Ms Roz Hansen, town planner of Hansen Partnership, appeared for the applicant for review, Mr Robert Leverington. She presented written and oral submissions.

Mr Russell Smith, an officer of the Shire of Mornington Peninsula, appeared for the Responsible Authority. He presented written and oral submissions.

Mr Mark De Weerd, architect, appeared with Malcolm James, architect, for the respondent permit applicant, Daniel McKinna. They made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 82 of the Planning and Environment Act 1987 for review of the decision of the responsible authority to grant a permit

Residential 1 Zone and subject to a Design and Development Overlay (Schedule 2) and a Vegetation Protection Overlay (Schedule 1) under the Mornington Peninsula Planning Scheme

Lot 214 on Plan of Subdivision 10790 being the land in Certificate of Title Volume 7188 Folio 456

Rectangle of land with a frontage of 20.12 metres to the west side of Matong Road, a depth of 51.82 metres and an area of 1046m2

Healy v Surf Coast SC [2005] VCAT 990; (2005) VPR 316

1. This case is a dispute about views and the sharing of views.
2. Mr McKinna is the owner of the review site at 33 Matong Road, Mount Eliza. There is an existing house on the land. He wishes to demolish that house and construct a new one.
3. The land is on the western side of Matong Road. I have simplified the directions to speak of north and west, but I am conscious that true north is not quite the alignment of Matong Road. It runs generally north and south, but a little bit to the northwest, rather than towards true north.
4. It is located in a residential zone and there are other houses on either side of the street.
5. The street runs approximately north to south and roughly parallel to the coastline of Port Phillip Bay. Between Matong Road and the foreshore of the bay there are three other streets or roads, also running generally north to south. These are also residential streets in a residential area. Although built up, some of the existing houses in the area are small and or old and or dated, and perhaps ripe for redevelopment, having regard to the desirability of these locations in Mount Eliza and positioned so as to have views of Port Phillip Bay.
6. There is already evidence of redevelopment going on. Mr McKinna's project is an example.
7. The applicant for review, Mr Robert Leverington, resides at the next door property to the south of the review site. His place is 31 Matong Road. It is also a further example of redevelopment. A substantial new house was built by him on his land several years ago.
8. There are houses along either side of the streets between Matong Road and the foreshore save that they are only on the eastern side of the road running along the foreshore itself.
9. Obviously, if the topography inland from the foreshore was flat, it would only be the dwellings along the eastern side of the foreshore road that could expect to enjoy much in the way of views of the bay. However, the land is not flat. It rises from the foreshore up to the review site and it continues to rise to the east on the opposite side of Matong Road. The fall of the land across the review site itself is from the southeast corner down towards the north western one. That rise to the east and south continues into Mr Leverington's property on the south side of the review site so that it is higher than the review site.
10. Mr Leverington is concerned that redevelopment between his property and the foreshore may reduce the excellent views obtainable towards the bay from his house. His house is single storey at the front and double storey at the back, taking advantage of the fall of the land. His living room and dining room are situated on the upper level at the back with windows to take advantage of the views. These look to the west and north. I understand Mr Leverington's anxieties, and there are some existing redevelopments that appear to impinge somewhat on his views. However, the possibility of other intrusions may be relevant to other cases rather than this one. Mr McKinna is entitled to a fair assessment of his proposal on its merits and in present circumstances, rather than on the basis of apprehensions for the future that may or may not ever eventuate and over which Mr McKinna has no control.
11. Mr Leverington's dining room and lounge room are at the rear and western end of his upper level, but they open onto a balcony which extends further to the west. This balcony has transparent balustrades to minimise interference with views.
12. The views from the balcony and from the rooms opening onto it are excellent ones. It was said that they extend to 160 degrees. That was not dissented from.
13. The proposal for the review site is also to have a house with two levels at the rear but with only a single storey at the front eastern side. Understandably, it too proposes to position living areas at the rear of that upper level with a west facing balcony.
14. This proposed upper level with its walls and roof, and with a verandah structure protruding somewhat over the west facing balcony, does reduce marginally views to be obtained from within the Leverington property including the prime views obtainable from the dining room, living room and balcony.
15. One can understand that Mr Leverington would regret any loss of his excellent views, and in particular those towards the bay. It is possible to discern the skyline of the city of Melbourne far off into the distance from his balcony and from those rooms. He has a telescope in the northwest corner of his lounge room through which he can view the bay, the skyline, shipping and other things. Whilst the centre of the view from his viewing positions is to the west, as already noted, it is a broad view that extends from the west towards the south and also towards the north. The city skyline is in the northern portion of the view, or to the right of the central view line.
16. The views are interesting, not only in the daytime, but also at night when lights are showing from ships and land, including the distance city.
17. The application to review the decision to grant a permit was made on the following five grounds:
    1. The application is contrary to the Design and Development Overlay (Schedule 2), which applies to the site. In particular, the development does not reasonably share view-lines.
    2. The development does not respond to the constraints of the site.
    3. The development will impose unreasonable visual bulk on the property to the south, 31 Matong Road, Mount Eliza.
    4. The development is contrary to Clause 21.07-2 "Local Area Character" in the Mornington Peninsula Planning Scheme.
    5. The development does not accord with the orderly and proper planning of the area.
18. Grounds ii and iv are rather general in their terms. At the beginning of the case, Ms Hansen, who appeared for Mr Leverington, clarified that those grounds do not add anything to the other three grounds. The real issue is the first one in relation to the sharing of viewlines. The third one is principally about that. So is the relevant part of the fourth. There was some discussion about site setbacks and the need to landscape them but the conditions appearing in the notice of decision to grant a permit issued by the responsible authority on 30 April 2009 contains conditions requiring a landscape plan to be approved by the responsible authority. Questions in relation to that can be determined in accordance with that condition. The essential issue is the question of the views.
19. Although this land is in a Residential 1 Zone, the proposal is for the construction of a single detached dwelling, and no planning permission is required under the zone provisions.
20. The land is subject to a Vegetation Protection Overlay and a permit is required under those overlay provisions. However, there is no issue in relation to whether such permission should be granted. The responsible authority considers that it should be granted, and there is no dissent from that on behalf of Mr Leverington.
21. The land is also subject to a Design and Development Overlay. Planning permission is required for the proposed building pursuant to the overlay provisions. There is no dispute that it is appropriate for there to be a new house on this land, even for a new house generally in accordance with the plans proposed. The dispute is in relation to the aspect of the plans that would allow a building that intrudes, to some extent, on the views from 31 Matong Road.
22. The relevant schedule to the overlay provides that no planning permit is required in some circumstances, but that a permit is required if one or more of the so called general requirements is not met. In this case, there are three of those requirements that are not met.
23. The first of these, and the important one in relation to this case, is a general requirement that the maximum wall height should not exceed 5.5 metres above nature ground level, and that the maximum building height should not exceed 6 metres above that level. This proposal would rise to 7.4 metres thus failing to meet that general requirement by 1.4 metres.
24. The case on behalf of Mr Leverington seeks a reduction in the height of the building, where it relates to the view from number 31 by 1.2 metres. A permit would still be required, even at that level, but it would not be opposed.
25. The second general requirement that is not met relates to excavation exceeding 1 metre. Permission is required on that account but there is no issue as the responsible authority and the applicant for review agree that permission should be granted in respect of that matter. Indeed, the submissions made on behalf of Mr Leverington looks for some of the 1.2 metre reduction in height to be achieved by excavating further into the ground.
26. The third general requirement that is not met relates to the colouring of roofs, or certain roofs that would be overlooked.
27. That has ceased to be an issue, and permission is no longer necessary in relation to that consideration. The responsible authority, in determining to grant a permit, has imposed a condition in relation to muted tones for the roof concerned so that, on the basis of the building envisaged by the permit, there would be no contravention of that general requirement after all. There has been no appeal on behalf of the permit applicant[1] in respect to that condition.
28. The Design and Development Overlay is intended to achieve design objectives specified in the relevant schedule. In this case, it is schedule 2 to the Design and Development Overlay. There are various objectives mentioned, some of which have some general application to the case. Nevertheless, for present purposes the key and essential one reads:

To protect shared viewlines where reasonable and practical.

1. It is clear from this that preservation of existing viewlines and sharing of views is not always reasonable or practical. The desires of existing residents in this respect cannot always be met, and that is well recognised in this key provision.
2. The question of assessing and analysing views and the sharing of views is a topic that has received attention by this tribunal and its predecessor[2] over the last 20 years and more. Some propositions have been developed. I was referred to the decision of this tribunal in Healy v Surf Cost SC[3]. The propositions referred to are as follows:
   • (a) there is no legal right to a view;
   • (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.
3. Of course the question of views is specifically referred to in the relevant part of this planning scheme, as I have already said.
4. Ms Hansen, on behalf of Mr Leverington, sought to advance an argument that there is a stated or unstated rear line across the rear of houses facing the western side of Matong Road including the review site and the property of Mr Leverington. I do not think that much weight can be placed on this proposition. I note that the rear of these properties vary in setback and position, and that some properties have been redeveloped whilst others have not (although they may well be redeveloped in the future). If anything, and notwithstanding protestations to the contrary, I consider that Mr Leverington's property intrudes more into the views from his neighbour to his south than any other properties in the immediate locality on the west side of the road, and to a greater extent than would be the case if the current proposal is allowed to proceed in its present form.
5. Various suggestions have been put forward on behalf of Mr Leverington as to how the admitted incursion on his view might be further reduced. It is suggested on his behalf that a reduction of 1.2 metres ought to be achieved, and can be achieved by sinking the building further into the land and by reducing ceiling heights with further compression of roof space.
6. The architects appearing on behalf of Mr McKinna contest these propositions on the basis that they are unreasonable, undesirable and or illusory.
7. I am dubious as to whether these suggestions are practical and reasonable, but I do not find it necessary to make a final determination in that respect. The permit applicant and his representatives declined to adopt them voluntarily. The responsible authority does not consider them to be necessary or appropriate.
8. Essentially, I am called upon to make a decision in relation to the proposal as it stands at present. The key issue is as to whether the admitted intrusion onto Mr Leverington's views are excessive or unreasonable and inappropriate.
9. In making my assessment I bear in mind the propositions quoted above from Healey's case. The existing views from the Leverington property are excellent. If this proposal is allowed to proceed in its present form, they will continue to be excellent, although a little diminished. I do not mean that the diminution is trifling. I understand that Mr Leverington does not wish to have to bear it. I think his loss would be modest rather than grievous on the one hand or minimal on the other.
10. I accept that, from some positions, the view of the edge of the city skyline will be diminished a little. The evidence, including the montages presented on his behalf, demonstrate that the loss in this respect is minor. I say that while realising that the loss has two dimensions. One is the bit that will be missing altogether off the right hand end of the view of the skyline. The other is that the view of the skyline will be moved to the right hand end of the view cone, particularly from some positions.
11. My assessment is that the proposal, in terms of views and the sharing of viewlines, is both reasonable and acceptable. The loss is minor and acceptable. Mr Leverington may wish to reposition his telescope to obtain better lines of sight from time to time, even if he stores it in its present corner. The hint that there could be some loss of views for people sitting in armchairs or sofas within the living room portion of the dining/lounge room, is a relatively minor matter. Whilst there could be some repositioning of furniture, or viewing from other portions within the room, the best appreciation of the excellent view will be from the centre or left half of the room and the balcony. People can stand and sit in various positions in both. For these reasons, I decline to uphold the application for review either by refusing a permit or by imposing a condition reducing the building height of the relevant portion of the building by 1.2 metres as suggested by Ms Hansen.
12. There has been no challenge to the existing notice of decision to grant a permit or its conditions, only a suggested additional condition which I do not propose to grant. In the circumstances, I will grant a permit in terms of that notice.

[1] I am treating Mr McKinna as the permit applicant. His representatives who appeared for him at the hearing are architects associated with a firm that trades under the name "Clear Design Group". I gather that the permit application was made in that name. It is more correct for an application to be made in the name of a legal person such as an individual or a corporation, rather than the trading name. In any event, the application was made really by those trading under the name, but as agents for Mr McKinna. He is the principal and true party.

[2] The Victorian Administrative Appeals Tribunal

[3] [2005] VCAT 990 at [21]; (2005) 19 VPR 316