VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1091/2022 & P1325/2022
Permit Application no. 22/058	
CATCHWORDS	
Sections 80 & 82 Planning and Environment Act 1987 (Vic); Surf Coast Planning Scheme; General Residential Zone; Neighbourhood Character Overlay; Amenity; Sharing of views.	

Applicants		

P1091/2022	David and Rachel McCunnie	
P1325/2022	Andrew Rose and Tracey Russell	
respondents		
P1091/2022	Andrew Rose and Tracey Russell	
P1325/2022	David and Rachel McCunnie	
subject land	52 Smith Street
LORNE  VIC  3232	

HEARING TYPE	Hearing	

DATE OF HEARING	20 April 2023	

DATE OF ORDER	19 May 2023	

CITATION	McCunnie v Surf Coast SC [2023] VCAT 531	

Order
1	In applications P1091/2022 and P1325/2022 the decision of the responsible authority is varied.
2	In planning permit application 22/0058 a permit is granted and directed to be issued for the land at 52 Smith Street, Lorne, in accordance with the conditions set out in the Appendix.  The permit allows the construction of a dwelling in accordance with the endorsed plans.

Bill Sibonis
Senior Member			

Appearances
For D & R McCunnie	P Connolly, Town Planner of Aspect Planning Services	
For Surf Coast Shire Council	N Helliwell, Town Planner	
For A Rose & T Russell	R McKendrick, Town Planner of Planning & Property Partners Pty Ltd	

Information
Description of proposal	The construction of a dwelling.	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 (Vic) – to review the conditions contained in the permit. (P1325/2022)
Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit. (P1091/2022)	
Planning scheme	Surf Coast Planning Scheme (Planning Scheme)	
Zone and overlays	General Residential Zone – Schedule 1, Surf Coast Residential Areas (GRZ1)
Bushfire Management Overlay – Schedule 2, Aireys Inlet, Anglesea, Lorne BAL-29 Areas (BMO2)
Design and Development Overlay – Schedule 12, Lorne Residential Areas (DDO12)
Neighbourhood Character Overlay – Schedule 2, Lorne Residential Areas (NCO2)
Significant Landscape Overlay – Schedule 4, Lorne Residential Areas (SLO4)	
Permit requirements	Cl. 43.05-2 (the construction of a building and the construction and carrying out of works on land in NCO2)
Cl. 44.06-2 (the construction of a building and the construction and carrying out of works associated with accommodation on land in BMO2)	
Key scheme policies and provisions	Cl. 02, 11, 13, 15, 43.05, 54 and 65.	
Land description	The subject land is situated on the west side of Smith Street in Lorne, between Fern Avenue and William Street.  It is a vacant lot with a 15.07 metre frontage, a depth of 36.61 metres and a site area of approximately 558 square metres.  The land is sloping, with a fall of some 6.2 metres from the rear to the front.  Surrounding land use is residential, with adjoining lots supporting both single dwellings and two-dwelling developments.	
Tribunal inspection	An inspection was undertaken after the hearing.	

  Reasons
What is this proceeding about?
1	The Surf Coast Shire Council (Council) has issued a Notice of Decision to Grant a Permit (NOD) for the construction of a dwelling on the subject land.  That decision is the subject of two applications to the Tribunal.
2	The first of these is the application in proceeding P1091/2022.  It is an application made by David and Rachel McCunnie, owner/occupiers of the adjoining land to the west at 2/7 William Street (applicants) and seeks a review of the Council’s decision.  Their grounds refer to view-sharing considerations and to the impact of the development on the amenity of their property.
3	The second application is that in proceeding P1325/2022.  That application is made by Andrew Rose and Tracey Russell, owners of the subject land and permit applicants (respondents) and is for a review of conditions included in the NOD.  The contested conditions require modifications to the proposal to provide increased landscaping opportunities in both the front garden area and rear setback.
4	An order arising from a compulsory conference held in respect of both applications amended the planning application by substituting amended plans for the application plans.  On this basis the Council does not oppose the deletion of the contested conditions in proceeding P1325/2022.  The applicants confirmed that they similarly do not oppose the deletion of these conditions.
5	The hearing was therefore confined to the matters in dispute in proceeding P1091/2022.  The key issues for determination may be expressed as follows:
•	Will the development allow for a reasonable sharing of views?
•	Will the development have any unacceptable impacts on the amenity of the adjoining property to the west?
6	Having considered the submissions, with regard to the relevant policies and provisions of the Planning Scheme and assisted by my inspection, I have determined to grant a permit for the construction of the proposed dwelling.  My reasons follow.
what is the relevant planning context?
7	As set out above, the land is within the GRZ1 and is subject to a number of overlays.  Given the proposal is for the construction of one dwelling and the lot size is not less than 300 square metres, a planning permit is not required pursuant to the provisions of the GRZ1.
8	Similarly, planning permission is not required pursuant to the provisions of either SLO4, as no vegetation is proposed to be removed, or DDO12, as no front fence is proposed.
9	Pursuant to clause 44.06-7 (BMO2), an application is exempt from the review rights of section 82(1) of the Planning and Environment Act 1987 (Vic) and the provisions of this overlay cannot be considered by the Tribunal in deciding whether a permit should be granted for the proposed development.  This is consistent with the reasoning and findings in Myers v Southern Grampians SC.  That said, no party ventilated any issues relevant to the purpose, requirements or decision guidelines at clause 44.06.
10	The purpose of the NCO2 is:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To identify areas of existing or preferred neighbourhood character.
To ensure that development respects the neighbourhood character.
To prevent, where necessary, the removal of buildings and vegetation before the neighbourhood character features of the site and the new development have been evaluated.
11	The ‘neighbourhood character objective’ at clause 2.0 of the schedule to NCO2 includes the following:
•	To conserve, enhance and reinstate the preferred character of a tall canopy treed setting with recessive buildings throughout Lorne, including areas that are substantially cleared of vegetation.
•	To protect the quality of the vegetated amphitheatre vista of the Lorne township as viewed from the public realm.
•	To encourage building design that complements the cultural, environmental and landscape values of Lorne, with emphasis on small footprints, large setbacks and avoidance of visual bulk or prominence.
•	To respect the neighbourhood character value of heritage places and their landscape setting.
•	To encourage development that reflects a lightweight coastal image, avoids design repetition and blends with the vegetation using subtle, neutral and unobtrusive colours.
•	To ensure that buildings sit below ridgelines and the tree canopy when viewed from the Great Ocean Road or any other significant viewing points.
•	To ensure that buildings are sited and designed to avoid and/or minimise removal of native vegetation.
•	To retain space around buildings to provide sufficient room for the retention of vegetation and landscaping, particularly to the front and rear of a development.
•	To maintain, to a reasonable level, the residential amenity derived from the availability of views of landscape features, privacy and access to sunlight.
•	To achieve a reasonable sharing of views of significant landscape features, including views of the ocean and coastal shoreline, the Erskine River and natural bushland in the hinterland.
•	To encourage accessways and other infrastructure that has an informal, vegetated appearance that sits naturally in the landscape.
•	To ensure dwelling densities are consistent with the subdivision requirements of Schedule 12 to the Design and Development Overlay.
12	The schedule, at clause 4.0, varies selected standards of clauses 54 and 55, which relevantly include the following:
•	Standard A4/B7 – Building height: The maximum building height should not exceed 7.5 metres.
•	Standard A5/B8 – Site coverage: The area of a lot covered by buildings should not exceed 35 per cent.  The plot ratio of a building should not exceed 0.5.
•	Standard A8 – Significant trees: At least 50 per cent of a lot should be available for the planting of vegetation (excludes driveways and tennis courts of all surface types).
An area of 100m2, with a minimum dimension of 8 metres, should be provided for vegetative landscaping that includes canopy trees.
Sites, in particular the front and rear building setback areas, should be landscaped in a manner that places buildings in a bushland setting, softens the appearance of buildings in the streetscape and from adjoining properties and complements the character of the town.
A group of canopy trees should be planted on each lot with at least two in the front building setback area.
•	Standard A19/B31 – Design detail: In addition to the attributes in clauses 54.06 and 55.06:
•	The design of buildings should reflect the preferred neighbourhood character attributes, including:
-	Landscape setting
-	Building massing
-	Height
-	Colours, materials and finishes
-	Space around buildings and setbacks.
•	Buildings should reference the attributes of classic beach houses and display a coastal design style of architecture.
•	Any new undercover or enclosed car parking space should be sited behind the main building façade.
13	Decision guidelines at clause 43.05-5 relevantly include:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The statement of the key features of the neighbourhood character and the neighbourhood character objectives contained in a schedule to this overlay.
•	Whether the location, layout and form of the proposed development respects the neighbourhood character.
…
•	Any proposed landscape improvements.
•	Any matter specified in a schedule to this overlay.
14	Further decision guidelines are provided at clause 5.0 of the schedule, and are to be considered, as appropriate, in addition to those at clause 43.05 and elsewhere in the Planning Scheme.  These relevantly include the following:
Building setbacks
…
•	The need to maintain a sense of space and separation between buildings, including within multi-dwelling developments.
Building height
•	Whether buildings should be designed to step down the slope on steep sites to reduce overall building height and bulk.
…
•	Whether a greater building height is reasonable due to the physical constraints of the site while ensuring that the greater height will not result in reduced residential amenity by loss of views, overlooking or overshadowing.
Site coverage
…
•	Whether a greater site coverage is reasonable so as to reduce the overall visual bulk, height or prominence of buildings.
Landscaping
•	The extent to which the landscaping of the site will achieve the effect of:
-	Placing buildings in a bushland setting.
-	Softening the appearance of buildings in the streetscape and from adjoining properties
-	Complementing the character of the town.
Design Detail
•	The need to avoid boxy building forms, by encouraging buildings with projecting eaves and discouraging parapet walls unless the building form is highly articulated.
•	The need to encourage a diversity of built form, particularly in multi-dwelling developments.
•	The need to encourage the use of building materials and finishes that result in a lightweight appearance.
•	The need to strongly discourage suburban looking buildings and historic replicas.
•	The need to encourage the use of building colours that are subtle, neutral, muted, receding and unobtrusive and assist in visually blending the building with the surrounding natural landscape, especially the tree canopy.
View sharing
•	Whether the development will achieve a reasonable sharing of views from private land, with particular emphasis on significant landscape features, including views of the ocean and coastal shoreline, the Erskine River and natural bushland in the hinterland.
•	The appropriate balance between affording views from individual properties with the protection of the landscape character of the town and the visual appearance of the town from public viewing points.
Will the development allow for a reasonable sharing of views?
15	In their respective submissions addressing the issue of view-sharing, the parties referred to relevant case law which has established principles used to guide decision making.  In the matter of Healy v Surf Coast SC, the Tribunal set out the following principles:
(a)	there is no legal right to a view;
(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.
16	The Tribunal in Wright v Greater Geelong CC ‘respectfully’ added a further refinement to these principles as follows:
11	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. ...
17	The applicants acknowledged that the single-storey nature of their dwelling is a relevant consideration in the assessment of the proposal’s impact on views, as is the vacant state of the subject land.  The views presently gained are not expected to be retained, nor was it argued that the subject land should not be developed.  What is sought is the deletion of one of the first-floor bedrooms to achieve a ‘view corridor’ extending along the northern side of the proposed dwelling.
18	The applicants have obtained planning permission to construct a first-floor addition to their dwelling.  That permit was granted by the Tribunal as an outcome of a compulsory conference.  The approved addition comprises a bedroom with ensuite and walk-in-robe, and a living area with an appurtenant east-facing balcony.  The living room has north-facing windows and a glazed sliding door unit which extends across almost the entire width of the eastern wall and provides access to the balcony.  The sliding door unit and balcony will allow an outlook over the proposed dwelling to the ocean.
19	While acknowledging that the addition would allow views to be obtained, the applicants submitted that the proposed living area is a secondary space, and the primary living area will remain at the ground floor level.
20	There was no indication that the permit will not be acted upon.  The applicants advised that the plans have been endorsed but engineering plans have not been prepared, and quotes have not been obtained.
21	With reference to the above case law, the two key principles in this instance are whether the applicants have taken all appropriate steps to optimise development of their own properties and what their legitimate expectations are.
22	The applicants have a single-storey dwelling, and one that is not ‘front row’ with respect to views of the ocean.  They are in the residential hinterland, sited behind other residential lots.  The development of the neighbouring lot to the north-east in the form of two, two-storey dwellings has already obstructed views and is an example of the vulnerability to such an impact arising from the location of the applicants’ property and the single-storey nature of their dwelling.
23	The applicants have not at this point in time taken all appropriate steps to optimise the development of their property, but will arguably do so if or when they act on their permit and construct their first-floor addition.  If this occurs, then they will be able to obtain views over the proposed dwelling toward the ocean.  It was not submitted that this would not be the case.  
24	While the living area in the approved addition may be considered ‘secondary’ relative to what exists at the ground floor, it is nonetheless a well-proportioned space which will be highly useable (enhanced by the adjoining balcony), and has arguably been designed to optimise the development of the applicants’ land to take benefit of the available views.
25	On the basis of the photographs provided in the submissions, and my observations during the site inspection, I acknowledge that the currently available ocean views contribute to the amenity of the applicants’ land.  While these existing ground-floor views will largely be lost, some views from the deck through the northern setback area of the proposed dwelling will be retained, albeit these will be confined in their extent.
26	I do not consider it would be reasonable to require modifications to the proposed dwelling to allow views from the applicants’ ground-floor living area in circumstances where their dwelling is single-storey; is set behind residentially-zoned lots; and permission to extend their dwelling to provide an upper level which will allow occupants to obtain views over the proposed dwelling has been obtained.
Will the development have any unacceptable impacts on the amenity of the adjoining property to the west?
27	The applicants’ principal concern regarding the impact of the proposed development on the amenity of their land is that of visual bulk.  The west elevation of the proposed dwelling was described as being ‘boxy’ and lacking in any meaningful articulation, with the setback from the common boundary said to be insufficient to ameliorate the visual impacts.  In this respect, reference was also made to the limitations on the ability to provide planting within the setback due to bushfire planning considerations.
28	The respondents submitted that the height of the west elevation, at 5.0 metres to 5.2 metres, is some 2.3 metres to 2.5 metres lower than the 7.5 metre height specified in the schedule to NCO2.  In addition, they submitted that the proposed minimum 3.01 metre setback is twice that required to meet standard A10.  Attention was drawn to the variation in the wall plane of this elevation due to a staggered setback (as the southern end of the west elevation has a western setback of 4.1 metres for a length of 2.4 metres), and the inclusion of a freestanding metal batten vegetated screen adjacent to the central section of this elevation which was said to provide further visual interest.  With respect to landscaping, the respondents submitted that two trees could be planted within the rear setback.
29	A further consideration addressed at the hearing was the effective wall height of the west elevation as it presents to the applicants’ land, given the difference in levels between the two sites.  The applicants’ dwelling is located on higher land and is itself elevated above ground level.  The plans show the floor level of the applicants’ dwelling as RL 29.43, and the roof level of the proposed dwelling (being the top of the west elevation, given the flat roof profile) as RL 32.60.  As a consequence, from within the applicants’ dwelling, and from the deck which is their secluded private open space area, the west elevation of the proposed dwelling will effectively present a height of 3.17 metres.  While it is true that from ground level on the applicants’ land the wall height will be greater, this is not secluded private open space or an area which displays any sensitivity to visual impacts.
30	I agree with the respondents that the proposed height of the west elevation in conjunction with the setback, which is more than double that which is required in order the meet standard A10, and having regard to the elevated nature of the applicants’ dwelling, unacceptable visual bulk will not be presented to this neighbouring property.  The staggered setback, freestanding screen and proposed tree planting will further moderate the appearance of the elevation as it presents to the applicants’ property.  When these factors are taken into account or considered, there will not be an unacceptable impact on their amenity.
Other matters
31	Varied standard A4 at clause 54.03-2 specifies a maximum height of 7.5 metres.  The proposal exceeds this height by 300mm at the centre of the site, well-removed from the applicants’ land.  This exceedance is largely a consequence of the slope of the subject land.
32	The objective of clause 54.03-2 is to ensure that the height of buildings respects the existing or preferred neighbourhood character.  Before deciding on an application, the following decision guidelines must be considered, as appropriate:
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme.
•	Any maximum building height specified in the zone, a schedule to the zone or an overlay applying to the land.
•	The design response.
•	The effect of the slope of the site on the height of the building.
•	The relationship between the proposed building height and the height of existing adjacent buildings.
•	The visual impact of the building when viewed from the street and from adjoining properties.
33	It was not argued, or otherwise demonstrated, that the additional 300mm above that nominated in standard A4 would result in any unacceptable neighbourhood character impacts.  The dwelling will be of a height that will assimilate acceptably into its context and not present a dominant or unduly prominent presence in the streetscape or wider neighbourhood.  Dwellings of a comparable height are evident in the surrounding area, including the adjoining land to the north.
34	When considering the provisions of NCO, the proposal meets the neighbourhood character objective of ensuring that buildings sit below ridgelines and the tree canopy when viewed from the Great Ocean Road or any other significant viewing points.  Further, in reference to the decision guidelines, the building has been designed to step down the slope to reduce the overall height and bulk, and it has not been demonstrated that the additional 300mm in the central portion of the subject land will result in reduced residential amenity by loss of views, overlooking or overshadowing.
35	This is similarly the case for the site coverage and plot ratio, which were matters raised in the applicants’ submissions.  The schedule to the NCO2 varies standard A5 at clause 54.03-3 to specify a site coverage of 35%.  A site coverage of 39.5% is proposed.  The objective is to ensure that the site coverage respects the existing or preferred neighbourhood character and responds to the features of the site.  The decision guidelines are:
•	Any relevant neighbourhood character objective, policy or statement set out in this scheme.
•	The design response.
•	The existing site coverage and any constraints imposed by existing development or the features of the site.
•	The site coverage of adjacent properties.
•	The effect of the visual bulk of the building and whether this is acceptable in the neighbourhood.
36	A decision guideline of NCO2 is whether a greater site coverage is reasonable so as to reduce the overall visual bulk, height or prominence of buildings.  Related to this is the proposed plot ratio which at 0.71 exceeds the specified plot ration of 0.5.
37	I agree with the Council’s and respondents’ submissions that the proposed site coverage and plot ratio do not result in an unacceptable built form outcome.  The plot ratio exceedance is principally attributable to the garage, which is in the form of a partial ‘basement’ and does not extend past the ground-floor level.  It is cut into the slope of the land.  That being the case, it does not result in a dominant built form or a structure which is otherwise not in keeping with the scale and bulk of development evident in this neighbourhood.  This response to the fall of the land limits the contribution made by the garage to the visible built form.
38	Concerns were expressed regarding the ability to establish a bushland setting as sought by the neighbourhood character objectives of NCO2.  As explained by the Council and the respondents, the ability to landscape the site is constrained by bushfire management considerations arising from its location within BMO2.  According to the landscape plan, trees will be planted in both the front and rear setback areas and will introduce some vegetation on the land.
Conclusion
39	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions.

Bill Sibonis
Senior Member			

Appendix – Permit Conditions

Permit Application No	22/0058	
Land	52 Smith Street, Lorne	

What the permit allowS	
The construction of a dwelling in accordance with the endorsed plans	
Conditions
Amended Plans
1	Before the development starts, plans to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the plans will be endorsed and will then form part of the permit.  The plans must be generally in accordance with the plans identified as TP01, TP02, TP03, TP04, TP05, TP06, TP07, TP08 and TP09, Revision B, dated 27.02.23, prepared by Mina Architects Pty Ltd but modified to show:
(a)		the roof, external wall and driveway materials and colour treatments with all roof and wall finishes in a non-reflective tone;
(b)		screening of all habitable room windows and terraces to minimise overlooking of neighbouring property in accordance with Standard A15 of Clause 54.04-6 - Overlooking of the Surf Coast Planning Scheme.  The terrace screening must also comply with Standard A10 of Clause 54.04-1 – Side and rear setbacks of the Surf Coast Planning Scheme.
Endorsed Plans
2	The development as shown on the endorsed plans must not be altered unless with the prior written consent of the responsible authority.
Bushfire
3	The bushfire protection measures forming part of this permit or shown on the endorsed plans, including those relating to construction standards, defendable space, water supply and access, must be maintained to the satisfaction of the responsible authority on a continuing basis. This condition continues to have force and effect after the development authorised by this permit has been completed.
Landscape plans
4	Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority. When approved, the plan will be endorsed and will then form part of the permit.  The plan must be drawn to scale and generally consistent with the planting plan identified as Drawing No. L01 prepared by Facet Design dated February 2023.  The landscaping plan must also be consistent with the Bushfire Management Plan endorsed under Condition 3 and must show:
(a)	details of surface finishes of pathways and driveways;
(b)	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant;
(c)	two small canopy trees within the front garden and one tree within the northern courtyard with a mature height of 5 metres;
(d)	landscaping and planting within all open areas of the site;
(e)	only the use of plant species indigenous to the locality;
All species selected must be to the satisfaction of the responsible authority. The landscaping shown on the endorsed plans must be planted before the dwelling is occupied and must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants must be replaced.
Surveyor’s Certificate – Frame Stage
5	A written statement from a licensed surveyor must be submitted for approval to the responsible authority confirming:
•	that the building has been set out in accordance with the endorsed plan; and
•	that the roof levels will not exceed the roof levels specified on the endorsed plan.
The statement must be submitted to the responsible authority at completion of the frame of the building.
6	The maximum building height must not exceed RL 32.60 in accordance with the endorsed plans and to the satisfaction of the responsible authority.
Vehicle Access and Parking
7	Before the development is occupied, the area(s) set-aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
(a)	constructed
(b)	properly formed to such levels that they can be used in accordance with the plans
(c)	surfaced with an all-weather-seal coat
(d)	drained
to the satisfaction of the responsible authority.  Car spaces, access lanes and driveways must be kept available for these purposes at all times.
Rooftop appurtenances
8	No equipment, services, architectural features or structures of any kind, including telecommunication facilities, other than those shown on the endorsed plans are permitted above the roof level of the building unless otherwise agreed to in writing by the responsible authority.
Expiry
9	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –