The vertical distance from natural ground level to the roof or parapet at any point.

Figure 3 - Extract from plan TP202 rev TP02 prepared by Architecture Caisson dated 21 November 2024, showing South East Elevation

1. The elevations indicate that the south east elevation of the proposed building has a maximum building height of 6.68 metres above NGL Standard A10 requires the first floor of the building to be setback a minimum of 1.92 metres from the boundary. Setbacks of the proposed dwelling range from 5.15 metres to the basement level to 9.63 metres to the roof, significantly exceeding the minimum setback requirements of the standard.
2. The then Clause 54 states that if an application complies with Standard A10 it is deemed to comply with the objective of Clause 54.04-1. As such, the visual impact of the proposal when viewed from the courtyard and swimming pool is deemed by the Mornington Peninsula Planning Scheme to be acceptable, despite the sunken nature of the courtyard.

1. Whilst the applicant conceded that conditions on the Notice of Decision addressed vires from the first floor balcony, they submit that overlooking from the alfresco area has not been addressed.
2. The plans indicate that the alfresco area, which will be constructed at a height of approximately 400 mm above ground level is proposed to be screened with a full height operable screen. The existing 1.5 metre timber fence is proposed to be retained.
3. Clause 54.04-6 provides the following overlooking objective:

To limit views into existing secluded private open space and habitable room windows.

1. Standard A15 provides the standard measures to limit overlooking. These state:

This standard does not apply to a new habitable room window, balcony, terrace, deck or patio which faces a property boundary where there is a visual barrier at least 1.8 metres high and the floor level of the habitable room, balcony, terrace, deck or patio is less than 0.8 metres above ground level at the boundary.

1. The alfresco area is less than 0.8 metres above ground level but the visual barrier in this case the fence is less than 1.8 metres high, and therefore the application is seeking a variation to the standard.
2. Whilst this issue is typically addressed by raising the height of the fence, this method was resisted by the applicant for review, as they did not wish to have a tall boundary in proximity to the pool.
3. Given the distance from the boundary and the presence of the fence, it is likely that a sight line diagram would demonstrate that the pool is not overlooked within 9 metres of the alfresco area. I have required the preparation of a site line diagram that demonstrates the extent of views from the alfresco area and whether the existing fence prevents views of the pool. If in the unlikely event the pool is overlooked, given the choice to use an operable screen, it may be possible for the screen to be fixed to a certain height to prevent downward views towards the pool. I have required this as a condition of permit.
4. With this condition in place, I am satisfied that the proposal will meet the objective to the standard of limiting views into the neighbouring property.

1. Draft conditions were discussed at the conclusion of the hearing, and any changes to those conditions reflect those discussions as well as findings of the Tribunal. I have included the Tribunal's standard expiry condition and deleted the notes.

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

Construct a building or construct or carry out works

1. Before the developments starts, amended 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. The plans must be generally in accordance with the plans submitted with the application but modified to show:

a) The setback of the first floor to Bowens Road increased to be a minimum of 7.5 metres to Bowen Road and any consequential design changes; > > b) The overall height of the building decreased to be a maximum of 7 metres and any consequential design changes. > > c) A note regarding the proposal for one set of bored piers acting as both the wall for the basement and running past the ground floor level to become the retaining wall for the surrounding sand. > > d) A note stating that all retaining walls are to be designed by a professionally qualified structural engineer to the recommendations of a geotechnical report. > > e) A landscaping plan prepared by a suitable landscape professional, that must show: > > 1. A survey (including botanical names) of all existing vegetation to be retained including Tree Protection Zones (TPZ), calculated in accordance with Australian Standard AS 4970-2009 Protection of trees on development sites; > 2. 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; > 3. A range of plant types from ground covers to large shrubs and trees; > 4. At least 2 canopy trees, 1 of which is capable of growing to a minimum height of 15 metres to be planted in the front setback; > 5. At least 4 trees to be planted on the site, one of which is capable of growing to a minimum height of 12 metres, and 1 of which is capable of growing to a minimum height of 8 metres, to be planted in the private open space; > 6. The delineation of all excavation, garden beds, paving, grassed areas, retaining walls, fences and other landscape works; > 7. Landscaping and planting within all open areas of the site; > 8. At least 50% species selection by type and number must be indigenous to the local Ecological Vegetation Class (Coastal Alkaline Scrub) to the satisfaction of the Responsible Authority. > 9. All trees must to be installed at a minimum height when planted of 1.5 metres and shrubs installed at a minimum pot size of 150mm. > 10. No trees with a mature height over five (5) meters are to be planted over proposed or existing easements; and > 11. The provision of notes regarding site preparation, planting instructions, plant establishment procedures and any specific maintenance requirements. > > f) Overlooking diagrams demonstrating compliance with standard A15 (Overlooking) of Clause 54.04-6 of the Mornington Peninsula Shire Planning Scheme for: > > 1. Views from the entirety of the north-eastern edge of the terrace area (excluding pool edge) to the adjoining property being Lot 1 on PS804755M. > 2. Views from the south west facing first floor windows. > 3. Views from the south-eastern edge of the alfresco area towards the pool area of 17 Hiskens Street

Details of screening methods must be dimensioned and/or notated on the elevations. If measures are required to prevent overlooking from the alfresco area, the proposed operable screen on the south-eastern edge of the alfresco area is to be fixed to the height required to prevent overlooking of the pool area.

g) Revised floor plans to clearly show all proposed windows.

h) The 1.7m high screen to the first floor balcony to extend around the south western edge of the proposed planter box in order to further screen views to the south east.

1. All proposed and retained fences (including materials and heights).

j) Notation confirming the cladding type 01 is of low reflectivity.

1. The approved development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority (Unless otherwise specified by a condition of this permit, consent is not required for any buildings or works which do not require a planning permit under the Mornington Peninsula Planning Scheme).

1. Prior to the removal of the vegetation, the site must be inspected for signs of habitation by fauna. If wildlife are present when removing vegetation, only a suitably qualified wildlife handler or zoologist can handle wildlife to ensure it is not harmed. If displaced wildlife cannot be relocated on site to an appropriate location away from the construction footprint, or injured wildlife is captured, please contact DEECA on 136 186 for further advice.

1. The extent of clearing of vegetation as shown on the endorsed plans must not be altered or modified without the consent of the Responsible Authority.
2. All disturbed surfaces on the land must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. Prior to the occupation of the development (or other time agreed to in writing by the Responsible Authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority. The landscaping must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.

1. Prior to the commencement of any demolition, building or works, appropriate tree protection fencing, must be erected to the greatest extent practicable, around the Tree Protection Zones (TPZ) of the retained trees on the subject site. The tree protection fencing must be installed in accordance with the requirements of Australian Standard AS4970 - 2009 Protection of trees on development sites. The tree protection fencing must remain in place until the completion of any works hereby approved. Within the TPZ the following activities are prohibited unless shown on the endorsed plans or approved in writing by the Responsible Authority:

• excavation, trenching, placement of fill or soil level changes

• preparation of chemicals including preparation of cement products

• parking, refuelling pr cleaning of vehicles or plant

• temporary or permanent installation of utilities or signs

1. All excavation within the Tree Protection Zones (TPZ) of retained trees on the subject site and adjoining land must be undertaken using a method which is non-destructive to tree roots in compliance with Australian Standard AS 4970-2009 Protection of trees on development sites. Any tree roots which require pruning must be cut with a clean sharp cutting implement with a final cut to undamaged wood at an angle which minimises the size of the wound. No tree roots over 40mm in diameter are to be cut unless under the direct supervision of a Level 5 qualified Arborist. No tree roots critical to maintaining tree health, structure or viability are to be cut. These tree roots must be retained undamaged and alternative design and construction methods used.
2. Any pruning of trees must be undertaken to the minimum extent necessary in compliance with the procedures and practices described in Australian Standard AS 4373-2007 - Pruning of amenity trees.
3. No trenching or soil excavation is to occur within the Tree Protection Zones of retained trees during development unless shown on the endorsed plans, without the prior written consent of the Responsible Authority.
4. The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and are advised of any obligations in relation to the protection of those trees.

1. The materials and colours of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

1. Prior to the initial occupation of the dwelling external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.

1. All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.

1. Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.

1. All areas of the development being drained by means of an underground drainage system to retain a post-development 1% Annual Exceedance Probability storm event for the critical storm duration for the property. The design of this system is to be based on a site-specific soil percolation report, which will show the Saturated Hydraulic Conductivity and be prepared by a qualified geotechnical consultant. The Building Surveyor will provide an approval for the same.
2. The owner must operate and maintain the drainage works including the on-site storm water retention and treatment system at their cost and must allow the system to be inspected by an authorised officer of the Responsible Authority from time to time. The owner must not modify the on-site storm water detention and treatment system without prior written approval from the Responsible Authority.
3. All retaining walls are to be designed by a professionally qualified structural engineer taking into account the recommendations of a geotechnical report.

1. To ensure compliance with this permit a licensed surveyor's report confirming relative levels as shown on the approved plans with particular regard to the finished floor levels and roof levels must be submitted to the Responsible Authority within 14 days of the completion of the relevant floor(s) and roof. Floor levels and roof levels must not exceed those shown on the endorsed plans.
2. No further building and works or services normal to a dwelling, except those specifically required under the Building Act 1993, may exceed a heights shown on the endorsed plans without the further permission of the Responsible Authority.

1. A vehicular crossing must be provided to the standards of the Responsible Authority prior to the initial occupation of the development.
2. A driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority. It must be completed prior to the initial occupation of the development.
3. All disused or redundant vehicle crossings must be removed and the area reinstated with nature strip, kerb and channel, and footpath to the satisfaction of the Responsible Authority.

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 issued date of this permit.

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

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

1. [1] Clause 44.01-8 exempts an application under the EMO from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act. As such the Tribunal has no jurisdiction to consider this aspect of the proposal in this matter.

[2] 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.