1. Ms Benbow has applied under section 77 of the Planning and Environment Act 1987 for review of that decision to refuse to grant the amendment.
2. The respondent objector, Mr Zoran Kosanovic filed a statement of grounds indicating an intention to appear at the hearing, although he did not appear and was not represented. His grounds include objection to the retractable awning, its support structures, alterations to overlooking screens and materials thereof on the basis of reduction of bay views from his property, dominance and increased visual bulk, materials being out of sympathy with the rest of the site and an increase of screening.

1. There are two dwellings, Lots 1 and 2, on the western side of 168 Beach Road, Parkdale, and three on the longer eastern side boundary. They are Lots 3, 4 and 5 with 3 being closest to the Beach Road frontage in the south-eastern corner of 168 Beach Road. The property of Mr Kosanovic, Unit 4, is the centre one on the eastern side of the land, and one back from the road frontage.
2. All of the units so far mentioned have two storey townhouses constructed upon them. Permission for a roof deck on Unit 3 has been granted by amendment to the original permit, but has not been constructed. Such permission has been granted in respect to Unit 4 and a roof deck with a substantial structure that appears externally like an extra room has been constructed on top of Mr Kosanovic's townhouse. The townhouses on Lots 1 and 3 are both between his property, including his roof deck, and views across Beach Road and the foreshore to Port Phillip Bay and the coastline.
3. As put forward at the hearing, the responsible authority maintained its position that no permit should be granted. It did so on two bases namely:
   1. That the proposed new amendment allowing the new works cannot be allowed because it would contravene mandatory provisions in the Design and Development Overlay provisions in Clause 43.02 of the planning scheme and Schedule 1 thereto.
   2. In any event, the proposal should not be approved on its planning merits as it would be contrary to neighbourhood character.

1. To determine the first of those questions it will be necessary to examine the Design and Development Overlay provisions, including Schedule 1 thereto. In that connection there have been a number of relevant decisions. However, there is a point to be made about rooftop decks.
2. There is nothing inherently or necessarily wrong with a rooftop deck although, like other developments, there can certainly be circumstances where they are inappropriate.
3. Urban consolidation policies are important and imply closer settlement in parts of the metropolis. There is already fairly close settlement in many inner suburbs and densities have been and are being increased with the advent of medium density developments and re-developments, and also high rise residential developments. Open space, including secluded private open space is sometimes sacrificed to accommodate urban consolidation.
4. In suitable circumstances roof decks can provide an opportunity for the provision of secluded open space useful for recreation and amenity purposes in relation to medium and higher density residential developments. They are not always appropriate in all circumstances, and sometimes only with the imposition of conditions to protect streetscapes, neighbourhood character and the amenity of nearby residents. They are notably popular in bayside situations and other situations where attractive views can be obtained from them.
5. Their use and usefulness are recognised in the planning schemes based on the Victoria Planning Provisions including the Kingston Planning Scheme. Clause 55.05-4 in the so called 'ResCode' provisions relates to two or more dwellings on an allotment. It contains an objective in relation to private open space and Standard B28 whereby the objective can be satisfied.[3] It provides dimensions for the provision of private open space in three different forms namely open space of specified dimensions at the side or rear of a dwelling, a balcony of not less than 8 sq m with a width of 1.6m and, relevant for present purposes:

A roof-top area of 10 square metres with a minimum width of 2 metres and convenient access from a living room

1. Admittedly the roof deck relating to Lot 1 in the present case does not have that access but it is additional to the open space originally provided for its townhouse which, of course, pre-dated the roof deck. My mention of it here is simply to document the planning scheme's approval of roof decks, at least in suitable circumstances.

1. This land is located in a General Residential Zone as provided for in Clause 32.06 of the planning scheme. The purposes of the zone, recorded in that clause include:

To encourage development that respects the neighbourhood character of the area.

To implement neighbourhood character policy and adopted neighbourhood character guidelines.

To provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport.

1. The Design and Development Overlay provisions that apply to this site are found in Clause 43.02 of the planning scheme.
2. The purpose of the overlay includes the identification of areas which are affected by specific requirements relating to the design and built form of new development. It is common for bayside and coastal municipalities to employ a design and development overlay to impose height controls. Under such overlays relating to foreshore and nearby areas this is commonly done by means of imposing an overlay with an appropriate schedule relevant to such purposes. It will be seen that the Kingston Planning Scheme is an example. There are other examples including the Bayside Planning Scheme and the Hobsons Bay Planning Scheme in relation to Williamstown in the vicinity of Hobsons Bay.
3. Clause 43.02-1 requires such a schedule to contain a statement of design objectives for the area affected by the schedule.
4. Clause 43.02-2 relates to buildings and works. It provides that a permit is required to construct a building or to construct and carry out works unless the schedule specifically states that a permit is not required[4]. Buildings and works must be constructed in accordance with any requirement in the schedule. They commonly include requirements relating to building height and other requirements relating to the design and built form of new development. A permit can be granted for buildings and works not in accordance with such requirements although that power of variation does not apply if the schedule specifies otherwise.
5. Clause 43.02-5 details a number of decision guidelines to be taken into consideration when determining a permit application. These include the decision guidelines in Clause 65 of the planning scheme, and the State and Local Planning Frameworks including the Municipal Strategic Statement and local policies. They include design objectives in the schedule; relevant policies and urban design guidelines relating to; the bulk, location and appearance of proposed buildings and works to be in keeping with the character and appearance of adjacent buildings, the streetscape or area, and any other matters specified in the schedule.

SCHEDULE 1 TO THE DESIGN AND DEVELOPMENT OVERLAY

1. This relevant schedule is headed URBAN COASTAL HEIGHT CONTROL AREA and contains a number of design objectives. They include the protection and enhancement of the foreshore environment in relation to various parts of the municipality, including Parkdale, and adjacent areas to Port Phillip Bay. It is an objective to ensure that new buildings, works, renovations and extensions are compatible with surrounding buildings as well as natural features and that they are sympathetic to surrounding natural landscape and environment. A particular objective reads:

To relate building heights, building bulk and setbacks to adjoining sites so that they are compatible with and enhance the appearance and character of the immediate locality.

1. It will be recalled that the responsible authority has declined the amendment sought in this case on planning merit grounds. The decision guidelines in the overlay provisions and the design objectives just referred to call up such matters for consideration.
2. However, the responsible authority has also taken the view that Clause 2 of Schedule 1, correctly interpreted, raises a legal basis for rejecting the proposed amendment.
3. Clause 2 is divided into two parts. The first deals with situations where a permit is not required. The second is headed 'Permit requirement'. It is that second part that gives rise to the legal problem perceived by the responsible authority. However, I will deal first with the first part and I will seek to clarify a doubtful point that was argued about at the hearing.

A permit is not required to construct or carry out:

• Navigational aids.
• Radio mast.
• Television antenna.
• Television antenna associated with a building.
• A building which has an internal storey height (measured from floor to ceiling) of 3.5 metres or less. This internal storey height requirement does not include stairwells which comply with the overall height requirements.[5]
• Works which do not exceed 6.0 metres in overall height.

1. There was a suggestion that the second last of those points just quoted means that buildings with internal storey heights of 3.5m or less do not require planning permission, even if that permission is required elsewhere in the planning scheme.
2. That can hardly be correct. A proposal of 10 vertical storeys, each of 3m and containing 20 dwellings, will need planning permission under other provisions and is not exempted from those other provisions by this one. Furthermore, exemption from the need for a permit would not overcome a prohibition.
3. I consider that this provision is limited to the Design and Development Overlay and, in particular, this Schedule 1 thereof. I consider that it means that if internal storey heights exceed 3.5m a permit is required for that aspect, but not otherwise. The exception in favour of stairwells makes sense. As a stairway is to provide access from a storey to the one above, a ceiling in the stairwell at 3.5m above the level of the floor below would prevent access to the floor above.

Permit requirement Clause 2 of Schedule 1 to the Design and Development Overlay

1. It is this provision that raises some problems and doubts. I will quote only the relevant part as follows:

The following requirements must be met before a permit can be granted[6]:

• A building must not be greater than 2 storeys in height (which may include a basement car park with a minimum height of 1.2 metres above natural ground level.

A permit cannot be granted to construct a building or to construct or carry out works, which are not in accordance with the above requirements.

1. The interpretation of the requirement that the building must be no greater than two storeys in height has given rise to difficulty and doubt in cases arising in Kingston, Bayside, Hobsons Bay and perhaps other municipalities containing Design and Development Overlay and schedule provisions in these terms.
2. The schedule relates to height control. It imposes a limit on height. That limit is expressed in terms of storeys, not metres. The only concession in that height limit is that a basement car park will not cause the building to be assessed as more than two storeys if the basement protrudes above natural ground level by not more than 1.2 metres.
3. That provision, in relation to a basement car park, will overcome the problem discerned in Vincent v Hobsons Bay CC[7] discussed in Lee v Hobsons Bay CC[8] both of which are referred to in my reasons in the recent case of Eastwood v Hobsons Bay CC[9]. In paragraph [14] of Vincent a Deputy President of the Tribunal[10] said:

In my view these proposed units do not exceed the height of two storeys as those expressions are used in the Planning Scheme. It may be conceded that insofar as the basement's protrusion above ground does not exceed 1.2m it is not 'storey'; however the prohibition is not upon building exceeding a particular number of storeys, rather it is against buildings exceeding a height of two storeys. These proposed buildings are two storeys high plus 1.2m. In the circumstances therefore they would, if built, clearly exceed the height of two storeys.

1. It is clear that, within Schedule 1 to the Design and Development Overlay in the Kingston Planning Scheme as presently expressed, the exposure by 1.2m of a basement car park is not to be taken into account in determining whether a building exceeds the two storey height limit. That does not necessarily mean that everything that exceeds the height of two storeys would contravene the two storey height limit.
2. It is obvious that a three storey building would contravene a two storey limit but the limit is not expressed in terms of saying that there can be two storeys but not three or more storeys. Rather it says that a permit cannot be granted for a building greater than two storeys in height and that a development doing so is accordingly prohibited.
3. It is obvious that buildings must have some features above the ceiling of their upper floor, and that other features, above that level, though not essential, may nevertheless be acceptable additions to a two storey building which would not, in ordinary understandings, make it more than a two storey building.
4. In the reasons in Eastwood v Hobsons Bay CC I observed that a roof is an essential to a building and will be constructed above the ceiling of the upper level. Likewise, at least in the past, chimneys were probably as essential. Items in clause 2 such as radio masts and television antennae do not require planning permission, and are not prohibited having regard to clause 2 of the schedule.
5. Other items that might appear above the level of the upper floor ceiling could include architectural features such as decorative pediments, terracotta dragons, Grecian urns, and perhaps a false tower on an elaborate Federation style dwelling.
6. However, a feature of these above ceiling examples is that they are not habitable. They are not there to provide a place for human beings to occupy nor are they structures intended to prevent weather from entering stairwells or lift wells giving human access to above upper ceiling areas to be occupied by human beings. In Eastwood v Hobsons Bay CC at paragraph [43] there is reference to Payton v Kingston CC[11] where the concept of attic was discussed on the basis of an attic being an habitable room in a roof space but that there would not be an attic if there was no floor so that a person in the space would have to crawl from purlin to purlin.
7. Clause 72 of the planning scheme defines storey to mean:

That part of a building between floor levels. If there is no floor level above, it is the part between the floor level and ceiling. It may include an attic, basement, built over carparking area, and mezzanine.

1. The idea of an habitable attic is that it is able to be occupied by people, usually with the benefit of light, outlook and air by virtue of dormer windows, recessed windows or skylights. Such features, of course, betray habitable space within the roof space and, as I understand it, an extra storey accordingly.
2. I have mentioned that roof decks are recognised as a possible and, in appropriate circumstances, acceptable private open space area and that they are recognised as such in the ResCode provisions of the planning scheme, see Clause 55 previously referred to. I have also mentioned the popularity of such decks generally, and in particular in relation to bayside situations and perhaps others where favourable views are to be obtained therefrom.
3. Having regard to the clause 2 provisions now under discussion, it is not so much a question as to whether such a roof deck on an otherwise two storey townhouse is a third storey as whether it amounts to a building greater than two storeys in height.
4. In the reasons in Eastwood there is discussion of a series of cases, some of which were referred to at the hearing of the present case. I think it is fair to say, from reading the cases referred to in Eastwood, that the Tribunal and parties, including responsible authorities, have found it no simple task to interpret and apply provisions of the sort now under discussion. Reconciliation of all propositions in all cases may be difficult. I note that in Cosgrave v Hobsons Bay CC [12]the Tribunal, after referring to the cases of Poci Brothers Pty Ltd v Bayside CC[13], Cope v Hobsons Bay CC[14] and Hill-Murray v Hobsons Bay CC[15] concluded that a roof deck with no ceiling above it exceeded two storeys and that the roof terrace was contrary to the Hobsons Bay equivalent of Schedule 1 to the Kingston Planning Scheme.[16]
5. In Misquitta v Hobsons Bay CC[17] reference was made to Cope, Cosgrave, the Kingston case of Neil Fletcher Design Pty Ltd v Kingston CC[18] and Poci, see paragraphs [95] and [96] of Eastwood. In Misquitta the Tribunal noted that access to the roof terrace was by a lift and stairwell both constructed with solid walls and window above internal ceiling height. It held that the building exceeded two storeys and was contrary to the schedule.
6. Stein v Hobsons Bay CC[19], referred to at paragraph [97] of Eastwood, is a further and similar decision that made reference to Misquitta, Cosgrave, Cope and Poci and where the Tribunal, at paragraph [8] of the Stein decision said:

The aim of the DDO4[20] is to limit development to two storeys, and, having regard to the approaches adopted in Misquitta and Cosgrave, the intent or purpose of the Overlay is to ensure that the development has the visual appearance of, and can be categorised as being two storeys. These decisions were decided on the facts of each case where the Tribunal formed the view that the proposed roof decks would appear as a third level and would for this reason be contrary to DDO4.

1. I agree that the assessment as to whether a building is greater than two storeys in height is a question of fact, indeed a question of fact and degree, and that it must be determined on the facts of each particular case. I note that Cosgrave, Misquitta and Stein are decisions of planner members of the Tribunal who are not lawyers, but such members are intended to assess questions of fact and degree where they arise, just as much as lawyer members.
2. It seems to me that it would be helpful if Schedule 1 to this design and development overlay and the equivalent schedules in similar terms in other planning schemes like Bayside and Hobsons Bay were to be clarified in relation to the intended position concerning roof decks. Are they intended to be permitted or prohibited or permitted subject to the grant of a permit? If the latter it would further be helpful if there was guidance as to relevant considerations.
3. In Eastwood I considered the cases mentioned above in some detail and I adopt the reasons and conclusions that I arrived at in the reasons for that decision.
4. Another case, not mentioned or referred to in Eastwood, was referred to in the hearing of the present case. That is Park v Bayside CC[21]. This was another Bayside roof deck case determined on the Bayside Planning Scheme as it stood in 2002. In that case, at paragraph [26], the Tribunal, constituted by a respected planning member, considered a submission as to whether a 'stair bulkhead' constituted a storey and whether it fell foul of the provision in relation to the floor to ceiling height not excluding 3.5m in the context of whether a permit was needed. I am not sure, with respect, whether I would have used the word 'bulkhead' in this context. I take it to have meant the walls and roof above the landing and stairwell giving access to the roof deck.
5. The Tribunal found that the bulkhead could not be said to be a 'floor' in the commonly understood sense with no mention of 'storey' in that regard. It was said to be a conduit between levels namely the first floor below and the deck above. The determination was that the ceiling height from first floor floor to roof or ceiling above the 'bulkhead' exceeded 3.5m so that a permit was required.
6. The Tribunal was not required to determine whether the proposal was prohibited as exceeding two storeys. It did not need to decide that point because it determined that the proposal should not be approved on neighbourhood character and amenity grounds. That decision was not just in relation to the roof deck question, but related to other aspects of the proposal. The Tribunal said at paragraph [36]:

[36] I am confident that in the hands of a skilled architect and with the careful selection of materials and landscaping, a satisfactory solution could be achieved albeit, most likely, without the use of a roof deck. I must say that I find the two storey height limit in the Design and Development Overlay to present somewhat of a difficulty in terms of achieving an upper level structure which complements the building as a whole whilst otherwise avoiding the prohibitions of that clause. It seems, judging from other such structures in the area - for example those depicted on the photos submitted by Ms Bowdern - that an effect of the height control is that these structures tend to have the appearance of an 'add-on' rather than an integrated design element.

1. I am cautious of Hill-Murray v Hobsons Bay CC[22] if it suggests that appearance of two storeys is everything and that, a reality of three storeys does not matter so long as it appears externally as two. I expressed my reluctance to follow such a proposition in Eastwood, see paragraphs [88] to [93]. However this present proposal would not appear externally as a mere two storeys. If not fully three storeys it is still more than two.
2. I adhered to the conclusion that I reached in Eastwood and the reasons given in that case. In most respects it was similar to the present case. There are two aspects in which it differs and which might be regarded as material in the circumstances.
3. In Eastwood there was an existing roof deck and an existing stairway to reach it with the stair head enclosing a landing with walls and roof preventing weather from entering the stairwell, but there was also, adjacent thereto, a room with walls and windows used as a study. This was an habitable room, and it was admitted that the townhouse, in that case, was already of three storeys. Permission had been given for what was then on the land.
4. In the present case there is a similar stairway landing, walls and roof, but no habitable room and no admission of there being a third storey.
5. Furthermore, in Eastwood the case concerned permission, by way of permit amendment, for the construction of a roof over the existing roof deck. This roof had already been constructed and was a fixture supported on fixed uprights with open to the air between the roof and the balustrade below. The application sought retrospective permission for the fixed roof and supports which were clearly visible from some aspects of the public realm, including the front street. They clearly indicated an habitable space at second floor level, whether or not occupied for the time being.

1. In the present case there is proposed to be fixed supports, including fixed uprights and fixed extension channels but a retractable canvas awning. These features would be visible from Beach Road although not from positions close up to the frontage of the townhouse where the first floor structure would obscure views. Of course, the view and perception of an occupied or occupiable space would be more obvious when the awning was extended. In this connection it was suggested, on behalf of the applicant, that a condition might be imposed requiring the awning to be retracted when the roof deck is unoccupied and at night.
2. Apart from the awning and its facilities, the proposal also includes an extension of overlooking screens and conversion to a structure that would be thicker and have the appearance of masonry, rather than the obscured glass presently employed. Part of the extension of screening is at the request of the occupants of Unit 3 to prevent overlooking into one of their habitable room windows.
3. The roof deck, its screens, balustrades and second floor built structure already gives an impression of an habitable second floor level (that is to say a third level). I am not called upon to make any decision in relation to what is already there. I note however that the situation is one that was not allowed in several of the cases I have referred to and was at least disapproved of in Park's case.
4. The same is also true, indeed more pronounced, in relation to the more substantial structure and roof deck on Mr Kosanovic's roof at Unit 4. Again, that is not before me.

1. As to the interpretation and application of the prohibition of buildings exceeding the height of two storey, except for basement car parks to the extent of 1.2m above ground level, I think the best available resolution of the dilemma is to say that inanimate structures that are sometimes essential like roofs and otherwise inanimate additions like pediments have to be regarded as normal and acceptable parts of two storey buildings that do not offend against clause 2 of Schedule 1. However, I think that habitable spaces on roofs, whether in the form of a third storey or not, exceed the two storey limit.
2. Even if what is already there appears more significant than the proposed further addition, that does not seem to me to be a reason to extend and consolidate what is there.
3. The responsible authority, in any event, disapproves of the proposed amendment on the grounds of planning merit including neighbourhood character, visual amenity, compatibility with streetscape. I have already referred to the purposes of the General Residential Zone in relation to neighbourhood character, the decision guidelines in clause 43.02-5 and the design objective in relation to building height and compatibility with the appearance and character of the immediate locality. The decision guidelines in clause 43.02-5, it will be recalled, are concerned with bulk, location and appearance, and with being in keeping with the character and appearance of adjacent buildings and the streetscape. I have also been referred to clause 21.08 dealing with foreshore in the Municipal Strategic Statement and I note that one of the strategies to Objective 3 is to protect existing height controls along the foreshore reserve and in adjacent residential areas.
4. The responsible authority was clearly concerned about the proposed roof deck as a matter of planning merit and made mention of the appearance of an add-on. I share those concerns and am likewise concerned about the appearance of a habitable upper level, above two storeys, whether or not it amounts to a third storey.
5. In the circumstances, and for the above reasons, I uphold the decision of the responsible authority to refuse to grant the amendment.

[1] She is joint registered proprietor of that land with John Charles Benbow.

[2] Which has become Lot 1 under a subsequent subdivision creating separate titles for the five dwellings that now exist on 168 Beach Road, Parkdale.

[3] The requirements of Standard B28 can be varied in local provisions in particular planning schemes.

[4] There are other exceptions where a permit is not required, but they are not relevant for present purposes.

[5] This is the provision calling for some comment.

[6] Remembering that the overlay provisions in Clause 43.02-2 provided that a permit is required to construct or carry out buildings or works and bearing in mind that building includes part of a building unless the schedule says otherwise, where this schedule does not say otherwise.

[7] Administrative Appeals Tribunal decision in application No. 99/08003.

[8] [2000] VCAT 1520.

[9] [2016] VCAT 662 [36] and [56] and thereafter.

[10] Later appointed County Court Judge and Vice-President.

[12] [2011] VCAT 519.

[13] [2003] VCAT 1884.

[14] [2004] VCAT 2487.

[15] [2007] VCAT 1764.

[16] See paragraph [94] of Eastwood v Hobsons Bay CC.

[17] [2012] VCAT 1775.

[18] [2011] VCAT 1184.

[19] [2013] VCAT 1828.

[20] The equivalent to the provision now under consideration.

[21] [2002] VCAT 808.

[22] [2007] VCAT 1764.