In Condition 1.1.1 for 39.2 metres substitute 41.2 metres, and for 45.89 metres substitute 47.89 metres.

A reduction in the finished roof level by 1.5 metres from that shown on plans Issue E. The Finished Roof Level must not exceed 249.17metres AHD. The maximum building height must not exceed 8 metres.

In Condition 1.1.15 add the following sub-section 1.1.15.6:

particular attention is to be paid to strengthening the planting on the northern and eastern elevations of the building within the building envelope.

The finished floor level of the shed to be not greater than 244.00 metres AHD

Prior to the commencement of construction of the dwelling, the proposed entrance carriageway must be constructed and sealed at least as far as the existing fence and gate to the satisfaction of the Responsible Authority.

The permit conditions to be renumbered accordingly.

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Mr Richard Umbers, planning consultant of Peninsula Planning Consultants

Mr Nicholas Jones, McKean Park lawyers, who called:

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Mr David Hansen, planning consultant, Hansen Consulting.

1 The applicant proposes to build a large dwelling on two levels with living space totalling approximately 670 sq.m on an irregularly shaped allotment of some 15ha lying on a steeply sloping site commanding magnificent views over Port Phillip Bay. The site adjoins Arthurs Seat Park to the north, abuts McLear Road to the west and has access from Cloud Street to the south.

2 A building envelope of approximately 1ha has been designated on the site adjoining the access to Cloud Street under the provisions of a Restructure Overlay.

3 The building will be recessed into the steeply sloping site so that only one level is apparent when viewed from Cloud Street to the south. Access to the site is to be constructed from Cloud Street between Nos 28 and 30.

4 Extensive accommodation is to be provided which is described in detail on pp3-4 of the expert witness report presented by Mr Umbers. Key points which require mention are:

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The extensive provision of windows and decks to capture the views to the north.

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The proposed finished floor level of the ground floor is 242.10 metres AHD and of the upper floor 245.10 metres AHD.

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The maximum height is proposed to be 7.88 metres above natural ground level measured through the billiard/living room. The roof to be pitched colourbond "Woodland Grey". The finished roof level is proposed to be 250.67 metres AHD.

5 It is also proposed to construct a shed 18m by 9m with a wall height of 4.2m and a ridge height of 5.2m on land to the west of the dwelling and setback 31.68m from the boundary of 32 Cloud Street.

6 Within the access, which is 18m wide, a 5m paved driveway is to be constructed, an above ground gas tank to be located and a fence and gate is to be provided some 18-20m from Cloud Street.

7 Some vegetation will be cleared for the house site.

8 The site is within a Low Density Residential Zone (LDRZ) in the Mornington Peninsula Planning Scheme. The houses in Cloud Street and adjacent streets are within a Residential 1 Zone. Land to the north forming Arthurs Seat Park is in a Public Conservation and Resource Zone (PCRZ).

9 Under the LDRZ a permit is not required to use the land for a single dwelling provided conditions relating to the provision of waste treatment, water supply and electricity supply are met. These issues are not matters of contention at this hearing.

10 The land is also affected to varying degrees by nine overlays.

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Design and Development Overlay Schedule 3 (DDO3) (affects the access area from Cloud Street)

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Design and Development Overlay Schedule 4 (DDO4) (affects the whole of the site except the access from Cloud Street)

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Erosion Management Overlay Schedules 1 & 2 (EMO1 & EMO2) (affect the western and eastern parts of the building envelope respectively)

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Environmental Significance Overlay Schedule 17 (ESO17) (affects the land but does not appear to affect the building envelope)

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Environmental Significance Overlay Schedule 28 (ESO28) (affects a significant part of the land but does not appear to affect the building envelope)

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Restructure Overlay Schedule 7 (RO7) (affects the whole of the land except the access from Cloud Street)

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Significant Landscape Overlay Schedule No 1 (SLO1) (affects the whole of the land and adjoining land in Cloud Street)

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Vegetation Protection Overlay Schedule No 1 (VPO1) (affects the whole of the land and adjoining land in Cloud Street).

11 Following the advertising of the proposal, seven objections were received. Notice of the application was given to the Department of Sustainability and Environment and the Country Fire Authority. Both organisations responded indicating that they had no objections to the proposal or the attached conditions.

12 Since then, the plans have been subject to considerable discussion and amendment. The major changes which were incorporated in Issue C and D plans have involved moving the house further down the slope to minimise its impact on Cloud Street properties. These plans were circulated to all objectors to the permit application.

13 Council decided to issue a Notice of Determination to Grant a Permit on 23 February 2005 subject to a wide range of conditions. Condition 1 required a number of significant changes to the plans to meet the concerns of objectors.

14 I was advised that the permit and its conditions are based on plans known as Issue C and that the plans Issue E which have been provided to the Tribunal and all parties include revisions to incorporate those permit conditions which relate to plan alteration.

15 A summary of these changes is included in Mr Newman's submission, those of particular relevance to this hearing include conditions requiring a reduction in the building height and the resiting of the dwelling further down the slope to reduce impact on adjoining residents and their views, cross sections to illustrate the overall building height, details and location of all outbuildings and details of all landscaping.

16 Mr Newman indicated in his submission that

The siting and design of the dwelling as shown on the Issue E drawings accords with the changes required by the proposed condition 1, and, as such, are supported by Council. (p6)

17 I note that the building height in plans Issue E is 7.88 metres which complies with the requirement of DDO4 and that the setbacks from Nos 28 and 30 Cloud Street have been increased to 39.2 metres and 45.89 metres respectively as required by Condition 1.1.1.

18 Applications for review of the Council's decision were lodged on behalf of Mr and Mrs D'Ambrosio of 28 Cloud Street, Mr and Mrs Young of 30 Cloud Street and Ms Ann Doyle of 32 Cloud Street. The principal Grounds for Review are:

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Lack of regard for the established streetscape and development pattern in terms of height scale and siting

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The building is visually intrusive

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Failure to protect shared viewlines

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Viewlines will be further disrupted by the shed and proposed landscaping

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The proposed gas tank, gates and landscaping are proposed to be constructed in a area subject to an easement of access in favour of he objectors and they will prevent access to existing garages

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Failure to meet the objectives of DDO4

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Failure to meet the objectives for local character in the MSS.

19 At the hearing I was presented with an extensive range of plans and photographs.

20 I visited the site and surroundings prior to the hearing and again after the hearing. On the second visit I reviewed the site and the proposal from the gardens and decks of Nos 28, 30 and 32 Cloud Street and was assisted in assessing the impact of the proposal by the presence of height poles placed in position by Speedie & Associates, licensed surveyors.

21 The poles illustrate the finished roof level AHD at four points on the building as indicated on the survey plans ( Reference 8063H dated 5/8/05) and tags were placed on the poles to illustrate the effect if this finished roof level was reduced by 1.5 metres as discussed at the hearing.

22 With the consent of the landowner, the heights shown on the poles were checked, and agreed as accurate, by surveyors from Reed Consulting on behalf of the owners of No 30 Cloud Street.

23 The primary feature of this site is the outstanding panoramic view of the skyline, the coast of Port Phillip Bay and the hinterland of Dromana, Safety Beach and Mount Martha to the north. The tall buildings of Melbourne city centre are a prominent feature of the distant skyline.

24 The site lies downslope from the existing properties in Cloud Street and Seahaze Street which cluster along the edge of the escarpment and are all sited to make the most of their opportunities for similar views.

25 The major part of the site, the lower slopes, is free of vegetation. A substantial stand of eucalypts forms a visual barrier for properties to the east on Seahaze Street. Several large individual trees are located nearer the centre of the site, one of these has clearly suffered storm damage and is proposed to be removed.

26 In the surrounding streets, two storey houses are predominant with upper levels often having deck space and large windows to capture the outstanding views. Architectural styles vary.

27 The three closest dwellings are No 28 Cloud Street which is a two storey dwelling with upper level deck facing north, No 30 which is a single storey dwelling also with an elevated rear deck facing north, and No 32, which is a split level dwelling similarly provided with an elevated deck.

28 The basic provisions of the LDRZ zone are set out above.

29 I do not intend to set out in detail the provisions of all nine overlays which apply to the site. These are given in submissions by Mr Umbers, Mr Newman and Mr Hansen. However, from these provisions I believe that the following represents the key issues which any application should address.

30 The Restructure Overlay seeks to minimise any potential impact of development on the high scenic qualities of the Arthurs Seat escarpment by requiring any dwelling to be constructed within a building envelope. The building envelope in this case is near the top end of the site and includes the only 'bench' within the slope. This location is also important in meeting the objectives of Erosion Management Overlays 1 & 2, namely to prevent development in areas prone to erosion or landslip.

31 The Restructure Overlay does provide an option for an alternative envelope to be defined. Neither the applicant nor any objector sought to do so which is a recognition that the designated envelope is the only sensible place on the site for development.

32 The key issues then to be addressed are those contained in the Design and Development Overlay Schedule 4 whose objectives include

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To minimise earthworks in areas prone to erosion

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To ensure new development has regard to the existing streetscape

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To protect shared viewlines where reasonable and practical

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To ensure buildings are designed to avoid being visually obtrusive particularly in terms of creating a silhouette above the skyline.

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A building must have a building height of no more than 8 metres and must contain no more than 2 storeys above natural ground level.

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These provisions cannot be varied with a permit.

34 The Significant Landscape Overlay and the Vegetation Protection Overlay seek to reinforce the importance of vegetation in the landscape and to seek to ensure that the siting, design and landscaping of any buildings is responsive to the landscape.

35 Having regard to the material provided to me, my visits to the site and consideration of the Mornington Peninsula Planning Scheme, I believe that the key issues for determination in this case are:

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Does the design have due regard to the established streetscape and development pattern in terms of height, scale and siting?

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Are the new dwelling and the proposed shed visually obtrusive and do they unduly impact on shared viewlines?

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Will the landscaping and siting of the ancillary features, the gas tank and the gates have an adverse impact on the area?

36 Of those, the submissions of the objectors made it clear that the visually intrusive nature of the building and its consequent impact on views was their major concern.

Does the design have due regard to the established streetscape and development pattern in terms of height, scale and siting?

37 As outlined above this is an area of predominantly two storey dwellings many of which break the tree canopy in their desire to obtain views of the Bay and beyond. They are varied in size, scale and architectural style but in other ways present to a conventional two sided street.

38 The proposed building is quite separate and should not, in my view, be considered in the same light. It lies on a large site and is some 40 metre beyond and downslope from the rear fence of the nearest houses. It is not part of the local streetscape in the conventional sense.

39 Views of houses in this area can only be obtained from some distance. Viewed from Mr D'Ambrosio's deck the Mornington Peninsula Freeway is a very visible feature in the landscape. However, when looking from the freeway, or other adjacent local roads, houses in this area appear as small blocks within a treed hillside and it is virtually impossible to pick out any particular house. The new house will have a larger presence but will still be so distant as to make no special impact. Arthurs Seat Road is steep and winding and fully treed on its eastern side. The site is not visible from that road.

40 The site is a large one and can absorb a building of this scale. Its recession into the hillside with some limited benching, the articulation of the façade, the use of natural stone and muted colours, and the existing and proposed landscaping will, in my view, ensure that its overall impact on the wider landscape will be kept within acceptable limits. The proposed further reduction in the overall roof height by 1.5 metres will further assist in reducing its profile.

Are the new dwelling and the proposed shed visually obtrusive and do they unduly impact on shared viewlines?

41 I believe that these two issues are related and I discuss them together.

42 It is clear that neither the dwelling nor the shed by dint of their location on the slope will be visually obtrusive in terms of breaching the escarpment skyline when seen from the north and therefore the key objectives of SLO1 are satisfied in that regard.

43 In my view the real issue is whether the buildings are visually obtrusive in terms of their impact on the outlook from adjoining properties to the south in particular Nos 28, 30, and 32 Cloud Street and whether as a result they impinge unreasonably on their views.

44 The assessment of views has been considered by the Tribunal on many occasions. Past decisions have generally relied on the principles set out in Tashounidis v Flinders SC (1987) 1AATR 116, however these have since been refined and restated most succinctly by Senior Member Marsden in J Healy and Ors v Surf Coast SC P362/2005 and I repeat these here for convenience.

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There is no legal right to a view

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Views form part of the existing amenity of a property and their loss is a relevant consideration to take into account

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The availability of these views must be considered in the light of what constitutes a reasonable sharing of those views

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In addressing the concept of reasonableness it is relevant to consider

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The importance of the views to be lost within the overall panorama available and

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Whether those objecting have taken all appropriate steps to optimise development of their own properties

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Added emphasis will be placed on principles set out in the second and third dot points above if the issue of views is specifically addressed in the planning scheme.

45 In this case there is a clear indication through the provisions of DDO4 that views are a matter of importance.

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. (my emphasis)

46 There is little doubt about the importance of the views from a residential amenity point of view. The views from Cloud Street must be some of the best in Metropolitan Melbourne. All dwellings in the Cloud Street and Seahaze Street area have attempted to make the most of their opportunities to obtain part of these outstanding views.

47 It is clear that the proposed dwelling will affect the three closest dwellings to different degrees. The finished roof ridge level of the new dwelling as illustrated on the plans is designed to be 250.67m AHD. The impact of the shed is significantly different in that it is located within a group of trees on the western side of the block and will have a very limited impact on views to the north.

48 No 28, the D'Ambrosio property, is located to the east of the entrance to the site. It is a two storey property with a lower level area opening onto the garden. This area is concrete floored and appears to be used primarily for access to the garden and for the storage of a small sailing dinghy. The primary recreation deck is at the upper level and this has been widened at the eastern end where it has direct access to the main living room. It is also accessed from the garden by a flight of steps at the western end.

49 The ground floor of Mr D'Ambrosio's property is at 250.32m AHD and the upper floor at 253.09m AHD. The property has a significant advantage over Nos 30 and 32 in that the land in front drops away steeply to a gully so that there are no immediate impediments to the view. The extensive windows look almost due north across the Dromana hinterland towards Melbourne where the city towers are visible. To the north east extensive views over the Mornington Peninsula freeway and the Moorooduc hills are available. I understand from Mr D'Ambrosio that the pattern of traffic lights on the freeway is a notable part of the view in summer traffic jams !

50 The house also has sea views to the north-west although these are broken by the presence of the large eucalypts in the centre of the subject land. Further to the west views are obscured by the hillside and the trees on the western edge of the subject land.

51 From both the lower level area and the balcony I formed the opinion that the loss of views to this property would be very limited. All the existing important views to the north-east and north across Port Phillip Bay to the city would be unaffected.

52 The introduction of the new house will impact on the lower north-west views towards the Dromana foreshore. If the new house was constructed to its proposed height the view of the foreshore would largely be lost, however the reduction of 1.5 metres now suggested would allow glimpses of that foreshore. Distant views of Port Phillip Bay to the north west will still be available.

53 While the construction of the new house will clearly introduce a new built form element into these views I believe that, given the constraints which apply to the construction of that house because of the building envelope, and provided the building is moved further down the slope and the height reduction is made, the impact on Mr D'Ambrosio's views is relatively limited and in my opinion not unreasonable.

54 The shed will have a very limited impact on Mr D'Ambrosio's amenity. It is not in a line of sight to any significant view. It will be largely concealed by the substantial group of trees to the west of the driveway and the proposal to reduce the height of the visible wall by an additional 1.0 metre will further reduce its impact.

55 No 30 is located immediately to the west of the access road. It is a single storey brick residence with a tiled roof and extensive deck facing north/northwest. The deck is raised about 1.0 metre above the natural ground level and the plans show the level of this deck as 254.75AHD. Full length windows from what is presumably a living room extend the length of the deck.

56 This property also enjoys considerable views to the north and north-east. The high buildings of the city can be seen as can much of Port Phillip Bay, the Dromana foreshore and the Moorooduc hills to the north-east. Views are more constrained to the north-west and west because of the substantial stand of trees on the subject land through which only glimpses of the Bay are visible.

57 The new house will be a more prominent feature in the views from No 30 than from No 28 being much more "centre stage". However, the distant views will not be affected nor will views to the north-east. The close views of the Dromana foreshore will be lost if the new house is built to its full height but if the reduction of 1.5 metres is made glimpses of the Dromana foreshore will still be available.

58 The effect will be to introduce a new built form into the foreground, however this is no different to the experience of residents who live on the south side of Cloud Street and who have to look out over all the houses on the north side including Nos 28-32.

59 Provided that the height reduction is made, and additional landscaping executed I conclude that a reasonable sharing of views will still occur.

60 The shed will be a more obvious feature to No 30 than to No 28, however it will not interfere to any great extent with views. As discussed above the views to the north-west are obscured by the trees and only limited glimpses of the sea are available. These are distant views and will still be available above the shed. The shed will be a minimum of 55 metres from the deck of No 30 and the applicant now proposes that the shed be further set into the ground so that the visible wall height will be limited to 2 metres. This together with the substantial nature of the trees already between No 30 and the site of the shed should in my view mean that there is no undue impact on the amenity of No 30.

61 No 32 is a split level house although it would appear that the lower level is primarily the garage and storage space. The deck, which lies at 254.17m AHD, is contained within the L-shape of the house as shown on the plans so that views are more directed to the north. To the north-east the land falls away rapidly down a heavily treed slope into a gully so that views in that direction are essentially of a vegetated landscape. Swinging round to the north, the trees on the subject land allow only glimpses of the sea. A more focused view is obtained through the two large eucalypts located just above the proposed house site. And further views are available to the north-east.

62 As with No 30 the construction of the new dwelling will add a strong built form presence into a relatively unobscured view with the principal impact being felt in relation to the loss of a view of the Dromana foreshore. Views will be obtained over the new dwelling and those to the north-east to the Moorooduc hills will not be affected.

63 Again the reduction in height of 1.5 metres will be of major benefit in reducing the impact. There may be a small bonus through the proposed removal of a sizeable eucalypt at the south-east corner of the new house which would improve views towards Safety Beach.

64 The proposed shed is nearer to No 32 than any of the previous dwellings, but at its nearest point it will still be some 40 metres from the deck with substantial trees in between. The reduction in floor level will have a similar impact to No 30. The finished floor level will be required to be no greater than 244.00metres AHD.

65 There is an opportunity to further strengthen the landscaping on the western boundary of the subject land between No 32 and the shed and this will not disrupt sea views.

66 There is no doubt that the presence of this new house will change the nature of the view from Nos 28, 30 and 32 and in particular from No 32 which has the more limited view today. However, it will present as a single storey to the upper side and significant effort has been made in the series of plans to move the new house further away and downslope from the existing houses.

67 The objectors sought to have the house moved downslope by some 6 metres and the overall height reduced by 2 metres, however, I accept the evidence of Mr Umbers and the Council that to move the house a further 6 metres downslope would result in a greater impact on the landscape due to the need for more extensive earthworks around the extended deck and swimming pool.

68 The applicant has offered to move the house a further 2 metres downslope and to reduce the finished roof level by 1.5 metres. From my assessment of the impact, using the height poles as a guide, I believe that this further amendment will be effective in reducing the impact.

69 The finished roof level is the critical factor as far as views are concerned. The maximum roof height as proposed in the Issue E plans was 250.67 AHD, with the proposed reduction this will now be 249.17 AHD. This is some 5 metres below the deck level of Nos 30 and 32 and 3metres below that proposed in the Issue C plans.

70 I conclude, therefore, that the net effect of these changes will reduce the overall visual impact of the dwelling on the landscape and provide reasonable protection of shared viewlines. Similarly the proposed further cut of 1 metre will reduce the floor level of the shed and the level of exposed wall accordingly. This will reduce its visual bulk and result in a more acceptable outcome.

Will the landscaping and siting of the ancillary features, the gas tank and the gates have an adverse impact on the area?

71 At present the entrance to the site is an open strip of land with a large eucalypt in the background, distant views of the Bay are available.

72 It is proposed to locate a gateway and fence 1.8 metres high of Hillview Quarry stone pillars and merbau slats some 18 metres from the frontage. Behind the fence will be a LPG tank some 25 metres from the frontage. Mr Hansen suggests that this will block access to the rear yards of Nos 28 and 30 and the tank will be an unsightly object in the foreground.

73 Access to Mr D'Ambrosio's property does not involve the use of this land. His side of the access strip is unfenced and its amenity is enhanced by his well-kept garden. A solid fence is provided along the boundary of No 30 to which has been added a length of trellis approximately 600 mm high. I was unable to identify any access to the rear of No 30 from the subject land except through the carport which lies to the front of the proposed fence. From documentation provided by Mr Jones for the applicant the alleged right of access from the subject land to No 30 appears to be questionable. I understand from Mr Jones that his client is prepared to continue to allow access for the time being without prejudice to any legal rights.

74 There are practicable difficulties in siting the LPG tank further back into the site for access reasons. It will not be seen from No 30 because of the high boundary fence and placing it further back into the site will bring it into view from the D'Ambrosio deck. The tank will also be hidden from the street by the new fence and I therefore see no reason to relocate it. Council has include a condition requiring the use of earthy tones in the new building, and so far as safety requirements allow, these should also be applied to the LPG tank.

75 The landscaping plan as currently proposed does focus on the southern aspect of the dwelling and is relatively limited to both sides of the driveway and the area contained within the driveway circle. In my view there is a need to provide further landscaping on the south-east corner of the building, the side nearest No 28, to soften the mass of the building. In addition planting should occur on the downslope side between the house and the boundary of the building envelope to assist in the integration of the building into the overall landscape. These areas could contain large shrubs to a maximum height of 3 metres which would not obscure any views from the deck or poolside.

76 This is clearly a site where erosion could occur unless careful site management is undertaken and I note that Council has included conditions to that effect. However, I noted that the surveyors had great difficulty in exiting the site without substantially churning up ground within the access strip. This does not bode well for heavier and more frequent traffic during construction and could have implications for Mr D'Ambrosio's property which lies at a lower level. I have accordingly included a condition requiring the access carriageway to be constructed and sealed to at least the position of the existing gate to minimise any potential impact. Any further measures can be resolved through Council's existing Condition 18 for erosion prevention.

77 Having considered all submissions in the light of the relevant planning policies and visited the site and surrounding properties on two occasions I conclude that the development now proposed incorporating the changes in location and the reduction in overall height for both the main dwelling and the shed as discussed above will result in an acceptable outcome.

78 On that basis I direct that the decision of the Responsible Authority be varied and that a permit issue incorporating the changes set out in the above order.