The order of the Tribunal is that the decision by the Morningtion Peninsula Shire Council to refuse to grant a planning permit for the construction of a tennis court on land known as 4 Greenwood Avenue Sorrento is affirmed. The Tribunal directs that a permit must not be granted in relation to application for planning permit POO2158.

Mr Sommu Sourivong, Planner, on behalf of the Mornington Peninsula Shire Council.

Ms Michelle Quigley of Counsel, instructed by Urbis consultants, appeared on behalf of the Respondent Objectors. She called the following witnesses:

Mr Martin Verhoeven, Planning Consultant, appeared on behalf of the applicant for review / permit applicant. He called the following witness:

Mr Keith Edwards, Landscape Consultant, Dierama Design P/L

1. This application for review was made by Kevin McNamara pursuant to section 77 of the Planning and Environment Act in relation to the Mornington Peninsula Shire Council's refusal to grant a permit for the construction of a tennis court and associated works, at 4 Greenwood Avenue Sorrento.

2. The submission on behalf of the Responsible Authority described the site and surroundings as follows:

The appeal site is described as Lot6 on LP 54499. The appeal site is a rectangular shaped lot. The lot is located on the north side of Greenwood Avenue. The lot has a frontage of 21m with a depth to the west boundary of 62.3 m and 69.4m respectively to the east boundary. The overall site area of the lot is over 1300m2.

The land rises steeply from the south with the northern portion of the lot being of a flat gradient. There is an approximate rise of 6m from the front of the property (south boundary) to the front of the existing dwelling (north side boundary).

On site currently is a weatherboard single storey dwelling (beige). The dwelling is located at the rear of the land. There is a gravel driveway on the west boundary of the land. There are tea trees located on the front of the allotment. The tea trees are scattered with the majority in average to poor health. There are also pines at the back of the dwelling.

The appeal site is located within a residential area of Sorrento. Greenwood Avenue is accessed from Point Nepean Road. Greenwood Avenue has a coastal village type atmosphere with its unmade road and a strong landscape outlook. Greenwood Avenue is located within a short distance from Sorrento's commercial precinct, parks and sporting facilities. The majority of dwellings in Greenwood Avenue are set well back towards the rear of the land.

A single storey dwelling with a tennis court at the rear. The allotment is well vegetated.

A double storey dwelling well vegetated on all boundaries.

A single storey dwelling. The land was well vegetated on all boundaries upon first site inspection (17/11/2000). Vegetation along the west boundary has since been removed.

4. The Tribunal has inspected the review site and surroundings.

5. In their submission the Responsible Authority provided a description of the proposal as follows:

The proposal is for the construction of the tennis court within the southern portion of the land.

The main features of the proposed development includes:

A 2 m setback from Greenwood Avenue and 1 m from the east boundary.

The dimension of the proposed tennis court is 15.2 m in width and 30.5 m in length.

A fill of 1.85 m on the southwest corner and 1.35 m on the southeast corner.

Maximum excavation of 2.25 m on the northwest corner and 1.8 m on the northeast corner.

A 3 m high black pvc coated fence for the court's perimeter.

A stone retaining wall with a' maximum wall of 1 m on the southeast side boundary.

A mass rock retaining wall with height varying from 900 min to 1.7 m on the southwest, northwest, north and northeast side of the proposed tennis court.

A 40-degree batter on the far southern portion of the proposed tennis court.

Landscaping provided to the south and east boundaries.

It is noted that amended plans have been submitted to the Responsible Authority and other interested parties prior to the hearing today. The amended plans show the following changes to the proposed tennis court assessed by the Responsible Authority on April 9 2001.

Excavation of 2.15 m on the northwest corner and 1.7 m on the northeast corner.

A 1 m high mesh fence draw curtain over the southern perimeter and western side of the proposed tennis court .(the Tribunal notes that the plans show the words "1m mesh fence draw curtain over")

The extension of the mass rock retaining wall on the southwest corner towards the east side boundary.

Landscaping provided to the south, east, west and northern lawn area.

All vegetation on the southern portion of the land proposed to be removed.

6. Mr Sourivong's submission contained the following with respect to advertising and objections:

Notice of application was given by registered mail to adjoining and opposite landowners and by a notice placed on site. Three objections were received.

The main grounds of objections are summarised as follows:

The location of the proposed tennis court is inappropriate and will have a detrimental impact on the existing streetscape.

The setbacks of the proposed tennis court is inappropriate (front and side).

The proposed tennis court does not meet the objectives of Vegetation Protection Overlay 1 and Design and Development Overlay 2.

There is insufficient land to site a tennis court and provide adequate landscaping.

A PAC was held on March 22 2 00 1. The issues raised at the meeting are summarised as follows:

Front setback variation is inappropriate and does not meet the objectives of Design and Development Overlay 2.

Not enough site area to locate tennis court within the land.

Physical impact of the proposed development on the existing streetscape.

The proposed development will be an overdevelopment of the site.

7. The Mornington Peninsula Shire Council refused the planning permit application on the following grounds:

The siting and prominence of the proposed development is considered inappropriate and out of character with surrounding streetscape and areas.

The proposed development will have substantial impact on the amenity of the existing streetscape.

The proposed development is inconsistent with the objectives of Vegetation Protection Overlay 1 (Township Vegetation).

The proposed development satisfactorily fails to meet the siting and design requirements of the Design and Development Overlay 2 (Bayside and Village Design).

The proposed development fails to meet performance requirements E1.3.1, E3.3.2 and E4.3.1 of the Code of Practice - Private Tennis Court Development.

8. The Applicants for Review /Permit Applicants lodged an application for review on the following grounds :

The proposed tennis court is sited and design to satisfy the intent of the Design and Development Overlay and the Code of Practice for Private Tennis Courts.

The development has limited effect on existing vegetation and includes new planting and landscaping to meet the objectives of the Vegetation Overlay.

As a consequence there is no significant effect on the streetscape or the character of the area.

9. The development and use of the site is controlled by the Mornington Peninsula Shire Planning Scheme and the land is zoned Residential 1. A detailed description of the relevant controls was provided in the submission on behalf of the Responsible Authority. This submission is attached to the Tribunal file.

10. Relevant State Planning Policy including Clause, 19.03 Design and Built Form .

11. The particular provision for Private Tennis Courts at Clause 52.21 applies to the review proposal. Pursuant to this provision a permit is not required to construct a private tennis court if the performance requirements specified in the Code of Practice - Private Tennis Court Development 1999 are met.

12. No permit is required in the Residential 1 zone for the use of the review site for the purpose of a tennis court associated with a dwelling.

13. A permit is required under the Design and Development Overlay Schedule 2 (Bayside and Village Design) in relation to the proposed variation to the front setback, excavation and fill.

14. A permit is also required to remove, destroy or lop vegetation, with the exception of exempted vegetation, on land affected by the Vegetation Protection Overlay -Schedule 1 (Township Vegetation).

15. Full copies of the overlay schedules were provided as appendices to Mr Blythe's report.

16. The Municipal Strategic Statement contains policy statements relevant to the permit application. Excerpts were provided by the Responsible Authority and are attached to the Tribunal file.

17. The main issues raised in this application for review relate to whether or not a tennis court as proposed would be appropriate in terms of the relevant objectives and provisions of the Design and Development Overlay Schedule 2 (Bayside and Village Design) and the Vegetation Protection Overlay -Schedule 1 (Township Vegetation) and in terms of local planning policy.

18. Relevant objectives of the Design and Development Overlay were highlighted by Mr Blythe as follows:

To recognise areas where substantial vegetation cover is a dominant feature of the local area by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space

To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.

19. The Tribunal noted form Mr Verhoeven's submission that the Mornington Peninsula Planning Scheme Clause 21.07-2 states that the concept of local character is still in the process of being defined and translated into operative planning principles and provisions. A key factor of local area character in Mornington and Sorrento is described, however, at Clause 21.07-2 as being the balance between open space, built form and vegetation. The Clause goes on to distinguish between areas where the streetscape is defined and enclosed by buildings in contrast to areas where open space, built form and vegetation are dominant and provide a setting for buildings.

20. While there is an informal grassed and partially planted area in the road reservation outside the review site, this planting is almost indistinguishable from the relatively open and gently undulating unfenced front lawn and vegetation within the review site.

21. The immediately adjoining allotments have either low or no fences on the north side of Greenwood Avenue. Mr Verhoeven drew the Tribunal's attention to the more hard edged development at the western end of Greenwood Avenue. During the inspection the Tribunal noted that the part of Greenwood Avenue containing the review site is not visually connected with the more suburban area at the end of the street due to a change in level and direction of the street and the informal vegetation in the vicinity of the site.

22. Ms Frank Mas was of the opinion that lengthy formal rows of planting are not part of the landscape in the immediate environs of 4 Greenwood Avenue. The Tribunal notes that planting varies but occurs in informal groupings ,such as in the road reserve immediately opposite the driveway entry to 4 and 6 Greenwood Avenue, and in the garden of 6 Greenwood Avenue. Informal planting also predominates in the front gardens in the vicinity of 4 Greenwood Avenue. There is also no formal pattern for the large cypress trees, which form a large scale landscape feature along the road reserve.

23. No elevations were provided as part of the application plans to show the impact of the review proposal on the street with the draw curtains closed. The plans show a section AA which indicates that 3 m high black PVC side fences would be set between 1700mm and 900mm above natural ground. While landscaping of the batter slope would provide some visual improvement it would take considerable time for the vegetation to reach a height that would provide screening. Further, heavy vegetation at the front of the review site would contrast with the more open appearance at the front of neighbouring properties. Despite the potentially temporary nature of the proposed draw curtain fencing above the batter and 1m fence, the difficulty is that during weekends and vacation times when the court is most likely to be in use with the curtains closed, the neighbouring houses are most likely to be occupied.

24. Mr Verhoeven submitted a cross section diagram at the hearing depicting the effect of the tennis court from the side. The Tribunal considered that the opportunity for written submissions in relation to this diagram should be provided and Mr Blythe responded on behalf of the objectors as follows:

It is the objectors' submission that little or no weight should be attached to this diagram for the following reasons:

* It was not put to our clients' planning witness during cross-examination

* The diagram is a spurious comparison. The existing house has recently been constructed by the current owner at the rear of the site with the future intention of siting a tennis court at the front of the site. It is quite clear that the owner has always intended to develop the land in this way. However in our submission the owner has left inadequate space for the siting of a tennis court in the front setback area. There is no `as-of-right' opportunity to construct a second dwelling on the allotment. It would be subject to a planning permit.

* The diagram is misleading in that the floor level of the diagrammatic house is lower than the proposed tennis court level.

* A planning permit for a single house development at a minimum setback of 7.5 metres from the street frontage may require a planning permit in any event a s the extent of cut and fill would exceed 1 metre in depth.

24. While noting the above concerns regarding the accuracy of the diagram, the Tribunal considers that it shows that the elevated surfaced tennis court protruding outside the envelope would not allow for similar landscaping to that which would be possible in front of a dwelling commencing 7.5m from the title boundary. In addition the appearance of the elevated black mesh fence from the side is shown only in outline. The diagram shows that prior to the establishment of any screening vegetation, relatively unimpeded views of the elevated or filled part of the tennis court base would be likely from the front of the adjoining property to the west, where there is little existing screening vegetation. Given the location in the relatively narrow strip beside the driveway at the review site Ms Frank Mas was not satisfied that the native planting proposed along the western boundaries would survive and grow into an effective screen. Mr Edwards stated that the Responsible Authority requires 80% indigenous vegetation and was of the view that a screen could be established within 3 to 5 years. Mr Edward's view, that native vegetation would be appropriate in terms of local requirements and ease of maintenance, is acknowledged. However having considered Ms Frak-Mas evidence, the Tribunal is not convinced that the particular vegetation proposed and the limited width of the planting strip at the side of the driveway would result in an effective landscape screen of the elevated front portion of the proposed tennis court. Ms Frank-Mas was of the opinion that the space allocated for planting along the east and west boundaries is too narrow to support indigenous species of the ultimate height and spread proposed. Further, she considered that the introduction of long hedges would represent a titular demarcation in contrast to the locality's informally blending gardens.

25. Mr Verhoeven pointed out that oblique views towards the site from Greenwood Avenue are screened by large cypress trees. The Tribunal considers that views from in front of the site are important particularly as the meandering and unmade nature of Greenwood Ave results in vehicles travelling slowly along the street. In addition the Tribunal would expect that pedestrians would have sufficient time to view the proposed structures. Ms Frank Mas gave evidence that the vegetation proposed at the front of the site would be unlikely to mature and form an effective screen for some 5-10 years and that a dense screen would not be in keeping with landscape character of the north side of Greenwood Avenue.

26. In this case the tennis court and the associated fences would be elevated above street level, due to both the fill required and the rise in natural ground level, and would be located in an area where harder edged suburban development is not visible. The total height of the fences above street level would be more than 5m. The height above ground level of the structures at the front of the review site including fences and retaining walls or fill would be in the order of 4m to over 4.5m. These heights are considered to be too great at a setback of 3m to 5m from the front boundary and in the context of adjacent properties. In the view of the Tribunal this is not consistent with the objective of Schedule 1 to the Design and Development Overlay - Bayside and Village Design as follows:

To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.

27. The Tribunal accepts Ms Frank-Mas' concluding opinion that, despite the revised landscaping, a new tennis court as proposed would remain a visually insensitive structure owing to:

* Its major cut and fill earthworks within the sloping terrain

* Its rigid retaining walls within the gentle landform

* Its formal perimeter edges within an informal setting

* Its prominent `up front' and `up high' location within an otherwise receding landscape; and

* Its `built' appearance within natural surroundings

28. While acknowledging that a mesh fence is not a solid structure, the Tribunal is of the view that the combined impact of its elevation, and the difficulties with establishing appropriate landscaping in the limited areas available, would result in an unacceptable outcome in relation to particular location and the relevant objectives and requirements of the Planning Scheme.

29. The Tribunal will order that the decision of the Responsible Authority is affirmed. No permit is granted.