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Defenders of the South East Green Wedge v Mornington Peninsula SC [2007] VCAT 2357 (12 December 2007)

Last Updated: 20 December 2007

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P1616/2007
PERMIT APPLICATION NO. P06/2879
CATCHWORDS
Planning and Environment; Re-subdivision of lots; application of clause 35.04-3 exemption provided no increase in the number of dwellings; net community benefit.

APPLICANT
Mt Eliza Action Group Inc and Others
RESPONSIBLE AUTHORITY
Mornington Peninsula Shire Council
RESPONDENT
CJ Farms Pty Ltd
SUBJECT LAND
1225 Nepean Highway and 1 Albatross Avenue
Mount Eliza
WHERE HELD
55 King Street, Melbourne
BEFORE
Anthony Liston, Senior Member;
Tonia Komesaroff, Member.
HEARING TYPE
Hearing
DATE OF HEARING
8-15 & 27 November 2007
DATE OF ORDER
12 December 2007
CITATION
Defenders of the South East Green Wedge v Mornington Peninsula SC [2007] VCAT 2357

ORDER

The decision of the responsible authority is varied. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 for the land at 1225 Nepean Highway and 1 Albatross Avenue Mount Eliza which allows the re-subdivision of the subject land in accordance with the endorsed plans. The Tribunal directs that the permit must be subject to the following conditions:

Layout not altered

  1. The subdivision as shown on the endorsed plan must not be altered or modified without the consent in writing of the responsible authority.

Amended plan

  1. Prior to the certification of a plan of subdivision by the responsible authority, an amended plan generally in accordance with the Concept Plan by Watsons PL Plan Number 35583CP-A Revision O must be submitted showing:

This amended plan must be submitted and approved to the satisfaction of the responsible authority and when approved such plan will become the endorsed plan under this permit.

Prior to certification

  1. Prior to the certification of the plan of subdivision hereby permitted, the plan must be referred to South East Water, United Energy and Melbourne Water in accordance with section 8 of the Subdivision Act 1988.

Prior to works commencing

  1. Prior to the commencement of any works associated with the subdivision an assessment of the area affected by any works required by the subdivision must be undertaken for its Aboriginal cultural values to the satisfaction of Aboriginal Affairs Victoria and the responsible authority.

Section 173 Agreement

  1. Prior to the issue of a statement of compliance, the owner of the land must enter into an agreement with the responsible authority, pursuant to section 173 of the Planning and Environment Act 1987. This agreement must be registered by the responsible authority, pursuant to section 181 of the Planning and Environment Act 1987, on the certificate of title to the subject land prior to approval of this subdivision. The costs of the preparation and registration of this agreement must be met by the owner of the subject land and must be paid for prior to the registration of the agreement. This agreement must provide for:

accommodation (excluding a single dwelling and a single dependant persons unit), animal boarding, art and craft centre, car park, cemetery, crematorium, dog breeding, industry, intensive animal husbandry, leisure and recreation (excluding informal outdoor recreation), place of assembly, racing dog keeping, racing dog training, retail premises, residential village, retirement village, transport terminal, veterinary centre, warehouse, wind energy facility and winery; and

(m) a minimum of one (1) and not more than two (2) open days in any calendar year where the garden is open to the general public unless with the further consent of the responsible authority.

Drainage

  1. No polluted or sediment laden runoff is to be discharged directly or indirectly into drains or watercourses of Melbourne Water.

Construction plans

  1. Before any works associated with the development starts, detailed construction plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will then form part of the permit. The plans must be drawn to scale with dimensions and four (4) copies must be provided. The plans must show:
  2. Prior to the issue of a statement of compliance, drainage computations for the drainage system, including consideration of any drainage catchment external to the development that may drain to the drainage system are required to be provided to and approved by the Responsible Authority.
  3. Prior to the issue of a statement of compliance, all road and drainage works must be completed to the satisfaction of the responsible authority in accordance with the plans and computations approved by the responsible authority.
  4. Fourteen (14) days prior to the commencement of any works for this subdivision, a Project Specific Environmental Management Plan (EMP) generally in the form as described in the Mornington Peninsula Shire website must be submitted to council’s construction engineer for approval. When approved the EMP will be endorsed and will then form part of the permit. The approved EMP must be implemented and complied with to the satisfaction of the responsible authority prior to and during construction of the subdivision works. The EMP must contain, but is not limited to, the following matters:

Vehicle access

  1. Prior to the issue of a statement of compliance, a vehicular crossing must be appropriately constructed to Albatross Avenue to suit the proposed driveway, with any existing crossing or crossing opening to be removed and replaced with footpath, naturestrip, and kerb and channel to the satisfaction of the responsible authority.

Construction

  1. Prior to the issue of a statement of compliance, all works within any road reserve or reserve to become council’s responsibility for care and maintenance must be constructed in accordance with the responsible authority’s standards and specifications.

Existing dwellings

  1. Unless the responsible authority gives its written consent for them to be retained or otherwise altered, the owner of the land must, prior to the issue of a statement of compliance, and to the satisfaction of the responsible authority:

Prior to statement of compliance

  1. Prior to the issue of a statement of compliance a vegetation management plan for the long term management of both of the proposed coastal reserves hereby approved as part of this re-subdivision must be prepared at the cost of the owner. This plan must include but not be limited to:
  2. Prior to the issue of a statement of compliance, the subdivider must enter into and comply with an agreement with Melbourne Water, under section 269a of the Melbourne and Metropolitan Board of Works Act 1958. This agreement must provide for drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into the drainage system of Melbourne Water.
  3. Prior to the issue of a statement of compliance, the subdivider must enter into an agreement with United Energy for the extension, upgrading or rearrangement of the electricity supply to the lots on the plan as required. (A payment to cover the cost of such work will be required.)
  4. Prior to the issue of a statement of compliance, the subdivider must enter into an agreement with South East Water Limited for the provision of sewerage facilities. The subdivider must fulfil all requirements to the satisfaction of South East Water.

Permit expiry

  1. This permit will expire if the Mornington Peninsula Shire Council has not certified the plan of subdivision within two (2) years of the date of issue of this permit. The responsible authority may allow, in writing, an extension of this permit upon an application being made before or within three (3) months after the expiry date.
Anthony Liston
Senior Member
Tonia Komesaroff
Member

APPEARANCES:
For Applicants
Mr P O’Farrell barrister instructed by the Environment Defenders Office appeared for
Mt Eliza Action Group Inc & ors.
Mr Barry Ross appeared for the
Defenders of the South East Green Wedge.
Mr David Morris, MP appeared in person.
Ms Jill Anderson appeared in person.
Mr Andrew Hooper barrister appeared for
Ms Judith Barrett by direct brief.
For Responsible Authority
Mr N Tweedie, barrister instructed by Deacons.
For Respondent Permit Applicant
Mr S Molesworth QC with Ms J Lardner barrister instructed by J N Martin & Partners
Witnesses:
Mr Lester Trickey, Town Planner;
Mr Peter Lovell, Heritage Consultant;
Mr John Patrick, Landscape Architect;
Dr Charles Meredith, Ecologist;
Mr Michael Degg, Surveyor;
Mr Adam Charleton, Civil Engineer;
Mr Brendon Hoban, Building Designer;
Mr Tony Coggan of Truescape and
Mr Max Ervin, Geotechnical Engineer.

REASONS

BACKGROUND

  1. C J Farms Pty Ltd is an entity representing the interests of the Jacobsen family. The family has acquired the former  Norman Lodge  and Ansett estates which are large, semi rural, properties located between Mount Eliza and Mornington with direct frontages to Port Phillip Bay.
  2. The parcels of land in question form part of a precinct which was the province of wealthy Melbourne business families, who began erecting imposing mansions on the cliffs above the Bay in the mid-nineteenth century. The intention of the owners was to live graciously in the manner of a country squire, with farming a side benefit.
  3. The Jacobsen family proposes resubdivision to facilitate the construction of two new dwellings for family members to further their desire to accommodate the entire family on the combined estates. The subdivision before the tribunal embodies a package of measures negotiated between the Jacobsen family and the responsible authority which they say results in a net community benefit. The measures include:
    1. the dedication of absolute beachfront land to council in the form of two coastal reserves;
    2. the preparation of a vegetation management plan for restoration of the ecological values of the coastal reserves;
    3. an undertaking to fund the reasonable costs of the revegetation and maintenance of the coastal reserve;
    4. the imposition of a bond of $1,000,000.00 to guarantee restoration of the heritage listed  Norman Lodge  to its former glory.
    5. the imposition of building envelope restrictions.
  4. Objectors review council’s decision to permit the re-subdivision of five lots holding two such grand residences, the Heritage listed  Norman Lodge  (named for Sir Norman Myer of Myer Emporium fame) and the Ansett Residence (of Ansett Airlines fame), which will result in two smaller vacant lots on which two new dwellings can be built.

The Subject Land & Locality

  1. The subject land has a total area of 50.2 hectares in five allotments described in attachment 1.
  2. The  Norman Lodge  estate extends from its road frontage to Nepean Highway to the foreshore of Port Phillip Bay. The land has a rural character and has been used in the past for a variety of agricultural activities. An unmade driveway provides access from Nepean Highway, past the Gatehouse and to the main residence, known as  Norman Lodge . There are a number of other buildings clustered around the main residence dating from the 19th century and the so-called Honeymoon Cottage dating from the Myer era.
  3. To the north-west of  Norman Lodge  the topography falls away steeply towards the bay. There is a large, cleared area of pasture down the slope from the lodge garden extending to the vegetated coastal strip. There is an unmade access track leading to the beach along the common boundary with the Ansett estate.
  4. The Ansett estate extends from its road frontage to Albatross Avenue to the foreshore of Port Phillip Bay. There is a significant cross fall on the land, from west to east, and like the  Norman Lodge  estate it also slopes steeply at its rear towards the beach.
  5. The eastern half of the Ansett estate land incorporating Gunyong Creek is heavily vegetated. Buildings on the land include the main house and an estate manager’s house and the beach house at the beachfront.
  6. To the east of the land is the balance of the former Ansett estate currently used for grazing. Further to the east is suburban Mount Eliza.
  7. To the west of the land are larger semi rural properties used for the training of racehorses, vineyards, function centres etc.

Historical And Cultural Character

  1. The Shire of Mornington Heritage Study 1994[1] identifies a precinct “Bayside Mansions, Mornington and Mount Eliza” incorporating the subject land. The citation for the precinct includes the following description useful to an understanding of the character of the area:

These are 19th century houses or mansions which have been or still are the centrepieces of large pastoral holdings, set in ornamental gardens and functioning as farms as well as seaside residences. Typically the 19th century landscape setting of each consisted of largely cleared exotic grasses sprinkled with indigenous gums and some exotic tree groups of rows (oaks), some of which remain. Most buildings were confined to the house complex which by c1900 was surrounded by a mature ornamental garden (typically ‘Araucaria sp.’[2]) which shielded it from view.

Today much of that character remains with distant views from the Nepean Highway across open pasture to exotic trees grouped around ornamental summer houses and their associated outbuildings and behind them the bay. The group is distinguished by the large number of large summer houses still set in their grounds, which adjoin along the coast.

and statement of significance for the proposed precinct:

This group of bayside houses and mansions, set in pastoral holdings and surrounded by ornamental gardens, is of State significance as the finest group of 19th century marine residences in the State, being significant for its architectural skill and high state of preservation of both the buildings and the pastoral setting. They have been associated with prominent persons whose influence on and presence in the Mornington district has shaped the historic environment of the shire and the State’s perception of the peninsula. The same persons also influenced the social, commercial and political life of the State in both the 19th and 20th centuries.

  1. The entire precinct was not ultimately protected by an conservation or heritage control, but  Norman Lodge  (formerly Manyung) is included in the Victorian Heritage Register VRH321[3], and is affected by a site specific Heritage Overlay HO151.
  2.  Norman Lodge  is one of a number of estates developed in this area in the second half of the nineteenth century, some of which were later subdivided and adapted. The architectural significance of the place relates to Gothic Revival Mansion, gatehouse, stables coach house, and related buildings and garden together with a prefabricated house belonging to the Myer era. The historical significance of the place relates to:
    1. Being an ‘intact’ example of an estate constructed by a Melbourne businessman[4] in this area in the second half of the nineteenth century;
    2. The association with a number of important Melbourne figures in the nineteenth and twentieth centuries[5];
    3. The association with philanthropic ideals espoused by companies in the early twentieth century[6].

 Norman Lodge  Buildings

  1. Historically, Manyung ( Norman Lodge ) appeared to have functioned as a small town or fiefdom; it accommodated the Grice family in a grand and imposing residence accompanied by their house staff as well as a farm staff, who were housed in cottages and staff quarters upon the estate. It has been suggested that the structure, today known as the Hall building, initially served as a private Chapel with the two adjoining anterooms reserved for the use of the Anglican Minister, who came from Schnapper Point to conduct the services[7]. This point further reinforced the family’s prominence in the district – the church would come to them and not the other way around.
  2. The Main House is a large two storey rendered brick 1860s Gothic Revival mansion which has been altered and extended; it has a highly asymmetrical composition with steep slate-clad gable roofs, tower over the main southern entrance, two-storey castellated bay window on the east face, and a single storey verandah on three sides of the main building.
  3.  Norman Lodge  now comprises the following buildings:
    1. Main House
    2. Gatekeeper’s Cottage (Gate Lodge)
    3. Staff Cottage
    4. Men’s quarters
    5. ‘Honeymoon Cottage’ constructed by Sir Norman Myer.
  4. The men’s quarters are derelict, the staff cottage was occupied by Mr Eddie Vincent caretaker for Dicksons the former owners of  Norman Lodge , the gatekeeper’s cottage has not been occupied for some considerable time and the prefabricated Honeymoon Cottage is occupied by the permit applicant’s son.

Ansett Buildings

  1. That part of the Ansett Estate which is now owned by the the Jacobsen family comprises:
    1. Main residence
    2. Beachfront house
    3. Manager’s dwelling
  2. Mr Mark Stanaway, the former Ansett and current Jacobsen manager has lived in the manager’s dwelling since 1999.

Proposal

  1. In November 2006 the Jacobsen family sought permission to realign the property boundaries of the existing allotments to create five differently shaped lots, and two new coastal reserves. The realignment would create 3 new small lots capable of being developed for houses. It was proposed that the coastal reserves would be transferred to Council ownership. Access to lots was to be via a carriageway easement.
  2. No application is made to construct any dwellings or to use the land for any purpose.
  3. The proposed boundary realignment would not involve the removal of any native vegetation. Five golden cypress are to be removed to accommodate the proposed accessway.
  4. In March 2007 the proposal was amended changing the size of the 3 new small lots, increasing the size of the coastal reserve and deleting individual access tracks to the beach.
  5. The conditions of Notice of Decision issued by the responsible authority requires significant further modification of the proposal. The conditions are not challenged by the Jacobsen family.
  6. In accordance with a direction of the Tribunal the Jacobsen family has filed and served indicative plans which demonstrate how it is intended to meet this condition. See attachment 2.

Planning Controls and Policies

  1. The land is zoned Green Wedge Schedule 3 under the Mornington Peninsula Planning Scheme, and is overlayed by Environmental significance Overlay ESO1 as well as Heritage Overlay HO151 in respect of  Norman Lodge .
  2. Pursuant to GWZ3, clause 35.04-3, a permit is required in this zone to subdivide land provided each lot must be at least 40 hectares. A permit may be granted to create smaller lots if the following exemption applies:

The subdivision is the re-subdivision of existing lots, the number of lots is not increased, and the number of dwellings that the land could be used for does not increase.

An agreement under Section 173 of the Act must be entered into with the owner of each lot created which ensures that the land may not be further subdivided so as to increase the number of lots. The agreement must be registered on title. The requirement to enter into an agreement only applies to a lot which could be further subdivided in accordance with this scheme.

View

  1. The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered to the Tribunal and remain on the Tribunal’s file. The Tribunal conducted an extensive inspection of the site and its locality accompanied by the parties.

BASIS OF DECISION

Discretion - The Background

Clause 35.04-3

  1. All parties agree that, as the permit applicant owns five lots and only seeks a differently configured four lots (after gifting part of the two absolute-beachfront-lots to council as reserves), the subdivision is the re-subdivision of existing lots and the number of lots is not increased. The parties disagree whether ‘the number of dwellings that the land could be used for’ will increase with the proposal.
  2. All parties agreed, following Ratliff v Stonnington CC[9], that the draftsperson uses the word ‘dwelling’ in clause 35.04-3 in its land use meaning as opposed to its built form meaning.

Is the number of dwellings the land could be used for increased?

  1. There are two Tribunal approaches to this last pre-condition, all considered in the context of a boundary realignment or re-subdivision application. I will deal with them in date order.
  2. In Hoogenbosch v Yarra Ranges SC[10], Member Eccles adopted the legal possibility approach, holding:

The planning scheme allows, with a permit, the construction of a dwelling on the current vacant lot as it would for the new vacant lot.

  1. In Bennett v Manningham CC[11], Senior Member Byard considered two allotments, one of which was a remnant piece of road (never originally intended as a separate parcel of land) added to an adjoining allotment. Byard SM applied a factual feasibility test to work out whether the land, in its original configuration, could have been used for a second dwelling at all. Based upon the sewerage disposal capacity of the second allotment, Byard SM held the allotment could not have been used for a second dwelling in the first place, so the clause 35.04-3 exemption did not trigger because the application would have resulted in an increase in the number of dwellings.
  2. In Heislers v Nillumbik SC[12] Senior Member Monk took the opposite approach when considering whether two existing crown allotments, one of which already contained one dwelling, could have been used for a second dwelling at all. Theoretically, an easement of access could be provided to the second lot to contain a second dwelling, even though council twice refused an easement. Senior Member Monk held:

Accordingly it could not be said that the re-subdivision would increase the number of dwellings that these land parcels could be used for. Theoretically, both could be used for a dwelling – subject of course to the grant of a permit – and the re-subdivision does not change this. Wether or not a permit would or should be granted under either the current configuration of (sic) boundaries after re-subdivision is not a matter that is before me.

  1. In Green Wedge Protection Group Inc & Anor v Nillumbik SC[13] (Green Wedge), Deputy President Gibson considered whether two existing crown allotments, one of which already contained one dwelling (and across which an easement of access could be provided to the second lot) could contain a second dwelling. Deputy President Gibson adopted the same approach as Monk SM, construing this phrase or pre-condition to mean

The legal possibility of a permit being granted not to whether a permit would necessarily be granted in the particular circumstances.

  1. In Shefford v Yarra Ranges SC[14] Member Keaney also followed the Monk/Gibson approach when considering a re-subdivision, holding:

I acknowledge that there is no question that the ultimate use of the smaller parcel for a dwelling is a discretionary use in the zone and that it “could” be used for such purposes. There is also no question that in the event of such an application being made it would be refused by Council. But that is not the issue. I am not going to speculate on this matter any further as no such application has been lodged other than to say that I agree with the permit applicant that under the provisions of the zone, a permit “could” be issued for a dwelling on the lot.

  1. Member Keaney drew attention to the Moira Planning Scheme, which more specifically discourages re-subdivision of below-grade second allotments on the merits, rather than on a legal construction:

.....Boundary realignments will be discouraged if they rely on freehold land which was previously a road reserve, channel, utility lot, crown land or similar...

  1. In Schembri v Cardinia SC[15], Member Martin considered a similar situation, coming to the opposite conclusion after applying a factual feasibility test based upon access to the second lot, as opposed to Deputy President Gibson’s legal possibility test.
  2. In this case the council adopted Deputy President Gibson’s legal possibility approach, calculating on a simple mathematical basis that since:
    1. two vacant lots currently exist on which two dwellings could be constructed (the  Norman Lodge  absolute beachfront allotment and the Gunyong Creek allotment in the Ansett Estate component);
    2. this re-subdivision will only create two new lots on which two dwellings could be built;

the exemption in clause 35.04-3 is satisfied.

  1. The objectors adopt the factual feasibility approach in Bennett and Schembri, submitting that:
    1. although the vacant Gunyong Creek lot could contain a dwelling;
    2. a dwelling could not be constructed on the vacant  Norman Lodge  absolute beachfront allotment (despite Max Ervin’s[16] evidence that with money, any built form engineering outcome is achievable);
    3. therefore only the  Norman Lodge  manor, the Ansett mansion, the Ansett beach house and the vacant Gunyong Creek lot could be used for a dwelling;
    4. therefore the number of dwellings that the land could be used for increases because the second new lot for a dwelling will create an additional (fifth) dwelling to the four mentioned above.

Existing use rights

  1. The permit applicant adopted Deputy President Gibson’s approach in Green Wedge, not wishing to rely upon existing use rights. But in support of its existing use rights it submitted:
    1. the  Norman Lodge  Estate as well as the Ansett Estate enjoy existing use rights as Gentleman’s Estates;
    2. applying the Nunawading CC v Harrington[17] principle, these existing use rights have not been lost despite the fact that these estates have not been occupied as intensively as historically, awaiting restoration, renovation or refurbishment, since they have remained in caretaker mode and not abandoned;
    3. a Gentleman’s Estate or Manor is made up of a number of dwellings as separate land uses, ie. the main dwelling, worker’s dwellings and recreational dwelling(s);
    4. At least six dwellings comprise the  Norman Lodge  Estate[18] (the main dwelling, staff cottage and honeymoon cottage,) and the Ansett Estate (main residence, beachfront house, manager’s dwelling);
    5. if two dwellings are either de-commissioned or removed under conditions in council’s Notice of Decision[19], the second new lot creating an additional dwelling will still fall within the clause 35.04-3 exemption.

Discretion – The Analysis

Legal possibility v factual feasibility

  1. Mrs Komesaroff, the legal member, prefers the ‘legal possibility’ construction of clause 35.04-3 adopted by Deputy President Gibson to the ‘factual feasibility’ approach, although we stress that we would not be so persuaded in a situation of absurdity that may arise where, for example, a one-metre wide irrigation channel was sold off as a separate lot to the owner of an adjoining allotment who sought to use that irrigation channel as a basis for the ‘legal possibility’ test.
  2. A beach house exists on the Ansett absolute-beachfront-lot. Mr Max Ervin gave evidence that there is no geotechnical impediment to construction of a house on the  Norman Lodge  absolute-beachfront-lot that money cannot solve. Whether a planning permit would be granted for a dwelling on the  Norman Lodge  absolute-beachfront-lot is a different question. We do not think clause 35.04-3 is concerned with that analysis.
  3. Consequently, council’s mathematical assessment was correct and the clause 35.04-3 exemption applies because this re-subdivision will not increase the number of dwellings the land could be used for.

Existing use rights

  1. Notwithstanding that we have come to the above conclusion on construction of the phrase, we comment on existing use rights.
  2. Council acknowledged that existing use rights have a role to play, and to that end, if these rights exist and if two dwellings that enjoy this right are removed or de-commissioned to substitute for two new dwellings, again, the clause 35.04-3 exemption applies because this re-subdivision will not increase the number of dwellings the land could be used for.
  3. The law preserving existing use rights is compelling. A consistent line of decisions in both New South Wales and Victoria has held that analysis of the facts supporting this right should be liberally construed so as to preserve, rather than deprive a landholder of an existing use right. Nunawading CC v Harrington, Meriton Apartments PL v Fairfield CC[20] followed.
  4. Based upon the evidence of Mr Chas Jacobsen that both estates were either occupied by their owner(s) or by their caretaker, they were not abandoned as gentleman’s estates, even though they may not have been used as they were in their heyday. Hudak v Waverley MC[21] distinguished.
  5. Consequently, council’s conditions substituting dwellings with existing use rights for new dwellings also ensures the clause 35.04-3 exemption applies because this re-subdivision will not increase the number of dwellings the land could be used for.

Merits

  1. Mr O’Farrell in the first three paragraphs of his summary of submissions neatly encapsulates the essential issue in this application for review ie:

It is proposed to dedicate 2 coastal reserves into public ownership – that is a good thing (subject to submissions made later in this document). As a separate exercise, the permit applicant has expressed an intention to restore and conserve  Norman Lodge  and its surrounds which no doubt will be an expensive exercise – no one can argue with the merit of such an intention. But the problem with this proposal is the introduction of lots 2 and 3 which no doubt are lots introduced to offset the expensive land purchases and restoration intentions by/of the owner.

When one boils down the issue in this case, a key question for the Tribunal to determine is whether it is appropriate to approve a subdivision that results in 2 new lots, with areas of 4608m2 and 4877m2 and building envelopes which can only be described as enormous (1500m2 each) within a Green Wedge Zone in this location?

The key submission of MEAG is that answer to this question is a resounding no. The creation of such lots introduces urban use and future development both of which have nothing whatsoever to do with the purposes of the Green Wedge Zone.

  1. In essence the applicants assert that the creation of two small lots with an overall area of slightly less than 1 hectare, within a land parcel with an overall area of almost 50 hectares is so fundamentally at odds with the objectives of the Green Wedge Zone, and the planning policy framework in general that the significant beneficial planning outcomes embodied in the overall proposal should be disregarded. The question we must resolve is, is this a sustainable argument?
  2. Mr Molesworth on the other hand submitted that the package of measures embodied in this subdivision application would result in a net community benefit as required by Clause 11 of the Planning Scheme. More fundamentally, he submitted that the package represented a balanced outcome, a fair resolution of private and community interests, consistent with the objectives for planning in Victoria under the Planning and Environment Act 1987.
  3. Mr Molesworth did not concede that the proposed subdivision was inconsistent with the objectives of the Green Wedge Zone and was only rendered acceptable by the other beneficial outcomes directed towards more generalised planning objectives found elsewhere in the planning scheme. It was submitted that the proposal enlivened what was described as a dormant objective of the zone to protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non urban landscapes. It was Mr Molesworth’s submission that the proposal before the Tribunal achieves this objective.

The proposal and the planning policy framework

  1. Mr O’Farrell argued that there was not a skerrick of support within the Planning Policy Framework for the establishment of small residential lots within the Green Wedge. Putting aside for the moment Mr Molesworth’s argument in respect of the fifth purpose of the Green Wedge Zone, Mr O’Farrell’s submission is largely true. To the extent that the Green Wedge Zone provisions and the related Planning Policy Framework deal with smaller residential lots at all, the provisions suggest that they should be avoided, to prevent the fragmentation of agricultural land, and the creation of conflicts which can exist between residential and rural land uses[22].
  2. Nevertheless within the Green Wedge Zone dwellings on small lots exist. The zone provisions provide a limited discretion for the subdivision of land in a way which creates small lots capable of containing dwellings. We do not think that the failure of the Planning Policy framework to expressly support the creation of small residential lots should be interpreted as being tantamount to there prohibition. Such an interpretation would deny the discretion clearly provided for within the scheme.
  3. Modern planning schemes, the Mornington Planning Scheme in particular, are complex documents. They nevertheless present a highly simplified picture of the constantly evolving planning context which schemes seek to manage. The world is a very complex place. The policy framework cannot deal expressly with every facet both existing and proposed, of the relevant planning context. Indeed, the Mornington Peninsula Planning Scheme does not address the Grand Family Estates of the 19th and 20th century at all[23].
  4. Development control provisions in planning schemes are usually a compromise. A very flexible approach creates the possibility of every good proposal gaining approval but carries the risk that successive “not so good” decisions will over time erode the values the planning scheme is seeking to protect. Development controls in planning schemes are usually a compromise between flexibility and prescription. In the Green Wedge Zone the development controls relating to subdivision are generally very prescriptive. Yet, even in this context, the scheme expressly provides for the possibility of a permit being granted for a subdivision like that proposed in this case.
  5. How then does decision making proceed in this planning context? Essentially the decision maker must seek to achieve a balanced outcome having regard to the planning scheme provisions, and indeed the Planning and Environment Act 1987, as a whole. As we have already observed the question we must resolve is, does the package embodied in the current proposal balance negative and beneficial outcomes to achieve a net community benefit?

Agriculture

  1. The Planning Policy framework and the Green Wedge provisions encourage sustainable land management, productive agricultural uses, and the protection of land for productive agricultural enterprises. The new small house lots occupy an area that could loosely be described as pasture, a small part of a much of a large grassy space extending from  Norman Lodge  and its garden down to the foreshore vegetation. To the extent that this land can no longer be used for grazing if developed as anticipated by the proposed subdivision, there is a loss of agricultural capacity.
  2. It is not argued that the affected land is high quality agricultural land. The absence of fencing between the grassy slope and the  Norman Lodge  garden, raises questions about its efficient use for grazing in the recent history of the place. The area of land potentially lost to agriculture is very small.
  3. We agree with Mr Tweedie’s assessment, that while there may be some loss of productive capacity, it is so marginal in the context of the overall planning unit as to be immaterial.

Landscape

  1. From a landscape perspective, the primary impact is that of the dwellings which can be constructed on the new small lots, if the subdivision is approved. A permit will be required for the use and development of both new small lots for the purpose of a dwelling, however, the lots are created for the purpose of a dwelling and are capable of containing dwellings. The subdivision must be assessed on the basis that they will be used and developed for that purpose.
  2. The landscape of the green break between Mt Eliza and Mornington is a scenic, semi rural, urban fringe landscape. The relatively small lot sizes, the mixture of uses and buildings, the preponderance of landscape elements, in particular non native landscape elements which are primarily decorative rather than functional, create a bucolic setting albeit one which is not conventionally rural.
  3. Assessment of the visual impact of dwellings on the proposed new small lots was considerably assisted by our inspection[24] and by the photographic montages prepared by Truescape.
  4. It was argued that the proposal allows for the establishment of an urban use on land which is set aside for non urban uses. This submission is misconceived, dwellings are not intrinsically urban. People reside in dwellings in both urban and non urban settings. Small clusters of dwellings do not necessarily create an urban environment. The Grand Family Estates both historic and current are examples of this. There are a significant number of dwellings within the green break between Mt Eliza and Mornington. The existence of these dwellings does not give it an urban character or diminish its value as a green break.
  5. From a landscape perspective the issue is not so much that the new buildings which will be inserted in the landscape are dwellings which are somehow intrinsically urban in character, rather it is the actual impact of the proposed buildings on the landscape values of the place, viewed from a variety of perspectives.

Views from Mt Eliza

  1. Dwellings on the new small lots will be visible from Kunyung Road and from Albatross Avenue. These dwellings will be seen rising above the dips and gaps in the Cypress hedge delineating the southern edge of the Ansett Estate. Dwellings on the new small lots will also be visible from some locations further to the east[25]. To a very minor degree the dwellings will be visible from this location.
  2. On the basis of our inspection we are entirely satisfied that while dwellings on the proposed small lots will be visible from within Mt Eliza, the dwellings are distant elements in a semi rural setting, and in no way detract from the landscape quality of the green break between Mt Eliza and Mornington. We also note that viewed from Mt Eliza the proposed dwellings are set behind a substantial relatively open semi rural foreground. New landscape elements in this foreground would quickly obscure the proposed buildings.

Views from Mornington

  1. Dwellings constructed on the proposed new small lots will be visible from vantage points such as the Mornington pier. These are very distant views, and it is difficult to conceive how the proposed buildings viewed at this distance, tiny elements in a wide view shed, can have any significant impact on the character of the existing view.
  2. We will also observe that there are enormous differences in prominence between different buildings within this view shed. These differences relate to the siting of buildings in respect of land form and vegetation, but also relate to the architecture of the building themselves. Carefully considered, issues such as articulation, materials, colours, light and shade can substantially influence the prominence of buildings within the landscape. Dwellings on the proposed small lots are subject to a separate permit application process, and detailed design issues of this type can be the subject of careful consideration at that time.

Views from the bay

  1. The buildings will be most prominent when viewed from the bay. The dwellings will be visible above the coastal fringe vegetation and the viewing distances are potentially much less than that from the Mornington pier. Nevertheless, from a landscape, green break type perspective, it is difficult to conclude that the landscape values of the place are significantly effected.
  2. There is a separate, heritage, element to this view. Mr Lovell observed that the “romance” of the view to  Norman Lodge  and its appurtenant buildings in relative isolation will be diminished by the presence of these new buildings.
  3.  Norman Lodge  was never designed to be appreciated from the bay. The new small lots are more closely associated with the staff cottage, the garage, the carriage house etc. than they are the main house and its garden. We agree with Mr Lovell’s own conclusion that this change to the way in which  Norman Lodge  can be viewed from the bay is not in any sense fundamental to the heritage values which are to be preserved.
  4. In relation to these more distant views both from Mornington pier and the bay the amendment to the plans which substantially reduce the size of the proposed small lots, and move them to the eastern edge of the open pasture which exists between the  Norman Lodge  garden and the foreshore vegetation has an important advantage from these more distant viewpoints. There are a small number of large patches of pasture visible in this foreshore view shed. The amending plans preserves this patch as the dominant visual element in the immediate environs of the proposed new small lots.

Views from the beach

  1. In general dwellings on the proposed new small lots will not be visible from the beach. There is a small rocky promontory proximate to the boundary of subject land and the adjoining land further to the south. At low tide the upper parts of one or both dwellings will be visible within a dip in the coastal topography. The visible parts of the buildings will be well below the canopy of the taller elements within the coastal vegetation.
  2. The upper canopy of the relatively degraded coastal vegetation is very sparse, the proposals for the revegetation of the coastal foreshore reserves are likely to result in the proposed buildings being entirely concealed from even this viewpoint. We consider this to be a desirable outcome and will impose conditions to achieve this outcome.

The Heritage Effects

  1. The key heritage test applied in relation to the proposed subdivision is that contained in the MPPS[26] decision guidelines at 43.01-4:

Whether the proposed subdivision or consolidation may result in development which will adversely affect the significance, character or appearance of the heritage place.

  1. This is also reflected in the three objectives contained within the Heritage Victoria Heritage Overlay Guidelines document ‘Subdivision and Consolidation’:
  2. The MPPS Local Policy at 22.04 ‘Cultural Heritage Places’ does not directly address subdivision, although the policy notes that the

consideration of heritage values must extend beyond particular buildings, to include precincts, places, landscapes and features.

The Heritage Issues

  1. In considering the impact of the proposal from a heritage perspective and the degree to which it might be seen to have an adverse impact on the significance of the place, Mr Lovell posed the following the key issues:
  2. The subdivision does not create a pattern of development at odds with a subdivision pattern intrinsic to the heritage significance of the place. The subdivision facilitates the development of dwellings proximate to the important heritage fabric of  Norman Lodge  it outbuildings and garden. Viewed from outside the site, dwellings on the new small lots are unlikely to have any real impact on significance. The issue is the appreciation of significance from within the site
  3. Considering the issue of views and vistas in the internal setting, Mr Lovell proposed that there are a number of key aspects of the setting which can be seen to contribute to the significance of  Norman Lodge  which include:
  4. Taking all the above into consideration, Mr Lovell concluded:

The placement of buildings on Lots 2 and 3 will introduce new visible elements in these views but, subject to their scale and materials, is unthreatening to the house and gardens as the heritage focus. The lots (and associated development) are sufficiently removed from the garden and sufficiently distant in views to ensure that they will read a secondary form.

  1. As we have already observed the new small lots are more closely associated with the staff cottage, the garage, the carriage house etc. than they are the main house and its garden. Mr Patrick demonstrated that the restoration of the heritage garden creates the opportunity to screen and to distinguish the new lots and dwellings from the heritage fabric.
  2. The placement of the new lots and dwellings does not interfere with ones ability to understand the significance of the place. The visitor will enter the property at the gatehouse, traverse the driveway lined fields and trees, and arrive at the house and its garden without being aware of the subdivision and the dwellings built on the proposed lots.
  3. The proposal will not unreasonably affect the significance, character, appearance or setting of the heritage place.

The built form parameters of the Environmental Significance Overlay

  1. The Environment Significance Overlay contains within it a number of built form parameters, to aid the consideration of development within the overlay area. Parameters include such matters as site coverage, building height, setbacks from various elements in the landscape. It was suggested on behalf of the applicants that these parameters should somehow be embodied in the proposed permit.
  2. The notice of decision to grant a permit proposes the establishment of large building envelopes on the proposed small lots which will in a very broad scale way define the locations of buildings on the lots, and their maximum height. The request that additional building design parameters be embodied in the permit is associated with a criticism of these buildings envelopes because of their size.
  3. Building envelopes in association with subdivision are often necessary when the subdivision creates opportunities for future development which can proceed as of right. The building envelope and perhaps other mechanisms resulting from the subdivision permit are used to constrain development which would otherwise be unconstrained. In this case since dwellings on the proposed new small lots will require separate planning permission it is at least arguable that building envelopes are unnecessary. However, the proposed lots exist within a very sensitive landscape, on land with significant geotechnical constraints. In such a context, a building envelope which broadly defines the developable part of the new lots is perhaps desirable and is in any event uncontested by the permit applicant.
  4. It follows from this discussion that we do not think that additional measures are required in respect of the permit for subdivision to control the future development of these lots. Nevertheless, towards the end of the hearing, the permit applicant offered to accept a condition which would ensure that no dwelling constructed on the land would be more than 8 metres high, measured from the excavated site level. As we already observed such a provision is unnecessary, but does add a level of reassurance in respect of the ultimate development outcome, and to the extent that it is practicable to do so we will embody such a provision in the permit we grant.

The continuity of the foreshore reserves

  1. The foreshore land which the permit applicant proposes to transfer to council[27] is divided into two parts by the Ansett Beach house and its garden. The permit applicant wishes to retain the Ansett Beach house and its garden for use by the Jacobsen family.
  2. The objectors argued that the foreshore reserve should be continuous because:
  3. The permit applicant has elected to transfer a very substantial part of its land to the public as part of the package and measures which constitute this application for subdivision. The permit application has undertaken to redevelop the beach house garden using indigenous species to enhance connectivity between the two reserves from an ecological perspective. The council in its decision formed the view that the applicant’s proposal in this instance was a generous proposal. In this application for review we cannot require the applicant to give up more of its land, we must assess whether or not the overall package of measures proposed by the permit applicant results in a net community benefit.

The track through the reserve

  1. The larger coastal reserve proposed by the permit applicant located generally south of the Ansett beach house, is part of the former Norman Estate. There is an existing unconstructed vehicular track traversing this land providing access from  Norman Lodge  to the beach. The permit application proposed retention of this track by way of a carriageway easement, the notice of decision dispenses with the carriageway easement, but by agreement provides for the effective continuation of the track. It is intended that the track be constructed, and if appropriate resited to minimise its impact on the future reserve.
  2. The applicants submit that the track should be deleted and that it is inappropriate for a private land owner to retain access through a foreshore reserve to the beach.
  3. The council is of the view that it is not unreasonable that the  Norman Lodge  land retain the access to the beach which they have enjoyed for some 150 years. Moreover, the council submits that its responsibility for the future maintenance of this proposed reserve would be facilitated by the existence of the track. Dr Meredith acknowledged that revegetation rather than retention of the existing track would be better from an ecological perspective, but in his view the impact of the track on the future ecology of the reserve was minor[28].
  4. Inherently it is not unreasonable for this landowner to seek to continue a right of access which the land has enjoyed for a very long time. The continued existence of the track albeit a track substantially improved over that which currently exists, does go to the question of whether or not the overall proposal results in a net community benefit. However, we accept the Responsible Authority’s submission that there is in fact both public and private benefits from the retention of a track in this location.

Landscape elements other than those on the new small lots.

  1. Ultimately the landscaping of the new small lots can be addressed through the permit process for the future dwellings. Landscaping on the  Norman Lodge  land is either landscaping covered by the vegetation management plan for the foreshore reserve or landscaping associated with the heritage values of the  Norman Lodge  itself. The ultimate disposition of the landscape associated with  Norman Lodge  are matters which will ultimately be determined by Heritage Victoria. However during the course of the hearing the value of the Cypress hedge or wind break on the Ansett Land as a visual screen became apparent to the Tribunal, and the value of the use of appropriate indigenous species within the beach house garden was explored during the hearing. Neither of these matters are currently addressed under permit conditions.
  2. We think that there is some merit to adding to the conditions to reasonably assure these outcomes as they are relevant to:
    1. the protection of landscape values through the screening of the new small lots from Mt Eliza;
    2. the achievement of good environmental outcomes, and;

hence the overall net community benefit arising from the package associated with this subdivision.

The Hoban Hynes Dwellings

  1. As this was not a combined planning application for subdivision and built form development, the permit applicant must obtain separate planning permission for the two new dwellings designed by Hoban Hynes architects on the two proposed new lots.
  2. Given the length and expense of this hearing, and the nine expert witnesses who have given evidence before us and been cross examined, Mr Molesworth has sought our comments on the present architectural plans.
  3. Our assessment of the proposed subdivision has been informed by our opinion that the colour, form, mass and location of the Hoban Hynes dwellings are acceptable. We have already observed that design issues such as articulation, materials, colours, light and shade can substantially influence the prominence of buildings within the landscape. It may be the case that additional architectural elements that create light and shade particularly on the more minor facades, and a more complex palette of material could enhance the degree to which the buildings blend into the landscape.

CONCLUSION

  1. It follows from the above reasons that it is the Tribunal’s conclusion that the decision of the responsible authority should be varied and a permit granted.
  2. The permit will include the conditions contained in the notice of decision to grant a Permit issued by the responsible authority with modifications which have regard to the submissions and evidence of the parties and the matters which arise from these reasons.
Anthony Liston
Senior Member
Tonia Komesaroff
Member

ATTACHMENT 1 – THE EXISTING LOTS


LOT
NAME[29]
TITLE
KEY BUILDINGS
A
 Norman Lodge 
Beachfront
Lot 1
TP 841834T
Vacant land
B
 Norman Lodge 
Main Residence
Lot 2
TP 841834t
 Norman Lodge 
Main Residence;
Honeymoon Cottage;
Staff Cottage, and;
Gatehouse
C
Ansett
Beachfront
Lot 2
TP844749S
Beach House
D
Ansett
Main Residence
Lot 1
TP844749S
Main Residence
Manager’s Residence
E
Ansett
Gunyong Creek
Vacant land

Image removed for publishing


ATTACHMENT 2 – INDICATIVE CONCEPT PLAN

Concept Plan, Watsons Pty Ltd, Plan No. 35583CP-B Revision E

  1. This indicative plan proposes the creation of 4 lots and two coastal reserves described by Mr Tweedy as follows:
LOT
BUILDINGS
AREA
1
 Norman Lodge 
Honeymoon Cottage
Staff Cottage
Gatehouse[30]
31.96 ha
2
Vacant -proposed building envelope
4608 m2
3
Vacant -proposed building envelope
4977 m2
4
Ansett Main Residence
Manager’s Quarters
Beach House
11.327 ha
Reserve A
None
4.221 ha
Reserve B
None
7667m2

Image removed for publishing


[1] Shire of Mornington Heritage Study 1994 by Graeme Butler

[2] Norfolk Island Pines

[3] A separate permission is required from Heritage Victoria.

[4] In this case Mr Richard Grice in the 1860s

[5] Including Grice, the original owner, Baker and Myer.

[6] Exemplified in Camp Manyung and this property’s use as a holiday retreat by Myer employees.

[7] Lovell Chen  Norman Lodge  Conservation Management Plan March 2006

[8] Building envelopes to have a maximum area of 1,500 square metres and a maximum building height above natural ground level of no more than 8 metres.

[9] [2006] VCAT 1218

[10] [2004 VCAT 2292 (16 November 2004)

[11] [2004] VCAT 2327 (24 November 2004)

[12] [2005]VCAT 936 (17 May 2005)

[13] [2006] VCAT 511 (21 March 2006)

[14] [2006] VCAT 2626 (20 December 2006)

[15] [2007] VCAT 1044 (14 June 2007)

[16] The geotechnical engineer

[17] (1985) 55 LGRA 139 (Full Court of the Supreme Court of Victoria)

[18] Mr Molesworth did not argue that the gatekeeper’s cottage continued as a dwelling, we however consider that an existing use of this building is at least arguable.

[19] The honeymoon cottage is slated for removal and the staff cottage is slated for de-commissioning

[20] [2004] NSWLEC 423; (2004) 137 LGERA 35

[21] (1989) 18 NSWLR 709

[22] The LPPF, and the ESO do contain parameters which may be said to recognise the possibility of small residential lots, in that they seek to manage the development outcomes.

[23] Except in so far as the Norman Estate is affected by a Heritage Overlay

[24] At which time the height and location of the proposed dwellings was indicated by height poles.

[25] On our inspection, we considered the view from the bottom of a cul-de-sac south of Beleuga Court a location from which a Truescape montage had also been prepared

[26] Mornington Peninsula Planning Scheme

[27] And to be managed in effect as Foreshore Nature Reserve.

[28] Provided that it was improved as proposed.

[29] Named by Mr Tweedie for the purposes of his submissions.
[30] Honeymoon Lodge and the Staff Cottage to be decommissioned as dwellings.

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