protection of vegetation, it was claimed that the owners of the land were seeking to preserve the maximum amount of tea tree and other vegetation on the site, and that formed part of the original brief given to the architects in the design of the future house. The coastal landscape was stated to be specifically well appreciated and recognised by their client, and this aspect is an important policy of the Council as pointed out by Mr Larmour-Reid to the Tribunal. Having regard to these aspects, I particularly reflected while on site, on the impact on existing vegetation and prominence of the proposed house from all directions. I noted with satisfaction, that the intended cladding was to be a natural hardwood timber which would weather to the colour described by Mr Swaney as `silver grey' and I note that the existing house to the north, understood to also be owned by the Permit Applicants, appeared to be of similar materials and colour, and was far less visible than most of the nearby houses including the dwelling of the Applicants for Review from both the beach direction and from Griffith Street. I am therefore quite comfortable, that the proposed dwelling while it may be seven metres or thereabouts in height, will blend into the coastal environment and vegetation and those views of it which will be available front ground level, will be filtered by the existing trees and other vegetation which is clearly planned by the Permit Applicants as evidenced by the landscape plan/garden design which was also provided to the Tribunal following the conclusion of the hearing. It is noted that Mr Swaney indicated that a landscape plan had been submitted with the permit application however the plan now provided is more comprehensive and specific in the species intended to be planted. One of the existing conditions on the Notice of Decision to Grant refers to the submission of a landscape plan by a professional landscaper indicating the area set aside for landscaping and a schedule of proposed trees, shrubs and ground cover and any other areas to be covered by grass or other surfaces. The opportunity remains therefore, for further discussion with Council and the neighbour on both sides of the review site, regarding the finalisation and endorsement of the landscaping of the site.
E. Visual Prominence From Beach And Flat Roof Design, Together With Excessive Visual Bulk
44. Throughout these Reasons, I have touched on these various matters raised as concerns by Mr Larmour-Reid. It is the submission of the Permit Applicant, that the proposed dwelling will not be visually prominent from any direction, that it is not excessive in bulk terms, and that the form of the flat roof is not inconsistent with nearby dwellings, and that there will be no detrimental impact on the local area.
45. I agree with this submission, and acknowledge that both the 1998 and 2001 (exhibited) Guidelines are just that, not fixed rules, but guiding principles within which specific designs should be developed having regard to the context of the particular site on which the dwelling is to be built.
46. I note in passing that Swaney Draper Pty Ltd have prepared a new drawing dated September 2001 No. 732/TP/07 which shows various sight lines which would be available from different positions along the beach depending on the height of the tree canopy of trees to be retained to the east of the proposed dwelling. This plan also provided the Tribunal with the parapet level of 13.43 metres AHD which for comparison purposes, is 0.27 metres lower than the roof level provided on the Adshead and McQuie Pty Ltd survey drawing referred to earlier, of the two storey dwelling to the south (which is occupied by the Applicants for Review).
47. Comparing the nominated parapet level of 13.43 AHD with existing contours of the land where the dwelling is proposed, also confirms that the maximum height of the southern wall of the building above the existing ground is 7.2 metres, and generally less than 7 metres, not between 7.3 metres and 7.5 metres as assumed by Mr Larmour-Reid.
48. I made reference in paragraph 7 of these reasons, to the intention stated in writing by Mrs Ritchie, that she would seek reimbursement of costs incurred. Mrs Ritchie was overseas on the date of the hearing and Mr Swaney, who was her representative at the hearing, advised me he was unaware of that letter, and had no instructions to make submissions relating to costs. Mr Gillies indicated he held a copy of the letter, and Mr Guest advised Council was not interested in pursuing costs. I agreed with the suggestion of Mr Gillies that the appropriate course would be to await the issuing of the decision of the review, and I have accordingly reserved costs and granted leave in my order for any application for costs to be made.
49. For all of the above reasons, I believe that the decision of Council was reasonable and the permit conditions acceptable in all the circumstances and I have adopted them without change in my Order.
50. I am also satisfied that the proposal is generally satisfactory and sufficiently consistent with the objectives and principles of the SPPF, the MSS, Local Policies and related Guidelines for Development in this locality.
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J & VJ Nominess PL
Moyne SC [2001] VCAT 2296
The Tribunal affirmed Moyne Shire Council’s decision to grant a permit in Application 2001/100 and directed the Responsible Authority to issue the permit subject to the conditions in its Notice of Decision dated 14 June 2001. Costs were reserved, with any application for costs to be made within 21 days of the order.