Joscelyne v Moyne SC [2009] VCAT 27

The decision of the Responsible Authority is set aside. In permit application PL07/385 no permit is granted.

Mr Chiappi called Ms V Jackson, town planner of Harlock Jackson

Application under Section 82 of the Planning and Environment Act 1987 (the Act) to review a decision to grant a permit.

Amendment C21 to the Moyne Planning Scheme. Proposed application of an Environmental Significance Overlay to coastal locations.

Clause 35.07-4 construction of a building and the construction and carrying out works associated with the following:

• building or works associated with a use in Section 2 of Clause 35.07-1.
• building which is within the following setbacks:
  • building within 20 m of a road.
  • building within 5 m of a boundary.
  • Building within 100 m of a dwelling no in the same ownership.

Clause 63.05 buildings or works for a use in Section 2 or 3 of a zone for which an existing use right is established.

Clauses 14.01, 15.08, 16.02, 16.03, 17.05, 18.09, 19.03.

Clause 21.01, 21.03, 21.04, 21.05, 21.06, 21.08, 22.01, 22.02, 22.03.

The review site forms part of an isolated group of nine small lots situated on the western side of Lake Yambuk. The lots abut a caravan park and overlook the lake and the surrounding estuary and sand dunes. The Yambuk township is located about 1 kilometre to the north east of the site. The review site has an area of 626 m2.

Vehicular access to the nine lots is obtained from Lake View Drive which runs along the rear boundaries of the lots. Pedestrian access is available from the public land and the caravan park to the front of the lots. The land beyond Lave View Drive to the east is predominantly rural in character. Beyond the dunes and the Lake to the west is the coastal reserve.

A single storey, timber clad dwelling currently occupies the site. This dwelling is oriented to the west and is setback generally in line with the neighbouring dwellings to the north and south, but the dwelling to the north which is a recent construction does extend forward of the building lines of the other dwellings.

The dwelling abutting to the south is a modest, single storey building oriented to the west, while the dwelling to the south of that, is also single storey but has its primary living are and a deck oriented to the north west. The Codrington wind farm is located to the north west and is clearly visible from the review site and neighbouring properties.

1. Dean Picken Designs applied to the Moyne Shire Council for a permit to demolish an existing dwelling and to construct a new dwelling on the land at 15 Lake View Drive, Yambuk. The Council gave notice of the application and two objections to the application were received from the owner of the two dwellings abutting the review site to the south and the dwelling to the north.
2. The Council decided to issue a notice of decision to grant a permit and one of the objectors has applied to the Tribunal for a review of that decision.
3. This case is unusual because it concerns the construction of a dwelling on a site which is zoned Farming and which is isolated from urban settlement, with the Yambuk township being about 1 kilometre away. The use of land for the purpose of a dwelling on a lot of less than 40 ha in the Farming zone is subject to the grant of a permit. Having regard to the decision guidelines of the zone, and the applicable policy framework, the existence of these nine lots abutting Lake Yambuk, upon which dwellings have been constructed, can only be regarded as an anomaly.
4. All parties acknowledged however that the review site and its neighbours, enjoy existing use rights. The demolition of the existing dwelling on the site and replacement with a new dwelling was not in dispute in this case. The principal issues in this matter concerned the siting and form of the replacement dwelling, and its affect on the amenity of the neighbouring properties, including the affect on views, and on the character of the locality.
5. Having considered the submissions and evidence presented to me, and having inspected the site and neighbouring properties, I have concluded that the proposal does impose an unacceptable amenity impact in this neighbourhood context. Part of the amenity impact is associated with the loss of views but it is the combination of the loss of views together with the visual bulk impacts flowing from the intrusion of the proposed building into the front setback and the construction of the slab wall extending into that setback which have led me to conclude that a permit should not issue.
6. My reasons are set out below.

1. Part of the difficulty associated with the assessment of this proposal is that because of the zoning of the land and the anomalous circumstances surrounding the residential use of the review site and its neighbours, the guidelines, standards and principles which would normally be applied to the consideration of an application for a new dwelling, do not necessarily apply. Similarly the decision guidelines of the Farming zone have only limited application to the consideration of the proposal.
2. Notwithstanding the above, the Council submitted that the design of the building is low scale and well articulated and appropriate to its coastal setting. It was also submitted that the building design is open and transparent to the public realm, and as such the dwelling will not be viewed as an overwhelming physical presence. The Council further submitted that the impact of the proposal on neighbouring properties is acceptable and that while views from those properties will be affected, they will not be obscured and panoramic views will continue to be available. It was the Council's submission that the primary views obtained from the review site and its neighbours are those directly to the west. The oblique views to the north toward the dunes and the coast which will be lost, are not in the Council's submission, the primary views.
3. The permit applicant submitted that the proposal constitutes an appropriate contemporary design response to its context. It was submitted that the long, narrow configuration on an east/west axis, creates the opportunity to maximise the lot's potential for a northern orientation. It was further submitted that the design seeks to protect living areas from wind exposure while at the same time creating liveable internal and external spaces with a northern orientation.
4. The primary concern for the objector relates to the siting of the proposed dwelling and in particular the impact of what Ms Jackson described as the incursion of the dwelling into the front setback. It was Ms Jackson's evidence that the impact of the siting of the dwelling on the neighbouring properties is two fold. Firstly it will contribute to an unreasonable loss of existing views obtained from the dwellings to the south, and secondly it will contribute to a loss of amenity emanating from the visual bulk primarily associated with the slab wall located close to the site's southern boundary. This wall is proposed to have a height of 4.5 m and extends over a distance of 5.6 m. A number of additional concerns were also identified including the extent of on boundary construction, and overshadowing. It was Ms Jackson's evidence that the combination of the site coverage, the on boundary construction and the front setback of the dwelling responds poorly to the character of the area. Ms Jackson described the character as an isolated rural settlement.
5. With respect to the issue of the loss of views, Mr Chiappi, Ms Jackson and the Council referred me to a long line of Tribunal decisions which have established the principles for considering the impact of proposals on neighbour's views. These principles are well known and were adequately documented for me by the parties. I do not need to repeat them here. To a large extent the consideration of a proposal's impact comes down to an assessment of reasonableness in each individual context.
6. The dispute about the loss of views in this matter centre around what constitutes the objector's primary view. As I have outlined above the Council and the permit applicant submitted that the primary view is that which is available to the west while the objector submitted that the primary view is to the north west and that this is the view which will be affected by the proposal.
7. There is no doubt that the views available to both the west and the north west are impressive and both contribute to the amenity of each of the dwellings in this settlement. There is inevitably an element of subjectivity involved in forming an opinion about which of the views is the primary view. To a large extent it is a very personal judgement and how a particular view is appreciated by a resident will vary between residents. Indeed it could be reasonably argued that in any given context, it is the totality of the views available rather than portions of it which contribute to a dwelling's amenity.
8. For these reasons I find it very difficult to form an opinion about whether the view to be lost is the primary view or not. It does appear to me that with respect to the dwelling immediately abutting the review site to the south, the western view is more important because the dwelling is oriented to the west and only a small secondary window provides a view to the north west. However for the dwelling further to the south, the north western view is more important because the main living area and deck is oriented to obtain views over its own front setback and its neighbour's front setbacks to the north west.
9. While both dwellings to the south would experience different impacts associated with the loss of views, they would equally experience a loss of amenity stemming from the proposed siting of the dwelling and in particular the reduced front setback. The primary impact in this respect is the slab wall which extends forward of the existing dwelling on the review site. The bulk of this wall is unacceptable in the context of this locality which to a large extent is influenced by the open, exposed front setbacks of each of the dwellings. This is a locality in which the front yards of properties are not separated by fences of any type, and it is difficult to visually determine where one property starts and another finishes. The front yards intermingle with each other in a manner which is entirely consistent with Ms Jackson's description of this locality as an isolated rural settlement. The construction of a 4.5 m slab wall extending into to the front setback and located less than 2.0 m from the common side boundary, creates a physical and visual presence which is alien in this locality. The proposal will also contribute to a level of visual bulk which is unacceptable in the context of this site and this locality.
10. I have concluded therefore that because of the combination of the impact of the proposal on the views obtained from the dwelling one removed from the review site to the south, together with the visual bulk impact on both dwellings to the south, the amenity impacts of this proposal are not acceptable in this neighbourhood context.
11. As I have indicated above my primary concerns relate to the intrusion of the dwelling into the front setback and the construction of the slab wall extending into that setback. The contemporary style of the dwelling, its maximisation of northern orientation and the height and scale of the dwelling are appropriate. I have therefore given consideration to either amending the proposal by permit condition or providing the applicant with the opportunity to prepare amended plans to address my concerns. The changes which would need to be made to the design are not minor however, and would in all likelihood necessitate other consequential changes which may not be immediately apparent. On balance therefore the preferable course of action is to direct that no permit issue. The designer and the client can therefore reconsider the totality of the design in preparing a new application.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and no permit be granted.