VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1347/2020
Permit Application no. P014/20	
CATCHWORDS	
Mansfield Planning Scheme, Section 82 of the Planning and Environment Act 1987; proposal for the construction of a new dwelling and swimming pool on a lot; objections but Council has issued a Notice of Decision to Grant a Permit; neighbour seeking review of that decision; VCAT hearing; issues of the role of the relevant Section 55A Agreement and Significant Landscape Overlay Schedule 1; permit approved.    	

Applicant	Lara Pelka	

Responsible Authority	Mansfield Shire Council	
Respondent	Ben Willick Willick Design	
SUBJECT LAND	14 Summit View Court
MERRIJIG  VIC  3723	
HEARING TYPE	Hearing	
DATE OF HEARING	9 June 2021	
DATE OF ORDER	5 August 2021	
CITATION	Pelka v Mansfield SC [2021] VCAT 858   	

Order

1	In application P1347/2020, the decision of the responsible authority is varied.
2	In planning permit application No. P014/20, a permit is granted and directed to be issued for the land at 14 Summit View Court in Merrijig, in accordance with the endorsed plans and subject to the permit conditions set out in the Notice of Decision to Grant a Permit dated 29 July 2020, but modified as follows:
•	Insert a new Condition 1 as follows and re-number all existing conditions which follow:
“Before the development starts, amended plans must be submitted to the satisfaction of the responsible authority.  When approved, they will be endorsed and then form part of the permit.   The amended plans must be drawn to scale with dimensions and must be generally in accordance with the application plans, but modified as follows:
i	Any necessary corrections made, so that all relevant pages of the architectural plans show the necessary BAL bushfire safety standard for the new building as being BAL29.
ii	The front (roughly north-facing) upper level external wall of the building stepped-in by 900 mm.”  
3	The permit shall allow:
•	Buildings and works for a dwelling affected by the Bushfire Management Overlay and the Significant Landscape Overlay Schedule 2.    

Philip Martin
Senior Member			

Appearances
For applicant	Ms Lara Pelka appeared in person	
For responsible authority	Ms Melissa Crane (Council planner)	
For respondent	Ms Angelina Bell (solicitor)	

Information
Description of proposal	Buildings and works for a dwelling	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit	
Planning scheme	Mansfield Planning Scheme	
Zone and overlays	General Residential Zone Schedule 1
Bushfire Management Overlay (BMO)
Environmental Significance Overlay
Significant Landscape Overlay Schedule 2 (SLO2)	
Permit requirements	A ‘buildings and works’ permit is required for the proposal under the BMO and SLO2	
Relevant scheme policies and provisions	Clauses 11, 12, 13, 14, 15, 16, 21.03,21.06, 21.10, 22.02 and 65   	
Land description	The subject land is a cleared site that is irregular in shape and has an area of 2205 sqm.  The site slopes from the south-west down to the north-east.  There is a drainage and sewerage easement at the southern boundary of the property.  There is land zoned Farming Zone further to the rear and this area is a semi-delivered residential area of this township.   The site is located at the end of the court and about 650 metres from the intersection of Summit View Court and Mt Buller Road.  Most nearby residential lots feature single dwellings.  Reticulated sewerage is available to the review site.	

Reasons

What does this application involve?
1	The subject land at 14 Summit View Court in Merrijig is one of the last vacant sites in its court, being an unusually large lot at 2205 sqm that is roughly wedge-shaped.  It is proposed that the site be developed with a two level dwelling and swimming pool. The dwelling would feature six bedrooms and three living areas.  Its maximum height about natural ground level would be about 8.1 metres.  There would be a two-car garage and room for other cars to be parked on the driveway area.
2	The main features of the site, the local area and the relevant framework are set out further above.  The lot lies at the end of the dead-end bowl – hence its unusual wedge-shape.
3	Whilst the two permit triggers here are under the Bushfire Management Overlay (BMO) and the Significant Landscape Overlay Schedule 2 (SLO2), there are only third party rights of objection under the latter control.  Hence Ms Pelka has no standing to raise any bushfire issues, although Council can still consider and assess this aspect of the proposal (as can the Tribunal).
4	Objections to the proposal were made, but Council supports the application for permit and has issued a Notice of Decision to Grant a Permit (NOD).  The neighbour Lara Pelka has sought the Tribunal’s review of the NOD.  The hearing of this matter came before me on 9 June 2021, at which time I heard submissions from the persons listed above.  
5	Due to the ‘travel restrictions’ for VCAT members associated with the Covid pandemic, as imposed by both the State Government and VCAT management, it has been impractical for me to carry out a site inspection since the hearing.  However I was given a good set of photos during the hearing and the reality has been that in these current pandemic-affected times, most planning merits review hearings have been conducted in this manner. 
6	The balance of these reasons addresses the key points I see arising.  My overall finding is that the proposal is acceptable and deserving of being granted a permit.  
Range of positive attributes of the site and proposal
7	I find that the proposal and site has a range of positive attributes, for its potential development for a dwelling, as follows.
8	The primary zoning of the site is GRZ and the use of ‘dwelling’ needs no permit under same.  Hence it needs to be understood that the more common type of debates about ‘neighbourhood character’ or ‘amenity impacts on neighbours’ do not arise here, because of this as-of-right situation.  Similarly the proposed swimming pool does not in itself require any planning permission.
9	With the subject land forming part of a part-completed residential subdivision on land zoned GRZ, it is hardly surprising that its owner wishes to use it for a dwelling.  
10	This is an exceptionally large residentially-zoned lot on which to build a single dwelling, at 2205 square metres.  Furthermore, where the lot is wedge-shaped, it is the narrower end of the ‘wedge’ that faces towards the southern end of Summit View Court, rather than the wider end.  This in turn means that any new dwelling on the subject will present approximately end-on (roughly north-south) to the court, rather than presenting its much wider east-west elevation.
11	It is appropriate that I give some weight simply to the fact that Council supports the proposal.
12	The proposed dwelling would commendably use a mixture of materials and finishes.  Paragraph 13 from the permit applicant’s written submission reads as follows:
The dwelling will be clad in dark grey architectural iron cladding, natural stone and timber to blend in with the colours and tones of the local area.  The dwelling will be of contemporary style and design, similar to many of the new houses constructed in the area. 
13	None of the immediately abutting neighbouring properties have initiated any appeal to the Tribunal.  Ms Pelka is not an abutting neighbour, but lives further down the court.
14	There is ample provision for on-site car parking and considerable space available for new landscaping.
15	The fact that there is a slope to this site lends itself to a potential dwelling having some extent of second level, within reasonable limits.
16	Whilst the site is affected by a BMO, the Country Fire Authority (CFA) has provided its consent to the proposal, subject to the usual sort of permit conditions being imposed on any permit granted.  The Tribunal sees no reason to query or question this ‘bushfire-support’ for the proposed dwelling adopted by the key government authority here in the form of the CFA.   A Bushfire Management Plan has been prepared and approved, as part of this planning permit application.  
17	It was clarified at the hearing that the proposed new building must be built to a BAL29 bushfire safety level and that the application plans need this clarified (I have added a new permit condition to this effect).
18	Where the subject land is affected by the SLO2, I agree with Council that the key practical concerns as per the purposes of the SLO2 are:
•	Protecting the landscape values of the location.
•	Protecting the vistas along the approaches to these mountains and ranges.
•	Protecting the short and long distance views of Mt Buller from Mt Buller Road, other approach roads and public viewpoints. 
19	In its written submission, Council with its table set out at pages 18-20 itemises how it considers the proposal to meet the various relevant decision guidelines of the SLO2 - I find this analysis to be convincing.
20	In this particular context, I find persuasive and accept Council’s submission that the proposal is consistent with the SLO2.  The proposed height of the intended building at a little over eight metres is unremarkable.  The new dwelling will sit on a very large site and has been designed to be ‘built into the hill’, with considerable setbacks and space left for new landscaping.  Whilst the new dwelling will present as a double-storey building when viewed from two elevations, it will in practice present as a single storey building when viewed from the other two elevations.  The proposed use of finishes and materials is appropriate for the location.
21	Where Council submitted that the intended positioning of the new building is such that it will not infringe into any key view lines to or from Mt Buller, this was not in itself particularly challenged by Ms Pelka and I see no reason to query this myself.  The subject land is located a considerable distance (about 650 metres) from the intersection of the court with Mr Buller Road.
22	My findings in the paragraph above are reinforced by [57-58] from the permit applicant’s written submission, which read as follows:
The proposed dwelling is double-storey and has been designed to sit into the slope of the Subject Land.  This keeps the roofline below the ridge that rises behind the land to the west, and ensures that dwellings on the western side of the Subject Land maintain their views towards Mr Buller.
The proposed dwelling has minimal impact on any significant views form neighbouring properties or roadways.  Of note is that none of the properties adjoining the Subject Land to the west objected to the application for the proposed dwelling.
23	Whilst acknowledging the double storey nature and considerable size of the proposed dwelling, the point is that these aspects are not in themselves the main focus of the SLO2.  Rather, the SLO2 is more aiming to protect the local landscape values and the key view lines and vistas involved.
24	In totality then, I consider that these various positive features create a strong prima facie case that the proposal would be an acceptable planning outcome and should be approved.
25	However I then see three other issues still arising, as follows:
•	Is there any fatal inconsistency with the Section 52 Agreement N040366U which affects the subject land?
•	How the Tribunal should deal with the ‘neighbourhood character’ or ‘external amenity impacts’ concerns being raised by Ms Pelka?
•	If a permit is to issue, are any final minor design changes needed? 
26	I shall now address these further points in turn.
Role of the Section 52A Agreement N040366U
27	For the following reasons, assuming it is still on foot, I find the proposal to be consistent with the Section 52A Agreement N040366U (Agreement) that was discussed before me.   
28	By way of context, the Agreement was created on 3 September 1987 and (to quote from [9.2] of the Council written submission) “… purports to apply general siting, setback and design ‘guidelines’ to development of the Land (as well as other lots in the subdivision) and to stipulate permit conditions on future planning permits issued with respect to the Land”. 
29	First, at a very basic level, Council queries whether the Agreement is still in operation today, given that the new format Mansfield Planning Scheme has come into effect and the SLO2 arguably substantially overlaps with the contents of the Agreement.  This is in the situation where the Agreement states at point 2 that:
This agreement shall lapse on the coming into operation of a Planning Scheme for the Shire of Mansfield covering the land PROVIDED HOWEVER that should such a Planning Scheme not contain provisions similar to those contained in this Agreement then this Agreement shall continue to have full force and effect as to such provisions hereof not contained in the Planning Scheme.
30	This is fair query to raise and I agree there is a ‘debate to be had’ whether the introduction of the SLO2 has in effect made the Agreement redundant.  Having said that:
•		I note that as per of her oral submissions to me, Ms Bell indicated that the permit applicant accepts that the Agreement is still ‘relevant’.
•	I observe that the Agreement guidelines have a real focus on the detail of the ‘design response’, whereas the SLO2 more takes a ‘big picture’ approach to protecting the local significant view lines and vistas. 
31	Second and at a ‘first principles’ level, it is important to acknowledge that what we are talking about here are ‘guidelines’, not mandatory design requirements i.e. the choice of language is important.  Similarly, while the Agreement deals with some more detailed matters such as setbacks, each relevant guideline is set out using the discretionary terms ‘should’ or ‘should not’, as opposed to mandatory terms such as ‘must’ or ‘must not’. 
32	On this basis alone, whilst I can give some weight to how the proposal performs against the guidelines under the Agreement, these discretionary guidelines on common sense cannot be determinative in their role.
33	Third, at pages 13-17 of the Council written submission, Council as a matter of completeness assesses how the proposal compares to the various guidelines in the Agreement.  It is significant that in this regard the proposal is found to satisfy all relevant aspects of these guidelines.  
34	It is telling that during the hearing when I asked Ms Pelka how it can be said that the proposal breaches the Agreement in the face of this very positive assessment of it against the SLO2 guidelines found at pages 13-17, Ms Pelka was not able to give me any coherent response.
35	In summary then, the starting point is that there is some doubt whether the Agreement is still applicable, although I have observed that the Agreement has a somewhat different focus and is much more detailed than the ‘big picture’ focus of the SLO2.  If it is assumed that the Agreement is still applicable, I accept that the proposal satisfies its discretionary design guidelines.  In these circumstances, I see no need for the Tribunal here to carry out any definitive review of the status of the Agreement. 
Key purported issues raised by Ms Pelka of ‘neighbourhood character’ and ‘external amenity impacts’ 
36	It was argued by Ms Pelka that the proposed dwelling would be so large and visually dominating as to be fatally out of character with the alpine setting of Merrijig and have unreasonable amenity impacts on neighbours.  For the following reasons but subject to the proviso discussed further below, I find this line of argument misguided and unpersuasive.
37	As a basic starting point, I have already explained further above that the only two permit triggers here are under the BMO and the SLO2.  The proposal is as-of-right under the GRZ.
38	Accordingly, there is no proper planning basis at all here for Ms Pelka to run conventional ‘ResCode’ type of objections such as ‘neighbourhood character’ or ‘external amenity impacts’.  Hence on a strict view, Ms Pelka inherently cannot gain any ‘traction’ on these issues.
39	Even if the Tribunal was to loosely look at these points as a matter of ‘orderly planning’ and the Clause 65 criteria, it needs to be said that this is an exceptionally large lot at 2205 sqm.  It is common sense that a particularly large lot lends itself (within reasonable limits) to hosting a larger dwelling and vice-versa.  Certainly I see this as being the case on the facts here and I see no issue with the proposal being incompatible with the purposes of the SLO2.  
40	I would also observe in passing that because it will be the narrower end of the dwelling presenting to the end of the court, and noting the commendable mix of proposed finishes/building materials plus the available space for new landscaping in the front yard area, these factors will soften views of the new building from the court.  
41	Where Ms Pelka sought to rely on the proposed dwelling being bigger than most other existing dwellings along this court, this argument is a little dis-ingenuous when:
•	The proposal is as-of-right under the GRZ.
•	In any case the area of the subject land is much bigger than the typical lot size of most other properties along this court that have already had a house built on them.  
42	With respect to ‘external amenity impacts’, again strictly speaking this is not a relevant issue, given that there is no permit trigger under the GRZ.  However I observe in passing that:
•	The proposal satisfies the relevant ‘setbacks’ guideline in the Agreement.
•	None of the abutting neighbours are involved in this VCAT proceeding.
•	Ms Pelka’s own property lies further away, along the court.  
•	Ms Bell at the hearing queried whether Ms Pelka would in practice even be able to see the proposed dwelling (if built) from her own property, or even standing on the court in front of her own property.
Are any other design modifications justified?
43	I can summarise where these Reasons are now up to, as follows.  I have already explained further above why I see a strong prima facie case for the approval of the proposal.  I have then explained why the proposal is consistent with the Agreement (assuming the Agreement is still on foot) and why any purported ‘neighbourhood character’ or ‘external amenity impact’ type objections are misguided in these circumstances.
44	In totality then, I find that the proposal is deserving and that some form of approval should issue.  The final question then becomes whether, as a matter of ‘orderly planning’ and the Clause 65 criteria, any final design modifications are necessary?
45	As discussed near the end of the hearing, I find that one final change to the design is necessary.  That is, I find as a matter of ‘orderly planning’ and Clause 65 that the upper level front elevation of the proposed dwelling should have a modest (900 mm) upper level setback, to make this upper level present in a more visually recessive way.  I have added a new permit condition to this effect.  
Final points and conclusion
46	For the removal of any doubt, where Ms Pelka was critical of some aspects of how Council processed this planning permit application, this is not of any significant consequence for the purposes of my discretion here.  This has been a de novo (afresh) planning merits hearing and the Tribunal’s main focus has been doing a fresh appraisal of the planning merits of this proposal.  It is not my role to critique whether or not Council assessed the proposal was well as it in theory might have.
47	If Ms Pelka has concerns whether the building (if approved and built) might because of its size be used in an unlawful way, the Planning and Environment Act 1987 gives not just councils but neighbours ‘planning enforcement rights’ were this in theory to occur.  I note that paragraph 8.3 of the Council submission confirms that the potential use of ‘bed and breakfast’ on the site is an as-of-right use, provided no more than 10 persons are involved and the requisite car parking is provided.
48	Similarly where Ms Pelka expressed unhappiness at what she considered to be premature/illegal works occurring on the subject land on or about November 2019, this is again an issue outside of my role in this proceeding.  If Ms Pelka believes that the site currently needs ‘temporary safety fencing’ or the like, she should take this up with Council. 
49	To the extent that Ms Pelka either previously or at the hearing raised ‘traffic congestion’ concerns about the proposal, my view is that I have no discretion to consider same.  This is because of the proposal being as-of-right under the GRZ and the BMO/SLO2 not dealing at all with conventional ‘traffic congestion’ issues.  Likewise in relation to any ‘noise’ or ‘excessive glazing’ issues raised at any stage by Ms Pelka.
50	For the reasons set out above, I have made orders affirming that a permit shall issue for the proposal.

Philip Martin
Senior Member