Mr. Leigh Hubbard and Nora Sumberg, owners of 860-862 Swanston St

Dr. Douglas Daines represented Melbourne University

Ms. Willys Keeble, architect / conservation consultant represented Ms. Norma Redpath

Mr. Peter Sanders, Architect, and Dr. Donald Chambers, Historian, represented the Carlton Residents' Association

Mr. Lloyd Elliot, planner, of Urbis JHD represented Mr. Damien Gance and Sasha Robertson, owners of 874 Swanston St

Mr. Graeme Peake, barrister, instructed by K. Douglas

•

Ms. Meredith Gould, architect / conservation consultant

•

Mr. Craig Czarny, urban designer, of Hansen Partnership.

1 Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit to demolish an existing building in a Heritage Overlay and to construct a residential building with 31 dwellings (amended to 22 dwellings) for student accommodation.

Planning Scheme and Zoning/Overlay/Schedule Controls

2 Melbourne Planning Scheme. Residential 1 Zone. Heritage Overlay (HO1).

a.

Demolish a building (Heritage Overlay)

b.

Construct a building (Heritage Overlay)

c.

Use a building for a residential building (Clause 32.01-4)

d.

Reduction in parking.

1. The proposed demolition of this building would be contrary to the purpose of the Heritage Overlay in the Melbourne Planning Scheme and Local Policy 22.04 /22.05 (Heritage Places within / outside the Capital City Zone) of the Melbourne Planning Scheme

2. The proposed new building would detract from the architectural and historic quality of nearby buildings and the surrounding area and would be contrary to the purpose of the Heritage Overlay in the Melbourne Planning Scheme and Local Policy 22.05 (Heritage Places outside the Capital City Zone) of the Melbourne Planning Scheme.

3. The design and external appearance of the proposed building is detrimental to the visual amenity of the streetscape

4. The proposal would detract from the amenity of the adjoining properties, particularly those to the south, by reason of overshadowing and visual bulk

5. The proposal represents an overdevelopment of the site, detrimental to the outlook and amenities of adjoining residential properties

6. The proposal does not ensure provide (sic) for satisfactory levels of internal amenity for residential occupiers

7. The proposed vehicle access would require vehicle movements over land to which this site does not have carriageway rights.

8. The design is not responsive to the circumstances of the site and surrounds

5 We have adopted the description provided by Mr. Martyn as appropriate.

The subject site is located on the eastern side of Swanston Street approximately 50 metres south of its intersection with Palmerston Place and on the north side of Painsdale Place. A 2.7 metre wide carriageway abuts the site on its northern side and pedestrian access is gained directly through the site frontage

The site has a frontage to Swanston Street of approximately 8.86 metres, the northern and southern boundaries are 41.31 and 41.22 metres respectively, and the eastern boundary is 8.7 metres in length. It is currently occupied by a single storey double fronted dwelling which may date in part to the 1860s. There are rear extensions to the dwelling and a galvanised iron shed is situated towards the rear of the site. The building is vacant and in a state of considerable disrepair. The front garden of the house is enclosed by a timber picket fence of approximately 1.2 metres in height To the rear of the dwelling, the site is enclosed on its northern boundary by a combination of timber paling and temporary safety fencing, and on its southern boundary by galvanised iron fencing and a brick wall associated with 4 Painsdale Place to the south

To the north of the site on the opposite side of the adjacent laneway and fronting on to Swanston Street is a row of three double storey Victorian terraces, with a further row of three similar terraced houses north of these properties Garages and a carport serving the three abutting dwellings are located to the north east of the site On the southern side of Painsdale Place is a pair of single storey bluestone cottages with rear additions and a shared rear yard, beyond which is a mixture of single and double storey buildings variously used for residential, commercial and institutional purposes

On the western side of Swanston Street opposite the subject site is St Mary's College and the wider University of Melbourne campus Abutting the eastern boundary of the site is a single storey dwelling known as 4 Painsdale Place which also incorporates a car port and paved open area adjoining the site's southern boundary Further east is the rear garden of No 425 Cardigan Street, to the north of this the rear of No 427 Cardigan Street and to the south car parking associated with Nos. 419-423 Cardigan Street

Buildings on the eastern side of Swanston Street north of Elgin Street are generally used for residential purposes, though there are also a number of small scale commercial and institutional uses in this area. These buildings display a variety of setbacks, including some properties built to their Swanston Street frontage. The properties immediately to the north and south of the subject site have front setbacks of 1.9 metres and 1 metre respectively.

The subject site is well located in terms of access to public transport, with numerous tram services operating along Swanston Street south of Elgin Street which connect to the wider transport connections of the CBD, including Melbourne Central and Flinders Street train stations Bus services also operate along Swanston Street. The site is located in extremely close proximity to the University of Melbourne, hospitals, recreational opportunities and the shopping and community facilities associated with both Carlton and the CBD itself

6 We have also adopted Mr. Martyn's description of the proposal.

The proposal, as amended, envisages the demolition of the existing dwelling and outbuilding on the subject site and the construction of a building of up to three storeys in height for the purposes of accommodating 22 student dwelling units, including one for a caretaker.

The building will essentially be two storeys over the majority of the site, including a first floor setback from its southern boundary at the eastern end (adjacent to 4 Painsdale Place). The second storey component of the building is located towards the northern boundary of the site, being set back approximately 3.6 metres from the southern boundary and 718 metres from the eastern boundary. The building will have a front setback of 2.0 metres from the Swanston Street frontage. It will have a maximum height of 9.242 metres.

Specifically, the proposal comprises the following.

Pedestrian access is to be provided directly from Swanston Street via a central doorway. Nine student apartments are to be provided on the ground floor, one of which is for the caretaker of the building. The units range in size from 17.3m2 to 24.5m2 and will be accessed via a central corridor. Each contains space for a bed, wardrobe, table and chairs and incorporates kitchen and bathroom facilities. A communal store, bin storage, one car parking space and parking for 22 bicycles is provided within the rear area of the building. Access can be taken from the garage to the ground floor of the building

A further eleven student apartments are to be provided at first floor level, ranging in size from 17.0m2 to 24.5m2.

Two further units will be provided on this level, with floor areas of 23.7m2 and 24.5m2 respectively The dwelling unit fronting on to Swanston Street will have a terrace of 18.4m2 This level will also incorporate communal lounge and covered outdoor terrace areas of 13.6m2 and 31.34 m2 respectively

The building will be contemporary in its expression, particularly with regard to its Swanston Street facade This will comprise precast concrete panels "etched" with a representation of a double storey terrace building and will also incorporate window openings and a central, recessed entrance door within the panels The upper elements of the southern part of the facade will comprise a wrought iron frame aimed at maintaining the outline of a double storey terrace, and this will form the balustrade for the terrace to Unit 21 Other than in relation to the Swanston Street facade, the proposed materials will comprise a mixture of face brickwork, concrete blockwork and glazed areas to the stairwells on the north elevation and upper level enclosed walkway

7 During the course of the hearing we were provided with a substantial array of information relevant to the decision to be made in this Application for Review. In brief summary this background information included the following:

•

Photographs of the existing buildings, streetscape and adjoining areas

•

Plans, elevations and digital impressions of the proposed new building

•

Expert opinion and reports in respect to:

­ Building conservation works

­ Heritage significance

­ Urban design issues

­ Traffic issues.

8 Following the conclusion of the hearing, we undertook an inspection of the site and its locality, including an internal inspection of the building itself.

Matters for Consideration Under Planning Controls and Policies

9 The decision guidelines require consideration of State and Local Planning Policy Frameworks and Clause 55.

10 The purpose of Heritage Overlay includes:

•

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

•

To conserve and enhance those elements which contribute to the significance of the place."

11 As a part of Council's policies the building is identified as being graded 'B' and is located in a 'level 1' heritage streetscape.

12 The Planning and Environment Act 1987 (Vic), s 84B sets out the matters the tribunal must take into account in determining an Application for Review:

(1) In determining an application for review under this Act, the Tribunal [inter alia] -

(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria;

(c) must (where appropriate) take account of the approved regional strategy plan under Part 3A;

(ca) must (where appropriate) take account of the approved strategy plan under Part 3C;

(e) must (where appropriate) take account of the extent to which persons residing or owning land in the vicinity of the land which is the subject of the application for review were able to and in fact did participate in the procedures required to be followed under this Act before the responsible authority could make a decision in respect of the application for a permit;

(f) must (where appropriate) have regard to any amendment to a planning scheme which has been adopted by the planning authority but not, as at the date on which the application for review is determined, approved by the Minister;

(h) must (where appropriate) have regard to any amendment to the approved regional strategy plan under Part 3A adopted under this Act but not, as at the date on which the application for review is determined, approved by the Minister;

(i) must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.

(2) The matters set out in sub-section (1) are in addition to any other matters which the person or body in respect of whose decision the application for review is made could properly take account of or have regard to or is required to take account of or have regard to in making its decision.

10 Section 84B(2) also requires the Tribunal to take into account any matters which the Responsible Authority could have taken into account, for example, under s.60 of the Planning and Environment Act 1987.

13 The State Planning Policy Framework - (Cl. 15 Melbourne Planning Scheme) requires consideration of heritage conservation as follows:

15.11 Heritage

To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria's image and making a contribution to the economic and cultural growth of the State.

Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development. These include [inter alia]:

s

Sites associated with the European discovery, exploration and settlement of Victoria.

s

Important buildings, structures, parks, gardens, sites, areas, landscapes, towns and other places associated with the historic and cultural development of Victoria, including places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria.

Planning and responsible authorities should take account of the findings and

recommendations of the Victorian Heritage Council and the provisions of the Heritage Act 1995.

Planning authorities should have regard to Local Government Heritage Guidelines (Department of Planning and Housing 1991) when preparing planning schemes or amendments to assist the conservation and enhancement of places, sites and objects of non-Aboriginal cultural heritage value.

Table 4 (extract) summarises the situation for the subject site:

Areas where built form character is to be preserved

• Ensure that the height and bulk of new buildings, as well as new structures, including signage, respond to site context including the prevailing neighbourhood and heritage character

• Ensure that the development does not undermine the significance of any Heritage Place or Precinct

• Ensure that neighbouring properties are not adversely affected by the scale and bulk of development

• Ensure buildings are designed and located so that levels of sunlight and daylight available to neighbouring properties are not unreasonably reduced

• Ensure buildings are designed to minimise overlooking of adjoining residential properties

• Ensure a high level of on-site amenity for future occupants of new residential developments

14 Aim 5.2 of the City Plan (MSS - Clause 21) is:

To conserve and enhance Melbourne's architectural heritage and historic character, and enliven it by adaptive reuse and innovative promotion" ... "Council aims to conserve and enhance the City's architectural and other heritage and historic assets, including items dating from pre-European times.

15 To contribute to Outcome 5.2.1 of the Plan - Individual places of heritage significance conserved and enhanced - Council will [inter alia]:

• ensure conservation and enhancement of individual heritage places or elements which contribute to their significance, and ensure that development does not detract from them

...

• not support demolition of significant heritage buildings, but allow removal of later insensitive modifications where this will enhance their heritage value

• assess proposals for development close to individually listed heritage places by considering the impact the development would have on the architectural or historic character and appearance of such places

• promote the Melbourne Heritage Restoration Fund as a means of encouraging the proper restoration of heritage places, and assist owners to retain heritage places by access to funds through Council programs

16 To contribute to Outcome 5.2.2 of the Plan - Conservation areas, precincts or streetscapes of historic character conserved and enhanced - Council will

• identify and protect heritage areas and streetscapes

• assess development proposals in or adjacent to heritage places in terms of their sympathy with the character of the area, including street, laneway and subdivision patterns, and give priority consideration to their likely impact

• produce and distribute interpretive information to help people understand and appreciate these areas.

17 The new City Plan (Amendment C60) has been approved by Council and is now with the Minister for approval. Its provisions do not significantly change provisions relating to the subject site.

18 Council has also prepared "Carlton: a Vision to 2010 - Integrated Local Area Plan" which will become a reference document in the Melbourne Planning Scheme on approval of Am. C60.

19 The new clause 21.08-7 Carlton identifies Area 1 (which includes the subject site) as an area which maintains the low scale nature of heritage streetscapes and building and limited residential development.

20 The new clause 21.08-7 identifies five areas as appropriate for student housing. Area 1 is not included.

21 Clause 22.05 - Heritage Places outside the Capital City Zone - sets out the policy and objectives that are relevant to all places within a Heritage Overlay outside the Capital City Zone. Objectives are:

To conserve all parts of buildings of historic, social or architectural interest which contribute to the significance, character and appearance of the building, streetscape or area

To ensure that new development, and the construction or external alteration of buildings, makes a positive contribution to the built form and amenity of the area and a re respectful to the architectural, social or historic character and appearance of the streetscape and the area

22 The subject building is graded B and is in a Level 1 Streetscape. The Planning Scheme describes B-graded buildings as: "... of regional or metropolitan significance, and stand as important milestones in the architectural development of the metropolis ...". Level 1 Streetscapes are: "... collections of buildings outstanding either because they are a particularly well preserved group from a similar period or style, or because they are highly significant buildings in their own right." Policy in respect to "A" and "B" -graded buildings is that demolishing or removing original parts of such a building, as well as the complete building will not normally be permitted.

23 Mr Cicero offered no objection to the application of Mr Hubbard and Ms Sumberg to be joined in the matter. It was directed that they be joined.

24 Mr. Cicero submitted Sheets 1-6 being revised plans and a statement of changes ("Revision C") for acceptance by the Tribunal. He further submitted "Revision D" plans showing further changes proposed by Mr Martyn.

25 Mr Peake offered no objection to acceptance of the "Revision C" and other parties concurred. Mr Peake objected to the introduction of "Revision D" documents.

26 The Tribunal directed that plans be amended by substitution of "Revision C" documents.

27 It was agreed that any matters included in "Revision D" that were relevant may be included by the Tribunal in Conditions to a permit.

28 Mr Cicero offered to include an alternative façade design. Mr Peake opposed the tabling of this design and Mr Cicero withdrew the document.

29 Mr Cicero provided a supplementary report from Mr Cross which appeared not to have been received by the Tribunal. There was no objection to its tabling.

30 We have considered all the submissions and evidence presented and have inspected the site.

31 The key issues for determination are set out below.

• Is the building of heritage significance? In its own right? As a contributor to a Heritage Streetscape? As a contributor to the Heritage Overlay Area?

• Do the works required to repair the building to a satisfactory condition entail a reduction in its significance which effectively negates that significance?

• In the event that the building's significance would be so reduced by necessary repair or maintenance works as to render it insignificant, then should demolition be considered?

• In the event that necessary repair or maintenance works were contrary to the Objectives of the Planning and Environment Act 1987 (s.4) - by virtue of being contrary to s.4(1)(a) (the provision of ... "fair, orderly, economic and sustainable use, and development of land") - should demolition be allowed?

• In establishing whether or not to allow demolition should the tribunal take account of other policies relevant to the issues to be determined (ref Clause 11 of the State Planning Policy Framework)?

• Would the demolition of the building contribute to the conservation and enhancement of:

­ the streetscape; and

­ the HO area.

• Would the proposed new building contribute to the conservation and enhancement of:

• Would the proposed building maintain reasonable amenity for adjoining buildings.

32 If the Tribunal were to determine that the building did not have a sufficient degree of heritage significance to weight consideration toward application of heritage controls by virtue of:

•

Its dilapidation;

•

The effect of necessary conservation works; or

•

Its heritage grading;

the Tribunal may allow demolition and turn its attention to consideration of the proposed new building and its impact on the Heritage Overlay Area. If on the other hand the Tribunal were to find that the building did have the significance ascribed to it in the Planning Scheme, then added weight would be given to the policy direction that permits to demolish would not "normally" be allowed. Establishing what is "normal" may then be a matter for consideration.

33 Mr Peake and Mr Cicero agreed (following Harding v Port Phillip CC [2002] VCAT 416) that it was not the Tribunal's role to determine that the building was not a significant heritage place. It was however agreed that the tribunal should satisfy itself in respect to the degree of significance of the building:

26. Establishing the level of significance of the building ... as distinct from establishing whether it is significant or not significant ... appears to us to be not only necessary in terms of the structure and provisions of the Scheme, but an exercise which we should embark on as a matter of common sense.

34 The assessment of the degree of significance must be in terms of the statement of significance for HO1 from the heritage study and the contribution that the building makes in terms of that statement of significance. Mr Cicero submitted that the terms of the grading system indicated that the assessment of the building's significance must be limited to its 'architectural' significance - not historical or other heritage issues.

35 The building was identified in the expert report of Nigel Lewis (1984) and was graded 'B' ("... as of regional or metropolitan significance, and stand[s] as important milestones in the architectural development of the metropolis ...") It is included in the Heritage Places Inventory 2002: Carlton (Incorporated Document in the Melbourne Planning Scheme); again graded 'B' (with the same definition) and included in a Level 1 Streetscape ("... collections of buildings outstanding either because they are a particularly well-preserved group from a similar period or style, or because they are highly significant buildings in their own right.")

36 Ms Gould agreed with the 'B' grading for the building and the Level 1 grading of the streetscape of the Planning Scheme. She also indicated that the building was an important contributor to the streetscape and heritage overlay area. Ms Gould submitted that:

s

The building is a rare survivor of an early building type which was important in the development of early Carlton and Melbourne.

s

The building is significant as a rare extant Carlton representative of the weatherboard building allowed prior to the introduction of the regulations of the Building Act to Carlton in 1871

s

The building's 'M' form roof and veranda are highly unusual in extant timber buildings in metropolitan Melbourne

s

The building is an important component of the Swanston St streetscape and heritage overlay area, contributing a sense of the scale and construction type of the early development of the heritage overlay area

35 Ms Riddett did not accept that the building was worthy of a B grading. She submitted that:

s

The building was a typical weatherboard cottage, an early wooden building predating the Building Act

s

The building was nothing of architectural distinction

s

The building could not be considered an '... important milestone in the architectural development of the metropolis'

37 It is clear that the Scheme requires a case to be made for demolition of any heritage listed building. In the matter of A, or B, -graded buildings the Scheme intends a stricter test - that demolition will not "normally" be allowed

38 Mr Cicero opined that the 'A', 'B', 'C', 'D' grading now employed by the Council was not hierarchical but rather described different types of place. Ms. Riddett adopted the other position - that a 'B' grade building must be considered as more important than a 'C' building (and so on). The source document, the City of Melbourne's Carlton, North Carlton, and Princes Hill Conservation Study (1984) says:

Each building of historic or architectural significance has been graded from A to F according to its importance

Ms Riddett's interpretation appears to be supported by this wording and is accepted by the tribunal.

39 Evidence submitted by Dr Don Chambers, Ms Gould, Ms Riddett, and the written submission of the National Trust establish the date of construction of the building, with a high degree of confidence, as being close to 1865. This predates the application of the regulations of the Building Act to Carlton in 1871, when timber construction was, basically, prohibited. Dr Chambers' evidence suggested that the building should be considered a "colonial gentleman's residence" owned and tenanted by men of means into the twentieth century - not just 'another timber cottage'. Dr Chamber's research indicates that the property was the most valuable property between Elgin St and Palmerston Place at least until 1870.

40 None of the experts was able to identify another timber building of a similar architectural form (double transverse gable roof) extant in the Planning Scheme area. The National Trust's written submission noted that: "Although small timber worker's cottages were once common in gold-era Carlton, larger timber houses such as this have always been uncommon in the inner suburbs and today are extremely rare."

41 Dr Chambers and the National Trust carefully documented the development of the building and those nearby in the vicinity of Painsdale Place. Dr Chambers concluded that: "The subject house should not be seen as an isolated heritage building, but as an integral part of an unusual surviving 'heritage precinct', typifying the earliest history of this part of what would become widely known as 'Marvellous Melbourne'". The National Trust has classified the building (subject to its Board's approval)

42 In accepting that the building is appropriately grade "B" in the scheme the Tribunal also noted that the definition does not, within itself, include an explanation for its selection, merely a statement of its level of significance.

43 The Tribunal finds that the building at 864 Swanston St is of considerable heritage significance and was properly identified as a "B"- graded building in the Scheme. In particular, it finds that the building is a rare extant Melbourne example of a timber gentleman's residence marking an important stage of Melbourne's architectural development.

44 The Tribunal found that the building was an important contributor to the streetscape and Heritage Overlay area representing the variety of built form and architectural development between 1860 and 1890.

45 In coming to its decision regarding the demolition of the building it appears open to the Tribunal to consider that whilst he building may be of significance, its condition, or works required to maintain its fabric may be so extreme as to negate significance.

46 Ms Gould and Ms Riddett agreed that the building was not structurally unsound. This view was supported by the Council's Building Order - Minor Work of 14 September 2004 which identified (in summary) that:

i. The veranda was structurally unsound

ii. Missing or rotting weatherboards were allowing moisture penetration

iii. Missing or roof sheeting was allowing moisture penetration

iv. Downpipes and guttering did not allow proper discharge of water.

v. Demolition of the front veranda

vi. Replacement of rotten or missing weatherboards

vii. Replacement of missing roof sheeting

viii. Replacement of guttering and downpipes and lawful connection to the stormwater drain

(A Council Emergency Order of the same day required shuttering of the building to prevent entry by squatters or the public)

47 Ms Gould and Ms Riddett agreed, to a significant extent (but with differences of approach and degree), with the works identified by Mr Cross as required to bring the building into a habitable condition. Ms Keeble and the written submission of the National Trust suggested that their approach to the works may be less interventionist (and therefore, presumably, less extensive and expensive) than Mr Cross's proposal.

48 Ms Riddett submitted that the repair of:

s Roofing, gutters and downpipes

s Weatherboards and other joinery

s Footing and chimney repair

s (and other internal finishes)

involved substantial replacement of original fabric and subsequent loss of authenticity. Ms Riddett submitted that nearly seventy percent of the external fabric may require replacement. She identified most of the works as 'reconstruction' (involving introduction of new building materials) not 'restoration' of fabric. She did acknowledge that reconstruction of the veranda and the original sash windows to Swanston St. was acceptable.

49 It was agreed that the weatherboards of the façade to Swantson St are generally in good condition requiring little or no replacement. Inspection suggests that they are likely to be original being contemporary with the original sash window openings.

50 Ms Riddett suggested that the problem was one of 'grandpa's axe' - just when does replacement of parts, as a part of ongoing long term maintenance, amount to a total replacement of the heritage asset and/or loss of its original significance? Ms Riddett further submitted that the current proposal to, in effect, undertake many years' maintenance at one point in time exacerbated the problem.

51 Mr Cicero submitted that no conservation outcome would be achieved by the proposed restoration/ reconstruction.

52 Ms. Gould (supported by Ms Keeble) submitted that the building's architectural significance went beyond the fabric of its construction. It was noted that the form of the building was significant. Additionally, it was submitted that a building can be considered in the context of its location and the space it occupies in respect to its neighbours or the streetscape. (In this respect the front garden was considered not as 'gap' in the streetscape but a feature contributing to an understanding of the heritage place.) Similarly, layout, use, era, construction techniques employed, and appearance can add other dimensions to a place's architectural interest. The Tribunal concurred.

53 The Tribunal took the view that both restoration and reconstruction are approaches to a building's maintenance or repair which are acknowledged by the ICOMOS Burra Charter (and the Planning Scheme) as legitimate processes of heritage conservation. The appropriate balance in a particular case is a matter of judgement but should be based on conserving the cultural significance of the place. In this case there is a building which is both rare and old and we considered it reasonable to place greater weight on the continued integrity of the building 's form and less on the integrity of the cladding. Divergence from appropriate conservation technique occurs more clearly when conjectural reconstruction is undertaken. Here new material or elements are introduced without clear evidence of the original design or fabric; thus raising the possibility that the heritage place becomes 'mock' or a falsified record of the past.

54 In the present case, the extant evidence of original materials and building techniques means minimal conjecture is necessary. Remnant fabric is extensive and construction techniques are clear. Appropriate comparable materials can still be sourced and simply identified as material introduced today.

55 The argument that repairs undertaken 'in one hit' (rather than over a long period of time) are somehow less legitimate from a conservation perspective appears difficult to sustain. Unless works in some way add another chapter to the cultural significance of the place it seems irrelevant when they are undertaken. Indeed it was submitted that works undertaken in a comprehensive way today would provide a positive conservation opportunity - enabling proper recording of any changes and application of current conservation standards**.**

56 The Tribunal found that the works required to repair the building to a satisfactory condition do not entail a reduction in its significance which effectively negates or seriously compromises its significance. Accordingly, it found that demolition should not be considered on this basis in this case.

57 The Tribunal took the view that it was open to it to determine that demolition may not be approved in the circumstances above, but that in the event that necessary repair or maintenance works were contrary to the Objectives of the Planning and Environment Act 1987 (s.4) ( by virtue of being contrary to s.4(1)(a) (the provision of ... "fair, orderly, economic and sustainable use, and development of land") demolition may still be allowed

58 Evidence was submitted by Mr Cross that the cost of re-instating the existing building in accordance with his repair schedule would cost $167,401. To undertake that work and construct a new kitchen, laundry, and bathroom would cost $237,401. He suggested that this amount would exceed the cost of constructing a new building of similar proportions.

59 Mr Cicero submitted that requiring the owner to undertake these works was contrary to s.4(1)(a) .

60 In rejecting Mr Cicero's view the tribunal noted:

•

Evidence from Mr Cicero that the works required were, generally, 'pre-existing conditions' of the building when it was purchased by the applicant. Existing building conditions are matters taken into account in the purchase price by a prudent purchaser and should not be seen as grounds for a claim of unfair treatment under the Act.

•

There is no compulsion on this owner to undertake any works beyond those identified in the Council's repair orders

•

There was no evidence presented which suggested that the proposed student housing scheme was the only sustainable option for the building

•

There was no evidence presented of the cost structure of other potential development schemes entailing retention of the building.

61 The Tribunal took the view that it was open to it to determine the issue of demolition finding that heritage matters, in some circumstances, be outweighed by other matters referred to in Clause 11 of the State Planning Policy Framework.

62 The Tribunal followed Harding v Port Phillip CC [2002] VCAT 416,

"24. ...responsible authorities and this Tribunal are nevertheless required to consider these policies, and having balanced them in the context of the facts of the particular case, come to a considered decision in the interests of the community..."

63 In Port Phillip v A&M Reis [2001] VCAT 489 Deputy President Bruce found that policies must be considered only when they are relevant to the proposal i.e. "... relevant to the decision that must be made." Following this approach certain other policies may be relevant to consideration of the proposed new building but may not be of relevance in considering the question of the demolition of the heritage building. Deputy President Bruce also said:

"In more general terms, it is difficult to justify giving greater weight to a generalised state policy that applies in all urban areas, and particularly residential areas, than to the heritage policy which applies for a very special purpose to a relatively few carefully selected areas of recognised significance."(para 132)

"65. Even though the requirement for a permit for demolition and a permit for construction of new buildings are separate permit requirements, both are part of the implementation of heritage objectives, and I do not consider that the Tribunal is debarred from considering the quality of the replacement building in assessing the application under the decision guidelines ... although issues not directed to heritage would be irrelevant..."

64 The Tribunal found that the dominant control in this case related to heritage conservation. It further found that although the proposed new building was not without merit in some respects; it could not be seen to be meeting the objectives of the HO in any degree sufficient to outweigh the negative effect the demolition of the building would have on the Heritage Overlay area.

65 The Tribunal does not support approval of demolition of the heritage building.

66 Council's policies indicate that the locality within which the review site is situated is designated as an area of stability, while a number of other areas are designated as preferred locations for student housing. We do not consider that this argues against any proposal to locate student housing on the review site. We see the issue of student housing in this location as being policy neutral per se. In the terms of Clause 21.08-7, it would be appropriate to locate student housing on this site if it is "limited ..... (and) ... maintains low scale nature of heritage streetscapes and buildings ...."

67 At the conclusion of the hearing, Mr. Cicero requested that, if we were to resolve to refuse to grant a permit, we should at least briefly indicate our conclusions about the design of the proposed student accommodation. This section of our decision responds to that request.

68 There were objections to a number of aspects of the design of the proposed student accommodation:

•

That the front façade was inappropriate in a heritage streetscape and a heritage precinct and that the design involved copying the details of historic buildings

•

That the building's scale - being part three, part two storeyed - was inappropriate on this site

•

That the full site coverage would be contrary to the neighbourhood character of the area

•

That the building would cause unreasonable detriment to adjoining buildings - through overlooking and shading in particular

•

That the permit applicant has no rights to light and air over the adjoining easement to the north and that this would prevent windows being located along the building's north elevation, thus negating the internal building design.

69 We now respond to these issues.

70 With respect to the building's design, in particular its façade treatment and frontage setback, we conclude that this aspect of the design is acceptable. We consider this design approach to be innovative and to reflect a high order of design creativity. The architect has adopted a quite original approach to fitting a modern building into a heritage streetscape. This is not a heritage streetscape that has a high level of congruity. As Mr. Kavellaris pointed out, the review site sits at a point where the heritage quality of the streetscape changes markedly, with the streetscape to the south reflecting more diverse and non-historic elements.

71 Within this context, we also consider that the placing of windows somewhat randomly within the embossed design pattern of the front elevation to be an acceptable component of the design. Likewise, we agree with Mr. Kavellaris that the required excision of the 'upper-right' part of the front elevation (the result of reducing the number of bedrooms) has in fact enhanced (or more fully revealed) the original design philosophy. In fact, we consider that it has introduced a small element of visual humour to the design.

72 We consider that the proposal to emboss the outline of a Victorian boom-style terrace onto the front of the façade does not constitute the copying of historic details of buildings in the sense to which planning policy objects and to conclude otherwise would be to misunderstand the concept of imitative copying. This proposal involves the creation of something new by re-using but at the same time transforming symbolic representations of the old into a new medium. While the particular style of terrace that has provided the model for the embossing does not occur within this streetscape, we do not consider this to be critical. We suspect that the particular design was chosen because it would be more recognisable against the angularity of the other components of the façade.

73 With respect to the building setback. There was much argument about whether the façade should line up with the wall or balcony fronts of the adjoining building to the north. We do not consider that there is much difference, in the end. This concern is related to design at a micro-level and, in the Swanston Street streetscape with its dominant and partially concealing avenues of elms and the variability of historic building setbacks, we do not consider that this aspect of the design is particularly important. In making this assessment, we are doing so in the context of the finished building in its streetscape setting. We do not consider that it is necessary that it should be hidden away.

74 With respect to the fact that the side walls extend back along the boundary for further than the side walls of terrace houses, we also conclude that, in this particular historic streetscape, this would be acceptable. We do not consider that it is necessary to always reflect all the detailed elements of the bulk of heritage buildings in order for a new building to fit acceptably into a streetscape, though that is one approach that is widely accepted.

75 We also do not object to the fact that the building's elevation will display two levels (it is trifle difficult to discuss storey height when three modern storeys are equivalent to two historic storeys). The streetscape and the heritage precinct are both characterised by tall buildings juxtaposed against low ones. The fact is that the existing building is a single storeyed structure set beside a tall structure is typical of the scene and the proposed building will not be any different, in principle. It would simply move the end of the section of streetscape with a high end wall slightly further south. In terms of heritage streetscape (rather than the impact on adjoining buildings, which is a different issue) there will not be any significant change of scale within the streetscape.

76 In respect to the above design issues, we have concluded that the design would be respectful of the heritage character of the precinct and the streetscape within which it is located.

77 The one issue that we have not resolved in our minds is that of the proposal for 100% site coverage. We acknowledge that the rear section of the site will be single storeyed and thereby would not cause significant detriment to adjoining neighbours. However, the absence of any open space on the site would result in the site's inability to contribute to this aspect of its immediate neighbourhood.

78 With respect to the issue, about which Melbourne University was most concerned, relating to the proposed building's reliance on light and air from the adjoining easement, we accept Mr. Cicero's submission that this is matter to be resolved elsewhere.

79 With respect to the issue of the internal amenity of the proposed design, we accept Mr. Martyn's evidence that this would be satisfactory and that any minor issues could be addressed by permit condition.

80 With respect to the amenity of neighbours, we conclude that this would be acceptable. Additional shading to the south into private gardens would be minimal and overlooking would either be adequately addressed by the proposed screening or could be adequately dealt with by further permit conditions.

81 In conclusion, we consider that the B-graded building on the review site has substantial significance due to its age, scarcity and representation of a once-common architectural form. We also conclude that the building's restoration is not unreasonable and that, although there will be significant proportions of surface material that would have to be replaced as a result of maintenance or reconstruction, that this loss of integrity should be given less weight in this case because of the importance we attach to the continued integrity and the building's form itself and the importance, in the context of this building's history, of this form to demonstrate many of the important characteristics of the building.

82 We have also noted that, if we had been prepared to grant a permit for the demolition of the building, that on most grounds we would have been prepared to grant a permit for the proposed student accommodation.