Mr Rory O'Connor, solicitor, of Norton Rose Fulbright

Mr Oscar Orellana, town planner and council officer

It is proposed to construct a double storey dwelling with associated garage and vegetation removal.

The dwelling will be setback a minimum of 13 metres from the frontage, 3.1 metres from the north-west boundary, 3.43 from the south-east boundary in between 6.1 (to the lower deck) 12.11 (to the dwelling) metres from the rear boundary. The upper first floor will be 27.2 metres from the rear boundary.

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

A permit is required under the Design and Development Overlay

The land is located on the north-east side of Max Avenue, St Andrews Beach, approximately 25 metres south-east of Jack Street.

The site is generally rectangular in shape with a frontage of 18.29 metres and a depth of 47.24 metres. The site has an area of 864 sq m.

There is a significant fall across the land from the south-west to the north-east (front to rear). The fall is approximately 8 metres.

1. This is an application by Richard Middleton and Sara Ralph (the objectors) to review the decision of the Mornington Peninsula Shire Council to grant a permit for the construction of a detached house on land at 11 Max Avenue, St Andres Beach.
2. The objectors own and occupy the property next door to the north-west at 9 Max Avenue.

1. This is a case about a view which like so many cases of this type is basically to be decided by a view.
2. However, the impressions gained on a view must be evaluated through the prism set by the planning controls, so it is necessary to understand the controls and policies that apply in this case.

1. The subject land is located in the General Residential Zone - Schedule 1. The use of the land as a dwelling is permitted as of right, and because the area of the subject land is greater than 500 sq m a permit is not required for the construction of a dwelling.
2. It was common ground that in this case a permit is not required under the Vegetation Protection Overlay, and that the requirements of the Bushfire Management Overlay as satisfied by permit conditions.
3. A permit is required under the Design and Development Overlay - Schedule 4 if the general requirements set out at paragraph 2 of the Schedule are not met. In this case the proposal does not meet the general requirements in three respects.
   • The dwelling exceeds a wall height of 5.5m (7.89m).
   • It exceeds a building height of 6.0m (7.89m)
   • Excavation of the site at one location exceeds 1 metre (1.4m).
4. Apart from this the proposal satisfies the general requirements so it is these non-compliances that trigger the need for a permit.
5. It is arguable that the relevant considerations are confined to the consequences of these non-compliances ie what if the affect on the amenity of the objectors property of having wall and building heights greater than those specified (see National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd[1] and the cases cited therein). However, having regard to the recent decision of the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd[2] the prudent course is to have regard to all the matters referred to in the decision guidelines set out in paragraph 4 of the Schedule. These include the design objectives of the Schedule.

1. The design objectives relevantly include:
   • To recognise areas where substantial vegetation cover is a dominant visual and environmental 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, and to protect shared viewlines where reasonable and practical.
   • To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
2. The test of most direct application in this case is "to protect shared viewlines where reasonable and practical". It is not a question of the equitable sharing of the views. The question is whether the protection of a view is "reasonable" and "practical"..
3. The Tribunal has over many years established the principles underlying the application of this test. They are generally regarded as being accurately summarised in Healy v South Coast Shire Council[3] as follows:
   • (i) there is no legal right to a view;
   • (ii) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(iii) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(iv) in addressing the concept of "reasonableness", it is relevant to consider

(a) the importance of the view to be lost within the overall panorama available; and

(b) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(5) added emphasis will be placed on principles (ii) and (iii) above if the issue of views is specifically addressed in the planning scheme.

1. See also Tashounidis v Flinders Shire Council[4], Murphy v Mornington Peninsula Shire Council[5], Moyes v Mornington Peninsula Shire Council[6] and Van Hoff v Mornington Peninsula Shire Council[7].

1. One important factor that needs to be considered in determining whether the infringement upon a viewline is reasonable is the legitimacy of the expectation that the viewline will remain. Many views are enjoyed fortuitously simply because they are over private property which has not been developed. If the applicable planning controls permit development of that property the expectation of retention of the view is really no more than a hope.
2. One rider that should be added to this is where the person who has the view acquired the property at a time when the view was acknowledged and, to a greater or lesser extent, protected by the planning scheme. That is the position in the present case in which the objectors acquired their property at a time when the DDO was in force. They can legitimately say that they are entitled to rely on the directives of the planning scheme. This gives their expectations some legitimacy.
3. It all depends on the words of the planning scheme. A directive to equitably share a viewshed provides greater protection than one to protect shared view lines "where reasonable and practicable".

1. In this case the primary view from the objectors dwelling is over a rural landscape to the east and north-west, the foreground of which is occupied by a golf links of which only glimpses are available. At the horizon can be seen the escarpment leading to Arthurs Seat. A direct view from the objectors deck to the rear is of a large sand dune about 100 metres away.
2. In the view of the Tribunal the proposed dwelling pushes the envelope of reasonableness. A small increase in the setback from the rear boundary and a small decrease in the setback from the south-east boundary would materially widen the view cone from the objectors deck, and would provide what the Tribunal considers to be a satisfactory view. This can be achieved by new permit conditions set out in the Tribunal's orders.
3. Any further changes to setbacks would raise questions as to practicality having regard to the slope of the land.

1. The decision of the Tribunal is that the application for review will be allowed in part. A permit will be granted for the construction of a dwelling on the subject land with variations to the conditions to alter the setbacks from boundaries as indicated above.

[1] [1976] VicRp 60; (1976) VR 592

[2] (2015) VSCA 27

[3] [2005] VCAT 990

[5] [2010] VCAT 269

[6] [2014] VCAT 924

[7] [2009] VCAT 2065