Clause 43.01-4: demolish a building and construct a building or construct or carry out works and construct a fence.

Clause 52.29: create or alter access to a road in a Road Zone, Category 1.

The subject land is a large regular lot located at the north west corner of the signalised intersection of Burke Road, Rathmines Road and Canterbury Road in Hawthorn East. Burke Road is the boundary between Hawthorn East and Camberwell. The broader area is predominantly a comfortable suburban residential precinct in which attractive early 20th century houses exist within quiet tree-lined streets. The character of Burke Road is more mixed.

1. This is an application to review the decision of the responsible authority to refuse permission for demolition of existing buildings and the associated fence and for the construction of a four storey building, above basement car parking, for 33 dwellings_[1]_ at 1045 Burke Road, Hawthorn East. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:
   1. The proposed building and fence demolition does not satisfy the objectives of Clause 21.05, Clause 22.05 and Clause 43.01 and will have an adverse impact on the cultural significance of the heritage place.
   2. The proposed scale, mass, siting, design detailing and façade materials do not satisfy the objectives of Clause 22.05, and Clause 43.01 and will have an adverse impact on the significance of the heritage place and wider heritage area.
   3. The scale, mass, siting and design detailing of the development is discordant and dominant and would have a negative impact on the character of Burke Road and Rathmines Road.
   4. The proposed building height, mass and siting will have a detrimental impact on the amenity of the adjacent dwellings to the north and west, with regard to visual bulk.
   5. The development provides insufficient landscaping opportunities around the perimeter of the site and does not respect the landscape character of the area.
   6. The proposed development is not site responsive as it will necessitate the removal of trees on the site and a Rathmines Road street tree that makes a positive contribution to the landscape character of the area.
   7. The development will have a detrimental impact on the operation of the road network and on public safety and vehicle ingress and egress is not restricted to left-in / left-out only.
2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.
3. Mr Natoli's clients include a core group of individuals who jointly submitted a statement of grounds in response to the application for review describing themselves as the Save 1045 Group. Prior to the commencement of the hearing, the names of the persons comprising the group had been clarified at the request of the tribunal.
4. The Save 1045 Group is not an incorporated entity and therefore cannot be a party to an application. It was accepted at the hearing that the parties represented by Mr Natoli were the core group responsible for the lodgement of a statement of grounds and that for convenience they would be known as Judy Faithfull and others.
5. At the hearing Mr Natoli tendered a larger list of individuals divided into three groups. The first group was the core group referred to above:, the second group were people Mr Natoli wished to be made parties to the application and who had been original objectors and the third group were people Mr Natoli wished to be made parties but who had not been original objectors.
6. Mr Gobbo was content to accept any corrections or modifications to the core group that originally lodged the statement of grounds but opposed the request to make a very large number of additional people parties to the application, that is the persons in groups 2 and 3 of Mr Natoli's list.
7. In practice Mr Natoli's presentation of his case and the overall conduct the hearing was not materially affected by whether or not he represented 10 or 30 parties to the application for review. In this context it would be an easy course to make them parties to the application. On the other hand, as being a party in a proceeding brings with it considerable rights and responsibilities, there should be good reasons for making a person a party when they have failed to follow the simple procedures which automatically give them the right to be a party.
8. We are not satisfied that sufficiently good reasons have been put forward in this case. We were content to hear submissions from these additional persons because they were represented by Mr Natoli and the conduct of the hearing was in no way prejudiced by allowing submission from persons other than parties.

1. The subject land is a large regular lot located at the north west corner of the signalised intersection of Burke Road, Rathmines Road and Canterbury Road in Hawthorn East. Burke Road is the boundary between Hawthorn East and Camberwell. Both roads are arterial roads under the control of VicRoads.

1. The land has a frontage to Burke Road of 35.66 metres, a side boundary on Rathmines Road of 48.77 metres and an area of 1739 square metres. The land falls approximately 3 metres from Burke Road to the laneway at the rear.
2. The broader area is predominantly a comfortable suburban residential precinct in which attractive early 20th century houses exist within quiet tree-lined streets. The character of Burke Road is more mixed particularly at the intersection of Burke Road, Rathmines Road and Canterbury Road.
   1. At the intersection there is the subject land with its large Queen Anne dwelling to the north-west[2], St Mark's Church and Hall to the north-east[3], a single-storey dwelling to the south-east[4] and a small neighbourhood activity centre to the south-west[5].
   2. West of the subject land, north of Rathmines Road the residential area is designated as the Ryeburne Avenue Heritage Precinct[6]. The heritage precinct is based on an early 20th-century subdivision of a larger estate. The subject land was part of this earlier subdivision. Development within the heritage precinct is predominantly Federation - Queen Anne dwellings similar to that on the subject land.
   3. Recently two large-scale, four-storey, apartment complexes have been approved within close proximity to the subject land. One which is substantially completed is located on a large site on the north-east corner of Canterbury Road and Gascoyne Street. The other, which is yet to commence occupies a large site at 818 - 832 Burke Road, located on the north-east corner of Burke Road and Kintore Street[7].
3. In a fundamental way the environs of the land are dominated by the intersection of Burke Road with Canterbury Road and Rathmines Road. Consequentially, the amenity of the immediate environs of the land is seriously degraded by comparison with the quiet tree-lined residential streets which are the broader area's defining feature. Indeed, the amenity of the immediate environs of the land is significantly less than that found in Canterbury Road and Rathmines Road to the east and west away from the intersection.

1. The proposal is to demolish existing buildings and the associated fence and then to construct a four storey building above a basement car park for 33 dwellings.
2. Permission is also required to alter access to a road in a Road Zone Category 1 (Rathmines Road) and to reduce the bicycle facilities required for dwelling visitors.
3. The proposed architecture is strikingly contemporary. The proposed building materials include a combination of exposed brick, zinc, timber cladding, blue-tint glazed louvers, bluestone tiles and natural finished concrete.

Figure 2 - 3D perspective render - Oblique view of Burke Road facade

1. The proposed building is to be excavated into the site with the result it is approximately 3.5 storeys high when viewed from Burke Road. The cross section at Figure 3 demonstrates this relationship and the relationship of the building to the western laneway and the dwelling beyond. This cross section is drawn through this highly articulated building's closest approach to both Burke Road and the west laneway, see appendix B - Extract of ground floor plan.
2. Details of the proposal are summarised as follows:
   • The main pedestrian entry to the building is via stairs onto Burke Road with an access ramp also available from Rathmines Road;
   • 59 car spaces (including 7 visitor car spaces) are provided within a three level basement car park, accessed from Rathmines Road;
   • 15 bicycle parking spaces are provided within Basement Level 1, for use by dwelling residents;
   • Each dwelling is provided with a courtyard or balcony, ranging in size from 6.1 square metres to 105.2 square metres. No communal open space is proposed;
   • The building would have an overall maximum height of 14.2 metres, measured to the roof parapet, from natural ground level; and
   • Site coverage at ground level is 49%, the maximum site coverage at basement level is approximately 75% and site permeability is 13%

1. Towards the end of the hearing, Mr Gobbo requested that we determine a question of law concerning the scope of relevant considerations. The request was in response to the argument put by Ms Piskuric, on behalf of the Council, that our decision arising from the clause 43.02-4 permit trigger for demolition can only be made by reference to the cultural heritage significance of the heritage place and whether demolition will adversely affect that significance.
2. Ms Piskuric submitted that there is a very confined permit trigger for demolition under the Heritage Overlay and the only relevant planning scheme policies that are relevant to the exercise of discretion are those that are relevant to the purpose for which the discretion is conferred. Ms Piskuric acknowledged that clause 65 contains additional decision guidelines, but submitted that they must be considered 'as appropriate'.
3. Anticipating that the applicant would argue that demolition can be justified when it is weighed against the degree to which the proposal is supported by housing and urban consolidation policies, Ms Piskuric argued that to take the latter into account would be contrary to what have become known as the National Trust principles.[8] Those principles, which have been consistently adopted by the Tribunal, are essentially that a discretion must be exercised in accordance with the purpose for which the discretion has been conferred, and matters which are extraneous to the exercise of discretion must not intrude into it.
4. In particular, Ms Piskuric referred us to the decision in Port Phillip v A & M Reis[9] (which was followed in Graeme Gunn Architects v Melbourne CC[10]) where Deputy President Bruce stated (at paragraph 130):

The urban consolidation policy is in my view irrelevant to consideration of an application for a permit required under the Heritage Overlay. A general policy of consolidating development within existing urban areas and designated growth areas...is not directed to the purpose of the heritage controls. With respect to the application to build the proposed new dwellings, the urban consolidation policy must be considered alongside the heritage decision guidelines, because a permit is required under the Zone provisions as well as under the Heritage Overlay, and a decision made as to which must be given greater weight. But with respect to the aapplication for a permit to demolish the existing building, the only permit requirement is the one in the Heritage Overlay, and the urban consolidation policy is irrelevant.

1. Deputy President Bruce acknowledged that the quality of the replacement building could be a relevant consideration when considering demolition, but only to the extent it was relevant to the heritage objectives of the Heritage Overlay.
2. Ms Piskuric advised that the Council 'is aware of a line of Tribunal decisions that suggest that it is open to the Tribunal to consider all of the policies within the SPPF and LPPF (not just those relating to heritage)' and 'to weigh policies both in favour and against the proposal to result in a net community benefit'. In that regard, she cited Harding v Port Phillip CC[11], which was followed in The University of Melbourne v Minister.[12] She advised, however, that the Council does not support the approach taken in those decisions.
3. The National Trust principles were established in cases where there was a single permit trigger and a single discretion to be exercised. It is clear that when the Heritage Overlay is the only permit trigger, then the Tribunal's discretion is confined to heritage considerations. In Hermann v Port Phillip CC[13] Deputy President Gibson's conclusion on a question of law was:

The Tribunal's ambit of discretion is confined to matters of heritage significance. The decision must take into consideration matters set out in sections 4 and 60 of the Planning and Environment Act 1987 and clauses 15, 21, 22, 43 and 65 of the planning scheme only so far as they are relevant to heritage considerations and the purpose of the control in clause 43.01.

1. We agree with Mr Gobbo that the question of what factors a decision maker is bound to consider is essentially one of statutory construction.[14] The purpose for which a discretion is provided is ascertained primarily by examining the words of the control containing the permit trigger. However, to ascertain the context of the discretion it is permissible to refer to other parts of the planning scheme, including policies.[15]
2. As highlighted by Mr Gobbo, the Heritage Overlay creates a permit trigger for demolition and buildings and works and its purpose refers to conservation and development. State and local policy for heritage and built environment refers to conservation and new development. Where there are multiple permit triggers for a proposal, as is the case in this application, the planning considerations relevant to all of the triggers must be taken into account in making the decision whether to grant a planning permit for the proposal.
3. There is also Supreme Court authority[16] for the proposition that even where an individual determination has been made in the case of each control, in deciding whether to grant a permit it is necessary for a responsible authority to consider the matter overall, as well as or in the course of considering the individual permissions that are required.
4. As noted by Mr Gobbo, clause 65 requires the responsible authority (and this Tribunal upon review) to 'decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines' of that clause. A proposal may include multiple permit requirements and the test of acceptable outcomes requires consideration of the proposal overall. That means that the full suite of planning policy relevant to the proposal must be taken into account.
5. We agree with Mr Gobbo that the position advanced on behalf of the Council is contrary to the consistent view adopted by the Tribunal in recent years that a balanced judgment by reference to all the relevant policies is required, not heritage policy alone.[17] The cases that the Council relies on (Port Phillip and Graeme Gunn Architects Pty Ltd) are exceptions and not consistent with current practice.
6. The most definitive statement of the Tribunal's current practice is contained in The University of Melbourne case, which was decided by Deputy President Gibson & Member Read. The Tribunal rejected the proposition put on behalf of the Melbourne City Council that in deciding whether to allow demolition the Tribunal should only look at policy objectives relevant to heritage. The Tribunal observed that while some Tribunal decisions in 1998 and 1999 regarding demolition of heritage assets suggested that the whole of the policy matrix does not need to be taken into account, that has not been the case since the 2002 decision of Harding. The Tribunal stated (at paragraph 73):

We endorse the proposition articulated in Harding that even where what is proposed is the demolition of a building which is the sole basis for a site specific Heritage Overlay, the decision must have regard to the full ambit of planning controls and planning policy applying to the site.

1. The Tribunal noted that the matters that must be considered are set out in sections 60 and 84B of the Planning and Environment Act 1987. As they include the relevant planning scheme, the decision guidelines in clause 65 of the planning scheme must be considered, as appropriate. The Tribunal noted that they include State and local policies and the purpose of the zone or overlay and went on to state (at paragraph 75):

Thus, whilst the Tribunal must consider the decision guidelines under the Heritage Overlay and other matters set out in the planning scheme relating to heritage, there is nothing within the Act or clause 65 that limits the consideration of matters when determining an application to demolish a building in a Heritage Overlay only to matters pertaining to heritage. Rather, the requirements of clause 10.04 regarding integrated decision making and the opening words of clause 65 direct the Tribunal to take into consideration the full gamut of policy objectives and planning considerations.

1. It is not open to the Council to simply claim that it does not support the approach taken in the 'line of Tribunal decisions' that have held that the Tribunal can consider all of the relevant policies within the planning scheme. Those recent decisions represent a definitive position on the issue of the scope of relevant considerations. We have no reason to depart from that approach.
2. Lastly, we note that Mr Gobbo also argued that the approach advanced by the Council is contrary to State and local policies. Specifically, clauses 15.01-2 and 15.03-1 include the objective that new development creates 'a worthy legacy for future generations'. The inference is that heritage is concerned with new development, as well as existing buildings. Clause 22.05 also includes an expectation that an assessment of the replacement building will influence the decision on demolition. We agree with Mr Gobbo that the suggestion that demolition is assessed by reference only to conservation of significant places overlooks that policy provision. Furthermore, in assessing the value of a replacement building its use and built form will be relevant considerations.
3. For the above reasons, we find, as a matter of law, that in deciding whether the proposed demolition is acceptable we are not limited to considering only matters pertaining to heritage. The discretion in relation to demolition if properly exercised by reference to all relevant considerations, including planning policy for urban consolidation, housing diversity, sustainable development and urban design.

1. Pursuant to the Schedule to the Heritage Overlay, 1045 Burke Road, Hawthorn East is identified as HO20 (Arden). No external paint controls, internal alteration controls or tree controls apply. The associated map indicates that only the southern portion of the subject land is covered by HO20. It probably coincides with the boundaries of the lot (Lot 38) created around 1904 with the original subdivision of the former Borak Estate.
2. An individual Heritage Overlay (HO483) also covers St Mark's Anglican Church. The land to the west and northwest of the subject land is included in the Ryeburne Avenue Precinct (HO161). Its significance relates to it being 'a largely intact, predominantly late Victorian/Federation precinct'.[18] During the hearing there was speculation as to why the subject land is covered by an individual overlay, and not part of HO161. Although much of the land covered by HO161 was also part of the original estate, Mr Beeston suggested that it comprises buildings that are 'of a different ilk' to 'Arden'. He and Mr Lovell also noted that there are limited vantage points from which there are views of 'Arden' and the dwellings in HO161.

1. The purpose of the Heritage Overlay, in clause 43.01, includes implementing State and local planning policies and to conserve and enhance heritage places of cultural significance. Relevant to an application for demolition, the decision guidelines in clause 43.01-4 include:
   • The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • Any applicable statement of significance, heritage study and any applicable conservation policy.
   • Whether the demolition...will adversely affect the significance of the heritage place.
2. The State policy relating to heritage is brief. At clause 15.03-1 there is the objective 'To ensure the conservation of places of heritage significance'. Related strategies are:

Provide for the conservation and enhancement of those places which are of aesthetic, archaeological, architectural, cultural, scientific, or social significance, or otherwise of special cultural value.

Retain those elements that contribute to the importance of the heritage place.

1. Those objectives and strategies are reinforced by the local heritage policy in clause 22.05. Specifically, an objective in clause 22.05-2 is to encourage the retention and conservation of all 'significant' or 'contributory' heritage places. With respect to demolition, the policy in clause 22.05-3 includes:
   • Retain 'significant' or 'contributory' heritage places and not normally allow their total demolition.
   • Consider the following, as appropriate, before determining an application for demolition of 'significant' or 'contributory' heritage places or parts of 'significant' or 'contributory' heritage places:
     • The cultural heritage significance of the heritage place...;
     • Whether the demolition or removal of the entire heritage place or any part of the place will adversely affect cultural heritage significance;
     • Whether the demolition or removal contributes to the long-term conservation of the heritage place; and
     • Whether the heritage place is structurally unsound. The poor condition of the heritage place should not in itself, be a reason for permitting demolition of 'significant' or 'contributory' heritage places.
   • Require an application for a new building or works to accompany a demolition application. The demolition or removal of any heritage place or part of the heritage place will not normally be approved until a replacement building or development is approved.
2. It is also policy to retain original or earlier fences of 'significant' or 'contributory' heritage places.

Relevant heritage study and statement of significance

1. 'Arden' was initially identified in the 1993 Hawthorn Heritage Study, prepared by a team led by Meredith Gould, conservation architect. It was a comprehensive study that formed the basis of urban conservation controls and ultimately Heritage Overlays. It is a reference document in clause 22.05-7.
2. The 1992 'Place Identification Form' for 1045 Burke Road records that the building was constructed in 1906, its integrity and condition are both 'Good' and there is a 'Contributory garden' and an 'Original or early fence'. The relevant theme is identified as 'Edwardian Prosperity'. The building is graded B, within a Level 2 streetscape. There is brief information on the history, a description of the building and an assessment. The significance, which is determined to be 'Metropolitan', is stated as:

Architecturally significant for: its adaptation of Queen Anne to a tight site: the complexity of its elevation and planning: the use of the unusual splayed corner on a Queen Anne design: and for the outstanding fence, rare on Queen Anne houses throughout Metropolitan Melbourne.

1. With the amalgamation of municipalities to form Boroondara, the gradings of heritage buildings were rationalised. All A, B or C* graded places in the Hawthorn Heritage Study were converted to 'significant' heritage places. Such places are now defined as 'individually important places of State, municipal or local cultural heritage significance'.[19] They can be individually significant and significant in a precinct.

1. Mr Lovell, Mr Raworth and Mr Beeston agreed on a number of matters, particularly that the significance of the place continues to relate only to architectural and aesthetic values.
2. With respect to historical values, the heritage witnesses acknowledged that the history of 'Arden' is interesting, particularly due to the long occupation by Dr Colville. However, they agreed that the history is not reflected in the building and the significance of the heritage place does not relate to historical values.
3. The heritage witnesses and Mr Wyatt all acknowledged that Edna Walling, the famous garden designer and writer, prepared a plan for Dr Colville's garden in the 1920s. The plan and the remnant elements of the plantings and works have recently been investigated on behalf of the Council.[20] A revised statement of significance has also been prepared. The construction of the swimming pool and tennis court resulted in the loss of much of the Walling-designed garden, though there are still some paths and perhaps some core plantings within the Burke Road frontage. Although the witnesses did not entirely agree on what the remnant elements are, none of them relied on the garden as a part of the significance of the heritage place. There are also no tree controls applicable to HO60. During the hearing we ruled that the garden is not relevant to the significance.
4. In the Hawthorn Heritage Study the assessment section for 'Arden' concentrates on the work of various prominent architects in the Queen Anne style and concludes that 'the architect for the residence has not been determined'. That is potentially confusing. The heritage witnesses agreed that it is unlikely that an architect was involved in the design. Rather, the house was erected by the builder/developer, Mr C Goodridge, and he is likely to have designed it. In any event, the witnesses concurred that many Queen Anne style buildings were not designed by architects and that a building does not have to be designed by an architect to be significant.
5. There was no disagreement about the basic condition of the building. It has been well maintained, restoration works have occurred and there were high quality additions in the 1980s. Demolition on the basis of the poor condition, or structural unsoundness, of the building cannot be argued.
6. The witnesses agreed that the statement of significance in the Hawthorn Heritage Study correctly identifies architectural values as the basis of the significance. However, they had varied views about the importance of some of the elements identified in the statement of significance. They also had divergent views as to the level of significance.
7. The statement of significance cites 'the adaptation of Queen Anne to a tight site'. The heritage witnesses offered no argument about the style of the building, although apparently 'Queen Anne' is no longer a descriptor used by heritage professionals. It is more appropriately described as 'Federation Queen Anne'. There was agreement that it is not a particularly 'tight site', especially compared to the properties to the west.
8. The statement of significance cites 'the complexity of its elevation and planning'. On that matter, it was Mr Lovell's evidence that the design adopts a pattern used by Mr Goodridge on various buildings. In that regard, he highlighted the splayed entry, the 'palette of Federation details', 'signatures and flourishes' (especially the half timber above the windows) that 'add a level of distinction'. However, it was Mr Lovell's view that the building does not have particular 'complexity'. Rather, it is 'archetypal', in that is has 'all the features you would expect'. It is 'representative of this type of building in that period', has the 'characteristics very much of the period' and is a 'handsome example of its type'. He acknowledged that there are potentially very many similar buildings.
9. Mr Raworth was of the view that the building is representative, rather than a particularly notable or important example, of this style. He acknowledged that the roof has 'a picturesque and reasonably complex arrangement of gabled bays, dormer windows and chimneys', but argued that similar roofscapes can be found on 'countless other houses' in this style in the municipality. He described the ridge capping and roof tiles as 'off the shelf'. He also saw the plan form as 'reasonably conventional'. Mr Raworth described the building as 'middling or at the lower end of the scale'. It was his evidence that there are finer examples of this idiom across Melbourne and many similar buildings in Boroondara, including some that are not even covered by a Heritage Overlay.
10. Mr Beeston's evidence was that the building is a competent example of the Queen Anne style, as would be expected from a builder with good skills and experience. However, he saw it as having no distinguishing features.
11. The statement of significance cites 'the use of the unusual splayed corner on a Queen Anne design'. That is a reference to the front verandah and entry being on the diagonal to the Burke Road/Rathmines Road corner. None of the heritage witnesses saw this as particularly significant. Mr Lovell noted that such a feature was an evolution on the form and, whilst 'relatively unusual', was not rare. It is a feature one would expect to see. Mr Raworth described it as a typical feature. Mr Beeston did not see it as special.
12. Lastly, the statement of significance cites the 'the outstanding fence, rare on Queen Anne houses throughout Metropolitan Melbourne'. It is referring to the original sections of fencing along the street boundaries that consist of a red brick base and piers, with rendered caps, with inserts of decorative cast iron panels between timber rails. Mr Lovell agreed that the fence is outstanding. He saw it as a distinguishing feature that is rare, especially in Boroondara. Mr Raworth saw it as an unusual feature, but suggested that it is 'only a little unusual'. Mr Beeston was less impressed, although he saw the fence as 'the most distinctive and intact part of the site'. He argued that while the fence is interesting, it is identical to one in St Kilda and there are numerous similar fences. Accordingly, he did not see the fence as 'rare' or outstanding'.
13. While the heritage witnesses agreed that the building is in a good condition, they had different views about its intactness. On that matter, we note that there were alterations to the original building in the early years. A structure was constructed on the south side, in association with Dr Colville's surgery. The building was also enlarged at the northwest corner. Major alterations and additions occurred in the late 1980s. They included a single storey wing and tennis court to the west, further changes to the southern structure (to create a spa), an addition on the north side of the building and the construction of a swimming pool and garage. Skylights have been installed on the south side of the roof.
14. Mr Lovell acknowledged that there has been extensive repair works and a major addition to the original building. He advised that they have been carried out in a sympathetic manner, to the extent that in some instances it is difficult to determine whether elements are original, or accurate or inaccurate copies. Nevertheless, he considered that 'the retained original portion appears to be largely intact'. He noted that it is not uncommon for heritage buildings to have large additions at the rear, with minimal visibility. He considered that the alterations and additions have had a relatively limited impact on the significance of the place. Mr Raworth shared that view. His evidence was 'the house appears to be largely intact externally aside from a substantial single storey addition on its west side and modern skylights to the original roof'.
15. The alterations to the building were a particular focus of Mr Beeston's evidence. His understanding of the 'primary alterations' was similar to that of Mr Lovell and Mr Raworth. He also agreed with Mr Lovell that some of the changes to the building are not immediately apparent as the same or similar detailing to the original has been adopted. However, he did not agree with Mr Lovell that the alterations are typical. Rather, he saw them as extensive. Mr Beeston advised that his inspections, especially of the inside of the building, led him to appreciate the extent of the changes. In particular, his inspections revealed the 'unease' of some of the elements with the original fabric, especially the dormer windows and their placement on the roof. While he was unable to be sure which of the dormer windows might be original, he described all five as 'cumbersome' and 'poorly resolved'. It was his view that the substantial alterations of the first floor substantially reduced the significance of the building.
16. None of the heritage witnesses agreed with the B grading ascribed to 'Arden' in the Hawthorn Heritage Study. They all saw it as an over grading, particularly as buildings with such a grading are defined as 'of regional or metropolitan significance, and stand as important milestones in the cultural development of the metropolis'.[21]
17. Mr Lovell considered that given the building's location on a prominent corner, its distinct architectural form and its contribution to the area, it is more likely a C* graded place. That grading is for 'keynote buildings', which are '"C" graded buildings of local significance which also play a key role in formulating the visual impression of the historic character of the area'.[22] Mr Lovell noted that such a grading would still convert to a grading of 'significant' in terms of the current terminology, and saw that grading as reasonable. Recognising that the building is representative of a place type that is common in Boroondara, Mr Lovell concluded 'there is no ability to distinguish this example, over others whereby demolition is an acceptable outcome'. He argued that given the number of heritage places in the municipality, the loss might be perceived as small. However, it is 'still a loss and one which diminishes the complement of recognised heritage assets'.
18. Mr Raworth considered that the elevated grading probably arose because the building was singled out in the Hawthorn Heritage Study due to the visual prominence of the location and the proximity to other heritage places, especially the St Mark's church. He described the building as a representative example of the Federation Queen Anne Style, but 'of relatively low individual significance'. He concluded that it is not of sufficient interest or value to warrant retention and its loss will not be great in terms of the abundance of similar properties in the municipality.
19. Primarily on the basis of the building's low level of intactness, Mr Beeston was firmly of the view that the significance is at most C*, and probably C. He suggested that the building 'teeters on the threshold between being individually significant or not' and doubted whether it warrants an individual Heritage Overlay. He saw it as a case of 'border line local significance'. In response to our question, he suggested that it would be more appropriate for the property to be included in HO161, despite the different style of buildings in that precinct, or not be covered by any Heritage Overlay. Mr Beeston conceded that demolition of the building would be a loss of cultural heritage to the municipality, but suggested that there are hundreds of similar buildings. He argued, however, that it would be optimal if some of the brick fence was retained in any future development proposal.

1. We give no weight to Mr Beeston's suggestion that a Heritage Overlay might not be warranted for 'Arden'. Unless there were very exceptional circumstances (for instance, the destruction of all of the fabric by fire), it is not the role of the Tribunal to decide that an individual Heritage Overlay should not cover land. In 52 Fitzroy Street Pty Ltd the Tribunal observed:

...the heritage significance of the building has largely been determined by the planning scheme amendment process, and while there can remain debate about the particular significance of the building...the Tribunal would need to be cautious about finding that the particular building is of no significance, given that it is not the planning authority.[23]

1. In Harding the Tribunal held that as a matter of law it is not open to the Tribunal to find that such a building is not a significant heritage place. However, that is not to say that the level of significance cannot be questioned. In Harding the Tribunal held that in exercising its discretion with respect to demolition, the Tribunal could determine how significant the building is. The Tribunal saw that task as:

...not only necessary in terms of the structure and provisions of the Scheme but an exercise which we should embark upon as a matter of common sense.[24]

1. The Hawthorn Heritage Study produced detailed information on 'Arden', but was inevitably limited in scope. The site survey work was undertaken only from publicly accessible points. The Study acknowledges that there were no internal inspections and 'High fences and thick vegetation have sometimes made inspection very difficult'.[25] It is not unusual for extensive new material about the significance of a building to be adduced during a Tribunal hearing. That is certainly so in this proceeding. We have had the benefit of detailed expert evidence from three highly experienced heritage professionals. Our task is to form a view about the level of significance of 'Arden' on the basis of the evidence before us.
2. On that matter we agree with the witnesses that the B grading in the Hawthorn Heritage Study is an over grading. The building is not of metropolitan significance. Rather, it should at most be graded C*, and more likely C. Despite the prominence of the corner location, we are not persuaded that the building plays a key role in 'formulating the visual impression of the historic character of the area'. There is an irony in that the prominent corner location has meant that over time the landowners have understandably sought to limit traffic noise and the exposure to the corner. The original fence has been backed with corrugated sheet metal panels of a greater height and dense vegetation within the street boundaries has been encouraged. That has led to the house having limited visibility and thus a diminished role in 'the visual impression of the historic character of the area'.
3. Although a C graded place is not considered a 'significant' heritage place in terms of the current gradings, our finding is that 'Arden' does have local cultural heritage significance. However, its level of significance is not high. It is a good example of the Queen Anne Federation style, but there are hundreds, if not thousands, of such buildings in the municipality. In that sense it is typical, and no more than a good representative of the style.
4. The fact that the building is representative does not undermine its significance. A building does not need to be rare or unique, or the best example of its type to be important. The loss of one representative building would diminish the complement of buildings.
5. Demolition of 'Arden' would mean the loss of a 'significant' building and the policy in clause 22.05-3 is adamant that such buildings should be retained. Their total demolition should not normally be allowed. This is not a case where the applicant is justifying demolition because it would contribute to the long-term conservation of the heritage place (for example, the recreation of a larger setting for a significant building) or because the heritage place is structurally unsound. As the land is subject to an individual Heritage Overlay, it is axiomatic that demolition of the existing building would adversely affect the significance of the heritage place. If the building were demolished, the reason for the overlay would be negated.
6. It must be recognised, however, that there is a discretion to be exercised regarding demolition. While the policy in clause 22.05-3 is strongly worded against demolition, it cannot be a proscription that determines an outcome.[26]
7. Ultimately, we consider that the building has a level of significance such that demolition is not justified in terms of purely heritage considerations. Nevertheless, demolition might be justified when the loss of a representative example of a type of building is balanced against other objectives sought by the planning scheme. The key issue we must determine is how that balance is struck in this instance. We discuss that issue under a later heading.
8. Lastly, we are not persuaded that demolition of 'Arden' would diminish the cultural heritage significance of either HO161 or St Mark's Church (HO483). The precinct has different values and limited visual linkage with the subject land. The statement of significance for the Church does not include 'Arden' as part of the context.

1. We have discussed the balance that we must strike in reaching a decision in this application. In a fundamental way the idea of balanced or integrated decision making arises because the planning system is concerned to ensure that each decision is a preferable decision not only for the present but for the future. Important to this balance is an understanding of the way in which the proposed building responds to its physical and strategic context.
2. It is submitted on behalf of the applicant that:
   1. The proposed redevelopment of the land for the purpose of an apartment building finds significant strategic support within the planning scheme because the land is a large lot, because the land has a main road location and because the land is proximate to the public transport system and Camberwell Junction Principal Activity Centre;
   2. The architecture of the building is of a very high quality, the building and its proposed landscaped setting is responsive to its environment and the building will be a worthy legacy for future generations; and
   3. The building by virtue of its siting, landscape, and design responses will have no unacceptable amenity impacts on its neighbours.
3. We accept that the subject land is a strategic redevelopment site for the purposes of clause 16.02, Location of Residential Development. However, the question of what is or is not an acceptable development on a strategic redevelopment site is highly site specific and is therefore reliant on a detailed contextual analysis.

What is the relevant context? Where does the land belong?

1. The subject land is not in Ryeburne Avenue and therefore it is easy to understand that it is likely that different considerations will apply to a proposal to redevelopment a similar site in Ryeburne Avenue than would apply elsewhere. How relevant is the particular location of this site vis-a-vis other similar sites in its immediate environs to a decision about the appropriateness of the development?

1. Clause 22.07, Neighbourhood Character Policy, references the Residential Urban Character Study 1996 under which the subject land is within Character Area 83.

1. The study essentially provides a description of the existing character of the precinct, a description which is primarily focused on the more conventional residential streetscapes. There is no reference to a preferred character. The mapping of the character area does not invite consideration of the broader character of Burke Road in this immediate area in considering the impact of a proposed redevelopment of the land on its neighbourhood.
2. In 2012 the Council resolved to adopt new neighbourhood character precinct statements resulting from a more current Neighbourhood Character Study. The new study, and the new character precinct statements, have not been incorporated into the planning scheme and therefore attract less weight than the older document notwithstanding its relative currency. The subject land is within Neighbourhood Character Precinct 31 pursuant to this new study.

Figure 5 - Neighbourhood Character Precinct 31 - Adopted 2012

1. Precinct 31 does incorporate a larger section of Burke Road, and the study does, in its introduction, acknowledged the more mixed character of Burke Road. However, the precinct was defined by reference to the unifying characteristics of the early 20th century housing to be found within the precinct area and therefore the precinct mapping does not really serve any broader strategic role. In many respects, like the 1996 Study, this new neighbourhood character study and the associated precinct statements focus on conventional residential streetscapes and are not very helpful in providing guidance as to the appropriate response to strategic redevelopment sites at busy intersections on main roads.
2. Ultimately we are of the view that neither character study are particularly useful in resolving what would be a site responsive redevelopment of the land, assuming for the moment that a decision is made that the existing dwelling and fence can be demolished. However, in respect of demolition one must bear in mind that both studies regard the loss of early 20th-century dwellings as a threat to neighbourhood character.

1. It is not unusual for development along main roads to be more varied than is the case for the residential streets which sit behind the main road properties. Consequentially, main roads often have a more robust character and can absorb different forms of development than might be acceptable in the surrounding streets.
2. Moreover, the properties which adjoin main roads are often perceived to be belonging to a different place than those within the hinterland streets.
3. In this case, this distinction is clearly observable approaching the land from the west along Rathmines Road. The laneway to the rear of the subject land and the shops to the south, together with the side boundary of the subject land and the side wall of the corner shop, reinforce the perception that these properties are Burke Road properties and that they belong in the Burke Road environment. It is that environment which primarily influences the nature of development which is appropriate.

1. Mr McGauran was critical of the proposed building because it does not respond to the civic space which he considered had evolved at the intersection, a space centred on St Marks Church, the small shopping centre to the south-west and the early 20th century, dwellings which developed around the intersection and the community foci represented by the Church and the shops.
2. In some senses Mr McGauran's analysis accepts that the land must respond to the character of Burke Road and the intersection. The difficulty with Mr McGauran's criticism of the proposed building's response to the historic character this civic space is that when you consider:
   1. the disparities in mix of character and heritage overlay areas;
   2. the policies encouraging redevelopment of local activity centres and
   3. the decision to approve a significant four-storey apartment building south-east of the subject land opposite the shopping centre

then it is difficult to conclude that the planning scheme is seeking to preserve the civic place he has identified as an integrated heritage place.

1. We have concluded that the land belongs to Burke Road and it is the physical and strategic context which defines the role of Burke Road. That becomes the primary basis upon which the suitability of the proposed development must be assessed.
2. Burke Road is the central spine of the Camberwell Junction Principal Activity Centre (PAC). The subject land is only a few hundred metres north of the PAC. Historically Burke Road north of the PAC has supported a mixed character of development including a variety of single dwellings, institutional buildings and small local shopping centres.
3. Over time dwellings on larger lots have been replaced with more intensive medium density residential developments, for example the two-storey townhouse development north of the subject land. More recently more substantial residential redevelopment has been approved including the large apartment complex close to the subject land.
4. This physical context described above favours redevelopment. The consideration of this locational or physical context in decision making is then informed by the strategic context. That context is derived from the planning scheme in respect of strategic redevelopment sites on the public transport network in or in close proximity to principal activity centres.
5. However, this is not an inevitable green light for redevelopment. There are the heritage considerations discussed above. Furthermore, the way in which the building responds to the context must be tempered by its response to its direct interfaces and in particular the more sensitive residential interfaces to the north and west.

1. It is argued by the applicant that the proposed building is of a very high architectural standard designed by a well-regarded firm of architects and that it will be a worthy legacy for the future of this community.
2. We agree that the architecture is of a very high standard. We also consider that a substantial, high quality building on this corner may go some way towards reclaiming the degraded amenity that is evident at this intersection as outlined in paragraph 12 above.
3. The architecture is both unusual and strikingly modern. It is quite unlike anything else to be found in the immediate environs of the subject land. As discussed above Burke Road has for most of its history been evolving a quite mixed character and this variation in character is reinforced by more recent developments and developments which have been approved but not yet built. In our view this is not an environment in which a more restrained approach is required to the architecture of a new infill building. The planning scheme itself supports a high standard of architecture and a contemporary approach to infill buildings.
4. The architecture employs a series of projecting bays. The architect perceives these bays as being a modern response to the projecting bays which are a feature of Federation - Queen Anne dwellings. Council and the objectors argue that this allusion is unrealistic or not capable of being perceived by anyone other than the architect.
5. Because of our more general conclusion in respect of a strikingly modern building in this context it is not necessary that the architects response to the domestic architecture of the area be easily understood by passers-by. In practice the approach adopted by the architects results in a very highly articulated building and this is indeed responsive to the level of articulation evident in Federation - Queen Anne dwellings characteristic of the area.

1. The building is a four storey building above basement car parking. The upper level of the building is substantially in set from the north and south of the lower levels of the building. To the limited extent that the concept of a podium and tower can be relevant to a four level building, the building could be regarded as having a three level podium. The striking and highly articulated character of the proposed architecture has already been discussed.
2. Immediately adjoining buildings are one and two storeys high. The building at its highest point is similar in height to the ridge height of St Mark's Church opposite. In very general terms a four-storey apartment building is unsurprising on a large corner site at the intersection of two main roads and within close proximity to a PAC. The determinant issue is whether or not the proposed building, successfully manages its various interfaces with adjoining and adjacent properties.

1. The proposed building has an important relationship with St Mark's Church which is at present the most prominent building at the intersection and in this part of Burke Road generally. Mr McGauran was critical of the height of the proposed building relative to St Mark's Church and its visibility from the external ceremonial area of the Church. He argued that the size of the proposed building coupled with its striking architecture, will detract from the pre-eminent position currently enjoyed by the Church.
2. It is true that the scale of the building is very different to that which presently exists on the subject land and therefore will have a very different relationship to the Church. Notwithstanding its striking architecture, the proposed building remains a residential apartment building which is to be contained within its landscape setting. The proposed building has no feature to compete with the spire of St Mark's Church and does not address the corner and the intersection in the uncompromising manner which is characteristic of the Church.
3. We agree that the proposed building needs to be suitably deferential to the church. We think that it is. The Church will retain its primacy.

1. Notwithstanding its residential role and character, the proposed building has an important relationship with the neighbourhood activity centre on the south-west corner of the intersection. The centre is not identified in Clause 21.08 but is identified in council's activity centre strategy[27] as a local activity centre. The strategy recommends an 8 metre high street wall and a maximum overall height of 11 metres for redevelopment in low order activity centres (described as local activity centres.)
2. These height relationships are close to those employed in the subject building as it addresses Burke Road. In our view the proposed building will have a satisfactory relationship with the activity centre both in its present form and as it is likely to develop having regard to Council's strategy.

1. To the west of subject land across the rear laneway is the dwelling at 215 Rathmines Road which is part of HO161 (the Ryeburne Avenue Heritage Precinct). This is a sensitive residential interface. The proposed building is highly articulated. An appreciation of its relationship with this boundary is obtained by reference to the cross-section at figure 3, and the ground floor plan at Appendix B.
2. The design seeks to manage this interface by:
   1. providing a setback to the building from 215 Rathmines Road which comprises the width of the laneway plus the building setbacks which have been designed to comply with ResCode standard B17;
   2. providing a substantial planter for the establishment of boundary landscaping adjoining and somewhat elevated above the eastern edge of the laneway; and
   3. providing opaque glazing to the two closest, first floor, bedroom windows which are within 9 metres of 215 Rathmines Road.

In general terms we believe these measures provide an appropriate interface on this boundary.

1. We agree with Mr McGauran that the combination of location of the proposed basement access ramp and the laneway potentially provides a somewhat harsh interface at this corner of the site between it and the residential precinct. We considered minor changes to the location of the ramp to allow for the extension of the boundary landscaping through to the Rathmines Road frontage, both to increase landscaping and to break up the expanse of concrete.
2. However, such a change brings with it counter-productive consequences which we believe outweigh any benefits that might result. The consequences that influenced our decision to make no changes to the design to address this issue include:
   1. the extent to which this change would interfere with the overall architecture of the building;
   2. the inevitable removal of an adjacent street tree; and
   3. a reduction in the convenient and safe operation of the basement access ramp because of its reduced setback from the intersection.
3. There was discussion of the hearing about employing additional privacy measures for the west-facing balconies at first floor level because the setback to the dwelling at 215 Rathmines Road would only be very close to 9 metres.
4. The east-facing windows at 215 Rathmines Road face directly on to the laneway which is regularly used by motor vehicles and less regularly by pedestrians. Relevantly:
   1. the residents of 215 Rathmines Road must of necessity already employ measures which are satisfactory to them for the protection of their privacy in respect of users of the laneway;
   2. it is proposed to establish boundary landscaping between 215 Rathmines Road and the relevant balconies (the landscaping is in a planter elevated above the laneway and the proposed trees can be planted at 2 to 3 metres in height);
   3. balconies to apartments are irregularly used; and
   4. the screening of balconies would permanently compromise the amenity of the rooms which front onto affected balconies.

The applicant submits that privacy measures are not required for west facing balconies other than for dwelling 1.06. On balance we agree with this submission.

1. To the north at 1049 Burke Road there are a group of townhouses which create another sensitive residential interface with the subject land. The townhouses have a driveway and car parking area located along its southern boundary. This area combined with the setbacks for the proposed building from the boundary of the land ensures a generous separation between buildings. The orientation of the land would ensure that there is no adverse overshadowing. The intervening landscaping to be established on the subject land, plus landscaping to the north will filter views to and from the building. Consequentially there is an entirely satisfactory interface at this boundary.

1. We are satisfied that the landscaping proposed in Mr Wyatt's revised landscape plan will result in a suitable landscape setting for the proposed building for the appreciation and enjoyment of its residents and for the public. In particular, we are satisfied that the combination of planting in ground and in planters will achieve the result anticipated by Mr Wyatt.

1. Mr McGauran made a number of recommendations to improve the aesthetics of the hallways within the apartment building. He acknowledged under cross-examination that the width of the proposed hallways was acceptable and that the provision of windows and natural ventilation for the hallways was a desirable attribute of the design. We acknowledge that Mr McGauran's recommendations are measures which lead to an attractive outcome in what is often a failing in modern apartment building design. However, we are satisfied that the measures proposed in the design and the skill of these architects will result in a satisfactory outcome.

1. The Council's traffic engineers wish to restrict vehicular movements to and from the basement car park ramp to left in and left out movements only. We accept Miss Dunstan's opinion that such an arrangement is neither necessary or practical. VicRoads is the road authority for both Burke Road and Rathmines Road and note that the proposed restriction on turning movements to and from a ramp is not a measure that they require.

1. We accept that:
   1. the architecture of the building is a very high standard and that it will enhance the appearance of the land and the intersection and that the building will be an enduring legacy for future generations;
   2. disregarding for the moment the significance of the existing building and fence and the question of whether or not it should be demolished, the size of land, its location on a main road, and its proximity to public transport and activity centres provide strong strategic support for the redevelopment of land for the apartment building proposed; and
   3. the design of the building is site responsive and as a consequence the potential for the building to have an adverse effects on neighbouring properties or on the public realm has been well managed.

Therefore, there is a strong case to approve the development proposed provided that it can be satisfactorily concluded that these benefits outweigh the disbenefits associated with the loss of the existing dwelling and its fence having regard to its heritage significance.

1. We agree with Mr Natoli that competing objectives are brought into sharp focus in this case.
2. A decision allowing demolition of a significant building is not one to be made lightly. In "St Kilda Holdings Pty Ltd v Port Phillip CC the Tribunal observed To lose a significant heritage building that is the whole of the heritage place is a very high benchmark and our decision cannot be taken lightly".[28]

How are competing objectives to be balanced in this case

1. As you would expect, Mr Natoli argued that the proposed replacement building is not of such compelling merit, either architecturally or in strategic planning terms, to warrant demolition of a significant building. In addition to this fundamental assertion, Mr Natoli made submissions on how the task of balancing competing objectives should be approached in this case.
2. Mr Natoli submitted that to override the presumption against demolition there needs to be a genuine policy conflict, or the requirement for a choice between mutually exclusive objectives. Such a choice arose in The University of Melbourne case, which involved the proposed demolition of heritage buildings (including the former 'Ampol House') and the construction of a multi-storey building for the purpose of a major research and development centre and education centre. There was a stark choice as there was no prospect of adapting the old building to a new use. There were no other obvious alternative sites in the vicinity for the proposed centre.
3. Mr Natoli argued that there is no genuine policy conflict in this instance. He noted that it would be possible to retain all, or most, of the original dwelling within a more limited residential redevelopment project. Indeed, the applicant has discussed such a proposal with the Council. Mr Natoli also argued that there are various other options or opportunities for intensive residential development on other sites.
4. Mr Natoli also argued that in the absence of a particular policy direction for higher density development on this site, there needs to be more than general metropolitan policies relating to urban consolidation, housing density and diversity to justify demolition.

How has the Tribunal responded in similar circumstances

1. There are Tribunal decisions that are generally supportive of Mr Natoli's submissions and Ms Piskuric's position that if a balancing is required, there is no net community benefit in this case.
2. In the St Kilda Holdings Pty Ltd case the Tribunal did not allow the demolition of an individually significant building and its replacement with an apartment building comprising 87 dwellings. The Tribunal stated (at paragraph 42):

In our view the urban consolidation outcomes of more households living in a well serviced locations do not outweigh the loss of this significant fabric. There are many opportunities in this area and Port Phillip municipality generally to achieve the urban consolidation objectives. This is not the only site available for more intensive development. We note that this site has not been identified in any structure plan or urban design framework as being strategically important, or a key site that if not developed would thwart wider planning objectives. We think that the community outcomes need to be very high and significant to offset the loss of significant heritage fabric.

1. In the Virgon Constructions Pty Ltd case the Tribunal held that the balancing of competing objectives favoured the retention of a contributory building (a residence and doctor's surgery) in a heritage precinct, rather than its replacement with a five-storey mixed use building. Although the site was in the Glenferrie Road activity centre, the Tribunal gave particular weight to the policy in clause 22.05-3 that significant and contributory buildings should not normally be demolished.
2. On other occasions the Tribunal has held that the balancing exercise favours demolition of heritage buildings. For instance, in the Innominata Pty Ltd case the Tribunal allowed the demolition of five significant buildings and their replacement with a four storey mixed use development. In considering the planning objectives as a whole, and the proposal's positives and negatives, the Tribunal held that the project would deliver a very high quality design, reinforcing "the flamboyance and diversity of St Kilda's heritage", and substantially improve the important corner.[29]

Alternative development retaining the heritage dwelling

1. There is the possibility that the subject land could be redeveloped while retaining the existing house. For example, a medium density development could be proposed which occupies the tennis court and the land immediately to the north of the dwelling.
2. However, it is likely that such a solution would compromise both the urban consolidation and heritage objectives of the planning scheme. From an urban consolidation perspective the opportunities for housing on an important site would not have been optimised. The amenity of the existing dwelling would be compromised.
3. The likelihood that a new owner would invest in the long term maintenance of the dwelling in this diminished context may also be reduced. A large site area capable of supporting a tennis court and swimming pool, in association with a large dwelling, apparently counterbalanced the reduced amenity of the site's location to the extent that it attracted the investment in the dwelling that occurred in the 1980s. The dwelling in a diminished context would not have these positive attributes.

1. It is not correct to regard a strategic redevelopment site which has been identified in a structure plan or some other like detailed planning instrument as being strategically more important than a strategic redevelopment site that is not identified in this way. Structure plans for example are themselves a product of the application of the more general strategic directions provided in the planning scheme. Structure plans are usually employed in more complex environments than this part of Burke Road to manage change affecting a large number of related sites. The need for structure planning in these more complex environments does not devalue the importance or role of other sites in achieving the objectives of the planning scheme.

1. Our finding is that a balancing exercise is not just required when there are mutually exclusive objectives. Nor does there need to be a specific policy direction relating to a site. As Mr Gobbo argued, once the door is open to allow other considerations apart from heritage, then anything that is relevant can be considered. They include the 'big picture', including overall orderly planning and encouraging development that creates a worth legacy for the future as sought by clause 15.03-1.
2. As defined in clause 10.04 integrated decision making involves balancing "conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations".
3. In our view, the possibility of an alternative development is not a compelling argument against demolition. The absence of a particular policy direction in relation to the land is not necessarily relevant.

1. We do not consider that allowing demolition of 'Arden' would represent 'the thin edge of the wedge'; that is, amount to an endorsement of the wholesale demolition of the very many similar buildings in the municipality. Any future applications would obviously need to be considered on their particular merits, but it is unlikely that there would be support for the demolition of those buildings that are within intact precincts. The subject land has extraordinary characteristics, including its large size and location on the corner of two major roads. It is a strategic redevelopment site. Ultimately we agree with Mr Gobbo that the proposed demolition and redevelopment would not be an adverse or bad 'precedent' given the moderate level of significance of 'Arden'.
2. If the building was of higher significance, a strategic planning argument might not be enough to justify demolition, but the loss of a building with moderate significance can be.
3. We acknowledge that visibility is not the test for significance. In Boroondara, hedges or high fences screen many significant buildings. In some sites in Melbourne, and many rural locations, significance buildings are remote from any public viewing points. Nevertheless, in the balancing exercise it is relevant that there is a limited appreciation of 'Arden'. While there are views of the roof, there are virtually no views of the base of the building (except by peering in the gate on the corner).
4. It is fortunate that until now the owners of 'Arden' have been worthy custodians who have maintained and restored the significant fabric. However, there is no guarantee that will continue to be the case, especially if the amenity of the location is further diminished by the widening of the intersection and increased traffic volumes.

1. We have stated that planning decision making has a focus on the longer term future with the aim that decisions taken today result in preferable long-term outcomes. In this case we must balance:
   1. the significance of the heritage place and the consequences of the decision for that significance;
   2. the strategic potential of the site and its capacity to contribute towards the achievement of longer term planning objectives;
   3. the present amenity of the site and the question of how that amenity may be managed in the future;
   4. the excellence of the architecture and its future potential to positively contribute to the amenity and character of the land and its environs and perhaps even to the broader heritage values of the area; and
   5. the site responsiveness of the proposed building and the degree to which it successfully manages its interfaces with adjoining and adjacent buildings and public realm.
2. We have decided that while a decision to demolish the dwelling and its fence results in the loss of the significance of the place (HO20), it is the loss of a building of modest significance with no wider implications for the preservation of heritage values in the municipality. We are therefore of the opinion that that this adverse outcome is outweighed by the proposal before us having regard to its strategic context, excellent architecture and the site responsiveness of its design.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

1. Before the development start(s), amended plans must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies provided, substantially in accordance with the plans submitted with the application (Project No.: 10-036, Drawing Nos. TP0-111 (Rev 1), TP1-101 (Rev 1), TP1-102, TP1-103 (Rev 1), TP1-104 (Rev 1), TP1-105 (Rev 1), TP1-106 (Rev 1), TP1-107 (Rev 1), TP1-108 (Rev 1), TP2-101 (Rev 1), TP2-102, TP2-103 (Rev 1), TP2-104 (Rev 1), TP2-121 (Rev 1), TP2-122 (Rev 1), TP2-123 (Rev 1), TP2-124 (Rev 1), TP3-101 (Rev 1), TP3-102 (Rev 1), TP3-103 (Rev 1) and TP3-104 (Rev 1), all prepared by Jackson Clements Burrows Architects) but modified to show:

(a) Revised materials and finishes schedule and elevations incorporating more specific detail of the proposed materials and finishes (for example, specifying whether the glazing is clear or obscure, and where coloured glass is proposed, specifying the colour);

(b) A notation that the water tank located within the basement car park will be used to harvest stormwater for irrigation of all garden/planter beds within the site (with mains back-up);

(c) A door allowing entry from the Rathmines Road courtyard into Dwelling 0.05;

(d) Obscured glass to a minimum height of 1.7 metres above finished floor level for all west-facing communal hallway windows;

(e) The provision of 1.7m high privacy screening for the west-facing balcony associated with Dwelling 1.06;

(f) Any modifications to the building design recommended in the ESD report required by Condition 21;

(g) Corrections to the plans on all relevant sheets to indicate the intention to:

• (i) utilise obscure glazing in one of the bedroom windows of dwellings 1.05 and 1.06;

• (ii) utilise hit and miss brickwork for parts of fencing to the boundaries of Burke Road and Rathmines Road;

(h) A reduction of the height of the western boundary fence within 1.5 metres from Rathmines Road to facilitate sightlines to and from the adjoining driveway and laneway;

(i) Suitable noise attenuation measures for bedrooms or living areas which face Rathmines Road and Burke Road;

(j) Modifications to the vehicle crossing in accordance with the requirements of VicRoads;

(k) Further details in relation to the operation of the tilt garage door, such as the location of an intercom, to enable visitor access;

(l) To the extent that it is practicable a minimum setback of 1.6 metres between the vehicle crossing and the street tree, measured to the exposed edge of the base of the tree trunk;

(m) A notation that a minimum of one (1) car space will be allocated to each 1-bedroom and 2-bedroom dwelling and a minimum of two (2) car spaces will be allocated to each 3-bedroom dwelling.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. No demolition shall occur until:
   • (a) plans for the development are endorsed;
   • (b) a building permit has issued for the new building; and
   • (c) the Responsible Authority has been provided with evidence to its satisfaction that Jackson Clements Burrows Architects, or an alternative architectural firm which is acknowledged to have comparable skill and experience to the satisfaction of the responsible authority, has been engaged as part of the ongoing consultant team to oversee the design and construction to ensure that the design quality and appearance of the approved development is realised; and
   • (d) the Responsible Authority is provided with evidence to its satisfaction that a building contract has been entered into for the construction of the approved development.

1. Prior to the commencement of the permitted development, a functional layout drawing, generally in accordance with Drawing TP1-104 - General Arrangement Floor Plans Level 00, by Jackson Clements Burrows Architects Pty Ltd, must be submitted to and approved by VicRoads showing:
   • (a) A two-way sealed vehicular crossover at least 6 metres wide as measured at the property boundary. The edges of the vehicular crossover must be angled at 60 degrees to the road reserve boundary.
   • (b) Swept path analysis of appropriate design vehicles entering and exiting the site. The swept path analysis must demonstrate that an appropriate design vehicle can enter the site from Rathmines Road while a second vehicle is holding to exit the site.
   • (c) The redundant crossover on Burke Road removed and kerb, channel, footpath and nature strip reinstated.
2. Prior to the commencement of the use of the permitted development, works as shown on the approved functional layout drawing must be carried out to the satisfaction of the Responsible Authority.
3. The landscaping works must not obstruct sight lines for motorists and pedestrians to the satisfaction of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, a Landscape Plan must be submitted to and endorsed by the Responsible Authority. The plan must be Generally in accordance with the Landscape Concept Plan by ERM dated 6 May 2013 (drawing numbers Ls01, Ls02 and Ls03) and the plan must be drawn to scale with dimensions and three (3) copies provided. When endorsed, the plan will form part of the permit.

(a) A survey (including botanical names) of all existing trees to be retained and of those to be removed. The intended status of the trees shown on the landscape plan must be consistent with that depicted on the development layout plan;

(b) Details of the surface finish of all pathways, paved areas and accessways;

(c) A planting schedule of all proposed trees, shrubs and ground covers including botanical names, common names, pot sizes, sizes at maturity and the quantities of each plant;

(d) Canopy trees to be a minimum of two (2) metres tall when planted;

(e) Deletion of all buildings not shown on the development plans (including the timber arbour above the car park ramp);

(f) A notation that the water tank located within the basement car park will be used to harvest stormwater for irrigation of all garden/planter beds within the site (with mains back-up);

(g) No new street trees; and

(h) Landscaping and planting within all open areas of the site.

1. Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

1. All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the development, a Waste Management Plan must be prepared to the satisfaction of the Responsible Authority. Once satisfactory, such plan will be endorsed and must be implemented to the satisfaction of the Responsible Authority. The plan must provide the following details of a regular private waste (including recyclables) collection service for the subject land including:
   • (a) the type/s and number of waste bins;
   • (b) screening of bins;
   • (c) type/size of trucks;
   • (d) frequency of waste collection;
   • (e) delivery of bins to waste collection points and retrieval of bins once collected or location of collection points within basement.

1. Collection of waste must be conducted so as not to cause any disturbance to nearby residential properties and may only occur between the hours of 7:00am to 7:00pm Monday to Friday (excluding "Clearway" or "No Standing" times) to the satisfaction of the Responsible Authority.

1. Prior to any demolition works commencing on the site, a photographic heritage record of the buildings and elements that are to be demolished or altered must be prepared to the satisfaction of the Responsible Authority. Three (3) archival quality copies of the study must be submitted to the Responsible Authority. The study must include:
   • (a) Views of each elevation of the building and Rathmines and Burke Road fence;
   • (b) Two diagonally opposed views of each internal space in the building; and
   • (c) Architectural design detailing of the building (including the Rathmines and Burke Road fence).

The photographic record must be to a high standard and taken with appropriate photographic equipment and/or film using a recognised brand of reflex 35mm camera film or a 10 mega pixel minimum resolution digital camera. Digital images must be presented on an archival compact disc (CDR) and the CDR should be of archival quality with phthalocyanine dye all to the satisfaction of the Responsible Authority.

1. Before the use starts the areas set aside for car parking, access lanes and driveways shown on the endorsed plans must be:
   • (a) Constructed;
   • (b) Formed to such levels and properly drained so that they can be used in accordance with the endorsed plans;
   • (c) Surfaced with an all weather seal coat;
   • (d) Line-marked to show the direction of traffic along the access lanes and driveways; and
   • (e) Drained;

1. Car spaces, access lanes and driveways shown on the endorsed plan must not be used for any other purpose other than the parking of vehicles, to the satisfaction of the Responsible Authority.
2. All vehicles entering and exiting the car park must do so in a forwards direction.

1. A minimum of 59 car parking spaces must be provided on the land, including seven (7) spaces clearly marked and set aside for dwelling visitors, to the satisfaction of the Responsible Authority.

1. All outdoor lighting of publicly accessible areas must be designed, baffled and located to prevent light from the site causing any detriment to the locality, to the satisfaction of the Responsible Authority.

1. All pipes (except down-pipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from external view to the satisfaction of the Responsible Authority.

1. The external faces of walls on or facing boundaries are to be cleaned and finished to the same standard as such walls within the development site to the satisfaction of the Responsible Authority.

1. No plant, equipment, services or architectural features other than those shown on the endorsed plan/s are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.

1. Concurrent with the endorsement of any plans pursuant to Condition 1, an Environmentally Sustainable Design (ESD) Report which is to the satisfaction of the Responsible Authority must be prepared by a suitably qualified expert and submitted to the Responsible Authority for approval. The report must address ESD principles proposed for the site including, but not limited to, energy efficiency, stormwater collection and re-use on the site and waste and building materials. Any recommended changes to the building must be incorporated into the plans required by Condition 1. Once approved, such a plan must be implemented prior to the occupation of the dwellings to the satisfaction of the Responsible Authority.

1. Prior to the commencement of buildings and works (including demolition), a Construction Management Plan must be submitted to the Responsible Authority for approval. No works are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan must be implemented to the satisfaction of the Responsible Authority. The Plan must provide details of the following:
   • (a) hours for construction activity in accordance with the requirements of any other condition of this permit;
   • (b) measures to control noise, dust, water and sediment laden runoff;
   • (c) the location and design of a vehicle wash-down bay for construction vehicles on the site;
   • (d) the location of parking areas for construction and sub-contractors' vehicles on the site, to ensure that vehicles associated with construction activity cause minimum disruption to surrounding premises and traffic flows with any basement car park on the land being made available without delay for use by sub-contractors/tradespersons upon completion of such basement car park areas;
   • (e) measures to ensure that employees and sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan;
   • (f) contact details of key construction site staff;
   • (g) a Traffic Management Plan;
   • (h) the location of any site sheds, hoarding and the like; and
   • (i) any other relevant matters, including VicRoads' and Yarra Trams' requirements.

1. All works including earthworks, demolition and construction activity associated with the approved development is to be limited to the following hours, unless with the prior written consent of the Responsible Authority:

1. The land must be drained to the satisfaction of the Responsible Authority.

1. This Permit will expire if:
   • (a) The development does not start within two (2) years of the issue date of this Permit; or
   • (b) The development is not completed within four (4) years of the issue date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the Permit expires or within the three (3) months afterwards.

[1] Permission is also required for alteration of access to a road in a Road Zone Category 1 (Rathmines Road) and a reduction of the bicycle facilities required for dwelling visitors.

[2] Partly affected by the individual heritage overlay HO20;

[3] Affected by individual heritage overlay HO483;

[4] On land partly affected by a Public Acquisition Overlay;

[5] Partly affected by a Public Acquisition Overlay;

[6] Affected by the Heritage Overlay HO161.

[8] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592

[9] [2001] VCAT 489

[10] [2006] VCAT 348

[11] [2002] VCAT 416

[12] [2011] VCAT 469

[13] [2011] VCAT 2353

[14] Great Southern Property Managers Ltd v Colac-Otway SC [2006] VCAT 706

[15] White Ash and GJL Properties v Frankston CC [2004] VCAT 2170

[16] Sweetvale Pty Ltd and Anor v VCAT and Ors [2001] VSC 426

[17] Mr Gobbo cited St Kilda Holdings Pty Ltd v Port Phillip CC [2013] VCAT 120; Saunders v Manningham CC [2010] VCAT 264; Virgon Constructions Pty Ltd v Boroondara CC [2011] VCAT 2296; Belvern Partners & Associates Pty Ltd v Melbourne CC [2005] VCAT 406; 52 Fitzroy Street Pty Ltd v Port Phillip CC [1999] VCAT 1416; and Innominata Pty Ltd v Port Phillip CC [2008] VCAT 1085

[18] Its statement of significance is in clause 22.05-5

[21] Hawthorn Heritage Study, Volume 1A Main report, April 1993, page 20

[23] Page 10 (no paragraph numbers included)

[26] SMA Projects v Port Phillip CC [1999] VCAT 1312

[27] The Boroondara Activity Centres Strategy 2011.

[28] [2013] VCAT 120 at [24]