DATES OF HEARING: Monday 25 and Tuesday 26 March 2002

MEDIUM NEUTRAL CITATION: [2002] VCAT 912

The decision of the responsible authority in relation to planning permit application No P273/00 is affirmed.

It is directed that a permit must not be granted for the land at 52 The Eyrie, Eaglemont.

For the applicant for review: Mr Antony Hooper QC, with Mr Graeme Peake of Counsel, instructed by Simon Nixon Solicitor. They called the following persons to give evidence;

* Mr Tim Vernon, Landscape Architect with Contour Consulting

For the responsible authority: Mr John Cicero, and in his absence, Mr Dominic Scally, both of Best Hooper Solicitors. Mr Scally called Mr John Neimann, Architect and Urban Design Adviser to the City of Banyule, to give evidence.

For the respondent objectors: Mr Nick Tweedie of Counsel, instructed by Graeme Steinfort and Co.

1. This was an application under section 77 of the Planning and Environment Act 1987 ("the Act") to review a decision by Banyule City Council to refuse to grant a permit (in Permit Application No. P273/00) to construct a building and to construct or carry out works on the land at 52 The Eyrie, Eaglemont.

2. The building, which is almost completed, is a detached, three level dwelling of very substantial proportions. The lower ground level comprises garaging and carports capable of accommodating up to six or seven cars, as well as a gymnasium, a rumpus room, a sauna and steam room and an enclosed, in-ground swimming pool. The ground level, which is elevated and accessed via six steps from an entry portico, comprises a study and guest room, with associated en suite, a living room, a dining room and a substantial, circular, double flight of stairs adjacent to which is an entertainment space incorporating a bar. Beyond this there is a kitchen and meals area and a large family room. The latter opens out onto a wide and elevated terrace or deck facing north, towards the rear of the land.

3. At first floor level there are a further four bedrooms, two bathrooms, a substantial master bedroom and a even more substantial en suite bathroom. The master bedroom and ensuite open onto their own north facing terrace located above the terrace below. Also at this level there is a very generously proportioned entertainment space with its own east facing terrace. There is also a substantial south facing terrace located above the "porte cohere".

4. The building could be described as being of a Classical, possibly Palladian influenced style, with its garaging having the form of side pavilions and its entry in the manner of a "piano nobile", being elevated above the land surface to the front.

5. The front part of the building has a hipped roof form. Towards the rear however the hipped roof has been somewhat unusually supplemented by a substantial mansard which, in effect, encloses the rear master bedroom, its en suite and indeed, the terrace. The entire roof, including the mansard, is finished in grey/black shingle or slate like tiles.

6. Another notable feature is that due to the steeply sloping terrain at the rear of the site, the floor level of the lower ground level is some 3.5 metres above natural ground level across the rear elevation. Some of this height is made up by fill. The rear wall of the building extends to within 3.2 metres of the rear boundary and has a height of approximately 8 metres to the top of family room terrace. The mansard roof, enclosing the master bedroom and its terrace, extends above this. In the vicinity of the master bedroom and ensuite the building has a wall height of up to 10.93 metres above the natural ground surface below.

7. The building was the subject of an enforcement order application before a differently constituted division of the Tribunal in Application for Review No. 1999/88547 Banyule City Council v R Zampano. The Tribunal, chaired by Senior Member Walker, found that the building had been constructed unlawfully, without a planning permit being first obtained pursuant to the Significant Landscape Overlay provision at Clause 42.03 of the Banyule Planning Scheme.

8. The Tribunal ordered that the wall height and overall height of the building be reduced so as to comply with the requirements of Clause 3.1 of Schedule 1 to Clause 43.03 of the Scheme. The Tribunal directed however that the order would not come into effect until after the determination of an application for permit for the building and any subsequent application for review arising out of such a determination. The subject application for permit was made as a consequence of the Tribunal's order.

9. The subject application for permit was lodged with the Responsible Authority on 20 April 2000. Following the giving of notice of the application 125 objections were received. The grounds for objection were summarised in Mr Cicero's written submission as follows:

* building approval should not have issued without planning approval;

* building heights should not exceed the limit set in the Planning Scheme;

* the building is out of character with the area;

* landscape values of the Griffin estate must be maintained and enhanced;

* the mansard style roof is not acceptable and is out of character;

* the height of the building will lead to a loss of amenity for the adjoining properties and surrounding area;

* concern that no test bores undertaken to establish safe footings for the dwelling;

* overlooking of adjoining properties from upper level windows;

* loss of value of adjoining and nearby properties;

* materials and finishes are out of keeping with the area;

* proposal is contrary to the objectives of the Neighbourhood Character Strategy;

* insufficient setbacks are provided to allow for screen planting;

* northern retaining wall is an intrusion to neighbouring properties;

* insufficient information has been submitted to enable a thorough assessment of the proposal;

* the development will set an undesirable precedent for the area;

* the proposal fails to meet objectives of the Middle Yarra Concept Plan;

* the proposal is disrespectful of the culture significance of the area."

10. At its meeting on 25 September 2000 the Responsible Authority considered the application and, consistent with its planning officer's recommendation, determined to refuse to grant a permit on the following grounds:

"1. The proposed dwelling is considered inappropriate for the site due to its bulk, height and lack of screen vegetation.

2. The proposal is considered an overdevelopment of the site.

3. Insufficient pervious surface and an area for landscaping is provided.

4. The proposal fails to meet the key elements of the Neighbourhood Character Strategy.

5. The proposal fails to meet the key objectives of the Local Policy Framework and the Significant Landscape Overlay No. 1."

11. The application for review was lodged with the Tribunal on 8 November 2000 and the stated grounds for review are:

"1. The bulk and height of the proposed development is appropriate for the site.

2. The proposal is not an over development of the site.

3. The proposed development provides sufficient pervious surface and area for landscaping.

4. The proposal meets the key elements of the Neighbourhood Character Strategy.

5. The proposal meets key objectives of the Local Policy Framework and the Significant Landscape Overlay No. 1.

6. The proposal does not unacceptably impact on residential amenity in terms of overlooking or overshadowing.

7. The proposal is in accordance with the proper and orderly planning of the area.

8. The proposal is not an overdevelopment of the site and does not result in excessive building bulk and will not be visually intrusive and out of scale in relation to abutting and surrounding properties."

12. After the handing down of the Tribunal's order in relation to the enforcement order application, the permit applicants sought and obtained leave to appeal that decision to the Supreme Court. The matter was set down for hearing before Justice Balmford commencing on 24 October 2000 but was subsequently adjourned, pending the hearing of the subject application for review. Later, in May 2001 and by consent of the parties, Her Honour ordered that the matter be struck out.

13. Following abandonment of her appeal to the Supreme Court, the Permit Applicant made application under Section 149A of the Act for a declaration to the effect that the development, as depicted on a set of amended plans, would not require a permit. A further declaration was also sought, in the event of the Tribunal finding a permit would still be required. This was a declaration as to the degree to which the building would fail to meet the as of right 8.0m building height under Clause 3.1 of Schedule 1 to Clause 43.03 of the Planning Scheme.

14. On 22 October 2001 the Section 149A declaration proceeding was also abandoned, with costs, leaving the subject application for review as the only proceeding remaining "on foot". Also on 22 October the Tribunal, again presided over by Senior Member Walker, gave directions in relation to amended plans which were sought to be substituted for those which had accompanied the permit application. Senior Member Walker directed that the amended plans, which were to be filed and served by 19 November 2001, would be the plans to be relied upon at the hearing and that there should be no further substitution of plans.

15. The hearing of this proceeding occupied two days. Those parties or their representatives that attended the hearing, as well as the persons called to give evidence, tabled and spoke to written submissions or witness statements. These, together with the plans, photographs and other material tabled in the course of the hearing, have been attached to the Tribunal's file. Following the hearing, on 10 April 2000, we inspected the subject land as well as the adjoining properties to the west and north. We also toured the surrounding neighbourhood and made observations from a number of locations within the wider area of the Yarra Valley in Heidelberg and Bulleen from which views of the building are possible. We were accompanied on our inspection by Mr Steinfort, for the Respondent Objectors, Mr Niemann for the Responsible Authority and Mr Peake and Mr Ryan for the Permit Applicants.

16. In the course of the hearing Mr Tweedie made application for a number of his clients to be joined as parties pursuant to Section 60 of the Victorian Civil and Administrative Act 1998 (VCAT Act). These were Karen and Maurice Golden, Elizabeth and Brian O'Day and Jane Crone. All had been paries to the enforcement order and the Goldens and O'Days had been objectors to the permit application but had not forwarded a statement of grounds contesting the application for review. Ms Crone had not been an original objector but had forwarded a statement of grounds.

17. The Crones reside at 34 The Eyrie, a short distance to the east of the subject land and the Goldens and O'Days own the properties at the rear of the subject land. Mr Tweedie submitted that their being joined would in no way prejudice the permit applicants as they were being represented by him and their inclusion would not alter the submissions to be made by him on behalf of the other parties. Notwithstanding Mr Hooper's objections, we formed the view that these persons, owing to their living in proximity to the subject land, were all people whose interests could be affected by the proceeding. Accordingly we ordered that they be joined.

18. The subject land is located within the suburb of Eaglemont and adjacent to the well known, Walter Burley Griffin Estate. The land is situated on the north side of The Eyrie, between Walter Burley Griffin Place and The Panaroma. It is the fourth allotment from the corner of The Panaroma. At this point The Eyrie extends along a ridge line that encloses the western side of the Yarra Valley, within its Heidelberg section. Indeed the subject land is located at a high point along the ridge and given that the term "Eyrie" is another word for eagle's nest it would be fair to say that this site, within The Eyrie, is the eagle's nest - the high point - of Eaglemont.

19. The subject land is large and generally rectangular in shape. It has a frontage of 21 metres, a depth of approximately 84 metres and an area of 1,844 square metres. A 2 metre wide easement extends along the rear of the land. Due to the cut and fill work undertaken in conjunction with the construction of the dwelling, between 1.5 and 2 metres of fill has been placed on the ground above the easement.

20. The subject land is one of three allotments that were created by a plan of subdivision in 1996. The others are 1905 square metres and 1593 square metres in area, being No. 54 The Eyrie and No. 50 The Eyrie, respectively. All three allotments contain substantial and recently constructed dwellings.

21. The front of the subject land, which contains a recently constructed tennis court, is generally flat. At about the midway point of the allotment, the land commences to falls steeply - by approximately 7 metres over a distance of 17.5 metres ie 1:2.5 or 40%) - with a small cross fall at the rear of 500 millimetres from east to west.

22. The sloping terrain continues beyond the rear of the site and affects the properties behind, with frontage to Carlsberg Road.

23. The adjacent property to the west, at 54 The Eyrie, is also located behind a tennis court. This dwelling, although large, has been stepped down the site to its rear and relatively generous provision has been made for landscaping at natural surface level between the building and its side and rear boundary. The rear of the building is set back approximately 11 metres from the rear boundary.

24. The property to the east at No. 50 The Eyrie, has its house positioned towards the front of the site. It is a large, double storey dwelling with a pitched roof and the building comes close to the common side boundaries. Its steeply sloping rear yard has been terraced and contains a quantity of fruit trees.

25. The property to the rear of the site, at 49 - 53 Carlsberg Road, is occupied by the Goldens. Theirs is a substantial property with an area of 2.880 square metres. A swimming pool and tennis court are located to the rear. The latter has been benched into the site with a high retaining wall abutting the subject land. Other than creepers, there is no vegetation behind the tennis court fence and therefore below the retaining wall to the easement along the rear of the subject land. More vegetation is located to the rear of the swimming pool which is located adjacent to the rear of No. 54 The Eyrie.

26. Nos. 47, 45, 43 and 41 Carlsberg Road are more conventionally sized residential allotments located to the north east of the subject land. Turning the corner there is nos. 5 and 7 The Panaroma. These properties have rear gardens and vegetation that partly screen them from the subject land. Substantial trees exist on Nos. 7 and 9 The Panaroma, including a very high and most attractive Deodar Cedar.

27. Opposite the subject land, on the other side of The Eyrie, is the Walter Burley Griffin Heritage Area. The Walter Burley Griffin Estate is notable for its very tall trees including mature Cyprus trees. As suggested by Mr Ryan at page 5 of his witness statement, these trees dwarf the tallest buildings in this low density, large allotments estate. Also, as stated by Mr Ryan:

"This ridge running from Outlook Park to Summit Park through to Mount Eagle contains many tall trees that appear to be several metres higher than any building in the vicinity. These tall trees, including large natives (red gums) and exotics (cypresses) are a feature in the area, whether on the ridgeline, or below it, and form a fairly continuous tree canopy in association with the ridge line for those viewing up to the ridgeline.

However every site does not contain a tall tree. This is important to note because Eaglemont is different to other vegetated areas. For example, the Bell Bird part of Melbourne in Blackburn is an area where the dwellings are located in amongst the vegetation. However, Eaglemont is a place where the quality of the gardens is important and this includes both gardens with tall trees that enclose built form and more open gardens that are well landscaped but where buildings are quite visible. Gardens include many exotic plants as well as natives.

In summary, the vegetation includes a number if (sic) tall trees on the ridgeline or nearby that are higher than any buildings on or near the ridgeline."

28. As noted by Mr Niemann at page 8 of his witness statement, the subject land and its two neighbours are exceptions to this vegetated character. They would all seem to have been mostly cleared following the 1996 subdivision and prior to their redevelopment. As already noted however there is garden planting in place to the rear of No. 54 and also to the rear of No. 50, albeit that in the latter case the vegetation at the moment appears to be mostly fruit trees.

29. The subject land is zoned Residential 1 under the Banyule Planning Scheme. Within this zone no permit is required to use land for the purpose of a dwelling. Neither is a permit required in the zone to construct a single dwelling unless the lot has an area of less than 500 square metres, which is not the case here. The Significant Landscape Overlay, the provisions for which are set out at Clause 42.03 of the scheme, does however affect this land as well as the immediately abutting properties to the north up to Carlsberg Road and a substantial part of the valley to the south and east including the Walter Burley Griffin Estate. The land is affected by Schedule 1 of the Overlay which is entitled Watercourse Environs. The statement of the nature and key elements of the landscape, set out at Clause 1 of the schedule, reads as follows:

"The areas covered by this overlay are part of, or are directly adjacent to, significant landscapes_, which consist of substantial areas of open space, golf courses, wetlands, vegetation and other natural habitat along the Yarra River and lower reaches of the Plenty River. Such landscapes provide extensive views and an opportunity for a sense of remoteness in the valleys of the watercourse with only limited intrusion of built forms._ Some areas consist of lower density housing where the landscape predominates_."_ (emphasis added)

30. We accept that the subject land is within an area covered by the Overlay which consists of lower density housing where - for the most part - the landscape predominates.

31. The purpose of the Significant Landscape Overlay is set out at Clause 42.03 of the Planning Scheme and reads as follows:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To conserve and enhance the character of significant landscapes." (emphasis added)

32. Pursuant to Clause 42.03-2 a permit is required to "construct a building or construct or carry out works". The clause goes on to provide that this requirement for a permit does not apply if a schedule to the overlay "specifically states" that a permit is not required.

33. At Clause 3.1 of Schedule 1 to the Overlay it is specifically stated that:

* Any building which is to be used or a dwelling, or outbuilding normal to a dwelling unless;

- the height of any part of a wall is more than 8 metres above the natural surface level of the ground directly below it; or

- any part of the building is more than 12 metres above the natural surface of the ground directly below that part.

* Any works (other than a tennis court) normal to a dwelling.

* Drainage works undertaken by the Responsible Authority."

34. In the subject case, as was found by the Tribunal in the enforcement order proceeding, parts of the walls and a section of the overall height are above 8 metres and 12 metres respectively. As found in Mr Mawson's survey of the building, in some places the wall height is up to 2.62 to 2.93 metres above the 8 metre "trigger" height. This means that an exemption from the need for a permit to construct a building or to construct or carry out works is not available for this dwelling. Accordingly, a permit is required for its construction and by that we mean, for the whole of its construction, not the parts above the trigger heights of 8.0 metres and 12.0 metres.

35. We pause here to observe also that from our reading of the overlay provisions a permit also appears to be required for the tennis court as it is clearly not an exempt work under the schedule to the overlay. We were disappointed to find that Mr Ryan's extract from the schedule, as reproduced at page 11 of his witness statement omitted to mention in the second dot point quoted above, the phrase in brackets, "other than a tennis court". Given our findings in relation to the dwelling we have found no need to take this matter of the tennis court any further. We would be concerned however if this omission was deliberate.

36. When a permit is required, there are decision guidelines set down at Clause 65.01 which a Responsible Authority and therefore this Tribunal on review, must consider, as appropriate, before deciding on the application. This clause commences with the following statement:

"Because a permit can be granted does not imply that a permit should or will be granted. The Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause_." (emphasis added)_

37. The decision guidelines relevant to this application for review are:

"* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* Any matter required to be considered in the ... overlay ...

38. We have already set out the purpose of the Significant Landscape Overlay. The matters required to be considered under the overlay are set out at Clause 42.03-3 and we find the following to be relevant here:

"* The statement of the nature and key elements of the landscape and the landscape character objective contained in a schedule to this overlay.

* The conservation and enhancement of the landscape values of the area.

* The impact of the proposed buildings and works on the landscape due to height, bulk, colour, general appearance or the need to remove vegetation.

* The extent to which the buildings and works are designed to enhance or promote the landscape character objectives of the area.

* The impact of the buildings and works on significant views.

* Any other matters specified in a schedule to this overlay."

39. We have already set out the statement of the nature and key elements of the landscape to be conserved and enhanced by Schedule 1 to the Overlay. The landscape character objective, referred to above is set out at Clause 2 of the schedule and reads:

* To protect areas along watercourses and their immediate environs from visual intrusion caused by the inappropriate siting or appearance of buildings and works.

* To encourage development in keeping with the character and appearance of the area.

* To protect and enhance the vista when viewed from the watercourse, its banks, nearby streets, adjoining public open space, or from common and scenic viewpoints within the watercourse environs.

* To retain and encourage additional screening of buildings adjacent to the watercourse and adjoining public open space.

* To encourage development consistent with any approved concept plan for the area.

* To protect and enhance a sense of remoteness in the valley of the watercourse." (emphasis added)

40. As provided for at Clause 42.03-3, referred to above, the schedule includes other matters to be considered, as appropriate, when considering whether or not to grant a permit to construct a building or to construct or carry out works within the overlay area. These further matters for consideration are set out at Clause 4.1 of the schedule as follows:

Before deciding on an application, the Responsible Authority must consider:

* The Middle Yarra Concept Plan - Burke Road to Watsons Creek, December 1993; the Lower Plenty River Concept Plan, October 1994; or any other approval concept plan, as relevant.

* Whether the location, bulk and appearance of the building or works will be in keeping with the character of the area.

* Whether the location, bulk, outline and appearance of the building or works will be in keeping with or enhance the vista when viewed from the watercourse, its banks, nearby streets, adjoining public open space, or from prominent scenic view points within the watercourse environs.

* The need to ensure adequate screening of buildings and works, for example:

- when viewed from the river or its banks, the outlines of buildings on ridge tops are totally screened;

- when viewed from within Metropolitan and State Park boundaries, at least half of each building and structure is screened.

* The need to encourage building design which is in keeping with the character of the area. This includes:

- ensuring that ridge lines on buildings are parallel with site contours on land with an average slope greater than 1 in 10.

- keeping the height of all buildings and structures to a minimum.

* The need for exterior building colours and materials to be non-reflective and blend with the natural colour of the surrounding environment. Preferred colours for roofs are dark, non-reflective grey, brown, olive green or black.

* The need for all excavation and fill slopes to be of a gradient less than 1 in 5, revegetated immediately following construction and maintained thereafter by the applicant.

* The need for a planting strip of at least 2 metres width to separate parallel retaining walls and be appropriately planted.

* The benefits of limiting retaining walls to not more than 1.5 metres above ground level.

* The benefits of requiring at least 50 percent of each site to comprise a pervious surface such as retained native vegetation, a garden or lawn and in addition roads and driveways to comprise a pervious surface such as gravel or toppings.

* If appropriate, the views of Parks Victoria, with those views to be sought using Section 52 of the Planning and Environment Act." (emphasis added)

41. The Middle Yarra Concept Plan - Burke Road to Watsons Creek, December 1993 is a reference document to the scheme and a copy was provided to us by Mr Cicero. Extracts from the original July 1991 version of the concept plan were provided by Mr Peake, primarily in order to clarify a question which arose in relation to a reference in the concept plan to "viewing zones".

42. The subject land is located within an area identified on Map 11A of the 1993 plan as a Yarra Valley Backdrop Area. Prior to the Victoria Planning Provisions format Planning Scheme becoming operational in the City of Banyule, areas within the Yarra Valley Backdrop Area were the subject of a former overlay planning control of the same name. Another overlay planning control, also shown on Map 11A, is the Stream Side Environment Area. That too was the subject of an overlay control of the same name, under the former planning scheme. The original 1991 version of the Middle Yarra Concept Plan included a further area, suggested at the time for another overlay planning control. This area was shown on Map 12A of the 1991 plan and was entitled the Yarra View Shed Area.

43. Under the 1991 concept plan it was proposed that in the Streamside Environment Area - which effectively covered all land, including the Yarra River, between the Boulevard to the west and Bulleen Road to the east - a permit would be required for the construction of any buildings or works, other than works carried out by a public authority or for sewerage and other utilities. Within the Yarra Valley Backdrop Areas, which extended out beyond the Boulevard and Bulleen Road to the west and east respectively, the 1991 report recommended that a permit be required to construct any building or works other than a detached house with, among other things a wall height of less than 8 metres. For the Yarra View Shed Areas, which were shown as extending beyond Lower Plenty Road to the north west, no particular requirement for permit was to be invoked. However, when considering any application to develop land within such areas the Responsible Authority was to consider whether the height, bulk, appearance and outline of such development would be "in keeping with or enhance the vista from the Yarra River and its environs".

44. There was some difference of opinion as to how the viewing zones referred to the concept plan - and which had arisen out of a visual resource study undertaken as part of the concept planning exercise - had been translated into the controls. Although we think that not much turns on it, we have reached the conclusion that the three viewing zones A, B and C form the basis of the these original overlay controls, the Streamside Environment Area, the Yarra Valley Backdrop Area and the subsequently abandoned Yarra View Shed Areas respectively. This being the case we agree with Mr Hooper that the subject land is located within Viewing Zone B. Viewing Zone B is defined on the Concept Plan as:

"The middle ground and far middle ground area where natural landscape features have an intermediate visual presence and a more moderate degree of visual presence on the Yarra Valley landscape."

45. The objectives of the Concept Plan are set out at page 9 of the 1993 report and can be said to divide relatively evenly between a desire to improve the environmental sustainability of the river and its habitat, a desire to improve the recreational value of the corridor and a desire to protect the landscape for both cultural and aesthetic reasons. At page 19, the visual landscape is discussed and reference is made to four areas or landscape character units, identified in the visual resource study. The subject land is within the Koonung Creek unit. The concept plan at page 20 notes that this unit contains much flood plain and is a major part of the Chandler Basin. It is noted also that the river in this section is characterised by accentuated meanders but also that "its character is strongly influenced by suburban surrounds_, golf courses and sports fields"_. The report goes on to warn that:

"The character of this area could be threatened by the removal of the existing tree cover and increased building heights and densities in surrounding residential areas ..."

46. At page 23 of the Concept Plan, under the heading Heritage, reference is made to the importance of this section of the valley for its inspiration to Australian artists, most notably the Heidelberg School, who, as is well known, established their camp at Eaglemont. As noted in the plan:

"It is difficult to think of any other area in Australia that has attracted so many artists of national and international importance to live in or paint its landscape."

47. Reference is also made to Walter Burley Griffin's selection of this locality as the place for his innovative estate design which, as is also well known, was heavily influenced by the Australian landscape and a desire to develop an Australian architectural style.

48. The City of Banyule in its Municipal Strategic Statement (MSS) at Clause 21 of the planning scheme draws particular attention to the city's links with the Heidelberg School and to architects and urban designers such as Walter Burley Griffin, Edna Walling, Ellis Stones and Alister Knox all of whom have been so important in attempting to devise an Australian urban expression. The MSS also recognises the significance of certain of the city's landscapes and the need for their protection.

49. We agree with Mr Tweedie, as stated at page 2 of his written submission, that there are three main issues for this Tribunal to determine:

"a. The purpose and extent of the discretion contained in clause 42.03 and Schedule 1 to the Significant Landscape Overlay (SL01) of the Banyule Planning Scheme ("the scheme");

b. The matters which might properly be considered in exercising that discretion; and

c. The merits of this proposal when assessed against those considerations."

50. It was submitted on behalf of the Applicant for Review that the purpose of the SLO is solely to maintain the landscape character of the Yarra Valley when viewed, as Mr Ryan termed it, from the "riverland environment". By riverland environment we took him to mean the Yarra Floodplain - which interestingly is not included within the SLO. Mr Hooper went on to submit at page 9 of his written submission that:

"The background to the Significant Landscape Control clearly demonstrates that development within the residential area in which the subject site is located was of no interest or concern from the perspective of the study that led to the introduction of the control. What was of interest, and what the control sought to achieve was to protect the values of the river and its environment by ensuring that development in areas that were visible from the river, was not intrusive to the enjoyment of the river and surrounding public areas."

51. By contrast the Responsible Authority and the Respondent Objectors submitted that the purpose of the control extended to also include conserving and enhancing the character of residential areas such as those that surround the subject land and which are characterised in the Statement of Nature and Key Elements at Clause 1 of the Schedule as "areas of lower density housing where the landscape predominates".

52. It is our conclusion that both contentions have an element of correctness to them. We accept that the primary objective is to maintain and enhance the views of the valley - including the valley walls which comprise low density housing where landscape predominates - when viewed from, as Mr Ryan put it, the river environs. We think there is scope to suggest also that views of this landscape from vantage points other than the river environs are also sought to be protected including from nearby streets and scenic viewpoints. However the view or vista to be protected from these localities is not any short range view but rather the broad extensive landscape and views which can be said to engender a sense of remoteness due to a perception of there being only a limited intrusion of built forms. In this sense we agree with Mr Hooper that the Pocket Oxford dictionary definition of landscape, that is, "scenery as seen in a broad view", is an apt descriptor.

53. At the same time however we have come to the conclusion that the SLO's mechanism for ensuring that the character of this significant landscape is conserved and enhanced, is by maintaining the character of the low density residential areas - and the other places comprising the component parts of the landscape as described at Clause 1 of Schedule 1 of the SLO.

54. When we say that the outcome is to be achieved by maintaining the character of the constituate parts, this does not imply maintenance of character as required, for example, when assessing "neighbourhood character" in the context of the ResCode or the former Good Design Guide provisions. That is to say, it is not necessary to consider detailed issues such as frontage setbacks in relation to adjacent buildings, or fence heights. Rather, the assessment need concern itself only with such macro issues as height and siting in relation to vegetation and landform. This is because it is these aspects that will impact upon the landscape character when viewed from the points identified in Clause 2 of the Schedule.

55. We find support for this proposition in the decision guidelines of Schedule 1, especially at dot point 5 which reads:

"* The need to encourage building design which is in keeping with the character of the area. This includes:

- ensuring that ridgelines on buildings are parallel with site contours on land with an average slope greater than 1 in 10;

- keeping the height of all buildings and structures to a minimum."

56. The dot point is suggesting that an important characteristic of the area is that on steeply sloping land - which includes the subject land - buildings lie parallel to the contours and the height of structures is thereby kept at a minimum. It is these elements of character that manifest in landscape views, as do the other "character" considerations set out elsewhere in the decision guidelines. These include colours and materials and "the benefit of requiring at least 50% of each site to comprise a pervious surface such as retained native vegetation, a garden or lawn ..." It was the evidence of Mr Niemann that only 13.9% of this site is garden or similar pervious surfaces.

57. Central to Mr Hooper's submission, and indeed to Mr Ryan's evidence, was the contention that all we needed to decide was whether or not the additional building height above that which is permitted as of right, would have an additional and unacceptable impact on the landscape backdrop to the Yarra River, compared to that which would occur if the building had been constructed no higher than the 12 metre and 8 metre "trigger points" contained in the planning scheme.

58. By contrast, Mr Tweedie argued that this was not the correct test, although he also contended that even if it was, the proposal should fail. Mr Tweedie referred us to the decision of the Tribunal in the earlier enforcement order application where at paragraph 9 the Tribunal found:

"That the planning provisions send out a clear message to encourage dwellings with heights below the trigger height thresholds. Any dwelling over these thresholds will require a careful assessment by means of the planning permit application process to ensure that the purpose of the significant landscape overlay is not compromised and the nominated decision guidelines, which seek to protect and enhance the landscape character of the area within the significant landscape overlay, are considered and form the basis of the decision in relation to the permit application_." (emphasis added)_

59. Mr Tweedie argued, and we agreed with him, that Clause 42.03 provides that a permit is required for the building as a whole, not merely for the parts above the trigger heights. We also observe, as did the Tribunal in the passage quoted above, that in deciding whether or not to grant a permit for the building as a whole it is against the nominated decision guidelines that we must make our assessment. We note that none of those decision guidelines refers, for example to "the difference between the building proposed and a building with a wall height of less than 8 metres". Rather, what the decision guidelines direct us to consider are what might be termed "ground up" issues, including whether the building has been aligned in relation to the contours in a manner consistent with the character of development in the area and with sufficient pervious surfaces remaining to be able to ensure an opportunity for vegetation and gardens consistent with the character of a "low density residential area where landscape predominates".

60. If we were to adopt Mr Hooper's suggestion of only considering the effect of the additional height above 8 metres, we think this would make the decision guidelines redundant. The correct approach therefore in our opinion is to assess this application in a manner which gives a role or meaning to the decision guidelines, not one which makes them redundant.

61. Considered in this way we find that the design and siting of this building is the antithesis of the decision guidelines and indeed the "character" of the area which those decision guidelines require new development to be in keeping with.

62. We believe that there is no way that it could be said that the design of this building has ensured that the height has been kept to a minimum or that the ridgeline has been aligned parallel with the contours. Neither do we find that adequate screening of the building has or can be ensured.

63. Notwithstanding Mr Vernon's "ex post facto" attempt to introduce vegetation that might one day screen this poorly sited, bulky and sprawling building, we were not persuaded by his evidence that his landscape plan was sustainable for the long term. The most important elements of Mr Vernon's landscape design were:

* the row of six pyramidal birch trees located above the 2 metre wide easement across the rear of the land to be supplemented below by a hedge;

* the planting of three medium evergreen trees and two narrow deciduous trees along the northern edge of the terrace, such as pyramidal birches and native frangipani - to be contained within a planter box with a width of 1 metre and a height of 774 millimetres; and

* the planting of two Yellow Box trees (Eucalyptus Melliodora) between the dwelling and the tennis court to provide - he estimated after 12 to 18 years - a canopy above the dwelling against the ridge line.

64. Under cross examination Mr Vernon agreed that landscape screening was certainly required for this development and that it would be reasonable to suggest that without landscaping the development would be "unacceptable". He agreed this landscaping was required because of both the bulk and height of the building and its location in relation to the ridgeline. He agreed also that the impact of this height, bulk and siting when viewed from vantage places within the valley, including the Banksia Street bridge, would be less if the building was not as high. We think it clear from Mr Vernon's evidence that he could have achieved a far better outcome with the building sited and designed in a manner more consistent with the decision guidelines. His landscaping can be described as a "bandaid" approach, although he had done the best he could given the constraints presented to him.

65. Notwithstanding Mr Vernon's suggestion that with a Section 173 Agreement as a condition of permit, the landscaping could be required to be maintained four times a year and that this might enable it to survive for 25 to 30 years, we are not persuaded that this is an outcome which could be said to flow from the decision guidelines of the scheme. The principle components of the landscape are either

(i) over an easement, which if required to be maintain or altered would jeopardise the trees, or

(ii) on an outer face of a north facing terrace where the trees would not only substantially mask the views so obviously sought by this terrace design but also cause shading of this otherwise sunny terrace, and

(iii) in a shallow, narrow and very inadequate planter box.

66. We are not persuaded that it is appropriate that the landscaping, which is otherwise so vital to this development, should be founded on so unsustainable a set of criteria. After all, it is the provision for, and maintainance of, this landscaped "backdrop" that will protect, preserve and enhance the Yarra Valley and river environs from the intrusion of built form. Landscaping provides the critical element of screening, which contributes to the sense of isolation or softening of the urban fabric.

67. Our inspection revealed that this development, without Mr Vernon's landscaping is visible for some distance throughout the valley, including from nearby streets and open space areas. We accept that this visibility changes according to the light and angle of the viewer and we accept, given the "broad view" of the landscape, that it is but a minor component. It is however a visibility which, as Mr Niemann suggested, sets a very poor precedent. We accept that the concept plan identified as a threat the potential for development with high site coverages and of some scale to eventually erode away the landscape character of the valley. We also observe that the purpose of the overlay is not only to arrest change in the landscape but indeed to enhance that landscape. We do not believe that this development can be described as enhancing. We do not believe either that it could be said to be conserving the character of this landscape. It is a blot upon the landscape - a small blot admittedly - given the broad sweep of this valley - but it is nevertheless a blot which the control seeks to avoid, and which would create a poor precedent for other applications, if allowed.

68. As noted by Mr Niemann at page 8 of his report "it does adversely interrupt the continuity of ridge top vegetation and is therefore the type of incremental change that threatens the landscape character of the valley." We think it clear that the SLO and the concept plan upon which it is based are directed entirely towards the elimination of this sort of incremental change. In Southern Capital Corporation Pty Ltd v City of Port Phillip (1998/039170) at page 11, the Tribunal constituted by Members Moles and Read, considered the issue of incremental change and drew attention to the phenomenon of the tyranny of small decisions:

"By itself, of course, each decision may seem to be relatively inconsequential but, in combination, a series of small changes would eventually amount to something of considerable substance (sometimes referred to as the `tyranny of small decisions')."

69. In that decision, which considered the impact of small changes in relation to overshadowing the foreshore, the Tribunal found that, "notwithstanding the small degree of proposed change to foreshore shading and the adjacent context, the proposed building height is not acceptable."

70. Likewise in this case, even though the degree of visual intrusion by this dwelling might not be great in the context of the valley as a whole it would, we suggest, create a most undesirable precedent if we were to grant a permit for its construction.

71. The fact that this building is part constructed is also not a reason for granting a permit or indeed for assessing the proposal in the manner suggested by Mr Hooper - that is to say having regard to those parts that exceed the trigger heights. The SLO requires that a permit be obtained for the construction of this building. That is say for the whole of this building. Having assessed the whole of this building, and having had regard to the decision guidelines, which we are required to have regard to, it is our conclusion that this building is not consistent with the purpose of the overlay. That is, to say it will not conserve and enhance the character of this significant landscape. In such circumstances we find we have no alternative other than to refuse to grant a permit for the reasons stated herein.