1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the application is amended by changing the amendment application to include:
   • (a) An application to extend the time within which the development is to be completed to 7 November, 2010
2. The decision of the Responsible Authority is set aside.
3. Planning Permit No. pp03/00318 is amended and an amended permit is directed to be issued for the land at 38 Inverness Way, Balwyn North. The permit is amended as follows:
4. What the permit allows is amended to read as follows:
   • (a) Demolition of the building.
   • (b) Redevelopment of replacement building.
   • (c) Demolition and replacement of front fence
5. Conditions in the permit are amended as follows:
   • (a) Conditions 1(a) and 1(b) are deleted.
   • (b) Conditions in the permit are renumbered accordingly.
6. Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans showing the demolition of the building and the revised north elevation (2 sheets) showing the proposed north façade and front fence (plans prepared by Mills Gorman Architects dated 30 September, 2008, Drawing nos. AOO and AOOA being the plans substituted for the permit application plans by the Victorian Civil and Administrative Tribunal by Order dated 15 December, 2008.
7. The time within which the development described in Permit No pp03/00318 is to be completed is extended to 7 November 2010.

Mr P Chiappi of counsel, instructed by Blake Dawson Solicitors

Mr Chiappi called Mr B Genitsaris engineer and Mr P Lovell heritage consultant.

Mr W Chow, town planner of Zone Works Planning and Design.

Mr Chow called Mr D Beauchamp, forensic and heritage engineer.

Amendment of a permit issued by the City of Boroondara for the partial demolition of a dwelling and the construction of an extension to the dwelling. Demolition of the dwelling in accordance with the permit has been completed. It is now proposed to demolish the balance of the dwelling and to construct a new replacement dwelling.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse to amend a permit. Application under S.81(1)(a) of the Planning and Environment Act 1987 to review a decision to refuse to extend the time within which the development is to be completed

Pursuant to Clause 43.01-1 of the Boroondara Planning Scheme a permit is required to demolish or remove a building, construct a building or construct or carry out works.

Clause 21.05 Heritage Landscape and Urban Character

The site is located on the south side of Inverness Way and has a frontage of 18.28 m, a depth of 45.72 m and an area of 835 m2. A single storey brick dwelling currently occupies the site, although the rear of the dwelling and a garage has been demolished in accordance with a permit issued by the Council in 2003. The dwelling was constructed in a Spanish Mission style with a distinctive polychrome brick façade. The dwelling was graded D2 under the Camberwell Conservation Study but is now classified as a Contributory Building.

The review site is located within an established residential estate developed during the inter war years, known as the Riverside Estate. The statement of significance for HO231 states that the estate is an area of heritage significance for the following reasons[1]

• The large, detached houses built in various interwar architectural styles (particularly those constructed during the 1930s building boom in Camberwell) demonstrate a high quality of architectural design. This architectural quality is combined with the visually unifying factors of lot size, materials and uniform set backs to create a cohesive and notable interwar precinct.
• The housing types and styles physically demonstrate the appeal of Balwyn as one of Melbourne's most fashionable new suburbs of the 1930s, a status which was consolidated after 1945.
• The precinct is distinguished by the scale and complexity of its building styles, combined with its location on a slope commanding broad views of the Yarra Valley and distant mountains.
• The place contains individual aesthetically significant sites from the interwar period.
• The place is a predominantly intact interwar landscape containing concrete roads and mature gardens and street trees.

1. Mr Appos applied to the Council to amend a permit which had been granted by the Council in 2003 (and subsequently extended) which allowed the partial demolition of a dwelling and the construction of alterations and extensions to the dwelling at 38 Inverness Way, Balwyn North.
2. The amendments sought by the applicant were to allow for the demolition and reinstatement of the front fence, demolition and reinstatement of the front façade, removal of the requirement that the brickwork of the new garage is to match the existing façade brickwork or re-use the existing brickwork, and removal of the requirement that the brickwork corbelling to the new garage is to match the existing façade treatment.
3. The Council refused to amend the permit and Mr Apos has applied to the Tribunal for a review of that decision. The Council's grounds of refusal are:

The proposed amendments are contrary to the Riverside Estate and Environs Heritage Guidelines.

The proposed amendments would have a detrimental impact upon the character and significance of the heritage place

1. By Orders dated 15 December, 2008, we substituted amended plans for the application plans and amended the application to include the following:

1. Demolition of the building. 2. Redevelopment of replacement building.

1. Demolition and replacement of front fence
2. At the commencement of the first day of the hearing Mr Chow advised the Tribunal that it had recently come to his attention that the permit which Mr Apos is seeking to amend expired on 7 November, 2008. The expiry of the permit results from a condition of the permit which required completion of construction by that date.
3. Mr Chow acknowledged that the expiry of the permit had escaped the Council's attention. Mr Chiappi also advised that this was a matter which had escaped his client's attention. Consequently no application to extend the permit has been lodged with the Council.
4. We advised the parties that the hearing into the merits of the application to amend the permit ought to proceed and that we would withhold our final ruling on the application to amend the permit pending the Council's consideration of an application to extend the permit.
5. This course of action will necessitate Mr Apos making an application to extend the permit which the Council will need to consider as appropriate.
6. We issued directions that this matter be set down for a further hearing on 19 January, 2009 at which time submissions with respect to the application to extend permit pp03/00318 will be considered.

1. At the commencement of the hearing on 19 January, 2009, we were advised that the Council had on 13 January, 2009, resolved to refuse to extend the permit on the grounds that the development approved under the expired permit does not comply with the Council's new heritage policy at Clause 22.05 of the planning scheme.
2. Mr Chiappi applied to amend the application for review in this proceeding to include an application pursuant to section 81(1)(a) of the Planning and Environment Act 1987. The Council did not oppose this application and I amended the application accordingly.
3. Mr Chow made submissions to us that as a consequence of the gazettal of Amendment C66 to the Boroondara Planning Scheme on 27 November, 2008, there is now a heritage policy which is substantially different to that which existed at the time that permit pp03/00318 was issued by the Council in 2003. It was submitted that works permitted under that permit are no longer in compliance with the current policy. Mr Chow referred to and relied on the tests established by the Supreme Court in Kantor v Murrundindi Shire Council[2] with respect to the consideration of applications for the extension of time limits on planning permits. That decision sets out a useful summary of the approach to be taken by a responsible authority and in turn the Tribunal when considering a request to extend a permit. Where a request is made to extend time the responsible authority:
   • Should treat the applicant as being obliged to advance some reason or material in support of the grant of an extension.
   • May rightly consider:
     • Whether there has been a change of planning policy.
   • Whether the landowner is seeking to warehouse the permit.
   • Intervening circumstances as bearing upon grant or refusal.
   • The total elapse of time.
   • Whether the time limit originally imposed was adequate.
   • The economic burden imposed on the landowner by the permit.
   • The probability of a permit issuing should a fresh application be made.
4. It was Mr Chow's submission that there has been a change of planning policy and as a consequence there is little probability of a permit issuing for the proposal in its approved form should a fresh application be made.
5. Mr Chiappi correctly pointed out that the tests referred to in Kantor are not exhaustive and each of the tests need to be applied as appropriate and in the circumstances of each individual case. We agree with that submission. We do not think it is appropriate to extract two of the tests and rely on those to the exclusion of others.
6. In our view the consideration of the circumstances of this case can lead to only one sensible conclusion, and that is that the permit should be extended.
7. This is a case in which the expiry of the permit has resulted from a permit condition requiring the approved works to be completed by November, 2008. The permit applicant has completed the demolition of that part of the dwelling for which demolition was approved. The demolition lead to the identification of structural issues with the retained portion of the building and as a consequence the builder contracted to construct the dwelling extension indicated that he was unwilling to proceed with the works. The permit applicant was required to reach agreement with the builder regarding the interruption to the works. An application to amend the permit was submitted to the Council in February 2008. The Council refused the application in April 2008. A subsequent application to review the Council's decision came before this Tribunal on 10 December, 2008.
8. We agree with Mr Chiappi that these circumstances clearly show that the applicant has always intended to proceed with the approved works. The cessation of the construction has been unintended and has occurred for reasons which are to a large extent beyond the applicant's control.
9. In our view, the reasons advanced by the permit applicant are sufficient by themselves to support the grant of an extension. We think it is appropriate however to record our findings that the Council's justification for not granting an extension cannot be sustained.
10. Neither the planning scheme nor planning policies have changed to any significant degree subsequent to the grant of the original permit. The land remains in a Residential 1 zone and the Heritage Overlay continues to apply to the land. The permit triggers under the overlay and the decision guidelines are substantially the same now as they were in 2003. We acknowledge that the heritage policy at Clause 22.05 has been recently amended and introduces provisions relating to additions to contributory heritage places. The policy also includes a "sight line" test with which the approved works does not comply.
11. We regard the nature of the changes to the planning scheme as quite minor relative to the type of changes which may warrant a refusal to extend a permit for works which have commenced but have not been completed. The new policy is just that, a policy. It is no more than an aid intended to assist in the exercise of discretion. The amendments to the planning scheme do not introduce prohibitions. In the even that a new application was made for the dwelling extensions, the application would need to be considered in the context of all the relevant planning scheme provisions. The condition of the dwelling and the fact that the rear has been demolished in accordance with the earlier permit would also be relevant considerations. We are of the view therefore that the Council's submission that a permit would not issue for the dwelling extension should a new application be made, is not tenable.

1. Having considered the evidence and submissions and inspected the site and its surrounds in some detail, it is the tribunal's view that the main issues are:

1. Is the dwelling and front fence in such a poor state as to warrant demolition? 2. Will the demolition of the balance of the dwelling and fence affect the cultural heritage aspects of the place?

1. Is the proposed replacement building acceptable?
2. We will address each issues in turn.

Is the dwelling and front fence in such a poor state as to warrant demolition?

1. As we have detailed above, the Council issued permit pp03/00318 in 2003, authorising the demolition of the rear of the dwelling and the construction of a double storey extension. Demolition in accordance with the permit has been completed but the construction of the extension has not commenced.
2. The amendments to the permit were sought on the basis that during the course of the approved demolition the permit applicant became aware that in part, the building was suffering from severe footing and damp-proof failure. In addition, the remaining front façade was leaning away from the building and was structurally unsound, and the existing brickwork to the front façade was too fragile for salvage and reuse. The front fence was also leaning into the road reserve and was structurally unsound.
3. The applicant submitted that as a consequence of the above, the completion of the development in accordance with the 2003 permit was not feasible.
4. Expert structural engineering evidence as to the structural integrity of the dwelling and front fence were given both for the Responsible Authority and the applicant. Both witnesses agreed substantially as the extent of damage to the dwelling and in most instances to the causes of the deterioration.

5. The issue in dispute between them however is whether the damage to the building is of such severity that demolition is warranted on structural grounds.
6. In summary the main areas of damage are:
   • the cracking in the front façade and subsequent patching to the mortar and in some instances the bricks them selves.
   • failure of the damp proof course.
   • shallow footings by today's standards and unconnected downpipes.
7. It was generally agreed that the polychrome bricks and tiles to the front façade were soft and under-fired and their surfaces were deteriorating in some areas.
8. The separating of the outer-skin of brickwork at the top of the wall was commented upon at length and various potential causes and remedies put forward including partial demolition and reconstruction.
9. The lack of a connected downpipe system to the front of the dwelling was agreed to have contributed to the damage but it was agreed by both experts that this could be readily remedied and the building dried out.
10. We accept the evidence that the shallowness of the footings to the dwelling and the partial breakdown to the damp proof course to the dwelling over the last seventy years have contributed to the deterioration of the dwelling. We acknowledge that considerable effort and expense would be required in order to repair and retain the dwelling.
11. We are not able to conclude however, that demolition of the dwelling is justified on the basis that the building is structurally unsound. We are inclined to agree with Mr Beauchamp's evidence that the damage to the building is not fatal and that building and engineering solutions are available which if implemented correctly would result in the building being brought into an acceptable condition. We note that Mr Lovell who was called by the applicant to give heritage evidence, broadly agreed with Mr Beauchamp's evidence.
12. In our view, the critical issue in this matter is whether the effort and expense required to retain the building is warranted in the circumstances. A conclusion to that question inevitably revolves around an assessment of the significance of the building, of its contribution to the heritage place, and an assessment of the affect of the loss of the building on the significance of the heritage place.
13. It is to these questions that we now turn our attention.

Will the demolition of the balance of the dwelling and fence affect the cultural heritage aspects of the place?

1. The building is classified as a contributory building under the Heritage Policy at Clause 22.05 of the planning scheme[3]. With respect to such buildings, it is policy to retain 'significant' or 'contributory' heritage places and not normally allow their total demolition. It was the Council's submission that the demolition of the dwelling is not therefore supported by the policy framework of the planning scheme. The Council submitted that the building is not isolated but is included in a relatively intact heritage precinct. The removal of an entire dwelling from a street with many similar dwellings will, in the Council's submission diminish the heritage significance and appreciation of this precinct.
2. We note that the policy appropriately contains decision guidelines which must be considered as appropriate before determining an application for demolition of significant or contributory heritage places. These guidelines are:
   • The cultural heritage significance of the heritage place, and, when located in a heritage precinct, the contribution of the place to the significance of the precinct;
   • 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 a heritage place should not in itself, be a reason for permitting demolition of 'significant' or 'contributory' heritage places[4]
3. The policy also 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 a heritage place will not normally be approved until a replacement building or development is approved.
4. It is clear therefore that the policy contemplates the granting of permits for the demolition of contributory buildings and requires an assessment to be made of the significance of the heritage place and of its contribution to the significance of the precinct. It is not sufficient therefore to merely rely on a classification of a building as contributory in support of a refusal of an application to demolish that building. A more detailed assessment of the building's significance is necessary[5]
5. In undertaking the assessment required by the Council's policy we have been assisted by the evidence of Mr Lovell who presented a comprehensive report discussing the merits of the proposed demolition within the context of the Council's policy. Mr Lovell concluded that:

.....Its contribution to the area is as one of many buildings of similar origins and design. Its contribution is less than some, which are more prominent or of greater aesthetic interest, but not negligible.

As considered against the assessed significance of the area 38 Inverness Way is evidently a modest contributor. It is not 'a large detached house' which 'demonstrates a high quality of architectural design'. It is not of a type or style that demonstrates the appeal of Balwyn as a fashionable suburb. It is not of a 'particular scale or complexity', commanding broad views. It is not of 'individual aesthetic significance' and lacks a mature garden. As such it is part of the interwar buildings matrix in which houses of greater distinction and individual importance are located[6].

1. We agree with Mr Lovell's evidence.
2. We note that there are a number of unlisted dwellings in the immediate area of the subject site, especially the dwelling opposite at No 33 Inverness Way. This is a dwelling of understated 1970's construction but with its mature garden it sits comfortably in the streetscape. It is our view that the extensive street plantings, mature European style gardens and concrete street pavements in the precinct are major contributors to the significance of the precinct. This is recognised in the statement of significance. The demolition of the dwelling in question will have no adverse impact on these aspects of the estate's heritage significance.
3. With regard to the demolition of the front fence to the property, we consider that it makes a limited contribution to the streetscape which does not merit its retention. Together with the damaged condition of the fence and its proposed replacement with a similar low masonry wall of rendered finish, we are satisfied that there will be no undue detriment to the locality or the precinct generally, if the fence is removed.

1. The Council's policy for new buildings is to:
   • Take account of the statement of significance for the heritage precinct when considering designs for new buildings or additions/alterations to non-contributory places.
   • Ensure proposals are respectful of the existing scale, massing, form and siting of 'significant' or 'contributory' places in the heritage precinct, as these places are viewed from the street.
   • Ensure proposals are respectful of the context of adjacent 'significant' or 'contributory' places, the immediate streetscape and the heritage precinct as a whole.
   • Encourage good quality contemporary design and discourage the replication of historic forms and detailing[7].
2. Guidelines are included in the policy with respect to siting, façade height and setbacks, building height and form, roof form and window and door proportions, materials, surface finishes and details.
3. The new façade of the replacement building is of a similar scale and height to that of the existing dwelling, and the front setback is identical. A tiled pitched roof is proposed. Mr Lovell described the design approach as one which seeks to blend with the neighbouring dwellings rather than adopting a more overtly contemporary response. While the building will be seen as being clearly contemporary, its design nevertheless draws directly from the character of the surrounding dwellings.
4. We are satisfied that the replacement building responds appropriately to the outcomes sought to be achieved by the Council's policy.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and an amended permit be granted.

[1] Clause 22.05-5 Boroondara Planning Scheme.

[2] Ashley J in Kantor v. Murrindindi SC, a Supreme Court decision of 1997 reported at 18 AATR 285.

[3] Clause 22.05-6 defines Contributory heritage places as C, D and E graded places in the Camberwell Study and the Hawthorn Study and C graded places in the Kew Study.

'Contributory' heritage places are places that contribute to the cultural heritage significance

of a precinct. They are not considered to be individually important places of State,

municipal or local cultural heritage significance, however when combined with other

'significant' and/or 'contributory' heritage places, they play an integral role in

demonstrating the cultural heritage significance of a precinct.

[5] The approach adopted by the Council's policy is consistent with the permit requirements and Decision Guidelines of the Heritage Overlay.

[6] Evidence of Mr P Lovell, Lovell Chen Architects and Heritage Consultants, November 2008.