With respect to permit application P03/0836, the decision of the Responsible Authority to grant a permit is set aside.

The Responsible Authority is ordered that no permit be issued pursuant to Section 85(1)(a) of the Planning and Environment Act 1987.

For Applicants for Review P3473/2003 & Respondents to P314/2004

For Applicant for Review P314/2004 & Respondent to P3473/2003

1 This matter involves an Application (P3473/2003) under section 82 of the Planning and Environment Act 1987 to review the decision by the Mornington Peninsula Shire Council (`the Council') to grant a permit in application no. P03/0836 for the development of a two storey dwelling with associated car parking, vegetation removal and landscaping at 9 Arthurs Avenue, McCrae.

2 This matter also involves an Application (P314/2004) under Section 80 of the Planning and Environment Act 1987 to review condition 1.1 of the Council's Notice of Decision to Grant a Permit in application no. P03/0836.

3 The permit application was received by the Council on 14th April 2003. It was advertised for a two week period ending on 8th September 2003 and five objections were received.

4 The application was considered by the Council's Delegate Committee on 25th November 2003, and a Notice of Decision to Grant a Permit containing 10 conditions was issued on 1st December 2003. Mr Harrison submitted that the conditions require amendments including:

* The upper floor of the proposed dwelling, as shown on the submitted plans, is removed [condition 1.1].

* The provision of landscaping to help soften the bulk of the dwelling and to replace the vegetation which is to be removed.

* The height of the proposed front fence must be reduced to less than 1.8 metres.

* More details regarding the maximum heights of the building should be submitted to ensure that it does not exceed the heights shown on the submitted plans.

5 Application for Review P3473/2003 was received by the Tribunal on 22nd December 2003 from Mr J Theodoulou and Others and it contained the following grounds:

1. The proposed development will affect our amenity at our property at 13 Arthurs Avenue, McCrae.

3. The proposed development has negative visual impact due to its size and form, also affecting our amenity.

4. The excessive roof area also has negative visual impact when seen from our property and elsewhere in the neighbourhood.

5. The proposed development is not in keeping with the Council's DDO3 Design and Development Overlay for Coastal and Landscape Design, for the following reasons:

* The development density for the planned bed and breakfast business and associated facilities is not compatible with the streetscape, natural vegetation and environmental character of the neighbourhood.

* The buildings occupy excessive site area, potentially creating erosion problems on the natural hillside environment.

6. Additional traffic will be created by the addition of bed-and-breakfast accommodation, in addition to the proposed residential housing on the site.

6 Application for Review P314/2004 was received by the Tribunal on 6th February 2004 from Karl Degering & Associates Pty Ltd on behalf of P Schofield against condition 1.1 of the Council's Notice of Decision to Grant a Permit on the following ground:

`Condition 1.1 that requires the removal of the upper floor of the dwelling is unreasonable as the proposal is consistent with the neighbourhood character and it will not cause any unreasonable amenity impacts on neighbouring properties or the area.'

7 The parties made written and/or oral submissions, and plans, photographs and other documents were tabled during the hearing. All of the documentation provided has been taken into consideration.

8 The review site is located on the north west side of Arthurs Avenue, with a street frontage of 16.7 metres and a site area of 886 square metres. It is vacant land with scattered vegetation comprising Ti-tree, Wattle and Eucalyptus trees. Mr Harrison submitted that the land rises to the rear boundary at a consistent gradient of 17.5% and has an average fall across the site, from south to north, of approximately 1.25 metres.

9 I agree with and adopt Mr Harrison's description of the neighbourhood character at Section 2.3 of this submission:

`Arthurs Avenue is located on the western slopes of Arthurs Seat and is approximately half way between the summit of Arthurs Seat and Port Phillip Bay. Spectacular views, of the Port Phillip coastline and the slopes of Arthurs Seat, framed by mature, native vegetation are available from most sites and although it is an urban area, and the average lot sizes in Arthurs Avenue reflect this, it has managed to retain a "bushland feel" through the retention of generous areas of open space and mature native vegetation, especially within the front setbacks of dwellings.'

10 To the north east of the review site is No. 7 Arthurs Avenue (Mr Tate and Ms Honeychurch's property). It contains a two storey dwelling setback 22 metres from the street frontage with a double carport within this setback area. Their dwelling has a maximum wall height of 6.6 metres and a maximum building height of 7.6 metres.

11 To the south west of the review site is No. 11 Arthurs Avenue (Mr Puszka's property). It contains a two storey dwelling, with a carport on the ground floor, setback 8 metres from the street frontage. His dwelling has a maximum wall and building height of 6 metres.

12 On the opposite side of Arthurs Avenue are single and double storey homes, including No. 14 that features a two storey dwelling with a maximum building height of 8 metres.

13 Mr Harrison pointed out that there are a range of dwelling sizes and housing styles in Arthurs Avenue, and hence a range of materials and finishes. He submitted that consistent elements are a front setback of between 7.5 and 15 metres; a two storey or elevated single storey built form; and large windows and decks facing west to gain views of Port Phillip Bay. I also note that dwellings on the east side of Arthurs Avenue are sited closer to the rear (or highest section) of properties, presumably to maximise the view potential.

14 The proposal seeks approval for the construction of a dwelling consisting of three separate levels. The ground floor contains three bedrooms, two bathrooms, living areas and a front balcony. The first floor contains two separate bed/living areas to be used as a bed and breakfast, each with a front balcony; and a carport and car parking area at the rear. The rear first floor (the upper floor referred to in condition 1.1) contains a recreation room that is proposed to be used by the bed and breakfast guests.

15 The dwelling is setback 10.3 metres to the ground floor balcony and 13.8 metres to the front wall of the dwelling. The maximum wall and building height is 8 metres. The front fence height is 2.2 metres.

16 The proposal will require three trees to be removed and earthworks involving a cut of 2.145 metres.

17 The review site and surrounding properties are contained within a Residential 1 Zone pursuant to Clause 32.01 of the Mornington Peninsula Planning Scheme ('the Planning Scheme'). No planning approval is required to develop or use land greater than 500 square metres for the purpose of a dwelling in this zone.

18 The review site and surrounding properties are affected by the Vegetation Protection Overlay Schedule 1 - Township Vegetation ('VPO1') and the Design and Development Overlay Schedule 3 - Coast and Landscape Design ('DDO3').

19 A permit is required to remove, destroy or lop vegetation under VPO1, and the statement of significance for this overlay includes:

'In these areas, the impression is of buildings within a landscape rather than that of landscaping around buildings. The balance between natural or introduced vegetation and built form contributes substantially to local character.'

* To recognise areas where substantial vegetation cover is the dominant visual and environmental feature.

* To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.

21 A permit is required to construct a dwelling and carry out works under DDO3 and to consider any variation to the general requirements contained in DDO3, of which the following are sought as part of this proposal:

* The building exceeds a wall height of 5.5 metres and a building height of 6 metres (maximum of 8 metres is proposed).

* The difference between the finished floor level and the natural ground level is greater than one metre (2.145 metres is proposed).

* The front fence is 2.2 metres high rather than 1.8 metres.

22 Mr Harrison submitted that the design objectives of DDO3 relevant to this proposal are:

* To recognise areas where substantial vegetation cover is a dominant visual and environmental feature of the local area by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.

* To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting.

* To protect shared viewlines where reasonable and practicable.

* To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.

23 Mr Harrison highlighted the relevant decision guidelines of DDO3 as:

* Whether the proposed siting, height and design of buildings and works will be in keeping with the character and appearance of the area.

* Whether any loss of amenity will result from a variation to the requirements of this schedule.

* Whether the proposed height or siting of a building will result in the building being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy when viewed from surrounding streets and properties.

* The effect of any proposed subdivision or development on the environmental and landscape values of the site and of the local area, including the effect on streamlines, foreshores, areas of remnant vegetation, areas prone to erosion and on the amenity and accessibility of areas of public open space.

24 Mr Harrison submitted that Clauses 16.01 and 19.03 of the State Planning Policy Framework are relevant to this application. He also highlighted that Clause 21.07-2, Local Area Character in the Local Planning Policy Framework is relevant to this application. I note that Clause 22.13, the Township local planning policy, is also of direct relevance. These planning policies have been taken into consideration.

25 Having considered the submissions presented, I am of the opinion that the proposal is not an appropriate design response for the review site and I have set aside the Council's decision to grant a permit and ordered that no permit issue. The key issues associated with this proposal are the appropriateness of the building form in this neighbourhood context having regard to DDO3, and the vegetation removal and the objectives of VPO1. I will deal with each of these matters in turn.

26 However, before turning to these matters, I wish to make a few brief remarks on the grounds of review relating to the proposed use of the dwelling as a Bed and Breakfast. This is defined in the Planning Scheme as:

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

27 In this Residential 1 Zone, no planning approval is required for a Bed and Breakfast if 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.

28 A maximum of 4 persons away from their normal place of residence are to be accommodated, and 2 car parking spaces have been provided on the review site. On this basis, no planning approval is required for the use of the review site for the purpose of a Bed and Breakfast, and this is not a matter that can be considered by the Council or, upon review, by this Tribunal.

29 Mr Harrison submitted that if the rear upper floor of the dwelling was removed, the variations to the DDO3 general requirements for wall heights, building height and excavation are reasonable and will not result in a significant loss of amenity. His reasons included:

* The proposal meets all relevant objectives and standards of Clause 54;

* The front setback of the dwelling, at 13.8 metres, is greater than the 7.5 metre setback required under DDO3;

* The area of excavation exceeding one metre is only a small section of the building footprint and will be retained by the walls of the dwelling and retaining walls;

* Only the front section of the dwelling exceeds the building height requirement and only the proposed clerestory windows reach the maximum height of 8 metres;

* The building follows the natural slope of the land;

* Two storey buildings close to the maximum 8 metre building height are common in the neighbourhood;

* The building will not create any appreciable silhouette above the skyline or existing tree canopy line; and

* Appropriate landscaping will soften the visual impact from Arthurs Avenue and surrounding properties.

30 Mr Theodoulou submitted that the scale of this building is out of character and has a negative visual impact, even with the rear upper floor removed. He pointed out that DDO3 seeks to maintain the hillside residential character of this area, and this proposal fails to achieve this as the height and box-like shape extends for the full length of the building. He submitted that other buildings in the area have portions that are high rather than the entire extent of the building being high.

31 Mr Tate and Ms Honeychurch submitted that larger dwellings, like this proposal, are found in Grandview Court where the block sizes are significantly larger, therefore the proposal is not in keeping with the dwellings found in Arthurs Avenue. They were particularly critical of the length of the building.

32 I agree with the submissions that there are two storey dwellings in this neighbourhood, some of which are 7-8 metres in height. Mr Bowden submitted that the length of the proposed dwelling is not dissimilar to other dwellings in the neighbourhood. I find that the dwellings on the north west side of Arthurs Avenue are generally sited close to the rear of the allotments to capitalise upon the view of Port Phillip Bay. As a result, many of the dwellings have a smaller building footprint than that proposed on the review site. This creates a sense of openness and a character of dwellings amongst a landscaped setting, which I note is highlighted in the statement of significance in the Vegetation Protection Overlay.

33 I agree with Mr Bowden that the stepping of the built form down the slope creates a two storey building scale, however I find that the length of the building combined with its two storey scale creates a building bulk that is not respectful of the character of this neighbourhood. I consider that the Council's condition requiring the deletion of the rear two storey element, the recreation room, is an attempt to overcome the building bulk. However, I do not agree with Mr Harrison that the deletion of this element of the design will overcome its failings.

34 Mr Theodoulou described the building as box-like and I consider this to be an accurate description as the building is rectangular in shape, and its entire length has consistent setbacks of 3 and 4 metres from each side boundary. There is little relief or articulation in the building form and I find that significant landscaping around the entire building would be required to soften its visual impact.

35 Given the slope of the land, I am of the opinion that variations in the wall and building height requirements of DDO3 are reasonable if the built form outcome is an appropriate design response. However, I find that this proposal is not appropriate and does not accord with the relevant objectives of DDO3 as:

* The side and rear setback areas are not large enough to provide for substantial areas of new landscaping and open space, as the vegetation cover is a dominant visual and environmental feature of this neighbourhood. The lack of available area is exacerbated by the extent of driveway and car parking areas.

* Whilst the building height may be similar to other building heights in the neighbourhood, the siting of the building and the footprint of the building is not respectful of the existing development pattern, particularly along the north west side of Arthurs Avenue. As a result the proposal results in a building bulk that is not respectful of the streetscape character.

36 Mr Tate and Ms Honeychurch expressed concern about the proximity of the proposed carport to their rear deck area and swimming pool, particularly as the carport will be constructed above natural ground level. Mr Bowden suggested screen planting of 3-4 metres and a 2.0 metre high brush fence could be erected between the review site and the rear deck and pool area of Mr Tate and Ms Honeychurch's property. I note that Mr Tate and Ms Honeychurch agreed that this would assist in addressing their concern.

37 Mr Puszka expressed concern about the loss of view from his property. Mr Bowden tabled photographs of the view from Mr Puszka's front verandah and I am satisfied that the proposed siting of the dwelling on the review site will maintain a reasonable sharing of the Port Phillip Bay view from Mr Puszka's house.

38 Mr Puszka also expressed concern about the proximity of the driveway to his property, particularly as there is currently no boundary fencing. He submitted that the extent of the building and driveway do not leave much area for native vegetation planting. I agree with this concern and find that the driveway is sited too close to Mr Puszka's property with no opportunity for any significant landscaping to screen either the driveway or the dwelling.

39 The proposal will result in the removal of three trees, being 2 wattle trees along the proposed driveway and one gum tree in the frontage.

40 Mr Harrison submitted that the removal of the trees is consistent with the objective of VPO1 as the largest and most significant native trees on the review site will be retained. He advised that the trees to be removed are in poor condition and do not significantly contribute to the character of the area. Mr Harrison pointed out that a condition of Council's approval requires appropriate replacement planting.

41 Mr Bowden stated in Section 4.6 of his submission that "sufficient space has been provided within the front setback to retain a number of trees and to enable the planting of additional trees and plants".

42 I note that the landscape concept plan provides for the planting of three 10 metre high eucalypt trees at the rear of the review site, with the remainder of the landscaping varying between 1 and 4 metres in height. I am of the opinion that this landscape concept fails to achieve the objectives of VPO1 as it proposes predominantly 1-4 metre high landscaping around a 7-8 metre high building, rather than a building situated amongst a landscaped setting.

43 Again, I reiterate my earlier comments that I find that the siting of the dwelling, driveway and car parking area at the rear of the dwelling leaves insufficient room for the planting of significant vegetation to soften the impact of a large building form.

44 I have stated earlier in this decision that the use of the dwelling as a bed and breakfast is not a matter for consideration by me. However, I note that the size and shape of this building and the extent of car parking and driveway is directly related to the activities proposed to be accommodated on the review site. I suggest that the size and layout of the dwelling, the car parking and driveway need to be reconsidered in light of the objectives of DDO3 and VPO1.

For the above reasons, the decision of the Responsible Authority to grant a permit is set aside. It is ordered that no permit be issued.