VPD Group Pty Ltd v Greater Geelong CC [2014] VCAT 913

1. The name of the permit applicant and applicant for review is changed from James Bruscella of Bruscella Consulting Pty Ltd to VPD Group Pty Ltd.
2. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal: Dwgs numbered WD1 to WD5, WD10, WD11 and WD12 - all circulated on 4/6/14.
3. The decision of the Responsible Authority is affirmed.
4. In permit application 242/2013 no permit is granted.

Mr James Bruscella, Town Planner of Bruscella Consulting Pty Ltd.

Mr Jeremy Twigg, Barrister by direct brief for John & Kathryn Donaghey.

Construction of two, side-by-side triple storey dwellings and a two lot subdivision.

Cl. 32.08-4 (two or more dwellings on a lot in GRZ2).

Cl. 42.03-2 (buildings and works and building above 7.5 metres in height in SLO7).

I undertook a site inspection of the review site and the locality on Tuesday 22 July 2014.

The review site is rectangular in shape, has a frontage of 20.11 metres, a depth of 42.67 metres and an area of 858m2. The site is now cleared but previously contained a single storey dwelling. The dwelling was built on an elevated pad which is approximately 1.7 metres higher than ground level around the perimeter of the site. The surrounding land is used for residential purposes.

1. The review site originally contained a modestly sized, single storey holiday house largely hidden from the street by coastal and other vegetation. The dwelling has now been removed and the site cleared of vegetation. The previous dwelling was located on a raised pad and the applicant has brought in soil to supplement, and to some extent, extend the original pad.
2. The new development involves the construction of two attached dwellings, each of three storeys. Each ground floor consists of a double car garage, two bedrooms with separate en-suites, a lounge, laundry and powder room. The north facing lounge provides direct access to an alfresco area, spa and pool. At first floor each dwelling contains a lounge/ kitchen/meals area, two bedrooms each with an en-suite and north and south facing balconies. The second or top floor of each dwelling contains a large theatre room and large south facing balcony.
3. Council refused the application on four grounds which in summary are:
   1. The development does not comply with the neighbourhood character policies including Clauses 15.01-5, 21.06-4 and 55.02-1. It does not comply with the Residential Character Study, Ocean Grove Township Brochure and the objectives of the zone because the raised floor levels, overall height and limited setbacks will result in dwellings appearing dominant and bulky within the streetscape and when viewed from adjoining properties.
   2. The maximum height exceeds the maximum allowed in the zone.
   3. Does not comply with the landscape character objectives and decision guidelines of SLO7 because of excessive height and insufficient room for landscaping.
   4. Does not comply with Clause 55 (ResCode) objectives dealing with integration with the street, building height, landscaping and accessibility.
4. Mr and Mrs Donaghey, who live in the dwelling abutting the western boundary, were represented at the hearing by Mr Twigg. His submission focused on height and visual bulk, overshadowing and adverse impact on amenity, limited scope for revegetation and not complying with landscape character objectives.
5. Other nearby neighbours also lodged statements of grounds but did not make submissions at the hearing. They are also concerned about visual bulk, excessive height, filling of land, removal of vegetation, overlooking, overshadowing, daylight to existing habitable room windows, noise from pool/spa equipment, lack of landscaping, stormwater drainage and parking.
6. I now discuss these issues but firstly discuss whether the building exceeds the maximum building height allowed in the General Residential 2 Zone.

What is the natural ground level and the maximum building height allowed on this site?

1. Because of the mandatory height control applying in the General Residential 2 Zone, and the uncertainty about what represents the natural ground level, it is necessary to determine what is the natural ground level.
2. This is a threshold issue given the mandatory height limit in the zone of 9 metres, or 10 metres on a sloping site. One of Council's grounds of refusal was that the building exceeded the maximum allowed in the zone and Mr Twigg tendered photos of fill being placed on the site.
3. Mr Bruscella responded by tendering a site plan showing levels prior to the demolition of the original dwelling. The plan clearly shows the dwelling located on an elevated pad with levels approximately 1.7 metres higher than the levels along the road and around the perimeter of the site.
4. What constitutes natural ground level has been discussed by Courts and Tribunals in the past. Although no cases were tabled at the hearing, as I foreshadowed to parties, I have since undertaken my own research. The most helpful case is Lampard v Bayside CC[1] because it cites other authorities including the Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364. In Lampard the Tribunal made the following remarks about natural ground level:

[21] It is first relevant to consider what is meant by the term "natural ground level". A number of authorities were referred to us on this point. In the case of Shire of Gisborne v King [1994] 1VR 364, Nathan J had to consider the meaning of the phrase "alteration to the natural conditions or the topography" in regard to a case where the land owner had disturbed the topography of land that had previously been disturbed since European settlement. His Honour said at page 370:

"To my mind the term alteration to the natural conditions or topography means that the surface or topography which must not be disturbed is that which immediately predates the making of the application. That is the configuration of the land, whether disturbed or otherwise as a result of prior European industrial pastoral or mining activities, but being that which exists at the time an application is made. This conclusion bears the merit of common sense. There will be many applications to rectify the results of extractive industries by neglect so as to restore the land to its pre European shape or else render it productive in some other way."

[22] The issue of what is natural ground level was considered by the Tribunal in Banyule City Council v Zumpano (application No 1999/88547). The Tribunal considered various authorities, including Shire of Gisborne v King and the Tribunal case of Tribe v Greater Geelong City Council [2000] VCAT 444 2 VPR 224. The Tribunal in Zumpano's case concluded it should adopt the interpretations of the Supreme Court in Shire of Gisborne v King and the Tribunal in Tribe v Greater Geelong City Council. It said:

"[19] In the case of Tribe -v.- Greater Geelong City Council [1999] 2 V.P.R. 224, this Tribunal had to determine the meaning of natural ground level for the purpose of the Greater Geelong Planning Scheme. The learned Tribunal member, after referring to the New South Wales case of Rizzi -v.- Rockdale Municipal Council (1994) 85LGERA 113 concluded (at page 227 of the report): "

"From the above decision at first instance of the Land and Environment Court and that of the Court of Appeal the Tribunal concludes that to determine the natural ground level, it is necessary for the Responsible Authority (or this Tribunal on appeal) to endeavour to determine what was or is the natural ground level of the land before it was disturbed in any way by excavation, levelling or filling for the purpose of the development such as the laying of foundations and the building of a house and outbuildings."

[20] The decision of Nathan J. in the case of Shire of Gisborne -v.- King is, quite obviously, binding on this Tribunal. The question with which his Honour was concerned in that case is not exactly the same as that which confronts us in this case, but we consider that we should follow it and the Tribunal's earlier decision in Tribe -v.- Greater Geelong City Council."

1. On the basis of the decision of Nathan J, I have concluded that it is the natural surface level of the land prior to making the current application which ought to form the basis for determining whether the proposed building exceeds the mandatory height limit. Those levels are shown on the site plan prior to the demolition of the previous dwelling. It is also appropriate to use the same plan to determine whether the mandatory height limit can be increased by 1 metre to 10 metres because of the slope of the land. The pad had a height of 101.75 RL but with steeply sloping sides down to the ground level of approximately 100.4 RL.
2. I agree with the analysis presented by Mr Bruscella that demonstrates that the slope over an 8 metres cross section exceeds 2.5 degrees. I have therefore concluded that, in principle, dwellings of up to 10 metres in height would not exceed the zone maximum.
3. The substituted elevations annotate a maximum building height of 109.925 RL but this is not to the very top of the roof. Based on my scaling, an additional 300mm needs to be added for an overall height of 110. 225 RL. This figure of 110.225 RL is 8.475 metres above the elevated pad of 101.75 RL and 9.825 metres above the lowest point at the toe of the pad (100.4 RL). Mr Bruscella has adopted a lower toe height of 100.33 RL but in either case the dwelling just satisfies the 10 metres maximum height limit.
4. The measurement above ground level is not taken from the front of the site as stated in the Council officer's report, but is measured at any particular point of the building above ground level. I therefore do not agree with Council's ground of refusal or submissions that suggest the mandatory height control has been exceeded. However, although the height has not been exceeded, it is still necessary to determine whether the proposed building is an acceptable response given the site context and relevant planning scheme provisions.

Does the development represent an acceptable response to the site context and relevant planning scheme provisions?

1. I accept that construction of a medium density development on the site is supported by policies seeking to consolidate development in well serviced urban areas close to a range of facilities. The commercial centre of Ocean Grove is less than 400 metres away and the foreshore is within a short walking distance to the south.
2. Although the site is not with an Increased Housing Diversity Area referred to in Clause 21.06-3, that is not an impediment to medium density development and one of the strategies listed in Clause 21.06-3 is that urban consolidation is to be managed by appropriate medium density housing in Residential 1 zoned areas. Although the Residential 1 Zone is now defunct, the general philosophy of supporting appropriate medium density housing in the replacement residential zones is still valid, although the intensity of that development will be tailored across the different zones and within different schedules.
3. Council acknowledges that the site is suitable for a medium density development containing two dwellings but does not support this particular proposal for the reasons listed in the Notice of Refusal.
4. Local neighbourhood character policy is contained at Clause 21.06-4 and contains four objectives which seek:
   • To manage the impact of urban change on existing neighbourhoods.
   • To ensure that new development responds to the existing neighbourhood character.
   • To protect areas with a significant garden character.
   • To protect areas with views to significant landscape features.
5. Strategies to achieve these objectives are listed and relevantly include:
   • Ensure that development is responsive to the established character of the area.
   • Support medium density housing in the Residential 3 Zone in accordance with the schedule to the zone.
   • Acknowledge that neighbourhood character in the Increased Housing Diversity Areas and in Residential 2 Zones will adapt and evolve over time, particularly within and on the edges of activity centres, where land use and development will intensify.
6. Clause 21.06-6 states that implementation of the strategies is to be achieved by assessing applications against the Residential Character Study: Character Precinct Brochures. The review site is included in Ocean Grove Precinct 7. The Brochure identifies five key existing characteristics including that:
   • Dwellings are predominantly single storey set in established gardens,
   • Mixture of building eras and styles from 1960s-present,
   • Mixture of building materials,
   • None, low or open fencing,
   • Unsealed roads.
7. Given the development that has been occurring in Precinct 7, this list of key existing characteristics is more of an historical record than reflective of what actually exists on the ground. With a few exceptions, Osborne Street now contains mostly two and three storey dwellings. Although some established gardens remain, the trend is to far less vegetation with tall dwellings visible from the street. The only characteristic that remains unchanged is the unsealed roads.
8. The brochure also provides a statement of preferred character, includes a list of things to avoid and provides a table setting out seven character elements (vegetation, topography/landform, siting, site coverage, height & building form, materials and design detail, and front boundary treatment). In summary, the preferred character statement and design guidelines include encouraging low scale dwelling types, encouraging buildings to follow the contour of the site or step down the site, encouraging buildings to include low pitched dominant roof forms, buildings should not exceed 7.5 metres in height and, if taller, be able to demonstrate that they will not dominate the streetscape or long views of the area, encouraging the use of lighter looking building materials, ensuring buildings are off-set from at least one side boundary and encouraging low or open style front fences.
9. As is the case in other neighbourhood policies, not all of the design objectives and responses are equally relevant throughout the precinct because very few areas have an entirely homogenous character.
10. In addition, local policy at Clause 21.14-2 includes objectives and strategies for the Bellarine Peninsula. These strategies include separate statements for each township. In the case of Ocean Grove, the ones of most relevance to this application are:
    • Encourage development which respects the coastal landscape setting of Ocean Grove by:

 Providing reasonable sharing of views of the coast and foreshore.

 Promoting contemporary design that reflects the existing scale, setbacks, spacing, forms and materials of the buildings in the locality.

• Encourage a range of accommodation and housing options, including aged care within and adjacent to the town centre and other existing and proposed activity centres.

1. Despite considering the contemporary design as being appropriate, Council is of the opinion that the overall height and massing (combination of limited side and rear setbacks, raised nature of the development) is inconsistent with the objectives of the neighbourhood precinct brochure. Council is also concerned about the extent of impervious surfaces and limited opportunities for landscaping.
2. Mr Bruscella disagreed with Council's analysis and submitted that the modest medium density development will result in a development that does not contradict existing or preferred future neighbourhood character. He also submitted that the development is fully compliant with all the objectives and standards of Clause 55. Aside from building height, none of Council's grounds of refusal identified any quantitative standards of Clause 55 that have not been met. However, Council did identify four qualitative objectives that it said were not met -neighbourhood character, integration with the street, landscaping and accessibility.
3. Although I agree with Mr Bruscella that the overall development satisfies the numeric ResCode standards concerning site coverage, permeability, side and rear setbacks and similar measures used to assess built form impacts, in neighbourhood character terms the proposal would result in a very dominating built form and a building that would visually overpower the one and two storey dwellings on either side. Although the 7. 5 metres building height referred to in precinct brochure and the SLO7 is not a mandatory requirement, it nevertheless provides a basis on which to assess whether a higher building is acceptable. A 55% site coverage is also referenced in the precinct brochure (the calculation is to include outbuildings, swimming pools, tennis courts, driveways and the non permeable surfaces). Mr Bruscella submits site coverage is 46% whereas Council states it is 60%. Mr Bruscella's calculation appears to be based on adding the two ground floor foot prints and the two garages (total area 397.12m2) and dividing it by the site area (858m2) to reach a figure of 46%. My approximate calculation based on including the ground floor footprint, driveways, pools and spas as recommended in the precinct brochure suggests site coverage in excess of 60%.
4. The fact remains, that however these figures are calculated, the proposed development extends built form to the point where it is unacceptable. Put simply, it is the combination of height, setbacks, extent of site coverage and the limited practical space for taller landscaping which results in a building that is visually very dominant - both in the streetscape and when viewed from adjoining properties. The perspectives tabled at the hearing by Mr Bruscella depict very tall vegetation behind and around the proposed dwellings. Given the limited side and rear setbacks and the very real need to limit shadowing and vegetation litter affecting the pools and spas, I consider it highly unlikely that vegetation will ever achieve the sort of vegetated landscape depicted in the perspectives.
5. Mr Bruscella's tabled photos of a number of tall and in some cases very dominating and bulky three storey dwellings. I do not know the circumstances of those approvals and it maybe those individual dwellings have been constructed without the need for planning approvals. I accept they form part of the wider site context and neighbourhood character, but it does not mean that I should replicate or be strongly influenced by buildings which may not have needed planning approval or which may not be approved under existing planning provisions.

1. Neighbours also raised a number of detailed concerns which for the most part I do not support.
2. Photos tendered at the hearing depict the visual and character benefits of the trees and other vegetation that existed on the site prior to their removal. I can understand why neighbours have been concerned about their removal. However Council has investigated whether a permit should have been obtained under the provisions of the SLO7 but has been unable to determine whether the removed vegetation required approval from Council. This is not an enforcement application and I have proceeded on the basis of the site conditions as they exist.
3. Car parking meets the rate set out in Clause 52.06 and a permit is not required to waive or reduce parking for this development.
4. One of the neighbours raised a concern about stormwater and inadequate drainage. I have no evidence to suggest that the requirements of the various servicing authorities cannot be met and none of Council's grounds of refusal referred to inadequate infrastructure. Any development must meet the requirements of relevant servicing authorities and is a matter dealt with at a later stage in the approval process. Permit conditions sometimes require services to be provided to the satisfaction of the responsible authority without specifying what works are required. Furthermore, any pre-existing problems with infrastructure capacity need to be addressed by the servicing authorities on a much broader basis rather than in response to individual development applications.
5. Other concerns included over shadowing, overlooking, loss of daylight to windows, glare from light coloured walls and conversion of upper floors into extra dwellings. None of these are matters which would cause me to refuse the application. Either the development is compliant with the relevant ResCode standards (e.g. overshadowing or overlooking) or conditions could be included on any permit to achieve compliance or limit impacts such as glare. Any revised proposal will need to be reassessed to determine whether it is acceptable.
6. Another concern for neighbours is about adverse noise impacts from pool and spa equipment. Noise generated by such equipment is controlled under other legislation but I accept that the location of plant and equipment can be problematic, particularly if it is located close to bedrooms on neighbouring properties.

1. I do not support the construction of two triple storey dwellings for neighbourhood character reasons. Whilst I accept that the three storey dwellings further east on the opposite side of the road are also tall structures, their visual prominence is alleviated by following the rising land form towards Surf Beach Road. The review site is located at a low point behind the higher land on which Surf Beach Road is positioned. I can understand the desire to provide a second storey in order to obtain some, even limited, views of the ocean beyond. However intervening vegetation, existing dwellings and even future taller redevelopment on lots opposite, could undermine or remove any views sought to be gained from the second floor on the review site.
2. Although the proposed building may be just under the 10 metres mandatory height limit, I consider it will dominate the streetscape and visually overpower the neighbouring properties. The limited setbacks, high site coverage caused partly by including pools and spas in the backyards, and the practical limitations of providing taller landscaping because of the setbacks and position of pools and spa, means that the visual dominance of the very high building cannot be ameliorated in any meaningful way.
3. The report by the Council officer (pages 23 and 24) gave some idea of what may be acceptable two dwelling development, and I consider that would be a good starting point for any redesign on this site.

1. Based on the above reasons, I will therefore affirm Council's decision and direct that no permit is to be issued.

[1] Lampard v Bayside CC [2005] VCAT 234