Planning and Environment; Practice and Procedure; Expert evidence; Heritage experts on both sides; Reliance on expert report without producing author for cross examination or testing; weight to be given untested evidence; Mischief.

Angelore Holdings PL v Stonnington CC [2006] VCAT 1206

The decision of the responsible authority is set aside. The responsible authority is directed to amend permit No. 1169/05 issued by the responsible authority on 13 December 2005 as follows:

1 A new condition 1 must be inserted into the permit to read:

Before the development starts, three copies of a plan drawn to scale with dimensions must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be generally in accordance with the plan by McIntyre Partnership Pty Ltd, Sheet No. TP.02 Revision A dated 13 January 2006 but modified to show:

(i)

a proposed crossover at a minimum width of 2.8 metres with 1.3 metre splays;

(ii)

any necessary street drainage modifications;

(iii)

the installation of remote controlled electronically operated gates.

2 The previous condition 1 must be renumbered to condition no. 2.

3 A new condition 3 must be inserted into the permit to read:

The remote controlled electronically operated gates must be kept closed when not in use.

4 A new condition 4 must be inserted into the permit to read:

The southernmost street tree to be removed must be replaced to the satisfaction of the responsible authority with all costs (approximately $500.00) to be borne by the property owner.

5 All remaining permit conditions must be renumbered accordingly.

Mr Ian d'Oliveyra, town planning consultant of Network Planing Consultants. Mr d'Oliveyra called Mr Allan Willingham, Architectural Historian, as an expert witness.

Ms Julie Bethune, town planning consultant of Julie Bethune Planning Services.

1 On 13 December 2005 council issued a planning permit for alterations and additions to a dwelling at 25 Highbury Road, Prahran in Heritage Overlay No. 178.

2 That permit issued for a very polite architectural renovation to a 'C' grade Victorian double-fronted timber dwelling. Those renovations were crafted by Peter McIntyre, Architect, and supported by Allan Willingham, Architectural Historian.

3 The site enjoys right of way access to the rear, if a vehicle is able to manoeuvre around two right angled corners. The site also enjoys a roller door access to the rear laneway, constructed by a former owner. A new owner purchased the property and intends to restore it more faithfully to its 19th century built form. The new owner has discovered that the rear access is inaccessible from a practical perspective, aside altogether from the issue of safety.

4 The new owner uses the relatively new section 72 Planning and Environment Act 1987 procedure to amend the current permit's endorsed plans which show no vehicular access to the front of the site off Highbury Grove.

5 As is Council's practice, this amendment was referred internally to its Traffic and Parking, Parks, Building and Heritage Departments.

6 The Traffic and Parking and Building Departments suggested permit conditions while the Parks Department expressed a preference for retention of a tree within the proposed crossover, but admitted that 'its retention was considered to be secondary to the heritage matters' and would accept its removal and replacement at the property owners' cost.

7 Council's Heritage Advisor, Mr John Statham of Bryce Rayworth Pty Ltd, responded with:

... around half of the dwellings in the northern sections of Highbury Grove do not have crossovers or driveways and this contributes substantially to its early character and significance. City of Stonnington Heritage Guidelines recommend against new crossovers in areas such as this. Vehicle access to the site is available to the site via the rear ROW and there appears to be no real case for a discretionary application of the Guidelines. This proposal can not be supported.

8 Council needed more support for a refusal on heritage grounds, and sought enlargement of Mr Statham's comments. Council subsequently received a seven page, highly detailed report from Mr Statham addressing the issue.

9 Mr Statham concluded:

Adequate car parking facilities, which comply with Council's heritage policies, currently exist on the subject site. ... ... ... Given the very limited number of crossovers/hardstanding areas in the northern section of Highbury Grove, coupled with the presence of a viable, traditional, alternative point of entry to the subject site, a reasonably strict application of Council's heritage policy would appear warranted in this instance. (Tribunal emphasis).

10 Council appeared at the hearing armed with Mr Statham's detailed report as a de facto expert witness report. I will say more about this later.

11 The right of way proceeds from Airlie Avenue through to Highbury Grove. Two ninety degree dogleg turns are involved in utilising this thoroughfare. The first dogleg occurs at a splay corner to the rear of 2 Airlie Avenue and the second dogleg occurs at the end of the right of way when trying to re-enter Highbury Grove, at the rear corner of No. 37 Highbury Grove.

12 The applicant has gone to remarkable lengths and expense to demonstrate that the 'viable, traditional, alternative point of entry to the subject site', to wit, the rear right of way is in fact inaccessible in practice. The architect, Peter McIntyre, of McIntyre Partnership Pty Ltd has surveyed the rear right of way which shows that although it is 3.1 metres wide in theory, it narrows down to 2.8 metres immediately outside the subject property, as a result of an electricity pole as well as a result of encroaching fencelines along the right of way.

13 The same architectural firm has also drawn swept path templates to prove that:

i

entry around the first dogleg of the right of way is achievable because of a rear splay corner to No. 2 Airlie Avenue, but

ii

exit around the second dogleg from the right of way towards Highbury Grove is impossible in an 85th percentile vehicle. The only type of car that could possibly manage such a manoeuvre would be the latest, very expensive, 'smart car'.

14 Further, the owners' consultants have surveyed the properties in the 'northern' section of Highbury Grove utilising this same right of way to see how they actually gain access. They discovered that a block of flats at 6-8 Airlie Avenue provides an open driveway between Airlie Avenue through to the subject right of way, which, together with its open car park to the rear, allows sufficient swept-path turning room for properties at Nos. 9-23 Highbury Grove inclusive to illegally trespass through this block of flats to enter and exit this right of way.

15 I am persuaded by the evidence supplied by the architect that the rear right of way is from a practical perspective, undesirable at best and inaccessible at worst.

16 Council has specifically incorporated a reference document 'Heritage Guidelines, City of Stonnington 2002' into its planning scheme. It is referenced under its local policy clause 22.04 addressing local heritage issues.

17 Pursuant to these guidelines:

Crossovers, garages & carports should be designed to avoid inappropriate impact upon heritage places

Vehicle accommodation and access should not detract from the historic character of the place. Carports and garages should preferably be located at a setback from the façade of an existing building and front gardens should not be paved for vehicle parking. Refer to illustration 3 on page 24. Wherever possible, driveways and crossovers should be kept to a single car width.

18 When one refers to illustration 3 on page 24 of these guidelines, one finds that they indicate by arrow a space within a side setback behind the main façade of the heritage building seen as desirable for the location of such a carport or garage.

19 This is precisely the position proposed by the applicant.

20 Further, no carport or garage which might otherwise detract from the heritage dwelling is proposed, just an open car space.

21 Again, no hard paving is proposed, just crushed Lilydale toppings, and the garden setting for the dwelling is also maintained in front of the dwelling.

22 The proposed car space therefore will not interrupt a view of the 19th century Victorian dwelling, complies with council's heritage guidelines and is a very polite intrusion.

23 Pursuant to clause 43.01-5 of the Stonnington Planning Scheme, I need to decide whether the proposed works will adversely affect the significance, character or appearance of the heritage place. I have already found that it will not adversely affect the significance of the heritage building since it does not block views of its façade, being in a side setback.

24 Mr Statham, council's Heritage Advisor, lauded the work done by Peter McIntyre in his restoration outlined in the permit granted by council. Mr Statham acknowledges:

... the outcome demonstrates a sympathy with the architectural values of the street and its contribution to the character of the area today is greater than might be expected from a C graded building.

The balance of the adjacent buildings is almost entirely graded B.

25 Notwithstanding Mr Statham's support of Mr McIntyre's building restoration, he is not supportive of the car space insertion and front fence modification.

The subject dwelling is located in a section of the heritage overlay area which largely retains the early character of its garden setbacks. Where vehicle accommodation has been provided retrospectively, this is generally accessed from the right of way to the rear. As noted, the more northerly section of the subject streetscape, retains a high level of intactness to its original, late Victorian, state particularly with respect to car parking provisions. Only 4 examples of parking access within front setbacks were noted during a recent inspection of the street between Nos 1 and 37 - the southern termination of the earlier streetscape. A very high proportion of the dwellings within this streetscape retain traditional points of access from rear laneways. This approach remains an option on the subject site.

26 Council worked out that the northern portion of Highbury Grove has a different character to its southern end, with the northern end exhibiting far fewer crossovers and driveways.

27 This is because the northern end was developed in the 19th century during the night cart period and before cars, and the southern end was developed in the 20th century during the Edwardian period when cars and sewerage were developed.

28 The owners' expert witness, Mr Allan Willingham, Architectural Historian, criticised Mr Statham's assessment, explaining that HO178 does not deal with a northern end and a southern end to Highbury Grove, but deals with the Airlie Avenue Overlay Precinct in its totality wherein he says the proposed insertion will be barely perceptible.

29 Given the absence of driveways to each dwelling, cars dominate Highbury Grove anyway. So visibility of cars in this heritage precinct is not an issue. They form part and parcel of the precinct in any event.

30 Mr Willingham supported the proposal on the basis that:

i

it was not placing a car space in front of the heritage building but in a gap within a side setback between the dwelling and the boundary fence;

ii

it would be screened by an automatic electronically operated gate which continued the appearance of the rest of the timber picket fence;

iii

it maintained a garden in front of the heritage dwelling;

iv

it was a single crossover and driveway;

v

a soft crushed rock pavement was proposed instead of a modern hard paving.

31 Mr Willingham has persuaded me that this minor intrusion of crossover, driveway and car space will be barely perceptible in an appreciation of the heritage building and of the heritage place.

32 Council was concerned that this would create a precedent in Highbury Grove. Mr d'Oliveyra has analysed that the subject dwelling is the only double fronted dwelling with room for a three metre setback between its façade and side boundary which can hold such a car space. There is no other property in Highbury Grove that has an ability to accommodate a car space in its side setback as No. 25 can accommodate.

33 Mr d'Oliveyra objected to council's reliance on material from an expert heritage advisor and consultant who was not brought to the Tribunal to have his evidence tested. Rather, Mr Statham's report was used as a 'de facto' expert report without being exchanged in accordance with the Practice Note.

34 The Tribunal has noted in the past that such material is given similar weight to an untested submission, but is nevertheless accepted by the Tribunal rather than barred.

35 Mr d'Oliveyra continued to object to council, having sought and obtained a very detailed seven page expert opinion from its heritage advisor, failing to produce the author for cross-examination.

36 Mr d'Oliveyra distinguished this type of heritage response from the normal one or two paragraph response given when council refers an application internally to its departments.

37 Mr d'Oliveyra submitted it would not have cost the council much more to have produced Mr Statham. He was concerned about the effect the report would elicit without being subject to stringent testing by cross-examination.

38 Given the detail and length of this report it is a matter of concern also to the Tribunal that the author was not produced for cross-examination. This raises more questions than it answers and makes me ask 'what was Mr Statham or council worried about?'

39 It also appears to me to be a mischievous use of the council's powers.

40 Decision making in the planning system involves balancing a number of competing factors and integrating relevant environmental, social and economic factors in the interests of net community benefit and sustainable development[1]. This means reaching a decision that is not purist in its application of one policy or the other, but weighs and balances a number of competing policies and considerations.

41 Council's decision in this case appears to have been predicated upon a rigid application of heritage principle with no reference to council's own 2002 heritage guidelines, as well as no balancing of other considerations. This is not proper planning. Council's failure to present its own heritage expert for testing having obtained a detailed seven page report from him, is not proper behaviour and is tantamount to mischief.

[1] Stonnington Planning Scheme cl.11.02