1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(a) A minimum four metre setback of the rear deck from the boundary with 9 Bannister Avenue.

(b) A four metre street setback to the garage/dwelling.

(c) Nomination of the tree at the rear of the building as to be retained and protected during construction to the satisfaction of the Responsible Authority.

(d) Revised building height to a maximum of 7.5 metres above existing ground level. The RL for the highest part of the building should be nominated, together with the ground level directly underneath that point.

2. Before the development commences, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The plan must show:

(a) A survey of all existing vegetation and natural features showing plants to be removed.

(b) A schedule of all proposed trees, shrubs and ground cover, which will include the location, number and size at maturity of all plants, the botanical names of such plants and the location of all areas to be covered by grass, lawn or other surface materials.

(c) Planting of mainly indigenous species, including several tall canopy trees of similar species to trees in the surrounding area, particularly along the north and east boundaries.

3. The maximum building height must not exceed the RL referred to in Condition 1 and specified on the endorsed plans.

4. A certificate from a licensed surveyor shall be submitted to the Responsible Authority confirming that the roof levels will not exceed the roof levels specified on the endorsed plan. This certificate is to be submitted on establishment of the frame to the satisfaction of the Responsible Authority.

5. Landscaping as shown on the endorsed landscape plan must be completed to the satisfaction of the Responsible Authority within one month of commencement of the use, and must thereafter be maintained to the satisfaction of the Responsible Authority.

6. Vegetation shown on the approved landscaping plan or on the development plan as "to be retained" must not be removed without the written consent of the Responsible Authority.

7. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Note: Any plan approved under the Building Act and Regulations must not differ from the endorsed plan forming part of this Permit.

8. This permit will expire if one of the following circumstances applies:

(a) The development is not started within two years of the date of this permit.

(b) The development is not completed within two years of the date of starting.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Note: Prior to the commencement of any works within the road reserve, a permit for those works must be obtained. Permits are available from the Shire Offices. Failure to obtain a permit or adhere to the conditions placed on the permit may result in removal of any work completed and reconstruction to council standards. The cost of removal and reconstruction work shall be borne by the applicant.

_____________________________

Mr A. Sang, appeared for the Responsible Authority.

Mr D. King, Solicitor, of Minter Ellison appeared on behalf of G. Reid, the applicant for permit.

All parties presented written and oral submissions.REASONS

1. This was an application by an Objector under Section 82(1) of the Planning and Environment Act 1987 to review a decision to grant a permit for the construction of a two-storey detached house at 8 Wallis Street, Anglesea.

2. The applicant for review is Mr R. Smith, owner/occupier of 9 Bannister Avenue, Anglesea. Mr Smith's property abuts the subject land to the north east. The contour plan provided by the applicant for permit indicates that Mr Smith's property is at a lower level compared to the subject land. However, both properties are affected by slope, and form part of a rise to a high point/lookout over the Great Ocean Road and coast.

3. Mr Smith, objected to the grant of a permit for the following reasons:

* Unreasonable and excessive overlooking from balconies and windows resulting in loss of privacy.

* Over development of the site evidenced by high site coverage, building height and bulk.

4. Mr Smith's grounds of the application for review are:

* "Planning Manager failed to table my objections and Architects report to committee meeting as I couldn't attend;

* Development will result in excessive overlooking to my property;

* Development will create overshadowing and is an overdevelopment to the site."

5. At the time the application was considered by the Council, the site was zoned Residential A. A planning permit was required to construct a dwelling of more than 1 storey in the Residential A Zone.

However, the `new format' Surf Coast Planning Scheme was gazetted on 5 October 2000. The subject land is now zoned Residential 1, and is affected by the Significant Landscape Overlay - Schedule 2 - Coastal Townscape Character (SLO2).

6. The subject land is located on the north east side of Wallis Street, which is a cul de sac that is accessed from Parker Street to the north.

The land is regular in shape with a front and rear boundary dimension of 23.47 metres and a depth of 24.99 metres. The site area is 586.5 sq. m.

The contour plans shows that the site is affected by slope, with a spot-level of 102.7 in the north east corner rising to 114 in the south west (street frontage) corner of the block.

7. A non-habitable dwelling occupies the land - this will be demolished. The site contains little vegetation except for a eucalypt located at the rear of the site that has little canopy spread.

8. The adjoining properties are developed with established dwellings.

9. The applicant proposes to replace the existing non-habitable dwelling with a two storey dwelling comprising a double garage, 2 bedrooms, bathroom, entry, laundry and rumpus room on the ground floor, and a bedroom, living and dining area and kitchen on the first floor.

10. Extensive deck areas are proposed on the northwest and northeast elevation at the `ground' and first floor levels of the dwelling.

11. The dwelling has a flat roof, and a maximum height of 7.5 metres above the existing ground level.

12. The plans (as amended) show a set back of 4 metres from Wallis Street, and a 3.43 metre set back to the edge of the deck from the rear boundary.

13. At the commencement of the hearing, Mr King, on behalf of the permit applicant, sought leave to amend the plans submitted with the application. The revised plans:

* Delete the free standing shed proposed on the north side of the dwelling;

* Reduce the set back from the street frontage from 4.5 metres to 4 metres;

* And (correspondingly) increase the set back from the rear boundary by 500mm from 2.93 metres to 3.43 metres.

14. There being no objection to this amendment, I so amended the application. The plans showing these changes are before the Tribunal.

15. He site is in a Residential 1 zone and contains a single dwelling. A planning permit is not required to demolish the existing dwelling nor to construct a replacement single dwelling on the subject land, pursuant to the Residential 1 Zone because the site area is 586.52m.

16. A planning permit is only required pursuant to the Significant Landscape Overlay. (Clause 42.03 of the Surf Coast Planning Scheme). Pursuant to Clause 42.03-2, a planning permit is required to construct a building or construct or carry out works.

17. Schedule 2 - Coastal Townscape Character is the relevant schedule to the SLO. In accordance with the provisions in Schedule 2, a permit is not required to construct a building or construct or carry out works where:

* The height of any part of the building, excluding any television antenna, chimney or flue, is less than 5 metres above the natural surface of the ground directly below that part.

* The total building site coverage (including outbuildings and balconies) is less than 200m2 or 35% of the total land area, whichever is the lesser.

* A change in the natural ground level resulting from excavation or filling does not exceed a total of two metres.

* The building is not being relocated from another place.

18. In this case, a planning permit is required to construct the building because it has a maximum height of 7.5 metres above the natural surface of the ground directly below it and the total building site coverage is more than 35%. The other `triggers' for permit in the Schedule to the overlay are not applicable to this proposal.

19. Consequently I accept the submission put by Mr King on behalf of the permit applicant, that the only planning discretion that exists in this application has been created for the purposes of protection and enhancement of the significant landscape.

20. The relevant planning considerations are specified in the purpose, landscape character and objectives and decision guidelines of the Significant Landscape Overlay at Clause 42.03 and more particularly in the significant Landscape Overlay (Schedule 2) - Coastal Townscape Character.

21. Therefore follows that concerns about the impact of the proposal on the amenity of the neighbours arising from overlooking or visual bulk are not matters that I can take into account in deciding whether or not it is appropriate for the permit to be granted.

22. There have been numerous cases where various divisions of the Tribunal have held that it is inappropriate for the Responsible Authority (or the Tribunal) to exercise discretion for reasons other than those for which it has been created. That proposition is applicable to this case.

23. The matters that are appropriate for me to take into account are therefore only those relating to the reasons for which the Significant Landscape Overlay (Schedule 2) has been imposed on the site and surrounding area. They do not include any matters relating to residential amenity. If it were not for the existence of the Significant Landscape Overlay, the proposed buildings and works would not require a planning permit at all.

24. All of the grounds in the application for review lodged by Mr Smith relate to amenity concerns (overlooking, overshadowing and overdevelopment). None of them relate to the purposes of the Significant Landscape Overlay.

25. However, I note that strictly speaking the SLO was not in force and effect until October 5, 2000 when the new scheme was gazetted.

26. I think it is fair to say that Mr Smith's prime concern relates to overlooking into his back garden from the new dwelling, and in his detailed submission he suggested amendments to the plans to address overlooking.

27. For the reasons outlined, I have formed the view that overlooking and other amenity issues are not matters that are relevant in deciding whether or not the permit sought should be granted.

28. Turning to the relevant considerations - the Coastal Development Policy at Clause 22.01 and related objectives at Clause 22.01-2 are directly relevant, and form the policy framework for the consideration of the application.

"Preserve the unique character, amenity and environmental features of coastal areas and townships along the Great Ocean Road by retaining native vegetation cover, protecting viewsheds from the Great Ocean Road and encouraging the development of distinctive building designs which distinguish Surf Coast from conventional urban and suburban areas."

* To protect and enhance the environmental qualities and scenic landscape values of the Great Ocean Road and coastal environs.

* To minimise the visual impact of development having regard to building size, height, bulk, siting, site coverage and external materials and colours.

* To facilitate a range of housing types and densities which will accommodate a diversity of housing needs and household types while retaining the generally low-density residential character of coastal towns.

31. I am satisfied that the proposed application achieves these objectives - no vegetation that contributes to the landscape quality of the area is required to be removed and the design of the dwelling with its extensive balconies, flat roof and use of weatherboards has a `beach house' image and is not visually intrusive in the context of the objectives of the policy. The low-density residential character of the area is retained - the density achieved is 1 dwelling on the lot that replaces an existing dwelling.

32. I am also satisfied that the proposal is consistent with the purpose of the Significant Landscape Overlay (to conserve and enhance the character of significant landscapes) and more particularly, the landscape character objectives of the Schedule 2 to the SLO for the following reasons:

* The low density residential character is protected - only 1 dwelling is proposed to be constructed on the lot and it replaces an existing dwelling, and the 40% site coverage and set backs from boundaries are such that there is a generous opportunity for new landscaping in conjunction with the development to enhance the natural bush setting and streetscape of the site.

* The proposal involves the removal of a derelict dwelling (as of right); and its replacement with a `beach house' style dwelling designed to complement the bushland setting.

* No vegetation that contributes to the landscape quality is required to be removed in association with the construction of the dwelling and associated works.

* The development provides the opportunity for the improved landscaping of the site to enhance the visual character and quality of the site itself and the area in which its located. Implementation of the landscape plan will enhance the natural bush setting of the area and the contribution that the site makes to the landscape quality and character of the locality.

* The building height (maximum 7.5 metres) will not have a detrimental effect on the landscape character and is not visually intrusive. The height of the building is below the canopy level of the mature eucalyptus trees in the locality. The existing vegetation will be supplemented by additional canopy planting on the site in accordance with the Landscape Plan required in accordance with Condition 2 on the permit.

33. The remaining issue to be resolved having regard to the objectives and decision guidelines in the Significant Landscape Overlay (Schedule 2) is the width of the rear set back - particularly from Mr Smith's property at No. 9 Bannister Street.

34. The plans (as amended) show a set back of 3.43 metres from the boundary to the edge of the deck at its closest point. This is achieved by re-positioning the dwelling 500mm closer to the street frontage so that the set back from Wallis Street is reduced from 4.5 metres to 4 metres.

35. Condition 1(a) on the Notice of Decision issued by the Council required the rear deck to be set back a minimum of 4 metres from the boundary with 9 Bannister Avenue.

36. This was proposed to be achieved by reducing the width of the deck by 500mm.

37. Mr Smith requested that at least a 7 metre set back be achieved.

38. The applicant for permit is prepared to agree to the 3.43 metre set back, but not the 4 metre set back required by condition 1(a).

39. The Responsible Authority justified the 4 metre set back having regard to the opportunity it created for additional canopy tree planting in accordance with the SLO landscape character objective "to enhance the natural bush setting of the coastal settlements."

40. On balance, I have decided that I agree with the Responsible Authority that the 4 metre setback is appropriate and desirable. I think the slope of the land is a factor to be considered in deciding the width of the area to be landscaped. The 4 metres will ensure that an adequate area is available for canopy tree planting to enhance the landscape character of the site and its contribution to the landscape quality of the area generally. For this reason, Condition 1(a) on the Notice of Decision is included on the permit to issue.

41. Mr King, on behalf of the permit applicant, objected to condition 4 on the Notice of Decision. This condition requires a licensed surveyor to confirm that the roof levels will not exceed the roof levels specified on the endorsed plans (7.5 metres maximum). He said this condition was onerous and excessive.

42. Given that height is a trigger for a planning permit requirement under the SLO2 and an important consideration in the Surf Coast Shire Coastal Development Policy, and that Council required the height to be reduced from 7.8 metres to 7.5 metres to ensure that the building was not visually intrusive in the significant landscape overlay area, I consider that the condition as drafted is a reasonable one in the planning circumstances that apply.

43. I think landscaping is a key planning consideration, and I have amended condition 2 on the Notice of Decision to require the landscape plan to be submitted and approved "before the development commences."

44. For the reasons discussed, my overall conclusion is that the proposed application satisfied the Coastal Development Policy at Clause 22 and the purpose and landscape character objectives of the Significant Landscape Overlay and the Schedule 2 to the SLO - Coastal Townscape Character.

45. The decision of the Tribunal is that a permit is granted, generally in accordance with the conditions nominated in the Notice of Decision issued by the Surf Coast Shire Council dated 15/8/00.

_____________________________