Keane v Surfcoast SC [2003] VCAT 723 (19 June 2003)

Planning and Environment List; s.82 Planning and Environment Act 1987;

Surfcoast Planning Scheme; Residential 1 Zone; Significant Landscape Overlay (Schedule 2); Two storey dwelling; Tree removal and lopping; Coastal Development Policy; Streetscape and Landscaping Policy; Surfcoast Design and Colours Policy; ResCode principles considered (overshadowing, height, bulk, setbacks and amenity); Sharing of views

Two storey dwelling, and removal and lopping of native vegetation (trees)

Medium Neutral Citation [2003] VCAT 723

The Order of the Tribunal is that the Application for Review is disallowed, and the decision of the Responsible Authority is affirmed, and a permit is granted for the development of a two storey dwelling at 15 Bachli Court, Anglesea, and for the removal and lopping of native vegetation.

1. The permit is directed to be issued by the Surfcoast Shire Council and is to contain the conditions set out on the Notice of Decision to grant a permit dated 29 October 2002 in Permit Application 02/0458 after being renumbered 3-9, after inserting two new Conditions numbered 1 and 2 as follows:

1. Before the development permitted by this permit starts, plans 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. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the modified plans which were supplied to the Tribunal in Review Hearing P2900/2002 by the Permit Applicants with their letter dated

8 April 2003 drawn by Brendan Henry Design which were tabled and discussed at the VCAT Directions Hearing on

2. A landscape plan is to be prepared and submitted for approval by the Responsible Authority. The plan is to show the location and species of trees and plants to be removed, and planted at the ratio of 3 new trees for each indigenous tree to be removed, as well as the design, levels, and materials of the access driveway and turning area, and any retaining walls, or other methods to restrain areas excavated to enable the construction of the proposed dwelling.

2. The former Condition 2 on the Notice of Decision is to be amended, to substitute:

RL 14.20 to the datum of levels on the survey drawing by TGM Engineers and Surveyors, 1056-01-1.DWG

RL 14.48 to the satisfaction of the Responsible Authority.

_____________________________

For the Applicant for Review/Objector: Mr N J Tweedie of Counsel, instructed by Minter Ellison, Lawyers, appeared for Mr Brendon Keane on both days of Hearing.

For the Responsible Authority: Mr Anthony Sang, Planning Officer, represented the Surfcoast Shire Council on 12 March 2003, and Mr Brydon King, Senior Statutory Planner on 13 June 2003.

For the Respondent/Permit Applicants: Mr and Mrs Cameron appeared on their own behalf.

The parties made oral submissions in addition to the written material tendered, and a number of photographs, plans and other documents were tendered at the hearing and have been retained on the Tribunal file, and taken into consideration. Following the hearing, as directed by the Tribunal, a number of additional documents have been received by the Tribunal, and circulated to the other parties. Reference to these documents will be made in the reasons given for the decision made by the Tribunal. The subject site and locality have been inspected by the Tribunal following the hearing, and after receipt of the additional material directed by the Tribunal to be supplied by the Applicant for Permit, and the Responsible Authority.

1. This is an application pursuant to s.82 of the Planning and Environment Act 1987, brought by the Objector Mr Brendon Keane, to review the decision made by the Responsible Authority and issued on 29 October 2002, to grant a planning permit in Application 02/0458 for the development of the land known as 15 Bachli Court, Anglesea (Lot 97, LP 32739) for the construction of a two-storey new dwelling on the vacant site, with consequential removal and lopping of existing native vegetation on or in the vicinity of the proposed footprint of the dwelling.

2. At the commencement of the hearing, the Tribunal was advised that Mr Steve Cameron, being one of the Permit Applicants, was employed by the Surfcoast Shire as an Environmental Officer - Public Land and Reserves, and the Tribunal took note of this advice.

3. The grounds given by the Applicant for Review in his notice received by the Tribunal on 11 November 2002 were as follows:

2. Streetscape and neighbourhood character inconsistencies.

3. Permit granted against planning regulations and guidelines.

4. The Tribunal has made an inspection of the review site and the locality, and inspected plans of subdivision and a copy of title of the land, provided by the Council as directed by me. I note there is a covenant which affects the land, limiting any building on the site to "one dwelling house with usual outbuildings and garages" (vide Transfer A623700 dated 10 October 1958).

5. Based on my site and area inspection and study of the photographs and other plans tendered, I record that the area is residential in nature with houses built with a variety of sizes, styles and materials set among trees (predominantly eucalypts) on the northern slope of a hill to the north-west and above Anglesea township. There are timber, brick and fibro cement houses, and clearly some are relatively old, while others are quite new. I visited the area during the week and some homes were clearly occupied, whereas others appeared to me to be more likely to be holiday homes. The terrain is quite steep and many properties necessarily have steep driveways, and houses are set back from the road by widely differing distances, often depending on whether they are on the high or low side of the road.

6. In terms of the Review Site and neighbouring properties, I am prepared to adopt the description provided on page 2 of the written submissions by Mr Sang for the Council which was as follows:

The review site is known as 15 Bachli Court, Anglesea (Lot 97, L/P 32739 as shown on Certificate of Title Vol. 8202 Fol. 921) and is located on the north side of Bachli Court towards the end of the court bowl. The land is irregularly shaped with a frontage of 21.33 metres along the curved radius to the south, 46.58 metres along the west boundary, 27.43 metres to the north (rear) and 53.34 metres along the eastern property boundary for a total site area of approximately 1143 square metres. The land generally falls from the south to the north, at a moderate grade for the initial few metres, before steepening to the rear of the site. The land is heavily vegetated with a number of tall canopy trees, shrubs and limited groundcover.

The adjoining properties are developed by double storey cement sheet dwellings to the west (No. 14 Bachli Court) and an elevated single storey cement sheet dwelling to the east (No. 16 Bachli Court). The land to the rear (No. 66 McMahon Avenue) is developed by a single storey dwelling set towards McMahon Avenue, whilst the land at No. 68 McMahon Avenue is developed by a double storey dwelling, however neither of these dwellings are easily seen from the subject site due to the screening effect provided by vegetation. Properties on the opposite side of Bachli Court are elevated well above the subject site and generally enjoy views above the top of the canopy vegetation on the north side of the street.

7. Whereas the plans originally submitted to the Council and used for the purposes of the first day of hearing showed contours (one metre interval) on the existing conditions plans indicating a fall of something in excess of six metres, it was explained to the Tribunal at the hearing that these contours were derived from base map information only. The accuracy of some of the information relating to vegetation (especially those trees noted as to be removed) was also questioned by me based on my perusal of photographs supplied. As a result, a direction was given by me for a site survey to be undertaken to establish the facts regarding the fall of the land, the extent of vegetation to be removed, and to more accurately show the extent of the canopies of the existing trees on the site, the location of fences around the perimeter, and the position of adjoining residences on neighbouring properties to the east and west.

8. A drawing at the scale of 1:200 was subsequently supplied to the Tribunal on 2 April 2003 (and to the other parties) by the Permit Applicants, showing the results of a survey by TGM Engineers and Surveyors and dated 1 April 2003. This plan showed more accurately a series of site levels taken on a datum which has not been nominated, but which appears to me to closely approximate the (unknown not specified) datum of the former contours. A series of spot levels had been taken and provided across the site, with contours (25cm interval) interpolated and shown, which confirmed that the fall of the land from the south-eastern corner (at the Bachli Court frontage) to the north-western corner of the review site is 7.61 metres. Additional information was also provided, as directed by the Tribunal, regarding the RLs of the decks on the adjoining properties, and to the eaves/undersides of roofs, which assisted me in gaining a better understanding of the relationship between the adjoining buildings and the proposed new dwelling on the review site.

9. The description provided by Mr Sang in his written submissions of the proposed building and works, based on the plans considered by the Responsible Authority, appears to me to be quite appropriate as follows:

The dwelling will be setback 15.5 metres from Bachli Court (south boundary), 1.5 metres from the east boundary and 2.3 metres from the west. The ground floor will contain the entry, two bedrooms, family room, bathroom, WC, store and laundry. A double garage is located on the west side. The upper floor will contain the master bedroom with ensuite and WIR, a fourth bedroom and study, kitchen and open plan dining and living rooms. A balcony envelops the dwelling on all sides at the upper level and has external stair access. The balcony is 1.5 metres in width along the west, south and east sides and has its main orientation and widest dimension (3.0 metres) facing towards the north. Access to the property will be via a new crossover towards the west side of the frontage. The driveway will be filled to reduce the gradients and leads directly to the double garage. A turning area will be provided in front of the dwelling to enable vehicles to turn and exit the site in a forward direction.

10. Reduced levels (RLs) of the existing ground level at the corners of the house, as well as finished floor levels of both the ground floor and the first floor, and of the ridge of the roof, were shown on the plans considered by the Responsible Authority, when determining the application. When I studied the revised set of drawings received by the Tribunal on 9 April 2003, I noted that both the proposed floor levels of the ground floor and the first floor, and the ridge level and pitch were slightly different, as well as the RLs of the existing ground level shown at the four corners of the proposed building (and further reference will be made to these differences later in these reasons). The fundamental design concept, materials and room layout on both levels, had not been changed for the dwelling. Adjustments were also noted, of the alignment of the access driveway shown on the later plans, which had the effect it seemed to me, of minimising the impact of that driveway (which will be quite steep), on the existing vegetation, and in particular the tree canopies, after they were more accurately located by the site survey and then plotted on the plans.

11. The land is zoned Residential 1 and pursuant to the provisions of Clause 32.01, a planning permit is only required for a single dwelling on an allotment if the area of that lot is less than 300 square metres. Otherwise, pursuant to the provisions of Clause 32.01, no planning permit is required and accordingly, the standards and specific provisions of Clause 54 are not applicable. The site is also covered by a Significant Landscape Overlay (Schedule 2) - Coastal Townscape Character, and the provisions of Clause 42.03 and Schedule 2 to that clause are therefore relevant to the application.

12. A planning permit is required under Clause 42.03-2 to construct or carry out works, or to remove, destroy or lop native vegetation. Pursuant to Part 3.0 of Schedule 2 to the Significant Landscape Overlay, plans must also be submitted for approval whether or not a planning permit is required to construct a building, showing the type and colour of external materials of all buildings and works, and all proposals are to be assessed against the provisions of the Coastal Development Policy (Clause 22.01), Surfcoast Design and Colours Policy (Clause 22.05), and the provisions of the Streetscape and Landscaping Policy (Clause 22.06).

13. I was advised that the application was received by Council on 12 August 2002, and advertised by placing a sign on the site, and by notices being forwarded to adjoining and opposite owners, and a list of those properties involved in this notification process was provided to the Tribunal (as I directed) by the Responsible Authority after the hearing, with their letter dated 2 April 2003. These included Nos. 7, 8, 8A, 9, 14 and 16 Bachli Court and Nos. 64, 66 and 68 McMahon Avenue.

14. I was advised that two objections were received prior to consideration by the Responsible Authority of the application at its meeting on 28 October 2002 with the submissions received objecting to the proposal on the basis of overshadowing, uncharacteristic design and setback, excessive building height, the extent of removal of vegetation, overlooking and uncommitted replacement of vegetation.

15. The Tribunal was provided with a copy of the report prepared by officers which recommended a resolution to issue a notice of decision to grant a permit subject to seven conditions, and I note that the officer who prepared this report, assessed the validity of the grounds of objection, as well as assessing the scheme of development against the criteria and standards set out in Schedule 2 of the Significant Landscape Overlay, the Coastal Development Policy, the Surfcoast Design and Colours Policy, and the Streetscape and Landscaping Policy.

SUBMISSIONS MADE BY THE PARTIES AT HEARING 12 MARCH 2003

16. On behalf of the Applicant for Review, Mr Tweedie submitted that the application raised four central issues which he quoted as:

(a) Is the location proposed for the subject house appropriate, given that it does not adopt a setback from Bachli Drive which is consistent with the adjoining properties; and

(b) Is the height of the proposed dwelling appropriate in all the circumstances; and

(c) Are the impacts of the proposed dwelling in terms of overshadowing and overlooking appropriate; and

(d) Has sufficient information with respect to landscaping been provided by the Permit Applicants, to enable a proper consideration of the application?

17. Mr Tweedie argued that the answer to all of these questions was in the negative and accordingly a permit should be refused rather than conditions being imposed in attempts to ameliorate or correct the scheme of development. For reasons which I will later explain, the Tribunal rejects this proposition, and does not agree that the answer to any of these questions is in the negative. Rather, I am satisfied that the buildings and works respond satisfactorily to the existing site conditions and features, the context of the site, the policies of the Council, and a planning permit should issue generally based on the conditions drafted by the officer in his report to Council.

18. It is acknowledged that no landscaping plan was submitted in support of, or justification for, the siting of the building, or to detail the amount of trimming needed, or to show the replacement vegetation proposed to be planted, and that the only document which provided any information regarding the extent of vegetation to be removed or trimmed was a poorly drawn existing conditions plan (Sheet 1 of the 10 drawings lodged in the application) which was patently inadequate and inaccurate both in the extent of canopy removal that it indicated, the location of the pavement in Bachli Court, and the incorrect fall of the land. This plan appeared to me to be obviously incorrect in the information it showed, when I inspected the various photographs showing trees on the review site, which were tendered at the hearing. The plan showed symbols for the canopy for each tree which were "perfect circles of varying diameters" centred on the trunk of each of the trees shown on the plan, and in reply to my queries for clarification, it was accepted as being open to misinterpretation.

19. The survey plan later received by the tribunal corrected such ambiguities and facts, and its accuracy was not questioned at the Directions Hearing held 13 June 2003.

20. For the Council, Mr Sang indicated that the proposal as originally submitted required the selective trimming of a number of branches of several trees along the western side of the site to enable access along the driveway alignment shown, and that five trees were proposed to be removed based on the plans submitted. He further acknowledged that applications involving development of land within areas covered by the Significant Landscape Overlay (Schedule 2), especially those involving removal of native vegetation, "should be accompanied by a landscape plan" yet there was not one provided in this application. He stated that it was considered important that the amount of existing vegetation to be removed should be kept to a minimum, and advised that the Applicant had indicated a willingness to replant vegetation of indigenous origin at a ratio of 3:1 for every tree to be removed which would result in a total of 15 replacement trees being planted, and this fact was noted in the written material on the existing conditions plan (sheet 1) deemed to be the design response of the Permit Applicants.

21. It will be noted that a landscape plan has been required to be prepared, submitted and approved, by the new Condition 2 included in my order, which reinforces and supplements the condition imposed by the Responsible Authority on its Notice of Decision to grant a planning permit.

22. Mr Sang also elaborated on the Council officer's assessment of the compliance of the proposal against each of the policy criteria and standards referred to above. Having taken some time to consider those assessments and having regard to the detail and content on both the original plans, and later modified plans provided following the detailed site survey, I am inclined to agree with Mr Sang and that officer's assessment. The proposal complies, substantially complies, or can be made to comply, with each and every criteria and standard in my opinion, and this is reflected in the modified plans received, which have increased the amount of excavation on the uphill (road) side, and changed the roof pitch, to lower the RL of the ridge of the roof above the existing ground level directly below, to be 7.5 metres. This complies with the relevant standard of the planning scheme policy, and only several isolated parts of the roofline appear to me from the plans may be slightly greater than 7.5 metres (up to 7.8 metres in one spot) but I do not consider this aspects to be so significant to justify a redesign of the building, or further excavation to lower the building, so as to meet a maximum dimension to a point on the pitch of a roof, when it will not be prominent from any direction, or seen to be clearly (or significantly) in excess of 7.5 metres.

23. Mr Cameron, speaking on behalf of himself and his wife as joint applicants for this permit, explained to the Tribunal the basis upon which the design had been developed. He argued that the reason for the increased setback from Bachli Court was to minimise the disturbance of the vegetation on the site, so as to protect and preserve the view of the proposed house from the street, as well as to try to avoid the loss of the better examples of the native species of trees. He stated that they sought to build a house that was to be their permanent home, not a holiday house as his neighbours' houses were. He claimed to have achieved a ninety percent retention rate of the trees, as well as of the "grass trees" which were deemed by him to be significant vegetation understorey. He explained that the Council officers had advised that due to the slope of the site, they preferred vehicular access back onto the road surface to be in a forward direction and this had dictated a reversing/turning area on the site. He maintained that the dwelling had been designed to be more easily defendable due to the choice of materials, roof design and improved accessibility in time of a bushfire, by the provision of balconies around the upper level which had an added advantage of being aesthetically pleasing, and breaking up what might otherwise be seen as a significant expanse of blank walls to both the east and west. These walls were intentionally left without any windows on the first floor level to avoid opportunities for overlooking neighbours properties from rooms within the dwelling.

DOCUMENTATION, EVENTS FOLLOWING 12 MARCH HEARING

24. I have referred above to the Permit Applicants circulating to the Tribunal and the other parties on 2 April 2003 a Survey Plan, and a set of modified drawings of the proposed house (which the Tribunal received on 9 April), which reflected the results of a review by him, his wife and his Building Designers, of the original design, after the site survey results were received. I had directed this review at the conclusion of the first day of hearing.

25. The accompanying letter from the Permit Applicant dated 8 April 2003 did not seek leave to substitute the "revised plans", but summarised the changes which had been made to the original plans in the following terms:

These plans show as directed verbally and in the letter dated 2 April 2003_:_

* Accurate siting of balconies of the adjoining residences in relation to the proposed subject dwelling (RL's of decks and eaves have already been supplied on feature survey plan by TGM)

* Natural ground level and existing ground level at the four corners of the proposed dwelling (on site plans)

* Accurate assessment of the existing tree canopy and areas proposed for removal (in red)

* Location of existing pavement in Bachli Court relative to the alignment of the title boundary.

We believe that the modifications to the plans and with the assistance of the new information, including increased site cut and lower roof pitch have ensured that no part of the proposed dwelling will exceed the maximum height of 7.5m above natural ground level.

[Tribunal underlining: The letter referred to is the VCAT letter confirming verbal directions given at the end of the first day of hearing]

26. I had also directed that his advisers and the Responsible Authority were to review the accuracy of the shadow diagrams provided (which had been criticised as being inaccurate, by consultants engaged by the Review Applicant, who had lodged a secondary objection to that effect with the Responsible Authority on behalf of Mr Keane), since Mr Sang had advised me that Council had not undertaken any detailed assessment about the accuracy or otherwise of any shadows which would result from the proposal. I understood this was because he believed Clause 54 was not applicable, nevertheless I directed the views of both the Permit Applicant and the Responsible Authority be provided within fourteen days.

27. The Permit Applicant obtained an independent party (Modav Designs) to generate a new set of four (4) shadow diagrams/plans (dated March 2003) based on the design RLs on the original building plans, and supplied those diagrams to the Tribunal, the Responsible Authority, and the Applicant for Review, with a covering letter dated 25 March 2003, without reference to the existing conditions survey information obtained by TGM Engineers and Surveyors. Curiously, these diagrams projected theoretical shadows on a horizontal plane at the RL of the ground floor of the proposed house (RL 7.15 metres), as well as on the grade of the "ground" incorrectly identified by the contours originally provided on the site plan, (and not the actual ground surface determined by survey).

28. Following receipt of the three new documents circulated by the Permit Applicants, the Tribunal received a facsimile on 16 April 2003 from Minter Ellison Lawyers on behalf of the Applicant for Review asking "that he be given the opportunity to address the Tribunal on the effect of the amended plans".

29. By letter dated 28 April, Mr Cameron objected "to a second hearing over this matter". Minter Ellison Layers then repeated their clients' request in a further facsimile to the Tribunal dated 14th May 2003, for "the opportunity to address the Tribunal on the amended plans and in relation to the accusations made in the applicants letter."

30. After I had reviewed the plans, and undertaken my site inspection, I was not convinced that the corrected information about the existing conditions or the consequential revisions which had been shown on revised plans, to the design levels of the building, justified a further hearing. Nevertheless I considered Mr Keane's request while also considering the need for re-advertising of the application which now involved different existing conditions documents being available for potential objectors to view.

31. Having regard to my assessment of the plans and my inspection of the site, the extent of vegetation to be trimmed or removed based on the survey information transferred to the plans, and the magnitude of the corrections to reflect the existing site levels, I decided that it was not necessary that they be further re-advertised. Noting the objection made by the Permit Applicant by letter dated 28 April 2003, to "a second hearing", in the interests of the parties, I nevertheless decided it appropriate to arrange for and conduct, a Directions Hearing, which by Notice dated 28 May 2003 stated the sole purpose of the two hour hearing set for 13 June 2003 was to "give the parties the opportunity to address the Tribunal on the effect of the amended plans filed by Mr Cameron_"_.

32. The Permit Applicants, understood by me to be acting on advice they had subsequently received, then arranged for Modav Designs to amend their March 2003 diagrams (to reflect the revised RLs on the later Brendan Henry Design Plans and the level results of the site survey), and a new set of five (5) shadow diagrams dated June 2003 was circulated to the Applicant for Review, and the Surfcoast Shire Council during the week ending 13 June 2003.

33. Mr Cameron handed me a set of the five shadow diagrams by Modav Designs (dated June 2003) at the start of the Directions Hearing. These plans had apparently been received by the Council on the 6th June and had been studied by the Responsible Authority during the week prior to the Directions Hearing. The Tribunal and other parties were informed (in part of a letter dated 11 June 2003 faxed to VCAT that day):

Further to the directions of the Tribunal Council was to respond to the original shadow diagrams forwarded on the 25 March however this was not completed. Please be advised that the recent modified shadow plans (prepared by Modav Designs and dated June 2003) have been reviewed by Council and are considered to be accurate in relation to the survey information_._

34. These plans showed predicted shadows which would be cast by the revised design RLs of the roof, both on the existing ground surface (as if there were no intervening buildings), and on a horizontal plane at RL 7.48 metres (being the revised RL of the proposed ground floor). One sectional diagram on sheet 5 showed the 3pm September 22 shadow falling on the ground short of, and well below the deck level (RL 8.55) to the north of the Keane House on 16 Bachli Court.

35. After I had summarised the differences between the various documents received after the hearing on 12 March, and the original material submitted, Mr King representing the Responsible Authority stated the Council opinion that the more accurate information facilitated a better understanding of the planned dwelling, emphasising that the Significant Landscape Overlay was the only trigger for a planning permit, and that in Council's view the proposal respected the objectives of that Overlay, and the altered plans reinforced the correctness of the Council decision.

36. Mr Tweedie expressed the frustration of his client and advisers at belatedly receiving another set of amended drawings (the Amended Shadow Diagrams), which were found to remain unclear, and pointed out that the revised plans by Brendan Henry Design (received with the letter from Mr Cameron dated 8 April 2003) still showed the same Date and Issue (April 2002 Issue A) as the original set of plans, yet he submitted the design was significantly different, describing it as "Not the same proposal with more information".

37. He argued that the owners of 14 Bachli Court had not had sufficient opportunity to review the various new plans, and that his client had wasted effort preparing for the hearing on the 12 March, using plans which were in error, submitting this constituted evidence of negligence on the part of the Permit Applicant, and accordingly he made application for costs associated with the Directions Hearing.

38. He submitted that the variations to the design levels did not overcome the perceived impacts and shortcomings and non compliances expressed previously, that the reduced RL of the ridgeline was minimal with negligible effect, and the major deficiency of the proposal remained the positioning of the proposed dwelling on the site, which would have a significant and detrimental impact on the `viewshed' of the occupiers of the house at 16 Bachli Court.

39. Mr Cameron declined to make any further submissions.

40. I stood the matter down, to consider these submissions and the plans received at the Directions Hearing, and on returning advised the parties, that notwithstanding the ambiguities and errors on various plans, and that I appreciated the frustrations experienced by the Applicant for Review and his advisers, regarding the need for corrections to the plans, and the progessive supply of documents, I had not been persuaded that the decision of the Responsible Authority was unreasonable, or contrary to the policies and objectives in the scheme, and I had determined that a permit subject to conditions should be granted, but I needed to further reflect and resolve the details of those conditions. I gave brief oral reasons to the parties and stated they would be expanded and put in writing .

41. I also advised that I reserved my decision regarding the claim for costs, and that I would rule on that matter in my Order.

42. The following reasons follow the Order and outline of reasons given verbally in the presence of the parties at the conclusion of the hearing on 13 June 2003.

43. Using the four issues identified by Mr Tweedie in his submission for Mr Keane (repeated in paragraph 12 above), the fact that the proposed dwelling does not adopt the setback of either of the two houses is not in my opinion a valid criticism. The setback of Mr Keane's residence was shown as 5.5 metres on the original plans, however this setback dimension appears to me to be slightly greater by scaling from the survey drawing provided as referred to above, and by my own inspection when I noted it is slightly in excess of six metres. The house on the property No. 14 Bachli Court is set back approximately 13.2 metres from the alignment of the road reserve closest to the review site, however it is not parallel to the court and is slightly less at its western corner. The proposed dwelling has been positioned 15.5 metres to the nearest point which is the upper level verandah and roof, and a further 1.5 metres to the wall of the proposed dwelling. I understand and accept that this has been to maximise the number of trees that could be retained which have the most valuable and healthy, attractive canopies which vary from five to eight metres approximately above the ground, and accordingly they will continue to provide a partial visual buffer when viewed from Bachli Court and the properties to the south which are further highly elevated above the review site. I regard the position as quite appropriate, having regard to al of the factors prevailing on this property.

44. On my site inspection, I visited both neighbouring properties and stood on the decks which were to the north of both of those houses and looked towards the site of the proposed new dwelling. My view was obstructed by a number of trees, and due to the orientation and widest part of the deck to No. 16, and the direction of fall of that site (which is effectively to the north like the review site), with the deck elevated already approximately two metres above the ground below, a horizontal view is directly into the existing trees and bushes. It would certainly be possible to look towards the north-west, to see a filtered view across the review site, however in my opinion, that would not be the normal or preferred direction. I consider there will be a reasonable sharing of views and in fact, I found the attractiveness of the elevated deck at the rear of the house on 16 Bachli Court is that persons sitting or standing on it would look into the canopies They do not enjoy a clear view towards a coastline, or a distant uninterrupted view towards the countryside. Similar comments also apply to the deck of the dwelling to the west at No.14 Bachli Court.

45. While the height of the proposed dwelling may be greater than either of the existing dwellings which are elevated single storey dwellings, I have found that it is not excessive or inappropriate having regard to the extent of vegetation and the levels of protection afforded in the planning scheme to that vegetation, and the expectation of greater numbers of replacement vegetation of similar species in the future by the Permit Applicants pursuant to the permit I have directed to be issued.

46. Recognising that the standards in Clause 54 are not actually applicable in this case as the dwelling is proposed on an allotment of approximately 1,143 square metres, I nevertheless considered the degree of potential overshadowing of any of the secluded open space areas on the adjoining properties to the east and west as depicted on the plans prepared by either the consultant to Mr Keane, who registered an objection on his behalf with the Council prior to the determination being made, albeit assuming it seems that they believe that Clause 54 did apply and that the standards in ResCode were applicable to this development. I have also considered the amended shadow diagrams tendered to the Tribunal at the Directions Hearing, as prepared by `Modav Designs' dated June 2003, noting the ridge and roof levels adopted for those shadow diagrams were the slightly lowered ridge level and eave levels indicated on the plans which had been revised following the site survey. I have also noted that the shadow diagrams were also projected onto a plane at RL 7.48, which is the RL of the ground floor of the hypothetical dwelling shown on the revised plans, and not at the higher deck levels of either of the adjoining properties. In any event, I agree with the assessment made by the Council that the impacts are not significant, and do not fall on the adjoining decks, or on windows in adjoining dwellings as contended by Mr Tweedie. Certainly in my opinion, shadows of either the original dwelling, or the building I propose to grant approval for, which would be cast between 9am and 3pm on the Equinox are not so significant to justify a refusal of the planning permit application. Those shadows also ignore the shadowing effect of the significant number of trees, which will remain on the both the subject land and on neighbours properties, which presently cast shadows over the subject properties throughout the day.

47. I remain unconvinced by any of the arguments advanced opposing this development, and I am satisfied that the scheme respects through its positioning centrally on the site, the value of the extensive remaining vegetation which no doubt originally justified the placing of the `Significant Landscape Overlay' over the area. I do not believe that there will be an unreasonable loss of amenity suffered by residents of nearby properties, and acknowledge that the dwelling as sited and through the design and positions of its windows will take advantage of solar access and minimise impact upon the amenity enjoyed presently by neighbours by the avoidance of windows facing in both those directions. The visual prominence of the building is substantially reduced by the existing canopy tree cover, and I took particular note that the levels provided of the existing formation of Bachli Court mean that the height of a person's eyes standing on that road will be approximately equal to the ridge height of the proposed new dwelling or slightly below. This is achieved by the increased setback to that ridgeline to approximately 32 metres bearing in mind that the kerb of Bachli Court is approximately eight metres from the frontage of the site.

48. I do not believe that there are any streetscape issues arising from the proposed siting of the new dwelling. I do not believe that there are any significant or sustainable arguments that have been advanced, regarding the loss of existing views or of privacy for occupants of No. 16 Bachli Court through the windows of that house being so affected or compromised that redesign of the proposed dwelling would be justified. I do not believe that there is any significant loss of available views for either of the neighbours' properties having regard to the angle or direction of view which would normally be expected to be perpendicular or up to 45 degrees to the wall of each house. I do not recall there were unique or significant gaps in tree canopies, to enable the achievement and enjoyment of a distant view towards the coastline or other land feature, (since the directions of fall and view are to the north and away from the coastline).

49. Having regard to these reasons, I have reviewed the suitability of the conditions imposed by the Responsible Authority on their Notice of Decision to grant a permit and consider they are fundamentally appropriate and necessary to control the outcome sufficiently. I have added a condition referring to the revised plans provided to the Tribunal and the parties by the Permit Applicants with their letter dated 8 April 2003, rather than by reference to the Date and Issue on those plans (which should be changed).

50. I have also added a condition requiring a proper landscape plan to be prepared expecting that such a plan would also indicate the location for the replacement trees, their species, and provide design levels and details of materials for the access driveway and turning area, and any necessary retaining walls or methods to protect the areas where excavation for the construction of the dwelling is necessary.

51. The remaining conditions appear to me to be logical and will need to be renumbered to follow the new conditions I have ordered, with the exception of the change to reduce the maximum RL of the ridgeline, to 14.2 metres. I do not accept that there are any portions of the proposed structure, which are significantly in excess of 7.5 metres above the existing ground level, as scaled and argued by Mr Tweedie, such that unacceptable bulk, is the result when viewed from any direction, and I estimate that the roof will be unlikely to be visible from a distance from any vantage points, above the current canopies of the trees which are to be retained.

52. On the question of costs, on the basis that it was at the specific repeated requests of Mr Keane, who is the Applicant for Review, that the Directions Hearing was conducted, and that no new arguments were advanced on his behalf, other than the claim of frustration and confusion at the ambiguities and errors provided by the various plans, I have determined that each party should bear its own costs.

_____________________________