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Emond Golf Pty Ltd v Frankston CC  VCAT 1183 (14 July 2010)
Victorian Civil and Administrative Tribunal
Emond Golf Pty Ltd v Frankston CC  VCAT 1183 (14 July 2010)
Last Updated: 28 July 2010
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
|PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P96/2010
PERMIT APPLICATION NO. 52/2009/P
Frankston City Council
VicRoads & Country Fire Authority
Ian Roger, Wendy Clark, John Nash
261 Nepean Highway, Seaford
DATE OF HEARING
DATE OF ORDER
accordance with s 127 and cl 64 of schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998, the plans included in the permit
application are amended as follows—
For all the plans included
in the permit application, substitute the plans prepared by Thomas Anderson
Design entitled ‘Proposed
Apartment Development 261 Nepean Highway
Seaford’ Job 08-0396 Drawings dated November 2009 Issue E and numbered 1
decision of the responsible authority in relation to permit application no.
52/2009/P is set aside.
permit is granted in relation to land at 261 Nepean Highway, Seaford. The permit
- Construction of
six dwellings in a three storey building and alteration of access to a road in a
Road Zone Category 1 in accordance
with the endorsed plans
permit is subject to the conditions contained in Appendix A to these
Mr Nick Hooper, town planner, Taylors Development Strategists Pty
For Responsible Authority
Ms Adrianne Kellock, town planner, Kellock Town Planning Pty Ltd
Mr Ian Roger appeared in person. There was no appearance by Wendy Clark or
Construction of six dwellings
Nature of Proceeding
Zone and Overlays
Residential 1 Zone (R1Z)
Design and Development Overlay schedule 6
Wildfire Management Overlay (WMO)
The land abuts Road Zone Category 1 (Nepean Highway) (RDZ1).
Clause 32.01-4 (construction of two or more dwellings in Residential 1
Clause 44.06-1 (buildings and works in WMO)
Clause 52.29 (alteration
of access to RDZ1)
Relevant Scheme policies and provisions.
Clauses 11, 12, 14, 16.02, 19.03, 21.04, 22.17, 44.06, 52.29, 55 and
The land is regular in shape, has a frontage of 19.05 m to the Nepean
Highway, a depth of 34.02 m, and an area of 648 sq m. It is
located 50 m south
of McCulloch Avenue. The highest point of the land is 4.02 m AHD about the mid
point of the frontage and the lowest
point is 2.81 m AHD on the south east
corner of the land. The land is developed for a single storey dwelling used as a
6 June 2010
What is this proceeding about?
29 December 2009, the Frankston City Council (the Council) refused a
planning permit to construct eight dwellings in a four storey building at 261
Nepean Highway, Seaford (the land). The Applicant requested this
decision be reviewed by the Tribunal. A number of objectors, including Mr Ian
Roger, are opposed
to the grant of a permit.
the hearing, leave was granted to the Applicant to amend the permit application.
The main effect was to remove the top storey of
the proposed building. The
permit application now proposes to construct six dwellings in a three storey
building (the proposal).
ground floor is part basement and part undercroft and is set aside for car
parking and services. Dwellings 1 to 4 on the first
floor each have two
bedrooms, and dwellings 5 and 6 on the second (or top) floor each have three
bedrooms. The car park contains
nine car spaces - one space for each of the four
two-bedroom dwellings, two spaces for each of the two three-bedroom dwellings,
one visitor space. The architecture is contemporary, building materials are
mixed, and the roof is largely flat.
Council and Mr Roger acknowledged that the amended plans are a considerable
improvement. However, the Council submitted that the
proposal could not be
supported without imposition of conditions requiring significant redesign.
key issues or questions for determination are—
- Is the proposal
consistent with State and local policy?
- Does the
proposal respect neighbourhood character?
- Is the visual
bulk of the proposal excessive?
- Does the
proposal achieve a satisfactory standard of design?
Tribunal must decide whether a permit should be granted and, if so, what
conditions should be applied. Having considered all
submissions and evidence
presented with regard to the applicable policies and provisions of the Frankston
Planning Scheme (the scheme), I have decided to grant a permit. My
Council and Applicant did not refer to the following preliminary issues at the
hearing. They made brief submissions when the Tribunal
land is about 150 m east of the coast (Port Phillip Bay) and the whole of the
land is under 5 m above high water mark. The Kananook
Creek (the creek)
is located about 40 m east of the rear of the land. Adjoining dwellings are
located between the land and the creek.
15.08 of the scheme provides that it is State policy to ‘plan for and
manage the potential coastal impacts of climate
Planning to manage coastal hazards and the coastal
impacts of climate change should:
- Plan for sea
level rise of not less than 0.8 metres by 2100, and allow for the combined
effects of tides, storm surges, coastal processes
and local conditions such as
topography and geology when assessing risks and coastal impacts associated with
- Apply the
precautionary principle to planning and management decision-making when
considering the risks associated with climate change.
- Ensure that new
development is located and designed to take account of the impacts of climate
change on coastal hazards such as the
combined effects of storm tides, river
flooding, coastal erosion and sand drift.
- Ensure that land
subject to coastal hazards are identified and appropriately managed to ensure
that future development is not at risk.
development in identified coastal hazard areas susceptible to inundation (both
river and coastal), erosion, landslip/landslide,
acid sulphate soils, wildfire
and geotechnical risk.
some circumstances, the Tribunal has required an assessment of the land’s
vulnerability to the impacts of river and coastal
hazards in determining reviews
of decisions on permit
assessment is not required for this application. First, the declared flood
level of the creek is 1.56 m AHD. If flood levels were
to rise in the long term
by 0.8 m to 2.36 m AHD, this is still 2.14 m below the lowest floor level of the
dwelling on the first floor
(ie 5.50 m AHD). Second, although the highest point
of the land is below 5 m AHD, the Nepean Highway is located between the land
the coast. As a significant item of State infrastructure, the land would get the
benefit of any future works to protect the Highway.
Aboriginal cultural heritage
proposal is a high impact
activity. The land is
within 200 m of the coast and, unless all the land has been subject to
significant ground disturbance, the land is an
area of cultural heritage
sensitivity and a cultural heritage management plan (CHMP) is required
before any permit could be
Applicant tendered a report prepared by an archaeologist on 21 August 2009
concerning whether the land had been subject to significant
and whether there was a need for a CHMP. The report states that buildings on the
land cover more than 70% of the
land and that both the rear and front yards are
completely paved. The report concluded that the land had been subject to
ground disturbance because machinery would have been used in initial
land clearance, site preparation and construction of the buildings
and works on
Azzure Investment Group Pty Ltd v Mornington Peninsula
SC, the Tribunal
accepted that significant ground disturbance can be established from comparative
and contextual information. Having
regard to the fact that the land is a small
urban lot, is part of surrounding land that has been levelled years ago for
has been substantially developed with buildings, driveways
and urban services, I am satisfied that the land has been subject to significant
ground disturbance under the principles in this case.
CHMP is therefore not required before the grant of a
Is the proposal consistent with State and local policy?
was no disagreement that the proposal is broadly consistent with State
policy recognises growing demand for medium density housing. It identifies areas
that are more suitable to accommodate more
of this housing. The land is located
in an area where increased housing densities are encouraged.
proposal is therefore consistent with State and local
Does the proposal respect neighbourhood character?
the Council’s neighbourhood character study, the land is located in the
Seaford 7 precinct, where modest timber and fibro cottages in the narrow
strip between the Bay and the creek are being replaced by two and
preferred character statement and design objectives emphasise minimising impacts
of buildings over two storeys on the streetscape,
using lighter building
materials to complement a coastal setting, ensuring adequate side and rear
setbacks, and reasonable view sharing.
Council’s concern is that the basement presents as a storey. This is said
to result in additional overall building mass,
and creates ground level
balconies, and excessive privacy treatments along the north boundary and for the
first floor windows. It
is also concerned that the front elevation design
exacerbates its height and mass, and building materials lack integration.
this case, weight needs to be given to the context of the land in assessing
respect for future character. The land is an infill
site, being an island
surrounded by a large, medium density development of 17 two and three storey
townhouses on three sides.
proposed three storey (two levels of dwellings plus basement) building is
consistent with this prevailing surrounding character.
Side and rear setbacks
are generally smaller in the proposal than the townhouse complex, but the
townhouse complex had to respond
to road and creek abuttals. The south side
setbacks of the proposal and of the townhouse complex (ie units 14 to 17) are
of respect for existing or preferred character is not grounds on which to refuse
Is the visual bulk of the proposal excessive?
proposal presents as a two and a half storey building from the Nepean Highway.
Landscaping will help to obscure the part basement
level and, over time, the
building will be seen as a two storey building. Along both side boundaries, as
the land falls away from
the frontage, and along the rear boundary, the building
is viewed as a three storey building. At the rear boundary the overall building
height is 9.195 m.
top storey is not set back 3 m from the storey below at the frontage, in
accordance with local policy. However, the relatively
small site, and the degree
of articulation in the front elevation and varied use of materials assists in
north side setbacks are nil (in part) at the ground (part basement) level, 1.8 m
at the first storey and 3.3 m at the top storey.
South side setbacks are 1.2 m
at ground (part basement) level and first storey, and between 2 m and 3.3 m at
the second storey. Rear
setbacks are at least 1.2 at the ground (part basement)
level, 1.0 m at first storey, and 4.8 m at the top storey. Balconies protrude
into these setbacks at various points. The length of basement wall (about 18 m)
located on the north side boundary is satisfactory
because it abuts an open
parking and garden area of the townhouse complex. Being on the south of this
area, it will not shadow it
any way. In the unusual context of the site, the
recessive upper levels plus wall articulation and lightweight balconies all
in reducing visual bulk.
Roger’s dwelling (townhouse 13) is located about 8 m east of the rear
boundary of the land. He has a particular concern about
the height and bulk and
of the proposal along the rear boundary, and consequent loss of coastal views.
Both the proposal and his
dwelling are three storey buildings as they face each
other. The proposed building is 9.1 m above the natural ground level at its
boundary. Mr Roger’s dwelling is 9.4 m high (to the top of its parapet)
above the natural ground level at the front of
his dwelling. Natural ground
level at the front façade of Mr Roger’s dwelling would be about 60
cm lower than the same
level at the rear boundary of the proposed building,
according to the plans of the proposal and documents tabled by Mr Roger. Hence,
overall height of the two buildings will be similar.
Roger will lose a degree of an open outlook as the separation between the
respective first floors will be about 9 m and between
the respective top floors
will be about 12 m. However, the loss of outlook is not unreasonable. A reduced
view corridor to the coast
is likely to remain available from top floor windows
of Mr Roger’s dwelling, due to the 3 m setback of the top floor of the
proposed building from the south boundary. It is well established that loss of
views is no proper basis on which to refuse proposals.
overall height of the proposed building will be lower than the adjoining three
storey dwelling abutting the north side of the
therefore conclude visual bulk is not unreasonably
Does the proposal achieve a satisfactory standard of design?
Council was concerned that minimal side and rear setbacks will provide
inadequate opportunities for canopy landscaping. The local
policy does not
expressly seek to provide canopy landscaping in this location, but planting of
appropriate coastal species. Proposed
landscaping strips, though not large, can
provide sufficient space for landscaping using coastal species to soften the
of the building.
proposal complies with most of the cl 55 design and amenity standards. Site
coverage exceeds the applicable standard. Section
A-A on the plans shows that
the north side boundary setbacks do not comply, in part, with the applicable
standards. However, Section
A-A does not appear to accord with the floor plans
because Section A-A shows a 2 m side setback from the north boundary whereas the
top floor plan show a setback of 3.7 m at Section A-A. The privacy standards are
met but require extensive screening of windows and
balconies in the proposal.
The position of the stairwell (at the front of the building and not its side)
reduces the ‘active’
useable frontage and viewlines, but is not a
basis to require a redesign.
building is of contemporary design. Local policy aims to achieve a lightness of
structure and use of subdued colours. The mixed
external building materials
included bold, dark purple-coloured tiled sections on each of the four
elevations. The size of the section
on each elevation varies, but on the south
elevation, the section is up to 12 m wide over two floors. The use of
is inappropriate. Use of more lightweight materials is
Do any other matters warrant rejection of the proposal?
new access to Nepean Highway consists of a two-way driveway into the basement.
This replaces the existing and inappropriate full
length crossover. VicRoads
does not oppose the grant of a permit subject to conditions. The parties do not
oppose the conditions.
Country Fire Authority does not oppose the grant of a permit subject to the
inclusion of three conditions. The parties do not
oppose the conditions.
Roger was also concerned about excessive west wind channelling near his dwelling
preventing reasonable use of his first floor south-facing
balcony. There was no
evidence of these effects and the extent to which they would be unreasonable. He
is also concerned about the
spread of fire from the proposed building to his
dwelling, the clearance of alleged asbestos in existing buildings to be
the parking of construction vehicles and the loss of market value of
his dwelling. To the extent these issues are relevant, I have
consideration and concluded individually and collectively they are not a proper
basis on which to refuse a permit.
What conditions are appropriate?
of the VicRoads conditions requires a redesign of the basement ramp so that it
is flatter at its entrance (ie 1:20 for first 6
m). The Council’s
representative observed this may require the first floor level to be raised at
the entrance, with a consequential
raising of the overall building height. The
Applicant’s representative considered the condition could be met without
of overall height. There was no objection to the inclusion of a
condition to this effect. There is also a consequential risk that
the ramp may
be longer as a result, and that this may affect the capacity to provide nine car
spaces in the basement. I will leave
this to the Council and Applicant to
resolve, but observe there are generous storage areas (about 15 cubic metres
each) for each
dwelling and these areas could be reduced if required.
the front setback, the proposal includes a pedestrian ramp to the entrance at
the first floor. The Building Code of Australia does not require a ramp
and could be deleted. Residents will enjoy lift access from the basement. In
light of the local policy and
the importance of landscaping, the area occupied
by the ramp would, on balance, be better used as garden.
condition is required to ensure side setbacks, especially the north side
setback, complies with setback standards. The Applicant
did not oppose this
the above reasons, the decision of the responsible authority is set aside and a
permit is granted subject to conditions.
261 Nepean Highway, Seaford
WHAT THE PERMIT ALLOWS:
Construction of six dwellings in a three storey building and alteration of
access to a road in a Road Zone Category 1 in accordance
with the endorsed
to the commencement of works, amended plans to the satisfaction of the
Responsible Authority must be submitted to and 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, and three (3)
copies must be provided. The plans must be generally in accordance with the
plans prepared by Thomas Anderson Design entitled ‘Proposed
Apartment Development 261 Nepean Highway Seaford’ Job 08-0396
dated November 2009 Issue E and numbered 1 – 6 (inclusive), but modified
- (a) The
basement ramp and vehicle crossover design consistent with the functional layout
plan approved by Vic Roads and the Responsible
Authority under condition 6. The
basement ramp design must not result in an increase in the overall height of the
on the amended plans, except with the consent of the Responsible
- (b) An increase
in side and rear setbacks of the building (including balcony screens), where
necessary, to achieve compliance with
the minimum setback requirements of
Standard B17 of Clause 55 of the Planning Scheme.
- (c) The maximum
height of basement, ground and first floor walls above natural ground level at
both ends of all four elevation plans.
- (d) Detailed
plans of proposed balcony and window privacy screens including materials,
heights above finished floor level and the
degree of transparency. These plans
must demonstrate that the screens have maximum 25 percent openings, minimum
heights of 1.7 metres
above floor level and colours/materials that blend with
the development, as required by Standard B22 of Clause 55.
- (e) Notations
on the north, east and south elevations that all highlight windows have sill
heights of at least 1.7 metres above finished
- (f) Replacement
of the tile cladding proposed to parts of each of the elevations with a more
lightweight material such as timber panelling
- (g) Deletion of
the pedestrian ramp towards the southern end of the frontage and its replacement
layout of the development as shown on the endorsed plans must not be altered
without the prior written consent of the Responsible
levels as shown on the endorsed plans must not be altered without the prior
approval of the Responsible Authority.
to the commencement of works, a landscape plan prepared by a suitably qualified
and experienced person or firm must be submitted
to and approved by the
Responsible Authority. When approved, the plan will be endorsed and will then
form part of the permit. The
plan must be drawn to scale with dimensions and
three copies must be provided. The plan must show:
- (a) Information
required by the Frankston City Council Landscape Town Planning Guidelines;
- (b) A survey
(including botanical names) of all existing vegetation to be retained and/or
- (c) Buildings
and trees (including botanical names) on neighbouring properties within three
metres of the subject site boundary.
- (d) Details of
surface finishes of pathways and driveways, retaining walls, fence design
details and other landscape works including
areas of cut and fill.
- (e) Provision
of canopy vegetation (minimum two metres height when planted) within the front
setback and, where practicable, along
the north, east and south sides of the
basement. The density of planting around the basement perimeter must be
sufficient to provide
a visual screen along side/rear boundaries.
- (f) A schedule
of all proposed trees, shrubs and ground cover, which includes the location and
size at maturity of all plants, the
botanical names of such plants and the
location of all areas to be covered by grass, lawn or other surface material as
- (g) Landscaping
- (i) Be
consistent with the Character Element “Vegetation” of Precinct
Seaford 7 of Council’s Neighbourhood Character
- (ii) Not
include garden escapees (weed species) that are found in the sustainable
Gardening in Frankston booklet are to be planted
within the property; and
- (iii) Consist
of 40% indigenous and 40% native species appropriate to the EVC and with regard
to all weedy species list on Council
An endorsed copy of the plan must form
part of this permit.
Coastal Acid Sulphate Soil Test
soil test is undertaken by a qualified geotechnical engineer to test for the
presence of coastal acid sulphate soils, with the results
to be forwarded to the
Responsible Authority. The site must be assessed in accordance with EPA
Publication 655 – Acid Sulphate
Soil and Rock. If acid sulphate soils are
found to be present, an Environmental Management Plan must:
- (a) Be prepared
in accordance with the requirements of the Environment Protection Authority
Industrial Waste Management Policy (Waste
Acid Sulphate Soils) and forwarded to
the Responsible Authority; and
- (b) All works
on the site must be in accordance with the Environmental Management
Vic Roads conditions
to the commencement of works on the site, the applicant is to submit a
functional layout plan to VicRoads and the Responsible
Authority for approval.
The layout plan must be generally in accordance with the amended plans referred
to in condition 1.
edges of the vehicular crossover to be angled at 60 degrees to the road reserve
boundary, to improve entry and exit conditions,
to the satisfaction of the
to the approval of the functional layout plan the applicant must apply for and
receive written consent from VicRoads for
works within the Nepean Highway road
reserve in accordance with Section 63 of the Road Management Act 2004.
applicant must pay the full cost of all roadwork's, drainage, road safety
devices, service relocations, civil works, and any other
associated costs i.e.
all works to be complete at no cost' to VicRoads.
applicant shall ensure landscaping adjacent to the car park access ramp is of
such a height that site lines to passing vehicles
and pedestrians, are
maximised, to the satisfaction of the Responsible Authority.
- (a) Prior to
the occupancy of the building, above or below ground hydrants must be provided
within five metres of the main entry
to the site to the satisfaction of the
- (b) Three
copies of water reticulation drawings must be provided to CFA for approval.
- (c) Fire
hydrants must be clearly identified as specified in the Fire Service Guideline
“Identification of Street Hydrants for
and Works Requirements
- (a) Any
building must be constructed consistent with a minimum Bushfire Attack Level
(BAL) of BAL-12.5 in accordance with
stormwater runoff generated from roofed and paved areas must be direct to the
nominated legal point of discharge located in the
north eastern corner of the
property and discharged into the 225mm diameter Council stormwater drain to the
satisfaction of the Responsible
of a Stormwater Detention System with a volume capable of retarding the 10 year
ARI flow from the development site back
to a 5 year ARI pre-development value to
the satisfaction of the Responsible Authority (Infrastructure Manager).
to commencement of development construction detailed design plans and drainage
computations of the internal stormwater drainage
system including the method of
connection to the existing Council drainage infrastructure are to be submitted
and approved to the
satisfaction of the Responsible Authority (Infrastructure
Sensitive Design Urban Design Principles (WSUD) are to be incorporated into the
drainage design to the satisfaction of the Responsible
Authority, which may
include but not be limited to the following components or a combination
stormwater detention and rain water tanks
harvesting and re-use of stormwater for garden watering, toilet flushing,
‘bio-treatment’ to reduce dissolved contaminants and suspended
the development involves work on or access to Council controlled land including
roads, reserves and rights of way, the owner,
operator and their agents under
this permit must at all times take adequate precautions to maintain works to the
highest public safety
Precautions are to include
appropriate signage to S1743 Road Works Signing Code of Practice, the provision
of adequate barricading
of works, including trenches of service authorities and
any other road openings sufficient to ensure public safety.
All relevant permits must be obtained from Council for works within the
existing road reserves in addition to the planning permit.
proposed vehicle crossing shall be constructed to Frankston City Council’s
standards and specifications to the satisfaction
of the Responsible Authority
existing vehicle crossing shall be removed and the area reinstated to kerb and
channel and landscaped to the satisfaction of the
to occupation of the dwellings hereby permitted, areas set aside for parking
vehicles, loading bays, access lanes and paths
as shown on the endorsed plans
must be :-
- (a) Constructed
to the satisfaction of the Responsible Authority.
- (b) Properly
formed to such levels that they can be used in accordance with the plans.
- (c) Surfaced
with an all-weather sealcoat.
- (d) Drained and
maintained to the satisfaction of the Responsible Authority.
- (e) Line-marked
to indicate each car space and all access lanes and if necessary, the direction
in which vehicles are to travel to
the satisfaction of the Responsible
- (f) Car spaces,
access lanes and driveways must be kept available for these purposes at all
plumbing work, sewer pipes etc. (except for spouting and stormwater pipes)
associated with the new dwelling must be concealed
lights must be installed in such positions to effectively illuminate all
pathways, car parking spaces and other public areas
to the satisfaction of the
lighting must be provided, designed, baffled and located to prevent any adverse
affects on neighbouring land to the satisfaction
of the Responsible
Waste Management condition
plans are endorsed under condition 1, a Waste Management Plan must be submitted
to and approved by the Responsible Authority.
The Waste Management Plan must
- (a) Dimensions
of waste areas.
- (b) The number
of bins to be provided.
- (c) Method of
waste and recyclables.
- (d) Hours of
waste and recyclables collection.
- (e) Method of
presentation for waste management.
- (f) Strategies
for how the generation of waste and recyclables from the development will be
When approved, the plans will be endorsed and
will then form part of the permit. Waste collection from the development must
accordance with the plan, to the satisfaction of the Responsible
permit will expire if one of the following circumstances applies:
- The development
is not commenced within two (2) years of the date of this permit.
- The development
is not completed within four (4) years of the date of this
The Responsible Authority may extend the period
referred to if a request is made in writing before the permit expires or within
--- End of Conditions ---
I have considered all submissions presented by the parties although I do not
recite all of the contents in these reasons.
 See eg
Ronchi v Wellington SC  VCAT
Aboriginal Heritage Regulations 2007 r
Aboriginal Heritage Regulations 2007 r
  VCAT
1600 (Dwyer DP, 14 August 2009)