Development and Planning Issues
This section contains planning decisions, reports on planning cases in dispute and other similar matters.
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What do you want for the Flinders Pier Precinct? Please provide your views to the consultants who are helping FCA to develop a master plan - Bruce Allen & Rebecca Naughtin Architects - send your comments to: info@allennaughtin.com or ring on (03) 9866 1188. See notes and issues below.
Source: Mornington Peninsula Shire Council
WHAT PEOPLE WANT?
1. Rain protection/shelter
2. Pedestrian safety
3. Reduce beach access routes from carpark
4. Restricted carparking for commercial users
5. Upgrade of open space adjacent to the slipway
6. Additional picnic tables
7. No increase in boating activity
8. Renovation of existing toilet block
Preparation of landscape master plan
Coordinated signage
ISSUES TO ADDRESS
Location for fuel storage
Management of commercial vessel refuelling
Illegal trailer parking
Use of the pier and cargo sheds
Possible restoration of the winch shed
Rubbish bins on jetty and land
FURTHER IDEAS TO THINK ABOUT
Pedestrian path parallel to the carpark:
The present arrangement using the carpark aisle as a pedestrian path is unsatisfactory. A path along the beach side of the carpark should be explored.
Signage:
There is a Flinders wide opportunity to improve the graphic design of signage and to further investigate the use of information boards in addition to directional signs.
Shelter:
There is a need for shelter from rain but a desire to limit the construction of extra buildings. One possibility is to build a 2.4 m wide veranda on all four sides of the existing storage shed.
Amphitheatre:
The natural amphitheatre area has potential for design to accommodate picnics and small performance or displays. There is a need for shade trees and improvement of the retaining walls.
Gravel carpark:
This should have restricted access for commercial users only and be improved. The gravel surface should be drained properly but need not be sealed.
Waste management and maintenance:
The Shire Council will need to take responsibility for this.
THE NEXT STEPS
The consultants will prepare design recommendations and propose a master plan for comment by residents. This will be displayed by the FCA.
A final master plan report with design ideas will be prepared by the consultants and submitted by the FCA to the Shire Council as a community proposal for development of the area.
BACKGROUND INFORMATION
There is a need to improve the precinct where the Flinders Pier meets the land. This need has been recognised by the Shire of Mornington Peninsula and steps have been taken to consult with interest groups and prepare a plan for change.
The Flinders Community Association (FCA) has decided to assist this process by appointing Bruce Allen and Rebecca Naughtin Architects to prepare a proposal on behalf of the FCA.
THE STORY SO FAR
A report titled ‘Flinders Foreshore Reserve Coastal Management Plan’ was prepared by URS Australia Pty Ltd for Parks Victoria in 2008. This provided a strategy for development of the pier and established policies for protection of the coastal areas.
The design of the pier has disappointed many people in Flinders for reasons of both aesthetics and function.
The Shire consulted with stakeholders in June 2011 to start the process of preparing a master plan for the coastal area adjoining the pier. In October 2011 the FCA decided to give momentum to the process by appointing their own consultants to prepare a proposal incorporating the ideas of the FCA.
To date a meeting has been held with stakeholders and the relevant Shire Officers. There is a mood of cooperation between all groups and a surprising level of agreement about problems and desired results.
The main areas of agreement are to protect the landscape and ecology, limit commercial development and new construction, and improve pedestrian safety and the landscape/urban design quality of the area.
VCAT ISSUES PERMIT FOR RETIREMENT VILLAGE IN FLINDERS - posted on 30/9/2011
VCAT has allowed a permit to be issued to the Cipriani family for the construction of a 33 unit retirement complex at 163 Wood Street, Flinders in spite of objections from the Mornington Peninsula Shire and the vast majority of Flinders residents. This disappointing result overturns an earlier rejection by VCAT of the original 42 unit proposal.
In November last year VCAT rejected the applicant’s case for the 42 unit complex on the grounds that “the proposed development is not respectful of the desired neighbourhood character due to excessive building bulk together with inadequate opportunites to provide offsetting landscaping around the site's perimeter , particularly to the north and parts of the eastern and southern boundaries. Whilst we acknowledge that the proposal would increase housing diversity in Flinders, we have noted that there are other policies that clearly work against optimising housing diversity. In that context, we do not consider the benefit of increased housing variety out weighs other policies placing greater weight on maintaining the prevailing character of Flinders as one of modest housing set within a more dominant landscape.”
In this reversal of their original decision VCAT noted in particular that the numbers of units had been reduced by 9 to 33 and that perimeters setbacks on the northern, eastern and southern boundaries had been increased from generally 4 metres to between 6.3 and 11.1 metres so that more extensive landscaping was now possible. On this basis the Tribunal now considers the complex does fit with local neighbourhood character.
The Flinders Community Assocation cannot comprehend how a two storey multi-unit complex of the magnitude approved can possibly be seen as harmonious with the surrounding homes in Gordon and Hurst Streets and The Avenue behind. It is yet another example of how a communuty can be left baffled by the Court's interpretation of the myriad of laws that can be applied to an argument. It is also worrying that so much reliance can be placed on using landscaping as a way of excusing a form of unsuitable architecture. Good and sensitive architecture should be able to stand on its own merits and not have to hide behind camouflage.
The implications of this decision are profound. This type of retirement complex could be repeated in other coastal villages along the Westernport coastline at the cost of eroding the characteristics of these villages that typify the true ambience of the Peninsula.
The Association would like to thank all those who supported our case and especially for their generous donations to cover our legal costs.
The full transcript of the decision can be found by clicking here
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Cipriani Development refused again - but appeal to VCAT listed (2011)
The Mornington Peninsula Shire (MPS) has refused the latest Cipriani application to develop its 165 Wood Street site to allow 39 "Aged Apartments" to be developed there.
The substantial two-storey building would have been, in the view of the FCA, totally inappropriate for this location which is right on the approach to Flinders from Melbourne.
That has not stopped the developer appealing the decision to VCAT - despite earlier plans being refused there.
The FCA will again oppose because it sees it as an inappropriate development at the entrance to Flinders Village and says that it is certainly not a "retirement village" as has been projected. It is a ploy to sell as many flats as possible on the space using the designation "aged apartments".
The reasons given by MPS Senior Statutory Planner (David McPherson) for rejecting the last proposal were that it is:
* An overdevelopment of the site and poorly located in terms of need, access to transport and community facilities
* An inappropriate planning outcome that does not fit with the streetscape and existing neighbourhood character: "in particular, the proposal fails to respect the existing neighbourhood character or respond appropriately to the features of the site or the surrounding area".
* Likely to result in a poor level of internal amenity for the future occupants of the retirement apartments by not providing sufficient open space, natural daylight and sunlight to balconies and rooms
* The proposed retirement village does not have proper regard to the established character and development pattern in terms of height, scale, extent of built form and siting
* The scale and extent of the built form does not provide adequate landscaping opportunities within the site to allow for canopy trees in a more central location in keeping with the existing and emerging character of the surrounding area
Note. The details of the Shire's opposition are important as they indicate a general attitude to preserving the character of our village and, from the FCA's viewpoint, are to be greatly applauded.
VCAT CIPRIANI DECISION - full text -September 2009
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
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planning and environment LIST |
vcat reference No. P1545/2009 Permit Application no. P08/3107 |
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CATCHWORDS |
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Proposed retirement village in Residential 1 zone. Issues: neighbourhood character, Vegetation Protection Overlay, Interim Measures for Bushfire Protection. Whether proposal consistent with the preferred neighbourhood character of a coastal township in Mornington Peninsula Shire. |
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APPLICANT |
Ms. Susan Cipriani |
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responsible authority |
Mornington Peninsula Shire Council |
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RESPONDENTs |
D. Fergus, B. Clarke, G. & J. Gaze, N. Wale, S. & J. Grimshaw, Ph. Hall, A. Menassa, C. & C. Draper, J. Iles, A. & R. Long, S. Smith, R. Niall, C. Harris, N. & K. Bayton, J. Ruggles, The Owner, 16 Dalmont Street Highett. |
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SUBJECT LAND |
163 & 165 Wood Street and 27 Gordon Street, Flinders |
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WHERE HELD |
Melbourne |
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BEFORE |
Michael Read, Member Jane Homewood, Member |
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HEARING TYPE |
Hearing |
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DATE OF HEARING |
24th September 2009 |
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DATE OF ORDER |
23rd November 2009. |
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CITATION |
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Order
1 The name of the permit applicant and the applicant for review are amended pursuant to Clause 64(2) of Schedule 1 and Section 127 respectively of the Victorian and Civil Administrative Tribunal Act, 1998, to Susan Cipriani.
2 The permit application plans are amended by substituting plans identified as Project Number 9030, dated 25-08-09, drawing nos. TP2 to TP13 inclusive.
3 The decision of the Responsible Authority is affirmed.
4 In permit application Permit Application P08/3107 no permit is granted.
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Michael Read Member |
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Jane Homewood Member |
APPEARANCES
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For Poppi Developments Pty Ltd. |
Mr. Mark Bartley, lawyer, of Phillips Fox. Mr. Bartley called, as expert witnesses, the following:
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For Mornington Peninsula Shire Council. |
Mr. David O’Brien, barrister, instructed by Mr. Rory O’Connor of Deacons. Mr. O’Brien called, as expert witness, Mr. David Hansen, town planner, of Hansen Planning Services. |
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For the Respondents. |
Messrs. Hall, Gaze, Wale, Draper, Iles represented themselves. Mr. Gaze also represented Mrs. Gaze and Mr. Draper represented Mrs. Draper. Mr. Wale called, as expert witness, Mr. James Holdsworth, urban designer, of Planning Collaborative (Vic) Pty Ltd. |
INFORMATION
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Description of Proposal |
Use and development of the land for a two storey retirement village comprising 42 apartments in two buildings, with a separate single storey gymnasium and pool building, over a basement car park, associated vegetation removal, a new vehicle crossing to Wood Street and associated works on the land. |
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Nature of Application
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Application for review of Council’s refusal to grant a permit in accordance with the provisions of Section 77 of the Planning and Environment Act 1987. |
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Zone and Overlays
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Residential 1 Zone (R1Z) Design and Development Overlay (Schedule 2) (DDO 2) Vegetation Protection Overlay Schedule 1 (VPO1) – part of land Vegetation Protection Overlay Schedule 2 (VPO2) – balance of land Environmental Significance Overlay Schedule 28 (ESO28) – part of land The site abuts land in a Road Zone Category 1 (RDZ1), being Wood Street. The Significant Landscape Overlay 3 (SLO3) applies to Wood Street. |
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Permit triggers |
Clause 32.01-1: use of land for a retirement village Clause 32.03-1: construct a building or construct and carry out works for a section 2 use Clause 42.01-2: construct a building or construct and carry out works; remove native vegetation in ESO28 Clause 42.02-2: remove vegetation in VPO1 and VPO2 Clause 43.02-2: construct a building or construct and carry out works in DDO2 Clause 52.17: remove native vegetation on a site greater than 0.4 hectares in area Clause 52.29: create or alter access to a road in a Road Zone, category 1. |
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Relevant policies |
Relevant State policies include Clause 19.03 – Design and built form Relevant local strategies and policies include: Clauses 21.04, 21.06, 21.07-1 Clause 21.07-2 – Local area character. |
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Land description |
The land comprises three properties: 163 Wood Street, 165 Wood Street and 27 Gordon Street, with a combined land area of 5835 square metres. The land has a frontage of about 61 meters to Wood Street and a depth of about 88 metres. No. 163 Wood Street contains a single storey dwelling. 165 Wood Street incorporates 27 Gordon Street and is ‘L’ shaped, with a relatively large two storey residential dwelling that is used as a reception centre and is centrally located on the site. The land slopes gently towards the east. Vegetation consists mainly of mature cypress and pine trees along the Wood Street and Gordon Street frontages and along the site’s eastern boundary. |
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Site inspection |
Following the hearing, we inspected the site and its locality from the public streets. |
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Reasons
Introduction
5 Poppi Developments Pty Ltd proposes to construct a 42-unit retirement village on a large site containing a substantial boundary treeline of pine and cypress trees and situated close to Flinders’ shopping centre. The proposed design involves construction of two two-storey buildings of modern design, removal of some of the pine trees and provision of new landscaping around the site’s perimeter, particularly those areas from which the pine trees are to be removed.
6 Council’s refusal to grant a permit related to its view that the proposal failed to satisfy a number of strongly correlated objectives that we summarise as having two key elements: the proposal would not sufficiently respect neighbourhood character and would not sufficiently retain or enhance existing patterns of important vegetation. Against these was the opposing objective of a response to a need for increased housing diversity in Flinders.
preliminary matters
7 On reviewing the material before us, we have noted that the application for review identified the applicant as Poppi Developments Pty Ltd, while the permit applicant form identifies the permit applicant as Insight Planning Consultants Pty Ltd. We have therefore amended the permit applicant’s name to that of the applicant for review.
8 Mr. Bartley requested us to amend the name of the permit applicant and applicant for review to the owner of the land, being Susan Cipriani.
Background
1. Mr Bartley raised concerns that he had not received Mr Holdsworth’s expert witness statement for the Flinders Community Associations until the 21st September 2009 which was after the circulation of the expert witness statements of other parties, putting him at a disadvantage. The Tribunal noted it had received the statement on the 11th September, 2009, prior to the circulation of the other witness statements. No party subsequently objected to the Tribunal accepting this statement.
Background
Site Context
2. The review site is located within the Flinders residential area and is approximately 300 metres north of the Flinders township activity centre.
3. The site frontage is to Wood Street which is the main road into the Flinders Township from the north. The surrounding residential area comprises predominantly single storey dwellings located on coastal garden lots, though there is a large area of yet-to-be developed land on the opposite side of Wood Street. Council has granted a planning permit for the residential subdivision of this land.
4. The subject site is characterised by significant vegetation on its boundaries with mature cypress and pine trees along Wood Street and Gordon Street frontage and the rear property boundary to the east. The cypresses are a visually prominent feature to Wood Street, particularly as one enters Flinders from the north approaching the village.
Council’s consideration of the permit application
5. Council required the permit application to be advertised to surrounding residents, resulting in 58 objections relating to the proposal’s non-compliance with a number of local policies, largely being those relating to scale and bulk, site coverage and lack of regard to character issues relating to Flinders Township and scenic value. Council issued a notice of refusal for this application. The permit applicant circulated amended plans to all parties to this review in accordance with the Tribunal’s Practice Note.
6. The amended plans comprise a two-storey retirement village comprising 42 apartments in two buildings separated by a north-south courtyard that is approximately 14.2 meters in width. The buildings are connected by a centrally located covered walkway. The courtyard contains a single storey gymnasium and pool building. The development sits over a basement car park within the Flinders Township.
7. Council’s traffic and engineering officers had no objection to the proposal. Council’s Urban Design planner recognised that there is need to provide higher density living options for ageing residents within Flinders but raised objection to the proposal in respect to size and bulk, lack of sufficient setbacks, impact on vegetation and insufficient landscaping. Council’s social planner objected to the proposal on the basis of poor internal amenity, limited private open space and lack of space for communal activities.
8. Council referred the plans to Vic Roads, which made no objections to the proposal.
9. Council has opposed the grant of a permit by the Tribunal on a number of grounds that are summarised below:
- Overdevelopment on the site with the proposals scale, bulk and height excessive;
- failure to respond to the requirements of Clause 19.03 and related local policy, particularly neighbourhood character;
- poor internal amenity for future occupants;
- variations to the Design and Development Overlay- Schedule 2 are not justified; and
- unacceptable vegetation removal and insufficient area for landscaping and canopy tree planting.
Tribunal’s consideration
10. We have considered the various written and oral submissions and written statements of evidence and oral responses to cross- examination. Written material provided to the Tribunal will remain ion the Tribunal’s file.
Basis of Decision
Agreed issues
9 Council agreed “the appeal site can be, and will be, redeveloped at a greater intensity than what is currently on the site” and this view appeared to be, explicitly or implicitly, supported by respondents. Some respondents also agreed that the site was suitable in principle for use for a retirement village and that there was some need for such a facility in Flinders. Council and the residents also agreed that such a facility would be larger and more bulky than the prevailing character of detached single dwellings or large lots. However, the area of dispute was about the acceptable scale of such a facility.
Irrelevant issues
10 The proposed development does not contain dwellings and the provisions of DDO2 that limit the density of dwellings to not more than one per lot, or not more than two for every 1,300 square metres of site area, do not provide a direct test of overdevelopment.
11 Mr. O’Brien submitted that the fact that the number of accommodation units exceeded the maximum dwelling density is a relevant demonstration of overdevelopment. While a dwelling and a retirement village are both categories of accommodation, they are separate categories; the latter is not a subset of the former.
Does the proposal respect the existing neighbourhood character of Flinders?
12 The question of neighbourhood character, in this case, involves both the extent of the proposed building’s scale and siting and also the extent to which appropriate landscaping is retained or can be established. We have concluded that, overall, the proposal involves too much of the former and insufficient of the latter and would not respect the neighbourhood character of Flinders township.
13 In seeking to establish the appropriate neighbourhood character for the site – whether it be Flinders township or the closer environs of the site – and the weight that we should give this aspect of policy in our overall balancing of competing policies, we must turn first to the Local Planning Policy Framework (LPPF) of the Mornington Peninsula Planning Scheme.
14 The only help, in terms of Council’s strategy, comes from Clauses 21.04, 21.06 and 21.07-2[1].
15 Clause 21.04 identifies Flinders as a “Coastal Township”. Clause 21.06, as part of its objective to “not prejudice the environmental, recreational … values of the Peninsula” includes the strategy:
- Give particular attention to the unique character and functions of the small coastal townships …, and to maintain their compact form and amenity.
16 Council proposes to implement this and other strategies, in part, by introducing appropriate overlays into the planning scheme, including DDOs, ESOs and VPOs.
17 Clause 21.07 Guiding Future Township Development contains a number of relevant objectives. Clause 21.07-1, dealing with integrated planning of townships and, in particular, their residential areas, includes an objectives providing for “diversity of housing choice”, access to services and facilities. Objectives include qualified support for “the development of greater housing diversity … within established areas …”, having regard to a number of matters including, in part:
- The function of each township.
- Existing and projected population characteristics.
- Environmental capacity and principles of best practice environmental management.
- The available and accessibility of services and infrastructure.
- The character of the neighbourhood ….
and for “the creation of habitat corridors where development is proposed adjacent to areas of environmental sensitivity”.
18 The Overview section of Clause 21.07-2 (Local Area Character) refers to two classes of township:
One key distinction is between areas where the street space is defined and enclosed by buildings in contrast to areas where open space, landform and landscape are dominant and provide a setting for buildings.
In this respect, the clause also refers to the importance of retaining existing bushland or woodland settings, which in turn “is often dependent on retaining larger lot sizes”.
19 Objectives of Clause 21.07-2 include ensuring that new development is “site and area responsive, having regard to … the neighbourhood character … of areas”. Strategies include, in part:
Ensure that proposed subdivision and development within existing townships demonstrates regard to:
- Environmental features and environmental capability.
- The retention of … existing vegetation.
- The established residential fabric.
- Maintaining the balance between open space, vegetation and building density.
- The relationship between the intensity of land use, traffic circulation, and parking requirements.
- The provision of appropriate landscaping …
20 Given the absence of any formal identification of either Flinders’ or the locality’s neighbourhood character (the planning scheme does not include any statement of the existing or preferred neighbourhood character for Flinders and there appears to be no relevant neighbourhood character study), we have to develop our own understanding of this.
21 We do not agree with Mr. Black that we should confine our understanding of the relevant neighbourhood character to that of the five allotments to any side of the subject site. We believe that this is an undesirably limiting approach and overlooks the reality that one would experience comprehend the nature and character of a small township, because of its compact nature and clear delineation from its surroundings, as a more holistic quality and one would gain this understanding by moving through more extensive areas of the township.
22 Council’s strategies identify Flinders as a coastal township and, by clear implication, as a place where “open space, landform and landscape or dominant and provide a setting for buildings”. We consider that this requires us to examine the neighbourhood character of Flinders by taking a wider view. We accept that Flinders will undergo a diminution of its present somewhat Arcadian character as further urban consolidation occurs, including further development of residential-zoned greenfield sites and construction of larger, more dominating dwellings on vacant site or to replace more modest existing dwellings: e.g. the subdivision and development of the large site on the opposite side of Wood Street; some recent housing in Gordon Street that includes no significant vegetation. While such further development will inevitably reduce the amount of vegetative cover around the township and while newer dwellings are more likely to be visually dominant, we do not consider that we can class Flinders as being in transition, or Council’s existing policies, implicit as they may be, as ones we can set aside.
23 A further important guide to Council’s expectation of the township’s future character is provided by the provisions of DDO2. We agree with Mr. Black that the proposal satisfies most of the general requirements of DDO2 and, where it does not (wall and building height, the front canopy’s set-back from Wood Street), the exception is not critical to the proposal’s general character. More importantly, though, is the mandatory provision limiting dwellings to one per lot, or not more than two per 1,300 square metres of site area. While there was general acceptance that any retirement village, by its nature, would have greater bulk than a collection of individual dwellings, the question remains as to where one should strike the balance between buildings and surroundings. The mandatory provisions of DDO2 indicate that Council intends to maintain the character of Flinders as a place where buildings remain subservient to open space and vegetation.
24 The question then is: would this building, notwithstanding its long elevations and generally two-storey height, be viewable within a sufficiently robust setting of vegetation and open space to achieve an acceptable degree of respect for the prevailing and intended character of Flinders?
25 As outlined by Mr Holdsworth, the proposal intends to remove a significant number of mature trees which are recognised as a defining element of the districts heritage and identity. Further the scale, bulk and site coverage of the proposal is inconsistent with the scale of the surrounding residential area.
26 The proposed building has a 15-metre setback from Wood Street and the Wood Street section of surrounding treelines is to be retained. Due to the proposed high site coverage, there can be only limited planting along the site’s northern and eastern boundaries - the proposed building is to have setbacks generally varying between about 4 and 6 metres. Along these latter boundaries, the existing treeline is to be removed and replaced with native species (predominantly Banksias and Casuarinas) while the same native species are to be established as a new treeline along the southern boundary. Limited planting is also proposed between the two banks of buildings: primarily Chinese elms, Capital Pears and Canary Island Palms.
27 Mr. Black’s evidence was not of great help, as its focus appeared to be on assessing the impact of the amended proposal against the original proposal in terms of its response to various policies and the purposes of relevant overlays. We agree with Mr. Black that the former is an improvement on the latter in all respects, but that is not the point.
28 We conclude that the proposal is acceptable in relation to the Wood Street presentation, due largely to the dominance of the existing treeline. While the proposed treelines to the other boundaries would, in due course, become dominant in height (due course would probably be quite a number of years) we are concerned about the lack of depth for these treelines relative to the extent of building structure. We consider that there are circumstances where one could introduce large buildings into Flinders, buildings that would otherwise be dominant in the township’s setting but, in general, one should site these with sufficient space and vegetation to ameliorate the building’s potential dominance. In this case, we conclude that the limited setbacks from other boundaries, particularly to Gordon Street and the parts of the eastern and southern boundaries closer to the street do not allow this proposal to meet the appropriate test.
29 We therefore agree with Mr. Hansen[2] that the proposal “does not respect the values of the local community and does not have regard to the character of the neighbourhood”.
Would the proposal sufficiently retain or enhance existing patterns of important vegetation?
30 The site has dominant treelines along three boundaries, consisting largely of exotic species (pine and cypress) and two of these (but not the most publicly dominant treeline along the site’s frontage) are to be replaced with indigenous species of large scale. We consider this would be acceptable.
31 The most relevant control over the removal of vegetation is VPO2, which specifically protects the three treelines (west, north and south). VPO1 applies to the interior of the site and no one raised concerns about the loss of some interior vegetation. ESO2 (which also applies to the treelines) only protects native vegetation and such as does occur (some examples exist, including some trees in the treelines) appears to be of limited value.
32 VPO2 includes objectives seeking to maintain “the high landscape quality of roadsides and other areas”, habitat values and the “cultural significance of all treelines”. It recognises the inevitability that some treelines will be replaced and includes objectives relating to the replacement of treelines with appropriate species, having regard to “cultural landscape values”.
33 The parties made submissions in relation to the recently gazetted amendment Clause 52.43 Interim Measures for Bushfire Protection, which currently provides an exemption from any permit requirement in a number of circumstances, including:
- The removal, destruction or lopping of any vegetation within 10 metres of a building used for accommodation (and)
- The removal, destruction or lopping of any vegetation for a combined maximum width of 4 metres either side of a fence on a boundary between properties in different ownership.
34 On this basis, no permit is required to remove all of the existing treeline along the eastern side of the property, as it is either within 4 metres of the adjoining property’s fence line or within 10 metres of the adjoining dwelling (or both).
35 Mr. Latte’s evidence was that the Wood Street cypress hedge (treeline) was the most important and should be retained, but that suppressed species within it should be culled (he rated most of these trees as “Moderate” value[3]). He concluded that the Gordon Street pine treeline was next most important, though “far less important than the Wood Street hedge” and had been affected by pruning to avoid the adjoining power line. He considered the remaining trees to be of little value (he rated almost all trees in both treelines as either “Fair” or “Low”[4]). He also concluded that the proposal would not have a significant impact on trees on adjoining properties.
36 In this case, given the proposed retention of the Wood Street treeline (subject to due care in its enhancement and in nearby construction, which we do not consider we need to explore here, given our other conclusions), we consider the removal of the Gordon Street treeline and the proposed establishment of new treelines of indigenous species along Gordon Street, the eastern and the southern boundaries are acceptable. These proposals would appropriately retain or support valued environmental and cultural landscapes as defined in the relevant overlays and Council’s policies.
37 Mr. O’Brien submitted, in effect, that we should not approve the removal of any treelines and then apply the intentions of Clause 52.43 by not approving any accommodation building within 10 metres of such trees.
38 We have concluded that it is not necessary for us to explore the implications of Clause 52.43 for the site’s larger setting or whether it is acceptable to approve a development that includes buildings within 10 metres of newly established trees[5]. These issues raise particular or technical matters about which no one made detailed or specific submissions.
39 We note, in passing, that the dilemma of protecting vegetation appears to be two-fold, relating as it does to the two issues of ensuring long-term retention of existing vegetation and re-establishing desirable vegetation. While one can prevent removal of privately owned, valued treelines in the shorter term, they will inevitably decline and will have to be removed. It appears that this is the emerging situation for the Gordon Street and eastern-boundary treelines. While one may value Flinders for its character of houses set amongst trees the fact is that, where permits are not required to construct buildings (as for single dwellings) many owners seem reluctant to plant the kind of vegetation that is so valued a part of the township, leaving this to their neighbours or Council.
Does the need for greater housing variety justify, on balance, our approval of this proposal?
40 We are required[6] to strike an appropriate balance between, on the one hand, the proposal’s possibly detrimental affect on neighbourhood character and cultural landscapes and, on the other, increasing housing diversity (both matters supported by local strategies). We have concluded that the local strategy imperative seeks to minimise housing variety in Flinders, where this would be at the expense of neighbourhood character or specified environmental qualities.
41 Mr. Black expressed the view that the proposed development would provide a net community benefit because it would increase the variety of housing, referring in this respect to Clause 16.06-2, which refers specifically to aged care facilities rather than retirement villages. He also referred to the increased ageing of the local community and the need to fill an emerging housing gap in order to better support “ageing in place”. Mr. Wale emphasised the relatively high proportion of elderly residents in Flinders and there appeared to a general acceptance by respondents that it would be beneficial to increase the variety of housing in Flinders, with a focus on housing suitable for the older residents; also that this site is suitable for such housing. The site is certainly reasonably close to the commercial centre of Flinders.
42 While we accept that the provisions of Clause 16.06-2 provide guidance for other types of housing for older persons, we need to look to local policies to see how they apply the State Planning Policy Framework (SPPF) at the local level. Overall, we feel that the Local Planning Policy Framework (LPPF) is relatively oblique when it comes to indicating what types of housing should be given preference in coastal townships.
43 We think the best way of understanding Council’s intentions is to examine the four DDOs that apply to Flinders. All but one effectively ban apartment-type dwellings: DDO2 prohibits dwellings at a density greater than 2 per 1,300 square metres, which hardly provides an alternative housing type. DDO6 applies to the Low Density Residential zone and any subdivision must create lots with an average area of one hectare. DDO3 generally provides for only one dwelling on a lot and lots are intended to be of at least 1,500 square metres area. Only DDO14, which applies to the very small area of the township’s commercial centre provides that a permit may be granted to construct more than one dwelling on a lot.
44 Consequently, excluding dependent persons units and sites affected by an approved development plan, the only place in which any housing can be built other than typical, single dwellings is in the very limited area of the Business 2 zone. Quite clearly, through its design of these DDOs, Council’s priorities for Flinders township do not include providing for any significant housing variety but place greater emphasis on issues of neighbourhood character.
Conclusion
45 For the reasons set out above, we have concluded that the proposed development is not respectful of the desired neighbourhood character due to excessive building bulk together with inadequate opportunities to provide offsetting landscaping around the site’s perimeter, particularly to the north and parts of the eastern and southern boundaries. Whilst we acknowledge that the proposal would increase housing diversity in Flinders, we have noted that there are other policies that clearly work against optimising housing diversity. In that context, we do not consider the benefit of increased housing variety outweighs other policies placing greater weight on maintaining the prevailing character of Flinders as one of modest housing set within a more dominant landscape.
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Michael Read Member |
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Jane Homewood Member |
[1] Clause 22.13 (Township Environment) is the only policy statement of any relevance, but while it has one objective and one decision guideline relating to vegetation protection, it has no related policy.
[2] Section 6.7.3 of Mr. Hansen’s evidence
[3] Moderate meaning “significant at street or locality level, large trees in good condition.
[4] Fair meaning “significant at the property level; may be readily replaced by similar value trees; of no particular merit or small canopy volume”
[5] We understand that a quite similar application for review, which involves a proposed retirement village in Mornington Peninsula Shire and which includes tree removal, is now before VCAT. VCAT has made an interim decision – Mainstay Australia v Mornington Peninsula SC [2009] VCAT 2098 – and the matter has been adjourned to February to allow a test-case hearing of submissions in relation to the proper interpretation of Clause 52.43. VCAT issued directions for the hearing over this latter issue on the 12th November 2009.
[6] Clause 11.01 of the Mornington Peninsula Planning Scheme requires the responsible authority to “balance conflicting objectives in favour of net community benefit and sustainable development”.