Mr Jim Ntentis, on his own behalf and also on behalf of Mr Gerry Valianos.

Ms Pat Mitchell on hers and her husband's behalf and on behalf of K.C. & M.L. Holland and M. & C. Gregson.

The subject site is one of a row of single storey, single fronted cottages, with frontage to the northern side of Little Page Street, between Boyd Street and Mills Street. This section of Little Page Street is narrow and bluestone paved. The northern side is dominated by single storey, Victorian era cottages. The southern side is notable for a complex of two storey, clinker brick, apartments dating from about the 1940s.

The subject land is 5m wide, 22.5m deep and has an area of approximately 115sq m. A 3m wide bluestone paved right-of-way extends across the rear of the site. This right-of-way separates the site from those of the respondent objectors whose properties all have frontage to Page Street. These latter dwellings are mostly intact, double fronted Victorian era dwellings, with more recently constructed single storey rear extensions which open onto attractive paved courtyards.

It is proposed to demolish the rear skillion roofed section of the existing dwelling, which comprises a living room, kitchen and bathroom. It is then proposed to replace this with a new two storey structure comprising a bathroom plus kitchen and living room on the ground floor, with a bedroom plus ensuite above. The two front rooms, with their pitched corrugated iron roof, would be maintained and renovated. Their retention would ensure that the new rear extension would be mostly hidden from view from Little Page Street.

At ground level the new extension would be set back 3.75m from the rear boundary. The first floor would be set back 6.1m. The extension would be constructed to both side boundaries at ground floor level. At first floor a setback of 1m, increasing to 1.5m at the highest point, would be provided on the eastern side.

The plans originally accompanying the application depicted a flat or skillion roofed new addition with a height of 6.05m to the top of the first floor rear façade and 3.07m to the top of the ground floor façade. At the commencement of the hearing Mr Callander tabled a set of plans "for discussion purposes". These illustrated an alternative hip and gable roofed design. He suggested that if the Tribunal believed such a roof form to be an improvement - in terms of meeting the policy objectives of the Scheme or the concerns of Council and the objectors - his client would be willing to so amend their application. The different roof design made very few changes to the overall volume of the addition. The apex of the rear gable increased the height of the building only marginally.

At the conclusion of the hearing the Tribunal invited the respondent objectors and the Council - through its Heritage Adviser - to provide further written submissions about the effect of the suggested changes to the roof design. The Council's Heritage Adviser responded by stating that the hipped roof form "was more appropriate in this situation". The respondent objectors commented that the roof form was "more aesthetic" but the development was still too intrusive.

The subject land is zoned Residential under the Port Phillip - Victoria Planning Provisions (VPP) - Planning Scheme. Within this zone extensions to a dwelling on a site of less than 300sq m requires a permit. In considering such applications, in addition to the decision guidelines set out at Clause 65, the Responsible Authority must consider the Good Design Guide for Medium Density Housing. The land is also within an area specified in the Schedule to the Heritage Overlay as a Heritage Place. This area is identified as Heritage Place No. HO3 and is referred to as "South Melbourne, Albert Park, Middle Park and part of St Kilda". The description of this area - as identified in the Port Phillip Heritage Review includes the following:

"The main roads are wide thoroughfares but there are also narrow back roads, often with early surviving timber cottages, usually single storeyed but occasionally two storeyed. Herein lies much of the area's fascination - the contrast between opulent and working class accommodation, enriching it when viewed from today's prospective."

The statement of significance for this area, as set out in the Heritage Review includes:

"The diversity of development within the discrete periods of growth characteristic of the Area constitutes a special heritage valued not only by its residents but by Melbourne at large (Criterion G). This importance is due to the area's ability to inform present generations about a way of life now past, when communities were to a large extent self-contained as a consequence of limited personal mobility."

For heritage places identified in the Schedule to the Heritage Overlay, a permit is required to demolish and externally alter any building as well as to construct any new buildings or works. The relevant purposes of the Heritage Overlay are:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places."

At Clause 43.01-5 the decision guidelines for the Heritage Overlay control are set out. In addition to the guidelines set out at Clause 65, the Responsible Authority must consider, as appropriate:

"* 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 heritage study and any applicable conservation policy.

* Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.

* Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place."

As already noted, the heritage place to be conserved and enhanced in this instance is the South Melbourne, Albert Park etc. area. The purposes of the control point to the need to conserve and enhance "those elements which contribute to the significance of the heritage place". In such a context the subject site and its neighbours may be regarded as "elements" which contribute to the significance of the South Melbourne, Albert Park etc. heritage place.

The Port Phillip Heritage Study is an incorporated document of the Scheme and may be taken into consideration pursuant to the third dot point in Clause 43.01-5. The Heritage Study can be said to assist in the consideration, pursuant to the second dot point of Clause 43.01-5, of the significance of the South Melbourne, Albert Park etc. heritage place, as well as the elements which serve to contribute to that significance.

An important difference between the new VPP format Port Phillip Planning Scheme and its predecessor is the emphasis placed on facilitating development which achieves acceptable outcomes in terms of the State and Local Planning Policy Framework - including the Council's Municipal Strategic Statement which now forms part of the Planning Scheme. At the commencement of the zone and overlay controls, as well as at Clause 65, it is stated, (with minor variations between clauses) that:

"because a permit can be granted does not imply that a permit will or should be granted. The Responsible Authority must decided whether the proposal will produce acceptable outcomes in terms of the State and Local Planning Policy Framework, the purposes and decision guidelines of the overlay or zone and any other guidelines at Clause 65."

The subject application for permit was lodged in October 1998. Following requests for further information and input from the Council's Heritage Adviser, amended plans were substituted in November 1998. The application was then directed to be advertised. Ten objections were lodged, none of which were from neighbours in Little Page Street, were lodged. The grounds for objection included: loss of view, loss of privacy, not in keeping with the character of the neighbourhood, visual intrusion and unacceptable precedent.

Not withstanding an officer's recommendation to grant a permit, the Council at its meeting of 3rd of February 1999 resolved to refuse a permit on the following grounds:

"1. The proposed development is contrary to the objectives of Council's South Melbourne, Albert Park, Middle Park Local Neighbourhood Policy as the development is not compatible with its surrounds nor the identified neighbourhood character of the area.

2. The proposed development would have a detrimental impact on the character of the streetscape and the area in terms of visual bulk, scale and proportion.

3. The proposed roof form has no regard to other roof forms in the area and will detract from the heritage value of the contributory building, the integrity of the streetscape and area.

4. The proposed development will have an impact on the amenity of adjoining properties in terms of visual bulk and overlooking.

5. The proposed development is an overdevelopment of the site given that it will reduce the existing provision of private open space which presently does not comply with the Good Design Guide requirements and Council Policy.

6. The proposed development is inconsistent with the orderly and proper planning of the area."

The subject application to review that decision is based on the following grounds:

"1. The proposed development is not contrary to the objectives of the South Melbourne Albert Park Middle Park Local Neighbourhood Policy.

2. The proposed development is compatible with its surrounds.

3. The proposed development is compatible with the identified neighbourhood character of the area.

4. The proposed development will not have a detrimental impact on the character of the streetscape and the area whether in terms of visual bulk scale and proportion or otherwise.

5. The proposed roof form is appropriate to the area and has regard to other roof forms and will not detract from, any relevant heritage values the integrity of the streetscape or the area.

6. The proposed development will not unreasonably affect the amenity of adjoining properties in terms of visual bulk and overlooking.

7. The proposed development is not an overdevelopment of the site.

8. The proposed development will enhance the amenity of the occupants of the site.

9. The proposed development is consistent with the orderly and proper planning of the area.

10. The height bulk and setback of the proposed dwelling, alterations and additions comply wit the requirements as set out in the City of Port Phillip Design Manual (1998) and the Municipal Strategic Statement.

11. The dwelling alterations and additions have a setback in accordance with the provisions of the City of Port Phillip Heritage Building Guidelines (1998).

12. The form of the proposed dwelling alterations and additions generally accord with the City of Port Phillip Heritage Building Guidelines (1998) and the Municipal Strategic Statement.

13. The proposed works will not result in any overlooking or loss of privacy to the neighbouring or adjoining properties.

14. The proposed works will not result in any significant increase in the level of overshadowing of neighbouring and adjoining properties.

15. The proposed development generally complies with the objectives, criteria and techniques of the Good Design Guide and with the policies and objectives of the Port Phillip Planning Scheme."

The principal issue arising out of this review is whether the proposed development constitutes an acceptable outcome in terms of the Scheme's heritage objectives and policies and Element 3 of the Good Design Guide, which sets out objectives and criteria for neighbourhood character.

Of particular concern to the Council and objectors was the visual impact which this extension would have on the built form character of the area and in particular the heritage character presently experienced by residents of Page Street. The concern was that this extension, due to its height and siting, would read as an out of place element in the previously quite uniform, single storey, rear yard context of Page and Little Page Streets.

Mr Callander, relying on the favourable officer's report to Council, argued that it was sufficient only for this extension to sit recessively in the Little Page Street streetscape - obscured as it would be by the two front rooms which would be maintained and renovated. In his submission the rear extension was of "a scale and design which respects the built form character of the area". He suggested invisibility was not am appropriate test except for the streetscape. He contended that it was equally important to ensure that such cottages could be adapted for contemporary use. His clients had recently had a baby and given their need also for a separate study, this two bedroom cottage was proving inadequate. To this end he suggested that only by going upwards could such contemporary demands be met.

In response Messrs Rantino and Ntentis argued that the applicants were simply asking too much of a 5m wide site in a tightly developed, predominantly single storey neighbourhood, with recognised heritage significance. They directed me to the decision of the Tribunal in Basile and Associates v City of Port Phillip (unreported 1998/13789) September 1998, where consideration was given to whether the impact of a development in a conservation area should be assessed only from the street. The Tribunal stated:

"In my view it is proper that residents of an urban conservation area, and their visitors, are able to enjoy the heritage values of the area when seen from their own properties as well as from public spaces."

More recently, in P. Goodrich and Anor v City of Port Phillip (unreported) 1998/88481 the Tribunal found, in the context of the VPP format Port Phillip Planning Scheme that:

"There are more elements at work in this neighbourhood than the simple issue of streetscape. Views are available into the rear of the site from Iffla Street and from Little Mountain Street. Moreover, occupants of nearby land overlook the site. Neighbours also have legitimate expectations that new development will be of a scale, which is compatible with established urban conservation principles and surrounding development."

Following the hearing the Tribunal inspected the subject land as well as the properties of Mr Ntentis and Mesdames Mitchell and Hamilton. This inspection clearly illustrated the concerns expressed during the hearing by the objectors and Mr Rantino, namely that the proposed extension would sit as an out of context element in the backyard precinct, if it may be so called, that exists between the rows of dwellings with frontages to Little Page and Page Streets. Whilst not so marked from within the subject site - due to the more restricted size of the yard and hence the more upwardly focused outlook, the outlook from the Page Street properties has special qualities. This outlook is characterised by an homogenous, single storey Victorian building form with a regular pattern of roofs and chimneys. The Tribunal must admit to being surprised by this degree of homogeneity and by the extent to which it contributes to what can be described as a special heritage character.

If this precinct had included an array of two storey lofts or other intrusions, the Tribunal may well have found that the proposed addition would not be out of place. As it is I find it would represent a jarring element in what is an area of special value.

A clear outcome to be achieved by the Port Phillip Planning Scheme is the maintenance and enhancement of places of special heritage significance. I am satisfied that by approving this proposal no such outcome would be achieved. Other outcomes sought to be achieved by the Scheme include the "restoration and renovation (rather than replacement) of older dwellings to encourage their retention and to ensure that they meet current day housing standards". Whilst Mr Callander is correct in arguing that the proposed development would bring this dwelling into line with current day housing standards, I am satisfied also that such an outcome, albeit perhaps for a smaller household, could be met without the added disadvantage of an unacceptable impact on the heritage significance of this neighbourhood.

Before concluding, mention should be made of the other issues raised in the course of the hearing, namely the adequacy of the open space to be provided and the prospect of overlooking from the first floor bedroom window. I accept the evidence of Mr Beynon that the greater degree of integration between the proposed living room and rear courtyard more than compensates for the reduction in the gross area of open space provided in the rear yard of this dwelling. I find, given the size and location of the site and having regard to the Good Design Guide's objectives for open space to be provided to meet the "reasonable recreation needs of residents" that the provision to be made is both adequate and suitably located.

Mr Ntentis in particular expressed concern at the "perception" of being overlooked by the first floor bedroom windows. This was not withstanding that these windows were to be screened and located in excess of 9m from his rear yard. Whilst the Tribunal accepts that this is a neighbourhood where no overlooking currently takes place I am satisfied that a bedroom with screening would not have been an unreasonable imposition.