RESPONSIBLE AUTHORITY: Surf Coast Shire Council

Medium Neutral Citation [2002] VCAT 112

It is ordered that the decision of the Responsible Authority is varied and a permit is granted for a dwelling at 28 Ocean Road South, Lorne, subject to the conditions contained in the Notice of Decision to Grant a Permit, except that Condition 1(a)(ii) must read as follows:

"The area of the upper level reduced in accordance with Drawing No. TP 04/A."

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b)of the Planning and Environment Act 1987.

For the Responsible Authority: Mr. B. Schmied, Planning Officer

Applicants For Review/Objectors: Mr. C. Wood and Mr. I. Burch

For the Respondent/Permit Applicant: Mr. J. Cicero, Solicitor of Best Hooper

Mr. T. Hobba, the Architect for the proposal, as a witness.

1. This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by Objectors for review of a decision of the Surf Coast Shire Council ("the Responsible Authority") to grant a permit in Application No. 01/0251.

2. Plans were tendered on behalf of the Respondent/Permit Applicant which Mr. Cicero said addressed the requirements of Condition 1 in the Notice of Decision to Grant a Permit. There was no request to amend the permit application by substitution of those plans.

3. Mr. Schmied, in his written submission for the Responsible Authority, said:

"On 9 August 2001, Tony Hobba P/L Architects made application to Council for development of the land to allow for construction of a multi level detached dwelling.

It is proposed that the dwelling will occupy approximately 35% of the site and have a maximum height of 6.7 metres above natural ground level. The building includes three levels that are stepped up the slope of the land so that no point is more than two storey. The lowest level includes a games room, laundry and attached double garage. The middle level comprises two wings joined by a central family room. The front section includes lounge/dining and kitchen, the rear has two bedrooms and study. Above the rear section is the third level that includes master bedroom and lounge. Forward facing decks are accessed from the second and third level lounges.

The two sections of the dwelling also represent distinct building styles, with the front portion reflecting the traditional character of the area, through roof form and materials and the rear section presenting a modem style, but with connection through the use of similar materials.

The dwelling will be constructed with a mix of rendered, bagged blockwork, weatherboard and Colorbond wall surfaces and Colorbond roof."

4. The subject land is on the west side of Ocean Road South opposite the beach, and rises approximately 6.5 metres from the front boundary to the rear boundary. It was formerly occupied by a single storey weatherboard and tiled roof dwelling, which Mr. Schmied said had a site coverage of approximately 12% and a maximum height of 6 metres above ground level. There are three sheds located at the rear of the subject land, which is largely clear of vegetation with the exception of some exotic hedges at the front and side boundaries and a number of fruit trees at the rear.

6. Adjoining properties are developed with older single storey dwellings constructed of cement sheeting and corrugated iron roofs. Surrounding dwellings are of a similar style, however there is a number of more recent double storey dwellings further to the south on Ocean Road and to the rear in Armytage Street.

7. Mr. Wood occupies the dwelling on the south side of the subject land and Mr. Burch occupies a dwelling in Armytage Street.

8. The land opposite on the east side of Ocean South Road is a Foreshore Reserve with no development other than car parking and pedestrian facilities.

9. The subject land is covered by the Surf Coast Planning Scheme and is in a Residential 1 Zone which is the subject of Clause 32.01. A permit is not required for either use or development under the zone provisions.

10. The subject land is covered by Schedule 1, Great Ocean Road and Coast Environs, to Clause 42.03, Significant Landscape Overlay. A permit is required to construct a building or to construct or carry out works, pursuant to Clause 42.03-2. Paragraph 3.0 of Schedule 1 sets out further permit requirements. Decision Guidelines are set out at Clause 42.0-3 and Paragraph 4.0 of Schedule 1.

11. The Decision Guidelines at Paragraph 4.0 require the following to be considered:

* Rural and Environment Development Policy (Clause 22)

* Surf Coast Design and Colours Policy (Clause 22)

* Design and Siting Guidelines for Structures on the Victorian Coast 1997

* Ecology Australia, Environmental Resources of Surf Coast Shire, 2000

"The Coastal Development Policy applies to land within the Environmental rural Zone in coastal areas, Schedules 1 and 2 to the Significant Landscape Overlay and Schedules 1 and 2 of the Design and Development Overlay. The policy seeks to preserve the unique character amenity and environmental features of coastal areas and townships along the Great Ocean Road. The policy includes elements relating to building scale, landscape and viewsheds; and building design.

The Surf Coast Design and Colours Policy applies to all land throughout the Shire. The purpose of the policy is to retain and enhance the character of the built and natural environment and the individuality of townships.

The Streetscape and Landscaping Policy applies to public and private sector developments throughout the Shire. The policy includes the objective: To protect and enhance the individual landscape character of each town."

1. Failure to take into account a previous VCAT decision.

2. Conflict of interest existed within the planning committee.

"Two previous planning permit applications have been lodged for the site. Planning Permit Application No. 00/0006 was made for alterations and additions to the existing dwelling and was withdrawn following the receipt of a number of objections. In an attempt to redress the concerns of neighbouring property owners the design was significantly changed and it was considered that a new application should be lodged. Before the new application was lodged the dwelling was demolished.

Planning Permit Application No. 00/0361 was made for the construction of a two storey dwelling. This application also received objections and the Shire issued a notice of decision to grant a permit. This decision was appealed by objectors and conditions of the notice were appealed by the applicant (Appeal No's. 2000/087742 and 2000/096760 refer respectively). The Tribunal decision was in favour of the objectors. The Tribunal decision stated "so far as the matter of the relationship of the proposed development to streetscape and neighbourhood character is concerned, I have formed the view that the development as now proposed is unsatisfactory. This is for the reason that the proposed development would present as excessively visually bulky in the context of this particular neighbourhood."

15. Permit Application No. 00/0361 was the subject of two Applications for Review. The first was Application for Review No. 2000/087743 Ian Burch & Ors v Shire of Surf Coast, which was for review of a decision of the Responsible Authority to grant a permit for a dwelling on the subject land. Ms. Moles ordered that the decision of the Responsible Authority be set aside and a permit not be granted. Application for Review No. 2000/096760, Lynne and Peter Wheal v Shire of Surf Coast, was for review of Conditions in the Notice of Decision to Grant a Permit. That Application for Review was disallowed.

16. The first Ground in this Application for Review was that the decision of Ms. Moles had not been taken into account. Mr. Schmied addressed the subject proposal in the context of the decision of Ms. Moles. Mr. Schmied submitted:

"From this it is possible to summarise the issues to three points - that the upper level, because of its width, would be too dominant; the front wall height relative to road level; and the bulk of the building from an oblique view.

The current proposal is for a multi level dwelling (which does not exceed two storeys at any point), however it is considered that sufficient measures have been introduced into the design proposal to result in an acceptable visual bulk. The dwelling has been excavated into the site so that the lower floor level is below natural ground level, significantly reducing the wall height relative to the road level, when compared to the previous application. The provision of a deck for the northern half of the facade setbacks the upper level a further 4.7m from the street, introducing articulation and visually reducing the upper level when viewed from the road. A double garage is recessed in below the deck, 6.7m from the front building line.

The pitched roof runs parallel to the road, sloping away from the road, reflective of the surrounding properties and making a more recessive element than the 'gable end' curved roof of the previous proposal.

The dwelling can be divided into two sections connected by the central family room. The front section has a footprint equivalent to the adjoining properties and from an oblique perspective would present a slightly larger bulk than the neighbouring buildings due to its two storey nature. The rear section is well setback from the road and as was demonstrated when height poles were erected on site will generally not be visible from the road, being obscured by the front section of the building and surrounding buildings.

The building will be more visually bulky than the adjoining dwellings, which is to be expected given the modest scale and single storey nature of these developments. However it is considered that the building has been designed so that the scale as it presents to the street is appropriate in the context of the streetscape.

A further issue of building scale, is the bulk of the building as it presents to the neighbouring properties to the north and south. The Tribunal in the previous decision made reference to the lack of articulation of the side walls. The current proposal, with two distinct sections, has setbacks varying from 2m to 6m that provide significant relief to the side elevations as does the varying building height. It is however a large building, which is reflected by the plot ratio measure of 0.53, and it is considered that the rear section could 'loom' over the private open space of the adjoining properties and affect the enjoyment of these areas. Condition 1(a)(ii) of the notice of decision requires that the building floor area be reduced to comply with the 0.5 plot ratio performance measure of the Coastal Development Policy and that this area (equivalent to 25sqm) be taken from the rear upper level so that the setback from the common boundaries is increased. It is considered that this requirement will sufficiently reduce the visual bulk of the building when viewed from the rear of the adjoining properties.

17. Mr. Schmied submitted with respect to Ground of Application for Review No. 2, that there was a conflict of interest, that this was not a relevant planning consideration.

18. Mr. C. Wood, a Applicant for Review/Objector, who occupies the property to the south of the subject land, spoke to a written submission. Mr. Wood dealt in some detail with the planning history of the subject land and the decision of Ms. Moles. Mr. Wood made reference to the decision of Ms. Moles in the following terms:

* Item 36 "As 1 indicated at the Hearing of the Application for Review I see the principal matter in this Appeal to be that of the appropriateness of the proposed development in streetscape and neighborhood character terms".

* Item 37 "So far as the matter of the relationship of the proposed to streetscape and neighborhood character is concerned 1 have formed the view that the development as now proposed is unsatisfactory. This is for the reason that the proposed development would present as excessively visually bulky in the context of this particular neighborhood. The South Lorne area serves as a gateway entry to the township."

* Item 40 "As a result, the development will be substantially more bulky than other dwellings in the streetscape, particularly when viewed obliquely from the Great Ocean Rd. by motorists and pedestrians."

"Finally, a major error appears to have been made in calculating the original Plot Ratio, which has not been addressed by the modifications made by the Applicant.

Although the proposed development may well comply in principal with the Surfcoast Shire Guidelines for general site development, it does not in relation to the VCAT decision, which highlights the special nature of this area. This Application cannot be heard in isolation of the spirit and intent of the Tribunal's decision.

The Officer's Report on the Application makes specific reference and comparison to the previous scheme, and so we totally refute the opinion expressed in the architect's design statement that in taking a new design approach any comparisons to the previous design scheme is erroneous, particularly as the design statement says, "Our understanding of the previous decision has clearly influenced the planning and design outcome."

20. Mr. Burch, an Applicant for Review/Objector, who occupies a property in Armytage Street, also spoke to a written submission. Mr. Burch submitted:

"Our objections to the proposed development are three fold -

1. to the height, bulk and scale of the proposed development

2. to the quality, inaccuracy and inadequacy of the documented submission

3. to the process of review of the application by the Surf Coast Shire

These points have been well covered in Chris' report however I will expand on points 2 & 3."

21. Mr. Cicero spoke to a written submission for the Respondent/Permit Applicant. Mr. Cicero submitted:

"It might be put to the Tribunal that this is a repeat appeal. In part this is correct to the extent that the development before the Tribunal has had regard to those aspects of the development rejected by the Tribunal on the previous occasion.

However, the Applicants have chosen to adopt a substantially new design approach to the development of their land and to that end engaged prominent local architect, Mr Tony Hobba, who will give evidence as to the design philosophy that he has used to arrive at what is a substantially different proposal to what was rejected by the Tribunal but which at the same time has had regard to the Tribunal's analysis of the shortcomings of the previous proposal."

22. Mr. Cicero went on to discuss the proposal in the context of the comments of Ms. Moles.

"Attached to Mr Hobba's statement are plans which demonstrate how the changes required of by Condition 1 of the Notice of Decision to Grant a Permit can be met. In particular, those changes are:-

(i) The front portion of the gable structure has been removed (see Drawing TP05/A, North Elevation;

(ii) The upper floor bedroom/loungeroom area has been reduced by 25m 2 by deleting the lounge area giving a plot ratio of 0.48 and an increase in setbacks from the north and south boundaries (see Drawing TP01/A, Drawing TP04/A and Drawing TP05/A, TP06/A).

(iii) The north and east facing upper level windows to the bedrooms have been altered to include a sill at 1.6 metres above the floor level and a screen of 1.6 metres to the deck to the north, east and west (see Drawings TP04/A and TP05/A).

(iv) The driveway has been narrowed to the wide of a single driveway at the property boundary (see Drawing TP01/A).

(v) The existing sheds are noted to be removed (see Drawing TP01/A).

The other significant features of the proposed development include:-

(a) The dwelling has been excavated into the site so that the lower floor level is below natural ground level. This has resulted in a decrease in the wall height relative to the road level in comparison to the previous proposal.

(b) A deck has been provided for the northern half of the front facade resulting in a further setback of the building at that level of 4.7 metres.

(c) A double garage is recessed in below that deck and setback 6.7 metres from the front building line.

(d) A pitched roof runs parallel to the road, sloping away from the property thus picking up of one of the specific criticisms of the earlier proposal by the Tribunal.

(e) A common ridge height has been maintained consistent with neighbouring properties.

(f) The rear part of the building has as its design influence a "bungalow" form. It is set back 36 metres from the road and linked to the lower structure by way of a glassed walkway.

(g) Height poles were erected during the processing of the application which clearly demonstrated that the bungalow will not generally be visible from the road or from any approaches to the site.

(h) A variety of setbacks has been adopted thus answering the specific criticism of the Tribunal of the lack of articulation of the side walls which it said contributed to the unacceptable bulk and mass of the proposal.

The development as now proposed does not, it is submitted, change the assessment made by the Tribunal in relation to the previous development on the issue of views. Accordingly, it is submitted that there will be no unreasonable loss of amenity caused by any impact on view sheds of the neighbours.

As noted at the outset, this is not a case where the Tribunal should be persuaded into making a direct comparison between the development rejected by Ms Moles and the development for which permission is sought. The Applicant for Review has sought to do this and in doing so has failed to acknowledge that what is proposed is a different design response but at the same time addressing the criticisms made by the Tribunal in its decision.

The outcome, it is submitted, is a building of design, flair and excellence which will make a positive contribution to a streetscape which is undergoing change.

Nevertheless, it has respected the amenity of its neighbours in the ways outlined in this submission as will be supported by the evidence of Mr Hobba."

24. Mr. Cicero called Mr. T. Hobba, the Architect for the proposal, as a witness. Mr. Hobba discussed in detail the design concept and was cross-examined.

25. I am satisfied that this is a new proposal by a different Architect that responds to the criticism of Ms. Moles of the earlier proposal. It must also be noted that my discretion in this matter is limited. A permit is not required for either use or development under the zone provisions. The requirement for a permit arises under the Significant Landscape Overlay.

26. Excavation has been used to reduce the overall height of the dwelling above ground level. The rear part of the dwelling represents a bungalow form, and there is significant articulation through varying setbacks. These changes, together with the changes required by Condition 1 of the Notice of Decision, will result in the bulk and mass of the proposal being acceptable in the neighbourhood setting.

27. I consider that the proposal respects the character of the neighbourhood. Respect for neighbourhood character does not mean no change. It is clear that the character of the neighbourhood is changing and will continue to change from single storey cement sheet and corrugated iron roof dwellings.

28. Condition 1(a)(ii) in the not is changing and will continue to change from the single storey cement sheet and corrugated iron roof dwellings. Condition 1(a)(ii) in the Notice of Decision requires that the upper level be reduced so that the plot ratio does not exceed 0.5. This condition arises out of Clause 22.01, Coastal Development Policy. Under Clause 22.01-3, Policy, it is provided under the sub-heading Site Coverage and Building Size, that a number of matters are policy, including:

* The gross floor area of all buildings (including the floor area of any outbuildings) should not exceed a plot ratio of 0.5.

29. It was the submission of Mr. Wood and Mr. Burch that the plot ratio had been miscalculated with the respect to the revised plans and was not 0.48 as submitted for the Respondent/Permit Applicant, but was in fact 0.54. I consider that the calculation adopted for the Respondent/Permit Applicant is correct, however I also consider that the proposal, even if the plot ratio is 0.54, is satisfactory having regard to the policy set out in Clause 22.01. I consider it appropriate that Condition 1(a)(ii) be amended to read:

"The area of the upper level reduced in accordance with Drawing No. TP 04/A."

30. The Applicants for Review/Objectors were also critical of the proposed setback. The proposed setback is consistent with other adjoining dwellings, and I consider that it is satisfactory in the context of the character of the neighbourhood.

31. As far as Ground of Refusal 2 is concerned, that there was a conflict of interest at the level of the Responsible Authority, this is not a matter on which I need to make any finding. I explained at the hearing that this was a hearing "de novo", in which the Tribunal stands in the shoes of the Responsible Authority. Section 51(1)(a) of the Victorian Civil and Administrative Tribunal Act provides that in exercising its review jurisdiction in respect of a decision, the Tribunal has all the functions of the decision maker.

32. For the above reasons this applications is disallowed. It is appropriate for a permit to be granted, and I will so order.