1. This is an application by Mr Rod Larsson to review the decision of the Mornington Peninsula Shire Council to refuse a permit for extensions to a dwelling house at 13 Jaanda Court, Blairgowrie.
2. The hearing commenced on 30 January 2017 and was completed on 28 February 2017. A determination was made on that day and reasons were given orally.
3. The Tribunal was able to inspect the subject land and adjoining properties on 2 February 2017.

1. There is an existing two storey dwelling on the subject land. It is proposed to extend the lower level approximately 5 metres to the north and the upper level some 10.8 metres. The upper level would contain a new living and dining room and a 3.3 metre wide deck facing north. The height of the upper level would be increased by approximately 1.5 metres.

1. The proposal was refused by the responsible authority because of its impact on the view enjoyed by the adjoining property to the south at 16 Spencer Street occupied by Mr and Mrs Degenhardt.
2. At present the subject property enjoys an attractive view to Port Phillip Bay and the coastline to the north east towards Arthur's Seat and Mount Martha and, the Tribunal was advised, on a clear day to the Dandenong Ranges beyond.
3. The Degenhardt property enjoys the same view over the top of the subject property.
4. The proposal is also opposed by Mr and Mrs Benjamin at 11 Jaanda Court and by Mr and Mrs Degenhardt. The adjoining neighbours also contend that the height of the extended dwelling would exceed the mandatory height limit of 8 metres above natural ground level imposed by Design and Development Overlay Schedule 2 under clause 43 of the Mornington Peninsula Planning Scheme.

1. The viewshed enjoyed by both the subject land and the Degenhardt property is not panoramic. It is constrained by existing vegetation on both sides and could be described as a corridor view. The proposed extension of the upper level of the dwelling on the subject property would block approximately 70 to 80 percent of the view from the Degenhardt property leaving only a narrow view corridor to the bay along the western side of the subject land.

1. The land is zoned General Residential - Schedule 1 under the Mornington Peninsula Planning Scheme and as mentioned is subject to DDO2. In this case a permit is not required under the zone controls. Under the DDO a permit is not required if the proposal meets the general requirements set out in clause 2 of the schedule. The general requirements state that no building may exceed a wall height of 5.5 metres or a building height of 6 metres, and as mentioned there is a mandatory height limit of 8 metres.
2. According to the responsible authority the extended height of the building will be 7.995 metres, so the general requirements are not met but the mandatory height limit is not exceeded. Therefore a permit is required.
3. The critical provision of the DDO in this case is, as submitted by Mr Dowdle the planning advocate who appeared for Mr and Mrs Degenhardt, the pre-amble under the hearing "permit required" which states:

An application to construct a building or construct or carry out works should meet the General requirements of the schedule except where it has been demonstrated to the satisfaction of the responsible authority, that compliance is unreasonable or unnecessary and no significant loss of amenity will result. (emphasis added)

1. The case raises three issues.
2. First, it is submitted by the responsible authority and Mr and Mrs Degenhardt that the proposal will have an unreasonable impact upon the viewshed of the Degenhardt property which will result in a significant loss of amenity.
3. Secondly, it is submitted by Mr and Mrs Benjamin and Mr and Mrs Degenhardt, but not by the responsible authority, that the proposal exceeds the mandatory height limit of 8 metres.
4. Thirdly, it is submitted by the two residential objectors and by the responsible authority, albeit somewhat less forcefully, that the proposal would be visually intrusive contrary to the design objectives of the DDO.

1. It is convenient to deal first with the impact of the proposed extension on the existing viewlines because the Tribunal considers that this issue is determinative of the case.
2. It is now well established as a planning principle that although there is no legal right to a view, in the absence of documented easements, a view is nevertheless an important part of the amenity of a property particularly if the property is in a coastal or naturally landscaped area. See Tashavinides v Shire of Flinders[1] and Healy v Surf Coast Shire Council[2].
3. In the present case this proposition is reinforced by the specific objective of the DDO "to protect shared viewlines where reasonable and practical".
4. As mentioned, the test posed by the DDO is whether a significant loss of amenity will result. This requires something more than just an impact on amenity, in this case the viewshed of the Degenhardt property. The impact must be significant.
5. It must also be taken into account that the contribution of the viewshed to the amenity of the Degenhardt property is increased by the fact that it is an active viewshed. Ships pass to and fro every day, and the sea itself is every changing with the sun, the wind and the tides.
6. Having heard the submissions of the parties, and assisted in an understanding of those submissions by a view of the relevant properties, the Tribunal is of opinion that the proposed extension would have a significant impact on the view enjoyed by the Degenhardt property, and hence the amenity of that property. It would reduce the view to a corridor along the west side of the subject land. On the other hand the view presently enjoyed from the subject land will remain the same.
7. Mr Larsson submitted that in the short term the view from the Degenhardt property will be substantially totally blocked by the growth of the Moonah trees which are growing between the subject land and the Degenhardt property. These trees do not at present impinge upon the viewshed.
8. All these trees are located on the Degenhardt property and so Mr and Mrs Degenhardt have control over their growth. Although the property is subject to a Vegetation Protection Overlay the trees may be trimmed or lopped, or even removed, under the Bushfire Protection provisions of clause 52.48 of the planning scheme. So the preservation of the Degenhardt viewshed is within the control of Mr and Mrs Degenhardt.
9. What a permit refusal would deny is the opportunity to incorporate the present view from the subject land as a more prominent feature of the property by substantially increasing the area of the upper level. The view itself will remain intact. So the Tribunal concludes that compliance with the requirements of the DDO cannot be satisfied. Accordingly a permit should be refused.
10. To assist the parties and the responsible authority in the event that a further application for permit is made the Tribunal can indicate that in its opinion it would be acceptable for an extension to the upper level of the dwelling on the subject land to block the view from the Degenhardt property for a distance of approximately 3.5 metres from the east side of the deck on the subject dwelling. This would preserve about 70 percent of the present view from the Degenhardt property. Any extension further to the west that this should keep the roofline below any view of the bay from the Degenhardt property.
11. These observations are not, of course, binding upon the responsible authority which will consider any future application on its merits.

1. The Tribunal's conclusion in relation to the first issue makes it unnecessary to decide whether the proposal exceeds the mandatory height limit of 8 metres. The Tribunal observes only that it would interpret natural ground level as meaning the existing ground level at the date the application is made. The Tribunal would with respect adopt what was said by the Tribunal in Mrocki v Bayside CC[3] and by the Supreme Court in Shire of Gisborne v King[4].
2. The concerns expressed by the Tribunal in the more recent decision of Faversham Mews Pty Ltd v Boroondara CC[5] that this interpretation may open the door to an artificial elevation of ground level prior to making an application are answered by recognising that such an artificial change can always be construed by the responsible authority as part and parcel of the proposal which is the subject of the application. This means that natural ground level will remain what it was prior to the artificial elevation.

1. So far as the Benjamin property is concerned the Tribunal is satisfied that it is basically orientated away from the subject dwelling and would not suffer any loss of amenity from the current proposal.

1. For these reasons the application for review is disallowed and it is directed that no permit issue in application for permit No> P15/0018.

[2] [2005] VCAT 990

[3] [2015] VCAT 1731

[5] [2016] VCAT 1954