1. The responsible authority is directed to amend the permit and issue an amended permit to the owner of the subject land pursuant to section 91 of the Planning and Environment Act 1987.
2. Costs are reserved.
3. Any party that wishes to make an application for costs must file and serve such application and supporting submissions by not later than 8 March 2013. Any response must be filed and served by no later than 29 March 2013. Any party may request a hearing to consider any application for costs or the Tribunal may convene a hearing at its discretion.

Amendment to Permit to require screening to west facing windows

Application under Section 87 of the Planning and Environment Act 1987.

Clause 42.01 - construct a building and carry out works, and to remove, destroy or lop any vegetation

Clause 42.03 - construct a building and carry out works, and to remove, destroy or lop native vegetation

Clause 42.02 - remove, destroy of lop any vegetation

Clauses 11, 12, 13, 15, 21.02, 21.03, 21.04, 21.06, 21.07, 22.13 and 65.

The site is rectangular in shape, save for an irregularly-shaped extension along part of the eastern boundary where the Site includes within its boundary land which, although within the Public Park and Recreation Zone (PPRZ), is now privately owned. The majority of the Site is within the Residential 1 Zone (R1Z). the area of the site is approximately 762m².

The Site abuts Crown land to the south and a drainage reserve to the east. To the north the Site abuts an allotment with the street address 29 Fauconshawe Street, Balnarring Beach, and to the west the site abuts 14 Tulum Court, Balnarring Beach.

Vehicle access to the Site is from Fauconshawe Street via a narrow roadway running along the western boundary of 29 Fauconshawe Street and adjoining the Site at the north of its western boundary.

The Site is within the small coastal settlement of Balnarring beach, which has a generally south-easterly facing coastline on to Western Port.

Adjoining the site tot eh east and north-east is the Balnarring Beach Creek reserve which is heavily vegetated, with a walking trail along the creek's western bank providing pedestrian access from Fauconshawe Street to the beach.

Existing dwellings adjoining the Site are as follows:

• The dwelling at 29 Fauconshawe Street is a distinctive low-profile modern single-storey dwelling set in landscaped grounds.
• The dwelling at 14 Tulum Court is a substantial two-storey modern dwelling oriented primarily towards the south to take advantage of the foreshore and beach viewlines in that direction. The dwelling has a high proportion of glazing to its southern (beach-facing) façade both at ground and first floor levels, and a light-coloured textured render on non-glazed surfaces. A substantial first-floor deck with clear glass balustrades is in front of set-back first floor indoor areas. At ground level, a paved south-facing outdoor area also takes advantage of viewlines to the beach with additional outdoor areas to the northern and part of the eastern sides of the dwelling. east-facing windows at ground and first-floor levels are not screened, but are protected by sun shade structures attached to the dwelling's eastern façade.[1]

1. The Responsible Authority has brought this proceeding seeking to amend Permit No.12/0078 issued by them on 8 February 2012. The permit allows for the development of the land at 12 Tulum Court, Balnarring Beach for a two storey dwelling. They have brought the proceeding because they acknowledge that they failed to notify the owners and occupiers of the abutting land at 14 Tulum Court (the Kaye's) of the permit application. The consequences of the failure to give notice has resulted in an element of overlooking into the eastern side private open space area of the Kaye's property at 14 Tulum Court.

1. The Responsible Authority issued Permit No P06/2764 on 26 June 2007 for a double storey dwelling on the land and associated vegetation removal. On 9 July 2009 an extension of time of two years was granted.
2. In May 2010 the Responsible Authority received an application to amend the permit under section 72 of the Planning and Environment Act 1987 (the Act). This amendment sought to amend the design and appearance of the dwelling by the introduction of five new windows on the first floor of the west elevation facing the adjoining land. This amendment was advertised. No objection was received from the adjoining land, as it was at the time in the same ownership as the subject land. This amendment was approved on 29 October 2010.
3. In February 2011 a second amendment application was made seeking to delete a requirement in condition 1 of the permit which required 'increased setbacks from boundaries', although not the boundary to the adjoining land. This amendment was approved on 23 February 2011 and on the same day plans were endorsed under the permit.
4. Permit P06/2764 expired on 9 July 2011. However in August 2011 a third amendment application was made seeking to remove five pine trees from the adjoining land reserve. This application was advertised and an objection was received from the adjoining land owner, Ms Tania Kaye. A notice of decision to allow the amendment was issued on 8 December 2011 but a permit comprising the amendment was never issued because it was noted the permit had expired.
5. On 25 January 2012 a new permit application was made. The plans accompanying this application were similar to what had been approved under the 2007 permit.
6. Permit No.12/0078 was issued on 8 February 2012 by the Responsible Authority's delegate. No notice of the application was required on the basis that 'the original application and the amendment were advertised and the current application is identical'.
7. Plans pursuant to permit 12/0078 were endorsed on 15 March 2012. The plans show five windows along the western elevation, being a non-openable window to the stairwell; two openable windows to the Master Bedroom's en-suite; and two openable windows to the Master Bedroom.
8. The debate before me has not been whether notice should have been given, this is acknowledged. The Responsible Authority submits the permit may be amended under section 87(1) of the Act on the basis of a failure to give notice in accordance with the Act and a material mistake in relation to the grant of the permit. In this respect the Responsible Authority submits it did not consider whether the grant of the Permit would cause material detriment to any person as required under section 52(1)(a) and whilst this was a mistake the Responsible Authority did not in granting the permit consider or require screening to the west facing habitable room windows to meet the requirements of the ResCode objectives under clause 54.04-6 as required under the Design and Development Overlay Schedule 3 applying to the land.
9. The debate relates to how, and if, the windows should be screened to address the issue of overlooking. The dwelling is currently under construction and the Tribunal has powers to amend the permit until such time as the building is complete.

1. The Responsible Authority relies upon the views of Mr Crowder and submits there should be screening to the habitable room windows. In this respect they submit that there already exists overlooking between the two properties with a number of first floor windows at 14 Tulum Court, the Kaye's dwelling having a direct outlook into 12 Tulum Court.
2. Mr Crowder did not consider this extent of overlooking needed to be addressed rather he considered the habitable windows of 14 Tulum Court at ground level as well as the side deck, which currently affords privacy due to the boundary fence should continue to be given privacy by the screening of the first floor windows of 12 Tulum Court. In his view measures should be undertaken to restrict downward views and this should be addressed at the source rather than by way of landscaping as proposed by Mr Wadeson. He highlighted various ways the screening could be addressed and concluded that such screening should be 'performance based' requiring compliance with Standard A15 of Clause 54
3. The permit holder relies upon the views of Mr Wadeson and submits screening is appropriate, but the form of screening should be landscaping, rather than treatment to the windows. Mr Wadeson expressed the view that 'the design integrity of the proposed dwelling would be compromised by ad-hoc upper level angled window screening, and that a more desirable treatment in this beach front location would be achieved by improved landscape planting along the common boundary of numbers 12 and 14 Tulum Court'. He recommended the planting of additional Banksia trees along the common boundary and in the interim a requirement that established tall vegetation be located along the common boundary in appropriately sized and located planters.
4. The Kaye's support the application of the Responsible Authority and submit 'all first floor west facing windows on the new dwelling be screened to a height of 1.7m above first floor with fixed opaque glass; and all first floor west facing windows be non-openable to a height of 1.7m above first floor level'.
5. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Mornington Planning Scheme, I have decided to allow the application and include a new condition by way of amendment to Permit No 12/0078. My reasons follow.

1. Having visited the two properties at 12 and 14 Tulum Court I have concluded that the deck area of 14 Tulum Court provides considerable privacy and is clearly utilised as an area of secluded private open space. It therefore should be protected by limiting views into the area.
2. Although the Responsible Authority has acknowledged it did not give notice of the permit application to the Kaye's, I consider there has been a material mistake in relation to the grant of the permit in that the council officer who assessed the application failed to properly assess the application particularly in relation to the ResCode provisions required under the Design and Development Overlay Schedule 3.
3. I note that the earlier delegate's report approving the first amendment to the 2007 permit, when the windows were first proposed, did not consider they required screening and it appears to be a reliance on these comments that has resulted in no notice being given and no assessment of the impacts on the adjoining property being properly undertaken.
4. It appears the conclusion relating to the 2007 permit that no screening was required was based on various considerations including that the adjoining owners had not objected, the windows were narrow and they were bedroom windows. I note that the land was at that time in the same ownership as the subject land. Although the officer did conclude the bedroom windows 'would not meet the overlooking requirements of standard A15 as they are located within 9 metres [of] the secluded private open space and habitable room windows of the adjoining dwelling at 14 Tulum Court'.
5. The objective of Standard A15 is 'to limit views into existing secluded private open space and habitable room windows'. Design and Development Overlay Schedule 3, that applies to the land, requires that certain specified provisions of ResCode apply to the building of one dwelling on a lot and includes the objective of Standard A15.

1. I agree with both Mr Crowder and Mr Wadeson that this is not a habitable room. Whilst there is the possibility of a person stopping on the stairway and looking out the window into the deck area of 14 Tulum Court I do not consider that this necessitates the requirement for any screenings to this window.

1. The two windows to the ensuite are large, one is located opposite the wash basin and the other near the toilet and bidet. They are what would be described as casement windows. They are hinged on their right side and swing open like a door from left to right with a crank handle that opens and closes them. Whilst these two windows have opaque glass they are openable. The angle of the opening allows for direct downward views into the deck area of 14 Tulum Court. The opening is in the order of approximately 250mm and apart from the clear downward view the opened windows also allow for an angled view to the south west towards Balnarring Beach.
2. I consider the use of opaque glass appropriate. I am however reluctant to require the windows in the ensuite to be non-openable as requested by the Kaye's. Ventilation to bathrooms is in my view necessary.
3. I expect there are various solutions to address the direct downward views from these windows to the deck area of 14 Tulum Court, a different style of window could be inserted that allowed it to be opened only in the top half or a form of louvres could be placed under the windows preventing the direct downward view.
4. The Responsible Authority through Mr Crowder said screening should occur at the source and I would agree. Mr Wadeson indicated that it would be preferable to screen the downward views by way of landscaping. This might be appropriate in other circumstances but not in this case. The wall along the boundary is at least 2.5m high so any plants that would be located along the boundary would have to be considerably higher. Mr Wadeson had indicated interim planting in planter boxes could address the situation immediately, whilst his suggestion of Banksia trees grew to an appropriate height. Banksia are a coastal tree found nearby and some do grow to a considerable height, they however can take considerable time to reach the type of height envisaged in this location and not always do they grow with a thick upper canopy that may be required.
5. In the current circumstances I consider that rather than require the insertion of a new condition that requires a performance based compliance with Standard A15 which would give the permit holder a choice of how it would deal with the situation, it would be more appropriate for all concerned that I require a specific treatment to be undertaken. In this respect I have adopted the suggestion of Mr Crowder that fixed louvres or a screen be placed directly under the windows for the width of each window and extending out from the wall 500mm to ensure there is no direct downward view into the deck area of 14 Tulum Court.

1. There are two casement windows to the Master Bedroom. These windows do not contain opaque glass, they are also openable outward from left to right to a width of 250mm and they also provide direct downward views to the deck, as well as views into the ground floor habitable rooms of 14 Tulum Court. These windows also provide an angled view towards Balnarring Beach.
2. As with the windows in the ensuite I am reluctant to require that they be unopenable. South westerly breezes are often relied upon in this coastal environment for cooling and whilst there is a large picture window that faces south and has direct views onto Balnarring Beach I did not observe that this was openable.
3. I am also reluctant to require that these windows contain opaque glass. I expect that as they are bedroom windows the permit holder will use some internal screening such as blinds or curtains and this will reduce to a certain extent the potential for direct overlooking. These windows are located a little further along the west elevation to the south and therefore unlike the ensuite windows are not directly opposite the deck area of 14 Tulum Court.
4. Whilst not requiring the windows in the Master Bedroom to be unopenable or to have opaque glass I do consider that they have a similar Louvre or screen placed directly underneath each window to prevent direct downward views either to the deck area or to the habitable room windows of 14 Tulum Court.
5. I have required this consistent approach for each of the four windows that I consider will have an impact on the adjoining property. The permit holder may consider that these requirements compromise in some way the overall design of the dwelling. In my view I do not consider the design will be compromised, the screens are to be located on a side wall that is really only to be viewed directly from the adjoining dwelling or obliquely from the beach.

1. It is considered that it is just and fair in the circumstances that Permit No 12/0078 be amended by the inclusion of an additional condition requiring screening in the form of louvres or a screen to be located directly under the two ensuite windows and two master Bedroom windows at first floor on the west elevation to prevent direct downward views to the adjoining property. Such screens are to be the width of the windows and extend no less than 500mm from the wall.

[1] Extract from Report of Nevan Wadeson

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.