VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No.P77/2020 
Permit Application no.P19/2239 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; VicSmart Application; Mornington Peninsula Planning Scheme; General Residential Zone and Design and Development Overlay; proposed above ground swimming pool, deck and front fence; issue of character and streetscape.	

APPLICANT	Tanoa Investments Pty Ltd	
responsible authority	Mornington Peninsula Shire Council	
SUBJECT LAND	16 Earimil Drive, 
MOUNT ELIZA VIC 3930	
WHERE HELD	Melbourne	
BEFORE	Christina Fong, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	13 July 2020	
DATE OF ORDER	28 July 2020	
CITATION	Tanoa Investments Pty Ltd v Mornington Peninsula SC [2020] VCAT 808	

Order
1	In application P77/2020 the decision of the responsible authority is affirmed.
2	In planning permit application P19/2239, no permit is granted.
3	The hearing has been conducted ‘on the papers’, with the agreement of the parties, pursuant to Section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998.

Christina Fong			
Member			

Appearances
For applicant	Phillip Smith, Tanoa Investments Pty Ltd	
For responsible authority	Rachel Brien, town planner, Mornington Peninsula Shire Council	

Information
Description of proposal	Construction of outdoor above ground swimming pool, associated decking, stair access from first floor of the existing dwelling, and front fence. 	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme	
Zone and overlays	General Residential Zone and Design and Development Overlay DDO2.	
Permit requirements	Clause 43.02-2 for buildings and works as the proposed swimming pool and front fence are not exempt from DDO2.	

Reasons
What is this proceeding about?
1	This is a refusal by the responsible authority to grant a permit to construct an outdoor above ground swimming with associated decking, access from the first floor of the house and a front fence. 
2	The grounds of refusal relate to the proposal failing to satisfy design objectives of Clause 43.02 (DDO2), not respecting the character of the area, the additions failing to integrate with the street, proposed front setback forward of abutting and surrounding dwellings, and setting an undesirable precedent for construction in the front setback area.
What are the key issues?
3	The key issues are whether the proposed structures meet the requirements of the Design and Development Overlay (DDO2), the trigger for a permit.
4	The review applicant’s submission has included an analysis of how the proposal meets Building Regulations. The test of this review is not the Building Regulations. These regulations do not inform on the planning merits of the proposal. Similarly, the proposal does not trigger a permit by the zoning of the land. The fact that it is as-of-right under the General Residential Zone in the planning scheme or the building is a Class 1 Building under Building Regulations, have no bearing on the merits of the proposal.
is THE PROPPOSAL consistent WITH THE Design and DEvelopment Overlay in terms of neighboruhood character and streetscape 
5	The review site is affected by a Design and Development Overlay Schedule 2 (DDO2 - Bayside and Village Design). For land affected by DDO2, the following design objectives are to be achieved:
•	To ensure that the design of subdivision and housing is responsive to the environment, landform, site conditions and character of coastal and bayside areas and rural villages.
•	To ensure that new development has proper regard for the established streetscape and development pattern in terms of buidlings height, scale and siting.
•	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.
6	DDO2 specifies that an application for buildings and works associated with a single dwelling on a lot should meet, unless demonstrated otherwise to the satisfaction of the Responsible Authority, the following provisions:
•	The General Requirements of the schedule;
•	Comply with clause 54.01 (neighbourhood character and design response);
•	Comply with the objectives and should meet the standards of clause 54.02 (neighbourhood character), 54.03-3 (site coverage), 54.03-4 (permeability), 54.03-5 (energy efficiency), 54.03-6; 54.04-4, 54.04-5, 54.04-6, 54.06-1;
•	Must meet the objectives of clauses 54.03-1 (street setback), 54.03-2 (building height) and 54.04-1 (side and rear setback).
7	Further, a permit is also required to construct a front fence if it is more than 1.8 metres and less than 50% transparency.
8	The General Requirements under DDO2 should be met, except when it has been demonstrated to the satisfaction of the Responsible Authority that compliance is unreasonable or unnecessary and that no significant loss of amenity will result.
9	The General Requirement, as relevant to this review, are:
•	Buildings must be setback 7.5 metres from a road frontage and 3 metres from any side round boundary. Where all adjoining lots fronting the same road have been developed, the frontage setback may be reduced to the average setback of development on the adjoining lots.
•	Where a minimum setback distance for a buildings or buildings is specified in any of the General Requirements, sunblinds verandahs, eaves, fascias, gutters, masonry chimneys, flues, pipes, domestic fuel or water tanks, and heating and cooling equipment or other services may encroach not more than 0.5 metres into the specified setback distance.
10	This means the recommended front setback is 7.5 metres, with 0.5 metre for encroachments for various elements and features such as verandahs.
11	The decision guidelines under DDO2, as relevant, are:
•	The decision guidelines from clause 54.02 to 54.06, and;
•	Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs.
12	In summary, the crux of the above provisions points to the proposal needing to meet the neighbourhood character and a specific front setback in order to achieve the design objectives for Mornington’s bayside and village character.
13	There are two components to the proposal, the above ground swimming pool within the front setback area with the associated deck and access from the first floor of the house, and the front fence. 
14	I first turn to the above ground pool and associated deck. The pool and the deck are setback between 1.38 metres (at south west end of the deck) to 1.74 metres (at the northern end).  Apart from the pool, there is a set of stairs down from the first floor of the house to the pool.
15	The heights of the various elements of the proposal (scaled and from FGL) is 1.9 metres for the pool, around 3.14 metres to the top of the pool fence, and over 4 metres to the top of the stairs landing from the first floor.
16	The proposed setback of the structures from the street is, thus, well below the 7.5 metres front setback of the General Requirement, and the allowable 0.5 metre of encroachment for features.   
17	In council’s view, the height of the front fence and the setback of the above ground pool and associated decking and stairs are not acceptable from a number of angles: neighbourhood character, integration with the street, visual intrusion and bulk, and the design overall contrary to the objectives and decision guidelines of DDO2.
18	Council’s submission included photographs showing development around the area, and a table setting out the setbacks of buildings in the north-eastern end of the street. These photographs also show that there is no above ground pool in the front garden in this street block. 
19	Its submission is that the proposed front setback is way forward of the front setbacks of adjoining and other buildings in the street. As for visual intrusion, council submits that the reduced front setback, the bulk of the above ground pool, and the associated deck and connection to the first floor, would result in a design outcome that is visually obtrusive, causing visual bulk, with this part of the house presenting as the predominant part of the dwelling visible from the streetscape
20	Council was not convinced by the applicant’s argument that landscaping around the site and the proposed front fence will ultimately screen the structure, given the lack of front setback and limited area for landscaping. It also expressed concerns that approval of this proposal would create an undesirable precedent for the area by encouraging reduced front setbacks.
21	The review applicant does not share council’s view on streetscape intrusion and on the ground of neighbourhood character. He argued that the proposal is fitting for its setting. In his view, the height, mass, utilisation of open space at the front of the dwelling are key features of the site, one which is sited on a bayside escarpment and void of development on the opposite side of the street.
22	Further, he also submits that the structure would be incorporated into the landscaping, with the majority of the development not being able to be seen from the streetscape or neighbouring properties.
23	Apart from his submission received in June 2020, I have also perused the applicant’s statement of grounds, where he cited several above ground pools in the Mt. Eliza area as precedents, and diagrammatic representation that the pool would be concealed by the fence and the proposed landscaping in the four Golden Cane Palms in the front setback area and the Lilly Pilly hedge in front of the proposed front fence.
24	The test for this review is whether the proposal achieves the objectives and provisions of the permit trigger for the proposal, which is DDO2. 
25	The assessment of this proposal is thus whether it can meet the requirements of DO2. If not, there needs to be justification to demonstrate that the relevant objectives are still met. The starting point would be the General Requirement of DDO2.
26	The proposal cannot meet the 7.5 metre front setback requirement of the General Requirement, and the likely visual impact on the streetscape and neighbourhood character of an area identified to achieve a Bayside and Village Design in the Mornington Peninsula.
27	The general development character of the area is residential in the form of detached dwellings, most of which are generous two storey buildings and designed to capture the view to Port Phillip Bay. 
28	Council’s submission provides a table of front s of buildings in the area , from No. 9 to 19-20 Earimil Drive, that includes the entire street block between Granya Grove and Earimil Creek.  Front setback varies, from a minimum of 5.4 metres at No. 14 to 19 metres at No. 19-20 Earimil Drive. The two adjoining dwellings at Nos. 15 and 17 are setback 7.518 metres and 13 metres respectively.
29	The proposed front setback of the above ground pool is between 1.34 metres and 1.76 metres. These setbacks are way more forward than the adjoining buildings and others in the street block. They reduced the setback of the house from 8.392 metres (front at the first floor balcony) to within 1.34 metres. The protrusion represents an encroachment of more than 5 metres contemplated under DDO2. This setback is clearly at odds with the DDO2, the existing setback of buildings in the area, and is out of character with the existing pattern of setbacks and the streetscape.
30	The review applicant has relied on the screening properties of the proposed front fence and landscaping to screen the structures.
31	Diagrammatic representations of the effectiveness of screen included in his statement of grounds submitted with his application for review show these elements presenting as a solid mass and concealing the pool, deck and their enclosing security and safety fencing. The enclosing security and safety fencing, although meant to be mostly transparent, will still very visible, given their proximity at between 1.38 and 1.74 metres from the front boundary, and their height above the proposed front fence.
32	The review applicant is relying on the proposed landscaping to screen the structures. The proposed landscaping is to provide 4 Golden Cane palms across the front of the pool between the front fence and the pool. Although these palms have better screening properties than most of the single trunk palms, I do not expect them to have the dense foliage as typical screening bushes to be able to block the view of all parts of the structures. The proposed 3 metre high Lilly Pilly hedge in front of the fence will be more effective. If my reading of the plans is correct, the Lilly Pilly hedge is not within the curtilage of the site but in the nature strip. The nature strip is under the control, management and maintenance of council, and hence not at the disposal of the applicant. If the proposed hedge is approved as part of this permit, the maintenance and the retention of the hedge is not guaranteed. The first principle of design should be based on containing a proposal within the site, rather than encroachment on other properties.
33	The review applicant has given examples of swimming pools in the front setback in the area as precedents. Setting of precedent depends on how relevant onet is to the matter at hand, such as whether they assist in informing the streetscape and neighbourhood character of an area and whether there are subject to the same planning controls. They can become precedent if the facts of the cases are comparable and similar. I am not persuaded that the examples relied on are helpful, as they are not approximate to the site and do not inform on the existing streetscape of the locality. A collection of similar developments in the wider Mt. Eliza area does not make them valid precedent for the determination of this review.
34	In all, I am not satisfied that the proposal meets the requirements of DDO2.
Conclusion
35	For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

Christina Fong			
Member