VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P969/2021
Permit Application no. 210095 	
CATCHWORDS	
Bass Coast Planning Scheme; Application pursuant to Section 82 of the Planning and Environment Act 1987; General Residential Zone 1 (GRZ1); First-floor extensions to both dwellings; Clause 54; Appearance; Loss of views.	

Applicants	Slavica Sibenik, Rhonda Chandler	

Responsible Authority	Bass Coast Shire Council	
respondents	Libby and David Ellis, Rachel Hornsby	
SUBJECT LAND	Units 1 and 2/33-37 Genista Street  SAN REMO  3925	
HEARING TYPE	Hearing	
DATE OF HEARING	28 March 2022	
date of interim order	7 April 2022	
DATE OF ORDER	13 May 2022	
CITATION	Sibenik v Bass Coast SC [2021] VCAT 526	

Order
1	In application P969/2021 the decision of the Responsible Authority is varied. 
2	In planning permit application 210095 a permit is granted and directed to be issued for the land at Units 1 and 2/33-37 Genista Street, San Remo in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:
•	Construction of first-floor extensions to existing dwellings in the General Residential Zone Schedule 1.

J A Bennett
Senior Member			

WRitten submissions
For Slavica Sibenik and Rhonda Chandler	Ms Slavica Sibenik and Rhonda Chandler.	
For Bass Coast Shire Council	Mr Hayden Church, Statutory Planner.	
For Libby and David Ellis, Rachel Hornsby
	Mr Trevor Ludeman, Town Planner of Project Planning & Development Pty Ltd and a separate statement from Ms Rachel Hornsby. 	
Information
Description of proposal	First floor extensions to two single storey dwellings.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 to review the decision to grant a permit.	
Planning scheme	Bass Coast Planning Scheme.	
Zone and overlays	General Residential Zone – Schedule 1 (GRZ1).
Design and Development Overlay – Schedule 1 (DDO1).	
Permit requirements	Clause 32.08-5 (Construct or extend a single dwelling on a lot less than 300 square metres).	
Relevant scheme policies and provisions	Clauses 2.03, 11, 15, 16, 18, 19, 32.08, 54, 65, 71.02 and 72.04.	
Land description	The proposed extensions are to two attached single storey dwellings forming part of a 24 dwelling complex known as Breyleigh Haven. The two dwellings are located at the front of the site facing Genista Street. Each dwelling is on individual titles described as Lots 1 and 2 on PS421336. Vehicle access to a single car garage serving Lot 1 is via a shared driveway along the eastern site boundary. Vehicle access to Lot 2 is via the common driveway serving the remainder of the complex. 	
Tribunal inspection	The Tribunal undertook an unaccompanied inspection at Units 6 and 7/33-37 Genista Street, San Remo on Tuesday 12 April 2022. Units 1 and 2/33-37 Genista Street and the neighbourhood were inspected from the street. 	
Reasons
What is proposed and what is in dispute?
1	The application seeks approval for a first-floor addition to both Units 1 and 2/33-37 Genista Street. The two extensions have been designed to retain the existing uniformity in design, layout, colours, and materials of the two dwellings. The following elevations depict the proposal viewed from the street (elevation 1) and from the rear within the Breyleigh Haven complex (elevation 3).   

2	Ms Chandler owns Unit 6/33-37 Genista Street. Ms Sibenik owns Unit 7/33-37 Genista Street. Both their dwellings include first floor balconies which provide views over the top of Units 1 and 2/33-37 Genista Street towards Westernport Bay. The balconies are off bedrooms rather than from primary living areas which are located at ground floor. 
3	Primarily, Ms Chandler and Ms Sibenik submit that the large extensions extending across both dwellings have not attempted to consider the visual impact on the sharing of view lines from their properties and will cause unreasonable visual bulk. They submit that contrary to the views expressed by the permit applicants, the proposal will require permission under DDO1 given they have raised doubts about the levels shown on plans. They also raise concerns about non-compliance with the requirements in clause 54 for neighbourhood character (standard A1) and design detail (standard A19), and the provision of additional car parking in accordance with clause 52.06.
4	The following site plan extracted from Council’s submission shows the physical relationship of the four properties and nearby properties including those within the Breyleigh Haven complex. 

5	As can be seen on the above aerial photo, Units 6 and 7/33-37 Genista Street are positioned behind Units 1 and 2/33-337 Genista Street. They are also located slightly uphill from Units 1 and 2. Because of the slope of the land, Unit 7 enjoys less constricted views than Unit 6, although both enjoy views of Westernport Bay between, around and over the top of the pitched roofs of Units 1 and 2. 
6	The following photos extracted from Ms Sibenik’ s submission depict the existing views from each of the first-floor balconies.

My assessment
Accuracy of plans, Clauses 54 or 55 and whether a permit is required pursuant to DDO1
Accuracy of plans
7	Despite concerns raised by neighbours about the accuracy of the plans, I consider they offer sufficient detail to allow an informed assessment as to impacts on nearby properties and views from those properties to Westernport Bay. 
8	The site survey plan prepared by Nilsson, Noel & Holmes Surveyors Pty Ltd (plan No 21987) referred to in Mr Ludeman’s submission has assisted in that assessment.
Clauses 54 or 55
9	I am somewhat puzzled that the submissions by Council and the applicant refer to clause 55 rather than clause 54. I consider that Ms Sibenik correctly refers to clause 54. Although the one application may be for an extension to two properties, each dwelling is on a separate lot and the assessment should be against the provisions of clause 54 not clause 55. This is not an application for two dwellings on a lot or an extension to two dwellings on a lot which would require assessment against the requirements of clause 55. 
10	Ms Sibenik has specifically identified clause 54 requirements concerning neighbourhood and site description/design response, neighbourhood character and design detail as not being met. As these requirements also appear in clause 55, I am satisfied they have been considered by Council and the permit applicants even if under the wrong clause. 
11	I have considered them pursuant to clause 54.
The DDO1
12	The DDO1 applies to residential land near the coast. The design objectives seek to protect views to and from the coast but do not specifically refer to view sharing between residential properties:
To protect views from the coast to adjacent residential areas.
To protect views to the coast from adjacent residential areas.
To minimise the impact of development along the coastline.
To protect and enhance the visual amenity and landscape of the coastal area.
To respond to the potential coastal impacts of climate change.
13	Nor do the decision guidelines at section 6.0 of DDO1 require consideration of view sharing. It is different in that respect from planning schemes for other coastal areas in Victoria. For example, DDO11 and DDO 13 in the Surf Coast Planning Scheme include design objectives that specifically refer to achieving a reasonable sharing of views. DDO1, DDO2 and DDO3 in the Mornington Peninsula Planning Scheme all include a design objective to protect shared viewlines where reasonable and practical.  
14	Section 2.02 of DDO1 in the Bass Coast Planning Scheme states that a permit is not required on land above 5 metres AHD for buildings and works that have a height less than 7 metres above ground level. The development plans show the maximum height below 7 metres although Council’s submission states:
[8.9]	Whilst the development may present a built form slightly over the 7m threshold as a result of the roof pitching, the proposal generally presents an overall height under the 7m permit trigger point as outlined in Schedule 1 to the Design and Development Overlay. 
15	The north elevation has a RL to the top of the ridge of 16.84 metres and identifies a maximum building height of 6.991 metres. These plans do not provide heights at AHD, but these can be extrapolated by adding the new heights to survey data for the existing dwellings. The survey plan provides AHD at the surface at the outer corner of each dwelling. At the front they are at 20.13 AHD (Unit 1) and 20.10 AHD (Unit 2). Adding the 6.991 metre high extension results in an overall height of 27.121 AHD (Unit 1) and 27.091 AHD (Unit 2). 
16	The existing ridge of Unit 1 is 25.77 AHD and for Unit 2 it is 25.78 AHD. The highest point of the new ridge for Unit 1 is therefore 1.351 metres higher and for Unit 2 it is 1.311 metres higher than what exists at present. The new linking pitched roof element is approximately 1 metre higher. 
17	The survey plan also provides heights at AHD for the ground floors and first-floor balconies for Units 6 and 7. Comparing the various heights allows for a more precise understanding of the potential impact on views and amenity, which I discuss later in my reasons. 
18	Despite submission that the proposed extensions exceed 7 metres, my analysis persuades me that the proposal has been designed so that it does not require a permit pursuant to DDO1. However, that does not obviate the need to consider amenity impacts and my assessment has considered the impact on views given the planning scheme includes general amenity provisions which are relevant. 
19	These include purposes and objectives in clause 54 seeking, amongst things, to encourage residential development that provides reasonable standards of amenity for existing and new residents, to encourage residential development that is responsive to the site and the neighbourhood and to limit the impact on the amenity of existing dwellings.
20	As pointed out in the submission by Ms Sibenik and Ms Chandler, there is also policy seeking to ensure viewlines and vistas are protected and shared between the public and private realms, that building designs contribute positively to local context and that development minimise detrimental impacts on neighbouring properties.  
21	Arguably these provide more scope to consider view sharing than the objectives and decision guidelines in DDO1 which do not include specific reference to view sharing.
The design response – whether a reasonable sharing of views has been maintained
22	The main objection raised by the owners of Units 6 and 7 33/37 Genista Street is the loss of views towards Westernport Bay.
The principles concerning view sharing
23	 Over many years and in many cases, the Tribunal has formulated a set of principles to guide decision making about the sharing of views, particularly in coastal locations. These principles can be distilled as:
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;
f	in addressing the question of reasonableness under para (c) above it is also relevant to consider the legitimate expectations of those whose views are being affected.  
24	Whilst it is a legitimate expectation that existing views will not be blocked entirely from Units 6 and 7, that does not mean that all views from all parts of the property must be maintained or reasonably shared. For example, I consider it would be unreasonable to expect to maintain existing views from the lower-level living areas which are largely positioned directly behind Units 1 and 2 and already have constrained views. 
25	It is relevant to consider where the existing views are experienced from and whether they are from the primary indoor and outdoor living areas or from secondary areas such as bedrooms and studies. 
26	It is also relevant to consider the topography of the land and the distance of the affected properties from the coast and whether they have a ‘front row’ position or are set back behind intervening buildings.
27	For example, on steeply sloping topography, it will be far easier to achieve a reasonable sharing of views from dwellings located up slope and above dwellings located at a lower level. On more gently sloping land, it will be much harder to achieve a sharing of views, particularly the further away a dwelling is from the ‘front row’. 
28	The land occupied by Units 1, 2, 6 and 7 is not steeply sloping. Nor do any of the properties occupy a ‘front row’ position. Genista Street is parallel with Philip Island Road and land between the two roads has been developed for residential and other purposes. I note from aerial photos tendered by parties and confirmed by my inspection that there remains a large parcel of underdeveloped land on the northside of Genista Street and south of Phillip Island Road which has the potential for redevelopment in the future. Development on this land may well impact on views of Westernport Bay from units in Breyleigh Haven. 
The impact on views from Unit 6/33-37 Genista Street
29	Unit 6 is positioned directly behind Unit 1. Westernport Bay views are already impacted by the built form of both Units 1 and 2. It is located slightly higher up the slope but potential views of Westernport Bay from the ground level and the main living areas are largely blocked by the intervening buildings. 
30	It has not been designed or orientated with indoor and outdoor living areas providing views of Westernport Bay. Instead, the ground floor living areas have an enclosed or more intimate character which will not be affected by the proposed first-floor extensions positioned over 12 metres away beyond the single storey garage and rear sections of Units 1 and 2. 
31	It is the impact on views from the first floor which may cause unreasonable impacts. As demonstrated by the photo on the top of page 5, existing views are available from the first-floor bedrooms and balcony. I accept that these rooms could be used as studies, but they are not the primary living areas. 
32	Based on my assessment, the proposed extensions to Units 1 and 2 will almost entirely if not completely block views of the water between the existing pitched roofs of Units 1 and 2 and will also block views to a point roughly in line with the higher section of the brown brick building on the opposite side of Genista Street, as well as to the east (see photo on page 5).
33	Views of Westernport Bay will remain over the top of the brown brick building and further north west, and also to the east of the proposed Unit 1 extension. 
34	I accept that the existing views from the first-floor rooms and balcony do add to the amenity of Unit 6. However, the views are not from primary indoor and outdoor living areas and the dwelling has not been designed or orientated to maximise views of Westernport Bay from living areas. The position of the dwelling slightly upslope but directly behind the two units fronting Genista Street already limits the views of Westernport Bay.
The impact on views from Unit 7/33-37 Genista Street
35	The impacts on views from Unit 7 are less, simply because it is further up the slope and already enjoys more expansive views from the first-floor rooms and balcony. In a similar way to Unit 6, it has not been designed or orientated with indoor and outdoor living areas providing views of Westernport Bay. 
36	A window at ground floor in the living area faces Westernport Bay and provides limited views of the water over the top of the intervening single storey sections of Units 2 and 5 and garages. I am not persuaded that the proposed first-floor extension to Unit 2 will seriously affect this view which is in a more north westerly direction. 
37	As with Unit 6, it is the impact of views from the first floor which may cause unreasonable impacts on the amenity of the dwelling. However, because Unit 7 is further upslope than Unit 6, and orientated in a more north westerly direction, views are primarily over the tops of the single storey sections of Units 2, 5 and 6. The photo on the bottom of page 5 shows the existing situation with the proposed extensions protruding into the water view in the vicinity of the green roofed building and trees in front of Units 1 and 2. The wide vista above Unit 5 will remain unaffected. 
38	Even in the absence of a DDO1 provision requiring a reasonable sharing of views, I consider that the proposed extensions to Units 1 and 2 will not unreasonably or unacceptably impact on views to Westernport Bay from the first floor of Unit 7.    
Neighbourhood character, amenity, carparking and precedent
Neighbourhood character and amenity
39	The applicants for review also make submissions about neighbourhood character and state that the proposed extensions will destroy the design integrity of Breyleigh Haven. 
40	I do not agree with those submissions. 
41	A positive feature of the proposal is that the extensions to Units 1 and 2 have been designed with a consistent or uniform approach to wall heights, roof form, materials, and colours. The extensions will not appear ‘tacked on’ and I do not accept that the design destroys the integrity of the Breyleigh Haven development. First floors exist in many of the dwellings, including Units 6 and 7 occupied by Ms Sibenik and Ms Chandler. 
Carparking
42	I agree with Ms Sibenik that there has been inconsistency in the approach taken to the question of whether additional car parking is required.
43	However, I want to make it clear that additional car parking is not required. 
44	Clause 52.06 requires carparking for one dwelling on a lot to be provided at the rate of one space per two bedroom dwelling and two spaces per three or more bedroom dwelling. 
45	However, clause 52.06-1 specifically states that:
Clause 52.06 does not apply to:
•	the extension of one dwelling on a lot in the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Mixed Use Zone or Township Zone.
46	Although additional parking is not a requirement, for completeness I noted on my inspection that Units 1 and 2 are each provided with a single car garage, but that Unit 2 has space in front of the garage door where a second vehicle could conveniently park if required. Unit 1 does not have sufficient room to park a second vehicle between the garage door and the shared driveway. 
Precedent
47	Submissions are often made by neighbours concerned that approval of a particular proposal will set a precedent for other similar development. However, each proposal must be assessed separately on its merits, including potential impacts on existing views and whether a reasonable sharing of views is maintained. Invariably each site and each design are different, no two circumstances are the same and the approval of this proposal does not mean that first-floor extensions to other dwellings at Breyleigh Haven would be considered favourably and approved. 
Conclusion and decision
48	Whilst I accept that the owners of Units 6 and 7/33-37 Genista Street will be affected by the first-floor extensions to Units 1 and 2, I am not persuaded that the potential impact on views or amenity warrant refusal of the application. It is my assessment that the permit applicants have made every effort to modify the design of the dwelling to provide for a reasonable sharing of views of Westernport Bay from Units 6 and 7/33-37 Genista Street. Having regard to all the above reasons, I support the granting of a permit. I have removed reference to DDO1 in ‘what the permit allows’.

J A Bennett
Senior Member			

Appendix A – Permit Conditions

Permit Application No	210095	
Land	Units 1 and 2/33-37 Genista Street  SAN REMO  3925	

What the permit allowS	
In accordance with endorsed plans:
Construction of first-floor extensions to existing dwellings in the General Residential Zone Schedule 1.	

Conditions
General conditions
1	Prior to the commencement of the permitted development, amended plans must be submitted for approval to the satisfaction of the Responsible Authority. When approved the plans will be endorsed and form part of the permit. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans submitted with the application but modified to show:
(a)	The removal of the proposed shade elements from the northern façade of the development;
(b)	An amended annotation showing the upper floor areas to be labelled as living spaces.
(c)	Proposed upper floor plan in relation to site boundaries to include setback from title boundaries without shading annotations. 
2	The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3	No buildings or works shall be constructed on any existing easement (including implied sewer, drainage, telephone, gas, power and water easement) or proposed easement without the further approval in writing of the Responsible Authority and/or the relevant service provider.
4	The external finish of the permitted buildings must match the existing buildings to the satisfaction of the Responsible Authority.
5	All stormwater from the proposed development must be directed to the Legal Point of Discharge, to the satisfaction of the Responsible Authority.
Amenity
6	The development must be managed during construction so that the amenity of the area is not detrimentally affected through the:
(a)	transport of materials, goods or commodities to or from the land;
(b)	appearance of any building, works or materials;
(c)	emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, litter, dust, waste water, waste products, grit or oil; and
(d)	presence of vermin or animals.
7	No mud, dirt, sand, soil, clay, stones, oil, grease, scum, litter, chemicals, sediments, gross pollutants, animal waste or domestic waste shall be washed into, allowed to enter or discharged to the stormwater drainage system, receiving waters or surrounding land and road reserves, during the construction works hereby approved to the satisfaction of the Responsible Authority.
Permit Expiry - Development
8	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two years of the date of this permit;
(b)	The development is not completed within four years of the date of this permit.
The Responsible Authority may extend the time if a request is made in writing before the permit expires or within six months afterwards.
Where the development or stage started lawfully before the permit expired, the Responsible Authority may extend the period in which the development or stage must be completed if a request is made in writing before the permit expires or within twelve months afterwards.
---End of conditions---