The proposal comprises a double storey dwelling and vegetation removal. This dwelling would replace the existing dwelling. The new dwelling would occupy a similar, but larger, footprint compared with the existing dwelling. It would be cut into the site in a similar manner as the existing dwelling and higher than the existing dwelling by around 1.72 metres. Both the existing and proposed dwellings have pitched hipped roofs with multiple hipped elements. The proposed dwelling would be setback by a minimum of 9.8 metres from the common boundary with No. 62 Glen Shian Lane.

Residential 1 Zone. Design and Development Overlay (DDO4). Vegetation Protection Overlay (VPO1).

Clauses 11, 12, 14, 15.08, 15.09, 15.12, 16.01, 19.03, 21, 22.13, 32.01, 54 and 65.

The review site is located on the south-east side of Watts Parade on a lot of approximately 2,940 square metres. The land contains a double storey dwelling. The property owned by Mr & Mrs Van Hoof is to the south of the review site. It is at No. 62 Glen Shian Lane. This is upslope of the review site. The single storey dwelling is around three years old. It gains views to Port Phillip Bay including across the review site. The dwelling is set deep into the lot so as to maximise access to views. A pool and an expansive terrace are associated with large living and meals areas, and bedrooms, with floor to ceiling windows.

30 September 2009 including the review site and No. 62 Glen Shian Lane. Height poles were in place marking two points of the proposed dwelling.

1. Permit applications proposing developments that intrude into a neighbour's view often raise difficult questions as to what is a reasonable degree of impact. The answer will always vary because the relationships between buildings and sites are unique, the nature and extent of existing views are never identical, and opinions vary about the level of amenity and value ascribed to an existing view. A decision maker must assess the existing circumstances and the extent of view loss in both quantitative and qualitative terms guided by the direction (if any) provided by the Planning Scheme with respect to viewlines from private properties. The decision that is required is whether a proposal is "acceptable" not whether a better result can be achieved even if a change might be small and could potentially be accommodated within a design.[1]
2. Views are fundamental part of the amenity of dwellings in this area, including Mr and Mrs Van Hoof's residence. It is significant when applying established principles[2] about the weight to be afforded to existing views, that shared viewlines are sought to be protected by the design objectives in DDO4 "where reasonable and practical" and buildings are sought to "avoid being visually obtrusive" when viewed from surrounding properties "particularly in terms of creating a silhouette above a skyline or existing tree canopy line". Understanding and assessing the existing view, and the visible presence of the existing building on the review site, are critical to an assessment. But the DDO4 objectives do not assume or require retention of the status quo. Moreover, no other policy or provision in the Scheme or other relevant legislation confers a right to the whole of the view over other properties in perpetuity or can give an expectation that there must be no change. Regulation provided by the planning system is about managing change in a fair and balanced way mindful of sometimes competing planning objectives and disparate opinions. Tensions often run high where premiums are paid for views that are valued and prized and it is felt the impact of new development would be unreasonable.
3. The existing situation of the Van Hoofs' dwelling and its associated external spaces involve an expansive, long distance, view to the waters of Port Phillips Bay with limited views to the central Melbourne skyline and distant landform. The panorama is interrupted by some vegetation and, in part, the roofline of the existing double storey dwelling on the review site. Mr Hansen described the view in five arcs or segments. The extent of sea and other elements seen varies dependent on the viewing point mindful of the long length of living room and terrace associated with No. 62 Glen Shian Lane. The focus on Mr Hansen's submission was the loss of views to segment no.3 and 4 (said to include the You Yangs and City) because, he said, these have horizon features unlike the balance of the views.
4. In quantitative terms, the proposal would not impede or obliterate a large segment or majority of the available view. Using Mr Hansen's figures[3], of a viewing arc of 105%, 14% is associated with segment 3 and 11% is associated with segment 4. In purely numerical terms, the loss would be just under 25% if both views were simultaneously lost. The figure would actually be lower because both views would not be lost at the same time and little of segment 4 would be lost at all. The figure would also be lower because of the sloped hipped elements associated with the proposed dwelling. In my opinion, in no location is the loss of view significant proportionally.
5. In qualitative terms, it is necessary to consider what is in the view that is lost and what comprises the views that would be retained. The parties expressed different positions as to the value of the views to be lost; whether they are primary views. I accept that views including features such as the City skyline and landforms are highly valued. Even thought the Van Hoofs' home is generally oriented to the west/north-west, and segments 3 and 4 are to the north/north-east, the new dwelling would be fairly centrally located in the viewing corridor (although that again varies dependent on the position in the living room, meals area and on the terrace) and this is where the greatest impact (segment 3) would occur.
6. Another consideration is the extent to which the proposal would be visually obtrusive, sitting above the existing dwelling, skyline and tree canopy. There would be an increase in the height and breadth of development on the review site compared with the current situation, however, the proposed dwelling would not significantly rise above the existing forms. It would remove a small segment of view and sit above the horizon at that point but would not "pop-up" above the remaining canopy line. It would be more visible than the existing dwelling but I do not consider it would protrude in a manner that would offend DDO4's design objectives. I do not consider it would be too bulky although the dwelling would obviously be seen.
7. I reach the conclusion that the proposal is acceptable when tested against the Scheme's objectives without placing any weight on submissions that the Van Hoof residence has further opportunities to maximise its views. [4] There may, or may not, be such an opportunity dependent upon impacts on other properties but I have not found it necessary to pursue this.
8. Finally, a balanced assessment must take into account the opening of a currently closed view. A high and broad cypress on the review site divides segments 3 and 4. It would be removed in this proposal, widening the horizon view with landform south-west of the City. Consequently, segment 4 would be widened by around 8-10% using Mr Hansen's basis for calculation.
9. For the above reasons, I do not accept the Applicant's submissions that the proposal is "selfish", "does not have any regard for the outlook and amenity of the existing dwelling at No. 62 Glen Shian Lane" and "should maintain the status quo with respect to building height and shared viewlines". Those submissions are substantially seeking an outcome where there is no loss of view. That is not reasonable in the circumstances and finds no basis in the applicable provisions of the Planning Scheme. I am not persuaded to direct any changes to the roof line, internal floor heights or deeper excavation, all suggestions advanced by Mr Hansen. Rather, I accept submissions on behalf of the Council and Respondent that the proposal as designed is acceptable when tested against the applicable design objectives and provisions of the Scheme. The development would negatively affect part of the existing view enjoyed by No. 62 Glen Shian Road but that impact is not so significant in quantitative or qualitative terms to cause an unreasonable loss of amenity. Some views would also be gained. I am also satisfied that the conditions proposed by the Council in its Notice of Decision, including with respect to the height of landscaping, are acceptable.

[1] Clauses 41 and 65 of the Planning Scheme.

[2] Tashounidis v Shire of Flinders and Others 1 AATR 116 and Clausen v Shire of Mornington and Others 4 AATR 125 refined in Healy v Surf Coast SC [2005] VCAT 990.

[3] There are various ways in which the proportion could be calculated, particularly given the viewing arcs widen and narrow dependent on the viewing location. I have used Mr Hansen's figures for convenience. Mr Hansen's photos show how the amount of sea view through segment 3 can vary dependent on the viewing location on the terrace or within the living area.

[4] Principles identified in Healy v Surf Coast SC [2005] VCAT 990 at paragraph 21, (d)(ii).