1. The decision of the Responsible Authority is varied.
2. In permit application 08/0219 a permit is granted and directed to be issued for the development of a dwelling at 22 Melba Parade, Anglesea in accordance with the endorsed plans and the conditions set out in the Notice of Decision to Grant a Permit 08/0219 issued on 8 October 2008 with the following modifications:
   • (a) Condition 1(a)(i) is amended to state:

The overall height of the entire building reduced by a minimum of 800mm.

(b) A new item condition 1(a)(iv) is added that states:

The location of the domestic services normal to a dwelling.

Ms T Sincock, planning consultant of Sincock Planning

Development of a two storey dwelling. The living areas are primarily on the upper level with a skillion roof form over this part of the dwelling.

Section 82 Planning and Environment Act 1987

Setback of building from side street boundary, height of building, size of building footprint and areas covered by buildings and surfaces not available for landscaping under SLO3

The site is located on the northwest corner of the Great Ocean Road and Melba Parade.

It has a frontage of 20.65 metres to the Great Ocean Road and a maximum depth of 24.68 metres. The site contains a slope of approximately 3.5 metres from the northwest to the southeast.

1. Ms Sincock is representing the Kennedy family who live in a renovated two storey house on the property to the north of the review site. The Kennedy family is seeking a review of the decision by Surf Coast Shire Council ('the Council') to grant a permit for the construction of a new two storey house ('the Dench house') on the review site at 22 Melba Parade, Anglesea because they are concerned about the loss of view from their house, particularly the loss of view of Point Roadknight.

1. The review site is located on a corner and is elevated above the Great Ocean Road. The review site and the Kennedy's property are located on the side of a hill that slopes down to the Great Ocean Road, hence the Kennedy's land is at a higher level than the review site. The review site itself slopes approximately 3.5 metres from the Kennedy's property to the southeast corner of the site.

1. The permit application seeks approval to construct a two storey house generally in the centre of the site. The ground floor level is smaller than the first floor level and will contain three bedrooms and a gallery with a carport for two cars[1] on the northern side of the ground floor. The first floor contains an open plan living, dining and kitchen area with direct access to two decks on the east and north sides, and a master bedroom to the southwest of the living area.
2. The roof over the master bedroom has a 1 degree pitch whilst the skillion roof form above the living area has a 5 degree pitch creating a maximum building height of approximately 7.5 metres.
3. The Council received two objections to the permit application, including from the Kennedy family. Having assessed the impact of the dwelling upon the views from the Kennedy's house, the Council advised the permit applicant the application would be refused unless the proposal was amended to address this impact. Following further discussions, the Council agreed to approve the application subject to a condition (condition 1a) requiring amended plans to lower the height of the dwelling by 200mm.

1. The key issue in this case is the loss of view from the Kennedy's house. Ms Sincock explained this house has views to Point Roadknight from both the upper and lower levels at present.
2. At the lower level, there are three bedrooms and a living area with access to a deck and spa that has views over the review site to Point Roadknight. Ms Sincock advised her clients accept this view will be lost.
3. At the upper level, there are two bedrooms and an open plan living, dining and kitchen area, all with access to a deck and all with views to Point Roadknight including the sweep of the beach and hinterland vegetation. From the deck, views are also available to the Anglesea Cliffs to the northeast and Split Point Lighthouse at Aireys Inlet to the west. Ms Sincock advised her clients accept the view of Point Roadknight from the bedrooms will be affected, and their primary concern is the loss of the view to Point Roadknight from the open plan living, dining and kitchen area. I have inspected all of these rooms and the deck and find it is the living area with the kitchen behind that currently enjoys a direct view of Point Roadknight from the living room glass sliding door and window.

1. Planning permission is required under Significant Landscape Overlay Schedule 3 because the building is more than 5 metres high (7.5 metres is proposed); the building footprint is greater than 150sqm (190sqm is proposed); the area covered by buildings and surfaces not available for landscaping is greater than 210sqm (241sqm is proposed); and the side street setback to Melba Parade is 3.5 metres to the sea deck rather than 4 metres.
2. The height of the building is consistent with the building and works performance measures in the Anglesea Residential Development local planning policy regarding building height and site coverage[2]. Mr Rosevear stated the Council has no objection to the variation to the side street setback. Therefore, the building and siting considerations within the Planning Scheme have been satisfactorily dealt with in this design. Which brings us back to the key issue of the impact upon the Kennedy's view of Point Roadknight.
3. Principles regarding the impact of buildings on views have been formulated by the Tribunal over many years, including Tashounidis v Shire of Flinders SC (1987) 1 AATR 116 and Healy v Surf Coast SC [2005] VCAT 990. The principles as stated in Healy are:

(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of "reasonableness", it is relevant to consider:

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

1. The issue of views is specifically addressed in the objectives of the Significant Landscape Overlay Schedule 3 and the Anglesea Residential Development local planning policy in the Planning Scheme:

To provide for a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, coastal forest and mountains, rivers and estuaries, and notable cultural landscape features which form an important part of the amenity of coastal properties. (SLO3)

To protect residential amenity by achieving a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, the Anglesea River and surrounds and natural bushland in the hinterland. (Anglesea Residential Development policy)

1. The Point Roadknight view contains significant landscape features. This means the loss of view of Point Roadknight from the Kennedy's living/kitchen area is a relevant amenity consideration. I am satisfied that all appropriate steps have been taken to optimise the development of the Kennedy's property as the house has been significantly renovated and improved. The availability of the Point Roadknight view needs to be considered in the context of achieving a reasonable sharing of views between the review site and Kennedy's property.

1. The Council determined the impact upon the Kennedy's Point Roadknight view was unreasonable and approved the proposal subject to the overall height of the Dench house being reduced by 200mm. This change was required based on montages provided by the applicant and Mr Rosevear provided the following description of the impact of this change:
   • From the rear of the living room, located within the upper level of the objectors dwelling, the proposed development would block most of the bay allowing a view to Point Roadknight which lacks sufficient surrounding features to give it a meaningful context.
   • At the door where the living room opens onto the front deck a significant portion of the bay becomes visible allowing Point Roadknight to be viewed in context. Views to the north and south also begin to open up at this point.
   • From the front of the deck the view to Point Roadknight is even more expansive as the views to the north and south become fully available.

While it is acknowledged that the views currently available from the kitchen and living room areas will be impacted and in some areas impacted significantly, it is not considered reasonable to expect that views will be retained from all areas of the dwelling. In this case it is considered most appropriate that the assessment be made from the sliding door, windows fronting the deck and the deck itself.

1. Mr Rosevear explained that viewing Point Roadknight in context (dot point 2 above) involves being able to see the Point, the sweep of the beach and the termination of the beach by the existing hinterland vegetation.
2. In response to a question from me as to why Council considers the assessment should be made from the sliding door and the deck rather than from within the living room and kitchen, Mr Rosevear advised he believed the Tribunal had previously made such a determination but was unable to point to any particular case. Ms Sincock and Ms Patterson were unaware of any particular case to this effect and I have not located any such case since the hearing. In any event, I disagree with the Council on where the assessment should take place.

1. The view principles established by the Tribunal state views form part of the amenity of a property. The property may include the land, each level of the house and any decking, verandah, balcony or the like. In this case, the development of a new two storey house on the review site will result in the loss of view from the ground floor of the Kennedy's house and they accept this. The development will also impact upon the views from their first floor bedroom windows and deck; and they are not contesting this. Hence, it is the amenity of the living and kitchen area that is impacted upon and is of principal concern.
2. In my opinion, assessing the impact upon the view with your face to the glass of the living area door/window to the deck is not the appropriate location or test. The amenity of the property includes the deck but also the main living area of this dwelling. As such, the assessment should be undertaken within the living and kitchen area. The view and photomontages provided by Ms Sincock from the living and kitchen area (view 1) have been taken from the middle of the area at a standing height of 1.65 metres, and I am of the opinion this is a reasonable position to undertake the assessment in this case. In every case, a judgement will need to be made as to where the assessment should be taken from.

1. Both the Dench house and the Kennedy house want to share a view of Point Roadknight. The upper level of the Dench house will gain this view regardless of whether it is built at the proposed height or a metre lower (the maximum reduction sought by Ms Sincock).
2. View 1 is taken standing in the middle of the living/kitchen area of the Kennedy house and is a full view of Point Roadknight including the sweep of the beach and its termination with the existing hinterland vegetation. Reducing the height of the Dench house by 200mm means the roof ridge is on par with Point Roadknight, so Point Roadknight is either lost from view or not discernible. This is not a reasonable sharing of the view, and it does not provide a view of Point Roadknight in context as sought by Council (refer to paragraph 15 above).
3. Ms Sincock's photomontages also assess the impact of reducing the height of the Dench house by 400mm and 600mm. Reducing the height of the Dench house by 400mm means the roof ridge sits just below Point Roadknight and the sweep of the beach, but it cuts across the hinterland vegetation at the termination of the beach. Again, this does not achieve the view of Point Roadknight in context.
4. Reducing the height of the Dench house by 600mm provides a greater separation between the roof ridge and Point Roadknight and the beach. It also just provides a view of the existing hinterland vegetation at the termination of the beach, which creates the context of Point Roadknight sought by Council. However, achievement of this outcome at 600mm is tight and does not allow much of a margin for error[3], i.e. if the dwelling was at all higher the view of the existing hinterland vegetation would be lost. As such, a greater reduction than 600mm is required.
5. I note Ms Sincock's photomontage of a 600mm reduction demonstrates the majority of the proposed dwelling (other than the top ridge of the skillion roof) will just above or at the height of the balustrade of the Kennedy's deck. Ms Patterson submitted the existing table, chairs and plants on the deck already impact on the view. I agree they are part of the view at or below the height of the balustrade, but my inspection and the photomontages demonstrate they do not have any significant impact on the view and below the balustrade is dominated by the roof of the existing house on the review site, and the top of the canopy of existing vegetation along the Great Ocean Road. In my opinion, the loss of this view is not significant.
6. Which brings me back to the necessity to retain the view and context of Point Roadknight above the roof ridge of the Dench house to achieve a reasonable sharing of the view. Based on the above assessment, I do not consider a 1.0 metre reduction, as sought by Ms Sincock, is necessary. However, I am of the opinion a greater reduction than 600mm is needed to retain the view and its context.
7. Ms Patterson explained the proposed dwelling has been designed to accommodate a tall family and any further excavation to reduce the overall height of the dwelling will impact on the ability to provide disabled access to an elderly family member. Planning permits and, indeed, planning decisions are not generally based on personal circumstances but rather on the built form as permits run with the land, not with individuals.
8. The Council described the proposal as including existing excavation (rather than new excavation) and I note the plans include a plinth under the front of the ground floor of the dwelling that scales at about 900mm on the south elevation, 1.0 metre on the east elevation and 500mm on the west elevation. As such, it is possible that the dwelling could be lowered and cut marginally into the site; or the floor to ceiling heights reduced; or the dwelling shifted marginally further down the slope of the land to assist in achieving an overall reduction in height. Hence, my finding is the height of the proposed dwelling needs to be reduced by 800mm to achieve a reasonable sharing of the Point Roadknight view. I do not intend to make any findings on how this should be done as there are clearly a range of options available. I will leave it to the permit applicant and their architect to determine with the Council how this should best be achieved.

1. One final matter raised in the hearing was Council's request for an additional condition to be imposed about the location of domestic services and roof top plant so as to ensure they do not impact on the view. Mr Rosevear explained the Council has had a recent example of solar panels being added to a roof and impacting upon views. Council has sought a legal opinion (which he tabled) on this issue that concluded it would not inappropriate to include a condition requiring amended plans to show the location of domestic services or a further condition prohibiting or restricting the installation of domestic services on or above roof lines.
2. Ms Sincock supported this matter being controlled via a permit condition and asked that a condition prohibiting their installation on or above the roof be included. Ms Patterson advised her client would be agreeable to an additional item being added into condition 1 requiring the location of the domestic services normal to a dwelling to be shown. I will include this item in condition 1. I note the Council's legal opinion suggests if there is any dispute in regard to the endorsement of the amended plans because of the location of these domestic services, it is a matter that can be reviewed by the Tribunal as the plans must be "to the satisfaction of the Responsible Authority". Clearly, as the Dench and Kennedy families are cognisant of the issue of height and views because of this application for review, it would be desirable for such services to be located so as not to impact upon the view of Point Roadknight from the living/kitchen area of the Kennedy house.

[1] Council considers the car spaces are too small and has included a permit condition requiring amended plans to show at least one car space capable of being covered with minimum dimensions of 6 metres long by 3.5 metres wide.

[2] The building height performance measure is to ensure the height of a building does not exceed 7.5 metres.

[3] Whether it be in these photomontages, or the redesign to achieve 600mm reduction, or in the construction of the dwelling.