VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11483/2021
Permit Application no.Planning Permit Application P21/1552 	
CATCHWORDS	
Section 79 Planning and Environment Act 1987; Mornington Peninsula Planning Scheme; Design and Development Overlay; Vegetation Protection Overlay; Dwelling; Neighbourhood character; Shared views.	

Applicant	Shane Smith	

responsible authority	Mornington Peninsula Shire Council	
Respondents	Hayley Rose	
	Matthew George Hayward	
	Marguerite Natoli & Simon Spizzo	
	Stuart Carroll	

SUBJECT LAND	38 Watts Parade
MOUNT ELIZA VIC 3930	

HEARING TYPE	Hearing	

DATEs OF HEARING	2, 3 & 8 March 2022	

DATE OF ORDER	21 April 2022	

CITATION	Smith v Mornington Peninsula SC [2022] VCAT 371	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	CHD Design Pty Ltd	
•	Drawing numbers:	01-15	
•	Revision:	C	
•	Dated:	February 2022	
2	In application P11483/2021 the decision of the responsible authority is set aside.
3	In planning permit application P21/1552 a permit is granted and directed to be issued for the land at 38 Watts Parade, Mount Eliza in accordance with the conditions set out in the Appendix.  The permit allows:
•	The construction of a dwelling;
•	the construction, use and illumination of a private tennis court;
•	the removal of vegetation; and 
•	the construction and carrying out of works
in accordance with the endorsed plans.

Bill Sibonis
Senior Member			

Appearances
For Shane Smith	Mr N Sutton, Lawyer of Norton Rose Fulbright.  Evidence was called from:
•	Ms S Rigo, Town Planner of Hansen Partnership Pty Ltd
•	Mr J Patrick, Landscape Architect of John Patrick Landscape Architects Pty Ltd
•	Mr C Goss, Architect of Orbit Solutions Pty Ltd	
For Mornington Peninsula Shire Council	Mr G Gilfedder, Town Planner of Currie and Brown Pty Ltd	
For M Natoli & S Spizzo	Ms C Robertson of counsel, instructed by Nickas Legal	
For H Rose	Mr N Sissons, Lawyer of HWL Ebsworth Lawyers	
Mr S Carroll & Mr M Hayward	Both in person	

Information
Description of proposal	The construction of a dwelling and associated tennis court and the removal of vegetation.	
Nature of proceeding	Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.	
Planning scheme	Mornington Peninsula Planning Scheme (Planning Scheme)	
Zone and overlays	General Residential Zone – Schedule 1, Mornington Peninsula Town Areas (GRZ1)
Design and Development Overlay – Schedule 4, Environmental Design (DDO4)
Vegetation Protection Overlay – Schedule 1, Township Vegetation (VPO1)	
Permit requirements	Cl. 43.02-2 (the construction of a building and the construction and carrying out of works on land in DDO4)
Cl. 42.02-2 (the removal of vegetation on land in VPO1)
Cl. 52.21 (the construction, use and illumination of a tennis court)	
Key scheme policies and provisions	Cl. 02, 11, 12, 15, 16, 32.08, 42.02, 43.02, 52.21, 52.06 and 65	
Land description	The subject land is located on the corner of Watts Parade and Jacksons Road in Mount Eliza.  It is an irregular lot with a 31.38 metre frontage, an 11.95 metre corner splay and a sideage to Jacksons Road of 47.11 metres.  The land has an overall area of approximately 2294 square metres and a fall of 7.0 metres from south-east to north-west.  A two-storey dwelling occupies the site.  Surrounding land similarly supports two-storey dwellings.	
Tribunal inspection	A site inspection was undertaken after the hearing and included the properties at 25A Jacksons Road and 36 Watts Parade.	
Reasons
What is this proceeding about?
1	This proceeding concerns an application to the Tribunal for a review of the failure of the Mornington Peninsula Shire Council (Council) to grant a permit for a dwelling, tennis court, and removal of vegetation on the subject land.
2	Before the hearing, the applicant prepared and circulated amended plans of the proposal showing a number of modifications including a reduction in the height of the dwelling, a change to the architectural composition, relocation of the swimming pool, removal of a second vehicle crossover and removal of selected tennis court lights.  At the commencement of the hearing, the planning application was amended by substituting the amended plans for application plans.
3	The Council has considered the amended proposal and determined that, had this application for review not been lodged, it would have granted a permit, subject to conditions.
4	The respondents oppose a permit being granted.  Their grounds refer to matters of building height, setbacks, tree removal, earthworks, amenity (overlooking, noise, light spill), view sharing and neighbourhood character.
5	Based on the submissions, the key issues in this proceeding may be expressed as follows:
•	Is the development an acceptable response to the character of the neighbourhood?
•	Does the development protect shared viewlines?
•	Will the development result in any unacceptable amenity impacts?
6	Having considered the submissions and evidence, with regard to the relevant policies and provisions of the Planning Scheme, assisted by my inspection, I have determined to set aside the Council’s decision and grant a permit.  My reasons follow.
what is the relevant planning context?
7	The subject land is in the GRZ1.  A permit is not required pursuant to the provisions of this zone as the development comprises a single dwelling and the site is greater than 500 square metres.
8	The land is also within DDO4.  Relevant design objectives include:
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.
9	Pursuant to clause 2.0 of the schedule to DDO4, an application to construct a building or construct or carry out works should meet the General requirements of the schedule except where it has been demonstrated to the satisfaction of the responsible authority that compliance is unreasonable or unnecessary and no loss of amenity will result.
10	In the circumstances of this application, the General requirements which are not met are as follows:
•	A wall height of 5.5 metres or less.  Wall heights exceed 5.5 metres.
•	A building height of 6.0 metres or less.  The building height exceeds 6.0 metres.
•	The difference between finished ground level and natural ground level as a result of excavation and filling must not exceed one metre and must be properly battered or retained.  The earthworks, in part, will result in a finished ground level which is more than one metre above the natural ground level.
•	A building containing more than one storey must not provide access to a roof area, deck, verandah or the like which has a level higher than the floor level of the upper storey.  The development includes a roof deck above the first-floor level.
11	Accordingly, a permit is required for the proposed development pursuant to the provisions of DDO4.
12	There is a dispute between the parties as to whether the following General requirement is met, which is a matter that I address in the reasons:
Buildings must be setback [sic] at least 15 metres from a road frontage and 5 metres from any side road boundary.  This may be reduced to 7.5 metres from a road frontage where the lot has an area of less than 1500 square metres.
13	The DDO4 also includes the following mandatory requirements:
Sewerage and drainage
All new dwellings must be connected to:
•	A reticulated sewerage system or an alternative approved by the responsible authority.
•	A reticulated drainage system or an alternative approved by the responsible authority.
These requirements cannot be varied with a permit.
Maximum building height
A building must have a maximum building height of no more than 8 metres and must contain no more than 2 storeys above natural ground level.
This does not apply to any of the following:
•	A building in the area located to the north of a boundary defined by Ellerina Road West, Bruce Road, the Nepean Highway, Mornington- Flinders Road, Bittern- Dromana Road and Disney Street but only if the building is 2 storeys or less above natural ground level.
…
14	The dwelling will be connected to reticulated drainage and sewerage systems.  The Council confirmed that the exemption to the mandatory building height requirement specified above applies in this case as the subject land is north of the identified boundary and the dwelling is two storeys above natural ground level.
15	The following provision also applies:
In the General Residential Zone or Neighbourhood Residential Zone, an application to construct a building or construct or carry out works associated with one dwelling on a lot:
•	Must comply with Clause 54.01.
•	Must meet all of the objectives and should meet all of the standards of Clause 54.02, 54.03-3, 54.03-4, 54.03-5, 54.03-6, 54.03-7; 54.04-2; 54.04-3, 54.04-4, 54.04-5, 54.04-6, 54.05, 54.06-1.
•	Must meet the objectives of Clauses 54.03-1, 54.03-2 and 54.04-1.
16	Clause 6.0 of the schedule to DDO4 provides the following relevant decision guidelines which must be considered, as appropriate:
•	The design objectives of this schedule.
•	Whether any loss of amenity will result from a variation to the requirements of this schedule.
•	Whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms, that follow the natural slope of the land and reduce the need for site excavation of filling.
17	The VPO1 also affects the site.  The vegetation protection objectives relevantly include:
•	To recognise areas where substantial vegetation cover is the dominant visual and environmental feature.
•	To ensure that subdivision and development proposals have proper regard to the landscape character of township areas.
•	To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.
18	Pursuant to clause 3.0 of the schedule to VPO1, a permit is required to remove, destroy or lop any vegetation, and specified exemptions apply.  The Arboricultural Impact Assessment accompanying the amended plans nominates the removal of twenty trees.  Of these, seven require permission for removal pursuant to the provisions of the VPO1, and all have been identified in the Arboricultural Impact Assessment as being of low retention value.
Is the development an acceptable response to the character of the neighbourhood?
19	The Planning Scheme does not include any neighbourhood character policy, nor is there any reference to a neighbourhood character study or similar.  That said, submissions and Ms Rigo’s evidence referred to Amendment C219 to the Planning Scheme which proposes to implement the Housing and Settlement Strategy Refresh and the Neighbourhood Character Study and Guidelines.  While the Amendment has undergone exhibition, the Council has not yet considered submissions and the Amendment is not at a stage in the process where it can be considered a seriously entertained planning proposal.
20	In addition to State policy within the Planning Policy Framework at clauses 15.01S, 15.01L and 15.02S which seek built form outcomes that are site responsive and make a positive neighbourhood character contribution, specific guidance is found in the design objectives and decision guidelines of DDO4.  Relevantly, this guidance can be summarised as follows:
•	ensuring development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting
•	ensuring 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
•	consideration is given to whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs, including split level and staggered building forms that follow the natural slope of the land and reduce the need for excavation or filling.
21	Assisted by my site inspection, I agree with Ms Rigo’s description of the neighbourhood as being characterised by the following:
•	a prevailing subdivision pattern comprising large lots containing large single dwellings in substantial garden settings
•	a diversity of architectural styles, with the presence of swimming pools and tennis courts being evident
•	dwellings on the south-east side of Watts Parade being located to the rear of sites, in an elevated position to take advantage of bay views
•	dwellings on the north-western side of Watts Parade being located proximate to the road frontage, again in an elevated position to take advantage of bay views
•	a variation in setbacks along Jacksons Road, with dwellings on the north-eastern side positioned closer to the street than those on the south-western side (being the same side as the subject land)
•	the existence of canopy vegetation and a variety of garden styles, with an overall vegetated character being evident
•	variation in the visibility of dwellings dependent on topography, siting of built form and the nature of vegetation.
22	Based on the submissions, the principal neighbourhood character considerations are those relating to the dwelling’s siting relative to Jacksons Road, the building height and scale, and the extent of earthworks.  Additionally, some concerns were expressed in respect of the removal of selected trees.
23	Given the diversity of architectural styles evident in this neighbourhood, the contemporary design of the proposed dwelling is acceptable, subject to the detailing of external finishes and materials.
Jacksons Road setback
24	A key matter in dispute between the parties is the acceptability or otherwise of the dwelling’s setback to Jacksons Road, nominated on the plans as ranging between 7.01 metres and 9.26 metres on the plans due the splayed boundary alignment.  While supportive of the development overall, the Council considers that the minimum setback from Jacksons Road should be 9.25 metres, to be consistent with that of the previously approved development on this site.  The respondents submitted that the minimum setback should be 15.0 metres to comply with the General requirement of DDO4 for a frontage setback.  It is their position that the frontage of the site is Jacksons Road and not Watts Parade for reasons which include:
•	the dwelling has an entry door facing Jacksons Road
•	the entry is ‘grand’, being flanked by water features and curved walls
•	the widening of the driveway directs pedestrians to the entry door and is not solely for use by those persons who drive to the site
•	the entry from Watts Parade is for the convenience of occupants only.  It is circuitous and necessitates traversing the tennis court
•	while there is a large entry foyer, it is set well into the ground floor of the dwelling and is located behind the outdoor patio
•	it is not uncommon for dwellings to be sited to face their secluded private open space, particularly when it allows views beyond to the bay
•	a setback of 15.0 metres is achievable, given the substantial site area, and would be in keeping with the deeper setbacks of existing dwellings on this side of the street.
25	The applicant’s submission, and Ms Rigo’s evidence, is that the site’s frontage is to Watts Parade and that the proposed setback to Jacksons Road is acceptable for reasons which include:
•	there is diversity in the range of setbacks to Jacksons Road, from 7.0 metres through to 15.0 metres and greater
•	while the south-western side of Jacksons Road has deeper setbacks than the opposite (north-eastern) side, the streetscape comprises both sides
•	the dwelling is designed to face Watts Parade, with a side presentation to Jacksons Road.  The elevation to Watts Parade presents ‘an entirely activated, purposeful and symmetrical presentation to this address’
•	Watts Parade is the narrower of the two road abuttals
•	the site’s address is to Watts Parade and the proposal will not alter this
•	the existence of an entry door to the Jacksons Road side elevation is not uncommon for a corner lot
•	there is no pedestrian gate facing Jacksons Road, only a vehicle entry
•	the design encourages visitors to park in the driveway and enter the dwelling from what is the ‘back of house’.  The large entry foyer is further within the dwelling, has a presentation to Watts Parade and includes the stairs to the upper level
•	it would be unusual to have the widest abuttal as the frontage, resulting in a requirement for a 15.0 metre setback, with the consequence being that built form could be sited 5.0 metres from Watts Parade without triggering a permit.  Such an outcome would not be in keeping with the existing character and pattern of development.  There would be no planning benefit.
26	The relevant General requirement reads:
Buildings must be setback [sic] at least 15 metres from a road frontage and 5 metres from any side road boundary. This may be reduced to 7.5 metres from a road frontage where the lot has an area of less than 1500 square metres.
27	Clause 73.01, General terms, provides the following definition of the term ‘frontage’:
The road alignment at the front of a lot. If a lot abuts two or more roads, the one to which the building, or proposed building, faces.
28	As this is a corner lot which abuts two roads, what needs to be determined is which road the building faces.  When regard is had to the definition at clause 73.01, consideration of such matters as the site’s address, the width of the abuttal, and the location of the entry are, technically, not relevant.  What is to be considered, and decided, is which of the two roads the proposed building faces.  This is dependent on the design of the building.
29	I agree with the applicant’s submissions and accept Ms Rigo’s evidence, that the proposed dwelling faces Watts Parade.  The Jacksons Road elevation, having regard to its design and presentation, reads as a side elevation.  At ground level there is an entry door and steps which rise from the driveway level.  On either side are walls associated with the garage and the home office.  The garage wall is blank and while the home office appears to have a window in this elevation, it is not clear in the plans.  In any event, in front of these walls is a Tasmanian Oak timber screen, resulting in a largely inactive presentation to the road.  With respect to the low curved walls and the water features which flank the steps and entry, while these may identify the location of this entry door, they are not determinative in the assessment of which road the building faces.  Further, while the plans appear to show glazing at the ground floor level of this elevation, reference to the corresponding annotation confirms that this is a glass balustrade and not glazing (fenestration) in the walls of the dwelling.
30	At the first-floor level, facing Jacksons Road, is the blank wall of the rumpus room and the side wall of the living room which comprises a length of blank wall and glazing which is labelled as ‘windows and doors’.
31	In contrast, the north-west elevation, oriented toward Watts Parade is designed in a manner that presents an extensive amount of glazing at both ground and first-floor levels, together with outdoor dining areas in the form of balconies and a patio.  It is an evident response to the site’s aspect toward the bay and a design that enables it to maximise views in this direction.
32	I do not disagree with submissions that the entrance for pedestrians from Watts Parade is not one with a direct path and is unusual in the fact that it necessitates traversing the tennis court.  I also agree that, in practice, occupants and visitors are more likely to use the Jacksons Road entry than the Watts Parade entry, given it provides more direct access into the dwelling, and is proximate to the driveway and car parking area.  However, the location of the entry is not referenced in the definition of frontage provided by the Planning Scheme.  What is referenced is the orientation of the dwelling.
33	Based on the design response, in my opinion, it is evident that the building faces Watts Parade.  This is apparent from the comparatively high level of glazing, activation and outlook relative to the more utilitarian elevation facing Jacksons Road.  The latter presents the vehicle entry, a pedestrian door flanked by inactive elevations, a significant length of blank wall at the upper level, an area of glazing (which is, in relative terms, a minor element of the overall elevation), and the narrow edges of the patio and balcony.  For the purposes of the relevant DDO4 provision, I do not consider the dwelling faces Jacksons Road.  This is the dwelling’s side elevation.
34	My conclusion, therefore, is that the building faces Watts Parade.  Accordingly, for the purposes of DDO4, the relevant General requirement is that specifying a 15.0 metre setback from Watts Parade and 5.0 metres from Jacksons Road.  The proposal meets this requirement.  That said, for reasons which I will come to shortly, the setback to Jacksons Road needs to be increased in order to achieve an acceptable response to the streetscape and neighbourhood character.
Height
35	The development exceeds the wall height and building height specified in the General requirements of DDO4.  While the building has a maximum height of 9.45 metres, as stated in Ms Rigo’s evidence this is not uniform across the dwelling given the sloping topography and the proposed earthworks (cut and fill).  The building height (measured from natural ground level, in accordance with the relevant definition at clause 73.01) ranges between 7.0 metres to 9.45 metres, with the greater part being generally in the order of 8.4 – 8.5 metres.  There is no question that this is a tall and large building.  Indeed, the evidence noted this.
36	Contextually, however, this is a neighbourhood where large dwellings are a characteristic.  This was detailed in the submissions and evidence and is consistent with my observations during the site inspection.
37	The acceptability or otherwise of a building’s height is, in part, a function of its design and the siting.  While the maximum height is to the projecting roof covering of the first-floor balcony and not to a solid wall element, the overall presentation of the dwelling is that of a large and robust structure.
38	Given the height is at its lowest at the south-eastern elevation, facing Mr Carroll’s property, and given the separation afforded by the development’s setback from its own boundary and the width of the intervening driveway, the height of this elevation, from a character perspective, is acceptable.  I will return to the impacts on views in a later section of these reasons.
39	Similarly, the siting of the dwelling relative to that of the adjoining dwelling to the south-west, at 36 Watts Parade, is acceptable, noting the existing pattern evident on sites in this road, where dwellings are elevated to take advantage of the views.  The existence of established canopy vegetation on this neighbouring property, adjacent to the common boundary, will assist in softening and screening the appearance of the development.
40	The setback from the Watts Parade boundary is in excess of 30 metres.  At this setback, the dwelling is sufficiently recessed from the public realm to avoid a presentation which is out of keeping with existing development.  The terraced response to the sloping topography further assists in the graduation of height as it appears in the streetscape.
41	The presentation of the dwelling to Jacksons Road is more problematic.  The tallest part of the building is at its closest point to the road.  Although compliant with the relevant General requirement, the proposed 7.01 – 9.26 metre setback is less than that which prevails on the south-western side of the road, as demonstrated by the parties at the hearing.  With the exception of No. 17, the dwellings on this side of the road have a setback which exceeds 15.0 metres.  The proposed dwelling will sit forward of these and, at the proposed maximum height, will be unduly prominent.
42	Although the evidence drew attention to the shallower setbacks on the north-eastern (opposite) side of Jacksons Road, these are to more modest dwellings on smaller lots.  Notwithstanding the setbacks which are in the order of 7.0 – 8.0 metres (or similar), these dwellings have a relatively recessive appearance in the public realm.  This will not be the case for the proposed dwelling.  Its height and proximity to the road mean that it will have a significantly greater presence in the streetscape.  In the context of the subject land, this will be discordant with existing built form and will not manifest an acceptable planning outcome.  A greater setback from Jacksons Road is required.
43	In assessing the acceptability or otherwise of the dwelling’s height, the setback from Jacksons Road is a relevant consideration.  While the General requirement is met, it forms part of a suite of requirements which includes a building height of 6.0 metres.  In my view this does not mean that an acceptable outcome will necessarily be achieved if a building exceeding 6.0 metres in height is positioned 5.0 metres from a side boundary to a road.  The acceptability of the height in the site’s context is, in part, a function of the setback.  The proposed building height can be acceptable in the streetscape and wider neighbourhood if a greater setback from Jacksons Road is provided.  That setback would need to exceed both the General requirement and the proposed setback.
44	Given this, I agree with the Council that the setback from Jacksons Road should be increased.  I have concluded that a minimum 10.0 metre setback is necessary to achieve an acceptable response to the streetscape and neighbourhood character, having regard to the height of the dwelling as it presents to this road.  This would further recess the building into the site and be more responsive to the deeper setback of No. 25A, and to those of other dwellings on this side of the road.
45	A design objective of DDO4 is 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 when viewed from surrounding streets and properties.  The proposal achieves this design objective.  While from selected vantage points, the building will project above part of the existing tree canopy in the foreground due the varying tree heights, overall it will be read as being sited beneath the prevailing canopy profile.  Similarly, the sloping topography, two-storey scale and elevated siting of dwellings provide a context in which the building will not create a silhouette above a skyline.
Earthworks
46	A permit is required pursuant to the DDO4 provisions where the variation between the natural ground level and the finished ground level as a consequence of fill.  In parts of the site, the variation between the natural and finished ground level, is proposed to exceed 1.0 metre, and ranges up to a maximum 2.2 metres in one area of the site, below the patio.  For the greater part, the exceedance of the General requirement is generally less than 400mm.
47	On a site which has a slope of 7.0 metres, the extent of fill is reasonable.  It does not unacceptably add to the overall height of the development when viewed in the context of the streetscape and wider neighbourhood.
48	Reference was made to the decision guideline which requires consideration of whether opportunities exist to avoid a building being visually obtrusive by use of, amongst others, split-level and staggered building forms that follow the natural slope of the land and reduce the need for site excavation and filling.  In order for this decision guideline to be a relevant consideration, a view must first be formed that the building as proposed is visually intrusive (or will be if an alternative design is not adopted).  In this instance, while a split-level or staggered form would result in a lower built form, the building as designed will not be obtrusive in its context, although it will be large and have a degree of prominence.  In addition to the architecture which incorporates flat roof forms and a simple geometric design, this is a function of the substantial lot size, the setbacks from the boundaries, the relatively modest (38%) site coverage and the opportunities for landscaping, particularly adjacent to Jacksons Road.
Roof deck
49	As acknowledged by Ms Rigo, roof decks are not prevalent in this area.  However, this of itself should not mean that a roof deck should not be permitted, provided it does not represent an unacceptable built form outcome.
50	The proposed roof deck is centrally sited, being some 23 metres from Jacksons Road, 13 metres from the rear of the site and 12 metres from the south-western side boundary.  It is modest in size, measuring approximately 5.0 metres by 5.0 metres and does not have a projecting stairwell for access.  The balustrade is fully glazed, has a height of 1.0 metre, and is of a lightweight appearance.  It will not appear as a prominent or intrusive element.
51	I agree with Ms Rigo that it would be appropriate to include a condition preventing the provision of umbrellas, shade structures or roof covering to ensure its visibility is minimised and its recessive appearance is maintained.
Tree removal
52	Respondents oppose the proposed removal of Trees 27 and 29, principally on the basis that their retention was an outcome of the settlement at a Compulsory Conference which resulted in the grant of the earlier permit.  Tree 27 is a Sweet Pittosporum, a weed species.  Tree 29 is a Plum, an exotic species.
53	The Arboricultural Impact Assessment assessed both these trees as being of poor structure, poor health and of low retention value.  The removal of these trees is acceptable.  The landscaping proposal for the land includes native canopy trees which will make a positive contribution to the neighbourhood’s landscape character.
Does the development protect shared viewlines?
54	In the matter of Tashounidis v Flinders SC the Tribunal set out the following principles to guide the consideration of a development’s impact on views:
(a)	There is no legal right to a view;
(b)	Views form part of the existing amenity of a dwelling 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; and
(d)	added emphasis will be placed on considerations (b) and (c) above if the question of views is specifically addressed under the Planning Scheme.  
55	The Tribunal in the case of Healy v Surf Coast SC considered that these principles had been refined to read:
(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.
56	The development will completely obscure bay views from the ground floor area of 25A Jacksons Street.  I accept the evidence that these ground floor views are vulnerable and, in any event, would be impacted even if the development met the General requirements applying to wall heights and building height.
57	The proposal to develop above the 6.0 metre height specified in the General requirement results in the partial loss of bay views from the first-floor level of this adjoining dwelling.  Specifically, given the elevated nature of this adjoining property, the views lost are those in the foreground, with the mid-range and distant views of the bay (including the horizon) being maintained.  In addition, the existing views of the CBD skyline and You Yangs will not be affected.
58	Ms Rigo’s evidence included a detailed analysis of the proposal’s impact on views from 25A Jacksons Road, which may be summarised as follows:
•	significant panoramic views, extending to 180 degrees, are available from the first-floor balcony
•	expansive views are available from the living area windows
•	while existing vegetation partially intrudes into some views, the overall panorama is maintained
•	the views contribute to the amenity of the property
•	the proposed dwelling will sit under the horizon line and the continuity of water view from the first floor will be maintained
•	while shorter-range water views will be affected, the extent of this impact cannot reasonably be considered significant in the overall expanse of views available from the balcony
•	the development will not undermine or diminish the amenity of the existing view.
59	Mr Carroll made detailed submissions regarding the importance of the views to the amenity of his property.  In respect to the loss of foreground views, he referred to the ability to observe recreational activities undertaken in this part of the bay, in particular.  While not expecting that the existing views to be maintained perpetuity, Mr Carroll submitted that the extent to which the development exceeds the General requirements is unreasonable, and this has an impact on the extent of views lost as a consequence.  In his submission, with a greater balance of cut and fill and a different design, a lower built form is able to be achieved on this site.  This, in turn, would reduce the extent of view loss.
60	The DDO4 in its design objectives, refers to protecting shared views where reasonable and practical.  The development has sought to do this and I agree with the Council, the applicant and Ms Rigo that it has been achieved to an acceptable degree.
61	The views from the balcony of 25A Jacksons Road are expansive.  For the greater part, these views will remain unaffected.  Where there is an impact, the extent of loss is confined to the foreground views.  The bay, the horizon and various notable features including the CBD and You Yangs will remain visible above the roof line of the proposed dwelling.  When these are all considered holistically, the outcome is acceptable.
62	I accept that the design of Mr Carroll’s dwelling is one which reflects an intent to maximise views.  What also needs to be considered is the importance of the view which will be lost within the overall panorama.  As detailed, a broad expanse of view is available from the balcony of Mr Carroll’s dwelling and to a lesser extent from the living areas.  Within this panorama, the foreground views are not of such significance or importance to justify a refusal of the application.  This is particularly so given the retained view of the bay and horizon above the roof of the dwelling and of the expansive views extending to some 180 degrees.  While there will be a change, it is acceptable and will not constitute a loss of amenity.
63	With respect to views, Ms Rose is not concerned about the proposed built form as its siting relative to her dwelling means that it will not intrude into her view of the CBD skyline, which is the view she wishes to preserve.  Rather, her concern lies with the potential effect on views by the existing hedge in the property as it matures and grows in height.  The applicant has agreed to conditions which require the hedge to be maintained to a specified height.  Reference in Ms Rose’s submission was made to the Tribunal’s decision in Jarvis v Mornington Peninsula SC in support of a position that conditions addressing existing vegetation can be included in a permit where there is an impact on views as a consequence of a proposal.  Given the agreement between the Council, Ms Rose and the applicant to the inclusion of conditions addressing this issue, I have included such conditions without making a finding on whether it is appropriate to do so in circumstances where the built form does not impact on the subject views and the vegetation is existing and not proposed to be altered.
Will the development result in any unacceptable amenity impacts?
Tennis court
64	Ms Rose sought conditions regulating the hours of use of the tennis court.  These are opposed by the applicant on the basis that a permit is not required for the construction, use or illumination of the tennis court.  Whether a permit is required for the tennis court is a matter in dispute.
65	The provisions applying to a private tennis court are detailed at clause 52.21, the purpose of which is:
To ensure that tennis courts used in association with a dwelling are sited and constructed to minimise the effects of the development on nearby properties.
To ensure that the use of tennis courts in association with a dwelling does not cause unreasonable disturbance to adjoining residents or adversely affect the residential amenity of adjoining areas.
66	Clause 52.21-1 confirms that the clause applies to any private tennis court which is used in association with a dwelling, and clause 52.21-3 sets out the permit requirements, as follows:
A permit is not required under any provisions of this scheme to construct, use or illuminate a private tennis court if the performance requirements specified in the Code of Practice – Private Tennis Court Development Revision 1 March 1999 are met.
A permit is required to construct, use or illuminate a private tennis court:
•	If any of the performance requirements specified in the Code of Practice – Private Tennis Court Development Revision 1 March 1999 are not met.
•	If the land is in an Environmental Significance Overlay, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Heritage Overlay, an Urban Floodway Zone, a Floodway Overlay or a Land Subject to Inundation Overlay and a permit is required for any of the following:
-	To construct a building or to construct or carry out works.
-	To remove, destroy, prune or lop a tree or vegetation.
67	Ms Rose’s submission is that the proposed construction, use and illumination of the tennis court requires a permit for the following reasons:
•	Performance requirement E3.3.4 of the Code of Practice – Private Tennis Court Development Revision 1 March 1999 (Code) that drainage resulting from the court must be intercepted to avoid any overflow and must be connected to an approved point of discharge is not met as drainage details are not shown on the plans or in the material which forms part of the application.
•	Performance requirement E4.3.1 that no vegetation may be removed in an urban zone, within 3.0 metres of a street frontage or adjoining public land is not met as Tree 20 (Sweet Pittosporum), which is located within 3.0 metres of Jacksons Road is proposed to be removed.
•	The development as a whole includes the removal of trees which are subject to planning permission pursuant to the provisions of VPO1 and therefore a permit is required for the tennis court.
68	Regarding the drainage requirement, the applicant disagrees, submitting:
20.	In respect of the contention regarding E3.3.4, the Applicant confirms that the tennis court will be drained and connected to the legal point of discharge, pursuant to the Code.  An existing pit connecting to the legal point of discharge exists in the lawn, within the area of the proposed tennis court at present.
69	The site is connected to reticulated stormwater drainage.  In the absence of any material or evidence to the contrary, I accept the applicant’s submission that drainage from the tennis court will be intercepted to avoid any overflow and connected to an approved point of discharge.  This was not disputed by the Council.  I conclude that Performance requirement E3.3.4 can and will be met.
70	The applicant made detailed submissions in respect of whether the proposed tree removal ‘triggers’ the requirement for a permit to construct, use and illuminate the tennis court.  It was submitted that although Tree 20 is located approximately 2.0 metres from the Jacksons Road boundary, it is some 7.0 metres from the location of the tennis court and has no relationship to it.  It was further submitted that the proposed tree removal is a function of an integrated landscape response which seeks to remove a declared weed species and replace it with an appropriate species.  The applicant confirmed that a planning permit is not required to remove Tree 20 pursuant to the provisions of the VPO1 and it can be retained if required, although this would not be a desirable outcome given it is a weed species.
71	Ms Rose’s submission is that, as a permit is required for the removal of other trees on the land, the proposal does not have the benefit of the exemption and, accordingly, a permit is required for the tennis court.  It was submitted that the relevant provision should not be read in such a manner which narrows its scope to only apply in circumstances where the tree removal is related to the construction of the tennis court, as this qualification does not appear in the words of the provision.  In Ms Rose’s submission, if the proposal (or development as a whole) which is the subject of the application ‘triggers’ the requirement for a permit pursuant to the VPO1, then the tennis court is not exempt from planning permission.
72	With respect to the provision addressing circumstances where land is within a Vegetation Protection Overlay (as is the case here) and a permit is required for the removal of a tree, the applicant submitted that a literal interpretation could lead one to conclude that any vegetation removal that triggers a permit under the VPO1 elsewhere on the site, unrelated to the tennis court, would negate the broad exemption provisions of the clause.  In the applicant’s submission, such an interpretation is not, to use the words at section 35 of the Interpretation of Legislation Act 1984 be a ‘construction that would promote the purpose or object underlying the provision’.  The applicant further submitted that in accordance with the principles of statutory interpretation, such a construction is not to be preferred.
73	In the applicant’s view, the purpose of clause 52.21 is clear and it is self-evident that the provision is not intended to consider the merits of vegetation removal unrelated to the provision of private tennis courts.
74	The drafting of the provision at clause 52.21 gives rise to some ambiguity and uncertainty with respect to the need or otherwise for a permit in the circumstances of this application, as demonstrated by the opposing submissions.  While I can understand the logic which underpins the applicant’s position, it does not accord with the literal drafting of the provision.  It does not state that the tree removal must be in conjunction with, or required for, the construction/use of the tennis court.  It simply refers to a permit being required for tree removal, without qualification.
75	The applicant argued that the provision should be interpreted so as to promote the purpose of clause 52.21, and that the interpretation adopted by Ms Rose would not achieve this.
76	This is arguable.  A purpose of clause 52.21 is to ensure that the use of tennis courts in association with a dwelling does not cause unreasonable disturbance to adjoining residents or adversely affect the residential amenity of adjoining areas.  Vegetation may play a role in ensuring that this purpose is achieved, for example, by mitigating the impacts of illumination.  This would apply to vegetation which may be located outside the area of the site to be developed for the tennis court itself.  It would, arguably, be appropriate to consider the acceptability or otherwise of such an outcome in assessing a proposal for a tennis court.  I acknowledge that this would not apply on sites not affected by any of the nominated overlays.  However, of itself, that is not a basis for adopting a different interpretation.  When considering the drafting, and having considered the submissions, I consider that a permit is required in the circumstances of this application.
77	The implication that arises from the adoption of Ms Rose’s interpretation is that a permit would be required for the construction, use and illumination of the tennis court and that related conditions could be included on a permit.  To this end, Ms Rose’s submission is that the following conditions should be included:
78	The requested conditions are as follows:
•	The tennis court must not be used between:
-	10:30 pm and 7:30 am during the period of summer daylight savings; and
-	9:30 pm and 7:30 am for the rest of the year.
•	The maximum height of the tennis court light poles must not exceed 6.1m.
•	There must be no more than three light poles erected for the tennis court, and the light poles must only be erected on the eastern side of the court with no light pole to be erected any closer to southern boundary than the service line of the southern end of the court.
•	The tennis court lighting must not remain turned on any longer than 15 minutes after the conclusion of a game and must only be used for tennis games.
79	The Code specifies the following in respect of the tennis court hours of use:
E6.3.2	The court must not be used between 10.30pm and 7.30am
E6.3.3	No mechanical equipment such as ball-throwing machines may be operated between 7pm and 8am
80	I see no reason to depart from these specified hours.  There was nothing about the site’s context addressed in the submissions which would warrant the imposition of more restrictive hours of use than what is prescribed in the Code, being an Incorporated Document which has State-wide application.
81	The plans specify a 6.5 metre height for the tennis court light poles.  Performance requirement E5.3.2 of the Code states that any lighting system must use light poles which are not more than 8.0 metres above the court surface.  The proposed light poles are 1.5 metres lower than the height specified in the Code.  Again, other than to achieve a preference that the light poles be lower than what is proposed, Ms Rose submissions did not provide any persuasive reason why the height should be further reduced.
82	Performance requirement E5.3.1 of the Code states:
E5.3.1	Any lighting system must not exceed an illumination level of 12 lux and an average illumination of 10 lux when measured at the nearest habitable room window of an adjoining dwelling or at a point 3 metres outside the property boundary, whichever is the nearest to the light source.
83	Given this performance requirement, the siting of the light poles some 10.0 metres from the common boundary with Ms Rose’s property, a pole height which is less than that specified in the Code, and the absence of any reference in the Code to the times when the lights should be turned off or not used, I have not been persuaded that the remaining condition sought by Ms Rose is justified.
84	If I am wrong in my conclusion that a permit is required for the tennis court, the outcome in practical terms is no different to a circumstance where the alternative interpretation is adopted, as the tennis court will be subject to the same requirements as would be the case if the tennis court was not subject to a permit.
Overlooking
85	The only potential overlooking addressed in the submissions is that of Ms Rose’s property from the proposed first-floor balcony adjacent to the master bedroom.  While the balcony faces north-west toward the bay, the concern is that the side elevation will allow views into Ms Rose’s front garden area which is used as secluded private open space.
86	The applicant opposes a requirement for screening but would accept the provision of a planter along the edge of the balcony, to provide further separation for occupants and reduce overlooking.  The area which is potentially overlooked (being within 9.0 metres of the balcony, as assessed under clause 54.04-6) is heavily vegetated, including with mature trees, and is occupied by driveway and car parking area.  It is not an area that is sensitive to overlooking, and any views will be screened by the vegetation.  In this context, a requirement for screening of the balcony is not justified.
Visual bulk
87	While nominated as 7.92 metres, the height of the development as it presents to 25A Jacksons Road is lower given the difference in site levels, with the review site being located downslope.  The difference as shown on the section is 2.0 metres.  Accordingly, the full height of this elevation will not be visible and will be further obscured by the boundary fence.  In combination with the separation afforded by the setback from the boundary and the intervening driveway associated with 25 Jacksons Road, the building will not present unacceptable visual bulk to this interface.  While the provisions of DDO4 do not require compliance with standard 54.04-1, it is well within the building profile specified by the standard and the objective of clause 54.04-1 is met.  This is similarly the case for the interface with 36 Watts Parade, with the added screening effect of the established vegetation further mitigating any visual impact.
Acoustic impact
88	Ms Rose expressed concerns regarding the potential noise impacts from the proposed air conditioning unit located at the first-floor level on the south-west side of the dwelling, next to her property.  The submissions referred to the lack of detail in respect of the enclosure housing the unit and included a suggested condition requiring the preparation of an acoustic report.
89	The applicant confirmed that, as shown on the plans, the enclosure has solid walls on the south-west, south-east and north-east sides, and advised that the north-western side will have a louvred screen to allow for air circulation and access for maintenance purposes.  The south-west side faces Ms Rose’s property.  The applicant submitted that the condition sought by Ms Rose is an over-reach and there is no precedent for such in this type of context.
90	I agree with the applicant that, having regard to the enclosure of the air conditioning unit, with a solid wall on the side facing Ms Rose’s property, together with the regulation of noise from such units under other legislation, such as the Environment Protection Regulations 2021 and the Environment Protection Act 2017, there is no basis in the circumstances of this application to require an acoustic assessment for what is a domestic air conditioning unit.
Roof deck
91	Respondents oppose the proposed roof deck on the basis that its occupation and use would result in unacceptable noise and disturbance to surrounding and nearby properties.  The roof deck is relatively modest in size, measuring approximately 25 square metres in area.  It is not of sufficient size to cater for large gatherings.  In any event, its occupation would be in association with a residential use and any noise impacts would be consistent with such use.  Should any noise emissions amount to nuisance, then there are other laws to address this.
Conclusion
92	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Bill Sibonis
Senior Member			

 
Appendix – Permit Conditions

Permit Application No	P21/1552	
Land	38 Watts Parade
MOUNT ELIZA VIC 3930	

What the permit allowS	
•	The construction of a dwelling;
•	the construction, use and illumination of a private tennis court;
•	the removal of vegetation; and 
•	the construction and carrying out of works
in accordance with the endorsed plans.	
Conditions
Amended Plans
1	Before the developments starts, amended plans to the satisfaction of the responsible authority must be submitted to, and be 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 identified as Drawings 01 - 15 (inclusive), Revision C, dated February 2022, prepared by CHD Design but modified to show:
(a)	the dwelling set back a minimum of 10.0 metres from the north-eastern (Jacksons Road) boundary;
(b)	measures that ensure the long-term health and viability of trees on neighbouring properties is not compromised, as detailed in the Arboricultural Impact Assessment (Sustainable Tree Management, prepared March 2020, Amended February 2022);
(c)	a notation that Tree 24 will be retained;
(d)	a notation that no umbrellas or shade structures will be erected on the roof deck, to the satisfaction of the responsible authority;
(e)	an amended landscaping plan generally in accordance with the landscape plan prepared by John Patrick (Dated 07/02/2022, Job No. 21-684-VCAT01), that must show:
i	a survey (including botanical names) of all existing vegetation to be retained and/or removed;
ii	details of surface finishes of pathways and driveways;
iii	a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant;
iv	notation to detail compliance with Tree Protection measures required by Conditions No. 15 - 18 of this permit.
v	landscape plan to include the below notations:
•	the Ficus macrocarpa hillii ‘Flash’ hedge along the eastern interface with 25 Jacksons Road to be clipped and maintained to a maximum height of 4.0 metres, with no seasonal growth to exceed 4.5 metres in height.
•	the Ficus macrocarpa hillii ‘Flash’ hedge along the south-western boundary (being the common boundary with 36 Watts Parade) from the Watts Parade frontage to the north-western edge of the dwelling to be clipped and maintained to a maximum height of 4.0 metres, with no seasonal growth to exceed 4.5 metres in height.
•	the Ficus macrocarpa hillii ‘Flash’ hedge along Watts Parade frontage to be clipped and maintained to a maximum height of 4.0 metres, with no seasonal growth to exceed 4.5 metres in height.
vi	replacement of the Banksia integrifolia adjacent to the south-western boundary with a Banksia marginata;
vii	vegetation marked for retention to be marked with protection barriers. 
All species selection must be to the satisfaction of the responsible authority. 
Approved Development Not Altered
2	The layout of the land, the size and type of the buildings and works, including the materials of construction, as shown 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 written consent of the responsible authority.
Finishes 
4	Before the dwelling is occupied, external finishes must be completed to a standard which is to the satisfaction of the responsible authority.
Screening
5	Before the development is occupied, all required privacy screening devices shown on the endorsed plans must be installed and completed to the satisfaction of the responsible authority.
Disturbed Surfaces
6	All disturbed surfaces on the land resulting from the development must be revegetated and stabilised to the satisfaction of the responsible authority.
Driveway/Crossover
7	Before the dwelling is occupied, the vehicular crossing must be provided to the standards of the responsible authority.
8	Before the dwelling is occupied, the driveway must be provided to the land and surfaced to the satisfaction of the responsible authority.
9	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. 
Protection of Fauna
10	An appropriately certified zoologist or wildlife handler must be present during all tree removal operations to ensure any affected wildlife is not harmed and is removed from the subject land to an appropriate relocation site or relocated onsite to an appropriate location away from the works area.
Vegetation Removal
11	The extent of vegetation removal as shown on the endorsed plans must not be altered or modified without the consent of the responsible authority.
12	All disturbed surfaces on the land must be revegetated and stabilised to the satisfaction of the responsible authority.
Landscaping
13	Before the dwelling is occupied (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.
14	The landscaping referred to in Condition No. 13 of this permit must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants must be replaced as soon as practicable.
Tree Protection
15	The Tree Protection Zones, Recommendations and Tree Protection Guidelines identified in the Arboricultural Impact Assessment prepared by Sustainable Tree Management (as amended February 2022) must be implemented and complied with to the satisfaction of the responsible authority.
16	Any pruning of trees must be undertaken to the minimum extent necessary by a qualified arborist in compliance with the procedures and practices described in AS 4373-2007 Australian Standard pruning of amenity trees.
17	The owner and occupier of the site must ensure that, before the development starts, 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.
18	No trenching or soil excavation is to occur within the Tree Protection Zones of retained trees without the prior written consent of the responsible authority.  No vehicular or pedestrian access, storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.
Drainage
19	The land must be drained to the satisfaction of the responsible authority.
Environmental Health
20	All sewerage and sullage waste must be discharged into a reticulated sewerage system to the satisfaction of the responsible authority.
Construction
21	A licensed surveyor's report confirming relative levels as shown on the endorsed plans with particular regard to the finished floor levels and roof levels must be submitted to the responsible authority within 14 days of the completion of the relevant floor(s) and roof.  Floor levels and roof levels must not exceed those shown on the endorsed plans.
22	With the exception of the roof terrace no further building and works or services normal to a dwelling, except those specifically required under the Building Act 1993, may exceed a height of 47.70 metres AHD without the further written consent of the responsible authority.
23	Soil, felled vegetation and mulch must not be stockpiled on, or within two metres of, vegetation to be retained.
Tennis court
24	The construction, use and illumination of the tennis court must at all times be carried out in accordance with the 'Code of Practice - Private Tennis Court Development Revision 1, March 1999', to the satisfaction of the responsible authority.
25	The tennis court must not be used between 10:30 pm and 7:30 am.
26	Mechanical equipment such as ball throwing machines are not to be operated between 7:00 pm and 8:00 am.
27	The tennis court light poles must not exceed 6.5 metres in height.
28	All tennis court fencing shown on the endorsed plans must be constructed to the satisfaction of the responsible authority.
29	The tennis court lights must be constructed in accordance with the construction methods specified in the ‘Code of Practice – Private Tennis Court Development Revision 1, March 1999’ to the satisfaction of the responsible authority.
Expiry
30	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the date of this permit.
(b)	The development is not completed within four (4) years of the date of this permit.
In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

– End of conditions –