procedural. Interim orders: Tribunal made in-principle findings refusing any increase to the south-western external wall above 6.1 metres shown on the July 2008 endorsed plans; in principle accepted a modest...
Key principles
The Tribunal will not permit any increase to the height of the south-western external wall of Unit 2 sited on or within 2 metres of the common boundary beyond 6.1 metres as shown...
A modest increase in the overall roof top height (about 240 mm above the 9 metres shown in the July 2008 plans) to accommodate revised gutter treatment is an acceptable planning...
Where a permit holder seeks changes by Section 87A/secondary consent processes, the Tribunal will require clarity in the plans and that any changes beyond what was previously...
Issues before the court
Whether the Tribunal should allow an increase in the height of the south-western external wall of Unit 2 on or within 2 metres of the common...
Whether a modest increase in the overall rooftop height (to about 9.4 metres) to accommodate guttering and roof treatment is acceptable.
Whether multiple rounds of minor amendments constitute unacceptable 'piece-meal development' undermining proper assessment of cumulative impacts.
Plain English Summary
A permit applicant sought to amend earlier endorsed three-storey dwelling plans to increase overall height to 9.4m. The Tribunal inspected the site and reviewed plans. It found the south-western external wall of Unit 2 that abuts or sits within 2m of the common boundary with the neighbours must not be increased beyond the 6.1m shown on the July 2008 endorsed plans because that would worsen visual bulk and overshadowing of the neighbours' rear courtyard. However, the Tribunal accepted in principle a small rooftop increase of about 240mm above the 9m endorsed height to adjust guttering, finding this would be largely recessive and have minimal amenity or heritage impact. The Tribunal ordered updated plans within 45 days reflecting these findings and set a short timetable for other parties to comment, warning that failure to lodge updated plans would result in refusal.
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Deep Dive
1,938 words · generated 02/09/2026
Cited legislation
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What happened
This VCAT proceeding concerned a Section 87A application to amend previously endorsed plans for a two-dwelling, three-storey development at 246 Stokes Street, Port Melbourne. Council originally granted Permit No. 749/2007 in March 2008 allowing the three-storey building with an overall 9 metre height (Reasons [1]-[4]). Condition 4 of that permit required that “The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority”, and Council subsequently exercised that secondary-consent power to endorse minor amendments dated 14 July 2008 (the “July 2008 endorsed plans”) which retained the 9 metre overall height (Reasons [5]-[6]; Other background information [2]).
The applicant later sought further changes to floor levels and roof/gutter treatment which, as lodged by Section 87A application, would result in revised application plans permitting an overall building height of about 9.4 metres (Reasons [3]-[4]). The key tangible dispute was whether the south-western (SW) external wall of Unit 2, a portion of which sits on or within 2 metres of the common boundary with the adjacent property at 244 Stokes Street occupied by the Tolmers, could be raised above the 6.1 metres shown in the July 2008 plans, and separately whether a modest rooftop height increase to accommodate new guttering was acceptable (Reasons [6] and Findings sections).
VCAT heard submissions on 20 May 2009, undertook an accompanied inspection including the Tolmer rear courtyard, and on 22 June 2009 the Tribunal (Member Philip Martin) issued interim orders and written reasons. The Tribunal’s in-principle findings were: (a) it was not convinced any increase to the SW external wall height on or within 2 metres of the common boundary should be allowed beyond the 6.1 metres in the July 2008 plans; and (b) subject to that constraint, it was satisfied a minor rooftop increase (about 240 mm above the 9 metres) to accommodate revised gutter treatment would be a reasonable planning outcome (Interim Order 1; Reasons [7]-[9]). The Tribunal ordered the applicant to lodge updated plans within 45 days reflecting these findings, circulate them to parties, and allowed 10 days for other parties to make final written comments (Interim Order items 2-5). Failure to lodge updated plans would result in refusal and finalisation of the matter (Interim Order 6).
Why the court decided this way
The Tribunal applied a balance-of-amenity exercise grounded in Clause 55 (ResCode) objectives and standards, with specific reference to Standard B7 (building height, preferred maximum 9 metres), Standard B18 (walls on boundaries), and Standard B17 (setbacks) (Other background information [4]). Several concrete factual and planning reasons drove the Tribunal’s outcome:
Baseline importance of Council-endorsed plans: The Tribunal treated the July 2008 endorsed plans as the relevant baseline for what had already been accepted by the Responsible Authority (Findings [9]). That makes the 6.1 metres for the SW external wall a practical starting point for assessing any further change.
Visual bulk and amenity of private open space: The Tolmer rear courtyard was the only private outside space for the Tolmers, making it a sensitive receptor for any increased bulk or overshadowing from changes to the SW external wall. The Tribunal found increased wall height in close proximity would exacerbate visual bulk and overshadowing affecting that space (Findings [4], [8], [9]).
ResCode height preference: The Tribunal regarded departures above 9 metres as discouraged by Standard B7; raising the SW wall to contribute to an overall height above 9m therefore required strong justification which, on the materials and site inspection, the Tribunal did not find (Findings [9]).
Limited impact of rooftop changes: By contrast the rooftop/gutter adjustment was quantified (the Tribunal recorded a consensus that about 240 mm of the extra 400 mm to 9.4 m could be attributed to rooftop changes) and observed to be largely recessive because the top level is stepped in from the common boundary and would be largely screened by middle-level elements when viewed from the Tolmer courtyard. The streetscape’s diversity and the corner “book end” location supported the rooftop increase being acceptable (Tribunal's findings re roof top [2]-[4]).
Piece-meal amendment concerns: The Tribunal was mindful of cumulative impact and the difficulties of successive minor amendments. It relied on the reasoning in Rowcliffe v Stonnington City Council for the proposition that piecemeal proposals impede assessment of global impacts, and observed unease that this was effectively a “third bite” on height issues for this design (Comments regarding 'piece meal development' [2]-[3]; quoted passage).
Overall, the Tribunal allowed the modest rooftop change that it found would be visually recessive and not materially worsen amenity, but it refused in principle any increase to the SW external wall above the council-endorsed 6.1m because that would materially worsen visual bulk and overshadowing of the Tolmers’ private open space and lacked strong justification in the face of ResCode preferences (Reasons [7]-[9]; Findings [9]).
Before and after state of the law
This decision is an application of established Permit/ResCode assessment principles rather than a judgment that reshapes legal doctrine. The Tribunal relied on:
Clause 55 (ResCode) standards (B7, B17, B18) and the Clause 55.03-2 building height objective as the statutory planning assessment framework (Other background information [4]; Tribunal's findings re roof top [3]).
The established administrative approach that endorsed plans and earlier approvals are a relevant benchmark for assessing subsequent amendment proposals; the Tribunal treated the July 2008 endorsed plans as the baseline for acceptable amenity impacts (Findings [9]).
The principle that piecemeal amendments can be problematic because cumulative effects may be obscured; the Tribunal cited Rowcliffe v Stonnington City Council for that concern (Comments regarding 'piece meal development' [3]).
After the decision, practitioners should note the Tribunal’s practical approach: a modest, justified rooftop adjustment may be acceptable even where it slightly exceeds a preferred ResCode guideline, but increases to walls bordering sensitive private open space, particularly where council-endorsed plans already set a limit, will be scrutinised and are less likely to be allowed without strong justification.
Key passages with plain-English translation
“By contrast, my conclusion is that it would be an unreasonable amenity outcome for the Tolmer property if the south-western external wall ... is raised any higher than the 6.1 metres permitted by the July 2008 endorsed plans.” (Reasons [8])
Plain-English: The Tribunal will not allow the developer to raise the boundary wall higher than what was already approved in the July 2008 plans, because that would unfairly harm the neighbour’s outdoor space.
“My overall finding has been that I am satisfied that the proposed increase in height of the roof treatment at the top of the building is fairly innocuous and would a fair and reasonable planning outcome.” (Reasons [7])
Plain-English: A small extra bit of roof height (to deal with guttering) is acceptable and unlikely to harm neighbours or the street’s character.
“it goes against the Applicant that increasing the height of the SW external wall will contribute to an overall new building height above 9 metres, which is discouraged by Standard B7 in Clause 55 (ResCode);” (Findings [9])
Plain-English: Raising that wall would help push the building over the preferred 9 metre limit and that runs counter to what the ResCode says should generally be done.
“about 240 mm of this extra height compared to the July 2008 endorsed plans can be attributed to the roof top changes, which I understand deal with the need for a revised gutter treatment.” (Tribunal's findings re roof top [2])
Plain-English: Of the roughly 400 mm increase being sought, around 240 mm is simply to allow for a different gutter/roof setup.
Plain-English: If applicants keep making small changes one at a time, it becomes impossible to see the full cumulative impact of the development; that advantages the applicant and disadvantages neighbours and assessors.
What fact patterns trigger this precedent
This decision is most pertinent where:
A permit had previously been issued and then amended by endorsed plans, and a further Section 87A or other amendment is sought that would increase building height or wall heights near a shared boundary.
The contested change affects walls on or within 2 metres of a common boundary and directly faces a neighbour’s sole private open space (sensitive receptor).
The proposed change would slightly exceed a ResCode preferred maximum height (9 metres) and the applicant argues the increase is minor or technical (e.g., guttering or floor-level re-jigging).
There have been multiple rounds of minor amendments such that concerns about piecemeal development and cumulative impact arise.
In those fact patterns, the Tribunal’s approach in this decision shows it will: (a) treat previously endorsed plans as a meaningful baseline; (b) be sceptical of changes that increase visual bulk or overshadowing of a neighbour’s private open space; and (c) accept small rooftop adjustments where they are recessive, justified and quantifiable.
How later courts have treated it
This judgment itself cites Rowcliffe v Stonnington City Council on the piecemeal development point (Comments regarding 'piece meal development' [3]). The present decision applies established VCAT practice in using Clause 55 standards and practical site inspections to resolve amenity disputes. It serves as a granular example of VCAT’s appetite to allow minor, well-justified rooftop adjustments while resisting increases in close boundary walls that materially worsen neighbours’ private open space. Because this is a VCAT member decision focused on a particular permit amendment, it functions as persuasive administrative guidance rather than a binding higher-court precedent.
Still-open questions
Quantification approach: The Tribunal relied on a hearing consensus and its notes to allocate the extra height between floor-level adjustments (about 160 mm) and rooftop changes (about 240 mm) (Findings [3]; Tribunal's findings re roof top [2]). Where applicants and objectors dispute such allocations, the decision illustrates the value of clear written comparative elevations and cross-sections; unresolved disputes about how to measure components of height remain a source of contention.
Treatment of Council-endorsed plans as baseline: The Tribunal treated the July 2008 plans as an important indicator. The broader question is how much weight should be given to administrative secondary-consents previously granted by a Responsible Authority, especially where the permit holder later seeks further technical corrections. This decision leans toward treating them as significant, but the precise legal status will vary with the facts and reasons for earlier endorsement.
Piece-meal development remedy: The Tribunal expressed concern about piecemeal amendments but did not prescribe a procedural remedy beyond being less receptive to further incremental changes. Whether VCAT or councils should more proactively require comprehensive redesigns instead of successive tweaks remains open.
Heritage overlay interactions: The Tribunal found modest rooftop changes would not have significant heritage impacts given streetscape diversity (Tribunal's findings re roof top [3]). Cases with different heritage sensitivities could lead to a stricter approach; the decision does not define firm thresholds.
Final determination: This decision records interim in-principle findings and sets a process for updated plans and final orders. The final, operative orders would crystallise the detailed permit amendment; practitioners should treat the reasoning as authoritative on the in-principle questions, but note the matter remained subject to finalisation following the directions (Interim Order items 2-5).
This analysis is a factual and doctrinal extraction from the AureCon Pty Ltd v Port Phillip CC [2009] VCAT 1239 reasons and interim orders. It summarises and explains what the Tribunal said and why, grounded in the judgment text. It is legal information, not legal advice. I can make mistakes; before you rely on this, act on it, file anything, or use any draft, get a qualified Australian lawyer to check it.
Judgment (12 paragraphs)
[1]
This matter involves proposed alterations to two dwellings for which planning permission has already been granted, allowing a new three storey building (incorporating the two dwellings) on the roughly triangular shaped land at 246 Stokes Street in Port Melbourne.
By way of background, the original planning permission was granted for the three storey residential building in March 2008 - see Permit No. 749/2007, which I shall refer to as the March 2008 permit. At ground level, the new Unit 2 will have a study, two bedrooms, bathroom and a hallway leading to stairs up to the middle level. The new Unit 1 at ground level will have a garage, two bedrooms and bathroom, and an entrance area leading to stairs up to the top level. Both new units have their main pedestrian entrance off Stokes Street. At the middle level, both new units have a generous living, kitchen and meals area, with associated balconies. At the top level, each new unit has a master bedroom and walk-in-robe, with the Unit 1 also having a ensuite.
Part of the south-western external wall of the new Unit 2 extends up to the common boundary with the adjoining 244 Stokes Street two storey residential dwelling occupied by the objectors, Miranda and Jenny Tolmer.
The overall height of the new building as shown in both the March and the July 2008 endorsed plans is 9 metres, complying with the preferred maximum height under Rescode.
Several months later, the Permit Holder successfully applied for various minor changes to the endorsed plans on a "secondary consent" basis pursuant to Condition 4 of the March 2008 Permit, which provides that:
[2]
"The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority".
[3]
This in practice allows the Council to make minor amendments to the permit, without there necessarily being any involvement of the neighbours and/or the Tribunal.
This resulted in fresh endorsed plans dated 14 July 2008 ie the "July 2008 plans". These plans made various minor changes to the design, including the mix of floor levels, gaps between floor levels etc. The overall height of the new building permitted by the July 2008 endorsed plans remains nine metres.
The Applicant has apparently since July 2008 become aware that further changes are needed to the floor levels and/or gaps between the levels, to accommodate the relevant building permit requirements. There is also an issue with needing additional height for the proper operation of the parapet/box gutters on the roof of the new building.
Hence the Applicant has now made a Section 87A application, which (if granted) would result in a revised Condition 1(a) the incorporates the new application plans allowing an overall new building height of 9.4 metres. This has been opposed by both Council and the objectors Miranda/Jenny Tolmer.
The hearing of this matter came before me on 20 May 2009, at which time I heard submissions from all of the persons listed above. I then arranged for an accompanied inspection after the hearing, which involved both walking around the appeal and local area, but also inspecting the inside ground level and ground level courtyard of the adjacent Tolmer residence.
In summary, I see the key issues here to be as follows:
to what extent the application plans would lead to an increase in the wall height of the south-western external wall (facing towards the Tolmer property) that is sited on or within 2 metres of the common boundary, beyond the 6.1 metres permitted by the July 2008 endorsed plans, and whether that increase would be an acceptable planning outcome;
to what extent the most recent proposed plans would increase the height of the building in terms of the changes to the roof treatment at the top of the building, and whether that increase is an acceptable planning outcome; and
some associated issues of "piece-meal development".
My overall finding has been that I am satisfied that the proposed increase in height of the roof treatment at the top of the building is fairly innocuous and would a fair and reasonable planning outcome. In my view the proposed minor increased to the height of the roof treatment to accommodate the revised gutter treatment (I understand this change to add an extra 240 mm or so of height above the 9 metres permitted by the July 2008 permit) will not have any significant amenity impacts on the Tolmer property, and is consistent with the quite diverse built form already existing in this streetscape.
[4]
I have already set out the basic nature of this proceeding above.
In terms of the nature of the subject land and local area, we know that the site is roughly triangular shaped and is of a relatively modest size at 257 square metres. The site is located in the south-western corner of Stokes Street and Farrell Street opposite the Crichton Reserve. To the south-west of the subject land is row of other residential dwellings, including the double storey contemporary dwelling occupied by Miranda and Jenny Tolmer at 244 Stokes Street. It is clear to me from my site inspection that this is an interesting and fairly robust local streetscape, which includes a number of prominent buildings extending up to 3-4 storeys in the local area.
I have already indicated that on 27 March 2008 Council issued a planning permit allowing the "... demolition of existing dwelling and construction of two, three storey dwellings including two on-site car parking spaces ...". See above re the main features of the two new dwellings. In terms of the planning framework, we know that the subject land is zoned Residential 1, and is also subject to a Heritage Overlay. The main State planning policies of relevance are Clauses 12, 15, 16 and 19.03. The main local and MSS provisions referred to were Clauses 21.04, 21.05-1, 21.05-3, 21.05-4, 21.05-5, 22.01, 22.04 and 22.09.
With respect to Rescode, the most applicable Standard is Standard B18 dealing with walls on boundaries, together with Standard B17 dealing with site and rear setbacks. Also see Standard B7 which provides that new dwellings should have a maximum height of nine metres, noting that:
this is a discretionary not a mandatory provision; and
there is no alternative maximum height specified in the Schedule to the Residential 1 zone in this municipality.
I should indicate that apart from being provided with the application plans at the hearing, the Applicant also usefully provided me with updated shadow plans which indicate the modest net additional overshadowing to the rear courtyard at 244 Stokes Street that would result from the extra 400mm of height proposed here.
[5]
Findings of Tribunal in relation to south-western external wall located on or within 2 metres of the common boundary with the 244 Stokes Street property
[6]
In terms of the interface with the neighbouring building at 244 Stokes Street, I see the critical issue here as being to what extent the proposed new plans would increase the height of the south-western external wall located on or within 2 metres of the common boundary with the Tolmer property (which I shall refer to as the "SW external wall") beyond the 6.1 metres allowed by the July 2008 endorsed plans.
My task in assessing this issue was not made any easier by the fact that none of the written submissions properly set out the increase in height of the new building as shown in the application plans, compared to the March or July 2008 plans.
Whilst the key design aspect here seems the height of the SW external wall of the new building, there was some discussion at the hearing of the relevant change to the floor height. In this regard, my hand notes from the hearing indicate a concensus was reached that the proposed changes to the design of the bottom and middle levels of the building (including the cavity above the ceiling of the middle level) would contribute about 160 mm to the increase in height of the revised building above the 9 metres allowed by the July 2008 endorsed plans.
My site inspection confirmed that I see the main practical issue here as being the potential amenity impacts on the use of the Tolmer rear courtyard if there is an increase in the height of the SW external wall. I am thinking here particularly of any increased visual bulk and/or overshadowing by these SW external walls that will have closest proximity to the Tolmer rear courtyard.
The application plans are not clear cut in terms of the height of the different components of the SW external wall. What seems clearer is that the height of that section of the SW external wall located right on the common boundary will be 6.25 metres. Compare this to the July 2008 plans which show the SW external wall on or within 2 metres of the common boundary as being 6.1 metres high. What is less clear in reviewing the relevant cross section and elevation plans is whether the section of the SW external wall abutting the middle level meals area of the new Unit 2 does or does not include the final (ie top) 350 mm which brings the new wall on the common boundary right up to 6.25 metres.
However even if the precise position with the height of different sections of the SW external wall in the application plans is not totally clear, I see the fundamental issue as being whether or not there is a good planning case that the Applicant should be allowed to raise the height of the SW external wall any higher than the height permitted by the July 2008 endorsed plans, being 6.1 metres.
[7]
Tribunal's findings with respect to increased height of roof top area of building
[8]
As mentioned above, again my task is not assisted here by the fact that none of the written submissions properly addressed the question of precisely what additional height would result from the modifications to the roof top treatment, compared to the earlier March and July 2008 endorsed plans.
However my notes indicate that there was similarly a consensus during the hearing that to the extent that the application plans bring this up to 9.4 metres, about 240 mm of this extra height compared to the July 2008 endorsed plans can be attributed to the roof top changes, which I understand deal with the need for a revised gutter treatment.
My site inspection confirmed that the site can readily accommodate some modest increased roof top height along the lines of an extra 240 mm without any significant neighbourhood character impacts. That is, there is already sufficient diversity of height and styles of buildings in the immediate area that I think the extra height would be barely noticeable when viewed from the public realm. The fact that the new building will be on a street corner reinforces the case that having a fairly robust building on the corner can be a good design outcome, following the "book end" line of thinking. Whilst it is true these roof top changes will push the building above the nine metre overall height limit preferred by ResCode, I consider this reasonable in the circumstances and see the Clause 55.03-2 building height objective as still being met.
In relation to the interface with the 244 Stokes Street dwelling, I see the critical issue here as being that the walls and roof of the top level are stepped in further from the common boundary with the Tolmer property, compared to the roof line and SW external walls of the middle level. On this basis, my expectation is that:
any additional overshadowing from the revised roof top area of the top level should largely if not fully fall upon the lower roof area of the new building; and
there should be minimal if any visual bulk issues created by the revised roof top treatment, as I agree with Mr Neofitou that chances are a person standing in the Tolmer rear courtyard will have a viewline across the new building where the middle level walls and roof of the building largely or fully screens views that might otherwise exist of the roof top area. Similarly the stepping in of the top level will make the extra building height more recessive when viewed from the public realm.
[9]
I understand that the original permit issued in March 2008 resulted from a mediated settlement between the parties. We also know there has already been one round of minor modifications which led to the July 2008 plans.
I am conscious that the Tribunal has previously expressed concerns about "piece-meal development" and the uncertainty/problems which it can create.
I rely here on a relevant extract from the decision of Rowcliffe v Stonnington City Council[2005] VCAT 1535. In discussing the problems created by piece-meal development, the Tribunal and Rowcliffe stated as follows:
[10]
... one of the other real difficulties associated with piecemeal proposals is our inability to assess the global affect of impacts or change. The Applicant gains an advantage in that the level of change to built form, loss of existing vegetation, or impact on services and infrastructure is incrementally diminished. The Tribunal, faced with a single component of a piecemeal application, is required to assess only the effect of that portion of the proposal rather than the real impact of the whole development.
[11]
Whilst it has been a secondary rather than a primary feature of my considerations of this matter, I consider that it is an unfortunate feature of this fresh proceeding that this is effectively the "third bite of the cherry" for the Applicant in terms of the height issues arising from the building. I have some sympathy for the comment by the objectors that they are struggling to understand why these issues were not resolved first time around, given that the same architect has been involved in all three sets of plans, and noting the additional inconvenience/stress associated with this fresh matter.
[12]
For the reasons set out above, I have made the interim findings set out above, and now wait the response of the Applicant to these findings.
Parties
Applicant/Plaintiff:
AureCon Pty Ltd
Respondent/Defendant:
Port Phillip CC [2009] VCAT 1239
Cases Cited (1)
AureCon Pty Ltd v Port Phillip CC [2009] VCAT 1239 (22 June 2009)
AI Analysis
Outcomeprocedural
Disposition:
Interim orders: Tribunal made in-principle findings refusing any increase to the south-western external wall above 6.1 metres shown on the July 2008 endorsed plans; in principle accepted a modest rooftop increase (about 240 mm above the 9 metres) for gutter treatment; ordered the applicant to lodge updated plans within 45 days reflecting the Tribunal's findings, circulate them, and permitted other parties 10 days to comment; if no updated plans lodged, application will be refused (Interim Order items 1-6; Reasons [7]-[10]).
By contrast, my conclusion is that it would be an unreasonable amenity outcome for the Tolmer property if the south-western external wall of the new Unit 2 facing the Tolmer property (located either on or within 2 metres of the common boundary) is raised any higher than the 6.1 metres permitted by the July 2008 endorsed plans. I rely here on the likely visual bulk and overshadowing impacts on the use of the Tolmer rear courtyard area if any such increase in height of this external wall was to occur. While it is more a secondary point, I also have concerns here about issues of "piece-meal development".
In terms of the next steps, the best way forward seems for me to give the Applicant the opportunity to lodge with the Tribunal and circulate updated plans which reflect my in principle findings set out above. To remove any doubt, I can indicate that I have no problem with the Applicant incorporating into the further circulated plans alternative modifications (eg lower ceiling heights of the bottom or middle levels or a minor degree of excavation) so as to still enable the desired alterations to the floor levels and/or gaps between the floors to be made to the lower two levels without breaching the in-principle findings which I have set out above. Alternatively, the design of the new building could be essentially "left alone" other than the changes to the roof treatment of the building which I have indicated that I support. I will leave this up to the Applicant.
I have then allowed for the other parties to have 10 days to respond, so as to ensure that there are no drafting discrepancies/glitches which need to be further resolved. I encourage the Applicant to informally consult with the other parties regarding any updated plans - if the further correspondence indicates that there is still significant areas of dispute, then this makes it more likely that I will schedule a further hearing to deal with this.
On the one hand, I accept that some degree of "close living" goes hand in hand with living in this type of inner city location.
However I see the height of the SW external wall as being central to this proceeding, in that this height plays a paramount role in the visual bulk and overshadowing impacts of the new Unit 2 when viewed from the Tolmer rear courtyard.
Ultimately my finding is that I am unconvinced that there should be any increase to the 6.1 metre height of the SW external wall as shown in the July 2008 plans. My view is that:
it goes against the Applicant that increasing the height of the SW external wall will contribute to an overall new building height above 9 metres, which is discouraged by Standard B7 in Clause 55 (ResCode);
as the Tolmer rear courtyard area is the only outside private open space area for the Tolmer property, it is a more sensitive area and there needs to be a reasonable balance between the internal amenity afforded by the new building vis-à-vis the amenity available for the Tolmers in continuing to use their rear outside courtyard;
the height of the SW external wall as shown in the July 2008 plans already represents a judgment by Council as to what constitutes an acceptable level of amenity impact of this wall on the Tolmer property, noting that Council is now opposing any increase in that height;
any increase in the height of the SW external wall beyond that permitted by the July 2008 endorsed plans will exacerbate the existing visual bulk impacts of the new Dwelling 2 when viewed from the Tolmer rear courtyard;
for the reasons set out in the first bullet point above, I think good reasons need to be put forward to justify any increase in the overshadowing of the Tolmer rear courtyard caused by the Application plans. Whilst acknowledging that the fresh shadow diagrams provided by the Applicant indicate only a modest level of net additional overshadowing will result, I am not convinced that there are any such "strong reasons" here for this net increase.
I am also conscious in making my findings here that the Applicant conceded during the hearing that (whilst it be more expensive and/or inconvenient) there are some other potential design solutions that would allow for some re-jigging of the floor levels, such as lower ceiling heights in the bottom or middle level, some degree of excavation, etc. Certainly this is not an "all or nothing" situation from a design point of view, in terms of the different options that exist to achieve the re-jigging of the building which the Applicant seeks whilst maintaining the status quo with the height of the SW external wall as per the July 2008 endorsed plans.
Whilst the site is affected by a Heritage Overlay, for similar reasons, I do see a modest increase in the overall height of the building as having any significant negative heritage impacts, given the real diversity of the existing streetscape, including considerable contemporary infill that has already occurred.