Mr John Hannagan, solicitor, of Messrs Harwood Andrews

The construction of a 3 storey dwelling house at 93 Grosvenor Drive, Wandana Heights, portion of which will exceed a height of 7.5 metres.

Application for review under s. 82 Planning and Environment Act 1987

The subject land is located partly in a Residential 1 Zone and partly in a Low Density Residential Zone under the Greater Geelong Planning Scheme. The land is subject to the Design and Development Overlay contained in Schedule 14 to clause 43.02 of the Planning Scheme.

A permit is required under Schedule 14 to clause 43.02 of the Planning Scheme to construct that part of the dwelling which exceeds 7.5 metres in height.

Clause 11 (Settlement), 12.04-2 (Landscapes), 15.01-1 (Urban Design), 16 (Housing), 21.06-4 (Neighbourhood Character), and 21.15-2 (Wandana).

The subject land is Lot 2 on Plan of Subdivision No. 701489F. The land has an area of 2,510m2. It is situated on the west side of Grosvenor Drive and is at present vacant. There is a slope of 8 metres across the site from south-west down to north east.

Healy v Surf Coast SC [2005] VCAT 990.

1. This is an application under s. 82 Planning and Environment Act 1987 (the Act) by Matthew Wright (the objector) to review the decision of the Greater Geelong City Council to grant a permit for the construction of a dwelling house part of which will exceed 7.5 metres in height.
2. Mr Wright and his partner, Ms Naomi Farrell, live on the neighbouring property to the south at 32-36 Cityview Drive. Their house enjoys panoramic views over an arc of some 220 degrees from approximately north west around to the south. The proposed house will interfere with these views.

1. The application for review raises two issues.
2. The first issue is whether the proposed house breaches a restrictive covenant that applies to the subject land. If it does it is arguable that by virtue of s. 61(4) of the Act a permit cannot be granted. However, this issue was not pursued by the objector at the hearing.
3. The second issue, and the only issue ventilated at the hearing, is whether the part of the proposed house constructed above a height of 7.5 metres will impact on the objectors property to the extent that prevents a reasonable sharing of views.

1. Under the zone controls applicable to the subject land the use and development of land the size of the subject land for the purpose of a dwelling is permitted as of right. This right is subject to the provisions of Schedule 14 to the Design and Development Overlay (clause 43.02) which in effect requires a permit for buildings or works which are more than 7.5 metres above natural ground level.
2. In this case only a small portion of the proposed house exceeds a height of 7.5 metres, being the master bedroom on level 3 which has a roof height of 9.446 metres above natural ground level. The rest of the dwelling is less than 7.5 metres in height.
3. Accordingly, question is whether the portion of the proposed house which exceeds 7.5 metres in height should be allowed having regard to the provisions of Schedule 14. The objective of the control is set out in para 1:

To ensure that the siting, height and visual bulk of dwellings achieves a reasonable sharing of views between properties to significant landscape features such as the coast (ocean and foreshore), Corio Bay, Barwon River, Central Geelong, Barrabool Hills and the You Yangs.

1. The considerations relevant to a decision whether or not to grant a permit are set in para 5:

Before deciding on an application, the responsible authority must consider where relevant:

• The design objectives of this schedule.
• The impact of the proposed buildings and works on the view from another property as result of the design, siting, height, size and bulk (including the roof).
• Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms, that follow the natural slope of the land and reduce the need for site excavation or filling.
• The opportunity for a reasonable sharing of views having regard to the extent of the available view(s) and the significance of the views(s) from the properties affected.

1. The principles governing the application of the design guidelines in this and other similar design overlays have been developed by the Tribunal over many years. They are succinctly stated in J Healy v Surf Coast SC[1] at para 21:

[21] The Tribunal considers that the Tashouindis principles have now been refined to the extent that they should be re-stated as follows:

(b) views form part of the existing amenity of a property and their loss is a relevant consideration to take into account;

(c) the availability of views must be considered in the light of what constitutes a reasonable sharing of those views;

(d) in addressing the concept of "reasonableness", it is relevant to consider

(i) the importance of the view to be lost within the overall panorama available; and

(ii) whether those objecting have taken all appropriate steps to optimise development of their own properties.

(e) added emphasis will be placed on principles (b) and (c) above if the issue of views is specifically addressed in the planning scheme.

See also Kempe v City of Greater Geelong (1998/39188), McCartin v Mornington Peninsula SC[2], Centrum Architects Pty Ltd v Surf Coast SC[3] and Van Hoof v Mornington Peninsula SC[4].

1. This Tribunal would respectfully add a further refinement, which is that in addressing the question of reasonableness under para (c) above it is also relevant to consider the legitimate expectations of those whose view is being affected. This has some significance in the present case.

1. A great deal of material, both photographic and diagrammatic was tendered to the Tribunal at the hearing. Diagrammatic material and plans of probative value were based upon a survey carried out by Mr Brad Millar, a licensed surveyor, who gave evidence on behalf of the respondent.
2. Mr Millar surveyed the height of the proposed house. The height was then marked by 10 PVC poles to the height of different corners of the house. Mr Millar subsequently checked that the height of the poles accurately reflected the heights shown on the plans.
3. The objector subsequently joined the top of the poles on a number of photographs to show the part of his viewshed that would be obscured by the proposed house.
4. Three matters of consequence emerge from this analysis.
   • First, the part of the proposed house which exceeds 7.5 metres in height will occupy 13 degrees of the viewshed from the objectors property, which represents 5.9 per cent of the view. Even if the rest of the house which is less than 7.5 metres high is taken into account the objector will retain 88.6 percent of his present view, although this fact is informative rather than directly relevant. What is relevant is the impact on the viewshed of the portion of the house which exceeds 7.5 metres.
   • Secondly, different aspects of the view will be obscured from some parts of the objectors house but will remain visible from other parts. For example, the view of the You Yangs will be obscured from thes dining room window but will remain intact from the deck.
   • Thirdly, it became evident from the photographs tendered by the objector showing the outline of the proposed house that his view would be impacted to the same extent by a building erected to a height of 7.5 metres. A dwelling erected to this height would not require a permit under Schedule 14 and could be constructed as of right.
5. The objectors view is of a sweeping panoramic nature extending, as mentioned, through an arc of some 220 degrees rather than a view of a particular landscape or seascape feature. It includes views of the You Yangs, Corio Bay and the City of Geelong but is not centred upon any of these features.
6. The Tribunal considers that having regard to the very small part of the viewshed intruded upon by the part of the house exceeding 7.5 metres in height the proposal will not prevent a reasonable sharing of views between the two properties.
7. Moreover, a prudent owner of the objectors property must be expected to be aware that the adjoining property, being the subject land, is able to be developed to a height of 7.5 metres without a permit. As mentioned above, a house built to that height will totally obscure the viewshed for the entire length of the structure. In these circumstances an owner in the objectors position could have no legitimate expectation that his view would remain unobstructed.
8. Finally, the Tribunal considered the decision guideline which asks whether an alternative design, including staggered building forms, might reduce the impact on the viewshed. Putting to one side the question of whether this consideration becomes relevant only if the threshold is reached that the building is "visually obtrusive, it is apparent in this case that the reduction of the relevant part of the house to a height of 7.5 metres would do nothing to restore the view from the objectors house other than to a small section of sky.
9. The Tribunal's decision therefore is that the application for review is dismissed, and it is directed that a permit be granted on the same terms and subject to the same conditions set out in the Responsible Authority's Notice of Decision to Grant a Permit dated 25 June 2013.

[1] [2005] VCAT 990

[2] (2002) VCAT 37

[3] (2002) VCAT 155

[4] (2009) VCAT 2065