VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No.P624/2020
Permit Application no. PL19/115	
CATCHWORDS	
Section 77 (Planning and Environment Act 1987); heritage significance; heritage character; shared view; building form; building setback. 	

APPLICANTS	Alan and Jan Vaughan	
responsible authority	Moyne Shire Council	
Referral AuthoritIES	Wannon Region Water Authority, Glenelg Hopkins Catchment Management Authority	
RESPONDENTS	Catherin Dundon and John Melville	
SUBJECT LAND	95 Gipps Street
PORT FAIRY  VIC  3284	
HEARING TYPE	Hearing (online) 	
DATE OF HEARING	24 February 2021	
DATE OF ORDER	20 October 2021	
CITATION	Vaughan v Moyne SC [2021] VCAT 1252   	

Order

1	In application P624/2020, the decision of the responsible authority in planning permit application PL19/115 is affirmed. No permit is granted.

Frank Dawson
Member			

Appearances
For applicant	Ms Kristin Richardson, solicitor of Maddocks Lawyers.
She called evidence from Mr Brodie Blades, urban designer.
Mr Daryl Baker (observing).
Mr Steve Myers of Myers Planning Group (observing).	
For responsible authority	Mr Simon D’Angelo, solicitor of Marcus Lane Group.
Ms Robyn Olsen (observing).	
For referral authorities

For respondent	No appearance.

Ms Catherine Dundon in person.	

Information
Description of proposal	Demolition of the existing dwelling and construction of a double storey dwelling. The proposed dwelling is contemporary in style and includes a triple garage built to the southern side boundary and set back one metre from Gipps Street. The entrance to the garage is at 900 to the street with the side of the garage facing the street clad in stone. There are two windows proposed in the front façade of the garage (refer to Figure 2).
External materials consist of weatherboard cladding and feature stonework at the front façade. The overall height of the proposed dwelling is 6.92 metres with the front (western) façade at a height of 3.77 metres and a height of 5.83 metres on the eastern façade facing the Moyne River.
The proposed dwelling has a rear ground floor deck, set back 11.5 metres from the Moyne River.
Building site coverage is 28%.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Moyne Planning Scheme	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1).
Design and Development Overlay – Schedule 9 (DDO9).
Land Subject to Inundation Overlay – Schedule 2 (LSIO2).
Floodway Overlay – Schedule 2 (FO2).
Heritage Overlay (HO51).	
Permit requirements	Clause 43.01-1 (a permit is required to demolish or remove a building in the Heritage Overlay).
Clause 43.01-1 (a permit is required to construct a building or construct or carry out works in the Heritage Overlay).
Clause 43.02-2 (a permit is required to construct a building or construct or carry out works).	
Land description	The land is centrally located in Port Fairy, on the eastern side of Gipps Street adjacent to the Moyne River, approximately 60 metres south of Regent Street.
The frontage to Gipps Street is 13.87 metres and the total area of the land is 635m2.
The land slopes down from the street towards the Moyne River with an overall fall of approximately 2.2 metres.
Development on the land consists of a single storey brick veneer dwelling with a pitched roof, characteristic of the 1960’s to 1970’s era. The existing development includes a single car garage located near the northern side boundary at the end of a driveway that extends from the front of the land, past the northern side of the dwelling.
Surrounding development consists of an early colonial/Victorian style dwelling to the south with a double storey contemporary component at the rear. This property offers bed and breakfast accommodation. To the north is a single-story weatherboard cottage with a contemporary double storey component at the rear. The cottage is available for tourist accommodation. All the buildings along the eastern side of Gipps Street have rear gardens that abut the Moyne River.
The western side of Gipps Street contains a series of single and double storey buildings, generally from the early 20th Century or Victorian era, with some contemporary additions. Many of the buildings are available for holiday rental.
All of the buildings on both sides of Gipps Street in the vicinity of the subject land are included in Heritage Overlay (HO51), referred to as the Gipps Street and Moyne River Precinct.	
Tribunal inspection	The Tribunal inspected the subject land and the surrounding area.   	

Reasons

what is this proceeding about?
1	In February 2020, the Moyne Shire Council determine to refuse a planning permit application for the demolition of a dwelling and development of a dwelling at 95 Gipps Street, Port Fairy. The permit applicants, Alan and Jan Vaughan, request the Tribunal to review the Council’s decision. Objectors to the proposal, Catherine Dundon and John Melville who are the occupants of the adjoining dwelling to the north, support the Council’s decision.
2	In this application, a planning permit is required because the subject land is within Heritage Overlay HO51, described as the Gipps Street and Moyne River Precinct, shown in Map 1.

Map 1: Location of 95 Gipps Street in the context of the Heritage Overlay (HO51)

3	Council refused the proposal on four grounds, as follows:
i.	The proposal does not provide an acceptable outcome or net community benefit in terms of the Planning Policy Framework and Local Planning Policy frameworks.
ii.	The proposal does not provide an appropriate response to the provisions of the Design and Development Overlay Schedule 9 and Heritage Overlay.
iii.	The proposal does not provide for the equitable sharing of views and results in unacceptable amenity impacts on adjoining properties.
iv.	The proposal is not compatible with the neighbourhood character of the area.
4	In supporting the Council’s position, the respondents (objectors) submit the proposed dwelling encroaches further east than the generally prevailing building setbacks along the western side of the Moyne River. The respondents consider the proposal will block oblique views to the south towards the port area. They submit the views along the river to the north and south are as significant as the eastern views obtained directly across the river. They also submit the consistency of setbacks along the river frontage is an indication of the value afforded to these oblique views by residents.
5	The permit applicants submit the proposal is an acceptable planning outcome for reasons set out at paragraph 7 of Ms Richardson’s submission:
i.	The proposal represents an acceptable outcome having regard to its physical and policy context.
ii.	The proposal supports State and local policy seeking to direct new residential development to existing coastal settlements, respect and maintain valued neighbourhood and coastal character, and minimise detrimental impacts on neighbouring properties.
iii.	The proposal enjoys a high level of compliance with the relevant planning controls, including DDO9.
iv.	The proposal’s design response, including its scale, height, setbacks, roof forms and mix of colours and materials is respectful of, and compatible with, the prevailing character of the area, including the heritage character of the Gipps Street and Moyne River Heritage Precinct. The proposal is ‘in-keeping’ with the character of development on the eastern side of Gipps Street and will not visually dominate or detract from the heritage character of Gipps Street or the Moyne River environs.
v.	The proposal allows for views of the Moyne River from Gipps Street and an equitable sharing of views between properties.
vi.	The proposal does not result in any unacceptable off-site amenity impacts.
6	There is agreement between the parties that the demolition of the existing dwelling is not contentious and is acceptable in the context of the non-contributory heritage significance of the site. Therefore, my consideration of this application is directed to whether the proposed dwelling respects the significance of the heritage place. 
7	The following extracts are from the Heritage Citation Report and outline the significance of the Gipps Street and Moyne River precinct:
The Gipps Street and Moyne River Precinct is of historical significance as one of the earliest points of permanent settlement in the Port Phillip District and for the establishment of Belfast as a rare, privately developed town prior to Separation of the Colony of Victoria from New South Wales. Its successful role as a port for assisted and free immigration and the importing of goods and exporting of produce, particularly wool was critical for the historical development of the town and its hinterland (page 76).
The properties along the river, once less desirable because of their proximity to the river than other parts of the town are now highly desirable for their views of the river. Land has been subdivided, industrial buildings converted, existing dwellings altered and extended, and new accommodation built. This has, since the mid 1970s, been managed by the municipality through broadly accepted heritage planning controls. Some contentious developments have been opposed by the community. Amongst the first significant towns in Victoria and Australia, the conservation of Port Fairy, especially along Gipps Street and the River, is generally acknowledged as a success overall (page 68).
8	Considering the above information, the relevant provisions of the planning scheme and the respective positions of the parties to this proceeding, the key issues are:
•	Does the form and design of the proposed dwelling respect the significance of the heritage place?
•	Does the proposed development offer an acceptable response to the Port Fairy Design Guidelines Character Area 3 and the applicable local policies referred to in Schedule 9 to the Design and Development Overlay and the objectives and policies for the Port Fairy Residential Heritage Precincts at Clause 22.01-2?
•	Does the proposal provide for an equitable sharing of views?
9	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and evidence presented regarding the applicable policies and provisions of the Moyne Planning Scheme, I find the proposed development does not offer an acceptable response to the heritage significance of the HO51 heritage place, nor does the proposal provide for an equitable sharing of the view along the Moyne River. Accordingly, I have decided to affirm the Council’s decision and refuse the grant of a permit.  My reasons follow.
heritage significance 
10	Both sides of Gipps Street contain examples of original buildings associated with the port including warehouses, commercial premises, and residences. All these buildings are now used for residential and tourism purposes, rental accommodation, overnight accommodation, restaurants and the like.
11	The existing heritage buildings are for the most part well maintained, many with contemporary extensions or additions that respect the external appearance of the original buildings. Although the Gipps Street precinct has become more residential compared to the maritime port that functioned during the 19th century and well into the 20th century, the scale and character of the original working port remains recognisable. 
12	My observation is the current Gipps Street and Moyne River precinct is the product of the consistent application of heritage controls and community recognition of the significance of this heritage place.
13	The existing dwelling on the subject land at 95 Gipps Street sits well back from the road, with a ‘low scale’ presence in the streetscape. The single storey brick dwelling dates from the 1970’s and is nominated as a ‘non-contributory’ heritage place in the HO51 precinct. The existing dwelling is an anomaly in the context of the Victorian style of buildings (and their contemporary additions) along the street, where the predominant theme is one or two storey buildings with exterior materials of painted weatherboard, painted or unpainted stonework and pitched or hipped roof forms generally clad with corrugated iron.
14	93 and 97 Gipps Street, on either side of the subject land, contain timber cottages listed in the Gipps Street and Moyne River Precinct Place Citation Report 2015 as buildings that are significant to the precinct.
15	The list of significant places at page 71 of the above report cites the two cottages as follows:
–	Maisie's Cottage, Timber Cottage (excluding rear extension), 93 Gipps Street.
–	Former Cobbler's Shop, Timber Cottage (excluding modern rear addition), 97 Gipps Street.
16	Both cottages are located close to their respective front boundaries in Gipps Street and appear to be used for short stay accommodation. As such, both of these buildings have a noticeable presence in the street, flanked on either side by Norfolk Island Pine street-trees. During my inspection, I noted the combination of original cottages and the mature street trees is typical of the maritime character of Gipps Street.  
17	The proposed dwelling at number 95 is also positioned close to the front boundary with Gipps Street. The plans show a landscaped setback of 1 metre, which compares with the zero setback distance of the cottage at number 97 (perhaps reflecting it’s past commercial use) and 2.5 metres at number 93.
18	The existing arrangement of buildings between the three sites is shown in the aerial photograph at Figure 1 below.  

Figure 1: Aerial of existing arrangement of buildings at 93, 95 and 97 Gipps Street (Source - Nearmap)
19	The elevations in Figures 2 and 3 are from the application plans and illustrate the proposed west and north elevations.

Figure 2: 95 Gipps Street: proposed dwelling - west (front) elevation.

Figure 3: 95 Gipps Street - proposed dwelling - north elevation.
20	The most prominent building element at the front of the proposed dwelling is the garage, containing two roller doors facing north. The side of the garage facing the street is disguised with feature stone cladding and two windows, however, despite the intention to convey the impression of a dwelling façade, I consider the proposed garage will dominate the front part of the dwelling and present to the street as a large garage. 
 
Figure 4: Graphical representation of the front of the proposed dwelling at 95 Gipps Street. 
(Source: Brodie Blades - Urban design expert evidence - February 2021, page 4).

21	During my inspection, I noted examples along the eastern side of Gipps Street of garages visible from the street. Mostly, however, these are single or double garages recessed behind the front of the dwelling, or in some instances, sitting below the view line from the street. The garages are subsidiary to the dwellings and do not dominate the streetscape. Where there are examples of garages at the front boundary, such as at 69A and 69B, these structures are clearly identified as single garages in scale with the adjacent dwellings.
22	I find the projection of the proposed triple garage in front of the proposed dwelling almost to the front boundary does not give adequate regard to the presence of the two cottages with heritage significance situated either side of the subject land. I consider a more respectful design approach is required by, for example, integrating the garage with the dwelling, and recessing the front building a sufficient distance to retain the streetscape presence and visual connection between the cottages at 93 and 97.
Response to design guidelines at ddo9
23	Schedule 9 to the Design and Development Overlay (DDO9) refers to Gipps Street and Moyne River Area - East River Side and is derived from the Port Fairy Design Guidelines – 2001, particularly Character Area 3.
24	In my assessment, the Schedule 9 design guidelines are directed toward achieving built form outcomes that retain the integrity of the port precinct. The significant elements that define the port are the remaining original buildings adjacent to the Moyne River, the prominent Norfolk Island pines along Gipps Street and views of the port obtained along the river. 
25	These elements are reflected in the design objectives for DDO9:
•	To ensure that new development retains the area’s heritage qualities, allows glimpses through to the river and is visually subservient to the river the surrounding vegetation.
•	To respect the historic built character of the area.
•	To acknowledge the river environment.
•	To protect the views of the river from adjoining properties.
•	To allow for views of the river from the street and an equitable sharing of views between properties.
•	To ensure that development does not visually overwhelm or compete with the river or the Norfolk Island Pines when viewed from the foreshore or the bridges.
•	To protect the contribution made by the grass verges to this area. To minimise the detrimental impact of car parking.
26	The following extract from the 2015 heritage citation from 2015 gives some background to the above design objectives:
While there have been some inappropriate alterations and additions to the building fabric and while there are some intrusive buildings overall, the Precinct retains a high degree of integrity, is in good condition and is relatively intact to its later twentieth century character when its heritage values were first recognised by the 1976 Cox Tanner Report.
27	From my inspection of Gipps Street and the river environment, it is evident to me that Gipps Street today remains consistent with the above description.
28	The proposed dwelling shows an overall building height that does not overwhelm other buildings along the river frontage, taking into consideration the mix of pitched, gabled and flat roofed buildings. However, it is the projection of the building towards the river, combined with the bulk and height of the rear deck across the site that I find unacceptable in the context of DDO9.
29	The location of the proposed deck is well above ground level, and the enclosure of the deck and the gable form of roof above all contribute to visual prominence over existing development. I accept that the floor height of the proposed deck is influenced by the flood level requirement of the Land Subject to Inundation Overlay, however, I do not consider this is justification for the dominance of proposed deck. 
30	A more open verandah, with the main building façade and roof set behind the verandah is a design response I consider more likely to respect existing development along the Moyne River precinct.
31	Views of the river from Gipps Street between buildings is generally more restricted due mainly to the bulk of contemporary dwelling additions and garages, and their construction to one side boundary. In some cases, the narrow width of lots restricts the opportunity to set buildings back from the side boundary. With a lot width of 13.8 metres, the 95 Gipps Street falls into this category.
32	The proposed dwelling retains a sight line between buildings along the northern side boundary, similar to the view line provided by the existing dwelling. As I have observed, views through to the river are often restricted, however, in the case of the proposed development, the view line from Gipps Street through to the river is modified, but retained.
equitable sharing of views
33	A key aspect of this proceeding is the issue of equitable sharing of views. Consideration of views is included in the design objectives of DDO9 cited above and the applicable design objective concerning views of the Moyne River is:
To allow for views of the river ... and an equitable sharing of views between properties. 
34	The context of amenity, the sharing of views is also addressed at Clause 21.05, which contains a general strategy to encourage a reasonable sharing of views:
Protect residential amenity by encouraging a reasonable sharing of views between new and established properties, particularly where the view is of a significant landscape feature, including views of the ocean and coastal shoreline, coastal cliffs and sand dunes, rivers and estuaries and notable cultural and scenic landscape features.
35	Ms Richardson’s submission for the permit applicant maintains at paragraph 70.5 that;
the rear setback to the Moyne River results in a depth of built form that will continue the broader development pattern already evident on the eastern side of Gipps Street.
36	Concerning the maintenance of equitable view sharing, Ms Richardson submits that setbacks from the river are discretionary, not mandatory and therefore should be assessed on a case by case basis. Ms Richardson points out that aerial photography reveals a range of river setbacks, illustrating that a building can sit forward of another. The issue is whether the effect on views is inequitable.
37	Dwellings along Gipps Street that back onto the river all enjoy direct eastern views across the Moyne River to the East Beach dune that separates the river from Bass Strait. Griffiths Street, which runs adjacent to the eastern bank of the river is a public domain that affords western views across the river to the properties along Gipps Street. The visual impression gained from looking across the river from Griffiths Street is a series of attractive original and contemporary buildings, generally set back from the river bank with a backdrop of large Norfolk Island pines. To coin a tourism term, this is a ‘signature’ view of the river, sweeping from the bridge crossing to the north to the Port Fairy Riverwalk bridge to the south and the port precinct beyond. 
38	Properties along Gipps Street facing the river also obtain oblique views to the north and south along the river. It is clear from the distribution of buildings along this western river bank that oblique views are valued by local residents. Generally, equity considerations in respect to sharing of views will relate to single primary view, such as a viewline to the sea, or some other prominent landscape feature such as a hill or valley. 
39	At Port Fairy, the appreciation of views is more complex, taking in both the primary view directly across the river and oblique views along the river, particularly south towards the port precinct.
40	Protection of the oblique viewlines may be considered unreasonable, given the unobstructed direct views available across the river, however, taking into consideration the heritage significance of the Port precinct, it is apparent that property owners along the eastern side of Gipps Street have generally respected equitable access to the oblique view by maintaining (with some heritage exceptions) setback consistency along the river bank.
41	In the northern section of Gipps Street, where the subject land is located, lots tend to be ‘deeper’ than the smaller lots to the south, closer to the port. In both sections, however, there is a demonstrable consistency in the setback of buildings from the river. Figure 5, taken from page 14 of Mr D’Angelo’s submission for the Council illustrates this point.

Figure 5: Building setbacks north and south of the subject land at 95 Gipps Street.
42	Mr D’Angelo cites Appendix 3 from Mr Blades’ evidence, which depicts the screening effect of the proposed enclosed deck on the oblique viewline from number 97 to the north.

Figure 6: Reproduction of Appendix C from Mr Blade's evidence statement.
43	On the issue of the interpretation of equity in relation to views, Mr D’Angelo states at paragraphs 168 and 169:
168.	To what degree one should benefit from a view in order to be considered ‘equitable’ or ‘reasonably shared’ is difficult to quantify, however simply put, if the siting of the dwelling better reflected the established river setbacks, or even if more substantial side boundary setbacks were applied along with appropriate design techniques to minimise heights, it would undoubtedly be a far more equitable outcome in allowing a similar river view to be enjoyed by all three properties.
169. 	It is Council’s position that this is what the DDO9 and Design Guidelines intend.
44	I find the evidence ‘on the ground’ supports the view that in this location, the oblique views along the river are important for the local community, both from the public and private domains. In my assessment, a reasonable and equitable solution can be achieved by a setback that respects the viewlines enjoyed by adjoining residents.
45	In my assessment, the proposed design appropriates the oblique viewline to an unreasonable degree and therefore the rear section of the proposed dwelling should be less dominant in relation to building form. As I have indicated earlier in my reasons, I find a more open deck structure, set back to align more closely with existing development along this section of the river and stepped back in terms of building height would achieve a more equitable design outcome.
Conclusion
46	For the reasons given above, I have decided to affirm the Council’s decision and refuse the grant of a permit.  

Frank Dawson
Member