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[27]
austlii:vic/PPV/2025/27
General information, not legal advice.
PPV
2025-06-17
Original judgment source is linked above.
For the reasons set out in this report, the Panel concludes that the Amendment:
The design objectives are generally appropriate for achieving what is sought through Design and Development Overlay Schedule 28. However, there is insufficient justification to protect views from the foreshore to:
It is appropriate and justified to protect views from the corner of Point Nepean Road and Esplanade to the Continental Hotel tower. The fourth design objective should be revised to refer to protecting views from this corner to the Intercontinental Hotel tower rather than relying on a broader reference to the entire foreshore.
The Built Form Review modelling justifies the mandatory maximum building height of 12 metres and 4 metre minimum upper level setback for non-heritage buildings.
The discretionary setbacks, including no setback to property boundary, in the final version of Design and Development Overlay Schedule 28 are appropriate and respond to heritage buildings. Fixtures should be enabled within the mandatory upper level setback of 4 metres with a design guideline to consider potential visual impact of such fixtures.
Sites abutting any other street (excluding Grange Road)
The setback requirement for sites abutting any other street should be revised to a front setback the same distance of the existing building on the adjoining lot, or 4 metres, whichever is the lesser.
It is appropriate and justified to apply Design and Development Overlay Schedule 28 to the 3293-3295 Point Nepean Road site. The re-exhibited mandatory maximum building height requirement for sites fronting Point Nepean Road should also apply to sites fronting Grange Road to ensure a consistent built form approach across the 3293-3295 Point Nepean Road site.
Design and Development Overlay Schedule 28 should include a new decision guideline to support discretion regarding setbacks from Point Nepean Road and views to the Continental Hotel tower.
Design and Development Overlay Schedule 28 should not include additional provisions relating to building materials, signage or setback exemptions for named lanes.
The Amendment will not result in negative traffic, parking or wind impacts.
Design and Development Overlay Schedule 28 will restrict development capacity through its mandatory built form provisions compared to planning provisions before its interim version was introduced into the Planning Scheme. This will result in less potential traffic volume in the local road network. A permit application proposing development in the Sorrento Activity Centre will be assessed against Clause 52.06 to consider car parking and the potential impact on the surrounding road network.
The proposed planning provisions will enable low scale built form that will result in negligible wind impact along the 40-metre-wide Ocean Beach Road reservation.
It is appropriate to not progress the proposed changes to Clause 11.03 because existing Mornington Peninsula Planning Scheme provisions make them unnecessary.
Design and Development Overlay Schedule 28 would benefit from drafting changes that improve its clarity and operation.
Based on the reasons set out in this Report, the Panel recommends that Mornington Peninsula Planning Scheme Amendment C286morn be adopted as exhibited subject to the following:
Mornington Peninsula Planning Scheme Amendment C286morn (the Amendment) seeks to implement the recommendations of the Ocean Beach Road Sorrento Built Form Review (May 2024) (the Built Form Review) by applying permanent design and development provisions to the commercial precinct of Sorrento.
The Amendment applies to land in the Activity Centre shown as 'Exhibited Amendment' in Figure 1. The Activity Centre is located towards the western end of the municipality, about 100 kilometres by road (about 62 aerial kilometres) from Melbourne's Central City.
The Commercial 1 Zone applies to the Activity Centre and the Heritage Overlay applies to about half of it.
As shown in Figure 1, the subject land and its defined sub-precincts changed between the interim provisions and exhibited and re-exhibited Amendment (see Table 1 - Chronology of events) as follows:
Interim DDO28 introduced into the Planning Scheme [Amendment C203morn]
A revised interim DDO28 was introduced [Amendment C204morn]
Ocean Beach Road Sorrento Built Form Review started
Interim DDO28 extended by 6 months [Amendment C264morn]
Interim DDO28 extended by 2 years [Amendment C268morn]
Interim DDO28 extended by 18 months [Amendment C242morn]
Department of Transport and Planning, under ministerial delegation, authorised the Amendment
Amendment exhibition ended - Council received 73 submissions
Council officers commission an urban design and planning review of the Amendment
Interim DDO28 extended by 1 year [Amendment C299morn]
Review and refresh of Built Form Review document and the Amendment started
Interim DDO28 extended by 1 year to July 2025 [Amendment C305morn]
Revised Amendment re-exhibition ended - Council received 9 submissions
Council resolved to request the Minister for Planning appoint a Planning Panel to consider unresolved issues in submissions to the Amendment
Council lodged a request to extend the interim DDO28 expiry date by 1 year
The Panel has assessed the Amendment against the principles of net community benefit and sustainable development, as set out in Clause 71.02-3 (Integrated decision making) of the Planning Scheme.
The Panel considered all written submissions made in response to the exhibition of the Amendment, observations from site visits, and submissions, evidence and other material presented to it during the Hearing. It has had to be selective in referring to the more relevant or determinative material in the Report. The Panel has considered all submissions and materials in reaching its conclusions, regardless of whether they are specifically mentioned in the Report.
This Report deals with the issues under the following headings:
Any reference to DDO28 in this report refers to the proposed DDO28 unless specified otherwise. It does not refer to the existing interim DDO28 in the Planning Scheme.
The following versions are referred to in this report:
The Panel has considered issues raised in the exhibited and re-exhibited Amendment. For the purposes of this report, the Panel has based its recommended provisions on the re-exhibited version.
This chapter identifies planning context relevant to the Amendment.
Zones and overlays that applying to, or near, the subject land:
The issue is whether the review approach that informed the built form provisions is appropriate.
The Built Form Review considers the Activity Centre's physical context including:
It then analysed key opportunities and constraints:
Design Urban Pty Ltd conducted built form testing including three-dimensional modelling to determine the balance between the preferred character and the desired spatial enclosure. The Built Form Review explains the modelling adopted generous floor-to-floor heights to respond to the character of older buildings in Ocean Beach Road. Specifically, it applied:
After testing scenarios for different building heights and upper level setbacks, the Built Form Review recommended the following planning provisions for buildings abutting Ocean Beach Road:
These parameters are intended to produce a street wall scale which perpetuates the existing street wall character and allow modest growth in a way which protects this character yet provides improved spatial enclosure.
Council is commended for its Built Form Review approach. The Review relied on evidence-based data, predominantly three-dimensional modelling, to better understand the potential impact of new built form on existing heritage buildings and key vantage points.
The Amendment appropriately applies mandatory provisions to circumstances that meet the criteria set out in Planning Practice Note 59. For example, applying mandatory maximum building heights to appropriately respond to surrounding heritage buildings and key vantage points. The three-dimensional modelling demonstrated how exceeding these heights would most likely result in an acceptable design response to the Activity Centre.
The Built Form Review explains why the 4-metre upper level setback will preserve views to the sand dunes while achieving a proportional response to a sense of streetscape enclosure. It does not explain why the 4-metre upper level setback is sought to be applied only to non-heritage buildings. The Panel does not comment further on this matter because this streetscape response was not raised in any submission.
The Panel concludes the Built Form Review approach, including the mix of recommended mandatory and discretionary provisions that informed the Design and Development Overlay Schedule 28 provisions is generally appropriate.
Mr Campbell's evidence - The strategic planning and design process is well-considered and legitimate.
The Panel agrees with Council and Mr Glossop that the Amendment is strategically justified.
The Planning Scheme designates Sorrento as a Small Township Activity Centre that services a population of between 5,000 to 10,000 people with a leasable floor area of 3,000 to 10,000 square metres. This reflects the Activity Centre's constrained location:
The Amendment appropriately responds to policy objectives and locational constraints by proposing planning provisions that will enable a low level of growth in the Activity Centre. The Panel considers these provisions in more detail in this report.
For the reasons set out in this report, the Panel concludes that the Amendment:
The issue is whether the proposed design objectives are appropriate for implementing the intended built form outcomes.
Submissions to the original exhibited Amendment in 2022:
The DDO28 (Final version) fourth design objective was revised to:
To protect views from Ocean Beach Road to the back beach sand dunes to the west and the foreshore to the east, and views from Ocean Beach Road and the foreshore to heritage buildings including the Continental Hotel tower and 'Quamby' (3317 Point Nepean Road).
DDO28 (Final version) also included a new Diagram 4 to support this objective:
The design objectives generally provide a balanced approach to guiding future development and delivering what is sought to be achieved through the Built Form Review.
The fourth design objective aims to protect views towards natural features and the heritage listed Continental Hotel. DDO28 (Version 1) also seeks to protect views to all heritage buildings in the Activity Centre including Quamby.
The Panel considers the fourth objective will be achieved:
On the first issue, there is no clear support in the Built Form Review or adopted heritage study referenced in the Planning Scheme to justify protecting the view to all heritage buildings and for singling out the Quamby building. Singling out Quamby would elevate it to the same importance as the Continental Hotel. For reasons explained below, this is inappropriate.
All the contributory buildings in the Ocean Beach Road heritage precinct are clearly visible from the public realm when travelling through the Activity Centre. This includes the Continental Hotel, Mornington Hotel (now Koonya Hotel) and Stringers stores which the heritage study regard as landmark buildings. People can readily appreciate the historic streetscape that has existed since Victoria's early history. However, no document can clearly explain why these buildings must be viewed from the foreshore at a significantly diminished scale up a steep escarpment.
As noted by the Panel at the Hearing, its inspection along the foreshore next to the review area confirmed that views of Quamby and the Continental Hotel tower:
Council preferred to protect views of the heritage buildings from the eastern gateway by vehicle and by foot. This is reflected in DDO28 (final version) which includes a viewshed from the north-east corner of Point Nepean Road and Esplanade within the decision guidelines.
The Panel considers that most visitors to the foreshore will have their attention directed towards the water and the pier. Protecting views from the foreshore, being a large-and-difficult area to define, is too ambiguous and does not reflect the desired viewing locations nominated by Council in the DDO28 (Final version) and supported by Mr Campbell at the Hearing.
Another issue is that DDO28 does not apply to properties between the foreshore, other than 3293-3295 Point Nepean Road and Constitution Hill Road properties. This means DDO28 including the fourth objective would not apply to most properties within the foreground of views towards the Activity Centre.
The reference to views from the foreshore to heritage buildings should be deleted. The Design Objectives provide enough guidance about views to heritage buildings. Chapter 3.6 discusses what specific views should be protected in the development of the corner site.
Council relied on the Ocean Beach Road Commercial Precinct Sorrento Heritage Policy (the heritage study) to justify views towards Quamby. This document is a heritage study, not a policy, and is referred once as a decision guideline in the interim DDO28. It is largely untested to determine whether its content is suitable to be referred to in the Planning Scheme. The Panel has weighted this document accordingly. This is another issue discussed in Chapter 3.6 of this report.
The heritage study categorises 3317 Point Nepean Road (Quamby) as a contributory property within a broader heritage place - the Ocean Beach Road Commercial Heritage Precinct. Unlike the Continental Hotel, it is not an individually significant heritage place.
The Built Form Review does not specifically seek to protect of views to Quamby. Rather, when referring to the appropriate setbacks for streetscape character, it states:
'the design response will moderate built form at the site and also protect views to the heritage listed 'Quamby' (at 3317 Point Nepean Road) from the foreshore.'
Without relevant strategic work, there is insufficient justification to protect views to Quamby or to specifically reference it in a design objective.
For reasons outlined above, the Panel agrees with Mr Glossop regarding the fourth design objective. The outcome sought through this objective is excessive when considering:
There is considerable documentation to support views towards the state heritage protected and individually listed Continental Hotel. It was designed as a landmark with a tower to be viewed at a distance, particularly from the foreshore. The re-exhibited building height and setback provisions will not result in a loss of views to the Continental Hotel tower as demonstrated in the built form modelling. The Panel supports protecting views to its tower and referencing it in the fourth design objective, as it reflects what the built form provisions are intended to achieve.
The design objective should be revised to clarify which views to the Continental Hotel tower are sought to be protected.
The Panel considers that building heights and setbacks in Tables 1 and 2 will appropriately protect the Continental Hotel tower, as demonstrated by the built form modelling. However, discretionary minimum setbacks at 3293-3295 Point Nepean Road may have implications on those views dependant on the viewpoint. The viewpoint shown in DDO28 (Final version) from the corner of Point Nepean Road and Esplanade is appropriate.
The Stringers Stores building is an individually significant heritage place that can be appreciated through its high exposure at the corner of Ocean Beach Road and Point Nepean Road. While there is no strategic basis to protect a view of it from the foreshore, the steep topography will achieve this outcome. Having said that, it would be inappropriate for the fourth objective to refer to the Stringers Stores building because DDO28 does not apply to any property between it and the foreshore along the northern side of Ocean Beach Road.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to revise the fourth design objective regarding heritage buildings to refer to protecting views from the corner of Point Nepean Road and Esplanade to the Continental Hotel tower.
The issues are whether it is appropriate for DDO28 to define:
The re-exhibited DDO28 includes definitions for Heritage Building, Ground Floor Level, Level 1 and Level 2, Any Other Street and:
Abutting means a building on or within 200mm of a boundary.
Building height has the definition set out at Clause 73.01. Building height excludes architectural features, masts, building services (including lift overruns) or stairwells provided:
Council's submission: - DDO28 (Version 1) revised the re-exhibited version to:
Ground Floor Level means the natural level of a site at any point.
DDO28 (final version) deleted the definition for Ground Floor Level and added:
Ground Floor means the building level closest to the natural ground of the Ocean Beach Road frontage.
The re-exhibited built form provisions rely on the Clause 73.01 definition for building height. The Panel supports DDO28 (final version) which removes the building height definition to avoid duplication with other provisions. This approach is consistent with drafting advice in the Practitioner's Guide.
The Panel agrees with Mr Campbell that it is appropriate to apply building height exclusions such as architectural features that can exceed the mandatory maximum building height so that the DDO28 design objectives can be achieved. The exclusions should be separate to, but reference the mandatory provisions in DDO28 Table 1.
The Panel agrees with Mr Glossop to the extent that allowing a room for a stairwell would mean an additional storey for that portion of the roof. However, DDO28 appropriately recognises the need for necessary building infrastructure including lift overruns, plant and stairwells. The definition specifies each exclusion so all other spaces such as rooms would be prohibited. DDO28 also applies further parameters such as a maximum height and setbacks to ensure an appropriate design response. The Panel therefore agrees with Mr Campbell that the proposed building height exclusion parameters are appropriate.
The Panel agrees with DDO28 (Version 1) which deleted the 'Abutting' definition. This definition is unnecessary because the re-exhibited DDO28 does not vary from the general understanding of the term, being a property or building that shares a common boundary.
The DDO28 (Version 1) definition of Ground Floor Level adds confusion to the schedule's operation, as it appears to refer to the natural ground level.
Planning Scheme Clause 73.01 does not define Ground Floor, Level 1 or Level 2, however ground floor is commonly referred to in planning schemes throughout Victoria, most commonly with regard to activating ground floor levels in commercial zones.
The DDO28 definition for Ground floor, Level 1 and Level 2 has been applied to provide clarity for visibility of levels and setbacks of upper levels in the mandatory provisions for sites abutting Ocean Beach Road.
For consistency and clarity, DDO28 should adopt the approach taken in the other Mornington Peninsula Planning Scheme DDO schedules, including DDO13, which refer to storeys and levels in the built form provisions. Diagram 1 helps to interpret the built form provisions by labelling each level.
The Panel concludes that Design and Development Overlay Schedule 28 should:
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to:
a) delete the definitions for Building Height, Ground Floor Level, Level 1, Level 2 and Abutting
b) move the building height exclusions and parameters from Definitions to Mandatory Requirements.
The issue is whether the DDO28 provisions that include Clause 55 types of standards are appropriate and justified.
The Built Form Review recommended the following Clause 55 amenity related standards B17, B19, B20, B21, B22 and B24 be reflected in DDO28 as discretionary provisions.
All buildings (irrespective of land use) which have an abuttal to land in a residential zone should achieve the following standards set out at Clause 55.04 of the Planning Scheme:
DDO28 (Version 1) and subsequent versions included discretionary provisions that replicated or were similar to the Clause 55 standards without referring to the standards elsewhere in the Planning Scheme.
DDO28 (Version 1) introduced in General Requirements:
New buildings and works above 4.5 metres in height on sites which abut land in a residential zone should be set back from the side or rear boundary 1 metre, plus 0.3 for every metre of height over 4.5 metres up to 6.9 metres, plus 2 metre for every metre of height over 6.9 metres. Setbacks are demonstrated in Diagram 2.
New buildings and works on sites abutting an unnamed laneway which abut land in a residential zone should be setback from the boundary between the laneway and the land in the residential zone, at least 1 metre, plus 0.3 for every metre of height over 4.5 metres up to 6.9 metres, plus 2 metre for every metre of height over 6.9 metres. Setbacks are demonstrated in Diagram 3.
The amenity provisions proposed for the DDO28 General Provisions form an appropriate framework for assessing the potential amenity impact of future development proposals. The Built Form Review broadly supports these amenity provisions. Many of them reflect, or are a revised version of, existing residential amenity standards in Planning Scheme Clause 55.
The discretionary Clause 55 amenity provisions have been applied for decades. One of them includes Standard B2-3 (formerly B17) regarding side and rear setbacks which has an objective:
To ensure that the height and setback of a building from a boundary responds to the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.
Standard B4-3 (Overshadowing and secluded open space) and Standard B4-4 (Overlooking) are different from the exhibited DDO28 version but are appropriate within the Activity Centre context.
The amenity provisions that vary to those found in similar Clause 55 standards should be expressed independently in DDO28. Council's reasons for replicating amenity provisions that seek to achieve the same outcomes as those in Clause 55 are the same reasons why the Panel considers they should not be repeated in DDO28.
The Commercial 1 Zone applies to all land affected by DDO28 and, includes the following decision guidelines for buildings and works that require a planning permit (except for minor works or façade alterations):
The objectives, standards and decision guidelines of Clause 54, Clause 55 and Clause 57. This does not apply to an apartment development.
DDO28 should exclude amenity provisions that do not differ from the Clause 55 objectives and standards to avoid duplicating the Commercial 1 Zone decision guidelines or creating inconsistencies with potential future Clause 55 revisions.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to:
a) add new residential interface provisions
b) delete amenity provisions that duplicate the Clause 55 standards.
The issues are whether, for buildings abutting Ocean Beach Road excluding heritage buildings, it is appropriate and justified for DDO28 to specify:
The interim DDO28 that exists in the Planning Scheme specifies a mandatory:
The re-exhibited DDO28 includes the following mandatory provisions:
For all buildings abutting Ocean Beach Road excluding heritage buildings:
At three storeys overall, the scale presents a better enclosed streetscape and sense of spatial containment. A two storey street wall, supported by a setback at the upper level, would also retain view lines towards the sand dunes and the tower at the Continental Hotel.
The degree of setback of the upper level needs to be carefully managed. The built form testing demonstrates that a deep (8m) setback results in a third storey element being visually recessive from the street, which fails to enclose and contain the streetscape in a similar manner as a two storey scale. Equally though, a third storey with no or minimal setbacks results in a dominant built form that starts to block important view lines towards the sand dunes and overwhelms the historic buildings in Ocean Beach Road.
A setback of 4 metres for upper level additions on non-heritage buildings has been shown to balance these objectives and still provides passive surveillance, interaction with the street, and improves the streetscape's height to width ratio.
Views to the western sand dunes from within the Activity Centre play a crucial role in defining the character and sense of place of this area. The 4m upper level setback for non heritage buildings will ensure that the shape and form of the dunes are not lost over new buildings, particularly from the footpath on either side of Ocean Beach Road at George Street. This setback also suitably balances the retention of dune views with the desired enclosure of the streetscape discussed in this report.
Mr Campbell's evidence - The proposed DDO28 provisions will:
At the Hearing, Mr Campbell confirmed on a map of the Activity Centre that views towards the sand dunes from Ocean Beach Road would start emerging from the Continental Hotel.
The Built Form Review explains why a sense of enclosure is important to the streetscape and for people who use the Activity Centre. Its associated modelling demonstrates why certain heights and setbacks better respond to achieving this outcome without impacting on other values it seeks to achieve such as views towards the sand dunes. The proposed height and setback provisions faithfully translate the Built Form Review findings.
The Panel carefully considered issues in submissions regarding these provisions but could not see how they would negatively impact surrounding properties or intended outcomes. Of note, these built form provisions form part of a framework for considering future permit applications. A future permit will only be issued where it meets the necessary policy objectives and associated provisions. This means that not all properties are likely to be developed to the full extent possible.
The Built Form Review modelling demonstrates that views to the sand dunes are predominantly from the public realm, being the more central part of the 40-metre-wide Ocean Beach Road reservation. As confirmed by Mr Campbell, when walking westerly, these views start to emerge at some point around the Continental Hotel. The modelling shows no perceptible difference in the viewshed towards the sand dunes between the 4-metre and 8-metre upper level long Ocean Beach Road properties. Accordingly, there is no justification to apply a setback greater than 4 metres.
The Panel agrees with Council's submission that exceeding the proposed mandatory provisions would result in unacceptable outcomes in most instances, but not for reasons relating to sand dune views. It should be applied as a mandatory provision to achieve the appropriate sense of streetscape enclosure and consistent street wall along Ocean Beach Road.
The DDO28 drafting does not enable non-intrusive fixtures such as balustrades to edge of balconies or other lower fixtures within the 4-metre upper level setback. If this is not the intended outcome, Council should consider redrafting the DDO28 provisions to exempt such fixtures and to introduce a new decision guideline that seeks to consider the visual impact of any protrusion in the upper level setback.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to:
a) revise the mandatory requirements for sites fronting Ocean Beach Road to allow fixtures in the setback area provided that they are no more than 2 metres in length
b) revise the decision guideline regarding the upper level setbacks to consider how fixtures in the setback area respond to the streetscape.
3.5 Sites abutting any other street (excluding Grange Road)
The issue is whether the discretionary built form provisions proposed for sites abutting any other street (excluding Grange Road) are appropriate and justified.
The exhibited DDO28 included the Constitution Hill Road properties in the Central sub-precinct. The re-exhibited DDO28 designated the Constitution Hill Road properties within the Side Streets group.
Table 3 Central sub-precinct and re-exhibited Side streets provisions
8 metres from the front building line of the second storey below (mandatory)
For site on a corner with a named road or lane: 3 metres from the side street building line or the second storey below (mandatory)
4 metres for third storey from Morce Avenue boundary. (mandatory).
4 metres from the street above level 1 (discretionary)
Submissions - 19 Constitution Hill Road should be exempt from the mandatory 0 metre upper level mandatory street setback because it was more in a residential setting with existing landscape setbacks than a commercial setting.
A front setback that is the same distance as the lesser front wall setback of the existing buildings on the abutting allotments facing the front street or 4 metres, whichever is the lesser.
Council officers adopted Mr Glossop's evidence and included a new general requirement in DDO28 (Version 1):
The re-exhibited DDO28 does not specify a mandatory 0 metre setback, but it includes a discretionary street wall height and a setback of 4 metres above Level 1. This suggests an outcome of a street wall built to the property boundary. These provisions apply to any other street.
DDO28 applies to three properties that front Constitution Hill Road. One being the Continental Hotel on the corner of Ocean Beach Road, followed to the south by a relatively recent apartment development which provides a landscaped setback to Constitution Hill Road, and the remaining (undeveloped) land at 19 Constitution Hill Road currently occupied by a Sorrento exchange building. These provisions are therefore likely to only impact the Sorrento exchange site.
The setback requirements for 'Any other street' also apply to two properties behind Constitution Hill Road off Riley Lane, four properties fronting Kerferd Avenue, one property fronting Kerferd Avenue and two properties fronting Melbourne Road. All properties sit within a similar context to Constitution Hill Road, being at the periphery of the Activity Centre and adjoining a residential zone with a streetscape character of landscaped street setbacks.
Constitution Hill Road's character comprises landscaped setbacks in the commercial and residential zoned land. A 0 metre upper level setback on the remaining undeveloped parcel would be at odds with the existing streetscape character. DDO28 (Version 1), which adopts Mr Glossop's recommendations, will result in an appropriate outcome for the streetscape.
The Panel concludes the setback requirement for sites abutting any other street should be revised to a front setback the same distance of the existing building on the adjoining lot, or 4 metres, whichever is the lesser.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to revise the general requirements to specify a front setback the same distance of the existing building on the adjoining lot, or 4 metres, whichever is the lesser.
The exhibited and re-exhibited DDO28 included the mandatory requirements for the East sub-precinct shown in Table 4. The re-exhibited DDO28 renamed the properties forming the East sub-precinct to '3293-3295 Point Nepean Road Site'.
Table 4 East sub-precinct and 3293-3295 Point Nepean Road site provisions
Match the setback of the building on the adjoining lot or the average of the setback the buildings on either side of the lot
Replaced with a general requirement for new buildings to be set back to match the building setback on the adjoining lot or 4 metres, whichever is greater
Submissions to the original exhibited Amendment in 2022 regarding 3293-3295 Point Nepean Road:
'... a gateway site into the Activity Centre and provides a sense of arrival from the Queenscliff-Sorrento Ferry Terminal and for vehicles and pedestrians travelling along Point Nepean Road.'
'... residential areas that are integrated into the activity centre or surrounded by other uses that have a strong functional interrelationship with the activity centre even where limited development opportunities exist.'
The Panel supports applying DDO28 (Final version) to 3293-3295 Point Nepean Road.
The Built Form Review identifies the site as a visually and functionally significant gateway site in the Activity Centre. While it is physically detached from the main retail area, Planning Practice Note 58 supports including such land where it plays a contextual or functional role in framing the Activity Centre.
The DDO28 provisions, particularly the highly restrictive mandatory maximum two-storey building height, can appropriately manage built form while considering adjoining and nearby built form and heritage character. There is no supporting information or planning policy to restrict development beyond what is proposed.
The mandatory maximum building height of 9 metres (two storeys) and discretionary minimum setbacks appropriately enables design flexibility within built form parameters.
The maximum building height of two storeys rather than three storeys is appropriate because:
The mandatory maximum building height of 9 metres (re-exhibited DDO28) rather than 8 metres (interim DDO28) is appropriate because:
Revising the 0 metre setback (exhibited) to a context responsive discretionary setback that matches adjoining setbacks or defaults to 4 metres (re-exhibited) provides a more sensitive interface with adjacent buildings and reinforces visual and heritage character of this important gateway site.
The Panel has already found there is no strategic basis to protect views from the foreshore to all heritage buildings in the Activity Centre including Quamby. Future development at 3293-3295 Point Nepean Road will not impact views towards the Continental Hotel tower from the proposed vantage point at the corner of Point Nepean Road and Esplanade. Within this context, most proposals not in accordance with a mandatory setback could achieve acceptable outcomes. Any potential impact to the Continental Hotel tower is likely to be from development on land on the southern side of Point Nepean Road outside DDO28 between 3293-3295 Point Nepean Road and the Continental Hotel.
A discretionary minimum setback would enable Council to assess permit applications proposing areas and structures such as outdoor dining and balconies within the specified setback that appropriately respond to the site's gateway corner site in a commercial setting.
A new decision guideline should be introduced to support discretion in determining appropriate setbacks for this corner site. It should seek to consider the streetscape character and the impact of development on views to the Continental Hotel tower from the corner of Point Nepean Road and Esplanade.
The re-exhibited Amendment intended to apply the mandatory maximum building height of 9 metres (two storeys) to all of the 3293-3295 Point Nepean Road site. The site also fronts Grange Road so referencing this road would remove any doubt about where this requirement applies. This will ensure a consistent built form approach across the entire site. For clarity, DDO28 should clarify that Grange Road is excluded from mandatory and discretionary requirements for sites abutting any other street.
There was no supporting information to explain what views of Arthur's Seat are available from the Activity Centre or how they might be impacted by the proposed built form provisions. The Panel is satisfied that Objective 4 references appropriate views for protection, consistent with what is sought by the Built Form Review.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to:
a) revise the mandatory maximum building height requirement for sites fronting Point Nepean Road to also apply to sites fronting Grange Road
b) add a new decision guideline to consider whether setbacks from Point Nepean Road are in keeping with the streetscape character and whether they will impact views from the corner of Point Nepean Road and Esplanade to the Continental Hotel tower.
The issues are whether it is appropriate and justified to add provisions that:
In response to a recommendation in the Built Form Review, Council included the following requirement in the re-exhibited DDO28:
Buildings abutting Ocean Beach Road should respond to the materiality, colours and proportions (including glazing proportions and floor to floor heights) of existing buildings (particularly intact heritage buildings) in the street.
Beyond this, the Panel was not presented with strategic justification for additional DDO28 requirements regarding building materials. The proposed DDO28 and existing Heritage Overlay provide a sufficient framework for Council to assess permit applications with regard to materiality and building design that is appropriate to the heritage context of Ocean Beach Road.
The need for additional signage provisions has also not been demonstrated. Existing Planning Scheme provisions account for this, including the Heritage Overlay, Commercial 1 Zone, Clause 52.05 (Signs), and local policy as noted by Mr Glossop. The Planning Scheme has considerable provisions to properly assess the impact of signage in the Activity Centre.
A setback exemption for some named laneways is not supported. The Panel agrees with the finding of the Built Form Review that exempting some sites to allow greater growth opportunities would be illogical and potentially lead to less cohesive development. Mr Glossop and Mr Campbell did not identify the need for any changes to setback requirements in this regard.
The Panel concludes that no further changes are required to Design and Development Overlay Schedule 28 to include additional provisions relating to building materials, signage or setback exemptions for named lanes.
The issue is whether the DDO28 provisions will enable development that will result in reasonable traffic and transport impacts.
The Amendment will not increase traffic and parking issues through further development. Before interim DDO28 was introduced in December 2016, the Activity Centre had less restrictions than what is proposed through DDO28 provisions. The Amendment will therefore reduce development capacity thereby reducing the extent of traffic that would have otherwise been permitted.
The Activity Centre will experience modest growth because:
This extent of traffic associated with future development is unlikely to result in notable impacts to the road network.
Having said that, the Panel agrees with Council that a planning permit application in the Activity Centre will have to be assessed against Clause 52.06. The application would need to demonstrate how car parking and traffic generation can be accommodated without negatively affecting amenity. Council will be able to monitor traffic and parking matters through these ongoing assessments.
The issue is whether the proposed DDO28 planning provisions will enable built form that will result in unreasonable wind impact along Ocean Beach Road.
Submission - The Amendment did not consider the impact of wind along Ocean Beach Road from future three-storey development enabled by DDO28.
Council submission - The maximum building heights specified in DDO28 are unlikely to have any significant or unreasonable wind impact at this location.
Mr Davies did not respond to this issue in his expert report. At the Hearing, he agreed that DDO28 would not enable built form of the scale that would require any wind assessment.
The Panel agrees with Council and Mr Davies. Ocean Beach Road has a 40-metre-wide road reservation, while DDO28:
The Panel concludes the proposed Design and Development Overlay Schedule 28 planning provisions will enable low-scale built form that will result in negligible wind impact along the 40-metre-wide Ocean Beach Road reservation.
The DDO28 provisions need to be drafted to align with the Ministerial Direction 7(5) and to include provisions enabled by the head provisions in the parent DDO.
6.5.6 Using tables in a schedule - Defining land areas and specifying conditions
Where specified, tables can be used in schedules to define particular land and specify requirements that relate to the land.
The existing interim DDO28: Includes Table 1 which groups provisions by sub-precinct then by provision type (maximum building heights and minimum setbacks).
Re-exhibited DDO28: Grouped provisions by provision type (mandatory and discretionary).
DDO28 (Final version): Grouped provisions by provision type (mandatory and discretionary) with a table for each that groups provisions by location.
At the Hearing, the Panel referred to DDO28 which separates requirements for a property into two locations - mandatory and general requirement. The Panel asked Council whether the requirements could be structured more clearly and provided a sample DDO28 table structure for Council to consider. Council agreed that a tabulated form was easier to navigate. It included a table structure in DDO28 (Version 2) which continued to separate requirements for a property in two different locations.
The Panel considers DDO28 should be structured so that a permit applicant can easily navigate through the provisions. This can be achieved by grouping the provisions by location so the information for a property is one place. Grouping them by whether they are mandatory or discretionary requires having to browse different parts of DDO28 to find provisions for the same property.
The table format for the mandatory and discretionary provisions (Tables 1 and 2) is clearer and therefore faster to navigate. However, it does not assist with finding provisions for a property in one place like DDO26 (Rosebud Activity Centre) of the Planning Scheme does.
Council's preferred format exists in some other DDO schedules in the Planning Scheme and in other planning schemes. This does not mean the format in those schedules is the best way to communicate the DDO28 provisions or they should be applied as the benchmark for consistency across future DDO schedules.
DDO28 (Final version) included a new Diagram 4 (see Figure 2 of this report).
At the Hearing, there was considerable discussion regarding the broad requirement to consider the view of heritage buildings including 'Quamby' from the foreshore. As drafted, it appeared that a view from any point along the foreshore should be considered. Council subsequently proposed a new Diagram 4 that indicated a single viewpoint and viewshed towards where the Quamby building is located.
If the Panel found the view towards Quamby to be justified, the new Diagram 4 would have been helpful to explain where to measure the visual impact from. The previous broad reference to the foreshore was unhelpful. Diagram 4 helped explain the viewpoint was in fact not from the foreshore, as sought by the DDO28 design objectives, but rather from the corner of Point Nepean Road and Esplanade. Nonetheless, with the benefit of seeing this location in the proposed Diagram 4, the Panel considers it more easily described in the provisions without the need for a map.
An application for buildings and works that does not meet a General Requirement must demonstrate how the development will meet the relevant Design Objectives and Decision Guidelines.
A heritage building is defined as "a building graded as either 'contributory' or 'significant' in a Heritage Overlay".
In this instance, the first application requirement already requires an application to demonstrate how the proposal achieves the design objectives. It is not appropriate for a permit application to demonstrate how it meets the decision guidelines because they apply to the responsible authority (Council). Any decision guideline would relate to a provision elsewhere in DDO28 so there is no need to duplicate it in Clause 2.0 (Buildings and works).
Regarding a heritage building, Council has understandably applied the term 'graded' that appears in Planning Practice Note 1. However, Planning Practice Note 1 incorrectly regards 'contributory' and 'significant' as gradings. A contributory property is one which contributes to the precinct's overall heritage significance whereas a non-contributory does not but new development may impact the surrounding heritage fabric. These are not grades so the Panel suggests referring to them as 'categories'.
Regarding decision guidelines, the Practitioner's Guide states:
Sets out, in policy neutral terms, matters that, if relevant, should be considered by the decision-maker when exercising a discretion.
Decision guidelines should relate to the schedule objectives that they serve and any statement of significance, if one is present. They may refer to a document but only if the document is incorporated in the scheme. A decision guideline should not refer to a background document.
A decision guideline should not include an informal referral requirement.
Practitioner's Guide section 6.5.11 provides examples of correct and incorrect decision guidelines:
The Panel notes Council's changes to DDO28 to avoid duplication with other provisions and to align with current drafting practice. Similarly, the Panel considers the decision guideline "The impact of the proposal upon the amenity of land in a residential zone" should be deleted because it duplicates:
The interface with adjoining zones, especially the relationship with residential areas.
The effect on the environment, human health and amenity of the area.
The interim DDO28 requires a permit application to demonstrate how the proposal "achieves the design objectives and the requirements of this schedule and set out in the background document Ocean Beach Road Commercial Precinct Sorrento Heritage Policy - For Planning Applications for Places in the Heritage Overlay - September 2015 by HLCD Pty Ltd".
The re-exhibited Amendment excluded reference to this heritage study from DDO28.
The 2015 heritage study was referred to often during the Hearing. Having reviewed its contents, the Panel questioned this document being referred to as 'policy'. Council noted the document is not proposed to be an incorporated or background document in the Planning Scheme.
The Panel acknowledges the Amendment will delete reference to the 2015 heritage study once the revised DDO28 is introduced into the Planning Scheme. This is a good outcome because the 2015 heritage study provides content that is typically found in similar studies. It includes further explanatory information and guidance in sections titled 'Policy'. However, this content does not present as policy. Accordingly, referring to the document as policy can mislead people into thinking it includes policy content and that it has some statutory weight.
The re-exhibited Amendment proposed to revise local policy at Clause 11.03-1L-01 (Activity centres - Mornington Peninsula) to exempt the Activity Centre from the policy guidelines. Council subsequently proposed to not progress these changes. It submitted:
The Panel agrees with Council's proposal to no longer revise Clause 11.03 for reasons set out in its submission.
In response to a Panel question, Council confirmed that adding "New buildings should not exceed twelve metres in height" was not needed because the proposed mandatory maximum building height of 12 metres would not enable such an outcome. The Panel agrees.
Amend Design and Development Overlay Schedule 28, as shown in, Appendix B, to:
a) make drafting changes that improve its clarity and operation
b) structure the mandatory and general requirements in a clearer and more intuitive format.
Amend the Heritage Design Guidelines: Sorrento Historic Precinct (Expires 30 June 2026) to delete the proposed "New buildings should not exceed twelve metres in height".
Submitter location map (Confidential for Panel use only)
Part A submission with attachments (see Documents 6 to 24)
D5 Attachment A - Exhibited Planning Scheme Map No. 22DDO Sheets
D5 Attachment B - Amendment C286morn Submissions 1 to 35 (Redacted)
D5 Attachment C - Amendment C286morn Submissions 36 to 77 (Redacted)
D5 Attachment D - Submissions summary and officers' response
D5 Attachment E - Response to key submission themes
D5 Attachment F(a) - Mornington Peninsula Activity Centres Strategy (May 2018)
D5 Attachment F(b) - Mornington Peninsula Activity Centres Strategy Appendices (May 2018)
D5 Attachment G - Ocean Beach Road Sorrento Built Form Review (May 2024)
D5 Attachment H - Ocean Beach Road Sorrento Built Form Review (November 2021)
D5 Attachment I - Minister for Planning's authorisation letter (20 May 2022)
D5 Attachment J - Statement of Significance: Sorrento Commercial Precinct (February 2022)
D5 Attachment K - Council meeting minutes (25 February 2025)
D5 Attachment L - Council adopted Design and Development Overlay Schedule 28 (DDO28) (post re-exhibition track changes)
D5 Attachment M - Council meeting minutes (13 December 2021)
D5 Attachment N - Ocean Beach Road Sorrento Commercial Precinct heritage policy (September 2015)
D5 Attachment O - Summary document of proposed built form and design provisions (undated)
D5 Attachment P - Summary document of key changes to proposed DDO28 (undated)
D5 Attachment Q - Department of Transport and Planning's informal comments (19 July 2024)
D5 Attachment R - Summary of permit applications and permits
Email - with Addendum to Heritage Victoria submission
Version 1 - Clause 11.03 (Planning for Places) [further changes from re-exhibition shown in track]
Version 1 - Design and Development Overlay Schedule 10 (DDO10) [no change from re-exhibition]
Version 1 - DDO28 [further changes from re-exhibition shown in track]
Version 1 - Clause 72.04 Schedule (Incorporated Documents) [no change from re-exhibition]
Version 1 - Clause 72.08 Schedule (Background Documents) [no change from re-exhibition]
Version 1 - Clause 74.01 Schedule (Application of Zones, Overlays and Provisions) [no change from re-exhibition]
Version 1 - Incorporated Document - Heritage Design Guidelines [no change from re-exhibition]
Version 1 - Background Document - Ocean Beach Road Sorrento Built Form Review Report May 2024 (Appendix A - Built Form Modelling) [no change from re-exhibition]
Version 1 - Background Document - Ocean Beach Road Sorrento Built Form Review (Mornington Peninsula Shire, May 2024) [no change from re-exhibition]
Version 1 - Explanatory Report [no change from re-exhibition]
Version 1 - Instruction Sheet [no change from re-exhibition]
Version 1 - Map Sheet No 22DDO (amend areas which are affected by DDO28) [no change from re-exhibition]
Version 1 - Map Sheet No 22DDO (showing areas to be deleted from DDO10 and DDO28) [no change from re-exhibition]
Mornington Peninsula Planning Scheme Amendment C204 Panel Report
Part C closing submission
Extract, Council meeting minutes dated 12 October 2025 regarding Sorrento Heritage Policy 2015
The Panel recommended changes are based on the re-exhibited version of the planning provisions and are shown as:
SCHEDULE 28 TO CLAUSE 43.02 DESIGN AND DEVELOPMENT OVERLAY
To ensure development makes a positive contribution to the fine-grain, low-scale character of the Ocean Beach Road commercial precinct, while also allowing for limited growth opportunities.
To support a well proportioned and consistent building interface to Ocean Beach Road, with two generous storeys creating a street wall (outside of heritage places) and up to one recessive upper level.
To ensure development responds to the proportions, form, siting, materiality and detailing of intact heritage buildings, including the existing limestone buildings and the converted former dwellings at the western end of Ocean Beach Road.
To protect views from Ocean Beach Road to the surrounding environs, including the back beach sand dunes to the west and the foreshore to the east, and views from Ocean Beach Road and the corner of Point Nepean Road and Esplanade to heritage buildings including the IntercContinental Hotel towerviews from the foreshore.
To ensure development makes a positive contribution to the public realm and enhances the local sense of a coastal village.
This overlay contains Mandatory Requirements, which must be met and General Requirements, which should be met.
A permit cannot be granted to construct a building or construct or carry out works which are not in accordance with a Mandatory Requirement except in any of the following circumstances:
An application for buildings and works that does not meet a General Requirement must demonstrate how the development will meet the relevant Design Objectives and Decision Guidelines.
Abutting means a building on or within 200mm of a boundary.
Building height has the definition set out at Clause 73.01. Building height excludes architectural features, masts, building services (including lift overruns) or stairwells provided:
Heritage building means a building gradedcategorised as either 'contributory' or 'significant' in a Heritage Overlay.
Ground Floor Level means the natural level of a site at any point.
Level 1 means the second floor of a building or the first floor above ground level.
Level 2 means the third floor of a building or the second floor above ground level.
Any other street refers to a side street or named laneway but excludes Ocean Beach Road, Point Nepean Road, Grange Road and Morce Avenue.
A permit must not be granted for new buildings, including the replacement of an existing building, and/or works which exceed the maximum building heights specified below. The maximum building height excludes architectural features, masts, building services (including lift overruns) or stairwells provided:
Fixtures may extend into the setback area provided that they are no more than 2 metres in length.
Sites with a frontage to Point Nepean Road or Grange Road
The overall building height must not exceed two storeys or 9 metres.
Buildings should be set back from Point Nepean Road the same distance as the setback of the front wall of the existing building on the adjoining lot, or 4 metres, whichever is greater.
The overall building height must not exceed 12 metres.
Sites abutting an unnamed laneway which abut land in a residential zone
Sites which abut land in a residential zone (or abut an unnamed laneway which abuts land in a residential zone)
For all buildings abutting Ocean Beach Road excluding heritage buildings:
For buildings abutting Morce Avenue or any other street:
Diagram 2 - Setbacks for sites directly abutting residential land
Diagram 3 - Setbacks for sites directly abutting unnamed laneway that directly abuts residential land
New buildings abutting Ocean Beach Road should be built to the street boundary except for sites adjoining a heritage building, where the front walls of new buildings abutting Ocean Beach Road should be set back to match the front street setback of the adjoining heritage building. Where adjoining a heritage building on both sides, the front setback from Ocean Beach Road should match the greater of the two front street setbacks of the adjoining buildings.
New buildings in Point Nepean Road should be set back the same distance as the setback of the front wall of the existing building on the adjoining lot, or 4 metres, whichever is greater.
New buildings abutting Ocean Beach Road and situated at a corner should have a setback from any side street above Level 1 to express and respond to the primary two level character of Ocean Beach Road.
Any upper level additions to heritage buildings should be set back behind the primary roof form of the building.
Buildings abutting Ocean Beach Road should respond to the materiality, colours and proportions (including glazing proportions and floor to floor heights) of existing buildings (particularly intact heritage buildings) in the street.
The existing pedestrian connections linking Ocean Beach Road to Morce Avenue should be maintained.
All buildings (irrespective of land use) which have an abuttal to land in a residential zone should achieve the following standards set out at Clause 55.04 of the Planning Scheme:
Buildings should provide an active interface at ground floor level to all streets.
Building services including waste, loading, parking and service cabinets should be located away from streets and public spaces.
The following application requirements apply to an application for a permit under Clause 43.02, in addition to those specified elsewhere in the scheme and must accompany an application, as appropriate, to the satisfaction of the responsible authority:
The following decision guidelines apply to an application for a permit under Clause 43.02, in addition to those specified in Clause 43.02 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority: