RESPONDENTS: Bass Coast Shire Council, Phillip Island Conservation Society Inc., Bruce and Selma Telfer and others

DATES OF HEARING: Monday 17 and Tuesday 18 June 2002

MEDIUM NEUTRAL CITATION: [2002] VCAT 1388

The decision of the Responsible Authority in relation to Planning Permit Application No. 01782 is affirmed. It is directed that a permit must not be granted for the land at 4 The Esplanade, Cowes.

For the applicant for review: Mr Phillip Bisset, Solicitor with Minter Ellison Lawyers. He called the following persons to give evidence:

* Mr Timothy Biles, Town Planning Consultant with Contour Australia Pty Ltd.

For the Responsible Authority: Mr Matthew Townsend, Barrister, instructed by Maddock Lonie and Chisholm Solicitors and assisted by Mr Stuart Green, Shire Planner. Mr Townsend called Mr Craig Czarny, an urban planner, urban designer and landscape architect to give evidence on behalf of the Responsible Authority.

For the respondent objectors: Ms Margaret Hancock, President, Mr Graeme Burgan, Vice President, and Ms Margaret Johnson, Secretary, represented the Conservation Society.

The following respondent objectors appeared in person: Ms Anne Davie, Mr Bruce Telfer, Mr Eric Van Grondelle and Ms Margaret Hancock.

1. This was an application under Section 77 of the Planning and Environment Act 1987 ("the Act") to review a decision by Bass Coast Shire Council to refuse to grant a permit (in Permit Application No. 01782) to construct a five storey building comprising a 40 seat restaurant and 18 apartments over a semi-basement car park for 38 cars. The principal issue in this proceeding was whether the building was too high and would detract from the present dominance of foreshore vegetation.

2. The application for permit, which was originally for 19 apartments and no restaurant, was lodged with the Responsible Authority on 31 August 2001. Following discussion with Council officers the plans accompanying the application were amended to include a 40 seat restaurant in part of the ground floor of the proposed building.

3. Public notice of the application for permit resulted in 14 objections being received. The grounds of objection were summarised in Mr Townsend's written submission as follows:

c) increase in traffic congestion and inadequacy of car parking;

g) absence of provision for retail services at ground level;

h) lack of interaction with public spaces at ground level;

i) lack of open space for landscaping; and generally that

j) the design will detract from the natural landscape features of the area."

4. Mr Towsend advised that the application was also referred to the Responsible Authority's Urban Design consultant who expressed concern about the height of the building - suggesting it would "dominate the streetscape and existing context of the area". The Urban Design Consultant also expressed concern about the interface of the proposed restaurant outdoor eating area and the abutting footpath, there being a level difference of some 1.2m, due to the not fully excavated nature of the semi-basement car park.

5. At its meeting on 25 January 2002 the Responsible Authority considered the application for permit and, consistent with its officer's recommendations, determined to refuse to grant a permit on the following grounds:

"The plans presented as part of the application are not of an accuracy to allow adequate assessment of the application.

The development as proposed is excessive in height and is inappropriate in the way that the proposed development responds to the adjoining pedestrian environment and therefore contrary:

* To the Cowes Foreshore Precinct Phillip Island Urban Design Report.

The proposal is contrary to the orderly and proper planning of the area."

6. The application for review was lodged with the Tribunal on 8 February 2002 and the stated grounds for review are:

"The development as proposed is not excessive in height and is appropriate in its response to the adjoining pedestrian environment and therefore is consistent in regard:

* To the Cowes Foreshore Precinct Phillip Island Urban Design Report.

The proposal is not contrary to the orderly and proper planning of the area."

7. The hearing was conducted over two days. Sometime following the hearing we inspected the subject land as well as the surrounding foreshore precinct - including outside of the properties of Messrs Telfer and Van Grondelle at 5 Findlay Street.

8. Except for Mr Van Grondelle, who presented an oral submission, those parties or their representatives that attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing - including a statement of evidence by Mr Jason Walsh, Senior Traffic Engineer with the firm Grogan Richards Pty Ltd - have been attached to the Tribunal's file. Consistent with the Tribunal's Practice Note, Mr Walsh's statement of evidence had been circulated to all parties prior to the hearing. In the course of the hearing however all parties agreed that they were content to rely on this as evidence-in-chief and did not need to cross-examine Mr Walsh.

9. In the course of the hearing and without objection from any of the parties we amended the application for permit in two ways. These amendments were made pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). This clause provides that in a proceeding for review of a decision of a responsible authority under the Planning and Environment Act, the Tribunal may make any amendment to the application for permit that it thinks fit including "as to use or development different from the use or development mentioned in the application".

10. The first amendment was to substitute the name "Oldfella Investments Pty Ltd" -as the name of the permit applicant, rather than the name of the building designer which had originally appeared. Secondly and at the request of the permit applicant, we substituted revised plans (Reference TP01 to TP09) dated 14 May 2002 for those plans which had been considered by the Responsible Authority. The principal change shown on the revised plans was a reduction in the height above footpath level of the restaurant. This height was reduced from 1.2m to 900mm.

11. Also in the course of the hearing we sought confirmation that it was intended to continue to operate an on-premises liquor licence in relation to the proposed 40 seat restaurant which is to replace an existing 160 seat restaurant on the land. This was confirmed. This being the case we suggested that it might be appropriate to further amend the application for permit by referring to this continued licensing arrangement. Clause 52.27 of the Scheme provides that a permit is required to use land to sell or consume liquor if any of the following apply:

* A licence is required under the Liquor Control Reform Act 1998.

* A different licence, or class of licence is required from that which is in force.

* The hours of trading allowed under any licence are to be extended.

12. While there is some reason to believe that no permit is required given the fact that the land already benefits from a liquor licence, we think it would be more clear for the matter to be confirmed. We are satisfied that there would be no prejudice from our so amending the application as clearly all parties, including the Responsible Authority, have acted on the understanding that the premises would be licensed. For example reference is made in the draft conditions tendered by the Responsible Authority to the service and consumption of liquor.

13. The subject land is located on the south-east corner of The Esplanade and Findlay Street in Cowes, opposite the Cowes Foreshore Reserve.

14. The site is irregular in shape and has a frontage of 25m to The Esplanade, a side boundary of 42m to Findlay Street and an overall area of 1050 sq m. The site is not as deep as others facing The Esplanade, it having been apparently subdivided at some time in the past.

15. The site is currently occupied by a single storey, gable roofed building used for the purpose of a 160 seat restaurant and known as the Clock Café. We were advised that this premises is seasonal in nature - it is presently closed for the winter. To its rear is an informal, 18 space car park accessed from Findlay Street. The site is devoid of any significant vegetation. However, Norfolk Island Pine Trees, with a height of approximately 25m, are located along both sides of Findlay Street within proximity of the site. The Esplanade is also lined with mature Canary Island Palm Trees on its southern side and there is a mix of Cypress Trees, Norfolk Island Pine Trees and other species within the foreshore reserve on the north side of The Esplanade.

16. The subject land is located approximately 300m to the east of the Thompson Avenue Shopping Centre which extends at right angles to The Esplanade. Between Thompson Avenue and the subject land there are firstly a number of small cafes and then the Isle of Wight Hotel. The Isle of Wight Hotel is regarded as a landmark site being in a direct line of view from the jetty that extends out from the foreshore reserve. It is also located where there is a substantial break in this foreshore vegetation. The hotel site has been the subject of various redevelopment applications. Fronting The Esplanade, between the Hotel and the subject land but separated by Findlay Street, there is the two and three storey "Continental" complex providing tourist accommodation and eating facilities.

17. To its east, the subject land is abutted by the curvilinear form of the Anchor Inn apartment complex. This development comprises a three storey flat roofed building with a narrow frontage to The Esplanade. Beyond this is the recently developed "Waves" complex which is also flat roofed and three storey in form.

18. The following description of the foreshore precinct is taken from the Cowes Foreshore Precinct Phillip Island Urban Design Report which, as will be commented upon later, is an important document in the context of this application for review.

"The topography and landscape of the Cowes area is quite gentle hills, large introduced trees in the township and a more scrubby natural look in the middle distance. The impression from long distances, especially the important over water and end of the jetty view, is one of a low and horizontal landscape. The town is not particularly evident from this view, and would be less so if it were not for the break in the tree planting caused by the open space around the jetty. This tends to reinforce the Isle of Wight hotel site as a landmark or iconic site, meaning that it is vital to the image of Cowes and the Island generally.

The building forms are mostly one or two storeys in height, and there are no large buildings occupying a whole block or near to a whole block. The pattern or "grain" has been a series of small buildings; it is this "grain size' together with the sheer variety of buildings, that seems to constitute the present urban character. As noted elsewhere, the large trees in the main streets and on the beachfront tend to be the other essential element of the urban character_. Recent additions in the foreshore precinct have added to the variety of styles, although the building footprints have been spreading, so that the developments appear larger and more homogenous within themselves than other parts of Cowes. However,_ even the larger recent developments still appear to fall within the dominant tree line_."_ (emphasis added)

19. We find the following description of the proposal taken from page 5 of Mr Biles' witness statement to be a useful one:

"The proposal is for the construction of a five storey mixed use building comprising 18 apartments and ground level café over a semi-basement car park.

There are four apartments at each level, except for the ground level where there are three apartments and a café and the penthouse level where three larger size apartments are proposed.

Each apartment provides for three bedroom accommodation, save for Unit 1, which only contains two bedrooms.

The entry lobby to the development is from Findlay Street. The lobby provides lift and stair access to each level of the building, including the car park level.

Each apartment is provided with generous outdoor living areas in the form of timber decks/balconies. Each deck has convenient access to main living areas, is able to receive a northerly aspect and comprises an area in excess of 14m2.

A total of 38 on-site car spaces are provided within the car park level, which is accessible via a ramp at the rear of the site from Findlay Street.

The building is generally set back from all boundaries, except for small sections of the building which abut the Findlay Street frontage and towards the rear of the site, on the south east boundary of the site.

While the ground floor level is generally repeated in the levels above, the reduction in size of the deck areas progressively recesses the development away from The Esplanade.

The building form is detailed with strong horizontal elements primarily comprised of window and balustrade glazing. The front `sail', which will be 1 metre wide, creates a strong vertical element and makes reference to the sites `nautical' location.

The side and rear elevations of the proposed building are primarily comprised of rendered and painted masonry elements with substantial glazing.

The front setback of the development to The Esplanade is varied, commencing at 4 metres adjacent to the intersecting street corner, to 6 metres towards the centre of the frontage, and then to 8 metres at the eastern end of the site's frontage.

The proposed building is articulated on all elevations. The proposed materials, finishes and colours are detailed on the elevations. For the main part of the development, they include rendered masonry (grey), timber cladding (stained finish) and clear glazing. The choice of materials and finishes assists in providing a softness to the contemporary form of the building and the opportunity exists to provide complimentary boundary landscaping in the form of planter boxes.

The overall building height is 18.48 metres, measured from the lowest ground level point to the top of the roof directly above the penthouse apartments."

20. The subject land is zoned Mixed Use under the Bass Coast Planning Scheme. Among other things, the purpose of the Mixed Use Zone is, to:

"Provide for a range of residential, commercial, industrial and other uses which complement the mixed use function of the locality."

21. Within this zone a dwelling is a Section 1 use for which no permit is required. A restaurant, which is included within the food and drinks premises definition of the scheme is a Section 2 use for which a permit is required. However, as noted by Mr Biles, the site is currently used as a café and operates with an on-premises liquor licence. Strictly speaking therefore the site can be said to enjoy existing use rights. Under the provisions of Clause 65.05 of the Scheme this right may continue to be enjoyed subject only to a permit being obtained for any new building. However, given the juxtaposition of the re-vamped restaurant with the proposed apartments we think an "omnibus" permit application is clearly the appropriate course to adopt, that is to say a permit application which reflects all use and development pertaining to the land. Such a permit enables consideration to be given to the different context within which the new restaurant will sit and is a much clearer approach. This is the approach that has been adopted by the permit applicants and we believe it to be the preferred one.

22. Within the Mixed Use Zone the construction of two or more dwellings requires a permit under Clause 32.04-5 of the Scheme and the construction of buildings and works in association with a Section 2 use also requires a permit, this time under Clause 32.04-7. Because the proposed building is of more than three storeys, the "ResCode" provisions at Clause 55 of the Scheme do not apply.

23. The review site is also affected by Schedule 3 of the Design and Development Overlay (DDO#). This schedule refers to the "Cowes Foreshore Precinct". The purpose of the Design and Development Overlay, apart from implementing the State and Local Planning Policy Framework, is:

"To identify areas which are affected by specific requirements relating to the design and built form of new development."

24. A schedule to the Design and Development Overlay "must contain a statement of the design objectives to be achieved for the area affected by the schedule". In this regard Schedule 3 has the following design objectives:

"To recognise the major role of the Cowes Foreshore Precinct in the strategic context of Bass Coast and Victorian tourism.

To protect and enhance the seaside character of the Cowes Foreshore Precinct.

To ensure that development is compatible with traditional town scale and development patterns.

To encourage contemporary and higher quality development design.

To protect views of the town from the waters of Westernport Bay.

To preserve the dominance of the landscape and tree canopy.

To encourage developments to be outwardly focussed so as to support safe and active streets and public places.

Reference: The Cowes Foreshore Precinct Phillip Island - Urban Design Report, Bass Coast Shire Council, Department of Infrastructure, 5 April 2000."

25. Clause 65 of the Planning Scheme sets out decision guidelines which a Responsible Authority, and this Tribunal on review, must consider, as appropriate, before deciding on an application for permit. The clause commences with the following statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."

26. The decision guidelines relevant to this application are:

* The matters set out at Section 60 of the Act;

* The State and Local Planning Policy Framework including the Municipal Strategic Statement.

* The matters required to be considered under the overlay.

27. Detailed reference was made in the evidence of Messrs Czarny and Biles, as well as in Mr Townsend's submission, to the relevant provisions of the State Planning Policy Framework and the Municipal Strategic Statement. We see no need to repeat all of these in detail. Suffice to say we consider the most relevant part of the State Planning Policy Framework to be the policy at Clause 19.03, referring to design and built form, it has as its objective the achievement of high quality urban design and architecture that:

"* Reflects the particular characteristics, aspirations and cultural identity of the community.

* Enhances liveability, diversity, amenity and safety of the public realm.

* Promotes attractiveness of towns and cities within broader strategic contexts."

28. Because the proposal is not covered by Clause 55 of the scheme, the design principles set out at Clause 19.03-2 must be had regard to in this application. Design principles at Clause 19.05-2 which are relevant to this application and which must be had regard to include those referring to context, the public realm, landmarks, views and vistas and architectural quality.

29. The State Planning Policy at Clause 14.01 referring to planning for urban settlement, also has some relevance to this application. An objective is to ensure a sufficient supply of land for, inter alia, residential, commercial, and recreational uses and to facilitate the orderly development of urban areas. Implementation of this policy refers to the need for planning authorities to "encourage consolidation of existing urban areas while respecting neighbourhood character".

30. Consistent with the State Planning Policy Framework, the Municipal Strategic Statement at Clause 21.03-1, under the key issue of "Settlement", declares the Council's strong commitment to urban consolidation and to the need to "resist encroachment of urban areas into the surrounding rural lands". At the same time the need to improve township character is acknowledged and reference is made to the preparation of urban design guidelines for Cowes.

31. At Clause 21.05-1, strategies for achieving the settlement objectives of the MSS include encouraging higher density housing in proximity to town centres. Also, on the subject of township character, objectives include enhancing the appearance of each town, to reflect its role, function and relationship to its culture and the natural environment and for new development to contribute positively to local urban character. A stated strategy is to promote the "unique character of Cowes ... through urban design measures".

32. There is also a local policy at Clause 22.05, referring to tourist development. This policy encourages tourist development to locate, inter alia, within the Cowes tourist precinct, which includes the Mixed Use Zone along the foreshore. It is policy for tourist development to be designed having regard, among other things, to the natural and built environment.

33. The relevant decision guidelines of the Design and Development Overlay at Clause 43.02-5 include:

"* The design objectives of the relevant schedule.

* The provisions of any relevant policies and urban design guidelines.

* Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

* Whether any proposed landscaping or removal of vegetation will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.

* Any other matters specified in a schedule to the overlay."

34. At paragraph 24 we set out the design objectives of the schedule. The schedule also requires that before deciding on an application the Responsible Authority "must" consider:

"* How the development responds to the urban design framework contained in the `Cowes Foreshore Precinct Phillip Island - Urban Design Report'.

35. Two principal issues for consideration arise out of this application for review. The first is whether the height of the proposed building, by being in excess of the two to three storey preferred street frontage height specified in the Urban Design Report's guidelines, would result in a development that was incompatible with the traditional town scale and would undermine the present dominance of the natural landscape. The second concerns the integration of the proposed café with the street and whether the 900mm level difference between footpath and the café's outdoor seating area represents an appropriate urban design outcome.

36. Also at issue was a concern raised by Mr Telfer in particular, that being the loss of views of foreshore vegetation from his first floor bedroom window and balcony, which are located some 30m to the south of the proposed building. A further issue raised by the Responsible Authority was the absence of any provision for off-street loading and unloading associated with the proposed restaurant.

37. In view of our findings in relation to the first and primary issue, there is no need for us to address the other matters in any detail. Suffice to say that with the change to a height differential of 0.9m, we do not find the outdoor restaurant's elevation above the level of the footpath to be inappropriate in urban design terms. In the course of our inspection we observed other outdoor eating facilities in the area that were also elevated and we have observed other such facilities elsewhere, including to the front of the Rialto building in Melbourne. From these observations we are persuaded that with careful placement of steps and balustrading, such elevated dining areas have their own benefits, including providing a sense of definition between the public and private realm and by affording less interrupted views across the roadway to the foreshore and sea views beyond.

38. On the issue of Mr Telfer's loss of views, we would not have been persuaded to refuse a permit on this ground alone. We note however that our findings in relation to the height of the building will go some way towards addressing his concerns.

39. On the issue of deliveries to the restaurant we are persuaded that for such a modest sized facility, use of the street should not be problematic provided it does not interfere with peak parking periods. We agree therefore with Mr Bissett that this issue could be quite simply addressed via a planning permit condition.

40. This brings us then to the principal issue, that of the height of the building. As noted earlier the Urban Design Report is an important document in this application. Although not an incorporated document of the scheme we nevertheless find that we must give its recommendations and the basis for those recommendations, considerable weight. Clearly the introduction of the Design and Development Overlay for the Cowes Foreshore Precinct derives to a very great extent on the preparation of this document. The report was prepared jointly by the Shire and the Department of Infrastructure and we have noted that its preparation involved extensive community input.

41. One of the Reports' most regularly cited "major threat" to the urban form, views and vistas of the foreshore precinct is the prospect of "buildings standing above the tree canopy (which) could reduce the impact of the dominant landscape that underpins the present character". At the same time the report clearly recognises the opportunity for new development that could enhance the image and sense of place of the foreshore precinct.

42. The guidelines are nevertheless very clear about the need to ensure that in any redevelopment scheme the landscape remains the dominant visual element. This is picked-up quite clearly in the objectives of DDO3, set out at paragraph 24 above. In this regard also a relevant design objective in the Urban Design Report is the development to "not be out of scale with the natural environment". Associated with this is the Urban Design Principle/Guidelines for "new development to be generally within the treescape". At page 19 of the report, in the context of design objectives for new development to "reflect traditional town scale and development", the following guidelines are set out:

"* The preferred height at the street front to be no greater than two storeys, with a maximum of three storeys subject to design quality and significant contribution to other objectives within this strategy.

* The preferred maximum development height at mid-block to be no greater than five storeys or that height which can be demonstrated to not appear above the tree canopy when seen from critical views, (see Views and Vistas previous section)."

43. The Views and Vistas section of the report identifies the view from the jetty as being "of the highest importance". The Isle of Wight Hotel takes centre stage in this view due primarily to its alignment with the jetty and the break in foreshore vegetation to the front of it. Other than the hotel, the view from the jetty is described in the report as presenting "a generally horizontal effect dominated by trees and the high ground in the mid-distance. The town is glimpsed rather than presented."

44. The view along The Esplanade is identified in the report as being "less important but still significant". It is noted that this view is also dominated by the tree canopy, so reinforcing the natural aspect of the town.

45. It was submitted on behalf of the applicant for review that the proposed development would not prevent the foreshore vegetation from remaining the dominant feature in either the "highly important" jetty view or the "significant" Esplanade view.

46. The applicant relied, to a great extent upon the second guideline set out above for development at mid-block to be not greater than five storeys or a height that can be demonstrated to not appear above the tree canopies when seen from critical views.

47. The photomontages which formed an attachment to Mr Biles' witness statement were relied upon as evidence of the fact that the vegetation would remain dominant.

48. In relation to Montages 1 and 2, viewed along The Esplanade it was Mr Biles' opinion that the building would "sit comfortably within this section of The Esplanade in relation to abutting buildings and the street trees". He was of the view also that if further permits were issued for higher buildings nearby, that this would "reinforce the well mannered relationship of buildings to the streetscape". While we might agree with Mr Biles that the resultant effect of this building could be described as well mannered we cannot be persuaded that the building sits in a secondary sense to the vegetation. More importantly, in Montage No. 5 taken from the end of the jetty - the most important view identified in the Urban Design Report - the building will be seen to clearly rise above the treeline although we acknowledge that some trees will stand higher. In Mr Biles' opinion however "the principal mass sits in the streetscape (sic) in a manner that does not stand significantly above the tree canopy".

49. It was submitted by Mr Townsend that the relevant test for establishing whether the canopy would remain the dominant element should not be one which relied upon "an imaginary line linking the tops of the highest trees". Rather, in his submission the test should be "akin to the median path through a scatter diagram". Applying this test to the critical viewpoints, particularly that from the jetty, the proposal would, he submitted, fail. In the council's and the respondent objectors' submission the land could not accommodate anything higher than a three-story building.

50. Having inspected the foreshore and the subject land from both the jetty, the beach and The Esplanade we agree with Mr Townsend's approach and his conclusions. We find that this building at five storeys would project above the tree canopy in a manner that would detract from the present "horizontal effect dominated by trees and the higher ground in the mid-distance". Also, when viewed from The Esplanade the building would have a presence which we find would tend to undermine or detract from the present and desired future character of vegetation as the dominant foreshore element.

51. Only by reducing the height to three storeys could we be persuaded that an outcome consistent with the DDO objectives could be achieved and we doubt very much, given the relatively shallow depth of this allotment, that there is scope for any greater height further back from the frontage given the relatively shallow depth of the block.

52. Having made a detailed analysis of the Urban Design Report we are also of the view that it cannot be read as implying that the subject land might be suitable for the sort of landmark building treatment identified for the Isle of Wight Hotel site. We think the report is very clear in its emphasis on the hotel site being the sole opportunity for a development that might break with the tree canopy criteria.

53. It follows therefore that we find we must direct that no permit issue. We should say that this ultimate finding should not be taken as reflecting badly upon the architectural quality of this building. Indeed in all other respects we think the architectural design is commendable. In the absence of the clear policy of maintaining the dominance of this seaside town's natural environment, we would have found that the building was consistent with the other urban design of improving and strengthening the image of the foreshore and of encouraging "contemporary and higher quality development design".

54. We are confident however that in the hands of so capable an architect as Dr Gunn that an equally excellent, yet three-storey proposal could be developed for this important foreshore site. We should say that we seriously considered providing the permit applicant with an opportunity to amend the plans accompanying the application to show a three storey outcome. However, in view of the likelihood of the overall design concept needing to be reconsidered in the context of a three-storey structure and in view also of the fact that at three storeys, the ResCode provisions of Clause 55 would be invoked, we have decided that it would not be appropriate to adopt such a course in such circumstances.