Room for a view: A planning tribunal decision has preserved the view of the Western Sister (centre top) at Sullivan Bay in Sorrento, site of the first European settlement in 1803. Picture: Yanni

AN historic view at Sullivan Bay in Sorrento has been preserved after a VCAT decision that ensures a “view cone” from a public lookout will not be impeded by buildings or vegetation on an adjoining property.

The site of Victoria’s first settlement in 1803 is bounded by headlands known as the Eastern Sister and the Western Sister. The lookout on the Eastern Sister provides a view across the bay to the Western Sister through the so-called view cone, which “protects” the view.

Mornington Peninsula Shire imposed stringent conditions to protect the view when it approved a multi-million five-lot subdivision of beachfront land on the Eastern Sister in 2010.

Wealthy developer Martin Strode, who owns Lot 5, asked the Victorian Civil and Administrative Tribunal to review various conditions placed on his proposed development of the block, including a ruling on the shape of the view cone. This was the “key” dispute, the tribunal said.

VCAT stated that the dispute arose over the “picture” of the view provided via the cone, which accompanied approved plans for Lot 5. “While this picture may arguably be ‘worth a thousand words’, the fact that there are no words attached to it means the picture is being interpreted differently by the parties,” the tribunal stated.

The shire’s 2010 development approval insisted on maintaining the view. The permit included a photo across the bay to the Western Sister showing the view “surrounded by a dashed blue oval-shaped circle”, plus an aerial photo of the lookout location and “blue lines of the ‘approx view cone, interpreting from the photo’.”

The question was “whether the view cone is effectively a horizontal line or a circular area”, the tribunal stated – that is, was the cone intended to be one- or three-dimensional.

Its decision indicates that a typical VCAT lawyers’ contest then ensued over definitions, a contest familiar to those who have been involved in planning tribunal cases. VCAT noted that “specific dimensions relating to the view cone were not debated or contested” in the 2010 hearing. This could be taken to mean that all parties in 2010 implicitly agreed that the cone was three-dimensional.

But debated and contested the matter was in this year’s case, heard in June.

Mr Strode argued for the horizontal line. The shire submitted that “the entirety of the circle” comprised the cone.

Adjudicating, VCAT Senior Member Michael Wright QC and Member Rachel Naylor found that a horizontal line would have made sense in 2010 rather than to “include and require dimensions [of the cone] in a photograph”.

But, it said, maintenance of the view across Sullivan Bay was the goal and had been achieved by way of endorsing a plan and a photo “with a couple of angles specified”.

“The circle in the photograph includes some of the jetties, the water, the beach, the entirety of the headland of the Western Sister and the sky above,” VCAT ruled. “In other words, the circle identifies the Western Sister headland within its context of water, beach and sky.

“In our opinion, this context gives meaning to the view.  We are not persuaded the intent of the inclusion of the view cone in the endorsed plans was to restrict the view to a horizontal view …”

The tribunal specified the cone dimensions with great precision – lines bearing 331 degrees and 298 degrees from 1.6 metres above the public viewing platform and a circle “with and perpendicular to” these lines at a point where they are eight metres apart.

It admits this is complex, adding that the obligations regarding the view cone “need to be clear and enforceable”. It falls back on the 2010 photo and calculations and analysis provided by land surveyor Alan Runting, an expert witness for the shire.

“These documents in combination provide clear direction about what the view cone means, which the photograph or words alone cannot do,” it concluded.

The Strode property came to public attention in January this year when VCAT ordered that its luxury camping set-up be dismantled.

The “glamp” or glamour camp, had been established the previous summer but the shire was unable to stop it being used. It comprised tents, decking and a caravan.

The tribunal stated Mr Strode did not have a permit from the shire to install tents, caravans, trailers or the timber decking. It ordered him to stop using the site for accommodation from 12 January and to remove “all trailers (including those intended for use as en suite or bathroom facilities) from the subject land”.             

David Harrison with Mike Hast

First published in the Southern Peninsula News – 25 August 2015