Figure 2 - photomontage with building based on substituted plans, lowering building by 350mm.

Figure 4 - photomontage with building based on substituted plans lowering building by 350mm.

1. The photos were taken at different times of the day and different times of the year, so the lighting is different between the two views.[8] While the existing view of the water is limited to a horizontal slice, it is panoramic in its extent, combined with the broader skyline view across the bay. On my accompanied inspection, boats were clearly visible on the water from the balcony of 14 Mackie Court. A very distant view of the Melbourne central city buildings was also visible on the horizon.
2. Both the council and respondent submit the montages are flawed as they rely on a camera view taken at 1.7 metres above the balcony floor level of 14 Mackie Court. I agree with them that at this height, the average person would not see the exact view provided in the montages. This is in context of the uncontested statement made by the council that the average Australian man has a height of 1.756 metres and the average Australian woman at 1.618 metres.[9] The council also referring to statistics that eye height is generally about 0.1 metres less than overall height. The more appropriate eye height measure for assessment would therefore be at 1.52 to 1.65 metres. This better accords with commentary in Charlton v Mornington Peninsula SC[10] where the Tribunal in that case, with reference to an earlier decision, found 1.6 to 1.65 to be a reasonable height at which to make the assessment.
3. The montages, at 1.7 metres are therefore slightly above an average person's eye height. As also commented by the respondent, 1.7 metres is the height at which screening is directed to be provided in other provisions of the scheme, on the basis that this generally screens outward views from eye height.
4. Given the montages have potentially underestimated the loss of view to a person of average height I them with some caution. The montages demonstrate that even at 1.7 metres above the balcony floor height, there will be a significant loss of what are the key and most valued views from 14 Mackie Court. The water horizon view is significantly diminished as the permitted building would sit at, rather than below the horizon line. This is a significant loss of amenity through loss of views, and I am not satisfied it meets the objectives of DDO2 to protect shared views where practical and reasonable.
5. The existing view from 14 Mackie Court is in part a borrowed view by virtue of the existing single storey building on the review site. The condition imposed by the council, however, does not seek to maintain the existing view, but to provide for a sharing of the valued view water and horizon view of the bay.
6. I accept the council commentary that there is scope within the building plans to reduce the height without unreasonable loss of amenity to the occupants of the proposed dwelling. There are a number of ways that the reduced height could be achieved. This includes a 0.2 metre reduction in floor to ceiling heights of both levels, potential further cut into the site, splitting of floor levels, or a combination of these matters. The council officer report also included commentary from the council's urban designer that a reduction of 760mm to one metre could be provided for while still maintaining reasonable amenity for the future occupants of the approved dwelling.
7. The applicant submits that reducing the building height will mean that its own proposed roof deck will be compromised to the extent that it will not be afforded any views of the bay, which are the views sought to be shared. No evidence was brought to substantiate this assertion. The substituted plans show the roof deck floor of the approved dwelling of 12 Mackie Court at RL11.99. Assuming a person of average eye height is 1.6 metres above this, the view gained is at about 12.6 metres above natural ground level. A reduction in overall building height by 410mm may[11] reduce this to 12.19 metres. This is about 0.6 metres lower than the height used in the montages to show existing and proposed views from the balcony of 14 Mackie Court. In the existing surrounding context, there is nothing before me to indicate that the opportunity to share the view to the bay at this height would be lost. Any impact from possible future development intervening between the roof deck of 12 Mackie Court and the bay would need to be addressed on its own merits.
8. The applicant also provided montages taken with the building reduced by 700mm. The applicant submits these were provided in context of comments in the council officer report that:

It is evident that reducing the overall building height by 760mm would reasonably retain and protect the shared bay views both quantitatively and qualitatively. A discussion with Council's Urban Designer confirmed that based on the current design, the building height could be reduced by 700mm to 1m without compromising the amenity of the future residents or breaching building regulations. Additionally, a verbal on-site discussion between the previous delegate officer and the objector at 14 Mackie Court indicated that a 700mm height reduction would be appropriate. The rationale behind reducing the overall building height by 760mm is not only to preserve the shared bay views but also ensure that the development, including the glass balustrade, does not sit above the existing tree canopy line in distance when viewed from No.14 Mackie Court, further reducing its visual impacts which is one of the concerns raised by the objectors.[12]

1. The respondent and the council do not support the reduction at 700mm, stating that the montages at this height (using a 1.7 metre high view line) show that even at 700mm, the intent of the council condition would be lost as only a sliver of horizon would be provided.
2. I agree with comments that these are important contextual aspects of the view. A reduction in height, as applied in condition 1a) is required to place the horizon in some context of the water and tree line, as referred to in the officer report.
3. Reducing the height, as directed by condition 1a) still places much of the building above six metres where all of the objectives of DDO2 need to be considered. The context of these objectives and decision criteria of DDO2 reinforces the reasonableness of applying the condition as sought in condition 1a) but modified to account for the substituted plans.
4. I therefore will direct that condition 1a) be amended, but only to the extent that it reflects the substituted plans. This leads to a change in the condition to require a reduction in height of 410mm.

1. Condition 1b) has two parts that require the roof-top terrace to be amended to show:
   1. The setback distance of nine metres from the shared south-western side boundary with No.14 Mackie Court.
   2. The RL to the top of the glass balustrade of not more than 12.68.
2. The council acknowledges that condition 1b)i) was imposed to maintain a reasonable distance between the roof-top deck and the balcony of 14 Mackie Court, consistent with the overlooking standard of clause 54. Further, it acknowledges that the balcony of 14 Mackie Court is not 'secluded' private open space and therefore the standard does not apply.
3. The council submits that condition 1b)i) should be maintained to ensure that the visual bulk of the balustrade of the deck is separated from the neighbour. The respondent concurs with this position.
4. I concur with the applicant that condition 1b)i) is not necessary and cannot be rationalised in context of the scheme provisions. The condition is not needed to address overlooking as the possible overlooking to 14 Mackie Court is to a balcony that is already exposed to the street and therefore not secluded private open space. I see no need for the separation to be provided for the purposes of view sharing or visual bulk given the balustrade is clear glass.
5. The substituted plans show the top of the 1.1 metre high balustrade at 13.09 RL. Condition 1b)ii) requires this balustrade to be reduced in height by 0.41 metres, consistent with condition 1a).
6. The council and the respondent submit this condition is needed as a correlation to condition 1a). The applicant submits it is not needed, based its reasons about condition 1a).
7. In context of my findings about condition 1a), I find it appropriate to retain condition 1b)ii) so as to address the impact of the building volume on view sharing, as a whole.

1. Condition 1c) requires the wall on north-east boundary to comply with Standard A11 - Walls on boundaries under clause 54.02-2. This is a garage wall with a small extension to enclose an outdoor barbeque area. In assessing this condition, parties agree that in applying the standard set out in clause 54.02-2, it is relevant to use the version that existed prior to Amendment VC282 to the scheme, due to transition provisions applying from this amendment.
2. The wall meets the length requirement of the clause but not the height requirement. The council submits it imposed condition 1c) to ensure the wall was lowered or moved in off the boundary to enable the building to better address the character of the street.
3. The wall is identified in plans as varying in height from 4.0 to 4.66 metres. The wall height standard in clause 54.04-2 sets out that:

The height of a new wall constructed on or within 200mm of a side or rear boundary or a carport constructed on or within 1 metre of a side or rear boundary should not exceed an average of 3.2 metres with no part higher than 3.6 metres unless abutting a higher existing or simultaneously constructed wall.

1. The wall is substantially higher than this standard.
2. The objective of the clause is:

To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

1. Relevant decision guidelines include:
   • Any relevant neighbourhood character objective, policy or statement set out in this scheme.
   • The design response.
   • The extent to which walls on boundaries are part of the neighbourhood character.
   • The visual impact of the building when viewed from adjoining properties.
   • The impact on the amenity of existing dwellings or small second dwellings.
   • The orientation of the boundary that the wall is being built on.
   • The width of the lot.
   • The extent to which the slope and retaining walls or fences reduce the effective height of the wall.
   • Whether the wall abuts a side or rear lane.
   • The need to increase the wall height to screen a box gutter.
2. The council acknowledges that there are some contributing factors that fall in favour of varying the standard. The applicant also offered that if needed, the wall could be lowered by 0.5 metres to reduce its impact to the street and the neighbouring property. This would lead to a wall 3.5 - 4.01 metres high.
3. The wall is generally south of a neighbour, who did not object to the permit application. The interface to this adjoining dwelling, being north-east and separated from the proposed wall means the wall does not impact on daylight or shadow to this dwelling.
4. As a streetscape interface, the garage wall could be discordant, but I am satisfied that with the offered reduction in height of 0.5 metres, it will not be of such imposition to significantly impact on the evolving character of the area. This is noting there are other newer buildings in the court that have substantive ground floor walls. Others in the street are not specifically on boundary, but the proposed wall, in context of its overall volume and presentation to the street is comparable with newer building forms in the area. Provided the wall is lowered by 0.5 metres, as offered by the applicant, I am satisfied the wall can reasonably meet the objective. I therefore will vary condition 1c).

1. While the review application requested condition 1d) be deleted, the applicant accepts this condition can remain. This is because it acknowledges there is screening, as shown on the substituted plans, for a balcony on level 1. The applicant accepts condition 1d) may be required to confirm the detail of this screening.
2. The condition requires any screening provided meet the relevant standard of clause 54. I find it reasonable and appropriate to retain this condition so as to ensure that appropriate screening is provided.

1. For the reasons given above, the decision of the responsible authority is varied. The conditions of permit P23/1867 are varied as set out in the order.

[1] The street aligns more to the south-east. Likewise, the property at 14 Mackie Street is more correctly described as being to the south-west of the review site. For ease of description, I have simplified descriptions to east and south, along with the bay being to the 'north'.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] In accordance with Tribunal practice note PNPE9.

[4] So as to achieve the 760mm sought in the permit condition 1a).

[5] As the plans provide for a 350mm lowering from the plans on which the council determined a 760mm lowering was needed.

[6] Healy v Surf Coast SC [2005] VCAT 990.

[7] Provided other elements of DDO2 about setbacks and wall heights are met.

[8] View 1 photo is 9 July 2025, view 2 is 22 September 2025 and at different times of the day, based on the angle of the sun.

[9] Using Australian Bureau of Statistics figures set out in the council submission.

[10] [2017] VCAT 1770.

[11] I say 'may' as the conditions require lowering of the overall building height, not the roof deck height. Condition 1b) requires a reduction in the balustrade height, not the roof deck floor height.

[12] Council delegate report, page 20. My emphasis added.