VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P860/2022
Permit Application no.PP39/2022-1 	
CATCHWORDS	
Section 82 Planning and Environment Act 1987, Colac Otway Planning Scheme, Commercial 1 Zone, Design and Development Overlay – schedule 5, Heritage Overlay, First floor enclosed balcony; Projection over footpath; Neighbourhood Character; Urban Design, streetscape, visual dominance.	

Applicant	Everspring Pty Ltd	

Responsible Authority	Colac Otway Shire Council	
Respondent	John M Riches	

SUBJECT LAND	111-117 Great Ocean Road
APOLLO BAY VIC 3233	

HEARING TYPE	Hearing	

DATE OF HEARING	21 March 2023	

DATE OF ORDER	21 November 2023	

CITATION	Everspring Pty Ltd v Colac Otway SC [2023] VCAT 1284	

Order
No permit granted
1	In application P860/2022 the decision of the responsible authority is set aside.
2	In planning permit application PP39/2022-1 no permit is granted.

Alison Slattery
Member			

Appearances
For applicant	Rob McKendrick of Planning & Property Partners Pty Ltd	
For responsible authority	Ms Louise Lunn, of Louise Lunn Planning	
For referral authority	No appearance	
For respondent	John M Riches, in person	
Information
Description of proposal	Construction of an upper level balcony, extending over the easement to the side of the site and over the footpath to the frontage of the site.  The balcony is to be used in conjunction with the upper level ‘bar’ use, increasing the area of ‘red line’ for the liquor licence.  A car parking reduction of five (5) spaces is sought, and bicycle parking requirements are sought to be waived.  A variation of easements relating to carriageway and drainage (E1 and E2) is also sought.  	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit	
Planning scheme	Colac Otway Planning Scheme 	
Zone and overlays	Commercial 1 Zone (C1Z)
Design and Development Overlay Schedule 5 (DDO5) 
Parking Overlay – Schedule 2 (PO2)
The land abuts a Transport Road Zone Category 2 (TRZ2) to Great Ocean Road
The land abuts a Heritage Overlay – Schedule 312 (HO312)	
Permit requirements	Clause 34.01-1 Buildings and works in a C1Z
Clause 43.02-2 Buildings and works in DDO5
Clause 52.02 Variation to a carriageway and drainage easements
Clause 52.06 Reduction in Parking – waiver of five car parking spaces
Clause 52.27 Licenced Premises – a permit is required if a licence is required under the Liquor Control Reform Act 1998 (Vic)
Clause 52.29 Land Adjacent to the Principal Road Network	
Relevant scheme policies and provisions	Clauses 02.01, 02.02, 02.03-1, 02.03-6, 02.04, 11.01-1S, 11.01-1L, 11.03-4S, 11.03-5S, 11.03-5R, 11.03-6L, 13.07-1S, 17.01-1S, 17.02-1R, 17.02-1S, 34.01, 43.02, 52.02, 52.06, 52.27, 52.29, 53.06, 65, 71.02 and 72.08.	
Land description	The site is located on the western side of Great Ocean Road, between Moore and Hardy Streets.  
The site is rectilinear in shape and includes a ‘dogleg’ to the rear.  The sites frontage to Great Ocean Road is 20 metres and the total site area is 1382 square metres.  The site accommodates a café with two residences and parking behind.  A laneway (located within the 4.57 metre wide carriageway easement) traverses the site directly to its north.  	
Tribunal inspection	The tribunal visited the area after the hearing 	

  Reasons
What is this proceeding about?
1	This review is brought by an objector party to a proposal to essentially construct a balcony to the upper level frontage of the site (overhanging the footpath area), have it enclosed by transparent materials, and to construct other buildings and works at the upper level.  Review against the permission for the variation to the easement is also sought.  
2	The application for permit also seeks permission for the extension of the area in which liquor is to be served and consumed, alteration of access to  road in a transport zone, and a reduction in car parking.  These matters were not raised in grounds of review for the objector party.  
3	On 9 June 2022 Colac Otway Shire Council (Council) issued a Notice of Decision to Grant a Planning Permit for the use and development of the land generally as described above.  The decision was a refutation of the planning officers recommendation for refusal and was based on Council’s view that the design is in keeping with the character with the area and results in appropriate visual bulk and reasonable impacts on amenity of adjoining tenancies.  Council’s planning officer had stated that the use and development was inappropriate for the following reasons:
1.The front section of the proposed first floor extension, which would project over the pavement rather than being recessed from the street, would constitute an incongruous, prominent and bulky form of development out of keeping with the character of the area and detrimental to the streetscape.  As such, the proposal is contrary to Schedule 5 to the Design and Development Overlay (DDO5) and the Decision Guidelines in Clause 65 of the Colac Otway Planning Scheme. 
2.The proposed development would not respect and respond to the character or context of the existing upper levels within this part of Apollo Bay, or promote best practice urban design, and is therefore contrary to clauses 11.03-5R (The Great Ocean Road Region), 11.03-6L (Apollo Bay and Marengo) and 15.01-1S (Urban Design). 
3.The proposed development would not achieve a building design outcome that contributes positively to the local context and enhancement of the public realm and would not respect the identified heritage values of the Great Ocean Road, contrary to clauses 15.01-2S (Building Design) and 15.03-1S (Heritage Conservation).
4	Mr Riches, the permit applicant, agrees with Council’s final decision and asserted that the design has taken into account the constraints of the site and is site responsive.  He submitted that the proposal respects the character of the area.  It was his contention that the Planning Policy Framework (PPF) lends support to the proposed development.  Mr Riches put that the development complies with the objectives of the Colac Otway Planning Scheme (Planning Scheme) and contended that the proposal respects the character of the area.  
5	The Head of Transport for Victoria is a determining referral authority pursuant to Section 55 of the Planning and Environment Act 1987 (Vic).  They have advised that they have no objection to the building over the footpath, subject to the imposition of conditions.
6	This dispute is primarily one about the design response to the context, and as a consequence, what aspects of the context are relevant.  There is no dispute that the site is in an activity centre and that it is suitable for redevelopment.  The issues here are mainly about the scale and degree of prominence of the proposal, the resulting impacts upon the streetscape context, and some details of the design response itself.
7	In summary, the permit applicant sees the context as one of emerging change with higher scale upper level building form facing the street encouraged by policy, with several new developments either already constructed or having gained a permit.  They say that the character of Apollo Bay will be read as a whole, so that upper level balcony style development to the extent of the road is a relevant context for the subject site.  They see the existing situation as quite mixed with streetscape values compromised by existing upper level balconies. 
8	The review applicant sees the context as quite differently.  They say the streetscape context is of a one and two storey scale with limited upper level balconies, and in the few circumstances where balconies are located at the upper level, these are recessive or unenclosed.  While the review applicants agree that the planning scheme supports development in this activity centre, they say this proposal, in its intrusion in to the streetscape and its overreliance on the easement access way, results in a proposal that is too visually prominent, and should be reduced in extent and substantially re-designed.
What are the Key Issues?
9	In order to resolve these different points of view, I find I must address the following key questions: 
a.	Is the proposal consistent with the planning policy framework of the Colac Otway Planning Scheme? 
b.	Does the proposal respond appropriately to the Design and Development Overlay Schedule 5?
c.	Are the variations to the easement reasonable?
The site and Context
10	The review site is located on the west side of Great Ocean Road, Apollo Bay in a mid-block position between with Moore Street (south) and Hardy Street (north).  It is an amalgamated allotment of two parcels and is rectangular in shape with an overall frontage of approximately 20 metres to the Great Ocean Road.  It has an overall site area of 1,382 square metres. 
11	The site is presently developed with a café restaurant built to a single storey scale with verandah over the street.  The easement area (E2 length of around 55 metres and width of 4.57 metres) to the north corresponds with the concrete paved vehicular access along the northern boundary that provides access to the rear car parking area (which currently informally serves the two three bedroom units to the rear) and access to the property to the west at 30 Pascoe Street (review applicants address). 
12	This area to the north also includes a further easement (E1) which is a 0.91 metres drainage easement (also benefitting 30 Pascoe Street).
13	Surrounding sites include the following:
a.	103-109 Great Ocean Road is a single storey building directly to the south of the review site and is developed with the Apollo Bay IGA.
b.	Further south the Apollo Bay Hotel is located at 95-101 Great Ocean Road and is covered by a singular heritage overlay (HO12).
c.	To the north of the review site is 119 Great Ocean Road which is developed with a single storey commercial building. 
d.	Further north at 123 Great Ocean Road, two double storey buildings contain commercial premises at ground level with residential above.
e.	Of note is the Apollo Bay Bakery at 125-127 Great Ocean Road which includes a two storey commercial building with a curved covering of the upper level balcony (not full width, nor fully enclosed).
14	The location of the site in relation to the major streets is illustrated in the aerial image, below:

Figure 1: Nearmap aerial photograph with subject site highlighted
WHAT IS PROPOSED and how does it differ from the previous use and development permit and refusal?
15	Two previous applications, PP165/2012-1 (approved by Victorian Civil and Administrative Tribunal) (VCAT application) and PP76/2021-1 (refused by Council) (Previous Council application) are relevant here in that they both deal with the use and development of the site for a two storey ‘bar’ and address the variation to the easement.
16	The VCAT application allowed the extension of the existing building to create two additional floors (to be used as a tavern and restaurant), the use of the land to sell or consume liquor (General Licence and Restaurant/Cafe Licence), a variation of easements (relating to the height and width, to allow construction over the easements), a reduction in car parking and loading/unloading requirements, a waiver of bicycle requirements, and a seven (7) lot subdivision.
17	The previous Council application sought permission for an extension to the commercial building to create a bar, the use of the land for the sale and consumption of liquor, a reduction of car parking from the specified rate (4 spaces), a variation to carriageway and drainage easements, and a four (4) lot subdivision.  The application was refused on similar round to those included in the officers report to Council for the current application.
18	The current application under review is similar to that considered and refused by Council in the previous Council application, but with changes to the form and presentation of the balcony.  Permission is still sought for the use of the site for the provision of liquor, and upper level extension, reduction in car parking, reduction in bicycle parking and variation to easements.  The upper level extension, including the balcony structure, traverses the frontage of the building for a length of 19.9 metres, extending the bar area by a further 57.3 square metres.  The upper level balcony is also proposed to extend over the northern vehicular access point.  The maximum height of the covered balcony is proposed at 7.4 metres and is located above the footpath.  
19	For reference, the following diagrammatic depiction of the differences of the three applications (as seen from the north) is shown below:
Figure 2: northern elevations of the three applications on the review site
what is the decision making context?
20	The review site is located with the Commercial 1 Zone, within Heritage Overlay (HO312) (no permit required as the previous Heritage Victoria application is applicable), within Parking Overlay Schedule 2 (PA2) and within Design and Development Overlay – Schedule 5.  The site is also adjacent to the Transport Zone Schedule 2 (TRZ2), into which the balcony extends.  
21	A permit is required pursuant to the following clauses of the Colac Otway Planning Scheme:
a.	Clause 34.01-1 Commercial 1 Zone (C1Z) a permit is required for buildings and works;
b.	Clause 43.02-2 Design and Development Overlay Schedule 5 Apollo Bay Town Centre – a permit is required for buildings and works, including alterations to a building;
c.	Clause 52.02 Variation to a carriageway and drainage easements;
d.	Clause 52.06 Reduction in Parking – waiver of five car parking spaces;
e.	Clause 52.27 Licenced Premises – a permit is required if a licence is required under the Liquor Control Reform Act 1998 (Vic); and 
f.	Clause 52.29 Land Adjacent to the Principal Road Network.
Commercial 1 Zone
22	Within the Commercial 1 Zone permission is required to construct buildings and works (Clause 34.02-4).  
23	The zone (relevantly) requires consideration of the following in addition to Clause 65:
a	The Municipal Planning Strategy and the Planning Policy Framework. 
b	The interface with adjoining zones, especially the relationship with residential areas.
c	The effect of traffic to be generated on roads.
d	The movement of pedestrians and cyclists, and vehicles providing for supplies, waste removal, emergency services and public transport.
e	The provision of car parking.
f	The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian areas, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land adjoining a road.
g	Defining the responsibility for the maintenance of buildings, landscaping and paved areas.
h	Consideration of the overlooking and overshadowing as a result of building or works affecting adjoining land in a General Residential Zone, Neighbourhood Residential Zone, Residential Growth Zone or Township Zone.
i	The design of buildings to provide for solar access.
24	The purposes of the zone, in addition to implementing the Municipal Planning Strategy and the Planning Policy Framework, seeks ‘to create vibrant mixed use commercial centres for retail, office, business, entertainment and community uses’.
25	Further consideration should also be had with regard to Clause 53.06 – Live Music Entertainment Venue and Clause 53.18 – Stormwater Management in Urban Development.
26	A review of the Planning Policy Framework indicates the following are policies relevant to the consideration of the use and development sought here.
27	Clause 02.01 Context, includes the following relevant description of the municipality:
Colac Otway Shire is located in the south-west of Victoria, approximately 2 hours’ drive from Melbourne. The Shire has an area of about 3,500 square kilometres and a 2016 census population of 20,972. There are approximately 22 towns and settlements located throughout the Shire. 
The Shire includes some of the most scenic and environmentally sensitive land in Victoria including the Great Otway National Park and 90 kilometres of coastline served by the Great Ocean Road. 
…
The Shire is well placed to capture a large proportion of Victoria’s key tourism growth market as it provides a variety of different forms of accommodation as well as desirable tourist attractions. 
28	The vision for the municipality, as it relates directly to the planning permission sought includes the following commitment from the Council at Clause 02.02:
•	Plan for growth in business and employment in towns and settlements. 
•	Promote healthy, safe environments which enhance community life and well-being. 
29	Drilling further down, as the planning scheme relates to the township of Apollo Bay itself, the following is relevant at Clause 02.03-1 Settlement: 
Apollo Bay (including Marengo) is a large coastal town with a 2016 population of about 1,366 people and is located 75 kilometres south of Colac along the Great Ocean Road. The town provides a range of entertainment and recreational related facilities including swimming, fishing, golf, cafes and restaurants and is experiencing increased development pressure for both permanent and short-term accommodation.
30	Development within Apollo Bay will be facilitated by Council through:
•	Encouraging economic development opportunities and ecological sustainability.
•	Encouraging a diversity of housing that supports long and short-term accommodation.
•	Retaining the natural beauty and distinct coastal character of the town, including its seaside fishing and working harbour history. 
31	At Clause 02.03-6 Economic Development employment opportunities that are diverse are sought to be provided ‘through a range of primary industries, tourism and commercial and community services’.  Specifically, tourism opportunities includes the following attributes for employment within the municipality:
The local tourist industry has an increasing emphasis on eco-tourism, cultural tourism and experiential tourism. These sectors and the Shire’s proximity to Geelong and Melbourne have consequential demands for accommodation and facilities for people interested in short-stay visits. 
The range of attractions in the Shire and surrounding region also provide opportunities to attract longer stay and low season tourists: a market segment that contributes more to the economy.
32	Apollo Bay is specified within the Strategic Framework Plan at Clause 02.04 as being a Major Coastal Centre and is located on the Great Ocean Road.  This specification builds on the Settlement Policy at a state and regional level in Clauses 11.01-1S, 11.01-1L, 11.03-4S, 11.03-5S, and 11.03-5R which highlights the importance of sustainable, managed growth that recognises the distinctive character of the area.  As it relates to the Great Ocean Road, policy seeks to ensure that the character and environmental values of towns is respected.
33	At Clause 11.03-6L, the Apollo Bay Structure Plan (Structure Plan) is applied to enhance Apollo Bay as a district coastal settlement with its own local character.  Key objectives of the Structure Plan (as relevant to this proposal) include:
a.	Require new development and streetscape works in the Apollo Bay town centre to build on and reinforce the fishing village coastal character of the township and contribute to the creation of a vibrant public realm. 
b.	Intensify commercial and business land uses within the commercial areas of Apollo Bay and ensure a future supply of Business Zoned land to meet demand. 
c.	Support the growth of tourism as a major employer for the region. 
d.	Create a highly walkable town centre in Apollo Bay with safe and convenient access to the shops, community facilities and recreational facility. 

Figure 3: Apollo Bay Structure Plan
34	Strategies to achieve this, (relevant to this application) include:
Utilise natural boundaries to define settlement edges. 
Maintain a defined edge to the urban area of the settlements, particularly when viewed from the Great Ocean Road.
Support development of Apollo Bay as a residential community and tourist centre. 
Preserve the seaside village character of Apollo Bay. 
Develop the Harbour Precinct with a tourism, fishing, boating, commercial and recreational focus that strengthens its links to the town centre. 
Conserve and enhance heritage places as a significant factor in developing tourism. 
Concentrate commercial and business land uses within the commercial area of Apollo Bay. 
Reinforce the sense of arrival and departure at the town entrances. 
Improve the appearance and amenity of the foreshore reserve in Apollo Bay. 
Support a walkable town centre. 
Consolidate and formalise car parking areas to the rear of the main shops in the town centre. 
Encourage the provision of new mid-block pedestrian linkages in the town centre between the Great Ocean Road and Pascoe Street to improve the utilisation of parking to the rear of shops.
35	As it relates to commercial land development and use, Clause 13.07-1S, Land Use Compatibility, seeks to ensure that new use and development is compatible with adjoining and nearby land uses and seeks to minimise adverse off-site impacts.  
36	Reinforcing the sense of facilitation of use and development that is sustainable, in character with the streetscape and limits off site impacts, is the policy at Clause 15.01-1S, Urban Design which seeks to ‘create urban environments that are safe, healthy, functional and enjoyable and that contribute to a sense of place and cultural identity’.  Strategies to achieve this, include (relevant to this proposal) the following:
Require development to respond to its context in terms of character, cultural identity, natural features, surrounding landscape and climate.
Ensure development contributes to community and cultural life by improving the quality of living and working environments, facilitating accessibility and providing for inclusiveness.
Ensure the interface between the private and public realm protects and enhances personal safety.
Ensure development supports public realm amenity and safe access to walking and cycling environments and public transport.
Ensure that the design and location of publicly accessible private spaces, including car parking areas, forecourts and walkways, is of a high standard, creates a safe environment for users and enables easy and efficient use.
Ensure that development, including signs, minimises detrimental impacts on amenity, on the natural and built environment and on the safety and efficiency of roads.
Promote good urban design along and abutting transport corridors.
37	In concert with the Urban Design policy at Clause 15.01-1S, Building Design policy at Clause 15.01-2S also has an objective to ‘achieve building design and siting outcomes that contribute positively to the local context, enhance the public realm and support environmentally sustainable development’.  It seeks to achieve this objective through the following strategies (as relevant):
Ensure a comprehensive site analysis forms the starting point of the design process and provides the basis for the consideration of height, scale, massing and energy performance of new development.
Ensure development responds and contributes to the strategic and cultural context of its location.
Minimise the detrimental impact of development on neighbouring properties, the public realm and the natural environment.
…
Ensure the form, scale, and appearance of development enhances the function and amenity of the public realm.
Ensure buildings and their interface with the public realm support personal safety, perceptions of safety and property security.
Ensure development is designed to protect and enhance valued landmarks, views and vistas.
Ensure development considers and responds to transport movement networks and provides safe access and egress for pedestrians, cyclists and vehicles.
38	Whilst the site is located within a heritage area, as stated earlier, assessment of the development against the heritage considerations is conducted by Heritage Victoria, thus rendering Clause 15.03-1S, Heritage Conservation not pertinent to my assessment.
39	I have had further regard to the polices at Clauses 17.01-1S and 17.02-1S, which seek to provide for diversified economies that meet the needs of the community.  
Is the proposal consistent with the planning policy framework (PPF) of the Colac Otway Planning Scheme? 
40	I have reviewed the proposed development against the PPF of the Colac Otway Planning Scheme and find that the development is not responsive to the neighbourhood character of the Great Ocean Road and urban design objectives relevant to Apollo Bay, contrary to objectives of the Planning Policy Framework at: 
a.	Clause 11.03-5R (The Great Ocean Road Region);
b.	Clause 11.03-6L (Apollo Bay and Marengo);
c.	Clause 15.01-1S (Urban Design); 
d.	Clause 15.01-2S (Building Design); and
e.	Clause 15.03-1S (Heritage Conservation).
41	I say this for the following reasons:
a.	I have reviewed the photos provided, and visited the site and surrounds.  I note the inclusion of few upper level balconies, especially few that are covered, and of those that are covered, this appears to be for weather protection.  I find the character of the western side of the Great Ocean Road is that of ground level interfaces that dominate, with upper levels more transparent, consistent and recessive in nature.  I note the balcony at the bakery is partially enclosed at its top, but does not extend either the length or the depth of the upper level frontage.  The balcony to the bakery also has readily apparent openable sides.  I find the character of the area is strong in that the low scale of the built form recedes in comparison to the beauty of the ocean and the mountains.  I have not been satisfied that the enclosed upper level balcony, extending over the footpath, for the length of the site frontage, is recessive in nature in line with the prevailing built form character of Apollo Bay.    
b.	I have not been persuaded by the submission from Mr Riches that the balconies shown by Mr McKendrick are selective in their nature.  I say this on the basis of my review of the total suite of photos provided, and also on the basis of my impressions during my site visit.  Whilst I agree with Mr Riches that these existing balconies are not redolent of great seaside design, I do not think these existing upper level balconies, due to their limited extent in number and in their presence in the street, influence the character of the area to the extent that would persuade me to allow the balcony as proposed.
c.	I understand the submission from Mr Riches that Apollo Bay is ‘not renowned for architecture or heritage’ and in some ways I agree.  There are no great promenades, no great level of consistent era of built form, and no historical form that is of such consequence that warrant refusal of the proposal.  But, as I have stated above, the character of the town is low scale and modest in its appearance, especially at the upper level.  That there is no heritage or other cultural imperative that militates for refusal of the proposed works does not equate to there being no character imperatives against the approval of the proposal.  
d.	I agree with Mr Riches that much of the character of Apollo Bay  comes from its location within a place of exceptional nature.  But, as I have stated above, that does not persuade me that this proposal is reasonable, as I find that the beauty of the nature of both the ocean and the mountains is reinforced by the low scale of built form on this side of the street, with which the proposal is incongruous due to its extent in length and depth, and also due to its enclosed nature.  
e.	As I have noted above, I find that the appreciation of bulk is not only influenced by the height of the proposed development, but also by the extent of form along the length of the frontage, by the enclosed nature of the development, and by the intrusion into the public realm.
f.	Whilst it was suggested to me that I ought consider this development in its own right and not compare it to the existing form surrounding the site, nor compare it to the Great Ocean Road streetscape at large, I find this response is too simplistic, and does not give rise to a proper assessment of the context into which the development is sought to be placed.  The assessment of a development within its context is a fundamental tenet of good design and planning in respecting neighbourhood character.  The development as proposed, offends against such assessment in that it is not sufficiently low scale.
g.	Whilst I understand Mr Riches submission that without the covering of the balcony, the upper level would not be viable, this is not determinative of my assessment of the proposals respect of the existing character of Apollo Bay.  I recognise that the proposed use of the upper level will assist in creating a more vibrant Apollo Bay, both through increased employment and provision of an entertainment venue.  There is a balance that needs to be struck here, in the provision of a commercial entity that serves the needs of the town, provides for employment and entertainment, balanced against the need to ensure that built form is reasonable.  I find that whilst the streetscape is varied, with mixed form, I have not been persuaded that the development allows for sufficiently low scale form that is in keeping with the prevailing built form character of the area.  Despite the inability of the development to proceed without a covering of the balcony, I cannot be persuaded that the balance struck here between the opportunities and the constraints is reasonable.  Whilst I agree that the assessment of character should not inhibit progression at all costs, as I have stated, an appropriate balance needs to be struck.  Here, in any new application, that might take the form of an open, unroofed balcony, with associated noise attenuation.  I agree that a use such as this, subject to the limitation of any adverse impacts of noise, might well be a reasonable outcome.  Currently, the employment opportunities, the provision of entertainment, and the contributions to the vibrancy of Apollo Bay do not bring the application close enough to that balance point that needs to reached in order to tip the favour to that of reasonableness, due to the excessive extent of upper level built form.
42	In these ways, I find that the proposed works would form an incongruous, prominent and bulky form of development that is not in keeping with the character of the area is detrimental to the streetscape, and that this is not in keeping with the objectives and strategies of the PPF. 
Does the proposal respond appropriately to the Design and Development Overlay Schedule 5. 
43	The review site is located within the Design and Development Overlay Schedule 5 Apollo Bay – Town Centre.  The DDO5 has the following design objectives:
To protect the existing low scale coastal character and identity of Apollo Bay.
To improve pedestrian safety and movements within and around the town centre.
To ensure that new development in Apollo Bay is consistent with and acts to consolidate the character of Apollo Bay as a coastal town.
To ensure that upper levels are well articulated to respect the character of the area.
44	I have reviewed the design objectives and the decision guidelines of the DD05 and find that the proposed development does not appropriately respond to the prevailing character of the area, as sought to be enshrined within the DDO5.  I say this for the following reasons:
a.	As noted above, I find that the existing low scale character and identity of Apollo Bay is not appropriately reflected in the extent of the balcony form across the site, and in its extent of overhang into the public realm.  In this way, as iterated previously, I have not been satisfied that the development is consistent with and acts to consolidate the character of Apollo Bay as a coastal town.
b.	I find that the development lacks articulation, both in its own right, and within the context of the streetscape and in so doing, lacks respect for the character of the area.
c.	Whilst simple materials are included and are traditional and  reflective of those found in the streetscape, the detailing lacks articulation, and with its imposition into the public realm exacerbates the effect of the dominance of the upper level.  In this way I have not been satisfied that the setbacks to upper level does not ameliorate building, and the roof line to the balcony lacks articulation such that might otherwise provide visual interest to the street.
45	For these reasons, I find that the design objectives of the DDO5 have not been sufficiently addressed in this development.  
Are the variations to the easement reasonable?
46	I have determined to refuse the development on the basis of the impacts in the streetscape on the character of Apollo Bay.  As such, my assessment of the nature of the variation to the easement is preliminary in its nature.  
47	There is a live question as to whether or not the limiting of the extent of the carriageway easement is reasonable in its impact interests of the benefitting party contrary to requirements of Clause 52.05 (Easements, Restrictions and Reserves).  
48	Any new development, if any is sought, that seeks to vary the easement requirements, should take into account the following (inter alia):
a.	The DDO5 currently serves to provide for connectivity both in the existing context (laneway) and includes aspirational access points from the Great Ocean Road through to Pascoe Street.
b.	Consider whether or not the turning area is a relevant constraint to the contraction of the existing rights of access.  
c.	Consider the appropriateness of the limitation in the width and height of the accessway, particularly given the use of the site to the rear and the likelihood of truck access being required.   
d.	Whether or not the contraction the easement to 3.5 metres is required.
other matters
49	As the agent of change, any new application should also take into account the impacts of live music, hours of operation of any balcony element, service of alcohol beyond the current ‘red line area’ and car parking.
Conclusion
50	For the reasons outlined above, the decision of the Council is set aside.  No permit will issue.

Alison Slattery
Member