• Mr Bryce Raworth, Heritage Architect of Bryce Raworth Heritage Architects.

Demolition of the rear part of existing shop/café. Removal of a non-original façade to the eastern part of the façade.

Construction of a new three-storey building to the rear, setback at least 4.5m from the front parapet line. The new building will comprise six apartments of one or two bedrooms, with the ground floor occupied by double car stackers. Façade of the new building is a modern, minimal box form with glass, metal and timber elements.

Section 77 Planning and Environment Act 1987

Cl. 43.01 (demolition, buildings and works under HO7)

A single storey rendered brick café / shop. The original building dates from 1908 and comprised a dwelling and bank building[1]. The eastern dwelling part has been modified to a commercial building with brick 1960s façade in front of the original recessed setback. The western section has been modified with a 1950s glazed shop front to replace the original façade. Along the side-wall to the eastern laneway, two original windows remain with one other modified window.

To the east of the laneway is No. 82 Ferguson Street, an individually listed heritage building. This is a double storey rendered façade Victorian building. To the west is a series of single storey shop fronts, generally with modern ground floor facades, of contributory heritage significance.

We inspected the site together on 15 February 2010.

1. Alitta Heights Trading Pty Ltd is the owner of a double fronted café at 88 Ferguson Street, Williamstown, west of Douglas Street and forming part of the Williamstown Activity Centre. The building is listed in the planning scheme as contributing to the heritage significance of the retail area (HO7).
2. Alitta Heights Trading Pty Ltd wants to redevelop the double fronted café into two separate shops to face Ferguson Street and, in doing so, remove the eastern non-original section of the façade and establish glass bi-fold doors to this section of the building. It also proposes to redevelop the rear of the building and rear yard to accommodate six dwellings above a four-car stacker that will gain access via the laneway (Smith Terrace) on the eastern boundary. Pedestrian entry to the dwellings will also be from this 3.1m wide laneway. The new building will be constructed to the rear of the existing building and above part of that section of the original building to be retained, but will be recessed from the original façade. The building additions will create a three-storey building with a maximum height of 10.9 metres.
3. Mr Marks operates an electrical retail store at 82 Ferguson Street, east of Smith Terrace. He lives above the shop in a first floor apartment. His building is identified in the planning scheme's Heritage Overlay as an individually significant building and is commonly referred to as the "Punshon Building". It is two storeys in height with a Victorian- era rendered façade that Mr Marks' family has restored. Mr Marks is concerned the dwellings in the proposed development at 88 Ferguson Street may overlook his first floor dwelling windows and, in turn, he will unnecessarily look into proposed windows of some dwellings. He is also concerned that Smith Terrace pavement has inadequate strength to support construction vehicles and that construction traffic may damage it.
4. Hobson's Bay Council refused to issue a planning permit as the development would detrimentally impact the significance of the heritage place. Ms Lunn submitted Council was particularly concerned that the upper level development would dominate and overwhelm the existing single storey shopfronts. She also submitted that, if development was to occur to the façade, it should include restoration of the original façade of the eastern, former-dwelling part of the building. She also considered that the proposed development should provide separate entry to the new dwellings, to be directly from Ferguson Street rather than Smith Terrace.
5. Council's grounds of refusal also stated the proposal does not meet the objectives of ResCode. Ms Lunn explained that Council's main issues related to the pedestrian safety, provision of private open space and potential for overlooking.

1. Will the development detrimentally affect the significance of the place defined by the Heritage Overlay, Schedule 7, because: 1. the height, scale and setback of the proposed additions are too dominant or overwhelming to the existing heritage place; or 2. the proposed materials are too dominant for the location; or 3. the façade and eastern windows are not to be restored to their likely original condition? 2. Is the proposed pedestrian access to the dwellings sufficiently safe and appropriate?

1. Do the proposed dwellings have sufficient secluded private open space?

1. Has the proposal sufficiently addressed overlooking to the adjoining first floor dwelling at 82 Ferguson Street (and vice versa)?

Will the development detrimentally affect the significance of the area?

What is the heritage significance of 88 Ferguson Street?

1. The site is located within Heritage Overlay, Schedule 7[2] that includes both residential and commercial areas of Ferguson Street from The Strand approximately 400m to the east and the railway line approximately 700m to the west of the subject site. No. 88 Ferguson Street is defined as a contributory building within the street, which has dates for buildings of significance ranging from 1837 to 1940. The building at 88 Ferguson Street was constructed in or around 1908.
2. The statement of significance states that it is the area's "ability to illustrate key phases in its development as a city from the mid- nineteenth to the mid twentieth century[3]" that is important.
3. From our inspection of the site we find that the heritage precinct is mixed and encapsulates a broad range of building styles and degrees of contribution. We find the buildings at 88 Ferguson Street do contribute to the heritage of the precinct, but do this in only a contextual way and as reflective of the continual evolution of the street.

Will the height, scale and setback of the proposed additions be too dominant or overwhelming?

1. Council's concern was that the proposal would "adversely affect the natural or cultural significance of the place", i.e. HO7, because of the additional structure's bulk, closeness to the façade, inappropriate materials and failure to reinstate the original historic façade. We have concluded that the proposal would have an acceptable effect on the cultural values of the heritage place.
2. The key test of Clause 43.01 of the planning scheme and the supplementary local heritage policy is, in brief, whether the proposed works will adversely affect the significance of the heritage place.
3. This proposal includes new works to the rear of the building. It will remove some original fabric, including a chimney that is partly visible from Ferguson Street.
4. The significance in the heritage place is in its demonstration of how Ferguson Street evolved as a commercial centre, including remnant dwellings, particularly at the western end. We find the important elements for the site to retain are the parapet façade so that people can read the original building form, but also its evolution and adaptation over time. Removal of minor elements of heritage fabric such as a well recessed chimney where these are not a dominant or consistent feature in the street will not adversely affect this significance.
5. Ms Gasparetto's evidence was that the proposed upper storeys would be excessively dominate and would overwhelm the heritage significance of the precinct. She stated that the proposed upper levels were too close to the street and therefore would not be sufficiently hidden or recessive from the street. Her written evidence was also that the building should be lowered; however, when cross-examined she agreed that the height was not a problem provided the new structure was setback further, behind the form of the original building.
6. Ms Gasparetto relied on the provisions of Clause 43.01, policies found in Clause 22.01 and the heritage guidelines that are incorporated into the Planning Scheme. We note the guidelines for alterations and additions use residential buildings as examples and therefore the prescriptive provisions of the guidelines do not readily translate to the subject site. Ms Gasparetto agreed (as did Mr Raworth) that it was the principles of the guidelines that were more relevant. We find these principles are fundamentally the same as those of Clause 43.01 and Clause 22.01, being to ensure new form does not dominate or overwhelm the significance of the place.
7. The application plans include a number of perspective drawings that clarified for us the proposal's scale in relation to its context and assisted us in reaching our conclusion that the proposed development would not dominate or overwhelm the heritage streetscape. The "Punshon Building", to the site's east sits, is of about equal height to the new structure proposed on No. 88, is constructed to its frontage and has a relatively wide frontage. In comparison, the proposed three-storey structure is to be set back a reasonable distance from the frontage and will have a substantially narrower width than No. 82, as well as having a vertical setback in its middle. We find that all these features together would ensure that the "Punshon Building" would remain the most dominant building in this part of Ferguson Street. In this respect, we do not agree with Ms. Gasparetto's response to cross-examination.
8. The upper levels of the proposed building extension will be setback a minimum of 4.5m from the street, with the eastern part setback one metre further so that the building appears as two forms, aligning with the original parapet widths. The additions will be slightly higher than the rear section of the "Punshon Building", but we find the Punshon Building will still clearly be read as the dominant building in the street due to its siting and the higher rendered façade, parapet and wider more detailed and dominating facade. Ferguson Street in a broader context contains a mix of building heights, form, age and style. We find the addition of modern upper levels, recessed from the original single storey parapets can provide an appropriate addition to this mixed streetscape, whilst still recognising the historic evolution of the commercial area from 1870 to 1940. We consider the site will continue to contribute to the significance of the place, as it will still be possible to read the original parapet form, with the new form being distinctly recessed from the original form.
9. We are also mindful that whilst this site is in a heritage overlay, the heritage significance is in demonstrating how the retail centre of Williamstown has evolved since 1870 to 1940. From inspection it is apparent that the centre is continuing to evolve as it should, given the broader policy and business zone provisions of the planning scheme. This is evident in the number of other modern buildings (both single and double storey) developing in the area, modern streetscape works and proliferation of modern ground floor retail façades.

Are the proposed upper storey materials too dominant?

1. Ms Gasparetto's evidence was that the choice of materials was inappropriately modern and too stark a contrast to the heritage form. We have concluded that, in principle and subject to further clarification of details, the selected materials are appropriate.
2. Policy[4] regarding alteration to commercial buildings in Ferguson Street states that additions and alterations include materials that are "the same, or a contemporary interpretation of the wall cladding of the existing building on the site, for walls visible from the street".
3. Although heritage policies are commonly written to require new works to use finishes and details that are like (but not too like) those of their heritage equivalents, this often results in a mediocrity than has the effect of submerging or diluting one's awareness of the intrinsic qualities of the heritage buildings themselves. We accept that in some circumstances it is possible for new additions to a heritage building to incorporate quite contrasting materials or details that have the benefit of throwing the particular qualities of the heritage finishes and details into greater relief. While we understand why heritage policies are commonly of the former type and rarely of the latter, we believe that the latter approach can sometimes better fulfil the objectives and decision guidelines of Clause 43.01. That is our conclusion in this case.
4. The proposed materials include glass, timber and zinc metal panels. Mr Finanzio submitted these were to be in non-reflective muted tones so as to be recessive to the street, yet read as distinctly modern elements so as not to mimic or detract from the original heritage elements at ground floor and on adjoining sites.
5. These proposed materials for the three-storey structure to the rear of the site, including its façade, are quite different to those of the original structure and incorporate timber and metal as well as flat rendered/coloured surfaces. These, combined with the simple detailing and proportions of the proposed building extension, leads us to be satisfied that the new structure will be clearly identified as new, yet recessive. The exact colour and detail of the materials can be finalised through permit condition or submission of additional plans as we direct below.

Should the façade be restored to its likely original condition?

1. Ms Lunn submitted that in addition to Council's concerns about the upper level additions, the proposal should reinstate the original western shopfront and eastern dwelling façade. We have concluded that this is neither necessary nor appropriate.
2. Ms Gasparetto's evidence included photos dated from the 1930s that indicate the western glass shopfront was previously a double door with glass triple pane window. The photos do not clearly show the dwelling's entire façade but indicate that the recessed façade to the eastern building had a verandah and front hedge.
3. The heritage citation for the precinct states it is "desirable" to encourage reconstruction of street verandahs or awnings where sufficient evidence is available and restoration of original or early shop fronts also where evidence is available[5].
4. We find little relevance in restoring the eastern part of the site to its original residential form, given the underlying zoning of the site as Business 1, the commercial context of the remainder of the street and the heritage significance of the area that acknowledges the transformation of former residential buildings into retail uses over time. The photographic evidence as to the original form is also quite limited in detail. However, the proposal includes removal of a 1960s brick addition in front of the original dwelling facade. This will enable the original recessed shape and form of this eastern building to be better read as part of the non-linear, eclectic form of the streetscape that evolved between 1870 and 1940.
5. Ms Gasparetto also indicated that it would be preferable to restore the western part of the façade to its original form and the eastern laneway windows. Again we find no pressing need for this, given the need for the building's use to remain viable in the context of the existing retail strip of Ferguson Street that generally consists of modern or modified glazed facades for the extent of the business zone.

1. The significance of the Heritage Overlay (HO7) encompasses a broad range of building types and eras from 1870 to 1940. This significance is compromised by the range of modern infill buildings and altered facades of buildings in the heritage place, including many buildings around the subject site and on the site itself. We find the proposed adaptation of the buildings to be suitable in the street context that continues to evolve whilst recognising the heritage of the area. We find the new additions will be sufficiently recessed to enable the original ground floor façade and form to be read as a reference to the historic era of significance. We do not see a justifiable need to restore the original fabric of the buildings when there is only limited evidence as to the original form. There is a need to enable the site to operate in a modern commercial context. That context contains a large proportion of shopfronts in the immediate with modern facades.

Is the proposed pedestrian access to the dwellings sufficiently safe?

1. Ms Lunn submitted the pedestrian entry from the eastern laneway, Smith Terrace, would be unsafe as it is 15m from Ferguson Street and is a laneway that is well used by vehicles to other premises in the street. We have concluded that, subject to certain requirements, this access is acceptable.
2. We are somewhat confused as to whether Ms Lunn considers the laneway unsafe for pedestrians because it is too heavily used by traffic, or unsafe because it has poor surveillance from a public street, as the two issues are somewhat contradictory. If it is heavily utilised by vehicle traffic it could be assumed that there is a relatively good level of casual surveillance.
3. The dwellings' entry is recessed from Smith Terrace. This can provide safe pedestrian access to Smith Terrace from passing vehicles. From here, provided the entry point is well lit and has a pavement to Ferguson Street that is safe to walk on we find the entry can provide a sufficiently safe point of entry to the street. Laneway entries to rear dwellings are common in many older activity centres and we find the entry to be sufficiently close and identifiable to users, provided adequate lighting is provided for night time use.
4. Mr Marks questioned whether the laneway's pavement is adequate to sustain construction traffic and drew our attention to the pavement, which is angled steeply to the centre. We are unclear as to the ownership and management of the laneway. Our inspection confirmed that the surface pitches at quite a steep angle and may potentially be unsafe for pedestrians, particularly at night. Improvement of the laneway surface from Ferguson Street to the dwelling entry point needs to be further addressed. We will direct the applicant and Council to provide a further response to this issue.

Do the proposed dwellings provide sufficient secluded private open space?

1. Ms Lunn submitted that the rear four dwellings provide balconies that do not meet the relevant standards of ResCode. These units are one-bedroom units of 50 - 63 square metres area. We are satisfied the smaller than standard balconies meet the objective of providing adequate recreational space for the needs of potential residents of dwellings of this size and location in a commercial strip.

Has the proposal sufficiently addressed overlooking to the adjoining first floor dwelling at 82 Ferguson Street?

1. Mr Marks submitted the second and third level units might overlook his upper storey bedroom and living room windows of this property opposite across Smith Terrace. He was also concerned that there was potential reverse overlooking created from his windows into the dwellings.
2. Mr Finanzio conceded that it was unclear from the plans if overlooking was an issue but accepted it would be possibly, given the short distance between the dwellings. Ms Lunn also submitted that overlooking was an issue for Council[6] but considered the matter could be addressed via screening measures in a condition on permit.
3. The windows of level 2 and 3 sit above and below Mr Marks' upper storey windows, so the overlooking will be partly minimised through the angle of viewlines. However, we do consider this matter requires further consideration. We do not accept that simply placing a condition on permit is acceptable, as screening all windows is not a desirable solution. Re-designing the internal layout of the rear units may provide a better solution. We therefore have decided to issue an interim order requiring the permit applicant to further address the issue of overlooking from the rear dwellings. This also provides opportunity for the applicant to address the other minor concerns we have identified regarding access and clarification of material selection as part of the submission of further plans.

1. We find the overall design and form of the proposed development to be a suitable response to the heritage provisions of the planning scheme. We agree with Mr Marks that the issue of overlooking appears not to have been adequately addressed in Council's consideration of the application in its assessment prior to issuing a notice of Refusal and requires further consideration. We also share the concerns of Mr Marks' concern that the surface of the laneway between Nos. 88 and 82 Ferguson Street may require restoration up to the new proposed doorway, in order to provide safe pedestrian access. We therefore issue an interim decision that we will direct the approval of a permit, subject to these matters being addressed through further information to our satisfaction. Information to be provided should include:

1. Any need for redesign of the eastern façade, or modify the internal layout, in order to prevent unreasonable overlooking from the proposed second and third level east facing windows and balconies to the habitable second level windows of 82 Ferguson Street. This should include further information including sight lines from the proposed building into the existing windows of No. 82 in order to clarify what potential overlooking may occur and how it is to be addressed. 2. Any need to upgrade the surface of the laneway between Ferguson Street and the dwelling entry point so as to provide safe pedestrian access from Ferguson Street.

1. Clarification of materials to be used to the front and side facades to ensure they are sufficiently recessive to the ground floor heritage façade. This should include accurate eastern elevation drawings.
2. We emphasise to the permit applicant that this interim order provides an opportunity for the Tribunal's concerns to be addressed, and this order is not an opportunity for further changes (other than consequential changes) to be made to the design.
3. The next step is to ascertain whether the Applicant for Review wishes to take up this opportunity and how long they will need to prepare an amended set of plans and elevations. Upon receipt of that advice, we will either issue a final decision affirming a refusal if the Applicant does not wish to amend the plans or, if it does wish to take up the opportunity, issue further directions:
   • Requiring the amended plans and a written explanation of the amendments to be served on the Tribunal, the Council and the respondents;
   • Providing all parties the opportunity to request the Tribunal, in writing, to convene a further hearing and, if so, why.
4. Upon receipt of the amended plans and elevations and all further written submissions, we will then determine if a further hearing is required. Ultimately, we will determine if the amendments are satisfactory (with or without a further hearing). If we find the amendments are satisfactory we will order a permit be granted subject to appropriate conditions (as discussed at the hearing and in the light of any further submissions). If we find the amendments are not satisfactory we will order that the review be set aside and no permit be granted.
5. We have issued an Interim Order accordingly.

[1] Based on photos tabled at the hearing from 1930s.

[2] We note, as Mr Raworth did in his evidence, that the site is incorrectly noted as HO 124 in the planning scheme overlay map. The table refers to HO 124 as the Williamstown Town Hall. Ms Gasparetto and Mr Raworth agreed the site was only a contributory building to HO7, not a separately listed individual building.

[3] Ferguson Street Civic and Commercial Heritage Precinct Citation: Hobson's Bay Heritage Study 2006 - Volume 3.

[4] Clause 22.01-5 of the Hobson's Bay Planning Scheme

[5] Ferguson Street Civic and Commercial Heritage Precinct Citation: Hobson's Bay Heritage Study 2006 - Volume 3.

[6] Ms Lunn raised this in her written and oral submission to the Tribunal. The notice of refusal did not list overlooking as an issue. We also note the officer report to Council stated the overlooking provisions of ResCode were satisfactorily met.