Ms Leah Protyniak, Principal Planner, Surf Coast Shire Council

Application under section 82 of the Planning and Environment Act 1987 - to review the decision to grant a permit.

Significant Landscape Overlay, Schedule 3 (SLO3)

Design and Development Overlay, Schedule 19 (DDO19)

Neighbourhood Character Overlay, Schedule 3 (NCO3)

Clause 43.05-2 - construct a building and construct and carry out works in the NCO3

Clause 44.06-2 - construct a building and construct or carry out works associated with a dwelling in the BMO2

The land is located between Parker and Harvey Streets, with Sparrow Avenue to its north-east. It has a width of 20.12 metres and a depth of 49 metres along the north-eastern boundary and 47.7 metres along the south-western boundary. Its overall size is approximately 976 square metres. The central part of the land is clear of vegetation, with some vegetation existing at the north-western and south-eastern ends of the land. To the north-west of the land is Parker Street. Across Parker Street, further north-west is a single-storey dwelling at No. 65 Parker Street. To the south-east of the land is Harvey Street. Across Harvey Street, further to the south-east is the double-storey dwelling at No. 26 Harvey Street. The lots directly to the north-east and south-west at Nos. 62 and 66 Parker Street are vacant.

1 The application is brought by Robert MacDonald and Christopher Gadsden (applicants) under s 82 of the Planning and Environment Act 1987 (Act) seeking review of the decision of the Surf Coast Shire Council (Council) to grant a permit for the land at 64 Parker Street, Anglesea (land).

2 The proposal is for the construction of a double-storey dwelling on the land. Relevantly, the land is part of a larger site that formerly contained a large concrete water supply basin. The concrete water supply basin has been removed and the basin area has been filled. The zoning of the site has been changed to GRZ1, and it has been subdivided into several lots, including the land.

3 The applicants oppose the grant of a permit for the dwelling on the land on the basis that:

1. The existing levels are higher than the original natural ground level;
2. The proposed starting level for the dwelling is above the natural ground level;

1. The building is over the designated maximum height in NCO3;

1. There is no vegetation planned for the site; and
2. The result will be a prominent over-height two-storey building in a bush area with no planting screening it from view.

4 The Council's position is that there is a variation of a maximum of 200mm between the current surface level and the original 'pre-basin' surface level; that the NCO3 does not set a mandatory height limit, and that the proposed dwelling will not present as bulky or dominant to the emerging or existing streetscape.

5 Amongst other things, the respondent (permit applicant) submits that if the proposed dwelling is constructed at the existing ground level, the maximum building height would be 7.43 metres above the existing ground level which is consistent with the relevant provisions of the Scheme, and that it will have no detrimental impact on the surrounding neighbourhood character.

6 Having considered the submissions of the parties, and having inspected the land and its surrounds, I conclude that the proposal with some modifications achieves an acceptable planning outcome. My reasons for reaching this conclusion follow.

7 The proposal is for the construction of a double-storey dwelling provided with a two-car garage accessed from Parker Street. The dwelling faces Parker Street, and is setback 9.1 metres from its frontage, and 13 metres from Harvey Street (to the rear). The proposed dwelling is provided with:

1. A bedroom with an ensuite; laundry and separate powder room; a kitchen with open plan living and dining room and two decks at ground floor level;
2. Three bedrooms a bathroom; rumpus room and deck at first floor level;

1. Split, angled flat roof forms (generally with a 10-degree pitch);

1. Secluded private open space to the rear of the dwelling of approximately 80 square metres in area;
2. Materials and finishes which include PGH Bricks Altitude (Olympus); Axon smooth vertical cladding (Basalt); Stria horizontal cladding (Shale Grey) and corrugated Colourbond roof (Monument);
3. A three-metre-wide crossover for access to Parker Street.

8 The front (north-west elevation) of the proposed dwelling is shown at Figure 1 below.

9 The plans show the maximum height above the '1953 pre-development level' is 7.63 metres. The Council's submission states that it has applied a consistent approach to the development of the lots within the former water basin site that there is a maximum variation of 200mm between the natural ground level and the existing ground level. The Council officer's report states that the proposed maximum height above the existing ground level is 7.43 metres.

10 The land and its surrounds are described at page 3 of this decision, and I have already described how the land once formed part of a larger site within which a large concrete water retaining basin (Water Basin) was constructed in the 1960's. A photograph of the Water Basin before the concrete lining was removed and before the remaining hole in the ground was filled is reproduced at Figure 2 below (extracted from the applicant's submissions).

11 At Figure 3 below, is a photograph of the former Water Basin after it was filled in 2016 (the photograph was extracted from the applicant's submissions).

12 The site of the former Water Basin was subdivided into seven lots, one of which is the land. A single storey dwelling has recently been constructed on one of the new lots (No. 70 Parker Street). The remaining lots are vacant, and there is vegetation on the fringes of the former Water Basin site, as can be seen in the aerial photograph, at Figure 4 below.

Approximate location of No. 64 Parker Street, Anglesea

13 The site of the former Water Basin (including the land) land is located within a residential area with varied built form which mostly comprises one and two storey dwellings, constructed of various materials including brick and timber. Many of the dwellings in Harvey and Parker Streets have no front boundary fence and there are no footpaths in Harvey and Parker Streets. The streets surrounding the former Water Basin site have an informal, vegetated character.

14 The land is located to the south-east of the Anglesea township, and north of the coastline, which is about 1 kilometre to the south-west as the crow flies.

15 Having regard to the submissions presented to the Tribunal at the hearing, the key issues for consideration are:

1. What is the relevant level from which the building height should be determined?
2. Is the proposed dwelling an appropriate built form response to the NCO3?

16 The land is located within the GRZ1. Whilst a permit is not required to use or develop the land for a dwelling, there is a mandatory requirement in the GRZ1 that the building height of a dwelling must not exceed 11 metres and the building must contain no more than three storeys at any point pursuant to Clause 32.08-10 of the Surf Coast Planning Scheme (Scheme). 'Building height' is defined at Clause 73.01 of the Scheme as 'the vertical distance from natural ground level to the roof or parapet at any point'. The Scheme defines 'ground level' to mean 'the natural level of a site at any point'.[2] The Tribunal has previously said that there is no difference in meaning between 'ground level' and 'natural ground level'.[3]

17 The land is affected by several overlays, to which I have referred at page 3 of this decision. A permit is required for buildings and works under the NCO3 and the BMO.

18 The purposes of the NCO3 include identifying areas of existing or preferred neighbourhood character and ensuring that development respects the neighbourhood character. The statement of neighbourhood character is as follows:

Anglesea is typified by a low density vegetated character, reflective of its history as a small coastal settlement in an environmentally sensitive setting...

The preferred character for Anglesea is derived from the positive elements of the existing character. It comprises a strong native bush landscape setting dominated by an indigenous tree canopy within which sit visually recessive, unobtrusive buildings that are screened by vegetation. Buildings have a low profile building height, small footprints and large setbacks, which affords a sense of space between buildings. Buildings adopt a contemporary coastal style of architecture, with reference to classic older style beach houses, utilising simple built forms and roof styles; a diverse range of natural, visually lightweight materials (e.g. timber), glazing and decks; and subdued colour schemes that blend with the vegetation. Driveways and car parking areas are recessive in the streetscape and have an informal appearance. Many properties have no boundary fences and where fencing does exist it is generally limited to post and wire. The residential amenity is enhanced by views of natural features such as the ocean, coastline, river and hinterland from public and private spaces.

19 The neighbourhood character objectives for NCO3 include the following:

To preserve and enhance the low density non-suburban coastal village character of Anglesea and retain the sense of houses in a bush setting.

To retain and enhance the existing cover of indigenous vegetation with particular emphasis on Messmate Stringybark and Coastal Moonah Woodland species, where this does not increase bushfire risk.

To encourage development and infrastructure that retains a non-suburban and informal appearance, reflective of the coastal character of the town and its bushland / heathland environment.

To maintain a sense of space around buildings to support the preservation and re-establishment of vegetation that enhances screening of the development from adjoining properties and public areas, and to enable the creation and management of defendable space for bushfire protection.

To maintain a low profile building height that minimises the visibility of buildings in the broader landscape, particularly where the vegetation canopy height is low or a site is prominently located.

20 The schedule to the NCO3 varies a number of the standards at Clause 55, including the following:

1. A minimum setback from the front street of 9 metres (Standard A3 Street setback);
2. The maximum building height should not exceed 7.5 metres (Standard A4 Building height). The use of the word 'should' in this context means that the 7.5 metre requirement is discretionary (not mandatory);

1. The site area covered by buildings should not exceed 30 per cent (amongst other things) (Standard A5 Site coverage);

1. A new building should be setback at least 3 metres from side and rear boundaries (Standard A10 Side and rear setbacks);
2. The design of buildings should respect the preferred character of the area (Standard A19 Design detail).

21 There are a range of State and local policies which are relevant. Provisions of the scheme set out policies which seek to provide further guidance about the location and form of housing. These include the following policies:

1. Clause 2.03-6 (Housing) in which it is stated that housing growth should not compromise neighbourhood character and in which Council seeks to support a range of housing types, sizes and configurations to accommodate the future needs of the growing and changing population;
2. Clause 11.03-5R (The Great Ocean Road region) in which there is a strategy which seeks manage the growth of towns by respecting the character of coastal towns and promoting best practice design for new development;

1. Clause 13.02-1S (Bushfire Planning) which provides strategies regarding protection of human life and bushfire hazard identification and assessment (amongst others) in the context of an objective which seeks to strengthen the resilience of settlements and communities to bushfire through risk-based planning that prioritises the protection of human life;

1. Clause 13.02-1L (Bushfire planning) which seeks to manage vegetation within the defendable space in a manner that respects the vegetated character of the location whilst meeting the minimum requirements for bushfire protection;
2. Clause 15.01-1S (Urban design) which contains a strategy that requires development to respond to its context in terms of character, natural features and the surrounding landscape (amongst other things);
3. Clause 15.01-2S (Building design) which seeks to minimise the detrimental impact of development on neighbouring properties, the public realm and the natural environment and to ensure that development provides landscaping that responds to its site context and enhances the built form;
4. Clause 15.01-5S (Neighbourhood character) which contains a strategy that seeks to support development that respects the existing neighbourhood character or contributes to a preferred neighbourhood character; and
5. Clause 15.01-5L-01 (Coastal towns preferred neighbourhood character) in which strategies encourage building design, form, materials, features and colour that respects the low-density coastal character of each town and seek to maintain and enhance the vegetated landscape. 'Anglesea strategies' include preserving and enhancing the non-suburban coastal character of Anglesea and retaining its sense of houses dispersed in a bush setting, and screening buildings with vegetation to achieve a sense of privacy (amongst other things).[4]

WHAT IS THE RELEVANT LEVEL FROM WHICH THE BUILDING HEIGHT SHOULD BE DETERMINED?

22 In making their submissions to the Tribunal, the applicants relied on a number of documents including photographs, aerial photographs, emails, letters and the report of the Government Land Standing Panel,[5] not all of which I refer to here, but which I have considered.

23 The applicants particularly relied upon a contour plan prepared by the State Rivers and Water Supply Commission entitled 'Proposed Anglesea Service Basin Site Contours' Plan No. 130440 (Contour Plan). This plan appears to show the contours of the former Water Basin site before the construction of the Water Basin. It indicates that at the time that the contours were recorded, the highest point of the land was in the north-east corner of the former Water Basin site and that the land sloped away to varying degrees towards the east and west.

24 The permit applicant provided a plan prepared by TGM Group dated 4 July 2017, entitled '69B Harvey Street Anglesea Fill Sections which shows a 'longitudinal section through the basin' (TGM Plan). The longitudinal section indicates the surface levels in 2016 (after the former Water Basin site was filled) and the '1953 surface level'.

25 I understand from the Council's submission that:

1. Barwon Water has confirmed to the Council that the Contour Plan was used as the basis for preparation of the TGM Plan; and
2. The reference to the '1953 surface level' in the TGM Plan is an error, and it should refer to the Contour Plan (from 1958) which was used to create the longitudinal section in the TGM Plan.

26 Amongst other things, the applicants submit as follows:

1. In 2016 Barwon Water filled the Water Basin but did not remove the perimeter walls built up over the existing ground level resulting in a fill level well in excess of the levels recorded on the Contour Plan.
2. The Contour Plan shows that before the Water Basin was constructed, there was a fall of about 2 metres from the north-east corner of the site and there was a fall of about 1 metre to the south-west;

1. The proposed starting point for No. 64 Parker Street is higher than the 1958 original natural ground level shown on the 1958 Contour Plan;

1. The Water Basin was filled to the highest level shown on the Contour Plan and did not follow the original contours of the natural ground level;
2. The former Water Basin was over filled, and the proposed starting level for the proposal is higher than the 1958 original ground level. Instead of creating a sloping site when the Water Basin was filled, a relatively flat site was created which does not reflect the natural ground level of the land;
3. As the starting point for the building is over one metre higher than the natural ground level marked on the 1958 pre-basin construction drawing, the building at its highest point will therefore be in excess of 1.1 metres above the 7.5 metres maximum building height referred to in the NCO3;
4. The natural ground level should be established before the site is disturbed and the natural ground level should be the starting point for the building height;
5. The applicants were not in a position to get a survey carried out themselves because of COVID-19 restrictions; and
6. The proposal cannot be accurate without an accurate survey plan. The applicants want a condition on any permit requiring natural ground level to be established by a licensed surveyor based on the Contour Plan and this would satisfy their objection.

1. Filling of the Water Basin has resulted in a relatively level site, with the filled ground being higher in some areas than the natural ground level (before construction of the Water Basin);
2. The permit applicant's land surveyor's findings based on interpolation, review of surveys taken from neighbouring lots, the TGM Plan and visual inspection conclude that there is a variation of a maximum of 200mm between the current surface level and the original pre-basin surface level; and

1. The Council considered the feature survey which was submitted with the permit application plans, and it has applied a consistent approach to the development of the lots within the former Water Basin site which is a maximum variation of 200mm between the natural ground level and the current ground level.

1. There are two branches of authority regarding the interpretation of a reference to natural ground level, with one line of authority interpreting a reference to natural ground level to be the existing ground level as at the time of development. If this line of authority is adopted, then in this case, the existing ground level is the natural ground level;
2. The natural ground level of the site is that arising from Barwon Water undertaking works to fill the basin area, and this is shown as the red line on the plans submitted with the permit application as the '1953 surface level' (which is actually the 1958 level);

1. There is no clear evidence in this matter other than the TGM survey;

1. A surveyor may not be able to establish what the NGL was in this case because of the extent of change that has occurred makes this a very difficult exercise;
2. The applicants have not produced evidence to support their position and the condition they seek is onerous, vague and unfair; and
3. If the applicants succeed in their appeal then the permit applicant would have to either build a single-storey dwelling or excavate.

29 Before the hearing, the permit applicant provided the Tribunal and the parties with a survey report prepared by A.H and L.J. Jeavons Land Surveyors dated 9 June 2021. At the hearing the permit applicant indicated that it did not intend to call Mr Jeavons because his report did not comply with the Tribunal's Practice Note PNVCAT2 - Expert Evidence. The permit applicant submits that it cannot get a surveyor to provide an opinion about the natural ground level of the land and but for the fact that they have tried, they are not in a position to adduce any evidence on this issue. I have placed minimal weight on the report of Mr Jeavons in reaching my conclusions in this matter.

30 Both parties referred to the case of Faversham Mews Pty Ltd v Boroondara CC[6] in their submissions (amongst other cases). In Faversham:

1. The Tribunal took the expression 'natural ground level' to mean 'a level that is not formed by human intervention', and it adopted the level of the land before it was disturbed by any excavation, levelling or filling for development, including the construction of buildings and works as the natural ground level. This was subject to two qualifications. The first is an evidentiary qualification, and the second is the need to have regard to the purpose of the relevant provision that relies on natural ground level; and
2. Three land surveyors were called to give evidence which included evidence regarding an assessment of the natural ground level of the land in that case based on survey and inspection.

31 In this matter, the applicants provided the Contour Plan (amongst other material including aerial photographs) and made submissions regarding the level to which they say the land has been filled above what they submit is the natural ground level of the land (being the1958 natural ground level shown on the Contour Plan).

32 In my view, this falls short of the kind of evidence that would be required to establish what the levels of the land were before it was disturbed by any excavation, filling and levelling. Nor, in my view does it adequately establish whether or not the land had previously been disturbed by excavation, levelling or filling before the Contour Plan was prepared. On this basis I find that there is not adequate material before me from which I can infer, interpolate or extrapolate that the natural ground level of the land is the same as the contours shown on the Contour Plan which was prepared in 1958.

33 The applicants told the Tribunal that they were unable to obtain a survey of the land because of restrictions associated with the COVID-19 pandemic. The application for review was lodged in August 2020, after which time there were periods during which restrictions relating to the COVID-19 pandemic were eased (for example between late October 2020 and February 2021). During the times when restrictions were eased, I consider that it is possible that a land surveyor could have attended the land to undertake an assessment. Although they did not seek to rely on it, the permit applicant was able to obtain a report from a land surveyor before the hearing of this matter. Based on the material before me, I am not persuaded by the applicant's submission that they were unable to obtain a survey of the land because of restrictions associated with the COVID-19 pandemic.

34 Taking into account the line of authority that interprets natural ground level to mean the ground level existing at the time that the development application is made, I am of the view that the natural ground level of the land is the level which immediately pre-dates the making of the permit application.[7] From the material before me, this is the level depicted on the permit application plans as the '2019 surface level'. I make this finding based on the material that has been put before me by the parties in this matter and based on the facts and circumstances of this matter.

35 I am aware that in Faversham, the Tribunal did not follow the line of authority that I have referred to above. Based on the facts and circumstances of this matter, I consider that the Faversham case turned on its own facts, which I distinguish from those before me.

36 The applicants submit that there should be a condition on any permit requiring the natural ground level to be established by a licensed surveyor based on the Contour Plan. Based on the facts and circumstances of this matter, I do not consider that such a condition is appropriate. This is because:

1. It is the applicants who claim that the natural ground level is the same as the contours shown on the Contour Plan (before the construction of the Water Basin);
2. The onus is on the applicants to provide adequate evidence to substantiate this claim;

1. The material the applicants have put before the Tribunal falls short of the kind of evidence that would be required to establish that the natural ground level of the land is the same as the contours shown on the Contour Plan level. In my view this is impliedly acknowledged by the fact that the applicants are seeking a condition on the permit requiring the natural ground level to be established by a surveyor having regard to the Contour Plan;

1. The applicants have not succeeded in establishing that the natural ground level of the land is the same as the contours shown on the Contour Plan (before the construction of the Water Basin); and
2. I have found that the natural ground level of the land is the level that immediately pre-dates the making of the permit application.

37 Having addressed the issue raised regarding the interpretation of the natural ground level in this case, an assessment of the appropriateness of the proposal needs to be undertaken in light of the relevant provisions of the NCO3 and the BMO. I now turn to that assessment.

IS THE PROPOSED DWELLING AN APPROPRIATE BUILT FORM RESPONSE TO THE NCO3?

1. The proposal would be approx. 8.6 metres in height above natural ground level based on the Contour Plan and it would not achieve the 'low profile building height' which is one of the neighbourhood character objectives in the NCO3;
2. Because the land is cleared and the dwelling could potentially have no vegetation behind or in front of it;

1. The proposed dwelling will be a prominent over-height two storey building constructed on a cleared site on an elevated platform in a predominantly bush area with no planting to screen it from view; and

1. The proposal does not meet the neighbourhood character objective which seeks to maintain a low-profile building height that minimises the visibility of buildings in the broader landscape, particularly where the vegetation canopy height is low, or a site is prominently located.

1. At 7.63 metres above natural ground level, the dwelling is not considered to be an excessively high double storey construction, the highest point being at the top of the rear skillion roof section, and the majority of construction below 7.5 metres in height;
2. The dwelling will feature a recessed upper floor footprint, and it is not considered to present as bulky or dominant to the emerging or existing streetscape;

1. The surrounding lots will in time be developed, likely with double storey dwellings;

1. A consistent approach has been adopted by the Council in assessing of development for each of the lots created on the former Water Basin site, and will continue to be applied, meaning that the emerging character of this 'island' of development will be consistent between lots in terms of design, bulk and gradation in heights and building form, whilst having regard to the scale of surrounding existing development outside of the 'island';
2. The design of the building will not create a prominent built form that requires screening, vegetation is to be retained as part of the road reserve and managed to each site frontage in accordance with defendable space requirements; and
3. A landscape plan has not been required as it is considered onerous to formally lock in a new landscaping scheme for every site in the BMO which would require regular assessment and inspection.

1. The applicants have a fundamental issue with the two-storey dwelling that is proposed and that is not consistent with the existing character of the surrounding area where there are two-storey dwellings in the area, such as No. 26 Harvey Street;
2. The existing ground level on the subject land is 200mm higher than the natural (pre-development) ground level and therefore the new dwelling will achieve a maximum building height of 7.63 metres above natural ground level; and

1. A landscape plan has been prepared to demonstrate how the permit applicant intends to ensure that the proposed dwelling will over time, through the growth of vegetation interact discretely with its surroundings.

41 Having regard to the purposes of the NCO3, the neighbourhood character statement and objectives, and the decision guidelines, I consider that the proposal respects the neighbourhood character identified for 'Anglesea residential areas'. Having regard to the relevant matters referred to in the modified Clause 54 standards, and the decision guidelines within the NCO3, I have set out my reasons for reaching this conclusion below.

42 I consider that the proposal is consistent with the neighbourhood character objective within the NCO3 which seeks to maintain a sense of space around buildings to support the preservation and re-establishment of vegetation that enhances screening of vegetation of the development for the following reasons:

1. The proposed 9.1 metre setback from the front boundary achieves the modified Clause 54 standard A3 (Street setback) which seeks a 9-metre setback from the front boundary;
2. The proposal achieves the modified Clause 54 standard A10 (Side and rear setbacks) which seeks a minimum setback from side and rear boundaries of 3 metres, having a minimum setback from the south-western boundary of 3 metres; a minimum setback from the north-eastern boundary of approximately 4 metres and a rear setback of approximately 13 metres.

43 The proposed landscaping plan (to which I will return later in these reasons) shows that it is proposed to plant eight White Correa plants (reaching a height of 0.5 - 2 metres) and approximately six Silver Banksia trees (which reach a height between 2.5 - 6 metres) within the front and rear setbacks. In my view, the setbacks proposed will create a sense of space around the building, and adequate space is available around the dwelling to plant trees and other vegetation.

44 I consider that the two-storey form of the proposed development has been designed to acknowledge and respond acceptably to its context and to the relevant neighbourhood character objectives regarding building height, including that which seeks to acknowledge and maintain a low-profile building height. In light of the relevant neighbourhood character objectives in the NCO3, I consider that the proposed building height is acceptable for the following reasons:

1. The upper level of the dwelling it set back about 10 metres from the front boundary, being recessed from the ground floor below (which is setback 9.1 metres from the front boundary);
2. At the north-eastern and south-western façades, the setbacks are varied, with the upper level at the rear of the dwelling being recessed by approximately 4 metres from the ground floor on the north-eastern façade towards the rear of the dwelling;

1. At the south eastern façade, the building is set back about 13 metres from the property boundary;

1. There is variation in materials and finishes, with the ground and first floor levels being clad with a combination of PGH Bricks (Altitude); Stria horizontal cladding (Shale Grey); Axon smooth vertical cladding (Basalt) and Spotted Gum deck posts which add interest and modulation to the appearance of the dwelling;
2. The Colourbond skillion roof is split in form (generally with a ten-degree pitch). This, in combination with the variation in materials and finishes, and the front, side and rear setbacks provides a profile which assists in articulating the front, rear and side elevations, and whish assists in reading the dwelling as low profile; and
3. The visibility of the dwelling in the broader landscape is minimised.

45 If I am wrong in my finding regarding the natural ground level, and the natural ground level of the land is the same as the contours shown on the Contour Plan (so that the building at its highest point will be in the order of 1.1 metres above the 7.5 metres preferred building height), I consider that the height of the building responds acceptably to the existing and preferred character of the neighbourhood for the following reasons:

1. The siting and form of the first-floor elements, the split skillion roof form and the variation in materials and finishes (which I have described above) means that there is a level of articulation between the ground and first-floor levels such that a greater building height than 7.5 metres is reasonable. In my view the greater height will not result in reduced residential amenity due to visual bulk;
2. The building design incorporates sufficient modulation, articulation, variation in the roof form, setbacks and materials and finishes to assist in reading the dwelling as low profile, and such that that the overall building height achieves an acceptable response to the streetscape and the broader neighbourhood; and

1. The proposal will not have unacceptable impacts on residential amenity in terms of sharing views of significant landscape features (including views of the ocean and coastal shoreline).

46 On this basis, I have not been persuaded that the height of the building justifies refusal of the permit.

47 A landscape concept plan has been prepared which shows the retention of an existing immature Messmate tree; planting of eight White Correa plants (reaching a height of 0.5 - 2 metres) and approximately six Silver Banksia trees (which reach a height between 2.5 - 6 metres) within the front and rear setbacks, as well as the removal of three existing Sallow Wattle plants.

48 I observe that some of the Silver Banksia and White Correa planting located in the south-east corner of the land (close to Harvey Street) is in the same place on the landscape concept plan as existing vegetation. To the extent that the subject land contains native vegetation that will be impacted by the proposal, the respondents will need to separately seek permission under Clause 52.17-1 to remove, destroy or lop that native vegetation (unless a relevant exemption from the requirement to do so is available in the Scheme).

49 Except where vegetation removal is required to create the new driveway, it would be preferable to retain the existing vegetation at the north-western and south-eastern ends of the land and to locate the new planting in other locations within the front and rear setbacks. if this can be achieved whilst meeting the vegetation management requirements for defendable space around the dwelling.

50 I consider that the planting of the six Silver Banksia trees, together with the low-level White Correa planting as shown on the landscape concept plan, and the retention of existing vegetation (where this is possible) will allow for the creation of a suitable landscaped setting for the dwelling. Over time, as the vegetation matures, it will add to the broader public realm; it will increase the vegetation on the land and will provide some screening of the building with vegetation to achieve a sense of privacy which is consistent with relevant strategies at Clause 15.01-5L-01 (Coastal towns preferred neighbourhood character).

51 Because the land and the surrounding lots are located on the former Water Basin site, the proposal will introduce a contemporary dwelling to a site which is in transition from its former Water Basin use to residential use and development. There is an emerging streetscape in which new dwellings can be expected to be of one and two-storey contemporary style development.

52 In my view, the design detail responds acceptably to the existing character and the neighbourhood character objectives for the following reasons:

1. The materials and finishes include PGH Bricks; Stria horizontal cladding; Axon smooth vertical cladding and Sotted Gum deck posts which enable the dwelling to be read as having a 'lightweight coastal image' and avoids a 'typical suburban' or 'historic replica' appearance. This is consistent with relevant neighbourhood character objectives within NCO3;
2. It uses natural colours including Shale Grey and Basalt to allow the building to blend in with the emerging landscape;

1. The split skillion roof profile and contemporary design is reflective of the coastal location of the land and is similar to more recent development in nearby streets. It interprets attributes of classic beach houses such as the skillion roof form and contributes to the preferred neighbourhood character of the area in a manner that complements, rather than replicates existing building styles; and

1. The two-storey built form has been designed to provide an articulated building form through the use of variation in the roof form; the setbacks, and the materials and finishes which assist to reduce the overall visual bulk of the dwelling.

53 The development triggers a requirement for a permit under the BMO2. The schedule to BMO2 specifies requirements to be met with respect to an application to construct a single dwelling on a lot, including construction to BAL-29; defendable space to be managed as specified in clause 5.0; a static water supply to be provided in accordance with Clause 53.02 and vehicle access according to Clause 53.02. If these requirements are not met, the requirements of Clause 53.02 apply.

54 No issue was raised by the parties with respect to bushfire planning. I note that whilst there is a water tank shown on the application plans, there is no information on the plans that I can ascertain regarding the static water supply for fire-fighting purposes. Taking this into account, in addition to the standard condition required under Clause 44.06-5 of the Scheme, I will require a condition that all requirements at Clause 5.0 of Schedule 2 to BMO2 be clearly depicted on the endorsed plans, including a static water supply to be provided in accordance with Clause 53.02.

55 I have generally adopted the conditions within the notice of decision subject to changes which reflect the findings in this decision including a condition requiring a landscaping plan and requirements to be met under BMO2. In addition, I consider it appropriate to require the plans to be amended to show levels to the Australian Height Datum, and I have included a condition requiring the same.

56 For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

• Construct a building and construct and carry out works in the Neighbourhood Character Overlay, Schedule 3;
• Construct a building and construct and carry out works associated with a dwelling in the Bushfire Management Overlay, Schedule 2.

1 Before the development 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 generally in accordance with the plans submitted with the application but modified to show:

(a) The plans must clearly show that the dwelling is to be constructed to BAL-29;

(b) Defendable space is to be shown on the plans for a distance of 30 metres around the dwelling or to the property boundary, whichever is the lesser and shown to be maintained in accordance with the vegetation management requirements of Clause 53.02;

(c) A static water supply must be shown on the plans in accordance with the requirements of Clause 53.02;

(d) Vehicle access must be shown on the plans in accordance with Clause 53.02;

(e) Levels to the Australian Height Datum, clearly showing the existing and finished ground levels, finished floor levels and the maximum building height (being 7.43 metres above the existing ground level).

2 The development as shown on the endorsed plans must not be altered unless with the prior written consent of the responsible authority.

3 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions. The landscape plan must be generally in accordance with the 'Landscape concept plan: 64 Parker Street, Anglesea' except that the plan must be modified to show:

(a) A survey (including botanical names) of all existing vegetation to be retained and/or removed;

(b) Details of surface finishes of pathways and driveways;

(c) A planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;

(d) Defendable space is to be provided for a distance of 30 metres around the dwelling or to the property boundary, whichever is the lesser and maintained in accordance with the vegetation management requirements of Clause 53.02;

(e) Except in the location of the proposed driveway, retention of the existing vegetation at the north-west and south east ends of the land and location of the new planting in other locations within the front and rear setbacks, if this can be achieved whilst meeting the vegetation management requirements at Clause 53.02;

(f) All species selected must be to the satisfaction of the responsible authority.

4 All species selected must be to the satisfaction of the responsible authority. Before the occupation of the development or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

5 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

6 Before the development starts, an amended bushfire management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions. The bushfire management plan must be generally in accordance with the Bushfire Management Plan entitled '64 Parker Street, Anglesea, Bushfire Management Plan for a proposed dwelling' prepared by Beacon Ecological (version V1, 6 December 2019) except that the plan must be modified to show:

(b) Defendable space is to be provided for a distance of 30 metres around the dwelling or to the property boundary, whichever is the lesser and maintained in accordance with the vegetation management requirements of Clause 53.02;

(c) A static water supply must be provided in accordance with Clause 53.02;

(d) Vehicle access must be provided in accordance with Clause 53.02.

7 The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.

8 A written statement from a licensed surveyor shall be submitted for approval to the responsible authority confirming:

(a) That the building has been set out in accordance with the endorsed plan; and

(b) That the roof levels will not exceed the roof levels specified on the endorsed plan.

The statement shall be submitted to the responsible authority at completion of the frame of the building.

9 The maximum building height of the development must not exceed the maximum building height in accordance with the endorsed plans and to the satisfaction of the responsible authority.

10 Before the occupation of the development, the area(s) set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

(b) properly formed to such levels that they can be used in accordance with the plans;

to the satisfaction of the responsible authority. Car spaces, access lanes and driveways must be kept available for these purposes at all times.

11 No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.

12 This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issue date of this permit.

(b) The development is not completed within four (4) years of the issue date of this permit.

In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Mrocki v Bayside CC [2015] VCAT 1371 [44], Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 at [14].

[4] Following the hearing, Amendment C136 to the Scheme was gazetted on 10 June 2021. In the context of this matter, the Council advised that Amendment C136 is 'policy neutral' and further submissions from the parties regarding Amendment C136 were not sought from the parties.

[5] Government Land Standing Advisory Committee. Tranche 7 Report. 69B Harvey Street, Anglesea. 3 August 2017.

[6] [2016] VCAT 1954.

[7] See Shire of Gisborne v King & Anor [1994] VicRp 23; [1994] 1 VR 364; Benedetti v Moonee Valley CC [2005] VCAT 1580; Wake v Mornington Peninsula SC [2018] VCAT 1417; Ostojic v Greater Geelong CC [2020] VCAT 333.