Dr Robyn Clinch, town planner and officer of the City of Port Phillip, appeared for the Responsible Authority.

Various plans, photographs and documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under section 77 of the Planning and Environment Act 1987 for a review of the decision of the Responsible Authority to refuse to grant a permit

Partial demolition, alterations and extensions to a building subject to a Heritage Overlay and on a site having an area of less than 300 square metres.

Lots 1, 2, 3 and 4 on Title Plan 379543F being the land in Certificate of Title Volume 03587 Folio 382.

A rectangle of land having a frontage of 5.66 metres to the east side of Langridge Street, a depth of approximately 32.21 metres and a n area of approximately 183 square metres.

Ganly v Port Phillip CC [2003] VCAT 1722

Red Star Beaumaris Pty Ltd v Bayside CC [2015] VCAT 305

Li v Whitehorse CC (No.1) [2005] VCAT 1274

Lamaro v Hume CC [2013] VCAT 957

1. This case concerns a proposal for the partial demolition and extension, including a first floor extension, to a single storey, single fronted Victorian cottage.[1] The review site, and surrounding areas, are subject to a Heritage Overlay.
2. The applicants were required to give notice of the application and objections were received from persons having interests in neighbouring properties. However, those objections have since been withdrawn, presumably on the basis that modifications have persuaded them to accept such intrusions on their amenity as might be occasioned by the extensions of the dwelling on the review site.
3. The responsible authority has determined to refuse the permit application. The attitude of the responsible authority can be summarised as disapproval on heritage grounds and of the proposal being inappropriate in terms of the so-called 'ResCode' provisions in clause 54 of the Port Phillip Planning Scheme. Clause 54 applies to the construction or alteration of dwellings on allotments with areas of less than 300m2. The review site has an area of 183m2. Accordingly clause 54 has application.
4. This proceeding is a review under section 77 of the Planning and Environment Act 1987 (PE Act) of that refusal.

1. The review site there is a small residential property with a frontage of 5.66m to the east side of Langridge Street, Middle Park, a depth of approximately 32.2m and an area of approximately 183m2.
2. On the land there is a modest but attractive and historically interesting single fronted and single storey brick residence. I had assumed that it was so-called 'solid brick' although I notice notations on the plans stating that it, and neighbouring dwellings, are 'brick veneer'.
3. The neighbouring dwellings are important in this case. The review site is the second (from the north) in a row of five similar dwellings that are so similar in style that it can be assumed that they were all erected as part of a single development project. In fact, at a superficial glance, they have the appearance of a so-called 'terrace' or row of five dwellings each joined to the others by party walls. However, that is not the situation. Each is a separate detached dwelling with a narrow walkway or light alley along its northern side. Each northern wall is set back from the northern side boundary allowing the access of light and air to windows along the northern side wall of each dwelling. That, at any rate, is the situation in relation to the second, third, and fourth such dwellings. The first and northernmost is on the south eastern corner of the intersection of Langridge Street with a narrow side street called Langridge Street that intersects with Neville Street and runs to the east from that intersection.
4. The review site, being the second dwelling in the row, has its 'light alley' set back from its northern boundary. The southern side wall of the adjoining house to the north runs along that common boundary.
5. This arrangement therefore differs from the common row house or terrace arrangement where the front two rooms extend from side boundary to side boundary with the second of them having a window looking backwards into a light alley along only part of the site boundary to provide light and air to it and other windows along its alignment.
6. The house on the review site, in common with the other dwellings in the row, is a notably attractive and substantially intact example of this form of modest housing common to the latter part of the 19th Century. Each of these dwellings is depicted on a Melbourne and Metropolitan Board of Works (MMBW) map dating from 1895. At that time, according to that map, the area was still developing with substantial areas of vacant land but also with similar rows or terraces, and occasional individual dwellings here and there. The early 1890s was a time of severe depression in the colony of Victoria. That circumstance probably slowed down the rate of development here, as it did elsewhere, after the land boom of the 1880s.
7. The next east-west street to the south of and parallel to Neville Street is the important thoroughfare of Park Road. The row of five houses occupy the whole of the eastern side of Langridge Street between Neville Street and Park Road except for a double fronted dwelling recently demolished on the north eastern corner of the intersection of Park Road with Langridge Street. That dwelling also appeared on the 1895 MMBW map.
8. Although there have been some modifications, new fences, minor painting over of brickwork and the like, the whole row substantially maintain their integrity and authenticity as late 19th century dwellings. Each has a narrow front garden, and a front veranda over a bay window. The roofs are of slate, hipped at the front with ridges running down the centre line of the buildings.
9. The review site has a front picket fence which, although most unlikely to be original, is nevertheless in keeping with the dwelling and its neighbours. The front aspect, like others in the row, is decorated with elaborate polychrome brickwork and wrought iron lacework under the veranda. The polychrome brickwork continues above the veranda but under the eaves. The review house, together with three of its neighbours, retains two original brick chimneys centrally located, and one behind the other. These chimneys, on the site and with the neighbours, form a pattern that adds to the integrity and retained authenticity of the buildings.
10. The review site and its neighbours are of architectural heritage significance. It is graded as 'significant' for such purposes in the Heritage Place in which it is located[2]. The alternatives to a significant grading are contributory (applicable to more modified and less authentic examples), and non-contributory (applicable to properties having neither significant nor contributory status) from a heritage point of view.
11. The review site and the area in which it is located is covered by a Heritage Overlay under the Planning Scheme and is within an extensive Heritage Place denoted as HO444. Figure 12 on page 8 of the report of Mr Bryce Raworth, the heritage consultant and architectural historian who gave evidence on behalf of the applicants, depicts a map of this part of HO444 distinguishing between significant, contributory and ungraded properties. Significant ones predominate with a scattering of contributory and the occasional ungraded examples appearing in different colours.
12. The HO444 area is an extensive one, extending from Kerford Road in the west into St Kilda West as far as Fitzroy Street in the east, and from Beaconsfield Parade to the old St Kilda train line. The 'significant' areas include all of the properties in Langridge Street between Neville Street and Park Road as well as numerous other blocks of properties around about[3].
13. This is an important part of an important heritage area, not just in relation to the City of Port Phillip but, in relation to Melbourne as a whole. Although there are occasional intrusions of later and inconsistent redevelopments this tract is one of those in greater Melbourne that was substantially saved, from a heritage point of view, by the imposition of heritage controls before much alteration occurred in the second half of the 20th Century. It is still possible to see, understand and appreciate the Victorian and Edwardian development and ambience that survives strongly through most of this substantial area. The Port Phillip Council, in its manifestations as planning authority and responsible authority under its planning scheme, recognises these values and appears to take seriously its responsibilities of conservation and preservation in relation thereto.
14. Clause 21, in the local provisions of its planning scheme, contains its municipal strategic statement. In Clause 21.05-1, in relation 'Heritage'[4] it records some key issues as follows:
    • Port Phillip's heritage places are among the most significant in Melbourne and include both built form elements and the natural environment.
    • All heritage places need to be recognised and protected, and new development in heritage areas needs to be sympathetically integrated with the existing building so that it makes a positive contribution to the heritage value of the municipality.
    • The incremental loss of contributory buildings (through demolition) within heritage areas has and will continue to affect the integrity of these places.

Such loss of integrity is clearly not being encouraged.

1. There was, until recently, a double fronted brick dwelling at the southern end of the row of five, and located on the north east corner of the intersection of Park Road. It has been demolished recently, following on significant damage incurred by a collision by a truck that, it was observed, 'avoided street trees but ran into the front of the house.' As this house featured in argument in the course of the hearing it is relevant to give a brief description of it and its proposed replacement.
2. The proposed replacement, so far as the front part is concerned, seeks to reproduce the house that has been lost. It was double fronted with two bay windows. Although its style might be thought to have had some characteristics that might be attributed to Edwardian style, it was clearly in existence by 1895 and was certainly a Victorian structure in that sense.
3. Its allotment and double fronted nature is, of course, wider than the single fronted cottages to its north. The roof at the front of the house was, and is to be, in the form of a transverse ridge in front of a central valley between two secondary ridges running back on either side at right angles to the front one.
4. Because it is located on the corner, this allotment has a side abutment to the north side of Park Road. Plans have been approved for what would appear as a two storey extension at the rear of the to be restored front portion. This portion seems to have been designed to have something of the appearance, though not the reality, of a separate building behind a single storey house.
5. The applicants sought to rely on a departure from a formula that I will describe later in relation to first floor extensions to single storey dwellings[5]. Because of that I will mention here two distinctions between the review site and this double fronted corner one.
6. The first was pointed out by the representative of the responsible authority. The transverse ridge means that the double fronted house presents a much wider 'curtain', represented by its front roof, which more significantly screens any structures behind it, as compared with the single fronted dwellings.
7. Some single storey and single fronted houses of the era have a pediment on the front wall, located behind the veranda. That is not true of the review site or any of the row of five. There is no pediment or transverse ridge to aid in screening first floor structures located to the rear. These dwellings have a hipped roof above their front verandas which present, in elevation, as a triangle with its base along the eaves and its apex at the ridgeline.
8. This means that any screening effect, achieved by the roof, is most effective in the centre but falls away to the sides. An extension that presents a square profile to the front, even if set back, presents prominent 'shoulders' in views from the front which might be more effectively screened by a different roof form such as a transverse ridge or, perhaps to a limited extent, by a pediment.
9. There has been a modest first floor extension to one of the five dwellings. It is the southernmost at no. 29 Langridge Street. It immediately adjoins the northern side of what is now the vacant corner allotment. The loss of the house that formerly stood on the corner has exposed this extension to view in a way that would have been substantially screened had the corner house not been demolished. Such screening effect will be restored by reconstruction on the corner site.
10. The extension on no. 29 complies with the formula[6] that I will discuss later where the proposal for the review site does not. The no. 29 extension has been approved. Its visual intrusion, but for the demolition next door, would be minor. That effect has been further reduced by its profile being triangular rather than square so that the 'shoulders' effect is eliminated. The proposal for a first floor extension to the review site is squared when viewed in elevation, or when viewed in perspective from in front of the dwelling.
11. This general area is a most attractive one, and highly sought after. There are many examples of single fronted single storey dwellings like the review site. There are also numerous double fronted Edwardian style dwellings and substantial single fronted double storey townhouses. Single fronted developments were common in the pre-first world war period which was also before private motor cars became prevalent. The design enabled closer settlement so that more households could be accommodated with walking distance of shopping centres, train stations and other facilities. It has been the prevalence of relatively inexpensive private motor cars that enabled sprawling post second world war suburbs with large residential areas beyond walking distance from communal facilities.
12. On the east side of Langridge Street, north of Neville Street, there is a terrace of double storey single fronted townhouses. They, like those previously described, are entirely consistent with the area and the era. The original structure of the one on the corner of Neville Street remain substantially intact. The corner house necessarily presents a side to oblique views as it ranges along the north side of Neville Street. Behind the original structure there is now a two storey extension. In my opinion it has been thoughtfully designed. It is of a simple modern style and colour so as not to be intrusive, and is designed to appear rather as a separate building, although it is not. This is a technique, the second one that cannot apply to the review site, that can reduce the impact of an extension, even one exposed by being on a corner. It is a technique that has been employed fairly successfully in some instances, in similar locations in the area and which the redevelopment of no. 31 Langridge Street on the Park Road corner seeks to emulate.
13. Because it is an attractive, interesting and desirable area, many people who can afford it, wish to live there. Many then wish to increase the size of their dwellings. Although that is also true of larger original dwellings, there is pressure to extend single fronted single storey cottages into substantial family homes. They may well have been family homes originally but with a much greater sharing of space (including bedroom space) than is now common.
14. This has lead to there being a sprinkling of extensions, including first floor extensions, that, in some instances, are quite out of scale and out of character with the original buildings, their contexts and streetscapes. Port Phillip Council appears to be more particular about these matters than some others where the appearance and historical authenticity of buildings have been quite spoiled by over-dominant extensions that attract the eye away from what has been reduced into token survivals of the original.
15. Although Port Phillip has demonstrated care, in its policies and administration, there are nevertheless some unfortunate examples, perhaps that occurred before controls and policies reached their present form, that should not be emulated. Those urging substantial extensions are no doubt tempted to refer to such examples as 'part of the neighbourhood character'. That should no more be indulged than a developer who might now wish to demolish heritage buildings to erect 1960s style walk-up flats to the detriment of heritage values which ought to be preserved.

1. The existing dwelling has three bedrooms at the front off a side passage down the southern side of the building. At the rear there is a living room, meals area, kitchen, bathroom and water closet. The sideway runs down the northern side of the building to give alternative access to the living room and the meals area. The rear portion, not including the living room, extends right across the allotment. To the rear there is a courtyard and a garage/storage area. There is a rear lane across the rear boundary leading to Neville Street.
2. The proposal is to retain two front bedrooms at ground floor in front of a bathroom/laundry and then a new open living/dining/kitchen area extending across the allotment and containing a stairway to a first floor with a master bedroom, en-suite and water closet plus a fourth bedroom. The first floor would also have a substantial first floor balcony between the roof space of the retained roof and the master bedroom with access from the main bedroom to the balcony and from the balcony into the roof space of the retained single storey part to the front (presumably for storage or maintenance purposes). This balcony would not create overlooking problems and would not have much view, except for sky and nearby roofs. It would cause the elimination of the second chimney. In passing I note that the responsible authority does not regard the loss of the chimney as a consideration against the proposal, although I consider it something to be regretted.
3. Behind the building would be a paved courtyard area extending across the block and back to the lane except for a very narrow strip of garden along the south boundary and a couple of minimal planting areas between a barbeque, seat and storage areas on the northern side. Any parking opportunity of the existing rear outbuilding would be lost save for a bicycle space. The proposed extension, with its four bedrooms, extra bathroom and first floor balcony would amount to a substantial family home rather beyond the scope originally envisaged for an allotment of this size.

1. The first two grounds of refusal of the responsible authority, as expressed in its written submissions, read as follows:
   1. The proposal would neither conserve nor enhance the character of the existing heritage dwelling on the site, the adjoining dwelling or the dwellings in the streetscape and would be contrary to the Heritage Policy (Clause 22.04) contained within the Port Phillip Planning Scheme.
   2. The proposal fails to respect the character of the existing and surrounding development in the streetscape and would be inconsistent with the objectives of Clause 21.05: Built Form contained within the Port Phillip Planning Scheme.
2. Before going to those local policy provisions I will refer to Clause 43.01 containing the planning scheme provisions in relation to the Heritage Overlay. I have already mentioned the extent and value of the HO444 Heritage Place within which the review site and its streetscape are located. It is noted that, within that substantial area, there are smaller specific heritage places. Nevertheless, the review site, the other houses in the row and most of the properties in the immediate locality are recognised as significant rather than contributory or ungraded. There are other significant buildings and groups of buildings in HO444 but that does not mean that any of them lose their value or that their partial demolition or distortion does not deplete the value and interest of their immediate locale and of HO444 generally.
3. Clause 43.01 contains the purposes of the Heritage Overlay. These purposes include:

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

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

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

1. Clause 43.01-1 provides that a permit is required to demolish or remove a building or to construct a building or to construct or carry out works. 'Building' in this context includes part of a building so that planning permission for the current proposal is required.
2. Clause 43.01-4 contains a number of decision guidelines that are to be taken into consideration, along with more general ones applicable to permit applications generally. They include:
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • ...
   • 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 heritage place.
   • Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
3. It is clear enough that the responsible authority considers that the proposal, although relatively modest, will nevertheless be contrary to the purposes I have quoted above. It considers that the bulk and appearance of the proposed extensions, at any rate at first floor level, will adversely affect the significance of the heritage place and will not be in keeping with the character and appearance of adjacent buildings.
4. I have already mentioned the municipal strategic statement in the Port Phillip Planning Scheme and quoted some of the key issues appearing under 'Heritage' in Clause 21.05-1. That clause also refers to a number of objectives and strategies. These include:

1.1 Protect, conserve and enhance all identified significant and contributory places, including buildings.

1.3 Support the restoration and renovation of heritage buildings and discourage their demolition.

1.4 Encourage high quality design that positively contributes to identify the heritage values.

1.5 Ensure that new development respects and enhances the scale, form and set backs of nearby heritage buildings.

1.6 Encourage urban consolidation only where it can be achieved without affecting heritage significance.

1. Again the responsible authority considers the proposal to be sufficiently adverse to these objectives and strategies as to warrant rejection. It is not opposed to all alterations to the review site. It appreciates the preservation of the front two rooms, and it is not particularly concerned with the demolition and reconstruction of areas to the rear where they will be effectively hidden from view from the public realm constituted by Langridge Street and its road reserve. It is concerned about the intrusions into views from the street occasioned by the first floor addition, or at any rate, by that addition being sufficiently high and sufficiently close to the street frontage to intrude into such view and thereby detract from the significance and authenticity of the building itself and the building in its context. An extension, even with a first floor element, that is less high or set further back could be rendered unobtrusive if not quite hidden from such points of view.
2. The responsible authority also points to paragraphs 3.4 and 3.5 in Clause 21.05-1. They deal with the height and scale of new development. They read:

3.4 Ensure that the scale, massing and bulk of new development respects the scale and form of nearby dwellings in areas where the existing built form character is to be retained.

3.5 Require new development to respect and not detract from the scale, form and set backs of nearby heritage places in the heritage overlay.

1. This is certainly an area where the existing built form character is to be retained. The responsible authority considers the proposed scale, massing and bulk to be inappropriate. It considers that the balance to be struck between the desire of new landowners to have large family houses based on small heritage dwellings and the need to preserve and conserve such building in the interests of heritage values is struck in the wrong place by this proposal. It is of the view that heritage values are important and the balance is to be struck at a more conservative and less intrusive point than would be achieved with the current proposal. It quotes paragraphs 9 and 9.1 of clause 21.05-2 in this context. They read:

9 - To ensure new development minimises any detrimental impacts on neighbouring properties.

9.1 - Ensure new development does not unreasonably affect the amenity of adjoining properties by way of overshadowing, privacy, or visual bulk.

1. Clause 22.04 contains the local policy provisions in relation to heritage. Its objectives at 22.04-2, include:
   • To retain and conserve all significant and contributory heritage places.
   • To discourage the demolition of significant and contributory heritage places.
   • To ensure all new development and redevelopment of significant and contributory places is respectfully and harmoniously integrated with the surrounding character.
   • ...
   • To ensure that new development and any publicly visible additions and/or alterations in or to a heritage place maintains the significance of the heritage place and employs a contextual design approach.
2. Clause 22.04-3 contains a general policy that reads:
   • Disregard the impact of buildings that are obviously atypical to the character of the streetscape when determining the appropriate mass and scale of new buildings or extensions or upper storey extensions.
3. Clause 22.04-3 also contains provisions in relation to additions and/or alterations to heritage places. The proposal accords with a number of important propositions in this respect but there is a particular policy in relation to upper storey additions. It reads:
   • An upper storey addition is sited and massed behind the principal façade so that it preferably is not visible, particularly in intact or consistent streetscapes (see Performance Measure 1).
4. Performance Measure 1 is then set out. It contains three propositions and some illustrative diagrams. I will refer only to the second and third such propositions.

Upper storey additions may meet the above policy for siting and massing if the following measures, as appropriate, are achieved:

• They are sited within an 'envelope' created by projecting a line at 10 degrees from the height of the base of the front parapet or gutter line on the main façade and extending to the rear of the heritage place[7] (illustration 2 or 3), or
• In exceptional cases where the heritage place is located in a diverse streetscape and the design of the proposed addition is considered to be an appropriate contextual response, they are sited within an 'envelope' created by projecting a line of up to 18 degrees from the height of the base of the front parapet or gutter line of the main façade of the heritage place.

• If visible from the front (principal) street, the roof of any addition is related to that of the heritage place in terms of form, pitch and materials.

1. The preferred result, in relation to upper storey additions, is that they should not be visible, at least from the principal street frontage, in relation to intact and consistent streetscapes. We have a consistent and intact streetscape here.
2. It was suggested, on behalf of the applicants, that this is an unattainable counsel of perfection. I do not agree that it is necessarily so. However, Performance Measure 1 does provide what the planning scheme deems to be an acceptable guideline for upper storey additions where the ideal of invisibility may not be wholly achieved. It strikes the balance between the desire for a large family home on one hand and preservation of heritage buildings on the other, at a conservative, but not absolute, point.
3. Performance Measure 1 requires any first floor addition to a dwelling like this one to be set sufficiently far back and/or to be of limited height so as to come within the 10 degree formula. This formula is likely to allow some minor visibility of extensions in oblique views between buildings.
4. The responsible authority takes the view that this Performance Measure 1 formula should apply in this case. I agree with the responsible authority on this point.
5. In the course of argument reference was made to a previous decision of mine in Ganly v Port Phillip CC[8] concerning a property in 95 Bank Street, Albert Park. On re-reading the reasons I realised that the case referred to is remarkably similar to the current one, and involved the question of the 10 degree sight line referred to in Performance Measure 1. That case dealt with a row of single fronted single storey heritage dwellings, similarly separated by sideway set backs rather than terrace houses with partial light alleys. The difference is that they were timber rather than brick or brick veneer. That was a conditions case under s.80 PE Act rather than a review of a refusal under s.77. In that case I upheld the view of the responsible authority and its Performance Measure 1 formula. I consider that I should do so again in this case.
6. The representative of the applicants put forward their case, I think, as well as it could be put. He called Mr Bryce Raworth as an expert witness. Mr Raworth, on reviewing the original plans, was of the view that the intrusion of the proposed first floor extension would not be acceptable. The sight line for those original plans was 14 degrees. Mr Raworth did not suggest the degree of reduction.
7. In view of his advice, a revision was made, but the reduction was not to 10 degrees, but only to 12.5 degrees, a minor reduction of 1.5 degrees.
8. Mr Raworth, in his evidence, was prepared to accept 12.5 degrees.
9. On behalf of the applicants, arguments were raised in relation to other examples of extensions, some of them predating Performance Measure 1. These other examples represent intrusions to varying degrees, some relatively minor, whilst others are clear examples, in my opinion, of what should not be repeated.
10. Comparisons can be useful, but each case must nevertheless be judged on its own merits and in its own context.
11. The responsible authority, and its planning officer, were criticised on the basis of a suggestion of having elevated the Performance Measure 1 from a guideline into a prescriptive rule. I see no justification for such an assertion. The responsible authority, and its officers, are entitled to point to Performance Measure 1 and to regard it as the maximum intrusion that will ordinarily be allowed, rather than a starting point from which further intrusions are invited to encroach.
12. As a guide, Performance Measure 1 is not an absolute rule. Its third proposition[9] recognises the possibility of exceptional cases where, it suggests, sight lines might go up to 18 degrees. Even then, it is a guideline.
13. That is making provision for exceptional cases. This is not an exceptional case, and there has been no suggestion that it is. Also I would not consider this to be 'a diverse streetscape' in the sense that I believe Performance Measure 1 intended where it uses the phrase as criterium for going up to 18 degrees.
14. On behalf of the applicants it was sought to make some play of their advocate's interpretation of the words of a response to a referral from the conservation adviser of the responsible authority, and what was said to be equivocal language. I am not sure that this argument gets the applicants anywhere in particular. The responsible authority and its planning officer are not equivocating, and neither am I. I do not think it helpful or necessary that I should go into an analysis of the language used in the response to the internal referral requested by the council planning officers. Whether clear or expressive of some doubt; ultimately I must determine the point.
15. If the standard was visibility or invisibility there could be a 'yes' or 'no' answer. Performance Measure 1 admits of a gradation rather than a 'black and white' solution. Invisibility is acceptable, in the absence of other reasons for resisting demolition and rebuilding of parts of a building not readily viewable from the street. From invisibility the gradation might pass through a hazy zone where views might differ into an area where first floor additions would be clearly unacceptably intrusive.
16. In my view the responsible authority is right to be cautious and conservative in relation to its heritage areas, particularly ones as valuable and important (locally and on a metropolitan scale) as this area. Even Performance Measure 1 might be too much in some contexts, but it appears as a maximum for ordinary circumstances in such a context as this one. I consider it appropriate, as I did not Ganly's case, and I see no justification, in the present case, for allowing it to be exceeded.
17. Ganly's case was a conditions review. This one is a refusal. It is a refusal because the responsible authority has taken the view that its problems cannot readily be solved by the imposition of conditions but really require a redesign which the responsible authority declines to undertake. I agree with the responsible authority. Likewise I decline to attempt such a redesign.
18. It was suggested on behalf of the applicants that the corners of the square shoulders of the front profile of the proposed first floor extension could be sloped. This adjustment was having regard to the triangular profile of the roof that is to survive over the first two rooms. I am not persuaded that this would be a sufficient solution.

ResCode ground of refusal: objectives and standards

1. The other ground of refusal referred to by the responsible authority in its written submissions concerns the 'ResCode' provisions in Clause 54 of the Port Phillip Planning Scheme. Clause 54 contains the ResCode provisions relating to small allotments of less than 300m2 into which category the review site falls. The ground relied upon by the responsible authority is expressed as:
   1. The proposal fails to satisfy relevant objectives contained within Clause 54 of the Port Phillip Planning Scheme, particularly in relation to neighbourhood character, permeability, daylight to existing windows, overshadowing and design details.[10]
2. That ground refers to the objectives of Clause 54. In its discussion of the alleged failures of the proposal[11], the responsible authority puts its case in terms of the standards referred to in Clause 54 rather than the objectives to which those standards relate.
3. That raised the question of the relationship between standards and objectives in ResCode provisions of the planning scheme[12]. In this connection the representative of the applicants cited and relied upon my recent decision in Red Star Beaumaris Pty Ltd v Bayside CC[13].
4. I affirmed the approach that I had taken in Li v Whitehorse CC (No.1)[14], seeking to avoid doubt that might have arisen from the case of Lamaro v Hume CC[15]. In Red Flag I affirmed the interpretation in Li. That is, the objectives specified the relevant ResCode clause (in this case Clause 54) must be complied with. A proposal that does not satisfy the relevant objectives is prohibited. Most of the objectives have 'standards' relating to them. In most cases the standards are objectively measurable although standards relating to neighbourhood character, for example, still require a subjective judgement. Where the objectively measurable standards in relation to an objective are satisfied, the objective is also satisfied. However, that is not the only possible means of satisfying an objective. The responsible authority (or this Tribunal on review) may be satisfied that some arrangement other than compliance with the relevant standard or standards will nevertheless satisfy the objective. If the objectives are satisfied, either by complying with the standards or by satisfying the decision maker that the objectives are complied with, there is no ResCode prohibition on granting a permit if the decision maker is otherwise satisfied with the proposal, having taken account of all relevant considerations.
5. The reason for affirming this interpretation in Red Flag was to clarify any doubts that might have arisen from Lamaro. I did not assert that Lamaro is inconsistent with Li. I was bearing in mind that experienced planning lawyers had expressed the view that Li and Lamaro are not inconsistent. I only said that, if inconsistency was perceived, Li should be preferred and, in doing so, expanded somewhat on my reasons for that view.
6. At the hearing of the present case reference was made to an editorial entitled 'Enough is Enough. Time to Clarify on ResCode Standards and Objectives' in VPRs[16] VCAT Volume 1 No. 13, May 2015, p.1. The editorial comment referred to an earlier such editorial comment asserting that Lamaro 'found that the qualitative elements of ResCode Objectives required consideration even where all the Standards under that Objective had been met'. The editorial asserts that this is at odds with Li. That leads me to the view that I need to explain my understanding of the situation more fully. I do that below.
7. The editorial asserts that its understanding of Lamaro, as quoted above, '...was consistent with the apparent intention when ResCode was drafted'. I note the word 'apparent'. It seems that this indicates the editorial writer's guess as to the original intention. No other authority for the proposition is mentioned. I recall that seminars were conducted to introduce the ResCode provisions. At the one I attended the explanation of the role of 'standards' was consistent with Li. In the editorial it is said that such an approach means that the expression 'standard' in ResCode provisions is synonymous with the expression 'deemed to comply'. That is another way of saying that to satisfy the standard is to satisfy the objective. As a matter of fact, at the seminar I attended, objection and criticism was made of the use of the word' standard' in the context on the basis of the explanation of the purpose of standards that had been given. It was complained that 'standards' in legislation generally means something that must be met and that it was an inappropriate word to use in relation to something that was a means of obtaining a compulsory objective, but not an exclusive one. The expression 'deemed to comply' may well have been a clearer expression, less open to doubt than the word 'standard'.
8. Actually, if compliance with the relevant standards does not deem compliance with the objectives, then the ResCode meaning of 'standard' is even further from the ordinary meaning of the word. In those circumstances, 'guideline' might have been more apt.
9. The editorial makes some brief comments on the history of debate. It mentions what appears to be a recommendation of the Standing Advisory Committee reviewing VicCode 1 and the Good Design Guide suggesting the abandonment of 'deemed-to-comply' provisions. That does not dictate the correct interpretation of the provisions in fact appearing in the planning schemes.
10. The editorial goes on to say:

The June 2014 version of the Understanding the Residential Standards Practice Note, the passage affirming that the original intent that meeting the Standard does not necessarily mean the Objective has been removed. This eliminates the overt conflict with the Tribunal's position in Li.

1. By this stage the editorial is no longer referring to the 'apparent intention' but rather asserts its view of the original intent, again without referring to any authority on the point. It argues that the revision of the advisory note should have positively asserted a resolution of the dilemma that the editorial perceives to exist. I would infer that the omission was deliberate and intended to bring the practice note into line with the law as found by the Tribunal. It may be a resiling from the deleted statement as to what was originally intended or it could represent an abandonment of that idea if it had been previously entertained. If the deletion accords with the original intent, or the present intent, nothing more was called for. It would only be if a change was to be made that anything more was required. If an amendment is to be made to the planning schemes in this connection, it might be hoped that it would be worded carefully enough to avoid any further doubt. In the meantime I, at any rate, think the position is sufficiently clear.
2. However, I said above that I would spell out my understanding more fully.
3. The ResCode conditions in Clauses 54, 55 and 56 provide a good deal of valuable guidance in relation to the amenity issues they deal with. The zone provisions for residential zones specify when and to what extent compliance with ResCode provisions is mandatory as compared with providing guidance. It is the zone provisions that say that compliance with the objectives is mandatory. Those provisions do not say that compliance with the standards is mandatory.
4. Where a planning scheme allows something without restriction, that is to say, where there is no prohibition or requirement of a permit, that thing can be done 'as of right'. No permission is required. In other situations the planning scheme imposes prohibitions.
5. The other form of regulation is to allow things subject to the obtaining of a valid planning permit. Such provisions create a discretion in the statutory decision maker (the responsible authority in the first place, or this Tribunal on review). Where there is such a discretion, the decision maker is called upon to exercise that discretion taking account of all relevant considerations. Where there is a discretion, and a need for a permit, the planning scheme does not compel the grant of a permit. To do so would be to contradict the discretion and the need for a permit. It would cast the proposal into the 'as of right' category, not requiring a permit, if the decision maker was compelled to grant permissions. I do not recall instances where planning schemes do that; and it does not apply, in my opinion, in relation to ResCode or its objectives.
6. Although, so far as I recall, planning schemes do not compel the granting of permits, there can be a partial prohibition in circumstances where discretion might otherwise apply. If, for example, a permit is required to erect two dwellings on an allotment but subject to a condition that the building must not exceed say 8m. In that situation a proposal for two dwellings exceeding 8m is prohibited. The discretion however would remain for a proposal to attain no more than 8m.
7. A similar situation applies in relation to the ResCode provisions. Where the zone provisions require that ResCode objectives must be complied with, they must be complied with. Otherwise the proposal is prohibited. If it is not prohibited, because of that or any other prohibition, then the discretion survives with the decision maker. If all relevant standards are complied with I consider that the objectives to which they relate are also complied with. That would mean that ResCode is complied with and thus the proposal under consideration is not prohibited because of failure to meet ResCode objectives.
8. However that does not take away the discretion the decision maker has the responsibility of exercising. It does not compel the grant of a permit. It may well be that compliance with all relevant standards, and therefore all relevant objectives, indicates a strong case in favour of the grant of permission; but the discretion must still be exercised weighing all relevant considerations.
9. Statutory provisions cannot hope to cover every conceivable situation that might arise. I think it is that which gives rise to the need for administrative discretions to be vested in administrative bodies like responsible authorities and tribunals. Although it may be uncommon, there may well be situations where a permit should be refused, as a matter of discretion, though ResCode standards and objectives are complied with. There might be other considerations beyond the scope of the ResCode issues and I am not prepared to say that could not be a refusal in relation to the issues mentioned in ResCode, even though its provisions are complied with. However any such refusal would be based upon an exercise of discretion. It would not be compelled as a matter of law as would be the case if ResCode objectives were not met. In such a case the proposal would be prohibited.
10. Compliance with all relevant ResCode objectives, whether via standards or otherwise, means that the proposal under consideration is not prohibited. The need of a permit, and the discretion to grant or refuse one, survives. There may be a strong case in favour of grant, but the discretion still has to be exercised, taking account of all relevant considerations.

1. As previously noted, the responsible authority referred to ResCode objectives in its grounds of refusal but dealt with ResCode issues in terms of standards. In doing so it was responding to propositions put forward on behalf of the applicants. Standards in relation to neighbourhood character are not able to be measured objectively, but call for informed judgement. Neighbourhood character can be viewed as bound up with streetscape and heritage matters where they are applicable. The depleting of the heritage authenticity of a significant heritage building, at least so far as it is exposed to the public view, also depletes the streetscape and context in which it is set. If the neighbourhood character is marked by a streetscape of significant buildings that are intact (or substantially so), as in this instance; and where the existing and preferred future neighbourhood character exists and requires maintenance; then a detrimental incursion becomes unacceptable in terms of heritage, streetscape and neighbourhood character.
2. I have already said why I agree with the responsible authority in its rejection on this grounds.

1. The plans, in their depiction of buildings and paved areas, leave only slight areas that can be said to be permeable. It might therefore be questioned whether the objective as to permeability in relation to standard A5 is met. The responsible authority sees a need for water sensitive urban design and the capacity to deal with storm water but considers such matters could be achieved by the inclusion of a water tank or rain garden. It effectively takes the position that this matter could be dealt with by the imposition of a condition and therefore does not amount to a ground of refusal. It regards failure to comply with Standard A5 as a minor matter and does not press the point.

1. The southern side first floor set back of proposed bedroom 2 does not meet the standard. This deficiency is sought to be excused, on behalf of the applicants, on the basis that this is an inner urban context where closer settlement on small allotments warrants leniency. The responsible authority says that, in view of this being a new wall, it should improve rather than exacerbate non-compliant conditions.
2. I think the responsible authority's 'rule-of-thumb' just expressed may be too strict for universal application in relation to small allotments in inner suburbs. Its concern here is that this wall, at first floor, might give an undue feeling of enclosure in relation to the backyard private open space of the adjoining dwelling to the south.
3. On the one hand, present occupants of neighbouring properties have apparently been satisfied as to their amenity although, on the other hand, appropriate standards need to be borne in mind as current occupants are not be the only or last occupants of the adjoining property.
4. I have not viewed the situation from within the adjoining private open space. It may be that some modification to the plan could alleviate the concern, if necessary. Having regard to the decision that I have given in relation to the heritage matter I do not need to make a decision on this point. It may well not be fatal standing alone or as adjusted if it were to be modified.

1. As I understand it this is a concern about north facing side window, third from the front, of the adjoining property to the south. It currently looks out on its own sideways 600mm wide and on to an existing wall of the review site on the common boundary. That means that it has no view and the window serves only for light and air. The proposal would impose a wall of over 6m modifying the limited usefulness of this neighbouring window. The responsible authority is of the view that a side set back in accordance with the relevant standard would be more than is warranted in this situation. I agree. It considers a redesign to provide a set back at first floor of 1m together with wall treatments in a light colour would suffice.
2. Having regard to the circumstances that this window it is really only useful for light and air, I doubt that an increased set back at first floor level would make much difference. Light colours might help a bit.

1. I consider this to be a more serious concern. It relates to the secluded open space of the neighbouring property to the south. I note acceptance by that neighbour but I also note that the increased shadowing is significant rather than minor or trifling. The existing unshadowed exposure enjoyed by this property is less than looked for in the ResCode standard. The standard, in relation to the review site, is that it should not increase that deficiency. However, if some degree of first floor extension is to be considered acceptable, even if set back to comply with the 10 degree formula, it is unlikely that a result of no increase in shadowing to the south could be achieved.
2. The responsible authority really regards its concern about shadowing, and the other amenity implication of failure to comply with ResCode standards, as indicating that the proposal is an overdevelopment of the site. It says that the site can comfortably accommodate a two bedroom dwelling where four are sought. In fact the existing conditions plans include three current bedrooms at ground floor although the proposal seeks to take the space of the third for other purposes.
3. I think it can be said that the site can accommodate two or three bedrooms in that it has three rooms dedicated to that purpose. I consider that the current proposal of four bedrooms, together with other aspects using existing and new space for new purposes, does push the proposal over the line of acceptability into overdevelopment.

1. For the above reasons I uphold the decision of the responsible authority to refuse to grant permit on the current proposal, and no permit is granted.

[1] Victorian in the sense of dating from the reign of HM Queen Victoria, not just sited in the then colony of Victoria.

[2] Such grading is noted in the Port Phillip Heritage Review 15 (2011).

[3] There has been a modern but respectful construction at the rear of what was St Anselm's Anglican Church on the north-west corner of the intersections of Langridge Street with Park Road.

[4] Under a broader heading of 'BUILT FORM'.

[5] This formula is the second proposition in Performance Measure 1 in clause 22.04-3 of the planning scheme and is set out in paragraph 50 below.

[6] The same as is referred to in paragraph 23 and footnote 5 above, see also Performance Measure 1 in clause 22.04-3 and set out in paragraph 50 below.

[7] This is the formula previously referred to in paragraphs 23 and 28.

[8] [2003] VCAT 1722

[9] The second one recorded in the box in paragraph 50 above.

[10] Page 11 of the written submission of the responsible authority.

[11] Commencing at Clause 9.1 on page 11.

[13] [2015] VCAT 305. In that case, I sat with another member, an experienced planner; however, the part of the reasons relevant for present purposes concerns a question of law in relation to statutory interpretation for which I, as the lawyer member sitting, was responsible.

[14] [2005] VCAT 1274. This case has often been referred to as Chak Lai Li v Whitehorse CC (No.1). It is listed in AustLII as Li Chak Lai v Whitehorse CC (No.1).

[15] [2013] VCAT 957.

[16] VPR stands for Victorian Planning Reports which used to be a serial publication in which Tribunal and other planning cases were reported. Full reports and headnotes are no longer published in this series which is now limited to editorial comments on significant planning cases.