ICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P505/2023
Permit Application no.P22/2349 	

Applicant	Timothy O’Neill	

Responsible Authority	Mornington Peninsula Shire Council	
Respondent	Bayside Architects	

SUBJECT LAND	33 Daveys Bay Road
MOUNT ELIZA VIC 3930	

HEARING TYPE	Hearing	

DATE OF HEARING	1 December 2023	

DATE OF ORDER	17 January 2024	

CITATION	O’Neill v Mornington Peninsula SC [2024] VCAT 42   	

Order
1	In application P505/2023 the decision of the responsible authority is affirmed.
2	In planning permit application P22/2349 a permit is granted and directed to be issued for the land at 33 Daveys Bay Road Mount Eliza VIC 3930  in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Development of double storey dwelling, vegetation removal and associated works;

Jane Tait
Member			

Appearances
For Timothy O’Neill	Luke Dowdle, town planner, Nepean Planning Consultants Pty Ltd 	
For Mornington Peninsula Shire Council	Benjamin Mathews, Senior Planner	
For Bayside Architects	Peter English, town planner, Peter English and Associates Pty Ltd	
Information
Description of proposal	To construct a two storey dwelling and vegetation removal.  	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit.	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1 (GRZ1)
Design and Development Overlay Schedule 4 (DDO4)
Vegetation Protection Overlay Schedule 1 (VPO1)	
Permit requirements	Clause 42.02-2 – To remove, destroy or lop any vegetation in a VPO1
Clause 43.02-2 – To construct a building or construct or carry out works in a DDO4	
Land description	The subject site is on the west side of Daveys Bay Road, Mt Eliza approximately 30 metres south of Port Phillip Bay.  It is irregular in shape and has frontage of 42.25 metres, depth of 72.42 metres and site area of 4034 square metres.  The site is occupied by a single storey dwelling, outbuilding, and swimming pool.  
The site slopes upwards from north to south by approximately 1.9 metres.  
Abutting and nearby land is occupied by substantial dwellings with generous setbacks to boundaries.  Pedestrian access to the foreshore reserve runs along the north boundary. 	
Tribunal inspection	An unaccompanied site inspection of the applicant’s dwelling, subject site and wider area was conducted after the hearing.   	

  Reasons
What is this proceeding about?
1	Bayside Architects (the ‘respondent’) applied to Mornington Peninsula Shire Council (the ‘Council’) to construct a two storey dwelling and vegetation removal at 33 Daveys Bay Road, Mount Eliza.
2	The plans show the demolition of the existing single storey dwelling and construction of the replacement two storey dwelling that is set back 19.05 metres from the frontage and 22.48 metres from the south boundary.  The ground floor includes three bedrooms, laundry, kitchenette and two living areas.  The first floor contains the principal living areas, bedroom, and en-suite.  This level has north facing balcony.  
3	The dwelling includes a three car garage with green roof, separate guest house/outbuilding that abuts the west boundary and a swimming pool with retaining walls for the decking.  The dwelling has maximum height of 9.83 metres and is a contemporary design with skillion roofing.  Figures 1-2 show the site plan and elevations.
Figure 1 – Site Plan 

Figure 2 - North and South Elevations

4	Council has issued a Notice of Decision to Grant a Permit subject to 18 conditions which includes amended plans to provide screen planting along the south boundary adjacent to the secluded private open space of 31 Daveys Bay Road. 
5	Timothy O’Neill (the ‘applicant’) owns and occupies the property to the south at 31 Daveys Bay Road.  He argues the proposed dwelling will unreasonably impact views of Port Phillip Bay (the ‘Bay’) and thus fails to respond to the Design Objectives of the Design and Development Overlay Schedule 4 (‘DDO4’).  He submits the dwelling will result in an obtrusive outcome when viewed from the street and adjoining properties and the development will detrimentally affect the amenity of his dwelling due to its size, scale and overlooking.  
6	Council argues the proposed development and vegetation removal is appropriate in the context of the area and the planning framework and is a good planning outcome.  It says the dwelling is designed to sit within the topography, maximise views of the Bay, and protect valued views and vistas, where reasonable and practical.
7	The respondent submits the proposed development provides an acceptable outcome and a reasonable sharing of views.  
physical context
8	The subject site is at the northern termination of Daveys Bay Road, adjacent to the foreshore reserve.  It is occupied by a single storey dwelling, garage and shed.  
Figure 3 – Aerial Photograph

Applicant’s Property

Subject Site 

9	This residential area contains predominately large two storey dwellings in a spacious garden setting on lots of between 1000-4000 square metres.  The dwellings are well set back from the street and generally screened by high fencing and vegetation.
10	Dwellings abutting the foreshore are predominately two storey and have been designed to capitalise on views of the Bay.  Abutting to the west are two detached houses at 4 and 5 Tintagel Court.  I agree with the context description of this area as described in French v Mornington Peninsula SC [2021] VCAT 410 which was for a site approximately 250 metres from the subject site.  The Tribunal stated:
On closer inspection, there is clearly a ‘front row’ where houses on the cliff top or near the water’s edge have panoramic views of the Bay. Behind this, the houses have a range of views. Some are secluded while others are prominent. Both situations are due to the topography, which consists of clifftops, steep land and flat areas.
11	The applicant’s property is directly south of the subject site and contains a two storey dwelling, swimming pool and a tennis court in the frontage.  The dwelling is orientated to face east, towards the street.  The ground floor contains the living areas, and the first floor contains bedrooms.  There are no upper level balconies that face the Bay.
Policy context 
12	The subject site is a General Residential Zone Schedule 1 (‘GRZ1’).  This zone does not contain any neighbourhood character objectives, application requirements, decision guidelines, height variations or ResCode variations.  No permit is required to construct the dwelling in the GRZ1 and the proposal provides 62.2% Garden Area and thus satisfies Clause 32.08-4.  
13	The site is also within a Vegetation Protection Overlay Schedule 1 (‘VPO1’).  A permit is required to remove, destroy, or lop any vegetation.  The application proposes the removal of approximately 24 trees and retention of four trees of moderate significance on the site. 
14	The general purpose of this overlay is to protect areas of significant vegetation, preserve existing trees and other vegetation and encourage regeneration of native vegetation in township areas.  Council’s arborist has no objection to the tree removal, and this aspect of the application was not contested by the applicant.
15	The site is within a DDO4 – Environmental Design.  Relevant design objectives are:
•	To recognise areas, including Mt Eliza, where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space. 
•	To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical. 
•	To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties. 
16	A permit is triggered in this overlay for:
•	The wall height which exceeds 5.5 metres, and an overall building height which exceeds 6 metres. 
•	The external finishes which exceed a low reflectivity value of 40 percent. In this case the level of reflectivity of materials is 42 percent. 
•	The retaining wall for the deck of the swimming pool is within 10 metres of a Public Park and Recreation Zone (‘PPRZ’).
17	Policies relevant to this application include:
•	Clause 02.03- 1 (Settlement) – The subject site is north of Mount Eliza Large Township Activity Centre;
•	Clause 02.04 (Strategic Framework Plan) – The site is within a residential area;
•	Clause 02.03-2 (Environmental and Landscape Values) – The clause seeks to protect coastal and foreshore areas as a major tourism and recreation resource from overuse and loss of natural and cultural values;
•	Clause 02.03-5 (Built Environment and Heritage) – This clause has a strategic direction to ensure the location, design and construction of buildings and works are compatible with the built form and landscape character of the surrounding area;
•	Clause 11.03-5S (Distinctive areas and landscapes) – This clause refers to the Mornington Peninsula Localised Planning Statement (Victorian Government 2014).  It contains strategies to maintain the character and role of settlements, towns and villages in the municipality;
•	Clause 15.01-2S (Building Design) – The clause seeks to achieve design outcomes that contribute positively to the local context and enhance the public realm;
•	Clause 15.01-5S (Neighbourhood Character) – The clause has an objective to support and protect neighbourhood character;  
18	Council advised that Amendment C219 proposes to implement Council’s Housing and Settlement Strategy: Refresh 2020-2036 and applies to all land in the GRZ1.  The subject site is in a proposed Neighbourhood Residential Zone Schedule 15 (NRZ15) which would not trigger a permit for a single dwelling.  However, the zone would include neighbourhood character objectives that provides for the reasonable sharing of views to the coastline and to reflect the preferred one to two storey dwellings.  The site is also proposed to be in a Design and Development Overlay Schedule 33 (DDO33) which contains no changes that would impact this application.  
19	Council acknowledges a panel report has been handed down but it is yet to decide whether to adopt or abandon the amendment.  
20	I accept Council’s position that the amendment is not seriously entertained and should not carry any significant weight at this stage.  
What are the key issues?
21	Taking into consideration the submissions regarding the applicable policies and provisions of the Mornington Peninsula Planning Scheme, the key issues include:
•	Does the proposal respond to its zoning and policy context?
•	Is there a reasonable sharing of views?
•	Does the proposal respond to the decision guidelines of the DDO4?
•	Will the development have unreasonable amenity impacts?
22	Planning does not seek ideal outcomes, or outcomes which respond positively to every relevant policy.  Rather, acceptable outcomes are the measure by which planning decisions are to be made. I  must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Scheme.  Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. 
23	I have decided to affirm Council’s decision to approve development of a dwelling and associated vegetation removal on this site.  Based on my site inspection, I consider views to the Bay from the applicant’s study window have been fortuitous over the single storey dwelling on the subject site.  I find it is unreasonable to expect a low profile dwelling will remain in the long term, particularly given its position adjacent to the foreshore and the surrounding context which contains larger double storey dwellings.  Whilst I appreciate views of the Bay from the study are valued by the applicant, it is not a main living area of the dwelling and the remainder of living areas are at ground floor level and have not been designed to take advantage of Bay views.  My reasons follow.
Procedural issues & rulings 
24	At the commencement of the hearing the applicant queried why Council had not assessed the impact of the height of the retaining wall for the swimming pool deck as it is set back approximately 6 metres from the PPRZ.  In accordance with the DDO4 a permit is required for all buildings and works within 10 metres of the PPRZ.
25	Council acknowledged the retaining wall fell within the General requirements of the DDO4 that required variation.  During the proceeding, all parties addressed me on this issue in their submissions.  
Does the proposal respond to its zoning and policy context?
26	I am satisfied the dwelling and associated vegetation removal is in accordance with the strategic directions of the Planning Scheme.  The proposal includes the development of one dwelling in an established residential area that will not result in any significant environmental impacts. 
27	I find the design, height and setbacks of the dwelling is consistent with the existing dwellings in this area.  I consider the proposed development achieves an appropriate balance between natural features and built form.  My reasons follow.
Is there a reasonable sharing of views?
28	The main issue in this matter is view sharing.  The relevant design objective of the DDO4 is:
To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical.
29	The Decision Guidelines of the DDO4 also state that consideration must be given to whether any loss of amenity will result from a variation to the requirements of this schedule.
30	I was taken to several Tribunal decisions that have set out principles that should be considered when assessing view sharing.  These include Healy v Surf Coast SC [2005] VCAT 990 which states:
(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.
31	Wright v Greater Geelong CC [2013] VCAT 2092 further refined these principles to add in consideration of the ‘legitimate expectations of those whose view is being affected’.  I am also mindful of the findings in Morphy v Surf Coast SC (‘Morphy’) where the Tribunal addressed the front row position and stated:
If a property is removed from the coast (i.e. second row), there is a lesser expectation of sharing of views as it is a view that is gained fortuitously over another property; 
A reasonable sharing of views does not mean an equal sharing of views will result or existing views will be maintained. 
32	The respondent directed me to a recent decision of Jervis v Mornington Peninsula SC [2023] VCAT 131 (‘Jervis’) where the Tribunal referred to the findings in Van Hoof v Mornington Peninsula SC & Anor [2009] VCAT 2065 which states:
Views are fundamental [sic.] part of the amenity of dwellings in this area …. It is significant when applying established principles about the weight to be afforded to existing views, that shared viewlines are sought to be protected by the design objectives in DDO4 “where reasonable and practical” and buildings are sought to “avoid being visually obtrusive” when viewed from surrounding properties “particularly in terms of creating a silhouette above a skyline or existing tree canopy line”. Understanding and assessing the existing view, and the visible presence of the existing building on the review site, are critical to an assessment. But the DDO4 objectives do not assume or require retention of the status quo. Moreover, no other policy or provision in the Scheme or other relevant legislation confers a right to the whole of the view over other properties in perpetuity or can give an expectation that there must be no change. Regulation provided by the planning system is about managing change in a fair and balanced way mindful of sometimes competing planning objectives and disparate opinions. Tensions often run high where premiums are paid for views that are valued and prized and it is felt the impact of new development would be unreasonable.
33	I will address these principles in my findings below.
Parties’ view sharing arguments 
34	The applicant argues there will not be a reasonable sharing of views and the proposal will have a material impact on Bay and coastal views currently enjoyed from his dwelling.  He submits the proposal will result in the complete loss of the city views and loss of most of the water view from his study.  He says that upon entering the room, it is evident the design has considered the capturing of the Bay view.  
35	He submits the dwelling, reaching a maximum height of 9.93 metres, is 3.83 metres above the General Requirement in the DDO4.  He says that given the extent of variation, the proposal has not demonstrated there will no significant loss of amenity to his dwelling.  
36	Whilst the applicant accepts there is no legal right to a view, he says it forms part of his amenity given the site is so close to the foreshore.  He refutes the proposition that views to the north/north-west and north/north-east are maintained given the viewing cone is significantly diminished by existing tall vegetation.  He says whilst it would be unreasonable to expect the entirety of his available view to be protected in perpetuity, the proposal has not given enough consideration to the objective to protect shared views where reasonable and practical.  He says that a lower building height would maintain his panoramic views over the top of the new dwelling.
37	The applicant states that whilst the room is used as a study, it is a functional important room that should not be dismissed on the basis that it is not a primary habitable space of the dwelling.  He states:
In regard to the matter in front of the Tribunal today we advise that views of the Bay are only available from the north facing habitable room. Views are not available elsewhere from within 31 Daveys Bay Road, therefore the impact of the proposal would be to obliterate any Bay view almost-entirely from our clients dwelling. 
38	Council submits the design response for the proposed dwelling is considered reasonable in maintaining shared views, particularly for the applicant’s property to the south.  It says the development meets the design objectives of the DDO4 of sharing of view lines, where practical and reasonable.  
39	Council argues the proposal only impacts views to the north from one study window at first floor level.  It submits the study is not considered to be a main, common living area and the applicant has not taken all appropriate steps to optimise development of his dwelling to maximise views of the Bay over the subject site.  
40	It says the applicant’s dwelling is not orientated to face north and there are no balconies or primary living areas at first floor level which could gain access to Bay views.  It submits there are still some views available from the study which are not impacted from the proposal, including to the east, when considering the entire panorama. 
41	The respondent argues in context of the views relevant in this case, the proposed development provides for a reasonable sharing of views as:
•	The only view impacted is from a secondary living area;
•	The remainder of the dwelling has not been designed to maximise views;
•	The applicant’s dwelling has fortuitously benefited from the uncharacteristically low dwelling on the subject site which is approximately 3.5 metres high;
•	No views from primary living areas, or areas specifically designed to capture views, have been impacted;
•	Limited views from the applicant’s dwelling would not appear to contribute significantly to the amenity of his dwelling; and 
•	Oblique views to the north-east will be maintained.
Tribunal findings
42	The north elevation study window and existing views from that room are shown in Figures 4 and 5:
Figure 4 – North elevation study window		Figure 5 – View within applicant’s study
			
43	I agree with Council that views towards the Bay and surrounds contribute to amenity enjoyed by residents of dwellings in this area.  Based on my site inspection of the applicant’s study, I agree that views towards the Bay will be impacted by the proposed dwelling.  
44	I acknowledge the overall height is approximately 3.83 metres above the 6 metre threshold specified in the DDO4.  Therefore, consideration must be given to the design objectives of the overlay that includes whether the shared viewlines should be protected, where reasonable and practical.
45	I find the loss of views from the study window will not result in a substantial loss of amenity of this dwelling.  I have come to this conclusion as the applicant’s study currently directly benefits from views over a single storey dwelling on the subject site.  I am satisfied the new dwelling is designed to respond to the topography of the land as the south elevation which faces the applicant’s dwelling has lower wall and overall heights.  This height is consistent with other substantial dwellings in this area.
46	I consider views from the study are fortuitous and could not be reasonably expected to be retained given the size and scale of existing ‘front row’ dwellings that hug the coastline nearby.  This was clearly illustrated in the range of drone photographs tabled by the respondent that shows the height and scale of dwellings that abut the PPRZ in this section of Mount Eliza.
47	Whilst I appreciate the applicant highly values the amenity of his study that includes an outlook to the Bay, I find this is a secondary living area of the dwelling and therefore should not expect views these views will be retained.  I consider the study falls within the definition of a second order viewing point that was described in Robbins v Mornington Peninsula SC [2015] VCAT 1988 that states:
•	Primary viewing points are those from which valued views are likely to be the main reason for being at the view point. Such sites include seating located to capitalise on observing views considered to be valued. 
•	Second order viewing points are those from where valued views may be experienced, but from where viewing is not likely to be the primary reason for being at the site. Such sites include kitchens and eating areas, or bedroom resting locations where the primary focus is likely to be activities-based (or sleep/resting-based in the case of the latter) rather than viewing-based.
48	The parties drew my attention to the findings in Jervis where the Tribunal determined that a study was not considered to be a main living area.  Whilst I agree with the applicant that the window in question in that application was not oriented to specifically obtain a view, I consider the Tribunal findings have some relevance regarding the reasonableness of maintaining views from a secondary living space.
49	I agree with the respondent that the applicant has not taken all appropriate steps to optimise development of his own dwelling to maximise views of the Bay.  My site inspection revealed his dwelling is oriented to the east and contains extensive living areas at ground floor level that have an outlook to the swimming pool and tennis court in the eastern (frontage) setback or the garden in the western setback.  These are the primary viewing points of the dwelling which have no outlook to the Bay.  
50	At the upper level there are a two floor-to-ceiling north elevation windows, one of which is to the study and the second is to an en-suite.  Whilst the full length glazing creates a feeling of spaciousness in the room, it does not negate the fact there are no primary living areas or balconies in the north elevation that are designed to capture views of the Bay.  The remaining first floor windows in the east elevation hallway have oblique views of the bay.  However, the first floor west elevation master bedroom window has been designed to capture views of the Bay.  This room will not be impacted by the proposed development.  
51	I accept that the viewing cone from the study window to the north-east and north-west is currently impaired by existing vegetation on the subject site and adjoining properties.  However, given this area is characterised by a dominance of vegetation cover, this outlook will be maintained as existing trees and new indigenous vegetation is proposed in the landscape plan.   
Does the proposal respond to the design objectives of the DDO4?
52	The following findings will concentrate on where the proposal seeks a variation of the General requirements of the DDO4; 
Building Scale/Form/Height
53	DDO4 has a general requirement that no building may exceed a wall height of 5.5 metres or a building height of 6 metres.  The dwelling proposes a wall height of 8.18 metres and overall height of 9.83 metres and therefore a variation is required.
54	The Design Objectives of the DDO4 state:
•	To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties. 
•	To ensure that subdivision proposals will enable new buildings to be integrated with their site and the surrounding area in terms of the relationship to existing buildings, open space areas and the coastal landscape.
55	The applicant argues the development will result in an obtrusive outcome when viewed from the street and adjoining properties and the overall size, scale and siting of the dwelling is excessive.  He says the building height above 6 metres results in amenity impacts on his dwelling that includes the loss of views.
56	Council submits that variation in the wall and building height is reasonable in this context as the dwelling is centrally sited and well set back from the frontage.  It says these setbacks allow sufficient space for landscaping to reduce the visual bulk from the public realm.
57	The respondent argues the dwelling will retain the character of the immediate area as it is set back a minimum of 17.2 metres from the frontage and most of the existing vegetation along the frontage is retained.  
Tribunal findings
58	I find the new dwelling is sited to respond to the existing spacious context of the area as it is set back over 17 metres from the frontage, 22 metres from the south boundary and 11 metres from the west boundary.  These setbacks will ensure the new dwelling is a recessive element when viewed from the streetscape.  The landscape plan shows the new dwelling will be surrounded by trees and understorey landscaping which will retain the dominant visual presence of the area.    
59	I find the wall and overall heights are acceptable as they are consistent with the height and scale of existing substantial dwellings nearby.  These heights are not excessive and will not protrude above the canopy of the existing trees to be retained on the site.
Foreshore impacts
60	The proposed deck for the swimming pool is raised more than 800mm above natural ground level (i.e 1.775 metres).  Therefore, a variation of the General Requirements of the DDO4 is required as the deck is set back less than 10 metres of the foreshore boundary of the PPRZ (i.e. 6.12 -8.15 metres).  
61	The applicant argues the subject site is immediately adjacent to the foreshore and the dwelling will be visible from the reserve.  He says he spends considerable time appreciating the foreshore via the cliff top path.  He submits that whilst the deck will not create a significant bulk when viewed from the foreshore path, it contributes to the extent of built form that will be visible in the public realm as it is raised almost 3 metres above the path level.  
62	As previously noted, Council acknowledges this variation to the general requirement was not included in its original submission.  However, it states it is satisfied the decking, within the 10 metre setback, will not be visually obtrusive from the reserve.  It also submits the landscaping proposed along the northern boundary will enhance the landscape character along the foreshore and further reduce visual prominence of the built form.
63	The respondent agrees with Council and submits that it is only the top 975mm of the pool deck that requires variation of the general requirement.  It says the deck will not be an overwhelming and dominant element when viewed from the reserve as it is back from the path that runs along the common boundary. It considers the path is not a primary viewing area from the reserve and the setback of the deck is consistent with the existing dwellings that are also constructed close to the reserve.
Tribunal findings
64	The Decision Guidelines of the DDO4 require consideration of:
The effect of any proposed subdivision or development on the environmental and landscape values of site and of the local area, including the effect on streamlines, foreshores, areas of remnant vegetation, areas prone to erosion and the amenity and accessibility of open space. 
65	Based on my site inspection, I agree with the applicant that there will be some visibility of the pool deck from the path adjacent to the north boundary from within in the PPRZ.  However, I am satisfied the top 975mm of the pool deck, which requires variation, is acceptable as it will be partially screened by existing vegetation in the reserve and the proposed landscaping in the northern setback of the subject site.  I consider this feature of the dwelling will not detrimentally impact the environmental and landscape values of the foreshore reserve and is consistent with the setbacks of nearby dwellings that are also constructed close to the cliff top path.  
Materials 
66	The General requirement of the DDO4 is that all cladding and trim must be coloured and maintained in muted tones of green, brown, beige, or other colours approved by the responsible authority.  The external finish of all buildings must be of a low reflectivity (less than 40% reflectivity) to minimise glare and reflection of light. This requirement includes roofing materials. 
67	The proposal seeks to use ‘Dune’ for roof cladding and ‘Light Grey’ for walls which has a 42% reflectivity. 
68	Council submits the lighter colours are acceptable as there are many examples of lighter wall and roof colouring on dwellings nearby.  It says due to the siting of the dwelling, the proposed roof colour is not overlooked by adjoining properties and therefore will not provide glare.
69	The materials and colour palette were not contested by the applicant.  
Tribunal findings
70	I agree with Council that there are a variety of dwelling styles and materials found in this neighbourhood that includes lighter shades, as proposed for the new dwelling.  I consider the colours, low profile skillion roofing, cantilevered first floor, large window openings are consistent with the variety of building styles and materials found in this area.  The retention of boundary trees and planting of new trees will also provide screening of the built form. 
Will the development have unreasonable amenity impacts?
71	In accordance with the Decision Guidelines of the DDO4, consideration must be given to the Clauses 54.02- 54.06.  The following amenity impacts were raised in the applicant’s statement of grounds and discussed in relation to Clause 54.
Visual bulk 
72	The applicant argues the size and scale of the dwelling will detrimentally impact the amenity of his dwelling.  
73	Council submits the dwelling is spaciously set back from shared boundaries and therefore visual bulk impacts will be minimal when viewed from the adjoining properties.  
Tribunal findings
74	The side and rear setbacks of the new dwelling exceed the requirements of Clause 54.04-1 (Standard A10 – Side and Rear Setbacks) and are deemed to meet the objective of this clause.
75	I find the location, height and setback of the dwelling will not result in substantial visual bulk impacts on the applicant’s dwelling.  The new dwelling is proposed to be set back a minimum of 22.48 metres from the south boundary at ground floor level and 25 metres at first floor level.  I also consider existing and proposed landscaping along the common boundary will filter views of the new dwelling when viewed from the south.  
Overlooking 
76	The applicant has included a ground that the proposal fails to satisfy the objective of Clause 54.04-6 (Standard A15 – Overlooking) which is to limit views into existing secluded private open space and habitable room windows.  
77	Council submits the development complies with Standard A15 as all habitable room windows are over 9 metres from the adjoining secluded open space.
78	The respondent states the proposal substantially satisfies Clause 54 as the closest habitable room window is set back over 28 metres from the south boundary. 
Tribunal findings
79	I note the new dwelling has been designed to capture views to the Bay and any south facing windows are a means of allowing sunlight and daylight into the dwelling.  I agree with Council that as the dwelling is set back over 9 metres from the south boundary, it is deemed to comply with the objectives of Standard A15.  This is in accordance with changes to the Clause 54 gazetted in Amendment VC 243. 
What conditions are appropriate?
80	Whilst the applicant is seeking a reduction in the overall height of the dwelling to under 8 metres, my findings indicate this change is not supported.
81	Conditions were discussed at the hearing and no changes were proposed to the permit conditions which are contained in Appendix A.

Conclusion
82	For the reasons given above, the decision of the responsible authority is affirmed.  A permit is granted subject to conditions.

Jane Tait
Member			

Appendix A – Permit Conditions

Permit Application No	P22/2349	
Land	33 Daveys Bay Road
MOUNT ELIZA VIC 3930	

What the permit allowS	
In accordance with the endorsed plans:
•	Development of double storey dwelling, vegetation removal and associated works;	

Conditions
Amended plans
1	Before the developments starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority.  When approved, the plans will be endorsed and will then form part of the permit.  The plans must be drawn to scale with dimensions.  The plans must be generally in accordance with the plans submitted with the application but modified to show:
(a)	Trees to be removed and retained numbered in a manner consistent with the numbering contained in the Arboricultural Assessment and Report prepared by Arborist reports Australia dated on all demolition, site and landscape plans.
(b)	The landscape plan amended to show screen planting to a minimum height of 4m along the southern title boundary for the extent of 31 Daveys Bay Road secluded private open space.
Approved development not altered
2	The layout of the land, the size and type of the buildings and works, including the materials of construction, on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
Colours/Materials
3	The materials and colours of the exterior finish of the building must be in accordance with the endorsed plans unless with the further permission of the Responsible Authority.

Finishes 
4	Prior to the initial occupation of the dwelling external finishes must be completed to a professional standard to the satisfaction of the Responsible Authority.
Disturbed Surfaces
5	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the Responsible Authority.
Driveway/Crossover
6	A vehicular crossing must be provided to the standards of the Responsible Authority prior to the initial occupation of the dwelling.
7	A driveway must be provided to the land and surfaced to the satisfaction of the Responsible Authority.  It must be completed prior to the initial occupation of the dwelling.
8	All disused or redundant vehicle crossings must be removed and the area reinstated with nature strip, kerb and channel, and footpath to the satisfaction of the Responsible Authority. 
Vegetation removal
9	The extent of clearing of vegetation as shown on the endorsed plans must not be altered or modified without the consent of the Responsible Authority.
10	All disturbed surfaces on the land must be revegetated and stabilised to the satisfaction of the Responsible Authority.
Landscaping 
11	Prior to the occupation of the development (or other time agreed to in writing by the Responsible Authority) the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.
12	The landscaping referred to in Condition 11 above must be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced as soon as practicable.
Tree protection
13	Prior to the commencement of any demolition, excavation or works; and during all stages of development, the Tree Protection Zones (TPZ), Recommendations and Tree Protection Measures identified in the approved Arboricultural Assessment and Report must be implemented and complied with to the satisfaction of the Responsible Authority.
14	Prior to the commencement of any building or works appropriate tree protection fencing must be erected around the TPZ of retained trees in accordance with Australian Standard AS4970 – 2009 (Protection of trees on development sites).  The tree protection fencing must remain in place until the completion of any works hereby approved.
15	The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained and are advised of any obligations in relation to the protection of those trees.
16	No trenching or soil excavation is to occur within the TPZ of retained trees unless shown on the endorsed plans without the prior written consent of the Responsible Authority.
Screening
17	Prior to the initial occupation of the development, all required privacy screening devices and fencing shown on the endorsed plans must be installed and completed to the satisfaction of the Responsible Authority.
Expiry
18	This permit will expire if the development is not completed within four years of the 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 –