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[2003] VCAT 275
respondent. The responsible authority’s decision was affirmed. A permit was directed to issue for construction of a dwelling at 1–3 Moongana Street, Waratah Bay, subject to the conditions in the responsible...
The Tribunal let the Council’s permit decision stand. It considered that the house would not harm the coastal environment, that the effect on a neighbour’s views was limited and reasonable, and that the covenant could not be rewritten to refer to a different street. It also found the proposed building would meet the covenant’s 9.14 metre setback even if either suggested street were used as the reference point, counting the land occupied by the unnamed road.
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In Prue & Anor v South Gippsland SC [2003] VCAT 275, the Victorian Civil and Administrative Tribunal’s Planning and Environment List reviewed South Gippsland Shire Council’s decision to grant a permit for a dwelling at 1–3 Moongana Street, Waratah Bay. The review was brought under section 82 of the ([1]). The applicants for review were G.D. and T.M. Prue and I. Chalmers. Shepard Burke Design was the permit applicant, and Council was the responsible authority.
2 cited instruments linked from this judgment.
The proposal was for a three-storey dwelling on a site at the north-west corner of Gale and Moongana Streets. The design placed the building centrally, at an angle to the side boundaries. It included a car port, garage, bedroom and laundry at ground level, two bedrooms and a bathroom on the first level, and dining, living and kitchen facilities on the second ([2]–[4]). The site was 817.2 square metres, generally flat and without significant vegetation ([5]).
The land was in the Township Zone and was also affected by Environmental Significance Overlay Schedule 3 (ESO3) ([8], [11]). Council had received two objections, consulted the Department of Natural Resources and Environment, and issued a notice of decision to grant the permit in August 2002 ([16]–[18]). At the VCAT hearing, the parties provided written and oral submissions and documentary material. The Tribunal inspected the site and locality after the hearing ([19]–[21]).
The Tribunal identified two questions: how the proposal should be assessed under ESO3, and whether a restrictive covenant affected the development ([22]). The applicants also raised loss of coastal views, the building’s visual prominence, height and bulk ([24]). The order affirmed Council’s decision and directed that a permit issue, with the conditions in Council’s 15 August 2002 notice ([Order], [38]).
The first issue was the coastal overlay. ESO3’s stated purposes included identifying environmentally constrained land, ensuring compatible development, protecting coastal beauty and environmental quality, and minimising risks such as erosion and pollution ([11]–[12]). The Tribunal described the applicable decision guidelines as requiring consideration, broadly, of effects on coastal processes and the environmental and landscape qualities of the coast ([13]).
The Tribunal’s central factual assessment was that the site lay within the Township Zone on the landward side of the road running parallel to the front dune. It concluded that the dwelling would have no adverse effect on coastal processes or on Waratah Bay’s identified environmental, economic, recreational, cultural and heritage values ([23]). It also addressed visibility: any part of the building visible from the seaward side of the dune would be consistent with the limited, filtered and glimpsed views of existing residential development and infrastructure from the beach ([23]). This was a site-specific assessment, grounded in the location and existing character described in the reasons.
The second issue was the claimed loss of views. The Tribunal cited principles from Tashounidis v Shire of Flinders and Others, 1 AATR 116, and Clausen v Shire of Mornington and Others, 4 AATR 125. Those principles distinguish a legal right to a view from planning consideration of view-related amenity: there is no legal right to a view, but existing views form part of a dwelling’s amenity, and their loss is relevant. The available views are to be considered through the idea of reasonable sharing. The Tribunal also noted that more emphasis may be placed on the amenity and sharing considerations if the planning scheme specifically addresses views ([26]).
Here, the Tribunal said the planning scheme did not specifically address views ([27]). Mr Chalmers argued for a 9.14 metre setback from the eastern boundary rather than the proposed setback. The reasons give different figures for the proposed eastern setback: 6.982 metres in paragraph 3 and 6.892 metres in paragraph 25. The Tribunal’s conclusion did not depend on reconciling those figures. It found that the dwelling would not obscure the coastal view from Mr Chalmers’ residence, but would create a relatively small intrusion into the view line to the south. His expansive views to the south-east and east would not be affected ([27]). On that assessment, the loss was not excessive or unreasonable.
The Tribunal dealt with visual prominence, height and bulk by stating that those matters were relevant only for assessment against ESO3’s decision guidelines ([28]). It had already concluded that the coastal and environmental considerations did not warrant refusing the proposal.
The covenant issue turned on the wording and the site layout. The covenant purported to require a 9.14 metre setback from the frontage to the street shown as Waratah Avenue on the subdivision plan. The site did not abut a street called Waratah Avenue. The named street existed elsewhere in the locality, about 100 metres to the north, with intervening properties ([30]). The applicants argued that “Waratah Avenue” was a typing error and that Gale Street or Moongana Street should be substituted. They did not identify which of those streets had originally been intended ([31]).
The Tribunal accepted the submission that the covenant had to be construed according to its plain or literal meaning and that it could not interpret it as meaning something different ([33], [36]). It considered the uncertainty material: either Gale Street or Moongana Street might be regarded as the frontage. The planning scheme’s definition referred to the road alignment at the front of a lot and, where a lot abuts two or more roads, the road to which the building faces ([34]). The building’s orientation did not resolve the issue because it broadly faced the south-east corner where the two streets met ([35]).
The Tribunal added an alternative calculation. Even if the covenant could be interpreted to require a 9.14 metre setback from Gale Street or Moongana Street, the proposed building would meet that distance once the land of the unnamed road between the property boundary and street alignments was included. The stated distances were 12.992 metres from Moongana Street and 17.042 metres from Gale Street ([37]). It therefore affirmed Council’s decision and directed that the permit issue ([38]).
The judgment does not purport to announce a new general rule about views or covenants. On views, the Tribunal expressly relied on principles it described as having been addressed in earlier Tribunal decisions over many years, citing Tashounidis and Clausen ([26]). Its contribution in this decision is the application of those stated principles to a particular coastal township proposal: the scheme did not specifically address views, the intrusion affected only a limited part of the neighbour’s view, and substantial other views remained ([27]).
The reasons also make clear that “no legal right to a view” did not make view loss irrelevant. The Tribunal set that proposition alongside the propositions that views form part of amenity and loss is a relevant consideration ([26]). A reading that treated the first proposition as disposing of all planning consideration would not reflect the full set of principles quoted in the judgment.
On covenant construction, the Tribunal accepted a literal approach in the circumstances before it because the covenant named a street that did not abut the site and the evidence did not establish which alternative street had been intended ([30]–[36]). The decision also relied on an independent practical observation: even under either suggested street reference, the proposal exceeded the stated 9.14 metre setback when the intervening road land was included ([37]). The reasons do not establish a general rule for every drafting error in a covenant, nor do they decide every question about private covenant enforcement. They record the Tribunal’s treatment of this covenant in this permit review.
The judgment text supplied here contains no later cases or subsequent treatment. It therefore cannot establish whether later courts or tribunals followed, distinguished or reconsidered this decision.
At [23], the Tribunal said the dwelling would have “no adverse impact on coastal processes” or on the identified values of Waratah Bay. In plain English, it considered the site’s position and the nature of the proposal and found no relevant coastal harm under the overlay. It did not say that all development in a coastal township would have the same outcome.
At [26], the Tribunal recited four view principles. The first was: “There is no legal right to a view”. The next was that views are part of existing dwelling amenity and their loss is relevant. Put together, the passage means that a neighbour cannot treat a view as an automatically protected private right, but a planning decision-maker may still consider view loss when assessing amenity and reasonable sharing.
At [27], the Tribunal said the proposal would create a “relatively small intrusion” into Mr Chalmers’ southward view and would not affect expansive views to the south-east and east. That passage shows how the Tribunal applied the general principles to the particular directions and extent of the views. Its conclusion that the loss was not excessive or unreasonable was tied to those findings.
At [30]–[36], the reasons trace the covenant problem. The covenant referred to Waratah Avenue, which the site did not abut. The applicants proposed substituting one of two other streets, but could not specify which had been intended. The Tribunal concluded at [36] that it had to use the covenant’s plain or literal meaning rather than supply a different one. This should be read with [37], where the Tribunal considered the setback calculation on the alternative interpretations as well.
At [37], the Tribunal stated that the building was set back 12.992 metres from Moongana Street and 17.042 metres from Gale Street when the unnamed-road land was taken into account. Those figures exceeded the 9.14 metre setback discussed in the covenant submissions. The Tribunal’s explanation therefore had both a textual component and an alternative dimensional component.
The decision is most directly relevant as an example where a proposed dwelling is assessed under a coastal environmental overlay, in a small coastal township, on the landward side of a road parallel to a dune. The particular facts mattered: the Tribunal found no adverse coastal-process or environmental effect, and any beach visibility would resemble existing limited, filtered views ([23]). The decision does not establish that every dwelling near a beach is acceptable under an environmental overlay.
It is also relevant to planning disputes about a neighbour’s view where the planning scheme does not specifically address views. The Tribunal’s stated approach was to consider view loss as an aspect of amenity, assess reasonable sharing, and examine the actual extent and direction of the effect ([26]–[27]). Here, the claimed effect was a relatively small intrusion to the south, with expansive views in other directions unaffected. The judgment does not supply a numerical threshold for acceptable view loss.
The covenant analysis may be relevant where the instrument identifies a street or frontage that does not correspond clearly with the land in question, and where the proposed correction is uncertain. In this case, the Tribunal could not determine whether Gale Street or Moongana Street was intended. It therefore declined to interpret the covenant as naming either one ([30]–[36]). The unusual intervening unnamed road was also important to the setback calculation ([6], [37]). The case should not be read as resolving disputes involving different covenant wording, evidence of intention, or procedural settings.
The judgment text provides no information about later judicial or tribunal treatment of Prue. It cites two earlier authorities, Tashounidis and Clausen, for the view principles at [26], but does not identify later decisions that applied or distinguished Prue. No conclusion about its subsequent treatment can be drawn from the supplied judgment alone.
For research purposes, the decision itself documents a VCAT member’s application of those cited view principles to the particular facts and the Tribunal’s construction of the covenant in the permit review. Whether later decisions adopted that reasoning, and whether any subsequent statutory or planning-scheme changes affected its significance, are matters not answered by this text.
The reasons leave open how the covenant might have been treated if evidence had reliably identified the intended street, or if the covenant’s wording or plan had expressly defined the relevant frontage. The Tribunal’s conclusion was based on the ambiguity it identified and its acceptance that it could not substitute a different meaning ([30]–[36]). The supplied reasons do not determine the covenant’s operation in other circumstances or provide a general account of private enforcement.
The judgment also does not explain in detail the technical evidence about coastal processes, landscape effects or the engineering characteristics of the site. It records the Tribunal’s conclusion at [23], and notes that the Department of Natural Resources and Environment had no objection subject to standard conditions ([17]), but the full supporting material is not reproduced in the text supplied.
The view assessment is similarly fact-specific. The reasons describe the directions in which views would be affected or preserved, but do not set out a general measurement method for view loss. Nor do they decide how the principles might apply where a planning scheme expressly protects views, a possibility the Tribunal noted in the fourth principle at [26].
Finally, the text does not resolve the apparent discrepancy between the eastern setback figures at [3] and [25]. It records 6.982 metres in the proposal description and 6.892 metres in the account of Mr Chalmers’ submission. The Tribunal’s view-loss conclusion is stated by reference to the limited intrusion and remaining views, while the covenant conclusion relies on the separate distances calculated from the street alignments ([27], [37]).
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PLANNING AND ENVIRONMENT LIST Application for Review No.P2352/2002
Application for Review under S. 82 Planning and Environment Act, 1987, dwelling, Township Zone, Environmental Significance Overlay, Restrictive Covenant,
Respondents (Permit Applicant) Shepard Burke Design
Responsible Authority South Gippsland Shire Council
MEDIUM NEUTRAL CITATION: [2003] VCAT 275
The decision of the responsible authority is affirmed. A permit is granted and directed to be issued for the land at 1-3 Moongana Street, Waratah Bay
The permit must contain the conditions set out in the responsible authority's notice of decision to grant a permit issued on 15 August,2002
Mrs T Prue and Mr I Chalmers, the Applicants for Review, appeared on their own behalf.
Mr J Gajic, town planner, appeared on behalf of the Responsible Authority.
Mr C Barlow of Middletons Lawyers, appeared on behalf of the permit applicant.
1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("The Act") brought by T and G Prue & I Chalmers to review a decision by the South Gippsland Shire Council ("The Council") to grant a permit in application no.2002/79
2. It is proposed to construct a three storey dwelling on a site located on the north - west corner of Gale Street and Moongana Streets, Waratah Bay.
3. The dwelling is proposed to be located centrally within the site with an orientation which is at an angle to the two side boundaries. The dwelling is proposed to be setback 11.050 metres from the Gale Street frontage. 3.5 metres from the western boundary and 6.982 metres form the eastern boundary.
4. The design provides for a car port and garage, one bedroom and laundry at ground level, two bedrooms and bathroom at the first level, and dining, living and kitchen facilities at the second level.
5. The review site is of regular configuration with a frontage of 24.38 metres and a depth of 33.52 metres, and an area of 817.2 m2. The site is essentially flat with no significant vegetation.
6. As I have stated above the site is located at the intersection of Gale and Moongana Streets, however the site is somewhat unusual in that there is an unnamed road, perhaps equivalent to a service road, located between the alignment of Gale and between Moonganah Streets, abutting the boundaries of the site. I was advised that this arrangement dates from a time when the site was zoned for commercial purposes and the unnamed road was intended to be used as a service road or indented parking.
7. The site is located within the town of Waratah Bay which is primarily a small holiday township. Gale Street runs parallel with the foreshore but is setback from it and separated from the beach by the front dune. All residential development in the town is located on the north side of Gale Street.
8. The site is zoned Township under the South Gippsland Planning Scheme. The purpose of the zone is;
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To provide for residential development and a range of commercial, industrial and other uses in small towns.
* To encourage residential development that respects the neighbourhood character.
9. A permit is not required to use land for the purpose of a dwelling, provided that clause 32.05-2 is met. These requirements relate to the provision of reticulated sewerage, water and electricity, or suitable alternatives. These requirements are capable of being met.
10. Clause 32.05-5 stipulates that a permit is required to construct a dwelling on a lot of less than 300 m2. The review site has an area of 817 m2.
11. The site is also affected by an Environmental Significance Overlay Schedule 3 (ESO3). The purpose of the overlay is;
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To identify areas where the development of land may be affected by environmental constraints.
* To ensure that development is compatible with identified environmental values.
12. The Statement of significance in the schedule to the overlay refers to the environmental, economic, recreational, cultural and heritage values of South Gippsland's coastal areas, and the environmental objectives to be achieved are;
* To protect and enhance the natural beauty of the coastal area.
* To protect and enhance the environmental quality of the coastal area.
* To minimise the risk of erosion, pollution and destruction of the environment through poorly managed development.
* To ensure that development adjacent to coastal areas is compatible with the environment and does not result in adverse impacts on coastal processes.
13. A permit is required to construct a building or construct or carry out works . Decision guidelines are at clause 42.01-3 and clause 4.0 of the schedule. In broad terms the guidelines require consideration of the affect of a proposal on coastal processes and the environmental and landscape qualities of the coast.
15. I note that at clause 21.06, encouragement is given to the retention of Waratah Bay as a small coastal village by restricting any further development to within existing town boundaries.
Council Consideration and the Application for Review
16. The planning permit application was received by the Council in February 2002, and following the receipt of additional information, notice of the application was required to be given. Two objections to the application were received.
17. The Council sought the views of the Department of Natural Resources and Environment who advised it had no objections to the application subject to the imposition of standard conditions.
18. A Notice of Decision was issued by the Council in August 2002, and Applications for Review of the Council decision were subsequently commenced.
19. At the review hearing, all parties tabled and read from written submissions and supplemented these with oral submissions.
20. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The material submitted in documentary form, together with the written submissions, have been retained on the Tribunal's file.
21. I inspected the land and locality unaccompanied by the parties following the hearing.
22. There are two issues which require my consideration in this matter. Firstly the application must be assessed against the provisions of the ESO 3, under which a permit for the construction of the building is required. Secondly, I received submissions with respect to the application of a restrictive covenant which applies to some lots in the Waratah Bay township. I will deal with each matter in turn.
23. With respect to the relevant matters under the ESO3, it is abundantly clear that the construction of a dwelling within the Township zone, on a site which is located on the landward side of the road running parallel to the front dune, will have no adverse impact on coastal processes or the environmental, economic, recreational, cultural and heritage values of Waratah Bay. To the extent that any part of the building will be visible from the seaward side of the front dune, it will be consistent with the very limited, filtered and glimpsed views of existing residential development and associated infrastructure which are currently available from the beach.
24. I also received submissions from Mrs Prue and Mr Chalmers that the proposed dwelling will obstruct views of the coast and that the visual prominence, bulk and height of the proposed dwelling is excessive.
25. With regard to the concerns about loss of views, it was Mr Chalmer's submission that the proposal ought to be setback 9.14 meters from the eastern side boundary as opposed to the proposed 6.892 meters, in order to preserve existing view lines around which his house has been designed and sited.
26. The issue of loss of views is one which has been the subject of a number of Tribunal decisions over many years and in dealing with this often contentious issue, the principles set out in Tashounidis v. Shire of Flinders and Others 1AATR 116 and Clausen v. Shire of Mornington and Others 4 AATR 125, are of assistance:
(b) Views form part of the existing amenity of a dwelling and their loss is a relevant consideration to take into account;
(c) The availability of views must be considered in the light of what constitutes a reasonable sharing of those views; and
(d) Added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.
27. I note that the question of views is not specifically addressed in the planning scheme. Having regard to the fact that it is proposed to construct a dwelling in a Township Zone, on a lot located adjacent to the front dune between Mr Chalmer's property and the coast, I do not regard the loss of views suffered by Mr Chalmers to be excessive or unreasonable. The views of the coast from Mr Chalmer's residence will not be obscured by the proposed dwelling, but rather there will be a relatively small intrusion into the existing view line to the south. The proposal will have no impact on the expansive views currently enjoyed to the south - east and east.
28. With respect to the concerns raised about the visual prominence, height and bulk of the proposed dwelling, these are only relevant in terms of an assessment of the proposal against the decision guidelines of the ESO3, upon which I have commented previously.
29. The second issue relates to the application of a restrictive covenant. I record here that the parties gave consent to me to make a ruling on this matter, pursuant to section 66(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
30. The review site is subject to a covenant which purports to impose a requirement that any building erected on the land must be setback 9.14 metres from the frontage of the lot to the street shown as Waratah Avenue on the plan of subdivision. The review site does not however have an abuttal to a street known as Waratah Avenue. A street of that name does exist in the locality but runs on an alignment parallel with Gale Street commencing approximately 100 metres to the north of the review site and separated from the review site by a number of intervening properties.
31. Mr Chalmers submitted that the reference to Waratah Avenue is a "typing"error and that either Moongana or Gale Street should be substituted for it. While Mr Chalmers was unable to specify which of these two streets it was originally intended for the covenant to have referred to, it was his submission that the 9.14 metre setback ought to be calculated from Moongana Street because that has always been knows as the frontage of the site.
32. In processing the application, the Council requested the applicant to seek legal advice on this matter, which was then submitted to the Council, and then also sought its own legal advice on the standing of the covenant. The Council advised that it relied on the advice it had received which was to the affect that the proposal did not breach the covenenant.
33. Mr Barlow presented a detailed submission in which he referred me to a number of authorities which supported his proposition that the meaning of the covenant must be construed in accordance with the plain meaning of it and that it is not open to me to attempt to interpret the covenantee intentions.
34. While I think it is clear that an error has occurred in the construction and application of the covenant as it applies to this site, the difficulty I am confronted with is that it is impossible for me to determine to which of the two abutting streets the original covenantee intended the 9.14 metre setback to apply. Quite simply, the frontage of the site could be either Gale Street, which is the narrower of the abuttals, or it could be Moongana Street to which the street address is attached (nos 1-3 Moongana Street). The planning scheme defines "frontage" in the following terms;
The road alignment at the front of a lot. If a lot abuts two or more
roads, the one to which the building, or proposed building, faces.
35. The design of the proposed building does not really assist me in forming a view as to which is the frontage because the building is proposed to be oriented so that it broadly faces the south - east corner of the lot where it intersects with the two streets.
36. In these circumstances I am bound to agree with Mr Barlow's submission that I must construe the meaning of the covenant in accordance with its plain or literal meaning and that it is not open to me interpret a different meaning.
37. In any event, I also agree with Mr Barlow that if it were possible to interpret the covenant in such a manner as to require a 9.14 metre setback from either Gale or Moongana Street, then the proposal achieves this outcome. I have referred previously to the existence of the unnamed road which is located between the property boundary and the alignment of the two streets and when the dimensions of this land is taken into account, the proposed building is setback 12.992 metres from Moongana Street and 17.042 metres from Gale Street.
38. It follows from the above that the decision of the responsible authority is affirmed and it is directed that a permit issue .
Prue & Anor
South Gippsland SC [2003] VCAT 275
The responsible authority’s decision was affirmed. A permit was directed to issue for construction of a dwelling at 1–3 Moongana Street, Waratah Bay, subject to the conditions in the responsible authority’s notice of decision dated 15 August 2002.