The building is not considered to be an 'outbuilding and works normal to a dwelling' and hence is prohibited within the Rural Conservation zone Clause 35.06-1.

1. The grounds for review contest that the development is a residential dwelling, arguing instead that it represents works normal to an existing dwelling and, in replacing an existing dairy shed, does not the visual (landscape) amenity.
2. In submissions Council concedes that if the building is not to be considered a dwelling (a threshold matter in this proceeding), then their first and third grounds fall away and the matter is one of visual and landscape amenity impacts.
3. I have considered the submissions and various materials presented during the course of the hearing[2] and heard the evidence of Mr Schutt. I also inspected the property and surrounds. For the reasons I set out below I find that the building is not second dwelling, but nevertheless find that the design of the building will have an unacceptable impact on landscape values associated with the site. Accordingly, I have affirmed the Council's decision.

1. The threshold issue in this matter is whether the proposed development constitutes a second dwelling. If I find, as I have done, that the development is not a second dwelling (as a use of the land) then the second matter to be considered is whether the development presents an unacceptable impact to the landscape values of the area.

1. In respect to the matter of whether or not the development constitutes a dwelling, I concur with much of the submissions of Ms Brennan. Previous divisions of the Tribunal have considered under a variety of circumstances the contentions of applicants and responding councils as to when or whether an outbuilding may or may not constitute a second dwelling.
2. In Cotsonis v Darebin CC[3] that Tribunal noted that the definition of a dwelling as set out under Clause 74 of the planning schemes that apply across all of Victoria is comprised of two parts. The first part is that of a use definition, i.e. a dwelling is a building that is used as a self contained residence. The second part is one of development, in that a residence must contain certain elements before it can be considered to meet the use as a dwelling. Thus, a dwelling must contain, at the very least: a kitchen, food preparation facilities, a bath or shower and a closet pan and wash basin.
3. I adopt this approach, and add for the sake of this matter, add the further consideration that the development element includes outbuildings and works considered normal to a dwelling, i.e. works one would expect in association with or on a domestic residence property.
4. An outbuilding has no definition under the planning scheme and so by way of Clause 72 the term is to be given its ordinary meaning. All parties in this proceeding agree that an outbuilding may include a shed, a bungalow or other similar such structure. It strikes me that this may include a studio style apartment such as was considered in the matter of Casey City Council v Kelly[4] (Kelly)or some other building used for accommodation in conjunction with the main residential building on the property.
5. It is apparent from submissions that one of the issues that the Council has with this proposal is the size of the building. Ms Sorensen contends that by common experience an outbuilding is not one that can be misconstrued as the principle or dominant building but rather is one that should be seen to be subservient or sub-dominant to the building that is the main domestic dwelling. While common experience may be so in the majority of cases, it has been the view adopted by other divisions of the Tribunal that it may not always be the case or that a dwelling has to necessarily be limited to one building.[5] Put another way, there is nothing in the scheme that requires an outbuilding be subdominant to the main domestic residential building nor that a domestic residential building be confined to one building. I agree with these sentiments.
6. In this proceeding, it is conceded by the Council that the proposed building lacks all the necessary elements to construe the building as a dwelling under the definition contained within the planning scheme. In this case it is the food preparation facilities and a kitchen sink that are absent. It is the Council's contention however, that it only requires minor modifications to provide these elements and thus the building could easily operate as an independent dwelling.
7. Submissions also express the Council's concern that in the event the building does operate as a separate dwelling there is a risk of an eventual subdivision of the land. This amounts to the Council' first ground of refusal, that the development is an increase in rural residential development by stealth.
8. I do not accept this subdivision concern as being of relevance. There is no proposal for subdivision before me. Such a proposal by the property owner (either the current or some future owner) would be the subject of a future permit application (under the current zoning) and it is then that such a matter can be considered on its merits.
9. The substance of this matter is a question of purpose. It is the same question that was addressed in Kelly and to which that tribunal set out that:

It is not just the physical characteristics of development that will determine the purpose for which land is used but rather the way in which that development functions or is used that will determine its purpose. As Barry J stated in Bakes v Huckle [1948] VicLawRp 29; [1948] VLR 159 at 160:

Whether the particular premises are a dwelling is a question to be decided on the facts of each case.

1. For the purposes of this proceeding, I intend to adopt the same approach. Whether or not the building constitutes a second dwelling is a question to be determined on the facts. The facts are these:

1. The building will not contain a kitchen sink or fully fledged food preparation areas; 2. The building will remain connected to the same septic tank as the main dwelling building and utilise the same entrance and internal driveways; and

1. The building will be connected to the same power supply.[6]
2. The purpose of the building is stated to be to accommodate guests to the property.
3. Ms Brennan submits that there can be no independent use of the building given these facts and the links between the two buildings and overall use of the property. I agree. To use the building as a separate dwelling will require additional infrastructure, including a septic tank and separate power. No proposals for such services are before me or are proposed.
4. On the facts of this matter, I am satisfied that the proposed purpose of the building is one for use in conjunction with the existing dwelling and not as a separate dwelling. Sufficient mechanisms remain in place to assure this outcome. If I had been minded to grant a permit, there would also have been the added benefit of Ms Teichmann acceptance of a permit condition that the building is not be used as a separate dwelling. However, this is somewhat a mute point in view of my findings in regard to landscape impacts, a matter to which I will now turn.

Will the proposal have adverse impacts to the landscape?

1. The second matter to be resolved is that of the impact of the building on landscape values and most particularly the potential impact to vista's gained from Tuxion Road. That these values are relevant comes about from a consideration of the purposes of the RCZ and relevant planning policies.
2. The purposes of the RCZ include, inter alia:

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

To protect and enhance the ....landscape....values.

To conserve and enhance the cultural significance and character of open rural and scenic non urban landscapes.[7]

1. Decision guidelines include, amongst other matters, consideration of impacts to 'landscape features, major roads and vistas' and the need to 'minimise adverse impacts on the character and appearance of the area or features .... of natural scenic beauty...'.[8]
2. Within the Shire's Municipal Strategic Statement (MSS) there is clear recognition of the values of the Otway Ranges, including those of natural scenic and landscape value, and the pressures that development brings to bear on these values.[9] Specific local policy at Clause 22.01 has been developed with the objective of, other amongst other matters, protecting scenic roads from 'unsympathetic development which would detract from the beauty of the area'.[10] Tuxion Road is included as a scenic route for consideration under this policy.
3. Submissions on behalf of the Council also drew on the Ridgelines policy at Clause 22.02. When having regard to the subject site's location on a secondary ridgeline, it is debatable as to how applicable this policy is given its application to 'prominent ridgelines'. Notwithstanding this debate, it is fair to say that it is accepted by the parties that the subject site is located on a site that contributes to the scenic values of Tuxion Road and more broadly as a backdrop to vistas gained from Apollo Bay and the Great Ocean Road. Indeed its access to the reverse views across the town and over the seascape that are no doubt one motivation for the selected location of this development.
4. The question that is to be determined is one of how the proposed building will integrate into the landscape vista's of the site.
5. From my inspection of the site and the surrounding area, I agree with Mr Schutt's assessment that there are only limited views of the subject site from Tuxion Rd. Similarly, views of the subject site from Apollo Bay and the Great Ocean Road are limited to certain vantage points due to screening from foreground vegetation, rising landforms and within Apollo Bay itself, by foreground buildings. I concur with the evidence that from the north of the subject site, the site and existing buildings are screened by vegetation and landform.
6. Thus while enjoying open views over the town and seascape, it has to be said that the site itself, at least in its current form, is not prominent in the landscape when viewed from distant vantage points. It is however, a site that is prominent in southern approaches along Tuxion Road and where the impacts may be most acutely observed. This was the focus of Mr Schutt's evidence.
7. In assessing the potential landscape impacts it is Mr Schutt's evidence that the architect has provided a roof pitch that reflects surrounding topography and does not break the horizon line when viewed from the key vantage points on Tuxion Road. He also is of the opinion that the proposed building will not reduce various scenic values that he has identified. These values include undulating topography, contrasts between cleared and vegetated land and scattered buildings and farm fencing. I am not persuaded by this 'technical assessment' of the setting and how the building will site within it.
8. It is relevant to my decision that one must consider the existing quality and contribution that the site makes within the overall landscape. It is my observation that the subject property has a low level of prominence. This is in part due to the obscuring of the site by landform and vegetation as previously noted. It is also in part due to the low built form of the existing dairy and the well setback and screened existing residence. It is this low level of prominence that should be sought by the proposed development and is an objective of the relevant policy and zoning.
9. Having considered the development plans and the photomontages presented by Mr Schutt, it is evident that the height of the built form and the extent of presentation of mass and structure is at odds with the desired level of prominence. I disagree with submissions that the size and structure of the building is modest. It includes a 27sqm sundeck that protrudes over land where the steepness of slope increases, resulting in an elevated and highly visible protrusion above the land. This sundeck is provided while including another substantial verandah (of 32sqm) that takes in much of the same eastern view.
10. The building itself has a footprint of 120sqm (approx), comparable to the size of a small dwelling. Due to its location on sloping land, the design includes a significant presentation of footing walls. The design includes a 250 pitched roof, steeper than that of the dairy which the development is to replace.
11. The combination of these elements is a roof peak elevation of almost 8m above ground level. Eave heights of between 4m and 6m above the ground occur on the southern aspects, i.e. those aspects exposed to views from Tuxion Road.
12. While arguably it may be thought of as a modest building in terms of its internal provisioning of facilities, for the above reasons I do not find it to be modest in its perceived size and consequently its impact on the landscape. I find the opposite to be the case. In its proposed form, the building will generate an unacceptable degree of intrusion into the landscape when viewed from key vantage points along Tuxion Road.
13. In order for this development to be acceptable what is required is a lowering of the height of the building and moderation in its scale. This may well be achieved in part by lowering the roof pitch and deletion of the protruding sundeck. These are matters that ordinarily could be dealt with by permit conditions.
14. However I consider that what is also required is an overall reduction in the presentation of height of the dwelling, particularly the footing walls and less projection of the dwelling over the steeper sloping sections of the site. These are matters are not so easily dealt with. The ability to move the development upslope, so as to achieve the reduce height and projection over the slope is constrained by an existing power line easement across the site.
15. Other design solutions may be available such as a re-orientation of the building or some reduction in the overall footprint. Such solutions are beyond the ambit of permit conditions, possibly requiring substantive reconfiguration of the building. Other solutions may also be available. These are for the permit applicant to decide if she so chooses to pursue further.
16. In respect to this design however I am not satisfied that the design blends with the landscape in a way that minimises impacts to the landscape values sought to be protected under the zoning and the applicable policies of the planning scheme. Ultimately it is my finding that the building, inclusive of the deck area, suffers from an excessive protrusion of the built form into the landscape. Refinement of the design is called for beyond the ambit of permit conditions.

1. It follows from the above reasons that it is my conclusion that the decision of the Responsible Authority should be affirmed and no permit be granted.

[1] Submissions were made that use of the property by Ms Teichmann is for holidays and weekends and not full time use.

[2] These materials have been retained on the Tribunal's file.

[3] [2005] VCAT 232.

[4] [2004] VCAT 2031: also reported as Casey City Council v Gerard [2004] VCAT 1838.

[6] The permit applicant also proposed a connection to the same water supply to supplement the existing capacity, however Council prefers that the building be connected to its own separate water supply for domestic and fire fighting purposes.

[9] See Clauses 21.01-3, 21.01-4, 21.02, 21.04-02 and 21.04-03.