1. The applicant is critical of the areas of secluded private open space provided for each dwelling, and submits that insufficient areas are provided when one has regards to the size of the respective decks for each dwelling. The applicant also raises a concern regarding the effect of screening above a fence between the two dwellings proposed for the review site, on the solar access to the north facing windows in the rear dwelling.
2. I am not persuaded by the applicant's submission that I should only have regard to the size of the decks, when one calculates the size of the areas of secluded private open space for each dwelling. Such a submission is not supported by Standard B28, as found at Clause 55.05-4 of the Surf Coast Planning Scheme. Further, Clause 73.01 provides the following definitions:

Private Open Space

An outdoor area of a dwelling or residential building or land for the exclusive use of the occupants.

Secluded Private Open Space

That part of private open space primarily intended for outdoor living activities which enjoys a reasonable amount of privacy.

1. Neither of these definitions seek to exclude landscaping areas. Further, the provisions of Schedule 22 to the Design and Development Overlay encourage the retention and planting of vegetation within areas of private open space. For these reasons I find that the calculated areas of private open space and secluded private open space should also include the areas provided for landscaping.
2. The proposed front dwelling is to be provided with private open space in the form of a deck with an area of 36 square metres, and a minimum dimension of 4.0 metres, as well as a courtyard with an area of 14 square metres and a minimum dimension of 3.21 metres. These areas satisfy Standard B28. Additional areas are provided to the south and east of that dwelling, as well as the front setback, which results in a total provision of 169.3 square metres of private open space for the front dwelling.
3. The proposed rear dwelling is to be provided with a private open space area of 50.5 square metres with a minimum dimension of 6.0 metres. Additional areas are provided to the south and east of that dwelling, including an area to the south of the dwelling with a minimum dimension of 2.56 metres. A total of 145.4 square metres of private open space is provided for the rear dwelling.
4. Schedule 22 to the Design and Development Overlay contains the following provision.

• An area of at least 80 square metres of private open space should be provided for each dwelling, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling with a minimum area of 50 square metres, a minimum dimension of 5 metres and convenient access from a living room.
• Secluded private open space within front setback areas should be avoided.

1. In relation to this provision, both of the proposed dwellings provide more than 80 square metres of private open space, and none of the secluded private open space is contained within the front setback. The proposed rear dwelling also has an area which meets the required minimum 50 square metres with a minimum dimension of 5 metres. While the proposed front dwelling does not meet this part of the provision, I am satisfied that its main deck will be a highly usable and functional area of private open space, that will more than adequately meet the reasonable recreation needs of residents. I am also satisfied that this deck will be well used, despite the fact that it will be open to views from the street. The presence of decks that are open to views from the street is common on the surrounding and nearby properties, and reflects the broader views that are accessible in parts of this neighbourhood. For these reasons I am not persuaded by the applicant's submissions that this deck should be screened from views from the public realm.
2. The applicant also submits that the area of secluded private open space for the proposed rear dwelling will not receive an appropriate level of solar access. To the contrary, the shadow diagrams that form a part of the amended plans demonstrate that the deck to the proposed rear dwelling will receive excellent levels of solar access at the equinox.
3. Finally, the applicant also raises a concern regarding the solar access to the north facing living room windows in the proposed rear dwelling for the review site. The shadow diagrams that form a part of the proposal demonstrate that these windows will be in full sun between 9:00am and 3:00pm at the equinox. While there is some doubt as to whether these shadow diagrams depict the shadow cast by the proposed boundary screen, the height of this screen at a maximum height of 3.59 metres[9] above the natural ground level, is not capable of casting a shadow at the equinox to north facing windows which are setback either 4.5 or 5.6 metres from these screens, and which themselves are set up to 795mm[10] above the natural ground level. For these reasons I am not persuaded by the applicant's submissions.
4. Turning to other matters, I find that the proposed dwellings will provide an appropriate level of amenity for future residents. I make this finding having regard to the size of the individual rooms, their ability to receive appropriate levels of daylight and solar access, the high standard of architectural design applied to the proposed dwellings, and the convenient car parking provided on site.

DOES THE PROPOSAL APPROPRIATELY PROVIDE FOR CAR PARKING AND TRAFFIC MOVEMENTS?

1. The application provides two car parking spaces per dwelling, which meets the required level of car parking set out at Clause 52.06 of the Surf Coast Planning Scheme. While the proposed car parking for each dwelling is in a tandem arrangement, the provision of car parking in this manner is supported by Clause 52.06 of the Surf Coast Planning Scheme.
2. The applicant submits that the car parking for the proposed front dwelling is not convenient, noting the distance one has to travel form the front door of the dwelling, to the undercroft car parking area. They also raise a concern regarding the changes in levels that need to be traversed, and the absence of a ramp at a grade suitable for people with limited mobility. I am not persuaded by these submissions, for the following reasons. Firstly, the proposed front dwelling has a more direct and convenient path of access to the car space, via the sliding door to the siting room and the front deck, that the applicant has not considered. This route will provide convenient access to the proposed car parking spaces. Secondly, the Surf Coast Planning Scheme does not require graded pedestrian access to car parking spaces for individual dwellings. Further, in a neighbourhood such as this with a consistent sloping topography, it will often not be possible to provide such access. Any future owners or occupiers of the proposed front dwelling will be able to make a choice as to whether the deign meets their access needs.
3. The proposal provides vehicle access which will allow for safe and efficient vehicle movements to and from the review site. The front dwelling will utilise the existing crossover, with cars accessing directly off Kings Court in a similar manner to that which currently occurs. While this will require vehicles to reverse onto Kings Court, this is acceptable for a single dwelling comprising two car parking spaces, is consistent with Clause 52.06-9 of the Surf Coast Planning Scheme, and reflects what occurs for other dwellings in this street.
4. The rear dwelling will utilise the common driveway at 5 Kings Court, which will allow those vehicles to enter and exit the site in a forward motion.
5. For these reasons I find that the proposed development appropriately provides for car parking and traffic movements.

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

• The subdivision of land
• The construction of two dwellings on a lot
• To construct a building and construct or carry out works

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 prepared by Studio 35 Architecture (Drawing Nos TP00 to TP19 dated 12 May 2023, except that plans TP06 to TP09, TP15 and TP16 are all dated 8 March 2023), and Plan of Subdivision PS916464Y prepared by St Quentin (Sheets and 2 of 2) but modified to show:

(a) Correct revision date for the plans;

(b) Maximum building height notated on all elevations;

(c) Subdivision plan to clearly state purpose of Easement 'E-2';

(d) All boundary fence heights shown on site plan and detail of all proposed fence screening;

(e) Notation of six cubic metres of storage shown for each dwelling on the site plan.

(f) Reduction of the rear deck of dwelling 2 to be located outside of Easement 'E-2' on the proposed plan of subdivision, unless a build over consent is granted by Barwon Water;

(g) Relocation of the hot water service for dwelling 2 to the eastern elevation of the dwelling

1. The development and subdivision as shown on the endorsed plans must not be altered unless with the prior written consent of the responsible authority.
2. Before the development starts, three copies of 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 this permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must be generally in accordance with that prepared by Zenith Concepts Pty Ltd (dated 7 March 2023 (Revision A)) and show:

(a) a survey (including botanical names) of all existing vegetation to be retained and/or removed; > > (b) buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary; > > (c) details of surface finishes of pathways and driveways; > > (d) 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; > > (e) landscaping and planting within all open areas of the site; > > (f) one canopy tree in the front setback; > > (g) only the use of plant species indigenous to the locality.

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

1. Unless with the prior written consent of the responsible authority, before the occupation of the development, the landscaping works shown on the endorsed plans must be carried out, completed and maintained to the satisfaction of the responsible authority. The landscaping must be maintained for the life of the development, including that any dead, diseased, dying or damaged landscaping must be replaced with like for like vegetation of the same or greater size (unless otherwise agreed in writing by the Responsible Authority).
2. Prior to the certification of the plan of subdivision and the commencement of any development works authorised by this permit, the introduction of the proposed lots to Owners Corporation PS849501 must be finalised and a copy of the new Owners Corporation Schedule submitted to the Responsible Authority.
3. Prior to the commencement of the development, a construction management plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. The construction management plan must describe how the site will be managed prior to and during the construction period and set out requirements for managing:

(a) Erosion and sediment. > > (b) Stormwater. > > (c) Litter, concrete and other construction wastes. > > (d) Chemical contamination.

4. Prior to the commencement of the development, a stormwater management plan to the satisfaction of the Responsible Authority must be submitted to and approved by the responsible authority. The stormwater system should be designed to:

(a) Ensure that flows downstream of the site are restricted to pre-developed levels > > (b) Meet the current best practice performance objectives for stormwater quality as contained in the Urban Stormwater - Best Practice Environmental Management Guidelines (Victorian Stormwater Committee, 1999). > > (c) Contribute to cooling, improving local habitat and providing attractive and enjoyable spaces. > > (d) Connect to council infrastructure

When approved, the plan will be endorsed and will then form part of this permit.

1. Prior to the commencement of the development, or such later time as may be agreed in writing by the Responsible Authority, a Development Infrastructure Levy must be paid to the Collecting Agency (Surf Coast Shire Council) based on the net change in demand units in accordance with the provisions of the incorporated Torquay - Jan Juc Development Contributions Plan applying to the land.
2. 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:

(a) constructed > > (b) properly formed to such levels that they can be used in accordance with the plans > > (c) surfaced with an all-weather-seal coat > > (d) drained

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

1. Unless otherwise agreed in writing by the Responsible Authority, the Plan of Subdivision submitted for certification must also include an expressed drainage easement on Lot 1 in favour of Lot 2, from the benefiting allotment to the nominated legal point of discharge. This expressed easement must be created to the satisfaction of the Responsible Authority.
2. The Plan of Subdivision submitted for certification must include all easements deemed necessary to protect existing or future drainage lines within the subject site, and any easements required between the subject site and the nominated legal point of discharge must be created to the satisfaction of the Responsible Authority.
3. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) shall not be altered or modified without the written consent of the Responsible Authority. There are no requirements to alter or modify the endorsed plan if a plan is certified under the provisions of the Subdivision Act 1988 that is generally in accordance with the endorsed plans.
4. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas (where it is proposed to be connected) services to each lot shown on the endorsed plan in accordance with the authority's requirements and relevant legislation at the time.
5. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
6. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
7. The owner of the land must enter into an agreement with:

(a) a telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider's requirements and relevant legislation at the time; and > > (b) a suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

8. Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:

(a) a telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider's requirements and relevant legislation at the time; and > > (b) a suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.

9. Before a statement of compliance is issued under the Subdivision Act 1988 the applicant must:

(a) provide access to and drainage of each lot including those works shown on the endorsed Stormwater Management Plan; > > (b) pay the Development Infrastructure Levy to the Collecting Agency (Surf Coast Shire Council) based on the net change in demand units in accordance with the provisions of the incorporated Torquay- Jan Juc Development Contributions Plan applying to the land. The payment must be made after certification of the relevant plan of subdivision but not more than 21 days before a Statement of Compliance is issued under the Subdivision Act 1988;

1. Unless otherwise approved in writing by the Responsible Authority, prior to the issue of the Statement of Compliance:

(a) The development approved by Planning Permit 22/0036 must be substantially completed (eg. lockup stage as a minimum) in accordance with the endorsed plans forming part of that Planning Permit (or any amendment to that permit) to the satisfaction of the Responsible Authority. Evidence must be submitted which demonstrates that the development is substantially completed to the satisfaction of the Responsible Authority.

2. This permit as it relates to development (subdivision) will expire if one of the following circumstances applies:

(a) The plan of subdivision has not been certified within two (2) years of the issue date of this permit. > > (b) A statement of compliance is not issued within five (5) years of the date of certification.

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. 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 and evidence 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.

[2] These wall heights are either dimensioned on the east elevations (plans TP07 and TP09) or they have been electronically scaled off the plans using Bluebeam Revu.

[3] As electronically scaled off the plans using Bluebeam Revu.

[4] Noting that the adjoining dwelling to the south fronts Torquay Boulevard and as such does not have a front setback to Kings Court.

[6] Both of these measurements have been electronically measured off Plan TP02 using Bluebeam Revu.

[7] As found at Clause 55.04-6 of the Surf Coast Planning Scheme.

[8] As found at Clause 55.04-5 of the Surf Coast Planning Scheme.

[9] As scaled electronically off plan TP06 using Bluebeam Revu.