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Planning and Environment Act 1987

Panel Report

Mornington Peninsula Planning Scheme Amendment C204

Ocean Beach Road, Sorrento

Front page

29 May 2017

Planning and Environment Act 1987

Panel Report pursuant to section 25 of the Act

Mornington Peninsula Planning Scheme Amendment C204

Ocean Beach Road, Sorrento

29 May 2017

Trevor McCullough, Chair Rachael O’Neill, Member

Mornington Peninsula Planning Scheme Amendment C204 Panel Report 29 May 2017

Contents Page

1 Introduction ................................................................................................................ 1

1.1 The Amendment ...................................................................................................... 1 1.2 Background to the proposal .................................................................................... 2 1.3 Summary of issues raised in submissions ............................................................... 2 1.4 Issues dealt with in this report ................................................................................ 3

2 Planning context ......................................................................................................... 4

2.1 Policy framework ..................................................................................................... 4 2.2 Planning scheme provisions .................................................................................... 8 2.3 Ministerial Directions and Practice Notes ............................................................... 9 2.4 Discussion and conclusions ................................................................................... 10

3 Are additional controls needed? ............................................................................... 11

3.1 The issue ................................................................................................................ 11 3.2 Submissions ........................................................................................................... 11 3.3 Discussion .............................................................................................................. 13 3.4 Conclusions ............................................................................................................ 14

4 Assessment against PPN59 ‐ Mandatory controls ..................................................... 15

4.1 The issues .............................................................................................................. 15 4.2 Introduction ........................................................................................................... 15 4.3 Is the mandatory provision strategically supported? ........................................... 15 4.4 Is the mandatory provision appropriate to the majority of proposals? ............... 17 4.5 Do the mandatory provisions provide for the preferred outcome? ..................... 18 4.6 Will the majority of proposals not in accordance with the mandatory

provision be clearly unacceptable? ....................................................................... 20 4.7 Will the mandatory provision reduce administrative cost? .................................. 21 4.8 Do the proposed controls provide adequate flexibility of design? ....................... 21 4.9 Conclusions ............................................................................................................ 24 4.10 Finding ................................................................................................................... 25

5 Assessment against PPN60 – Activity Centres ........................................................... 26

5.1 The issue ................................................................................................................ 26 5.2 Introduction ........................................................................................................... 26 5.3 Submissions ........................................................................................................... 26 5.4 Discussion .............................................................................................................. 28 5.5 Conclusions ............................................................................................................ 30

6 The proposed DDO Schedule 28 ................................................................................ 31

6.1 The issue ................................................................................................................ 31 6.2 Precinct and sub‐precinct borders ........................................................................ 31 6.3 Interpreting building height .................................................................................. 31 6.4 Other form and content issues ............................................................................. 32 6.5 Is DDO28 appropriate with discretionary controls? ............................................. 33


6.6 Conclusions ............................................................................................................ 35 6.7 Recommendations ................................................................................................ 36

Appendix A Submitters to the Amendment

Appendix B Document list

Appendix C Council proposed changes to DDO28

Appendix D Summary of approved developments in Ocean Beach Road

List of Tables Page

Table 1 Summary of approved developments in Ocean Beach Road .................................. 1

Table 2 An assessment of the development potential of properties owned by TYAS Super Pty Ltd and Coastal Corner Pty Ltd ................................................ 22

List of Figures Page

Figure 1 The subject area showing the proposed DDO28 .................................................... 1

Figure 2 The four sub‐precincts identified in the Ocean Beach Road Commercial Precinct Heritage Policy ...................................................................... 8

Figure 3 Current zone map .................................................................................................... 9

List of Abbreviations

The Act Planning and Environment Act 1987

CFA Country Fire Authority

DDO Design and Development Overlay

HO Heritage Overlay

LPPF Local Planning Policy Framework

PPN Planning Practice Note

SPPF State Planning Policy Framework

VCAT Victorian Civil and Administrative Tribunal


Overview

Amendment Summary

The Amendment Mornington Peninsula Planning Scheme Amendment C204

Common name Ocean Beach Road, Sorrento

Brief description The Amendment proposes to apply permanent design and development provisions (Design and Development Overlay Schedule 28) to Ocean Beach Road, Sorrento

Subject site The Ocean Beach Road commercial precinct, Sorrento

The Proponent Mornington Peninsula Shire Council

Planning Authority Mornington Peninsula Shire Council

Authorisation A03427 authorised on 27 September 2016

Exhibition 15 November 2016 to 13 January 2017

Submissions Number of Submissions: 14 Opposed: 10

A list of submitters is attached as Appendix A

Panel Process

The Panel Trevor McCullough (Chair), Rachael O’Neill

Directions Hearing Mornington Peninsula Council offices, Rosebud 21 March 2017

Panel Hearing Mornington Peninsula Council offices, Rosebud 11 April 2017

Site Inspections Unaccompanied, 21 March 2017, 23 April 2017

Appearances Mornington Peninsula Shire Council represented by Mr John Rantino of Maddocks Lawyers

Sorrento OB (DeGroup) Pty Ltd represented by Ms Teresa Bisucci of Best Hooper

Tyas Super Pty Ltd and Coastal Corner Pty Ltd represented by Ms Julia Bell of David Lock and Associates

Tixxis Pty Ltd represented by Mr Peter Soding

Nepean Conservation Group represented by Mr Barend Frielink and Mr Gary Naughton

Nepean Historical Society represented by Mr Frank Hindley

Date of this Report 29 May 2017


Executive Summary

(i) Summary

Mornington Peninsula Planning Scheme Amendment C204 (the Amendment) seeks to introduce Schedule 28 to the Design and Development Overlay (DDO28) into the Scheme to apply to land within the heritage precinct known as the Ocean Beach Road Commercial Precinct, Sorrento.

As exhibited, DDO28 includes: design objectives; application requirements; mandatory height and setback requirements; and decision guidelines.

Council submitted that the Amendment is required to limit the height and scale of future development within the commercial precinct of Sorrento; manage the ever increasing development pressure on Ocean Beach Road; and ensure that the historical significance and coastal village character of the township is not lost through the cumulative impact of inappropriate development.

An interim DDO28 currently applies to the land. The interim control applies mandatory setback and height requirements. The Amendment seeks to implement the Ocean Beach Road Commercial Precinct Sorrento Heritage Policy (HLCD Pty Ltd 2015) via the permanent introduction of the proposed DDO28.

Objecting submitters raised the following key issues:

The strategic justification for using mandatory controls.

Whether existing planning policy provides adequate guidance for built form outcomes.

Whether the application of mandatory controls precludes site responsive designs.

The appropriateness of the proposed precinct boundaries.

Whether lift‐overrun and balustrading are part of a building for the purpose of calculating a maximum building height and applying height controls in the DDO28.

The Panel has considered all written submissions along with presentations made to it at a public Hearing held on 11 April 2017.

Although the Panel was not convinced that there is a high level of existing ‘development pressure’, or that the built form of recent developments is overwhelming or out of character, on balance the Panel supports the need for additional controls over and above local policy.

The Panel was not convinced that the proposed mandatory nature of the setback and height controls meets the criteria of Planning Practice Notes 59 or 60, and concludes that discretionary controls could achieve the built form outcomes sought by Council whilst maintaining the design flexibility inherent in a performance based system.

The Panel recommends that the Amendment proceed, subject to the replacement of mandatory controls with discretionary controls, and a number of other changes to the proposed DDO28.


(ii) Recommendations

The Panel recommends that Mornington Peninsula Planning Scheme Amendment C204 be adopted as exhibited, subject to the following changes to Design and Development Overlay Schedule 28:

Adopt the changes to the Schedule proposed by Council post‐Hearing as shown 1.in Appendix C to this report, subject to the further changes set out below:

a Amend ‘Design objectives’ to include:

a clearly defined vision for the commercial centre

require that a development is compatible with and makes a positive contribution to the low scale and character of the precinct

emphasise the need for development to achieve excellence in architecture and design

includes a requirement that views of significant heritage buildings (and identify which buildings) are protected

delete reference to the HLCD report.

b Amend ‘Buildings and works’ to:

remove mandatory requirements

include discretionary requirements

include a requirement to the effect of ‘that an application to exceed the maximum building height must be accompanied by a site analysis plan and a written urban context report documenting how the development will achieve the design objectives and outcomes of this schedule’.

c Amend ‘Table’ to:

remove references to storeys

remove the mandatory height requirements

remove the mandatory setback requirements

remove setback requirement for east sub‐precinct

include a note to the effect that ‘the setback does not relate to unnamed lanes’.

d Amend ‘Notes’ to:

delete notes relating to mandatory controls and storeys

delete the words ‘not from the title boundary’ as it relates to setbacks from the third storey.

e Include a separate heading of ‘Application requirements’ and include the following:

A site context analysis and design response.

Detailed plans, including palette of materials and finishes.

A planning report demonstrating that the development will achieve design objectives of the schedule.

A perspective or photomontage detailing how the proposed development will sit within the streetscape.


As appropriate, sightlines to demonstrate that a proposed development does not obstruct views of significant heritage places.

f Amend ‘Decision guidelines’ to:



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1 Introduction

1.1 The Amendment

(i) Amendment description

Mornington Peninsula Planning Scheme Amendment C204 (the Amendment) seeks to introduce new design and development restrictions into the Mornington Peninsula Planning Scheme to apply to land within the heritage precinct known as the Ocean Beach Road Commercial Precinct, Sorrento.

More specifically the Amendment introduces Schedule 28 to the Design and Development Overlay (DDO28) and applies it to the subject area.

As exhibited, DDO28 includes:

design objectives

application requirements: - all development applications within the Ocean Beach Road commercial

precinct must be accompanied by a site context analysis and design response report demonstrating how the proposal achieves the design objectives and requirements of DDO28;

- an application for development exceeding 8 metres in height within the Ocean Beach Road commercial precinct, must include a sightline diagram demonstrating general compliance with the sightlines shown in Diagram 1 at DDO28

mandatory height and setback requirements (see Table in DDO28), and

decision guidelines.

(ii) The subject area

The Amendment applies to land shown in Figure 1.

Figure 1 The subject area showing the proposed DDO28


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(iii) Purpose of the Amendment

Council submitted that:

The Amendment is required to limit the height and scale of future development within the commercial precinct of Sorrento. The precinct is arguably the most sensitive area of Sorrento. As set out earlier, mandatory height controls currently apply to all residential areas surrounding Ocean Beach Road and to some pockets of the commercial zoned land within the precinct. However, they do not apply to the majority of the precinct. This represents a significant gap in the current planning framework and a significant threat to the significance of the heritage place including its low‐scale coastal village character.

The Amendment (and proposed design and development control) is required to manage the ever increasing development pressure on Ocean Beach Road and ensure that the historical significance and coastal village character of the township is not lost through the cumulative impact of inappropriate development. The Amendment will also provide much needed certainty to all stakeholders (i.e. residents, community groups and developers) about Council’s expectations and requirements for the scale and form of future development in the precinct.

1.2 Background to the proposal

The subject area is zoned Commercial 1 Zone (with the exception of 52 and 48A Kerferd Avenue, which is located in the Public Use Zone 6), and is subject to an interim DDO28 applied through Amendment C203 approved by the Minister under section 20(4) of the Act and gazetted on 15 December 2016.

Council advised that the strategic ground‐work for the current Amendment commenced in early 2015 when Council commissioned heritage consultants, HLCD Pty Ltd to prepare the Ocean Beach Road Commercial Precinct Sorrento Heritage Policy for Planning Applications for Places in the Heritage Overlay.

The Amendment seeks to implement the Policy via the permanent introduction of the proposed DDO28.

1.3 Summary of issues raised in submissions

The key issues raised in the submissions of the various parties are briefly summarised as follows:

(i) Planning Authority

The key issues for the Council were:

The strategic justification for using mandatory controls

Whether existing planning policy provides adequate guidance for built form outcomes?


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(ii) Relevant agencies

Heritage Victoria did not oppose the Amendment, and requested two very minor changes to a background report.

The Country Fire Authority supported the Amendment.

(iii) Individual submitters or groups of submitters

Objecting submitters raised the following key issues:

The strategic justification for using mandatory controls.

Whether existing planning policy provides adequate guidance for built form outcomes.

Whether the application of mandatory controls precludes site responsive designs.

The appropriateness of the proposed DDO and precinct boundaries, particularly relating to:

- the location of the land at 80‐98 Ocean Beach Road in two precincts - the exclusion of the Koonya Hotel and Morgans Bar from the DDO and the

eastern sub‐precinct - the inclusion within the DDO and precinct of properties with no recognised

heritage significance including 45 and 47 Kerferd Avenue and 3293‐3295 Point Nepean Road, Sorrento

- the inclusion of 60 Kerferd Avenue within the central precinct.

Whether lift‐overrun and balustrading are part of a building for the purpose of calculating a maximum building height and applying mandatory height control in the DDO28.

1.4 Issues dealt with in this report

The Panel considered all written submissions made in response to the exhibition of the Amendment; as well as further submissions, evidence and other material presented to it during the Hearing, and observations from site visits.

The Panel has reviewed a large volume of material. A list of documents tabled at the Hearing is attached as Appendix B. The Panel has had to be selective in referring to the more relevant or determinative material in the report. All submissions and materials have been considered by the Panel in reaching its conclusions, regardless of whether they are specifically mentioned in the report.

This report deals with the issues under the following headings:

Planning context

Are additional controls needed?

Assessment against PPN59 ‐ Mandatory controls

Assessment against PPN60 – Activity Centres

The proposed DDO Schedule 28.


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2 Planning context

Council provided a response to the Strategic Assessment Guidelines as part of the Explanatory Report.

The Panel has reviewed Council’s response and the policy context of the Amendment, and has made a brief appraisal of the relevant zone and overlay controls and other relevant planning strategies.

2.1 Policy framework

(i) State Planning Policy Framework

The state planning policy provisions were updated on 31 March 2017 via Amendment VC134. As amended, Council submitted that the following state planning policies are relevant to the Panel’s consideration of the Amendment:

11‐ Settlement

11.03‐2 – Activity Centres

11.05‐1 – Coastal settlements

11.05‐2 – Distinctive areas of state significance

11.06‐4 – Place and Identity

12.02‐1 – Protection of coastal areas

15.03‐1 – Heritage Conservation

17.01‐1 – Business

17.03‐1 – Facilitating Tourism.

Council submitted that the following clauses were of particular relevance:

Broad activity centre policy at clause 11.03‐2 encourages the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres which provide a variety of land uses and are highly accessible to the community.

For coastal settlements such as Sorrento, clause 11.05‐1, state planning policy encourages urban renewal and redevelopment opportunities within the existing settlement to reduce demand for urban sprawl. The overall objective for such settlements is to achieve sustainable coastal development.

Clause 11.05‐2 (Distinctive Areas of State significance) recognises and seeks to protect and enhance the valued attributes of five distinctive areas in Victoria, including the Mornington Peninsula.

Clause 11.06‐4 (Place and identity) also promotes urban design excellence in the built environment and clause 15 of the Scheme offers some guidance on how a high standard of urban design and amenity might be achieved. It sets out various urban design principles intended to achieve “architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties”.

For coastal areas, more specific urban design policy is set out at clause 12.02‐1. It seeks to ensure potential development is sensitively sited and designed so as to respect the valued character of coastal settlements.


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State planning policy relating to heritage conservation at clause 15.03 (Heritage) of the Scheme includes various strategies directed to ensuring the conservation of places of heritage significance. Relevantly, the strategies include to:

- identify, assess and document places of natural and cultural heritage significance as a basis for their inclusion in the planning scheme

- provide for the conservation and enhancement of heritage value - encourage appropriate development that respects places with identified

heritage values - ensure an appropriate setting and context for heritage places is maintained

or enhanced.

(ii) Local Planning Policy Framework

Council submitted that the Amendment supports the following local planning objectives:

21.07‐2 – Local Area Character

22.02 – Activity Centres

22.04 – Heritage Places and Abutting Land

22.05 – Aboriginal Cultural Heritage

22.13 – Township Environment

22.17 ‐ Sorrento Historic Precinct Policy.

Council submitted that the following policies are particularly relevant:

Council's general heritage policy, 'Heritage Places and Abutting Land' at clause 22.04 seeks to conserve and appropriately manage identified heritage places. It includes a policy to require new development to retain the significance of a heritage place such as through:

- being visually recessive and compatible in terms of scale, siting, design, form and materials with the historic character and significance of the place

- responding positively to special features such as views, vistas, mature vegetation and landmarks.

Council also has a heritage policy specifically tailored to the Sorrento Historic Precinct at clause 22.17 of the Scheme. It applies to all land in HO1 including the Subject Land (other than the Continental Hotel and Athenaeum heritage places which are on the Victorian Heritage Register).

It includes 'general' objectives to: - protect and enhance vistas of both natural and man‐made historical

significance, views and landmarks - ensure new development is complementary to the significance and

character of the Precinct - conserve and enhance the significance of heritage places in the Precinct; - conserve and enhance the streetscapes of the Precinct and in particular

Ocean Beach Road - ensure that new development is compatible with the height, scale and

siting of existing development in various parts of the Precinct.

Complementary to those objectives are the following 'general' policies to:


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- ensure that new development does not have an adverse impact on existing vistas, views and landmarks

- ensure new development responds positively to the location, height, mass, materials and external appearance of existing development in the Precinct;

- require new development to respect the height, scale and siting of existing development in the various parts of the Precinct

- consider the cultural significance of a heritage place, including any statement of significance, when assessing proposals to develop or demolish the heritage place.

The Sorrento Historic Precinct Policy also includes a sub‐policy applying to all the land in the Ocean Beach Road Area as defined in the Policy, which includes the Subject Land (other than the Continental Hotel and Athenaeum heritage places).

According to the Policy, the Ocean Beach Road Area is of significance for its important concentration of commercial premises of high historical significance and also for the landmark qualities of the Continental Hotel and Stringers Store. It is also described as being of aesthetic and architectural significance because it demonstrates a number of changing methods of construction and design over the years including many buildings of limestone construction.

The character of the Ocean Beach Road area is described in the Policy as:

… that of an historic seaside village with a wide promenade type indigenous tree lined main street with clear views to both the Bay and the back beach sand dunes and comprising mainly low rise commercial development and low density housing …

Relevant policy objectives in relation to the Ocean Beach Road area include: - To retain the historical integrity of the Continental Hotel and Stringers

Stores as landmark features at the entry to the main commercial area. - To create an entrance to Sorrento’s main street at the corner of Point

Nepean Road and Esplanade which recognises the heritage values of the Precinct.

Related to these objectives, where a permit is required for development of land it is policy to:

- Discourage the erection of buildings that exceed eight metres in height - Encourage buildings which incorporate the following design characteristics:

- Typical form and elements of a Victorian or Edwardian shopfront, where appropriate

- Original Victorian and Edwardian shopfronts - Reinforcement of the existing built form - Restorative alterations to significant heritage places - Roof pitch of not less than 22 degrees.

- Require development at the corner of Point Nepean Road and Esplanade to recognise the special significance of the corner as an entrance to Sorrento’s main street and to complement the Koonya Hotel/Stringers Corner redevelopment, with special emphasis on building setbacks, landscaping, car parking away from Point Nepean Road and sight distances for traffic.


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(iii) Other planning strategies or policies used in formulating the Amendment

Ocean Beach Road Commercial Precinct Heritage Policy

The Policy was adopted by Council on 22 September 2015.

Council submitted that the commercial precinct in Ocean Beach Road and Point Nepean Roads, Sorrento has been identified in the Scheme as a valued heritage place for many years. It has been located within the Heritage Overlay (HO1) since the New Format Planning Scheme commenced on 6 May 1999.

The stated aim of the Policy is:

…to provide guidance for the future conservation and development of this area to protect the cultural heritage significance of the Ocean Beach Road Commercial Heritage precinct. The Ocean Beach Road Heritage Policy has been written to assist owners undertaking works and Council officers assessing planning approvals for new development or alterations to existing properties.

The purpose of the Policy is “to retain the special qualities in the physical environment that arise from the history of development in Ocean Beach Road.”

Council submitted that the Policy was prepared with reference to key relevant cultural documents in Australia including the Burra Charter and with regard to Planning Practice Note 01: Applying the Heritage Overlay.

The Policy includes a statement of cultural significance for the broad study area or precinct, which is recited at the commencement of each sub‐precinct policy.

The Policy describes the broad Precinct as being of importance to residents and visitors at a local significance level “for its character as a historic seaside village in a landscaped setting with views to natural and historic features because of its historical significance, its rarity, it representativeness, its aesthetic significance and its strong or special associations”.

The reasons the Precinct is identified as being significant include:

Because of its intactness and ability to demonstrate the two key periods of development (the 1870’s and 1890’s and the resort boom of the 1890’s to 1920’s), through its early buildings and setting;

Because it demonstrates principal characteristics of the 1870’s and 1880’s period of development, including the low scale of a seaside village, following the natural topography and creating a main street.1

The Policy divides the study area into four sub‐precincts, based on the different characteristics within the precinct and provides an individual policy for each sub‐precinct appropriate to its characteristics as shown in Figure 2.

1 See Section 4.2, page 3 of the Policy.


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Figure 2 The four sub‐precincts identified in the Ocean Beach Road Commercial Precinct Heritage Policy

For each sub‐precinct, the Policy provides guidance in relation to additions and infill. In relation to building heights and setbacks, it provides quite specific guidance for each sub‐precinct.

2.2 Planning scheme provisions

(i) Zones

As shown in Figure 3, the subject area is zoned Commercial 1 Zone with the exception of the land at 52 and 48A Kerferd Avenue, which is located in the Public Use Zone 6.


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Figure 3 Current zone map

No changes to zones are proposed as part of the Amendment.

(ii) Overlays

The Heritage Overlay Schedule 1 (HO1) applies to all of the subject land except:

1‐21A Ocean Beach Road (Continental Hotel) which is subject to Heritage Overlay Schedule 257 (HO257)

36‐38 Ocean Beach Road (Athenaeum) which is subject to Heritage Overlay Schedule 408 (HO408).

Environmental Significance Overlay Schedule 25 (ESO25) applies to 3293‐3295 Point Nepean Road.

2.3 Ministerial Directions and Practice Notes

(i) Ministerial Directions

Council submitted that the Amendment meets the relevant requirements of the following Ministerial Directions:

Ministerial Direction – The Form and Content of Planning Schemes under s7(5) of Act

Ministerial Direction No 9 – Metropolitan Strategy under s12(2)(a) of the Act

Ministerial Direction No 11 – Strategic Assessment of Amendments under s12(2)(a) of the Act

Ministerial Direction No 17 – Localised Planning Statements under s12(2)(a) of the Act.

(ii) Planning Practice Notes (PPN)

PPN59 The role of mandatory provisions in planning schemes, June 2015 applies because the Amendment proposes to apply mandatory height and setback controls in DDO28. Assessment against PPN59 is discussed in Chapter 4 of this report.


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PPN60 Height and setback controls for activity centres also applies, and this is discussed in Chapter 5.

2.4 Discussion and conclusions

The Panel accepts that the Amendment is broadly consistent with State and local planning policy frameworks, and complies with the relevant ministerial directions.

The Panel notes the substantial body of heritage policy and planning controls that apply to individually significant sites and the Precinct more broadly.

The questions of whether additional controls are justified, whether mandatory controls are justified, and compliance with the relevant PPNs are discussed in the following chapters.


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3 Are additional controls needed?

3.1 The issue

Do the existing policies in the planning scheme achieve the desired built form outcomes?

Some submitters questioned whether the proposed controls were needed, arguing that the existing policies have not created undesirable built form outcomes.

3.2 Submissions

Mr Rantino, appearing for Council, submitted that the Amendment was required to fill a gap in the current planning framework to:

limit the height and scale of future development within the commercial precinct of Sorrento

to manage what he described as an “ever increasing development pressure on Ocean Beach Road”

to provide certainty to all stakeholders with respect to the Council’s expectations and requirements for the scale and form of development allowable within the precinct.

In relation to the first point, Mr Rantino advised that mandatory controls currently apply to all residential areas surrounding Ocean Beach Road and to some pockets of the commercial zoned land within the precinct. He submitted that the gap in mandatory controls posed a “significant threat to the significance of the heritage place including its low‐scale coastal village character”. In relation to the threat of development pressure, he submitted that the controls were required to “ensure that the historical significance and coastal village character of the township is not lost through the cumulative impact of inappropriate development”.

In support of the assertion that the existing policy was deficient, Mr Rantino submitted2:

The existing local planning policy for the precinct at clause 22.17 (Sorrento Historic Precinct) provides some guidance for height, scale and setbacks for new development in the precinct but is not terribly sophisticated. For example, it discourages the erection of buildings that exceed 8 metres in height without providing any related guidance on the circumstances in which the 8 metre height may be varied. For example, having regard to the size of the site and the setback of the part of the building above 8 metres from the site boundaries. Also, being discretionary, there is no certainty that the policy will be applied consistently and rigorously.

Related to this, historical reliance on planning policy to achieve an appropriate outcome has resulted in multiple developments being approved that have been at odds with the valued low‐scale coastal village character of the Precinct. These developments would and could not be approved if the proposed mandatory height controls were introduced.

2 Council Part A submission para 112.


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Ms Bisucci, appearing for Sorrento OB (DeGroup) Pty Ltd (Submission 6) was critical of the strategic justification for the Amendment and submitted that built form controls should be strategically justified from a policy and physical context. She submitted that the Amendment:

is not based on any vision which supports urban renewal having regard to the physical context but rather on the basis that there is increasing development pressure … tighter controls must be placed ….to limit height and scale …

She further submitted that the:

Amendment is a reactive response which implies that either the current controls and policy framework is inadequate or that the decision makers have got it wrong.

Ms Bisucci submitted that there is ample:

specific and dedicated existing policy for the Sorrento Township which provides appropriate design and development guidance to ensure that any development is respectful of and complementary to the coastal location and the heritage significance of the area.

The Nepean Conservation Group (Submission 14) and the Nepean Historical Society (Submission 13) were supportive of the intent of the Amendment and, in particular, the Historical Society submitted that it agreed:

with the Council assessment that an Amendment is required to manage the increasing development pressure on Ocean Beach Road, and to ensure that the historical significance and coastal village character of the town is not lost through inappropriate development.

Both groups were critical of the recent development that had occurred within the town, the uncertainty provided through the existing controls that resulted in Council decisions being challenged, and the cost associated with VCAT appeals borne by all parties. They were also critical of the change in the nature of land use, submitting that the recent developments were focused on residential rather than commercial.

Ms Bell, appearing for Coastal Corner Pty Ltd (Submission 1), was critical of the Amendment and submitted that it was not based on a sound strategic rationale. She further submitted that the controls give little consideration to the existing physical conditions, which she observed was due to the lack of testing of appropriate built form outcomes, based on a rigorous analysis. In her review of the existing planning policy context, Ms Bell noted that Plan Melbourne 2017 no longer referred to protecting Melbourne’s neighbourhood centres with mandatory controls.

Mr Soding (submission 11) submitted that the heritage values of the precinct are already protected by the presence of the Heritage Overlay and what he described as “extensive policy” in the Local Planning Policy Framework (LPPF). He submitted that:

a DDO with a vice grip on heights and setbacks is not needed. The existing policy within the SPPF and LPPF would give the outcomes sought. In respect to the setbacks proposed, the proposal to setback the third and upper level a


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minimum of 8 metres from the front may lead to a worse planning and design outcome as it advocates a stepping of the building where site conditions and view lines may not require such a step in the building.

3.3 Discussion

Mr Rantino provided the Panel with a folder containing copies of all recent applications for planning permits, including permits issued, endorsed plans and VCAT decisions. The folder also contained one application for planning permit and plans that have formed the basis of pre‐application discussions. Having reviewed the approvals, the Panel is of the view that there has not been a high number of applications that would constitute ‘development pressure’ or at a level that seems overwhelming for an activity centre. The Panel notes that the details of the approval at 68‐70 Ocean Beach Road were not included in the folder provided to the Panel, and that this is evidently a recent development and one referred to in submissions.

The Panel observes that the approvals range over a ten year period and that the overall height of developments that have been approved are generally consistent with the heights referenced in the Amendment, although setbacks differ across the approved developments. The number of storeys achieved within the overall heights also differ.

Having inspected the subject area, the Panel is of the view that the new developments sit comfortably within the streetscape and do not visually dominate or overwhelm it. The Panel observes that to date the historical significance and coastal village character of the township has not been lost or eroded. The Panel is of the view that the developments that have been approved but not yet constructed will not alter that outcome.

A summary of the approvals to date and the Panel’s observations is provided in Appendix D.

Mr Rantino tabled an Urban Design Analysis Package, prepared by Hansen Partnership, at the commencement of the Hearing. This was amended and provided to the Panel following the Hearing. Whilst not the subject of evidence or cross‐examination, the Panel considered the document to be of assistance in detailing context, lot size, land use and development potential.

On the basis of the Panel’s review of approvals and the existing policy context, and the Panel’s inspection of the commercial precinct, the Panel is of the view that approvals have been clearly influenced by existing policy. It is clear that VCAT and parties in applications for review have given due consideration to the various planning provisions and policies, including those relating to activity centres and heritage. The Panel does not agree with the submission advanced on behalf of the Council by Mr Rantino that:

historical reliance on planning policy to achieve an appropriate outcome has resulted in multiple developments being approved that have been at odds with the valued low‐scale coastal village character of the Precinct.

The Panel understands and accepts Council’s preference (and indeed that of other submitters) that it is desirable and fair to have a more precise control that guides appropriate scale and form of development within the commercial centre. On balance, the Panel agrees that a more specific level of control in the form of a DDO is appropriate for the centre. The Panel accepts that there is benefit in clearly articulating the desired built form


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outcomes for the centre. The question of whether these controls should be mandatory or discretionary is discussed in the next Chapter.

3.4 Conclusions

The Panel concludes:

There has not been a high number of applications that would constitute ‘development pressure’ or at a level that seems overwhelming for an activity centre.

The overall height of developments that have been approved are generally consistent with the heights referenced in the Amendment, although setbacks and numbers of storeys vary.

The new developments sit comfortably within the streetscape and do not visually dominate or overwhelm it, and the historical significance and coastal village character of the township has not been lost or eroded.

Approvals have been clearly influenced by existing policy.

The Panel does not agree that recent developments are “at odds with the valued low‐scale coastal village character of the Precinct”.

On balance, a more specific level of control in the form of a DDO is appropriate for the centre.


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4 Assessment against PPN59 ‐ Mandatory controls

4.1 The issues

The Amendment proposes mandatory height and setback controls in the table to DDO28. The issue is whether mandatory height and setback controls proposed in the DDO28 are justified.

If it is determined that mandatory controls are not strategically justified, then a further issue is whether DDO28 remains appropriate in the context of discretionary controls. This issue is discussed in Chapter 6.

4.2 Introduction

Planning Practice Note 59 (PPN59) is relevant to the consideration of mandatory controls. In its introduction PPN59 notes that the Victoria Planning Provisions (VPP) are predominantly performance based. It notes that mandatory provisions in the VPP are the exception. It also notes that the:

VPP process is primarily based on the principle that there should be discretion for most developments and that applications are to be tested against objectives and performance outcomes rather than merely prescriptive mandatory requirements.

PPN59 notes that there will be circumstances where a mandatory provision will provide certainty and ensure a preferable and efficient outcome.

PPN59 states that mandatory provisions will only be considered in circumstances where it can be clearly demonstrated that discretionary provisions are insufficient to achieve desired outcomes. It lists criterion that should be used to assess whether the benefits of mandatory controls outweigh any loss of opportunity or flexibility inherent in a performance based system:

Is the mandatory provision strategically supported?

Is the mandatory provision appropriate to the majority of proposals?

Does the mandatory provision provide for the preferred outcome?

Will the majority of proposals not in accordance with the mandatory provision be clearly unacceptable?

Will the mandatory provision reduce administrative costs?

The views of the submitters differed as to whether mandatory controls were appropriate for the centre. These submissions and the PPN59 criteria are discussed below.

4.3 Is the mandatory provision strategically supported?

(i) Submissions

Mr Rantino submitted that the special characteristics of the subject land and its location on the Mornington Peninsula is “key to the strategic basis for using mandatory height and setback provisions”. He noted that the significance of the Peninsula was identified in State


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planning policy and the Mornington Peninsula Localised Planning Statement, 2014. He advised that:

Most relevantly, the Statement identifies the establishment of a strong and consistent overall planning framework for future land use and development on the Peninsula as being ‘essential’ given the particular pressures on the Peninsula’s rural landscapes, coasts, towns and villages, and the risk of unintended and unplanned change, through cumulative impacts. It expressly anticipates the use of mandatory controls and standards in the planning framework where necessary to achieve this objective.

Mr Rantino also referred to mandatory controls that had been applied in the villages of Flinders, Shoreham and McCrae. He advised that the DDOs applied to these centres prescribe a mandatory maximum building height of 8.5 metres with no more than two storeys above natural ground level. He tabled a copy of the Panel report for Amendment C101 to the Mornington Peninsula Planning Scheme (Flinders). Mr Rantino submitted that:

the Sorrento village centre, like the Flinders village centre, warrants mandatory height controls to preserve the existing scale, character and heritage values and setting of the Sorrento centre.

In relation to implementing policy, Mr Rantino submitted that the proposed control would implement the purpose of the Ocean Beach Road Commercial Precinct Sorrento Heritage Policy (the HLCD report); would achieve two objectives of Clause 22.17; and would assist in achieving policy objectives of Clause 22.02 of the planning scheme. In summary, he submitted that the controls would:

achieve the policy relating to height and setbacks of the Ocean Beach Road policy

ensure the retention of the existing streetscape character of the area

ensure that commercial development contributes to the scale and urban design quality of the centre, enhance the public realm and respect heritage values

maintain consistent standards for development in relation to height and landscaping.

Conversely, Ms Bisucci submitted that the Amendment does not meet this criteria of PPN59. She submitted that the Heritage Overlay, Clause 22.04 and Clause 22.17 are the more appropriate mechanism to guide development and respond to the heritage value of the streetscape. Further, she submitted that:

rather than add another layer of control, it is considered more appropriate that the Council consider amending the current performance based planning provisions if they are deficient.

Ms Bell included a comprehensive summary of the relevant State and local planning policy framework relevant to the Amendment. She submitted that the Amendment does not have a sound strategic basis:

The application of a design control of this nature over the extent of an activity centre requires analysis and testing of the existing and future built form along with its capacity to accommodate housing growth, given the limited opportunities in the residential hinterland surrounding. The DDO schedule


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should be informed by the preparation of an urban design report justifying the heights and setbacks across each precinct.

Mr Soding was also of the view that the existing State and local planning policy would provide the outcomes sought by the proposed controls.

(ii) Discussion

The Panel acknowledges the objectives and strategies of the Mornington Peninsula Localised Planning Statement, including those to maintain and enhance the character and role of towns in the Peninsula and to effectively manage future change. It is evident that the extent of change is unlikely to be as significant as other activity centres, particularly those outside of the Peninsula.

The Panel, however, also acknowledges that there is clear policy direction in Plan Melbourne 2017, including that detailed at Policy 1.2.1 which notes that all activity centres have the capacity to continue to grow and diversify the range of activities they offer. Plan Melbourne 2017 also notes that “to capture and to accommodate future growth opportunities activity centres will need greater flexibility in planning controls than surrounding residential areas”. This is contrasted with the policy objectives relating to residential areas where Plan Melbourne notes that there has been a strengthening of mandatory controls in the review of the residential zones.

It is clear that the Localised Planning Statement seeks to encourage the establishment of a strong policy framework. Plan Melbourne also promotes such an approach where it identifies that “local plans undertaken in consultation with the community will identify the scope and nature of future growth within each activity centre”.

The differentiation between the two documents seems to be the reference to the use of mandatory controls. The Localised Planning Statement states that it may be appropriate to use mandatory controls where necessary due to particular pressure on towns and the risk of unintended and unplanned change through cumulative impacts. The Panel is of the view that this is a situation where the imposition of mandatory controls is not necessary to facilitate appropriate development and growth within the Sorrento commercial centre. As discussed in the previous Chapter, the Panel does not agree with submissions advanced by Council that there has been development pressure on the town or indeed that the development undertaken has resulted in intended or unplanned change.

The Panel is of the view that the policy framework does not support the use of mandatory controls. It is of the view that objectives and strategies relating to retaining the character of the streetscape and ensuring that development is appropriately designed and sited can be readily achieved through the use of discretionary controls.

4.4 Is the mandatory provision appropriate to the majority of proposals?

(i) Submissions

Mr Rantino submitted that Council had given careful consideration to the scope of the proposed mandatory controls to ensure that they would be appropriate in the vast majority of cases. He advised that the Council engaged Hansen Partnership to undertake an urban


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design analysis to road test the proposed controls. He advised that Hansen had identified a number of sites within the commercial precinct that were vacant/underutilised and likely to be developed. He also observed that whilst submitters had raised concerns with the constraints imposed as a result of the proposed controls, none had suggested that the proposed DDO28 would result in inappropriate development or present financially unviable development of their properties.

Ms Bisucci submitted that, in the absence of a comprehensive built form analysis prepared as part of the Amendment, it is difficult to determine the visual and amenity impacts the proposed controls would have on the commercial precinct and what type of influence this would have taking into account consideration of land use outcomes and economic growth. She submitted that this was a major flaw.

Contrary to the position advanced by Mr Rantino, Ms Bell submitted that the proposed controls “would limit the unnecessary loss of flexibility and opportunity available in the performance based controls”. She submitted that the scope of the mandatory controls had not been carefully considered to ensure that they would be appropriate in the vast majority of cases. She also submitted that, of the 60 properties fronting Ocean Beach Road, only 23 are identified as being individually significant within the Ocean Beach Road Commercial Precinct Sorrento Heritage Policy. She concluded that, given the lack of individual heritage significance, performance based controls are more appropriate to deliver flexibility in design.

(ii) Discussion

As noted in Chapter 3 of this report, Mr Rantino tabled the Hansen work at the commencement of the Hearing. It was not publicly available prior to the Hearing. The Panel notes that the Hansen work was not presented as expert evidence during the Hearing, and it has not been subjected to critical review.

Having now had the benefit of reviewing the Hansen work, the Panel notes that whilst it documents ‘built form envelopes’, in some cases these do not correlate with the identification of ‘contributory’ heritage buildings, or sites that have been recently redeveloped, or indeed sites that have been identified as ‘unlikely to develop’. Whilst the Hansen report provides some useful context and analysis, it has not been presented as a detailed impact analysis from which definitive conclusions could be drawn.

The Panel is not convinced that the proposed mandatory controls are appropriate to the majority of proposals. The Panel believes that proposals that do not strictly comply with the proposed mandatory controls could still be acceptable provided that they meet the design objectives of DDO28. This is evidenced by some of the existing developments that may not meet the proposed mandatory standard, but nevertheless provide acceptable outcomes.

4.5 Do the mandatory provisions provide for the preferred outcome?

(i) What are the considerations?

PPN59 lists the following three criteria be used to assess whether or not the mandatory provisions provide for the preferred outcome:

Does a proposed mandatory provision resolve divergent opinions within the community as to a preferred outcome when a consistent outcome is necessary?


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Does a proposed mandatory provision avoid the risk of adverse outcomes in circumstances where there is likely to be constant pressure for development inconsistent with planning policy?

Is there real evidence of development exceeding the proposed control?

(ii) Submissions

Mr Rantino submitted that the proposed controls would facilitate the Council’s preferred outcome of ensuring that development maintains the low scale of development in the centre. He also submitted that the mandatory controls would clearly articulate to developers what was an appropriate level of development, and what was ultimately sought by residents and visitors to the area who value the low scale character of the village centre. He submitted that:

The proposed mandatory controls will avoid the risk of adverse outcomes in circumstances where, because of the high level of discretionary spend in the activity centre, the tourism of the area and the high land values, there is likely to be constant pressure by developers seeking to develop land at building heights inconsistent with local planning policy, in order to maximise the development potential (and profit) within the precinct.

Mr Rantino submitted that the mandatory controls are necessary to avoid “further development being approved that is at odds with the valued low scale village character of the Precinct”. He then listed a summary of examples of approved development that exceed the limits of the proposed controls. He submitted that these developments would not be approved if the proposed mandatory height controls were introduced. The Panel noted that, apart from one example, being at the rear of the Continental Hotel, the overall height of the developments was below the proposed 11 metre height control, and it was the setback at the second storey that encroached into the proposed setback. The Panel put this observation to Mr Rantino and he confirmed that this was the case.

The Nepean Conservation Group and the Nepean Historical Society were of the view that the proposed mandatory provisions would resolve divergent opinions as they would clearly articulate acceptable built form outcomes for the centre. These groups were very concerned about the extent of redevelopment that had occurred recently in the centre and the adverse impacts these had on the character of the precinct.

Mr Soding advised the Panel that he had reviewed VCAT decisions in the precinct since 2006, and on the basis of this review he had form the view that the three reviews (two of which had been against conditions) “is hardly in our view significant pressure”.

(iii) Discussion

The Panel understands the Council’s and other submitters’ preference for mandatory provisions on the basis that applicants for planning permits and the community will have clearly defined parameters of the extent of development deemed acceptable by the Council; however, the Panel does not agree that a consistent outcome is necessary. That is, whilst the Panel accepts that it is appropriate to establish development objectives for the precinct, it does not accept that it is necessary to achieve a consistent outcome in terms of absolute


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overall heights, setbacks or storeys. It is possible to achieve development that is broadly consistent with design objectives but that allows for variation in height or setback to encourage differentiation between buildings and visual interest without uniformity.

Further, the Panel does not accept that mandatory provisions will necessarily avoid the risk of adverse outcomes. Firstly, the Panel does not accept that there has been, or that there will be, likely constant pressure for development that is inconsistent with planning policy. It is also of the view that there is no real evidence of development exceeding the proposed control, indeed as noted above, all but one of the developments are less than 11 metres in overall height. Secondly, the Panel is of the view that discretionary controls can be satisfactorily used to guide appropriate built form outcomes. Thirdly, mandatory controls are no guarantee of quality architectural outcomes or design responses.

4.6 Will the majority of proposals not in accordance with the mandatory provision be clearly unacceptable?

(i) Submissions

Mr Rantino submitted that the cumulative impact of developments that were inconsistent with the proposed controls would result in an unacceptable outcome.

Ms Bell submitted that the proposed height controls do not achieve the outcomes sought within the design objectives of proposed DDO28.

(ii) Discussion

The design objectives of the proposed DDO28 seek to:

ensure that development is respectful of and makes a positive contribution to the low scale character of the streetscape

provide for a graduated building height from Ocean Beach Road and Morce Avenue

promote design excellence

ensure that development exceeding eight metres in height is generally not visible from eye level directly opposite

ensure that development has adequate regard for the design requirements in the HLCD report.

Mr Rantino advised the Panel that the sightline objective was drafted as an important application requirement, but was not a mandatory provision.

Given the presence of the Heritage Overlay and contributory buildings; the need to comply with the requirements of the overlay and policy; coupled with the fact that some sites are unlikely to be redeveloped, it is the Panel’s observation that there would not be a majority of proposals that would not accord with the requirements. Further, should a proposal not accord with the requirements, it is not clear that this would necessarily be an unacceptable outcome. It is the Panel’s view that well drafted design objectives and detailed decision guidelines can satisfactorily achieve appropriate built form outcomes.


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4.7 Will the mandatory provision reduce administrative cost?

(i) Submissions

Mr Rantino submitted that the proposed mandatory controls would be highly likely to reduce the costs that Council currently incurs as there would be greater certainty afforded by the controls and in turn fewer appeals.

The Nepean Conservation Group also submitted that the mandatory controls were required as the VCAT process is expensive for Council and other parties.

(ii) Discussion

The Panel accepts that the application of mandatory controls could result in a reduction of costs. However, given the limited number of applications for redevelopment, and noting that several planning permits were granted by the Council without the need for an appeals process, indicates to the Panel that the costs do not significantly outweigh the benefit of a performance based provision.

4.8 Do the proposed controls provide adequate flexibility of design?

(i) Introduction

Whilst ‘flexibility of design’ is not in itself a criterion, PPN59 says that the criteria “should be used to assess whether or not the benefits of any proposed mandatory provision outweigh any loss of opportunity and the flexibility inherent in a performance based system” (Panel emphasis).

The Panel believes it is worthwhile examining whether mandatory controls would provide for adequate flexibility of design.

(ii) Submissions

Two of the submitters undertook an analysis on the effect of the proposed controls on their clients’ properties. The Panel considers it appropriate to provide the details of these submissions as they have assisted in providing an understanding of the actual impact on the development potential of properties and informed its view as to the appropriateness of imposing mandatory controls.

Mr Rantino advised at the commencement of the Hearing that Council had:

agreed to remove the requirement for side setbacks and setbacks from the rear building line within the north‐west precinct

amended the requirement at column 2 of the table in the Schedule to refer to “maximum building height at road frontage”

included an additional requirement in the central, north‐west and south‐west precincts that required “where the site is on a corner with a named road or lane, a minimum of 3 metres from the side street building line or the second storey below.”

In closing, Mr Rantino submitted that he did not accept the proposition put by Mr Soding that mandatory controls result in “dumbed down” architecture. He observed that there are


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many excellent examples of quality architecture up and down the coast that are designed responding to mandatory controls.

Ms Bisucci observed that the HLCD report does not talk about a vision “but provides details of what is there and why the Council wants to keep it”. She submitted that a DDO is an appropriate tool to guide built form, but it was the issue of mandatory controls that was of concern. She added that “eight metres is not the magic number” for front setbacks. Ms Bisucci requested that the Panel set design criteria in DDO28 where additional height can be achieved, for instance on large sites, sites that do not contain or abut contributory buildings.

Ms Bell detailed the proposed controls relevant to the various properties owned by her client, and the development outcomes that could be achieved. A summary of her submission in relation to these properties is detailed in Table 1 below.

Table 1 An assessment of the development potential of properties owned by TYAS Super Pty Ltd and Coastal Corner Pty Ltd

Address Submission

172 Ocean Beach Road

Not identified as a contributory property and it is not sited adjacent to contributory heritage properties.

The frontage of properties 170, 172 and 174 Ocean Beach Road are misaligned with the balance of the street, set back approximately 6 metres. DDO28 requires a 5 metre setback from Ocean Beach Road. It is unclear from the controls as to whether the 5 metre setback is required from the front of the allotments adjacent or from the main boundary alignment along Ocean Beach Road.

The site has a depth of approximately 25 metres. Any third storey must be set back 8 metres from the front, making the third storey unviable.

85‐89 Ocean Beach Road

Not identified as a contributory property and it is not sited adjacent to contributory heritage properties.

The setback of the third storey is to be measured from the front wall of the second storey of the building, not from the front title boundary.

As the client is considering adding an additional storey to the existing building, due to the existing front setback, the upper level setbacks required from the second storey (which is also recessed) below leaves a developable area of 5 metres, making the third storey unviable.

45‐47 Kerferd Avenue

Questionable whether the controls apply to this property given the reference to building heights at Ocean Beach Road frontage.

3293‐3295 Point Nepean Road

Not identified as a contributory property. Development of the site should not block views of Quamby or the tower of the Continental Hotel. Development should follow the slope of the land and maintain the 8 metre height limit at any given point so views are still maintained over the tops of buildings.

DDO28 proposes a mandatory front setback that must match the setback of the building on the adjoining lot or the average of the setback of the buildings on either side of the lot.

In this case, the property directly to the west is vacant. The property to the south has no front setback and rises to a height greater than 8 metres, the


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mandatory height limit.

As such, it would be a gross underdevelopment of the site to limit it to 8 metres.

If the key measure to height is views to Quamby or the tower of the Continental Hotel, DDO28 should provide a clear sightline diagram confirming the maximum allowable heights through the site.

Mr Soding made submissions on the effect of the proposed controls on his client’s property at 101 Ocean Beach Road. He noted that there were no properties in the south‐west precinct that were of contributory heritage significance, however despite this, the proposed height and setback controls were the same as proposed for other precincts. Mr Soding tabled a plan of subdivision for his client’s property that showed its abuttal to Darling Road and a ‘road’ to the rear. He queried the effect of the proposed controls on the setback required from the ‘road’.

(iii) Discussion

The submissions of parties in relation to the development potential of land within the precinct highlights to the Panel the inherent difficulties and constraints in imposing mandatory controls. Mandatory controls do not promote or encourage a detailed site analysis to inform the design constraints and opportunities of a particular site. They do not take into account lot sizes, irregular siting of buildings or street alignment, topography, heritage significance or the like.

The Panel is of the view that there can be unintended outcomes that impact on properties or constraints that unnecessarily limit the development potential of a property. This is highlighted in the submissions made by the parties. In relation to each of the properties, the Panel notes the following:

80‐89 Ocean Beach Road – this is a large landholding, of some 2,500 square metres, that has frontage to both Ocean Beach Road and Morce Avenue. The current application for planning permit details a two storey building, with a street wall height of 4.9 metres to Ocean Beach Road and a height of 12.6 metres to the Morce Avenue frontage. Not only would the overall height of the building be prohibited, but on the basis of the change to the heading at column 2 in the table to the Schedule where it now references “a maximum building height at road frontage”, it means that the proposed setback would be prohibited. The provision of two storeys in a height exceeding 11 metres also highlights that it is unnecessary to impose a limitation on overall height and number of storeys. This is also highlighted in the fact that the developments referenced by Mr Rantino were below the proposed height limits but contained 4 levels. It is the Panel’s view that the principal consideration as to the appropriateness or otherwise of proposed built form in a streetscape is the overall form and scale, not of how many levels are contained in it. Noting of course, that the number of floors will follow from requirements relating to floor to ceiling heights and internal amenity.

172 Ocean Beach Road – this is a shallow block with a depth of approximately 25 metres, it abuts an accessway to the rear and is at the end of the commercial precinct. Compliance with the setback requirement would likely render the


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opportunity for a third floor not possible, but there may be other design options or considerations. The Panel accepts that reference to the road frontage in the table to the Schedule would take into account the varied street alignment of this property.

85‐99 Ocean Beach Road – The Panel notes that Mr Rantino confirmed that the requirement, as drafted, requires setbacks from the level below, not the street frontage. Therefore, given that the existing building is set back from the street alignment, any third floor would have a setback well in excess of eight metres from the street. This is a wide block with a frontage in the order of 36 metres, but as the Panel understands it, would not be able to accommodate a third level based on the proposed controls.

45‐47 Kerferd Avenue – the change to the heading of column 2 of the table to the Schedule means that the controls apply to this property.

3293‐3295 Point Nepean Road – this is an isolated site in the context of the commercial precinct. The proposed control is eight metres. It appears to the Panel that the key consideration relevant to this property is the impact on any views to either Quamby or the Continental Hotel. In the absence of a detailed analysis, including site lines, this appears as an arbitrary limit.

101 Ocean Beach Road – The Panel notes Mr Rantino’s submission that Council did not regard abuttals to unnamed lanes as a frontage and that this could be addressed as a note in the Schedule. This again highlights to the Panel the unintended outcomes that may arise by virtue of mandatory controls.

The Panel is mindful that this assessment is only of a handful of properties within the commercial precinct, however, considers that it highlights why mandatory controls are not the answer. The Panel concludes that the benefits of the proposed mandatory provisions do not outweigh the flexibility inherent in a performance based system.

4.9 Conclusions

The Panel draws the following conclusions in relation to the proposed mandatory controls:

The Panel is of the view that the policy framework does not support the use of mandatory controls. It is of the view that objectives and strategies relating to retaining the character of the streetscape and ensuring that development is appropriately designed and sited can be readily achieved through the use of discretionary controls.

The Panel is not convinced that the proposed mandatory controls are appropriate to the majority of development proposals.

The Panel accepts that the mandatory provisions may provide for the outcomes preferred by Council, and agrees that it may resolve divergent opinions on issues of height and setback.

The Panel is not convinced that there is evidence of significant development pressure for outcomes outside planning policy or evidence that approved developments are clearly exceeding the proposed control.

Given the presence of the Heritage Overlay and contributory buildings; the need to comply with the requirements of the overlay and policy; coupled with the fact that


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some sites are unlikely to be redeveloped, it is the Panel’s observation that there would not be a majority of proposals that would not accord with the requirements.

The Panel accepts Council’s advice that the application of mandatory controls could result in a reduction in administrative costs.

Mandatory controls do not promote or encourage a detailed site analysis to inform the design constraints and opportunities of a particular site, and the Panel concludes that the benefits of the proposed mandatory provisions do not outweigh the flexibility inherent in a performance based system.

4.10 Finding

The Panel finds that DDO28 should be amended to include discretionary rather than mandatory controls. This is discussed further in Section 6.5.


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5 Assessment against PPN60 – Activity Centres

5.1 The issue

Does the Amendment meet the requirements set out in PPN60?

5.2 Introduction

Planning Practice Note 60 (PPN60) provides guidance on the preferred approach to the application of height and setback controls for activity centres. The Practice Note is relevant to this Amendment because of the proposed mandatory height and setback controls.

The parties made competing submissions in relation to the Amendment when assessed against PPN60. These submissions are detailed below.

5.3 Submissions

Mr Rantino submitted that PPN60 professes to apply to all activity centres and that no distinction is drawn between different scales or characteristics of an activity centre. He noted that it would apply equally to Camberwell Junction (as a metropolitan principal activity centre) as it does to Sorrento (a small township centre). He submitted that on this basis, it is important that PPN60 is not applied indiscriminately as though one principle or guideline applies equally to all centres.

Mr Rantino noted that whilst Council does not claim to have undertaken a full suite of strategic work, such as a Housing Strategy or Economic Strategy, it has “undertaken a very comprehensive assessment of the heritage and streetscape attributes of the Sorrento town centre and made a decision with respect to that assessment commensurate with the role function and setting of the centre”.

On this basis, he submitted that the type of ‘exceptional circumstances’ that might need to be applied to a principal or major activity centre (to justify mandatory height and setback controls) might not need to be ‘exceptional’ in a smaller neighbourhood centre. In relation to the list of ‘exceptional circumstances’ listed in the Practice Note, Mr Rantino submitted that:

Council is firmly convinced that the Sorrento town centre is one of those “significant heritage places where other controls are demonstrated to be inadequate to protect unique heritage places”. It is satisfied that the centre can, within the parameters of the proposed DDO28, deliver on its role within the activity centre hierarchy in a manner which secures the centre’s long term viability.

Ms Bisucci also made submissions in relation to PPN60. It was her submission that the absence of a comprehensive built form analysis was a major flaw in the preparation of the Amendment. She submitted that in the absence of this work, “it is difficult to determine the visual and amenity impacts the proposed controls will have on the commercial precinct and what type of influence this would have taking into consideration land use outcomes and economic growth – both of which are important elements of activity centres”.


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Ms Bisucci submitted that the proposed built form objectives or outcomes proposed under DDO28 lack the appropriate strategic justification. She submitted that the HLCD report could not be relied on to provide such strategic justification. She was of the view that the HLCD report focuses on the cultural/heritage significance of the precinct and provides guidelines for more conservative design and development. She submitted that there had been no justification for the proposed mandatory controls and that the Panel should recommend that the height and setback controls be discretionary.

The Nepean Conservation Group submitted that restrictions in the form of mandatory controls were required for the following reasons:

Recent inappropriate developments as a result of lack of mandatory standards and controls

Council decisions often challenged

Need to go to VCAT, which is an expensive process for Council and developers alike

Tendency for VCAT to ignore Council policies.

Mr Frielink also submitted there are many international examples where mandatory controls existed, including in Holland and Paris, and that they are accepted and understood.

The Nepean Historical Society submitted that controls were required because recent developments that had been approved or undertaken in the town centre have paid inadequate attention to the neighbourhood character and heritage. It submitted that the Society agrees with the Council’s assessment that an Amendment is required:

to manage the increasing development pressure on Ocean Beach Road, and to ensure that the historical significance and coastal village character of the town is not lost through inappropriate development.

Ms Bell acknowledged that Sorrento satisfied two ‘exceptional circumstances’ listed in PPN60, being:

Sensitive coastal environments where exceeding an identified height limit will unreasonably detract from the significance of the coastal environment

Significant heritage places where other controls are demonstrated to be inadequate to protect unique heritage values.

However, in her submission, there was no strategic justification for mandatory controls. She too was critical of the Council’s reliance on the HLCD report to justify the Amendment and submitted that the Amendment documentation “does not refer to any capacity or constraints analysis or identification of key sites within each centre that can accommodate more intense development when compared to the remainder of the centre. Ms Bell submitted that the Amendment should be abandoned to allow further strategic work to be undertaken to “build an urban design rationale for the proposed built form heights and setbacks”.

Mr Soding was also critical of the proposed controls. In relation to his client’s property, he submitted that despite the HLCD report noting that there are no properties of contributory heritage significance in the south west precinct, the proposed height and setback controls


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were the same as those being applied in other precincts (other than the Central sub precinct). He also submitted that:

height limits are a blunt tool that can lead to poor design outcomes that in themselves can do more harm to the area as the architect seeks/needs to fit all of the building within the mandated limit (such as building lift overruns, balconies stairs and services to the building).

Mr Soding submitted that there was no strategic justification to support mandatory controls and that the Amendment should be abandoned.

5.4 Discussion

PPN60 identifies that state planning policy directs the future expansion of services, including commercial, retailing, employment, community, transport, entertainment and other services as well as being ideally placed to provide for growth in housing. It notes that strategy seeks to build up activity centres to:

accommodate ongoing investment and change in retail, office, service and residential markets

have a mix of activities that generate high numbers of trips including business, retail, services and entertainment

have the potential to grow sustainably and support intensive housing developments without conflicting with surrounding land uses

provide for services and infrastructure to support population growth

identify areas for urban renewal.

The Practice Note identifies the role that height and setback controls play in managing change in and around activity centres and sets out how these are to be used, including through structure plans. It notes that height and setback controls can be appropriate as long as they are not aimed at restricting built form, but at facilitating good design outcomes.

The Practice Note states that a Council will need to demonstrate that proposed height controls are based on identifiable objectives or outcomes. Proposed height controls must be selected through a comprehensive built form analysis that achieves the following:

Identifies significant opportunities for change within an activity centre.

Explores alternative built form objectives and outcomes to accommodate this change. This should include an analysis of visual and amenity impacts.

Selects appropriate heights and built form outcomes at a precinct level through evaluation of built form objectives, land use outcomes and economic growth consistent with State policy.

The Panel acknowledges that there has not been a built form analysis in a form typically seen, that is undertaken by urban designers, apart from the work undertaken by Hansen Partnership. The Panel accepts that the HLCD report identifies opportunities for change within the centre; and selects what it considers to be appropriate heights and built form outcomes through evaluation of built form objectives. It does not identify land use outcomes or economic growth objectives or address issues of amenity.

The premise for the built form controls is to provide guidance for the future conservation and development of the centre and to protect its cultural and heritage significance.


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Whilst change in and around activity centres is anticipated and encouraged by planning policy, it is also policy to manage change. It is clear to the Panel that the existing scale of development within the centre, and indeed the likely future character, is one of typically low scale, particularly at the street wall, with modest opportunities for additional height that is set back from the street. Despite recent development and the presence of larger retail chains as tenants, the centre retains its coastal feel. It has a sense of space because of the road and pavement widths and quality urban design features, including street planting.

The Panel accepts that the proposed height controls are consistent with state policy in the sense that they anticipate a higher scale of development than currently exists.

However, the Panel is of the view that there are no ‘exceptional circumstances’ for the precinct, and therefore no cause to warrant mandatory controls. Whilst there are significant heritage places, these have been identified and included in site specific heritage overlays. There are contributory buildings within the land subject to the Amendment; however, the number is modest within the overall centre. Given the presence of the existing Heritage Overlay and Clause 22.17, the Panel is of the view that there are other controls that are adequate to protect the heritage values. Policy in Clause 22.17 includes:

Encourage development to be compatible with the scientific, aesthetic, architectural, historic and cultural significance of the Precinct

Require infill buildings to complement the existing streetscape

Ensure that new development does not have an adverse impact on existing vistas, views and landmarks

Ensure that new development responds positively to the location, height, mass and materials and external appearance of existing development in the Precinct

Require that new development respects the height, scale and siting of existing development in the various parts of the Precinct

Discourage the erection of buildings that exceed eight metres in height.

Further, the Panel notes that the Practice Note states that “where mandatory controls are proposed it will need to be demonstrated that discretionary controls could result in an unacceptable built form outcome”. The Panel is of the view that the Council did not demonstrate such an outcome. Indeed, as detailed in Chapter 4, whilst Council sought to rely on approvals for development within the centre to support its position that there was development pressure that would erode the features and character of the centre, the Panel did not agree with that position. Having the benefit of inspecting the centre, including recently constructed developments, the Panel notes that even in the absence of mandatory controls, based on specific site analysis for each proposal, the eventual built form in terms of height is generally consistent with that sought through the Amendment. The differences are the number of stories achieved within the overall height and the setbacks of the upper levels. As noted previously, the Panel is of the view that the developments are generally respectful of the lower scale streetscape character and that the upper levels read as recessive elements.

PPN60 also requires that where blanket mandatory height and setback controls are proposed, that rigorous strategic justification has to be provided. Whilst the Panel has noted


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that it accepts the HLCD report includes a built form analysis of the centre, there has not been any further strategic work undertaken in the form that is called for by the Practice Note, including a housing strategy, an economic strategy, a capacity and constraints analysis, or an identification and analysis of key sites within the centre which can accommodate more intense development.

Moreover, the Panel is of the view that the proposed use of mandatory controls will restrict built form rather than facilitate or promote good design outcomes. For these reasons, the Panel accepts the Council’s preference to provide statutory controls to facilitate built form outcomes; however is of the view that these are more appropriately in the form of discretionary controls.

5.5 Conclusions

The Panel draws the following conclusions in relation to PPN60:

The Panel is of the view that there are no ‘exceptional circumstances’ for the precinct, and therefore no cause to warrant mandatory controls.

Given the presence of the existing Heritage Overlay and Clause 22.17, the Panel is of the view that there are other controls that are adequate to protect the heritage values.

The Panel is not convinced that discretionary controls would result in an unacceptable built form outcome.


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6 The proposed DDO Schedule 28

6.1 The issue

In addition to the vexed issue of mandatory controls, various submissions dealt with specific requirements of the proposed DDO28. The Panel has considered these matters in conjunction with the overall provisions in forming its view as to whether the form and content of the proposed DDO28 is appropriate.

6.2 Precinct and sub‐precinct borders

(i) Submissions

Mr Rantino advised the Panel that Council accepted the submission from the property owner of 80‐98 Ocean Beach Road that the property should be wholly contained in a single sub‐precinct, and more specifically, within the central sub‐precinct.

He also advised that Council did not support the creation of a ‘south‐east precinct’ to accommodate 60 Kerferd Avenue. This was on the basis that the DDO28 was developed having regard to existing development and the significance of the area. He submitted that Council opposed the removal of properties from DDO28 that do not have frontage to Ocean Beach Road because they:

are commercially zoned properties

are the gateways to the centre from surrounding residential areas

can influence the outcomes sought for the centre with inappropriate development.

(ii) Discussion

The Panel accepts Council’s position in relation to the inclusion of other commercially zoned properties within the DDO28. It is a logical extension of the DDO28. Accordingly, the Panel accepts Council’s submission regarding the inclusion of 60 Kerferd Avenue within the DDO28 as exhibited.

The Panel also agrees that it is appropriate to include all of the property at 80‐98 Ocean Beach Road in the one sub‐precinct and notes that this has been amended in the revised version of the Schedule submitted to the Panel as shown in Appendix C.

6.3 Interpreting building height

(i) Submissions

Mr Rantino advised the Panel that Council’s position in relation to balustrades is that they are to be included in the calculation of building height for the purposes of DDO28.

Ms Bisucci referred to the decision by Deputy President Dwyer in Aitken Properties Pty Ltd v Hobsons Bay CC [2016] VCAT 1484 in relation to her submissions regarding building height. Mr Rantino submitted that Council accepted that lift overruns are a form of building services and are therefore excluded from the measurement of height.


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In closing Mr Rantino advised the Panel that in relation to balustrades he adopted the findings of Deputy President Dwyer that it was “a question of fact”. That is, that the ‘building height’ is defined and is a question of fact not a question of law.

(ii) Discussion

The Panel notes that the exemption relating to lift overruns has been included in the revised version of the Schedule submitted following the Hearing (See Appendix C).

On the basis of the Panel’s findings in relation to the appropriateness of mandatory controls, it is of the view that where appropriate, features such as balustrades to roof terraces or the like can be readily dealt with through an assessment against the design objectives and decision guidelines of DDO28.

6.4 Other form and content issues

(i) Submissions

As noted above, Mr Rantino advised the Panel that the heading to column 2 of the table in DDO28 had been amended to apply to “road frontage” rather than as in the exhibited version “Ocean Beach Road frontage”. He advised that this was a correction and that it was necessary to apply the built form controls to those properties not fronting Ocean Beach Road “because of their visual and physical proximity to the Ocean Beach Road properties and the potential for their development to degrade the valued low scale coastal village character in Ocean Beach Road”. It was also to ensure that they were included in a DDO, because if they were excluded it would result in an anomaly within the planning framework whereby DDO2 and DDO3 apply to surrounding land.

The Nepean Conservation Group and the Nepean Historical Society took issue with the line of sight diagram included in proposed DDO28. They submitted that it there were anomalies, firstly with the representation of the width of the road and secondly because views of the buildings opposite the street are always viewed at an angle. The Nepean Conservation Group submitted that a mandatory setback of 16 metres should be adopted to ensure that third storeys could not be seen from the other side of the street.

They also submitted that DDO28 should address land use and that there should be a mandatory requirement within DDO28 that a planning application should include a perspective, photomontage or video showing the visual impacts of the proposed development.

In reply, Mr Rantino advised the Panel that there was no need to increase the setback requirement to 16 metres. He also noted that the control deals with built form and cannot include restrictions on residential development. He also advised that if the Panel was of the view that it was appropriate to require a perspective or similar that this could be included as a decision requirement.

Mr Soding agreed that good contemporary design is required for the precinct, however it was his view that this requirement was not dealt with in the DDO28 requirements, except by reference to the HLCD report.


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(ii) Discussion

The Panel accepts the changes proposed to the Table to DDO28 to clarify setbacks for corner sites and deletion of the reference to ‘Ocean Beach Road’ from the heading at Column 2 of the table to the Schedule, as shown in Appendix C. The Panel also accepts the minor changes to the wording of the ‘Design objectives’ as shown in Appendix C.

The Panel notes various submitters’ concerns with the HLCD report that forms the basis of the proposed DDO28. The Panel notes that there is a requirement under ‘design objectives’ and ‘decision guidelines’ that requires that development respond to the design requirements of the relevant sub‐precinct within the HLCD document. The Panel is of the view that it is not appropriate for a control to rely on a separate document and that salient requirements should be included in the DDO for greater clarity. The DDO should be a stand‐alone control, thereby providing transparency to all, including developers and the community. In relation to the HLCD report, the Panel accepts the submissions of Ms Bisucci and Mr Soding that it does not provide guidance, nor set a clear objective to promote pursuit of design excellence, or provide a vision for the centre. The Panel considers that these should be clearly articulated in the design objectives of DDO28.

The Panel agrees with Mr Rantino’s submission in relation to the purpose of the DDO. State planning policy, Plan Melbourne 2017 and the local policy framework all promote the expansion of activity centres and the facilitation of a mix of land uses.

The Panel also agrees with the suggestion put forward by the Nepean Conservation Group and the Nepean Historical Society that requires the preparation of perspective, photomontage, or video showing the visual impacts of the proposed development. The Panel notes Mr Rantino’s agreement to inclusion of such a requirement in the DDO28. This could be included under the ‘application requirements’ section.

The Panel does not accept the submissions to increase the setback for upper levels to 16 metres. The reference to eight metres in the sightline diagram is a reasonable setback to achieve the design objective that ‘applications exceeding 8 metres in height above natural ground level is generally not visible from standing eye level directly opposite the site’. Having said that, the exhibited DDO28 was drafted so that sightline showed general compliance with the sightline diagram. The Panel is of the view that the sightline diagram can remain and is a tool to guide the setbacks of upper levels, albeit the setbacks are to be discretionary.

6.5 Is DDO28 appropriate with discretionary controls?

(i) The issue

On the basis that the Panel is of the view that mandatory controls are not justified in this instance, it has turned its mind as to whether DDO28 as drafted remains appropriate in the context of discretionary controls.

(ii) Discussion

As detailed in Chapter 4, and having regard to submissions relating to the effect of the proposed controls on specific properties, the Panel notes the inherent difficulties and


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constraints in imposing mandatory controls. Put simply, they do not allow for site specific constraints or opportunities to be taken into account. The Panel also made observations regarding the inclusion of reference to storeys in a height control and formed the view that it is not appropriate to include a limitation on the number of storeys.

As detailed in previous Chapters, the Panel acknowledges Council’s preference to preserve and continue to enhance the heritage and coastal features of the Sorrento commercial precinct, including reinforcing a predominant street wall height and allowing for recessive upper levels. The Panel is of the view that this objective can be achieved through the inclusion of discretionary controls.

The Panel has reviewed DDO28 in some detail and is of the view that it can be redrafted to reference discretionary controls relating to height and setbacks. So that the DDO does not become a transformation of the exhibited version, the Panel is of the view that DDO28 should be amended to require that where an application exceeds the discretionary maximum building height it must be accompanied by a site analysis plan and written urban context report documenting how the development will achieve the design objectives and outcomes of DDO28. This requirement differs from the exhibited version of DDO28 which sought to require a site context analysis and design response demonstrating compliance with the objectives for all applications. In the Panel’s view, the distinction can be drawn between proposals complying with the preferred heights and setbacks (where it would be appropriate for the preparation and submission of a site analysis and design response with a report responding to the design objectives) with a proposal exceeding the preferred controls being submitted with a comprehensive urban context analysis/report demonstrating compliance with the objectives of the controls.

The intent of the controls is also to preserve views of existing significant heritage fabric, however, this has not been included within the control. It is a requirement of other policy, and the Panel considers that it would be of assistance to include it as a design objective and application requirement. This observation is made particularly in relation to the eastern sub‐precinct where the height and setback control seeks to protect views. The Panel accepts Ms Bell’s submissions in relation to the proposed requirements relative to the property included in this precinct and is of the view that the setback requirement be deleted from the control. The proposed eight metre height control can remain as a discretionary limit, with any proposals to exceed the height demonstrating compliance with the requirement relating to views.

In relation to the reference to the HLCD report, as observed above the Panel is of the view that the DDO should be drafted so that it is a stand‐alone control. Whilst the Panel considers that the HLCD report provides for an analysis of the historical and existing conditions and provides the framework for the proposed controls, it is of the view that the overlay should not rely on a reference to the report. Whilst it has been adopted by Council, it is a reference document only and is not part of the planning scheme.

If Council does not accept the Panel’s recommendation with respect to discretionary controls and wishes to pursue mandatory controls, the Panel is of the view that this Amendment should be abandoned, and Council should undertake a rigorous urban design analysis of the precinct before preparing a new amendment.


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6.6 Conclusions

The Panel draws the following conclusions in relation to the proposed DDO28:

All of the property known as 80‐98 Ocean Beach Road should be contained within the ‘central’ sub‐precinct (Note that this has been done in the Council modified version at Appendix C).

No change is required to the boundary of the Ocean Beach Road commercial precinct.

No change is required to the sightline diagram.

DDO28 is appropriate, subject to the removal of mandatory controls and other changes as listed below to the post‐Hearing version tabled by Council and included as Appendix C to this report:

- Amend ‘Design objectives’ to: - Include a clearly defined vision for the commercial centre - require that a development is compatible with and makes a positive

contribution to the low scale and character of the precinct - emphasise the need for development to achieve excellence in

architecture and design - include a requirement that views of significant heritage buildings (and

identify which buildings) are protected - delete reference to the HLCD report.

- Amend ‘Buildings and works’ to: - remove mandatory requirements - include discretionary requirements - include a requirement to the effect of ‘that an application to exceed

the maximum building height must be accompanied by a site analysis plan and a written urban context report documenting how the development will achieve the design objectives and outcomes of this schedule’.

- Amend ‘Table’ to: - remove references to storeys - remove the mandatory height requirements - remove the mandatory setback requirements - remove setback requirement for east sub‐precinct - include a note to the effect that ‘the setback does not relate to

unnamed lanes’. - Amend ‘Notes’ to:

- delete notes relating to mandatory controls and storeys - delete the words ‘not from the title boundary’ as it relates to setbacks

from the third storey. - Include a separate heading of ‘Application requirements’ and include the

following: - A site context analysis and design response - Detailed plans, including palette of materials and finishes - A planning report demonstrating that the development will achieve

design objectives of the schedule


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- A perspective or photomontage detailing how the proposed development will sit within the streetscape

- As appropriate, sightlines to demonstrate that a proposed development does not obstruct views of significant heritage places.

- Amend ‘Decision guidelines’ to: - Delete reference to the HLCD report.

The Panel has not attempted to re‐draft DDO28 because it believes that Council should carefully review the drafting in conjunction with DELWP before finalising the Amendment. That is not the role of the Panel.

6.7 Recommendations

The Panel recommends that Mornington Peninsula Planning Scheme Amendment C204 be adopted as exhibited, subject to the following changes to Design and Development Overlay Schedule 28:

Adopt the changes to the Schedule proposed by Council post‐Hearing as shown in 1.Appendix C to this report, subject to the further changes set out below.

a Amend ‘Design objectives’ to include:

a clearly defined vision for the commercial centre

require that a development is compatible with and makes a positive contribution to the low scale and character of the precinct

emphasise the need for development to achieve excellence in architecture and design

includes a requirement that views of significant heritage buildings (and identify which buildings) are protected


b Amend ‘Buildings and works’ to:

remove mandatory requirements

include discretionary requirements

include a requirement to the effect of ‘that an application to exceed the maximum building height must be accompanied by a site analysis plan and a written urban context report documenting how the development will achieve the design objectives and outcomes of this schedule’.

c Amend ‘Table’ to:

remove references to storeys

remove the mandatory height requirements

remove the mandatory setback requirements

remove setback requirement for east sub‐precinct

include a note to the effect that ‘the setback does not relate to unnamed lanes’.

d Amend ‘Notes’ to:

delete notes relating to mandatory controls and storeys


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delete the words ‘not from the title boundary’ as it relates to setbacks from the third storey.

e Include a separate heading of ‘Application requirements’ and include the following:

A site context analysis and design response.

Detailed plans, including palette of materials and finishes.

A planning report demonstrating that the development will achieve design objectives of the schedule.

A perspective or photomontage detailing how the proposed development will sit within the streetscape.

As appropriate, sightlines to demonstrate that a proposed development does not obstruct views of significant heritage places.

f Amend ‘Decision guidelines’ to:



Appendices

Appendix A Submitters to the Amendment

No. Submitter

1 Coastal Corner Pty Ltd

2 Mr David Moffatt

3 Ms Gillian Loft

4 Ms Christine Grainger

5 Heritage Victoria

6 Sorrento OB (DeGroup) Pty Ltd

7 Tyas Super Pty Ltd




11 Tixxis Pty Ltd

12 Country Fire Authority

13 Nepean Historical Society

14 Nepean Conservation Group Inc


Appendices

Appendix B Document list

No. Date Description Tabled by

1 11/04/2017 Council Part A submission Mr Rantino

2 11/04/2017 Revised DDO Schedule 28 Mr Rantino

3 11/04/2017 Background Folder Mr Rantino

4 11/04/2017 Folder containing planning permits and endorsed plans for approved developments in Ocean Beach Road

Mr Rantino

5 11/04/2017 Council Part B submission Mr Rantino

6 11/04/2017 Mornington Peninsula Planning Scheme Amendment C101 panel report

Mr Rantino

7 11/04/2017 Mornington Peninsula Planning Scheme Amendment C84 panel report

Mr Rantino

8 11/04/2017 Queenscliffe Planning Scheme Amendment C7 panel report Mr Rantino

9 11/04/2017 Sorrento OB (DeGroup) Pty Ltd submission Ms Bisucci

10 11/04/2017 Nepean Conservation Group submission Mr Frielink & Mr Naughton

11 11/04/2017 Nepean Historical Society submission

12 11/04/2017 Nepean Historical Society attachments Mr Hindley

13 11/04/2017 TYAS Super Pty Ltd and Coastal Corner Pty Ltd submission Ms Bell

14 11/04/2017 Aerial photograph showing client’s landholdings Ms Bell

15 11/04/2017 D and P A Elliot submission Mr Soding

16 11/04/2017 Plan of Subdivision for 101 Beach Road Mr Soding


Appendices

Appendix C Council proposed changes to DDO28 Pre‐Hearing changes are shown in brown.

Post‐Hearing changes are shown in aqua.

Map 1 shows the proposed precinct boundary changes to include 80‐98 Ocean Beach Road within the Central sub‐precinct.


Appendices


Appendices

Appendix D Summary of approved developments in Ocean Beach Road

Address and VCAT Reference No.

Summary of appeal Panel Comments

1‐21A Ocean Beach Road and 23 Constitution Hill Road

VCAT Ref No. P2003/2016

This was a review against two conditions imposed on a Notice of Decision to grant a Planning Permit. The first condition related to the requirement to reduce the overall height of the proposed apartment building to RL37.05 and the second was against a requirement for a financial contribution. Ultimately the Tribunal formed the view that it was not necessary to reduce the overall height, but in having regard to DDO28 the Tribunal noted that the reduced height of the apartment building supported by the council and respondent is appropriately 2 metres higher than what the sightline diagram encourages.

The Panel notes that the Council was supportive of a development that did not accord with the requirements in DDO28. In particular, were the controls mandatory, the proposal could not have been approved in either the form that the Tribunal approved it, or indeed had the height been reduced to that height sought by the Council. The Panel also notes in the VCAT decision, that the Tribunal undertook a comprehensive review of the various planning policies applicable to the proposed development.

142 Ocean Beach Road


This review was against two conditions imposed in a Notice of Decision to grant a Planning Permit. The Council’s planning officer recommended approval of the application and when approved by the Council, two additional conditions were imposed. These conditions were the subject of the appeal and required the deletion of an apartment and increased setbacks at levels 2 and 3. The setback to apartment 7 was 12.3 metres.

The application was for a mixed‐use building comprising dwellings, shops and a medical centre. It comprised partial demolition of the rear of the existing building.

The building would have an overall height of 11.83 metres, with a height of 7.57 metres at Ocean Beach Road. The Tribunal directed the deletion of the two conditions in dispute.

The Panel observes that the site subject to this application is included in Design and Development Overlay, Schedule 10 and is not part of the centre subject to this Amendment.

77 Ocean Beach Road

This review was against the Council’s decision to refuse approval for a

The Panel observes that this site is included in the south‐west sub


Appendices


three storey mixed use building.

Agreement was reached during a Compulsory Conference and the Tribunal subsequently directed the grant of a planning permit.

precinct as part of this Amendment. As approved, it has a street wall height of 7.5 metres and an overall height of 9.8 metres. The third floor is set back in the order of eight metres from the front of the building at the level below.

Whilst complying with the proposed mandatory heights and setback at third floor level proposed as part of this Amendment, it would not satisfy the limitation on number of storeys. However, the Panel notes that the overall height is not exceeded and the setback from the street frontage to the top level is 16 metres.


The plans endorsed pursuant to planning permit (P12/0871) were issued on 2 April 2013. The permit allowed the construction of a four storey mixed use building.

The approved building had a street wall height of 7.8 metres and an overall height of 11.3 metres.

The third floor is set back approximately 6.5 metres from the frontage and the fourth floor is set back 16 metres from the frontage.

The subject site is included in the central sub precinct in the Amendment.

As approved, the building complies with the overall heights, but exceeds the number of storeys and setback to the third floor proposed as part of this Amendment.

This building has been constructed. In the Panel’s view, the third and fourth levels are recessive to the streetscape.



This review was lodged against the Council’s decision to issue a notice of refusal to grant a planning permit for a four storey mixed use development.

The overall height of the development was 8.95 metres at its east elevation and 10.5 metres at the west elevation. The Tribunal considered the application against the policy context for a preferred eight metre height limit. The Tribunal observed that a building that is between 1.9 metres and 2.5 metres above the policy preference at a distance of 18 metres from the Ocean Beach Road frontage was reasonable given the broad compliance with State and local activity centre policy. In accepting that most buildings in the centre were of a two storey height, the


As approved, the façade marginally exceeds the height for the street wall but not of the overall height of 11 metres. It exceeds the number of storeys and the setback to the third floor.

Having reviewed the endorsed plans, the Panel observes that the top floor is a very recessive element.


Appendices

Tribunal also observed that the maximum building height was not out of character for the centre.

56‐58 Kerferd Avenue


This review was lodged against the Council’s decision to issue a notice of refusal to grant a planning permit for a three mixed‐use development.

In relation to the preferred height limit of eight metres found in the local policy, the Tribunal observed:

The rigorous application of an 8 metre height limit is also at odds with the existing variability in building height and form. The policy contact of an 8 metre height limit is more relevant to the scale and relationship between individual buildings or groups of buildings rather than a uniform height limit, particularly in view of Sorrento’s undulating terrain.


As approved, the building has an overall height of 9.9 metres, containing three storeys. The setback of the third storey encroaches into the mandatory setback proposed as part of this Amendment.

This development has been constructed. Being in Kerferd Avenue it is viewed in a different context to that of Ocean Beach Road. The Panel is of the view that this is an appropriately sited and designed building.

1 Hayes Avenue


This review was lodged against the Council’s decision to issue a notice of refusal to grant a planning permit for a three storey residential development.

Amended plans were circulated and during the course of the hearing consent were reached between the parties. Accordingly, the Tribunal directed that a permit be granted.


As approved, the building has an overall height less than 8 metres. The setback from the side street is less than 3 metres and would not comply with the mandatory requirement proposed as part of this Amendment.

This development has been constructed. Due to its location to the rear of the Country Fire Authority building, the Panel notes that it has limited visibility from Kerferd Avenue and is not visible within Ocean Beach Road.

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