A permit must not be granted for a two lot subdivision together with the construction of a second dwelling in front of an existing dwelling on the lot and necessary vegetation removal at 160 Humphries Road, Mount Eliza.

Ms J Lardner by direct brief. Ms Lardner called the following expert witnesses to give evidence:

•

Mr Rick Traficante, town planner

•

Mr Rob Galbraith, arborist

Mr N Harrison, town planning officer, Mornington Peninsula Shire Council.

Ms Barbara Hill, President, Mount Eliza Woodland Residents Association Inc, in person.

1 Council and objectors oppose this application for a two lot subdivision of 2,735 m2 of land together with the construction of a second dwelling (Dwelling 2) in front of an existing dwelling on the lot. Council failed to make a decision on the application within statutory time limits, but advised it would have refused the application.

2 The site has a frontage to Humphries Road of 26.4 metres, a sideage to Mathers Road of 77.6 metres and a depth of 60 metres. The existing house is set back 47 metres from its Humphries Road frontage, but only 3 metres from its Mathers Road sideage. The 47 metre front setback from Humphries Road is consistent with neighbouring dwellings, which are set back between at least 15 metres to 25 metres to the roads, making for their limited visibility and the dominance of woodland landscape.

3 It is proposed to set back Dwelling 2 only 10 metres from Humphries Road and 5.5 metres from Mathers Road. Dwelling 2 has been set much further forward on the site than nearby dwellings in the neighbourhood, in order to preserve Dwelling 1's privacy and amenity in respect of their swimming pool, which will sit between the two dwellings.

4 Objectors claim these reduced setbacks are contrary to neighbourhood character. Further, for a radius of 1.6 km, lots are not less than 2,500 m2 in area. Proposed dwelling 2 will sit on a lot size of 1,051 m2 with Lot 1 at 1,683m2.

5 There is no doubt that the muted and sympathetic colours of proposed dwelling 2, together with the fact that it is cut 1 metre into the ground for half its width to reduce its impact, are a positive contribution.

6 As there was no objection, the expert report by Rick Traficante, Planning Consultant, which mistakenly referred to VPO Schedule 2, is substituted with his corrected report which refers to VPO Schedule 1 and its objectives.

7 As there was no objection, the permit applicant substituted for the lodged plans, the following plans:

i

Site Plan and Proposed Floor Plan by Backline Drafting Services No. 04-137 Revision B, and

ii

Colours and Materials Schedule, and

iii

Landscape Plans by Rosewood Horticultural Services Sheets 1 and 2 of 2 dated October 2005.

8 I refused Ms Yates request to adjourn a decision in this matter pending the passage of a planning scheme amendment C68 through the Ministerial Panels process and the Minister for Planning's Department.

9 The surrounding area is predominantly one where dwellings are set amongst trees of varying types and sizes. It has a distinct woodland feel and character to it.

10 At its rear, the site abuts land in a Public Park and Recreation Zone, which contains indigenous vegetation. The front portion of the subject land is undeveloped and consists of both native and non-native tree planting.

11 The subject land is bounded along the frontage (Humphries Road) and along the Mather Road side by a 1.75m high treated pine fence. Views into the site from these perspectives are minimal. On the northern side and the rear fencing is of open post and wire at 1.9m in height. Fences in the area vary from paling, brick and open style.

12 The adjoining property to the northwest next door at 158 Humphries Road is a similar sized allotment containing a single storey brick residence with tiled roof. This residence is setback approximately 29m from Humphries Road, however a separate detached double garage is located forward of the dwelling and approximately 13m from the Humphries Road frontage of the site. The balance of this site contains minimal vegetation because it contains a pool and tennis court to the rear of the dwelling. The existing dwelling is setback 2.1m from the boundary of the subject site. A brick front fence 1.1m high runs along the frontage of this site.

13 This next door dwelling is indicative of the anomaly that occurs with a single dwelling under these same DDO4 and VPO1 controls, where vegetation removal is permitted for a single dwelling, leaving a heavily paved setback from Humphries Road and low landscaping in place of what once must have been as treed as the subject land. Its impact is the opposite to that sought by policy, which is to set buildings into the landscape, rather than see buildings surrounded by landscape. But the planning controls choose not to interfere with single dwellings on large lots.

14 Mr Galbraith attested to the poor health of most of the indigenous trees on the subject land, their limb drop, their torn branches, and deprivation of water leading to their demise. My site inspection confirmed the poor health of the indigenous eucalypts as a result of water deprivation.

15 Mr Galbraith's preference was for the proposed landscape plan to be amended by replacing the pittosporums with indigenous canopy trees in an attempt to recreate the woodland vista for which this area is valued. However, the plan as it was lodged, shows no more than shrub height plantings.

16 Mr Traficante also submitted that Dwelling 2 could be supplanted with additional indigenous treed canopy vegetation.

17 By permit P04/0663 issued 10 May 2004, the developer obtained council's approval for vegetation removal, as a result of which at least fifteen canopy trees were removed from the front setback with Humphries Road. A condition of that permit required their replacement, and they were replaced with at least ten eucalyptus trees and at least ten shrubs in completely different locations, at the far side and very rear of the site, and not visible from the roadside as would have been with the removed trees. The replacement trees were plant stock that were barely visible on my site inspection and will take a considerable time to reach maturity.

18 The site lies in a Residential 1 zone covered by a Design and Development Overlay Schedule 4 and a Vegetation Protection Overlay Schedule 1.

19 For a long time historically, the minimum subdivision size was 2,600 square metres. When the new VPP format planning schemes were introduced, these minimum subdivision criteria were moved into an overlay control, DDO4, under an R1 zone. This meant that lots greater than 2,600 square metres can be subdivided provided they are simultaneously developed with two dwellings.

20 Subdivision is permissible pursuant to cl. 3.0 of cl. 43.04 of the Planning Scheme, if it creates:

No more than two lots for every 2600 square metres of site area if the land is located east of Canadian Bay, Mt Eliza (other than between Jacksons Road and Williams Road, west of Watts Parade, Mt Eliza).

21 There was strong debate between Ms Yates and council, the latter saying that the meaning was Canadian Bay 'Road' and this is being corrected and strengthened in proposed Am C68 at a pending planning panel hearing in January 2006.

22 State Planning Policy clauses 12.01 and 12.05 emphasise the upholding of cultural heritage, natural features, landscape and vegetation.

23 Local Planning Policy clause 21.06 seeks to

maintain the existing transition area of low density residential development in Mount Eliza and the inter-urban break with Mornington, having regard to its particular environmental, landscape, township character and heritage values.

24 There is no "transition zone" in Mount Eliza between the residential 1 zone and The Green Wedge Zone. Transition only occurs through the DDOs.

25 In the area bounded by Nepean Highway, Canadian Bay Road, Humphries Road and Mooroduc Freeway (east of Canadian Bay Road), DDO4 is the sole and consistent density overlay control, whereas, west of Canadian Bay Road and Nepean Highway, there are a variety of different DDOs with varying densities for subdivision.

26 Also, Vegetation Protection Overlays are also applied to identify and preserve areas of particular environmental and landscape value.

27 At clause 21.07-2 Local Character Area, there is acknowledgement that not all established areas have the capacity to be further developed.

28 A key factor is the balance between open space, built form and vegetation. Retention of native vegetation of local provenance is an important factor to which regard must be had.

29 The VPO Schedule 1 stresses:

In these areas, the impression is of buildings within a landscape rather than of landscaping around buildings. This balance between natural or introduced vegetation and built form contributes substantially to local character. (Tribunal emphasis)

30 My site inspection confirmed this to be a perfectly accurate statement of local character.

31 Council advised that had this not been a review against their failure to decide within time limits, it would have refused this application for cumulative reasons of reduced setbacks and neighbourhood character:

The provision of generous setbacks and the retention of a significant number of canopy trees is a key feature of the neighbourhood character of the area. When considering the setbacks of dwelling on corner lots in the area it is considered that the combination of front and side setbacks is an important contributor to the character of the area and not just the individual front and side setback distances. In general, dwellings on corner lots in the area that are setback relatively close to one road frontage have a significant setback to the other road frontage.

This can be seen in the setbacks of the dwellings on the Corner of Humphries and Mather Roads. On the subject site the existing dwelling has a relatively small setback of 3 metres from Mather Road but has a very large setback of 55 metres from Humphries Road. On the opposite corner the dwelling at 162 Humphries Road is located only 11.5 metres from Humphries Road but has a large setback of 27 metres from Mather Road.

Dwellings located on corner lots in the area nearly all have a setback of at least 25 metres from either the side or front boundary and this includes dwellings which have been recently approved as second dwellings on corner lots.

It is considered that there are no other examples of dwellings in the area which have such a small setback to both the front boundary and the side boundary as the current proposal.

32 The principal issues for consideration are whether:

i

the addition of a second dwelling in front of an existing dwelling on a prominent corner position will be in harmony with the character of the neighbourhood?

ii

the impression will continue to be of buildings within a landscape rather than of landscaping around buildings?

iii

The balance between open space, built form and vegetation will be maintained?

33 To that end, I apply the following decision guidelines of the DDO4:

•

Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms, that follow the natural slope of the land and reduce the need for site excavation or filling.

•

The effect of any proposed subdivision or development on the environmental landscape values of site and of the local area....

34 I also apply the following decision guidelines of the VPO1:

•

The vegetation protection objectives of this schedule.

•

The value of the native vegetation to be removed in terms of its habitat, landscape and environmental values, age, physical condition, rarity or variety.

•

Whether there is any reasonable alternative means of siting buildings and works in order to conserve the native vegetation of the area.

•

The benefit of conditions requiring planting, replanting and other treatment of the land, having regard to the relationship between buildings and the landscape and the maintenance, where possible, of shared view lines.

•

The need for replacement vegetation to be of an appropriate species and to exclude environmental weeds.

35 There are two primary reasons for my refusal of this proposal, and they are the combination of inadequate setbacks and inadequate remnant space around the proposed dwelling for replacement woodland planting.

36 I accept the arboreal evidence that although the house necessitates the removal of some 13 canopy native trees, other trees can remain, which looks good on plan. But the reality is that given their proximity to Dwelling 2, they could be removed in the future for risk of limb drop and public safety or risk of damage to property. This can occur without planning permission pursuant to the VPO cl. 42.02-2.

37 Further, the reduced 10 and 5.5 metre setbacks are totally out of character with the surrounds, and will make the dwelling, single storey as it is, noticeable instead of 'buildings within a landscape'. In other words, the opposite of policy will be achieved with the proposal. The neighbourhood, with the exception of 158 Humphries Road next door, emits glimpses of dwellings only, amidst the canopy treed woodland cover.

38 I accept that a second dwelling can fit onto this site, but it would have to be located much closer to the existing dwelling, so the woodland setting is re-created rather than diminished. The 5.5 metre setback from Mathers Road and the 10 metre setback from Humphries Road are clearly inadequate, as 158 next door illustrates. That garage, which is setback at 13 metres, and that house, is much more visible that any of the surrounding homes.

39 I repeat the words of Bennett M in Holmes v Mornington Peninsula SC[1] where DDO4 also applied:

I am less enthusiastic about how practical it is to actually place a second house on this site. If the existing lot could be subdivided almost equally into similar sized lots ..... then the second dwelling could be readily sited on the lot with generous boundary setbacks, large areas for landscaping and minimal adverse impacts on existing character or on neighbouring properties. However because of the siting of the existing house around the middle of the lot, it is not possible to do this. The result is a small second lot that is unable to provide satisfactory siting for a relatively large dwelling without adverse impacts on neighbourhood character and on neighbouring properties because of excessive visual bulk and scale. The issue of neighbourhood character is a major theme running through planning policy...

40 In that case, the existing dwelling was located in the middle of the block, which is not the case here. Setting dwelling no.2 much closer to dwelling 1 and also further from Mather Road, might assist towards preserving both a woodland feel to the neighbourhood and keeping the setting of buildings within a landscape rather than landscape around buildings. There really is a difference and my site inspection confirmed this for this immediate locality.

41 Accordingly I disallow the application for review and direct that no permit issue.

[1] [2003] VCAT 1969