VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P981/2022
Permit Application no.PP2021/199 	

Applicant	Natas Developments Pty Ltd	

Responsible Authority	Corangamite Shire Council	

SUBJECT LAND	33 Pitcher Street
PORT CAMPBELL VIC 3269	

HEARING TYPE	Hearing	

DATE OF HEARING	3 May 2023	

DATE OF ORDER	30 May 2023	

CITATION	Natas Developments Pty Ltd v Corangamite SC [2023] VCAT 578    	

Order
No permit granted
1	In application P981/2022 the decision of the responsible authority is affirmed.
2	In planning permit application PP2021/199 no permit is granted.

Tracey Bilston-McGillen
Member			

Appearances
For applicant	Adam Natonewski appeared in person.	
For responsible authority	Alex Gelber, solicitor, HWL Ebsworth.	

Information
Description of proposal	Construction of a Second Dwelling (Two-Storey) and Two Lot Subdivision.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Corangamite Shire Council Planning Scheme (planning scheme).	
Zone and overlays	General Residential Zone, Schedule 1 (GRZ1).
Design and Development Overlay Schedule 3 (DDO3).	
Permit requirements	Clause 32.08-3 (GRZ1) to subdivide land. 
Clause 32.08-6 (GRZ1) to construct a dwelling if there is at least one dwelling existing on the lot and to construct two or more dwellings on a lot. 
Clause 43.02-2 (DDO3) to construct a building and construct a fence. 
Clause 43.02-3 (DDO3) to subdivide land.	
Key scheme policies and provisions	Clauses 02.01, 02.02, 02.03, 11.03, 15.01, 16, 53.18, 55, 56, 65 and 71.02. 	
Land description	The Subject Land is rectangular in shape and has an overall area of 1,012 square metres. The review site falls in a northerly direction and has a fall of approximately 3 metres to its rear boundary.
There is an existing dwelling on the site, fronting Pitcher Street.	
Tribunal inspection	I inspected the site and surrounds.   	

  Reasons
What is this proceeding about?
1	This is an application for review against the decision of the Corangamite Shire Council (Council) to refuse to grant a permit for the subdivision of the site and construction of a second dwelling at 33 Pitcher Street, Port Campbell. 
2	The proposal includes the retention of the existing dwelling, construction of a new two storey dwelling to the rear of the site and subdivision of the site into two lots.  The proposal was described by Council as follows.
The Proposal seeks to subdivide the land into two (2) lots, as follows: 
•	Lot 1 will yield a total area of 347.22m2 which wholly contains the existing dwelling located on the Subject Land. It will include 258.61m2 of private open space and a 66.08% Garden Area. Vehicle access to Lot 1 will be via Pitcher Street. 
•	Lot 2 will yield a total area of 664.61m2 which wholly contains the proposed double-storey dwelling. It will include 215.59m2 of private open space and a 54.03% Garden Area. Vehicle access to Lot 2 will be via a battle-axe driveway using the existing crossover and includes a car turning area.
The Proposal also seeks the construction of a double storey dwelling which includes: 
•	4 bedrooms, 3 bathrooms and a garage; 
•	a maximum building height of 8.3m measured from the garage final floor level to the peak of the roof; 
•	a low pitched metal roof;
•	rendered masonry external walls for the ground floor (shale grey or similar) and cladded external walls for the upper floor (silvertop ash); and 
•	dark materials for the roof, windows and pillars (Monument Matte and Ultra Black Matte).
The Proposal utilises 1.7m high obscure safety glass screens around the proposed upstairs alfresco and master bedroom.
3	Council refused the proposal on the following grounds:
[1]	The design outcome of the development is inconsistent with DDO3 and does not respect the existing low scale coastal character and identity of Port Campbell and will have a detrimental impact on the amenity of neighbouring properties by way of overlooking and excessive bulk, scale and height on this site. 
[2]	The development is inconsistent with DDO3 and does not provide a site-specific response for the site and surrounding area
4	Council conceded that the development demonstrates a high degree of technical compliance with the objectives of clause 55 (ResCode) but submitted that compliance does not necessitate the granting of a permit.  It was further submitted that there are matters of concern including neighbourhood character and some amenity issues.
5	The applicant submitted that the proposed development is acceptable, the design is reflective of other newer developments, any amenity issues such as overlooking have been addressed and the development provides a high quality design.
6	Having regard to the submissions and the provisions of the planning scheme, I have decided to affirm the decision of the Council and refuse to grant a permit. My reasons follow.
Reasons for decision

Figure 1: Proposed layout of development.  Source Application plans.
7	The site is zoned GRZ1 with a DDO3 ‘Port Campbell Township, Excluding the Commercial Precinct’ applying.  The design objectives of the DDO3 include to protect the existing low scale coast character and identity of Port Campbell, ensure new development is site responsive, ensure that new development reinforces the diversity of building styles and landscape forms that define the character of Port Campbell and ensure development is designed to achieve view sharing.
8	The overlay includes specific guidelines in relation to density and diversity, neighbourhood character, site layout, building mass and landscape integration principles and on site amenity and detailed design.
9	I am refusing the proposed development for the following reasons.
Amenity considerations
10	It is my finding that the decision to retain the existing dwelling has compromised the development of the site for two dwellings.  The result of this decision is a small existing dwelling with a compromised level of amenity and a large new two storey dwelling, also with a compromised internal amenity as discussed below.  The site may be able to accommodate two dwellings but not in the current layout.  In considering the appropriateness of the proposed development, reference is made to the purpose of clause 55 ‘Two or more dwellings on a lot’ which includes:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework.
•	To achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character.
•	To encourage residential development that provides reasonable standards of amenity for existing and new residents.
•	To encourage residential development that is responsive to the site and the neighbourhood.
11	A design guideline of DDO3 ‘On site amenity and detailed design’ reads:
•	Be designed to place an emphasis on amenity rather than size of space.
12	Having regard to the above objectives and guidelines, I find that the proposed development has failed to provide reasonable standards of amenity for existing and new residents.  I say this for the following reasons.
Overlooking
13	Often reverse living is adopted on sites that can maximise site opportunities such as views.  The plans detail that views are directed to the north west, the rear of the site.  However, as discussed below, there is little opportunity for long distance views avoiding any direct overlooking of neighbours because of the extent of window and balcony screening proposed.  
14	This proposal relies on excessive screening to prevent overlooking to adjoining properties and ensure compliance with Standard B22.  I find this is to the detriment of good design and a high level of internal amenity.  At the first floor, the proposal includes a large alfresco area located off the living area.  This alfresco area is entirely screened to its north and western elevations with obscure glass to 1.7 metres.  
15	Whilst screening is often required on smaller site or more intensive form of development, this site is approximately 1,000 square metres.  It is a large site that may be able to accommodate a different form of development with less reliance of screening, subject to an improved design.  Clause 55 ‘Two or more dwellings on a lot’ sets a purpose ‘To encourage residential development that provides reasonable standards of amenity for existing and new residents’.  It is acknowledged that the west facing kitchen/dining room windows are provided with an external parapet to restrict views to long distance and therefore obscure glass is not provided to this window. However, the reliance of obscure glass to the alfresco, south facing kitchen and master bedroom is indicative of a poor design outcome for future residents.
Secluded private open space
16	As described earlier, it is proposed to retain the existing one bedroom dwelling at the front of the site.  The dwelling is provided with a setback to Lot 2 (the new dwelling) of 2.4 metres to the shared boundary line.  The location of the second dwelling results in the original retained dwelling relying on the front setback for secluded private open space.  
17	I am persuaded by Council that the location of the secluded private open space is inappropriate.  The proposal includes a 1.5 metre high batten fence to the front boundary to provide for secluded private open space.  Standard B28 ‘Private open space’ states that (as applicable in this case) ‘An area of 40 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 25 square metres, a minimum dimension of 3 metres and convenient access from a living room’.  The proposed development relies on private open space being provided to the front of the dwelling.  This is a consequence of retaining the existing dwelling.   
Visual bulk
18	Council put that the proposed building is visually bulky and would dominate the streetscape due to the overall scale and massing, overall height and the use of dark materials.  It was further put that use of obscure glass screening and fixed screens contribute to the visual bulk of the dwelling.   
19	I am persuaded by Council that the proposed building will appear visually bulky.  It will overwhelm the existing dwelling due to its height and size.  The proposed subdivision has resulted in a development that is almost two thirds, one third which I find also results in the existing dwelling being overwhelmed by the proposed new dwelling.
Neighbourhood character

Figure 2: Aerial photograph submitted by applicant.  

20	Council submitted that the proposed development is not in keeping with the neighbourhood character of the area and in particular submitted that the proposal does not reflect the low scale development envisioned for the area, is not site specific and site responsive. 
21	The applicant submitted that there are dwellings within the area that are large, boxy with sheer walls and minimal articulation.  An aerial photograph at Figure 2 was submitted by the applicant.  I make the observation from this photograph that it is fair to say there is evidence of bulky two storey form located in the rear of properties.  
22	New development must have regard to the provisions of the planning scheme including DDO3 which sets a number of design objectives including:
•	To protect the existing low scale coastal character and identity of Port Campbell.
•	To ensure that new development in Port Campbell is site specific and site responsive.
•	To ensure that new development reinforces the diversity of building styles and landscape forms that define the character of Port Campbell.
•	To ensure that new development is designed to achieve viewsharing.
23	I find that the proposed development fails to achieve the purpose and design guidelines of DDO3 for the following reasons.
24	I am persuaded by the applicant that there is some new development occurring within the township but my observation of the character of the area can be described as low key houses, modest coastal houses, variable front fences, vegetation in front setbacks as well as vegetation further within sites.  Building styles vary from single storey modest homes to two storey homes with varied roof styles including curved and the use of a variety of materials. As evident in the aerial photograph, within the street and the township of Port Campbell there is a number of bulky two storey houses with sheer walls. It is also acknowledged that there are examples of older two storey houses that present as tall, boxy with sheer walls that are located within close proximity to the review site.  But I make the observation that whilst these older dwellings may exist, they are not considered to be the type of development envisaged by the planning scheme. Planning is not about replicating what currently exists, particularly when development may not be what is envisaged by current planning provisions.  Respecting neighbourhood character is about a form that will be a comfortable fit with existing and preferred development.  The existence of these older boxy dwellings is one factor to be considered but I do not agree that the existence of these ‘other bulky two storey dwellings’ justifies an approval for the proposed development.  
25	The applicant submitted and provided examples of newer development similar to what is proposed.  I agree that there is an emergence of contemporary dwellings with darker colours and a flat or an angled roof.  From the photographs provided and my site inspection, this emerging contemporary form referred to by the applicant, appears to be single dwellings and dwellings to the street.  A key difference between the photograph submitted by the applicant and the review site is the location of the dwelling.  The example submitted was a house at the front of the site facing the street, not the rear and a house that appears to be designed to capture views.  This is not the case here.  It is also noted that to the street and the front balcony, there is no screening providing a high level of amenity for the occupants.  Again, this is different to the proposed dwelling where screening is excessive (as discussed earlier).
26	I find that the proposed second dwelling fails to achieve the design objectives or guidelines of DDO3.  I find that what is proposed is visually overwhelming.  Pitcher Street is a mixed street.  Dwellings generally (there are exceptions) have a low profile to the street.  The existing dwelling is retained therefore the presence to the streetscape is retained.  However, the proposed dwelling, will appear as visually overwhelming and will dominate the existing dwelling on the site. 
27	Council submitted that the overall height of 8.3 metres (maximum height not wall height) is excessive and out of character with the area.  I am persuaded that the proposed height is excessive on this site. The building of this height will overwhelm the existing single storey dwelling.
28	A 1.5 metre high front fence is proposed.  There is a variety of fences within the area but generally fences are either non-existent or do not dominate the street.  The proposed fence fails to respect the low scale coastal character and as noted above it is required to provide privacy for secluded open space to the existing dwelling.
29	I was referred to a decision Yarrumduc Investments Pty Ltd v Corangamite SC which was an approval for the development of a site for two double storey dwellings.  One of the observations of this decision is the role of landscaping and the Member found that the development provided a satisfactory opportunity to retain and enhance the appearance of the site through landscaping. In this case, the proposed development has failed to satisfactorily address landscaping. Council’s draft conditions require the preparation of a landscaping plan, but in this coastal context, I find that the issue of landscaping should be addressed as an integral part of the design. 
30	As stated earlier, the decision to retain the existing dwelling has resulted in a development that has compromised the amenity of both the existing and new dwelling as well as resulted in a development where the new dwelling is overwhelming and dominant.  The proposed development fails to achieve the provisions of the DDO3. The site may be able to accommodate two dwellings but not in the current layout.
Conclusion
31	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Tracey Bilston-McGillen
Member