RESPONSIBLE AUTHORITY: Colac - Otway Shire Council

MEDIUM NEUTRAL CITATION: [2003] VCAT 1121

1. With respect to permit application no. P02/210, the Responsible Authority's decision is varied. A permit is granted for the use and development of a dwelling for bed and breakfast accommodation for up to 10 people, associated car parking and a sign in accordance with the endorsed plans at 7 and 8 Campbell Court Apollo Bay.

2. The permit must contain the conditions set out in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 17 September 2003 but modified as follows:

12. Before the use starts, the owner of the land must carry out one of the following requirements, to the satisfaction of the responsible authority:

(i) Lots 26 and 27 LP210069G Parish of Kambruk must be consolidated into one lot; or

(ii) A carriageway easement must be provided along the northern boundary of No 8 Campbell Court to provide access to the car park shown on the endorsed plans at the rear of No 7 Campbell Court.

(ii) In conditions 18 and 19, the word "signs" to be replaced with the word "sign".

(iii) The first sentence in condition 20 is amended to read as follows:

Before the use and development commences amended plans, generally in accordance with the plans signed by the Tribunal in applications P2598/2002 and P2830/2003, marked sheets 1 of 3, 2 of 3 and 3 of 3 all dated 26/6/03, must be submitted to the satisfaction of the Responsible Authority.

(iv) The permit must not contain Condition 26 which is deleted and condition 27 is renumbered as condition 26.

Responsible Authority: Mr S Sagona, Planning Consultant

Permit Applicants: Mr M Townsend, Barrister, directly briefed.

1. This matter relates to two applications for review which were lodged in response to the Colac-Otway Shire Council's decision to grant a permit with respect to permit application no. P02/210. The permit application sought permission for the use of the land known as 7 and 8 Campbell Court Apollo Bay for the purpose of bed and breakfast accommodation, associated car parking and advertising signs.

2. Application no. 2598/2002 is one brought by objectors under section 82 of the Planning and Environment Act 1987 against the Council's decision to grant a permit. The grounds of the application are extensive and set out in a four page document dated 9 October 2002 which is on the Tribunal's file.

3. Application no. 2830/2002 is one brought by the permit applicant under section 80 of the Planning and Environment Act 1987 against permit conditions. The conditions in dispute are conditions 16 and 26 as listed on the Notice of Decision to Grant a Permit issued on 17 September 2002. The grounds of review are set out in a letter dated 28 October 2002 attached to the application. The conditions in dispute read as follows:

16. The existing internally illuminated sign located on the garage is to be removed within fourteen (14) days of the date of the permit.

26. The permit is only valid whilst the premises are managed and owned by the applicant.

4. At the hearing Mr Sagona, Mr King and Mr Townsend tabled and spoke to written submissions to which they added oral argument. In addition I was presented with an array of other material including plans, photographs and other documents. Mr Townsend also called Mrs Angela Fotinatos to give evidence about the use of the land and expert evidence from Mr Martyn Thompson, a town planner. Both witnesses were made available for cross examination. After the hearing I inspected the subject land and locality.

5. The subject land comprises two adjoining residential lots in one occupancy that, in combination, create a site of about 1315 square metres.

6. The property known as No. 7 Campbell Court has a frontage of 18.05 metres, a depth of 39.78 metres and a total area of about 718 square metres. This land is occupied by a two storey brick dwelling which has been used for a number of years for bed and breakfast accommodation known as "Angela's Guest House". The dwelling is constructed in brick and has a number small terraces and balconies to the front and rear of the ground and first floor levels. The balustrade around the terrace/balconies comprises an opaque glazing.

7. Incorporated into the dwelling is a double garage which is setback some distance from the street frontage. The area between the street and the garage is paved and can be used for car parking.

8. The front garden area is established with low to medium level planting screening much of the ground floor level from the street. The rear backyard space also provides open space, however it is not well developed into a formal garden setting.

9. The second lot, No 8 Campbell Court, has a frontage of about 15.05 metres, a depth of 39.78 metres and an area of 596 square metres. This land is devoid of buildings except for a timber fence which extends from side to side and setback from Campbell Court in line with the front of the garage at No 7. The front part of this land, between the fence and Campbell Court, is paved, line-marked and available for car parking associated with the bed and breakfast. The area behind the fence is essentially used as a vegetable garden by the owner and occupier of the dwelling at No 7.

10. The land is located within a relatively new residential estate. Properties surrounding the subject land comprise suburban size type lots. Many of these lots are occupied by two storey dwellings not dissimilar in size to the dwelling on the subject land whilst other lots are either vacant or are having dwellings constructed on them. The dwellings in Campbell Court are relatively new, having been built within the last 10 years. Dwelling styles generally reflect current day design, however, they are varied in terms of materials, colours and finishes. Most have upper level balconies which enable residents to capture ocean views. Where established, gardens are generally neat, attractive and support relatively low to medium height vegetation.

11. Campbell Court itself is relatively long cul de sac which provides a frontage of some kind for about 30 residential properties.

12. Contextually the subject land is located in reasonably close proximity to Apollo Bay's town centre. Apollo Bay is one of Victoria's well known and popular tourist and holiday destinations along the Great Ocean Road.

13. The proposal, as submitted to the Council, was to allow the use of the dwelling on the subject land for bed and breakfast accommodation for up to 14 guests. Condition 13 on the Notice of Decision to Grant a Permit restricts the number of guests to 10. This condition has not been challenged by the permit applicant and Mr Townsend requested that the proposal be considered on the basis that this is the number of guests being sought. The interior of the dwelling provides for a number of bedroom of varying size, capable of accommodating single guest, couples and families. Many rooms have access to one of the terrace or balcony areas. The owners of the property occupy part of the ground floor of the dwelling.

14. The permit application also seeks permission for an internally illuminated sign measuring 1.2m by 0.9 metres fixed to the dwelling above the garage door, and a non illuminated business sign measuring 0.7 metres by 0.6 metres located near the front of the property. Both signs have been erected on the land.

15. It is also proposed to provide car parking on the land. The plans submitted with the permit application sought to formalize the use of the car parking spaces at the front of No. 8 Campbell Court. However, prior to the hearing, the applicant circulated amended plans which showed the provision of 5 car parking spaces at the rear of the dwelling at No 7 with access to them to be provided via a 3 metre wide carriageway easement which is to be created within No 8 along the common boundary. Mr Townsend applied to amend the permit application by substituting these plans. The other parties offered no objection to this.

16. During the course of the hearing, it was alleged by Mr King that the land has been used as a bed and breakfast in contravention of the planning scheme and as such, many of the building works carried out after the dwelling was initially constructed are unlawful and require a permit. Essentially, Mr King put forward that modification such as the balconies and other subsequent works require a permit because what is proposed, and has been conducted, is not an as of right use. In response, Mr Townsend said that he was willing to amend the permit application to include the building works in question as shown on the plans to remove any doubt as to their lawfulness from a planning viewpoint. Mr Sagona and Mr King offered no objection to this amendment to the permit application.

17. In light of the above, the permit application was amended to reflect the car parking arrangements and building works shown on the amended plans pursuant to cl. 64 in schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

18. Under the planning scheme, the subject land and surrounding area is located within the Residential 1 zone, the provisions for which are found at clause 32.01. The purpose of the Residential 1 zone is:

To implement the State Planning Policy Framework and Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs.

19. Under the zone controls, "dwelling" is an as of right or "no permit required" use. The land use term "bed and breakfast", which is embraced within the definition of "dwelling", is defined within the planning scheme as follows:

A dwelling used, by a resident of the dwelling, to provide accommodation for persons away from their normal place of residence.

20. Under the table at clause 32.01-1, "bed and breakfast" is also a section 1 or no permit required use within the zone provided that the following conditions are met:

No more than 6 persons may be accommodated away from their normal place of residence.

At least 1 car parking space must be provided for each 2 persons able to be accommodated away from their normal place of residence.

21. The proposal does not meet the requirements of the first condition given that 10 guests are to be accommodated. The provisions of clause 31.01-2 state that if the condition adjacent to a section 1 use is not met, then the use is in section 2 and requires a permit unless the use is specifically included in section 3. As the use is not in section 3, it falls within section 2 and requires a permit. Under clause 32.01-6, a permit is also required for buildings and works associated with a section 2 use.

22. The relevant decision guidelines are at clause 65. These require consideration to be given a range of matters, the most relevant of which are the State Planning Policy Framework [SPPF], the Local Planning Policy Framework [LPPF], the purpose of the zone, the orderly planning of the area and the impact on amenity.

23. There is a raft of policies that are in some way applicable to the consideration of the proposal. The policy for settlement at clause 14.01 which encourages, amongst other things, the consolidation of existing urban areas and development which is respectful of neighbourhood character. The policy for Tourism is at clause 17.04. Amongst other things, this policy states:

"Planning and responsible authorities should encourage the development of a range of well designed and sited tourist facilities, including integrated resorts, motel accommodation and smaller scale operations such as host farm, bed and breakfast and retail opportunities."

24. At clause 21.01-8, the MSS recognizes that the Colac-Otway Shire contains some of Victoria's most significant tourist attractions and that tourism makes an important contribution to local employment. The key objective at clause 21.04-07 encourages growth in tourism in a way that assists in diversifying the local economy whilst protecting the key environmental features that are the basis of the attraction to the shire. The key objective for Apollo Bay, at clause 21.04-10 is:

To develop Apollo bay as an attractive residential community which provides high quality environment as a significant tourist centre.

25. One of the strategies to achieve this objective is to "provide a range of opportunities for residential development to match the needs of the local community and visitors". Implementation of this strategy will be achieved by, amongst other things, "providing for a limited range of high quality visitor accommodation which is sympathetic to the residential environment."

26. Clause 32.01-7 states that the Category 3 controls for advertising signs, as set out at clause 52.05, apply to land within the Residential 1 zone. The "Category 3 - High amenity areas" provisions are at clause 52.5-9. The purpose of these controls is:

To ensure that signs in high amenity areas are orderly, of good design and do not detract from the appearance of the building on which a sign is displayed or the surrounding area.

27. A permit is not required for a bed and breakfast sign provided that there is only one sign and it does not exceed 0.2 square metres in area. The signs on the land do not meet these conditions and as such, require a permit. The relevant decision guidelines are set out at clause 52.05-2.

28. The permit application was lodged with the Council on the 21 May 2001. The Council required notice of the application to be given and in response it received 6 objections and one submission in support. Mr Sagona summarised the grounds of objection as follows:

* The use is out of character with neighbourhood/use inappropriate in residential area.

* Operation of the Bed and Breakfast, car parking and signage without approval.

* Overlooking into 67 Casino Avenue and 6 Campbell Court.

* Impact on neighbours of illuminated sign; signs are obtrusive.

* Noise generated by the use (additional people and cars).

* Proposal will create excessive demand on infrastructure.

* On street parking and traffic problems will result.

* No building permits for several extensions/alterations.

29. The Council subsequently made its decision to grant a permit subject to conditions.

30. After having considered the submissions and evidence presented by the parties, the details of the proposal, as amended, and the relevant matters under the planning scheme and legislation, it seems to me that the key issues to be decided can be distilled into the following questions:

* Are the proposed building and associated works respectful of neighbourhood character as required by policy and the purpose of the zone?

* Will the proposal cause any unreasonable impacts on the amenity of adjacent and nearby residential properties by way of overlooking?

* Are the proposed signs acceptable having regard to the character and appearance of the area?

* Is the condition 26 reasonable in the circumstances?

31. Before setting out my views on these issues, I consider it appropriate to make some observations about the nature of this proceeding and the task that I have been required to undertake in light of allegations made by Mr King. During the course of the hearing, it was alleged that works had been undertaken without necessary permits and that the bed and breakfast business has operated outside planning and health regulations. Mr Townsend admitted that it appeared that some building works had been undertaken before the required building approval had been issued.

32. Whilst this may be so, the nature of the proceeding before me is not one to consider whether there has been a breach of the planning scheme or other regulations. The applications before me are against the Council's decision to grant a permit and conditions. These are applications that that involve a merits review of the proposal for which permission is being sought. What I am required to do is to consider the merits of the proposal against the relevant criteria. Put simply, it is not open for me to punish the applicants by refusing a permit if, on the merits, a permit should be granted.

33. At the same time, the fact that works and signs for which permission is sought already exist is also not particularly relevant. If what is proposed is unacceptable, then permission should be denied. I agree with Mr King that unlawful acts should not be rewarded with a permit if on the merits, the works in question are unsatisfactory.

34. I now turn to the consideration of the key issues in this matter.

Are the proposed buildings and associated works respectful of neighbourhood character as required by policy and the purpose of the zone?

35. In relation to policy, it would be fair to say that Mr King conceded that the planning scheme's policies provide support for the development of facilities that are geared towards growth in tourism in Apollo Bay. Whilst the various policies and strategies within the LPPF encourage tourism and good tourist developments, Mr King submitted that they nonetheless also call for development that is high quality and designed to be sympathetic to the residential environment.

36. Mr King submitted that there are several aspects of the proposal that do not reflect high quality or sympathetic design. These include the need to use two lots to provide suitable access to on site car parking, excessive paved areas associated with the number of crossings and the long driveway to the car parking area, the additional balconies to provide open space and the need for them to be screened to provide privacy. Mr King argued that these aspects of the proposal are unsatisfactory and represent an unreasonable departure form the neighbourhood character.

37. After having reviewed the photographs tabled at the hearing and having inspected the subject land and surrounding area, I do not accept Mr King's submissions. The building within which the proposed use is to be accommodated was designed as a double storey dwelling. There is nothing particularly peculiar or different about the way it looks when compared to the other dwellings in Campbell Court.

38. It is double storey, constructed in brick and has conventional hip and gable roof forms covered in tiles. At first floor level a balcony stretches across the frontage. The dwelling has an attached garage with a concrete driveway extending from a street crossing up along one side boundary. The front setback is developed as a garden with low to medium height plants.

39. These characteristics are not unique to the development on the land. Rather, most dwellings in Campbell Court are double storey; typically constructed in brick with hip or gable roof forms covered in tiles; they have upper level balconies to both the front and rear as well as double width garages with paved driveways leading to them, and front gardens have low to medium height planting.

40. Mr Thompson's view was that if the signs identifying the existing bed and breakfast operation were removed, the development on the land essentially presents itself as a typical two storey suburban style dwelling. I agree with this. Whilst it is arguable that there are some elements that not typical of a single dwelling, such as the dividing screens along the balconies, these are very minor and hardly transform what is a perfectly normal form of building typically found in a residential area to something which is out of keeping with the character of the area.

41. Mr King also submitted that the proposed driveway along the north side of No 8 Campbell Court is not respectful of neighbourhood character nor that it is demonstrative of good design. I do not agree. The provision of a driveway down the length of a side boundary is not unusual or uncommon in most residential areas. There is nothing in the planning scheme to prevent the construction of a detached dwelling on No 8 Campbell Grove with a side driveway.

42. Furthermore, I would regard the applicant's intention to relocate car parking to the rear of the subject land as an appropriate response to neighbourhood character. The current situation involves the provision of car parking across the width of No 8 Campbell Court. If both Nos. 7 and 8 Campbell Court are considered as the one planning unit, there is nothing in the planning scheme to prevent this car parking from being provided on an "as of right" basis despite that it is clearly the most inconsistent element in neighbourhood character terms.

43. The removal of this element and its replacement with a single width driveway leading to the rear of the subject land enhances the streetscape rather than detracts from it. Indeed, this approach allows for the possibility of the balance of the property at no 8 Campbell Court to be redeveloped for residential purposes and the driveway can be shared between the two properties. The provision of shared driveways and the establishment of a carriageway easement is a sensible response to the issues associated with the proposed use, the need to provide car parking and to respond to neighbourood character. I do not accept Mr King's proposition that this approach is contrary to the orderly planning of the area, rather the response is one which is approach and balances the various issues properly.

44. I find that the proposal is consistent with the thrust of policy. It provides for accommodation that is clearly geared towards satisfying tourist needs. The provision of this type of accommodation is important for the shires economy and for employment.

45. The use is one that is appropriate within the zone. I agree with Mr Townsend that it is a residential use given that it is embraced within the definition of "dwelling". Whilst the level of accommodation does not make it "as of right", this does not make it inappropriate particularly when consideration is given to the relatively modest scale of the overall activity. Furthermore, the purpose of the zone includes providing for a range of dwellings to meet different housing needs. In this case, the needs of the bed and breakfast housing market are being served.

Will the proposal cause any unreasonable impacts on the amenity of adjacent and nearby residential properties by way of overlooking?

46. In addition to concerns about the impact on the appearance of the area, Mr King submitted that the proposed use would cause unreasonable impact on amenity due to overlooking from the upper level rear balconies towards the backyard of the property to the north and the east. Particular concern was raised about the potential for views of the Greek oven located at the rear of the property to the north.

47. In assessing the impact on amenity, one needs to consider the nature of the area and the extent to which overlooking already forms part of the amenity. The area is one where there are a substantial number of double storey dwellings. Upper level balconies and windows are not unusual. Backyards often experience some degree of overlooking and this already forms part and parcel of the amenity of the area. For example, the balcony at the rear of the dwelling on the subject land, if maintained as a single unscreened unit, would provide for extensive views into the backyard of Mr and Mrs Stylianou's property to the north. Similarly, the extensive rear upper level balcony appurtenant to Mr and Mrs Stylianou's dwelling provides opportunity for direct views into the subject land.

48. On this point, it seems to me that the division of the rear balcony into two and the provision of screening as required by condition 20 markedly reduces the potential ease for direct overlooking into Mr and Mrs Stylianou's rear garden space. The ability to overlook is less than the "as of right" situation. Furthermore, the balconies are some distance from the property to the north and this reduces the impact of direct views. In any event, it must be remembered that the balconies are available for guests, many of whom are likely to be away from the facility for much of the day.

49. In my view, the potential for overlooking is not unreasonable and I see no justification for further measures to be taken, such as the addition of trellis to side fencing, as suggested by Mr King.

Are the proposed signs acceptable having regard to the character and appearance of the area?

50. There are two signs proposed in the permit application. Both signs exist and have been erected without a planning permit.

51. In reviewing the circumstances of this case, I fail to see the need for two signs on the land. I accept that it is appropriate for some form of signage at the front of the property to allow visitors to identify the location of the facility. The sign at the front of the property is, in my view, sufficient to allow visitors unfamiliar with the location of Angela's Guest House to identify its position within Campbell Court. The sign is simple, not overly large and is appropriately located.

52. In my view, the illuminated sign is the most incompatible with the surrounding residential area. I see no need for a second sign. The land is located with a Residential 1 zone and "high amenity area" under the advertising controls. In my view, the emphasis ought to be on fewer, but more effective signs. . Indeed I note that in his evidence Mr Thomson noted that of the 6 similar establishments he inspected in the area, that none had illuminated signs like the one proposed in this case. The provision of two signs is unnecessary and works towards visual disorder and clutter. The illuminated sign is inappropriate.

53. In light of the above, I find that the requirements of condition 16 are appropriate.

Is the condition 26 reasonable in the circumstances?

54. This type of condition is generally imposed in circumstances where the attributes of the applicant, in terms of skill, expertise or management practices, are fundamental to the grant of a permit that would otherwise not be granted. I do not find that these circumstances apply in this case. I see no reason or special circumstances which would lead me to the view that other persons could not run this facility in appropriate way under the permit.

55. The condition is inappropriate in these circumstances and goes against the generally accepted principle that permits should run with the land, not the applicant. Condition 26 will be deleted.

56. For the above reasons I have come to the conclusion that the Council's decision to approve the application was reasonable. There is clear policy support for the establishment of this type of facility in Apollo Bay. The proposal involves a relatively small increase over and above the "as of right" number of persons that can be accommodated. It is a use that is modest in scale and compatible with the type of bed and breakfast that can reasonably be operated from a dwelling within a residential area.

57. The development on the land will continue to present itself as a dwelling like many typically found in a residential area. Whilst there may be some differences in form, these are very minor and not sufficient to enable me to conclude that the impacts on neighbourhood character are unreasonable.

58. I also consider that the use will not cause any unreasonable impacts on amenity.

59. In relation to the conditions, I find that the Council's requirement to remove the illuminated sign to be reasonable and appropriate. Condition 16 will be retained. I see no justification for making the permit specific to the applicants. Condition 26 will be removed.

60. My decision is that a permit is granted however the Council's decision will be varied with respect to permit conditions. At the end of the hearing, discussion took place on the permit conditions set out in the Notice of Decision to Grant a Permit. Mr King suggested additional conditions. I have considered the submissions. A number of changes are required given the modification to the car park layout as shown on the amended plans and other minor changes, however, I do not accept that the merits warrant any further changes to be made. I will vary the conditions accordingly.