appellant. Decision of responsible authority varied; permit conditions modified as specified in Order
Key principles
The Tribunal's jurisdiction under section 80 of the Planning and Environment Act 1987 is limited to reviewing the conditions of a planning permit, not the overall merits of the...
The 'view cone' to be protected is strictly defined by reference to endorsed plans from Permit P09/2312 (sheets 9 and 10 of 10) and the Peninsula Survey Group analysis plans...
Where anchor sleeves for umbrellas are located outside the defined view cone but the umbrellas themselves encroach into it, the sleeves must be removed or the umbrellas modified...
Conditions must be clear, enforceable and specify precisely which structures are permitted or prohibited; vague conditions requiring removal of anchors 'which support structures...
Issues before the court
Whether conditions requiring removal of umbrella anchor sleeves and modification of associated umbrellas are warranted to protect a defined view cone
Whether condition requiring removal of anchor sleeves located within the view cone should be deleted where no sleeves are physically located within...
Plain English Summary
The Victorian Civil and Administrative Tribunal modified conditions for a coastal property at Sorrento to protect views from a public lookout. The owner wanted to install umbrella anchor sleeves and an outdoor shower. The Tribunal found that while the metal sleeves themselves were not visible, the umbrellas they supported could block protected views. Three anchor sleeves (1, 2 and 4) must be removed because their umbrellas would encroach on the defined 'view cone' from the Eastern Sister lookout, or distract from it. The remaining sleeves can stay but must only be used for specific umbrellas of defined size and colour. An outdoor shower condition was removed because the shower had minimal visual impact. The decision reinforces that planning conditions must be clear, specific and enforceable, and that technical compliance with view protection may not be enough if structures still distract from significant views.
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Judgment (12 paragraphs)
[1]
The applicant also provided by way of submission a letter of advice[5] from the architect that had been engaged in accordance with the requirements of the original subdivision permit. The master architect also addressed umbrellas 1, 2 and 4, suggesting 2 should be removed and 1 and 4 lowered. I give this letter less weight because the architect was not called to give evidence at the hearing.
Whether condition restricting outdoor shower location should be deleted
Whether condition 18 should be amended to exempt domestic services normal to a dwelling from consent requirements
Cited legislation
1 cited instrument linked from this judgment.
I had the benefit of a site inspection where all the umbrellas were in position and open. I have considered the heights and widths of the umbrellas using the anchor sleeves as per the Watson plans.
Firstly, it is significant that what can be seen from the lookout has changed since the early approvals. Vegetation within the review site now obscures views to the western end of the Western Sister which appear in the endorsed plans of permit P09/2312 sheets 9 and 10 of 10. In addition, newly planted vegetation within the public land on the western side of the lookout may also alter the future aspect available from the lookout. However, I accept that the view may change from time to time depending on how vegetation is managed on and off the site.
Umbrellas 1 and particularly 2 are presently not clearly visible from the lookout platform (refer to Figure 3). This is due to the impact of the intervening vegetation which may change over time. I support the removal of these two umbrellas as agreed to by the applicant. I also note that these two umbrellas are very visible close to the cliff edge from the end of the recently completed Dorothy Houghton Walk and their removal would also reduce their impact from this vantage point.
The main umbrellas visible on my inspection were umbrellas 4 and 6 with the edge of umbrella 3 behind. The eye is drawn to these umbrellas when looking west from the lookout because the view to the end of the Western sister is now obscured. The evidence of Mr Watson is that umbrellas 3 and 6 are outside the view cone and that umbrella 4 should be lowered so that it is outside of the view cone.
While this may technically remove umbrella 4 from the defined cone, I am not persuaded that the potential impact of this umbrella is successfully mitigated. I find that it draws the eye away from the significant view to be protected and will require its deletion. For aesthetic purposes, the applicant may also wish to consider deleting the sleeve for umbrella 3 to maintain the design integrity of the grid layout. I am satisfied that the row of umbrellas 12-14 and 5 and 6 are sufficiently removed from the view cone so as not to detract from the defined view to be protected.
The additional cross sections that I directed the applicant to prepare show the location of umbrella 11 in relation to the view cone. Umbrella 11 was not visible from the platform where the view cone is defined (but could be spotted from the approach ramp). The barbeque was not visible. On this basis I am not persuaded that the barbeque or umbrella 11 should be deleted.
Accordingly, I have:
Amended Condition 1Aa. to specify which anchors are to be removed.
Added a new condition 1A aa. to require plans and elevations of the umbrellas that will use the anchor points.
Added a new condition 24 to make it clear that only the umbrellas as approved on the endorsed plans can use the anchor sleeves approved in the permit.
Deleted condition 19 as no anchor sleeves are within the view cone.
Amended the wording of Condition 20 to refer to the anchors shown on the endorsed plans and conditions 20 and 23 to define the view cone to be protected.
[2]
Figure 3 View from Eastern Sister lookout platform approximately centre view cone (Tribunal's photo)
[3]
Condition 1Ad) requires amended plans to show
The outdoor shower to be setback no more than 10 metres from the permitted dwelling.
Council submitted that the outdoor shower was located too close to the cliff edge and should be relocated closer to the dwelling. The outdoor shower is located close to the cliff escarpment at the top of the set of stairs accessing the beach. A separate planning permit No. P15/0431 issued by the responsible authority on 5 July 2016 permitted the beach access.
Having viewed the shower from the beach areas I find that the shower has negligible impact on the public realm. The stair access has a significantly greater impact. The shower is barely visible in this context. The condition is deleted.
[4]
Figure 3: Stair access to beach with shower at top (Tribunal's photo)
[5]
SHOULD THERE BE EXEMPTIONS IN THE PERMIT FROM THE NEED TO OBTAIN CONSENT FOR DOMESTIC SERVICES NORMAL TO A DWELLING.
[6]
The pergola and any other structures (excluding any swimming pool, deck or steps within the landscape) must be located to the south side of the building envelope, unless further written consent is provided by the Responsible Authority and the Department.
[7]
A form of this condition existed on the previous permit, but Council has now amended the condition to allow the further written consent by the responsible authority and the DWELP. The permit applicant submits that this condition should be further amended to exclude domestic services normal to a dwelling as these do not normally require planning approval.
I find that what is located to the east and north of the dwelling (as opposed to the south side is sensitive) given the characteristics of this site. I find that the condition as proposed by Council provides flexibility for further consideration and is appropriate. This condition is retained.
I wish to reinforce the findings of the previous Tribunal in Shelmerdine that this site has a special quality, integrity and sensitivity that is derived from its geographic influences and that a sensitive design response is required to this 'contextual experience'. While some time has elapsed, it is important that future development on this site is assessed holistically in the context of the planning scheme.
Within the limited scope of this conditions appeal which focuses on the view from the Eastern Sister lookout, it has not been open to me to consider the overall merits. Any future proposals to the east and north of this approved dwelling should be carefully considered especially where changes have occurred such as the construction of the Dorothy Houghton Walk.
[8]
For the reasons given above, the decision of the responsible authority is varied.
[9]
[1] 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.
[10]
[2] Tribunal proceeding Shelmerdine v Mornington Peninsula Shire Council [2010] VCAT 1950.
[11]
[3] This permit was amended on 15 June 2016 to allow some internal re-arrangements and minor modifications to the dwelling and associated works.
[12]
[4] The parties agreed that it would be good practice to endorse the PSG plans as part of this approval.
Parties
Applicant/Plaintiff:
Strode
Respondent/Defendant:
Mornington Peninsula SC [2019] VCAT 668
Legislation Cited (1)
Environment Act 1987
Cases Cited (3)
Strode v Mornington Peninsula SC [2019] VCAT 668 (8 May 2019)
The condition as drafted does not identify the view cone to be protected. The specific view cone to be protected has been the subject of considerable debate over time.
The review site was created as part of a five lot subdivision (Permit P09/2312[2] issued following the decision of the Tribunal in Shelmerdine v Mornington Peninsula SC[2010] VCAT 1950.
The subdivision approval included building envelopes and other conditions to provide for the maintenance of views from the Parks Victoria Eastern Sister lookout across the review site to the Western Sister. Condition 1c) required specific dimension of the extent of the view cone as detailed in the diagram shown in Drawing 0819LSK dated July 2010. The permit included a condition (Condition 8) that required the vegetation on Lot 5 to be managed so that the height is not more than 15m Australian Height Datum (AHD). Plans were subsequently endorsed in the permit to identify the view cone (sheets 9 and 10 of 10).
The building envelopes set out in that permit were included as a restriction on the title in Covenant PS630446T that requires:
Engage an 'architectural firm or architect of acknowledged skill and experienced to the satisfaction of the Responsible Authority for the duration of the development of all lots to oversee the design and construction to ensure that the design quality and appearance of the development is realised in built form and landscaping.
The development of each of the lots must be undertaken in accordance with the required planning and heritage permits and siting and design guidelines.
Planning Permit P13/1830 was issued on 24 October 2014[3] and allowed the development of a dwelling on the land including removal of vegetation and associated works. The permit was subject to an application for review of conditions (Strode v Mornington Peninsula SC[2015] VCAT 1209). The decision defined the view cone from the Eastern Sister across the review site twofold as shown in:
The endorsed plans of permit P09/2312 sheets 9 and 10 of 10; and
The view cone analysis plans by Peninsula Survey Group 6257/VC Version 1 Sheets 2, 3 and 4 of 6 dated 8 June 2015.
In Strode the Tribunal found that:
The 2010 permit seeks the maintenance of a view of the Western Sister from the Eastern Sister. This has been done by endorsing a plan and a photograph with a couple of angles specified. The circle in the photograph includes some of the jetties, the water, the beach, the entirety of the headland of the Western Sister and the sky above. In other words, the circle identifies the Western Sister headland within its context of water, beach and sky. In our opinion, this context gives meaning to the view. We are not persuaded the intent of the inclusion of the view cone in the endorsed plans was to restrict the view to a horizontal view line or only a RL/AHD.
Condition 1 of the 2010 permit required specific dimensions to be provided to the view cone. Mr Peake acknowledged that perhaps this could have been better dealt with by the Council. The A3 plan that was endorsed effectively relies on two lines and the photograph. This limited information has contributed to the dispute in this case.
AI Analysis
Outcomeappellant
Disposition:
Decision of responsible authority varied; permit conditions modified as specified in Order
Mr Runting was asked by the Council to determine the dimensions of the view cone as shown in the photograph. His opinion is that the view cone is an ellipse that has a lower extent and sides that differ as the 2010 permit endorsed plans show the view from the lookout is not a vertex, but rather two different points along the extent of the viewing platform. As the view cone is an ellipse, Mr Runting explained his calculations are based on a centre line at the base of the ellipse and at a height of 1.6 metres on the lookout platform.
Mr Runting prepared a series of view cone analysis plans including a plan that profiles the centre line of the view cone. The implications of achieving an eye line to the water level at the base of the fifth pile from the seaward end on the middle pier in the view is that vegetation near this line would need to be maintained to a height of around 2 to 3 metres in height (refer to Drawing 6527/VC Version 1, Sheet 4 of 6 dated 8 June 2015). Bearing in mind that the ellipse then rises in height as the sides of it curve upward, the vegetation to the sides of the ellipse could be higher. These detailed dimensions provide clarity as to what the view cone means for vegetation planted on Lot 5, particularly along the centre line.
The obligations in regard to the view cone need to be clear and enforceable. The already endorsed photograph in the 2010 permit makes it clear what is sought to be protected. Mr Runting's calculations and analysis provide clarity to what that photograph means. Hence, we have decided to modify conditions 1(c)(iv) and 2 to refer to both the view cone plan already endorsed and Mr Runting's analysis plans by Peninsula Survey Group 6257/VC Version 1 Sheets 2, 3 and 4 of 6 dated 8 June 2015. These documents in combination provide clear direction about what the view cone means, which the photograph or words alone cannot do.
The Council was not able to produce a set of endorsed plans that included the analysis plans by Peninsula Survey Group 6257/VC Version 1 Sheets 2, 3 and 4 of 6 dated 8 June 2015[4].
The view cone as identified in the PSG plans was replicated in the plans that accompanied the evidence of Mr Baker in this proceeding. described as the plans prepared by Watsons Revision B 27 February 2019. The view cone as defined in Mr Baker's evidence was uncontested by any party at the hearing. I find that the conditions should be clear in reflecting the defined view cone as presently defined in the permit and reflected on the Watson plans (Figures 1 above and 2 below).