VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No.  P1558/2019
PERMIT APPLICATION NO. p18/1744

APPLICANT	Patrik Puszka	
responsible authority	Mornington Peninsula Shire Council	
respondent	Matthew Shepherd	
SUBJECT LAND	34 Arthurs Avenue
MCCRAE  VIC  3938	
WHERE HELD	Melbourne	
BEFORE	Margaret Baird, Senior Member	
HEARING TYPE	Hearing 	
DATE OF HEARING	9 October 2020	
DATE OF ORDER	14 October 2020	
CITATION	Puszka v Mornington Peninsula SC [2020] VCAT 1146	
Order
Permit application amended
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by amending the name of the permit applicant to:
Matthew Shepherd
Permit granted
2	In application P1558/2019 the decision of the responsible authority is varied. 
3	In planning permit application P18/1744, a permit is granted and directed to be issued for the land at 34 Arthurs Avenue, McCrae, in accordance with the endorsed plans and the conditions set out in the Notice of Decision dated 8 July 2019, subject to the deletion of part b) in Condition 1.   
4	The permit allows:
•	Development of a dwelling, removal of vegetation and associated works.

Margaret Baird
Senior Member

Appearances
For applicant	Mr P Puszka.	
For responsible authority	Mr A McGuckian, Journeyman Planning.	
For respondent	Mr M Shepherd.	
Information
Description of proposal	Construction of a double storey dwelling and removal of some trees and vegetation.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit. 	
Planning scheme	Mornington Peninsula Planning Scheme [scheme].	
Zone and overlays	General Residential Zone GRZ1, Environmental Significance Overlay ESO17, Vegetation Protection Overlay VPO1, Bushfire Management Overlay BMO2, and Design and Development Overlay DDO3.	
Permit requirements	Clauses 42.02-2, 43.02-2 and 44.06-2.	
Relevant scheme policies and provisions	Clauses 11, 12, 13, 15, 16, 21, 22.13, 32.08, 42.01, 42.02, 43.02, 44.06, 52.06, 52.12, 53.01, 54, 65 and 71.	
Land description

	The subject land is on the west side of Arthurs Avenue, south of Grandview Court.  It is 888m2 and vacant, other than for several trees.  The land falls significantly to the west.  Easements affect the land including a carriageway easement along the northern boundary and a drainage and sewerage easement to the rear of the property. 
The applicant for review owns the property to the south of the subject land.  That property contains a dwelling.  Like others nearby, the dwelling presents as single storey to Arthurs Avenue and rises to two levels as the land falls to the west. Properties adjacent to the subject land are generally oriented to gain views across the nearby valley and toward the coast and sea.  Plans and photographs relating to the subject land, applicant’s property, and area have been presented by the parties and are included in the Council’s assessment.	
Reasons
ABOUT THIS APPLICATION
1	In July 2019, the Mornington Peninsula Shire Council [Council] determined to grant a permit for the construction of a dwelling on, and vegetation removal from, the subject land.
2	Mr Puszka [applicant] has asked the Tribunal to review that decision. He does not oppose the construction of a dwelling.  He does oppose the removal of vegetation from the land and the proposed building.  Mr Puszka is particularly concerned about the scale and siting of the proposed dwelling that, he submits, will create unacceptable visual bulk, result in a loss of views, and cause unreasonable shadowing including in winter. These impacts will affect the amenity and enjoyment of Mr Puszka’s dwelling, the use of outdoor space including the primary deck area, and affect areas used for vegetable growing.  Mr Puszka refers to the process through which his dwelling was designed and argues that the respondent should and could do more to reduce impacts on the neighbouring property to the south.  Mr Puszka submits the proposed dwelling should be lowered in height and/or shifted closer to the street.
3	Mr Puszka raises a number of other issues relating to fill on the land, the identification of natural ground level, and the effects of excavation.  He questions a geotechnical assessment provided to, and assessed by, the Council and describes issues surrounding enforcement.
4	The Council and Mr Shepherd [respondent] argue that the proposal is acceptable without further changes.  The officer’s assessment and Council’s submission explain why the Council has determined the proposal achieves an acceptable outcome based on the requirements of the scheme.  They conclude that the proposal achieves a balanced outcome (including managing its height and form to suit the character of the area) and appropriately addresses potential off-site amenity impacts.  Although not required by the scheme, Mr McGuckian states that the geotechnical report provided with the permit application has been assessed and engineering issues can be addressed.  Mr Shepherd also refers to changes already made to the proposal over the application process to reduce impacts.  
5	I must decide whether to grant a permit and, if so, what conditions should apply.  Does the proposal produce an acceptable outcome having regard to the relevant policies and provisions in the scheme?  As I stated at the hearing, I am not required to find if there is a better outcome or alternative.   I am not required to direct changes to the proposal if, when assessed, the proposal in the application plans is acceptable.  This is the case notwithstanding Mr Puszka’s explanation of the way in which he approached the development of his dwelling, and responded to the design for an adjacent house, all involving negotiations between parties.  
6	I must assess whether the proposal satisfies the scheme’s requirements. Clause 71.02-3 of the scheme 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.  However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
PHYSICAL AND PLANNING CONTEXTS
7	The physical and planning contexts that are relevant to my assessment have been addressed in the material presented by the parties.  
8	Relevant clauses of the scheme have been listed in the ‘Information’ section of these reasons and are recited in Mr McGuckian’s submission.  The subject land is within a residential zone where the construction of a dwelling on a vacant lot is anticipated.  Several lots in the nearby area are being developed with two storey dwellings as shown in photographs presented at the hearing.  
9	Development of a dwelling is subject to the provisions of clause 43.02 which has specific requirements relating to design and built form and, through schedule 3 (Coast and Landscape Design), brings into consideration clause 54 even though no planning permit is required for the proposed house under clause 32.08 and GRZ1.  
10	A permit is required for vegetation removal. The provisions of clause 42.02 and schedule 1 are relevant to my consideration particularly the statement of significance, objectives and decision guidelines in VPO1.  
11	State and local policies are also relevant through the applicable clauses and the general decision guidelines of the scheme. Among these policies are clauses 15, 21.07 and 22.13 and the Mornington Peninsula Localised Planning Statement. 
12	It is important to state that the planning framework assists to establish reasonable expectations about the development of a dwelling on the subject land and what impacts may, reasonably, be experienced and anticipated as a consequence.  The subject land is expected to be developed for residential purposes where there is an emerging and evident pattern of new two storey dwellings stepping down with the slope of the land.  As apparent in material presented at the hearing, new dwellings include relatively high retaining walls associated with land development.  
13	There is a pattern of large new dwellings with properties on the ‘low’ side of the street designed to take advantage of views over the falling land toward Port Phillip Bay.  The ‘high’ side of the street includes vegetation along the roadside and dwellings set back (and high) on their lots.  
14	Vegetation removal and new landscaping, as well as retaining walls, can be anticipated, with the scheme seeking site responsive design and development that contributes to the evolution of the landscape and residential character.  
VEGETATION REMOVAL
15	The subject land is in an area where the subdivision and construction of new dwellings has changed and continues to change the landscape.  A strong vegetated character is evident.  VPO1 is seeking a balanced response and an impression of buildings within a landscape.  VPO1 expressly refers to the role of landscape in terms of habitat, soil stability and erosion management.  These matters are important to Mr Puszka, both in relation to the subject land and surrounds and more broadly across the Peninsula.
16	The subject land is substantially cleared.  The permit application seeks approval for the removal of vegetation comprising three Coastal Manna Gums, a Cherry Ballarat and a small patch of vegetation toward the rear of the land.  The Council’s arborist accepts an assessment provided with the permit application about the condition of the trees and the ability to retain them.  I understand from Mr Puszka’s submission that the indigenous Cherry Ballart may now be dead. 
17	The decision guidelines in VPO1 require me to consider the value of native vegetation in terms of habitat, landscape and environmental values, age, physical condition, rarity or variety.  They also require me to consider whether there is any reasonable alternative means of siting buildings and works to conserve native vegetation and other matters including stability and fire management.  DDO3 also requires me to consider the existing vegetation.  The overlay provisions seek to ensure substantial areas are provided for new landscaping and open space.
18	I accept the Council’s assessment of the vegetation that is proposed to be removed.  The condition of the trees and the need to comply with bushfire requirements, while allowing for a dwelling on the land, are relevant in this regard.  Moreover, changes to the development sought by Mr Puszka by lowering the height of the dwelling (potentially with more excavation) and/or shifting the dwelling closer to the street would not appear to change the impacts on vegetation, as Mr McGuckian states in his submission.
19	In addition, the siting of the proposed dwelling enables new landscaping to be provided.  While that vegetation will take time to grow and mature, a new landscape can contribute to the evolution of vegetation and ongoing habitat benefits.  New landscaping is directed through conditions on a permit that require a detailed landscape plan with a specific focus on indigenous species to the local Ecological Vegetation Class.  
20	Mr Puszka refers to other sites where landscaping has not been provided in accordance with approved plans.  This is not, however, a reason to refuse the current permit.  The Council is obliged to enforce the scheme.  Enforcement action can be brought by a Council (for example, after investigation of a complaint) or individuals in accordance with relevant legislation.
21	I agree with Mr Puszka that a sensitive approach to removal of the remaining vegetation would be desirable to limit impacts on any fauna and avifauna living, breeding or roosting in the trees.  I would encourage the permit applicant to consider this if the permit is acted upon.
22	For reasons that align with the Council’s submission, I find the proposed removal of vegetation is acceptable. 
23	Allegations about illegal vegetation removal from the subject land raised by the applicant are not for me to investigate or comment on.  The application before me is not an enforcement proceeding.  
OFF-SITE IMPACTS
24	Mr Puszka raises multiple concerns about the impact of the proposed dwelling on his home and amenity including:
•	The loss of views and outlook from his first floor deck, which is the primary area of private open space for the dwelling at No. 36 Arthurs Avenue rather than the treed area at the rear of the property.
•	Overlooking from windows in the southern elevation of the proposed development.
•	Overshadowing of the northern side of the property at No. 36 Arthurs Avenue, including to the deck, windows and vegetable plantations.
•	The consequences of overshadowing for the amenity and ongoing environmental performance of the dwelling at No. 36 Arthurs Avenue (including in winter) given the environmentally sustainable dwelling has been designed to be energy efficient in multiple ways.
•	Visual bulk from the two storey form that extends beyond the dwelling at No. 36 Arthurs Avenue rather than transitioning between Nos. 32 and 36 Arthurs Avenue.  Visual bulk impacts include from the upper level deck as well as downstairs gym and bedrooms.
25	In assessing the impact of the proposed dwelling on the property to the south, it is relevant that all relevant numerical standards in clause 54 are met except for a 0.19cm incursion of the envelope in standard A10 of clause 54.04-1 at the southern point of an eave.  
26	With respect to visual bulk, is it plain that a dwelling on the subject land will change the outlook from the adjacent property which is currently over vacant land with some vegetation.  The proposed dwelling is of a similar height, scale and size of other new homes being built in this area.  There are no proposed walls on boundaries.  Side and rear setbacks comply with standard A10, other than the minor eave encroachment that has not been shown to create a material impact on the adjacent property.  The extent of proposed earthworks is acceptable given the topography and, again, is not dissimilar to other properties.  The proposed building form is articulated.  
27	The presence of the building will change the outlook from the applicant’s deck but it is not unexpected nor inconsistent with other sites.  The lower level bedrooms and gym on the adjacent site will experience change; but a level of change that is anticipated by the controls within the scheme.
28	The proposal complies with standard A12 in clause 54.04-3 relating to daylight to existing windows and standard A13 in clause 54.04-4 with respect to north-facing windows in the dwelling at No. 36 Arthurs Avenue.  
29	While Mr Puszka questions the Council’s assessment against these standards based on his calculation of the setbacks, it is evident that both standards are met and, therefore, the objectives of clause 54.04-3 and 54.04-4 are met.  The application of these standards does not mean or presume no change.  The standards identify an acceptable level of change based on the scheme.
30	Standard B22 (overlooking) is addressed through the provision of obscure highlight windows in the southern elevation of the proposed dwelling, in a similar way as has occurred with the dwelling at No. 32 Arthurs Avenue.  Mr Puszka is concerned that the treatment could be altered.  He submits windows should sit lower than the boundary fence.  However, I find that overlooking is limited in accordance with the standard by the proposed screening measures and the objective of clause 54.04-5 is met.  The treatment must be retained in accordance with endorsed plans.  
31	View sharing is a relevant matter in this case, although it was not expressly part of the applicant’s statement of grounds.  New dwellings such as those at Nos. 32 and 36 Arthurs Avenue have oriented their decks to the north-west.  The proposed dwelling also seeks to do so.  The applicant considers that the loss of views warrants repositioning the proposed dwelling eastwards (closer to the street).  
32	The applicant’s deck has views to the north-west with other expansive views from the same deck.  This is evident from the material presented at the hearing and is shown in photographs in the Council officer’s report.  While trees may grow in the rear of the Puszkas’ property that constrain distant views, there is ample opportunity to the occupants of the dwelling at No. 36 Arthurs Avenue to enjoy views including to the Bay, even though the proposed dwelling will intercept part of the existing north-western aspect.  I am satisfied a reasonable sharing of views is achieved.
33	Overshadowing is assessed on the basis of the September equinox (standard A14, clause 54.04-5) rather than winter shadows.  Shadowing associated with the proposed development meets the numerical standard A14.  I appreciate that the first floor deck at No. 36 Arthurs Avenue is valued and is a well-used private open space.  The shadow diagrams do not include a 9am shadow assessment, however, I am able to conclude that the deck and ground level private open space will receive ongoing solar access (the latter being influenced by trees in the rear yard of No. 36 Arthurs Avenue).  The vegetable plantation adjacent to the northern fence is affected by the high fence and that existing shadowing will remain.  The side setback is part of the applicant’s open space, however, the impact of increased shadows on this area does not warrant the proposed dwelling being modified.
34	The proposed dwelling extends beyond the rear of No. 36 Arthur Avenue, as shown in the extract of the site plan, below:

Rear of No. 32 Arthurs Ave

Rear of proposed dwelling 

Rear deck of No. 36 Arthurs Ave

35	This building siting is of concern to the applicant given the impacts on the property to the south.  I have carefully assessed this matter.  I do not consider the position of the rear of the proposed dwelling protrudes so as to cause unreasonable amenity impacts to No. 36 Arthur Avenue or any other property.  The numerical assessment under clause 54, and the more subjective assessments of neighbourhood character and view-sharing, do not support a finding that the proposed dwelling must be reduced in size, height or position to produce an acceptable outcome.
36	For the above reasons, I find the proposal responds in an acceptable way to the property to the south at No. 36 Arthurs Avenue, based on the assessment criteria in the scheme.  There is, therefore, no basis upon which it is necessity to consider and direct modifications to the proposed dwelling.  
Other matters
37	Mr Puszka refers to fill that has been placed on the subject land and on lots in this area.  Based on his experience, there are difficulties and complexities associated with dwelling construction given factors such as slope and the need to ensure structural stability.   The Council has formed the view that the proposed dwelling does not exceed natural ground level so as to breach the mandatory height limit.   The plans document levels to AHD including floor levels, ceiling levels and roof levels.  The permit holder is obliged to comply with levels on endorsed plans and not exceed the mandatory building height.  Consistent with my earlier findings, enforcement is not a matter for this proceeding. 
38	I have noted earlier Mr Puszka’s concerns about the application process wherein he believes the respondent should have engaged in consultation and negotiation.  Ultimately, the process leading to the proceeding before me is not relevant to the merits assessment I must undertake and have undertaken.
39	Mr Puszka’s statement of grounds refers to the potential impact on the value of his property as a consequence of impacts on the house’s energy rating.  However, I have not been presented with any material to document or demonstrate the impact on the energy rating of the dwelling at No. 36 Arthurs Avenue.  As is the case with many other instances when loss of property values are argued by objectors to a planning permit application, potential loss in property values is not a matter upon which there is any evidence.  Moreover, if values are affected by adverse impacts, then it is the amenity questions that must be considered, not their ramifications in terms of property values. This is the approach usually adopted by the Tribunal in these types of proceedings.  The impacts of the proposed development that have been raised as issues by the applicant have been found by the Council, and independently by me, to be within the reasonable expectations set by the scheme.  
CONCLUSION
40	For the above reasons, I find the proposal is acceptable as designed, based on the 21 January 2019 plans.  The proposal has responded in an acceptable way to the site’s constraints and opportunities, and its interfaces.  There may be many ways to design a dwelling on the land but I must assess the proposal before me.  I accept the Council’s carefully considered assessment and submissions that the proposal is acceptable based on the conditions in the Notice of Decision.
41	At the start of the hearing, Mr McGuckian referred to part b) in Condition 1 on the Notice of Decision that requires a garden area plan to show compliance with clause 32.08-4 of the scheme.  He indicated that the Council has already been satisfied on this matter and, having regard to Tribunal decisions with respect to this topic, this condition is not appropriate.  This is not an issue that relates to the applicant’s grounds and it is clear on the information provided that the mandatory garden area requirement is met.  
42	In conclusion, I agree with the Council’s decision but will vary the Council’s decision to delete part b) in Condition 1.

Margaret Baird			
Senior Member