1. I am indebted to Mr William Chow, the consultant town planner who appeared for the responsible authority, for the following description of the review site which I have drawn from pages 1-3 of his written submission:

The review site is located at the corner of Maysia Street and Quantock Street, approximately 1.8km to the east of Camberwell Junction.

The site is located in an established residential area in Canterbury that was fist developed during the Inter-war period. It forms part of an area known as the Hassett's Estate, which is described in part as "a particularly well preserved and notable collection of the prevailing styles of the 1920s - 30s, judged among the medium sized house type, with emphasis on the Mediterranean villa style."

Maysia Street is a charming residential street with a fine collection of Inter-war houses which endow the streetscape with a high degree of architectural "intactness". As with most roads in this Estate, the road pavement is surfaced with concrete. Land falls from north down to the south, resulting in Maysia Street having a high and a low side. The review site is located on the high side.

The 646sqm corner site is regularly shaped, 17.35m wide and 38.10m deep. It currently has a single storey red brick house that appears to have been built around 1930. The house has a hipped tile roof and timber sash windows. The rear portion of the house appears to be a relatively recent addition. There is no car accommodation on the site. Vehicle access is via a brick paved driveway off Quantock Road.

The eastern side of the property is used as a service yard, with a hot water heater and central heating unit sited in this narrow space. The side yard is secluded from the street by a gated brick wing wall.

There is a soil excavation covenant on title that Council considers not to be contravened by the proposed works.

Adjoining development comprises other heritage dwellings, i.e.:

East: 13 Maysia Street - Carina residence, single storey rendered masonry house (Inter-war). Several windows on side wall face the review site. Driveway and garage along shared side boundary.

North: 12 Alta Street - single storey brick house (Inter-war) with a detached garage and a large eucalypt located close to the shared rear boundary.

1. I am further indebted to Mr Chow for the following description of the proposal.

The application proposes to demolish part of the existing house and to construct new works including a second storey extension on the land. Key details of the proposed works are as follows:

• East wall - remove laundry and bathroom wall, remove wing wall.
• Rear wall - remove laundry wall.
• Roof - remove in part to allow first floor addition.

• First floor addition comprising master bedroom, study, bathroom, balcony. Rendered walls with pitched tile roof above to match existing.
• Ground floor - minor internal repartitioning.
• East wall - laundry and bathroom extended further out, wing wall reconstructed closer to frontage to incorporate new storage shed.
• Rear wall - extended further out to enclose enlarged living areas on ground floor.
• Rear yard - new pool, pergola, gate and stairs to existing deck. Driveway shortened and retaining wall constructed to enclose car space for one car.

1. The first part of the hearing was occupied in considering a legal question raised by Mr Bell on behalf of Ms Carina. Notice that such a point would be raised was given to the other parties prior to the hearing in a letter signed by Ms Carina upon which I cannot find a date although the copy handed to me has a note saying it was received at 11:45 on 11/6/8 (sic)[1]. The restrictive covenant in question covers a number of topics, most of which are not relevant. The portions relied upon read:

...shall not excavate, carry away, remove or allow to be excavated, carried away or removed any marl, stone, earth, clay, gravel or sand there from except for the purpose of erecting a building on the said Lot... and that not one more than one dwelling house with the usual outbuildings shall be erected, built or constructed on the said Lot and that the roof of such dwelling house shall not be covered with any material other than tiles or slates

1. Submissions were made in relation to the restrictive covenant, and some arguments are set out in the letter although some of them represent misunderstandings of provisions in the Act. It is pertinent to note that Section 61(4) of the Planning and Environment Act 1987 ("PE Act") provides that if the grant of a permit would authorise anything that would result in the breach of a restrictive covenant the responsible authority must refuse to grant the permit unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of the covenant.
2. In other words, if the current proposal would authorise something that contravenes the restrictive covenant, a permit cannot be granted at this stage, or at any later stage unless the covenant is removed or varied.
3. There is no proposal here for more than one dwelling house, and no proposed contravention of that provision.
4. It is well recognised that a restrictive covenant, which arises from a contract for the sale of land, has to be interpreted in accordance with its words in their context having regard to the intention of the parties at the time of making the contract and entering the covenant. Tonks v Tonks[2] is a Supreme court authority frequently cited in this respect.
5. Interpreting the restrictive covenant in this way, I believe the reference to covering of the roof really means the roofing material must be tile or slate. I do not think it is correct to interpret covering here to include such things as solar panels. Such things were, I believe, unknown at the time the restrictive covenant was created in the 1920s.
6. In relation to the prohibition on the removal of marl, stone, clay, sand, gravel and the like, the point was raised as to whether the proposal to construct an inground swimming pool would be a breach of this portion of the covenant.
7. I accept that the construction of such a swimming pool amounts to works within the meaning of the planning legislation and as such requiring permission under the Heritage Overlay.
8. The question of whether excavation for an inground pool contravenes a covenant worded like this one has been considered by the Tribunal on quite a number of occasions. Mr Bell, on behalf of the objector, referred to only one of those cases namely Isles v Glen Eira CC[3]. The decision in that case supported the notion that an inground swimming pool would fall foul of such a covenant. However, quite a number of cases have declined to follow Isles case. I was referred to a number of them including a decision of my own in Shaw v Glen Eira CC[4]. In that case I discussed the question in paragraph [11] to [24]. I discussed the question there at some length, and I am content for the purposes of this case, to adopt what I said in those paragraphs. I read them out in the course of the hearing in this present case.
9. In doing so I noted that the actual wording of restrictive covenants vary, and such variations can have a significant effect on the proper interpretation of provisions. In that case there was a similar reference to excavation, carrying away and removal of earth, clay, stone, gravel or sand except for foundations of any building to be erected and there was a further restraint that the land was not to be used for the manufacture or winning of bricks, tiles or pottery ware. That initial restraint is immaterial for present purposes, and otherwise the covenant in Shaw's case does not materially differ from that in this present case. For the reasons announced orally in the hearing, and set out in Shaw's case I ruled that this part of the covenant relates to extractive industry type activities rather than excavation for domestic works like a swimming pool, a lily pond, a trench or even installation of a Hill's clothes hoist, and is not contrary to the covenant. As such I ruled that there is no problem in this case under Section 61(4) PE Act or otherwise and that the case could proceed.

Merits of the Proposal in Relation to Heritage Overlay Provision

1. In this case I have the advantage of the written submissions presented by Mr Chow on behalf of the responsible authority. He referred me to various planning purposes and policies in relation to the Heritage Overlay provisions themselves, the State Heritage Policy in clause 15.11 of the planning scheme, local heritage policy in the local planning policy framework at clause 22.05 and the Hassett's Estate & Environs, Heritage Guidelines 1997. I note that a certain difficulty arose in relation to the Hassett's Estate & Environments, Heritage Guidelines. They are mentioned as a reference document in clause 22.05-4, or at least a document is named there as "City of Booroondara Hassett's Estate and Environs, Canterbury, 1997". It can be seen that the name specified in the policy reference section of clause 22.05 is a somewhat different name to that mentioned by Mr Chow. The title of the document he produced as an attachment to his submissions was entitled HASSETT'S ESTATE & ENVIRONS, HERITAGE GUIDELINES. There is no reference there to the year 1997 and a footer note on the bottom of each page includes the words "Hassett's Estate and environs - Draft Heritage Guidelines".
2. There is no mention of "draft" in the planning scheme provisions. Is the actual reference document the later version than the draft produced by Mr Chow? He produced it because he was instructed that the one he produced was the current document.
3. The situation becomes a little more complicated because the version of the document provided to Ms Carina, and that given to Ms Robyn Riddett (the conservation architect called on by Mr Zagami on behalf of the permit applicant); is also referred to as "draft", and differs slightly from that produced by Mr Chow. Its title is "HASSETT'S ESTATE AND ENVIRONS DRAFT HERITAGE GUIDELINES 1997" and has the footer "Hassett's Estate and Environs - Draft Heritage Guidelines".
4. These versions differ only slightly from that produced by Mr Chow. Some of the difference is in setting out of numbering but there are a couple of slight changes in wording and the sight line diagrams are not identical.
5. These discrepancies are unfortunate. It appears that Ms Carina has devoted an enormous amount of time, work, thought and emotional commitment to the preparation of this case not only in relation to the immediate hearing, but also over many months leading up to the hearing. She, and Mr Bell on her behalf, have sought to take a very strict, indeed narrow view in relation to the proposal, and have prepared a case of very considerable length and detail. They have devoted great attention to all the documents they have found that are relevant, and some that are not. They have sought to derive maximum benefit from the contents of such documents, including this Hassett's Heritage Guidelines. Inevitably it must have been very frustrating to them, as it was to me and the others participating in the hearing, to find these discrepancies as to the Hassett's Heritage Guidelines, and the uncertainty as to whether any of the versions before the Tribunal is indeed the one referred to in the planning scheme as a reference document.
6. All that said, Ms Riddett, working from the same draft as Mr Bell and Ms Carina, gave it as her expert opinion that the proposal is quite satisfactory in terms of the Hassett's guidelines, as well as other relevant policies.
7. Mr Chow's instructions are that the Council's heritage consultant has come to a similar conclusion, save for the dispute in relation to the conditions which I will discuss later.
8. The initial proposal differs from that now under consideration. The material difference, in this respect, concerns the upstairs element and particularly the upstairs study. The original version involved more destruction of original roof material, and the intrusion of the study further towards the front or south over part of the original house (as distinct from the c1992 rear addition).
9. That original version was submitted to the Council's heritage consultant for an assessment and he provided a written assessment in which he disapproved of that aspect of the proposal. In his conclusion he said that the proposed development does not satisfy heritage policies, and he specified the changes to be required to make it satisfy heritage policies, or permit conditions needed in that respect by saying "restrict the proposed addition to over the existing rear addition (clear of the main roof i.e. omit or relocate study)".
10. As a result the current version of the plans was produced which substantially complies with that requirement, although Mr Bell wishes to argue that such compliance is not complete. The incompleteness of compliance with such requirement is, however, marginal.
11. Mr Chow's instructions are that, so modified, the current proposal satisfies the Council's heritage consultant. Mr Bell argues that there is no written assessment to that effect and none has been produced before me. The only written reference is one in the planning officer's report on the proposal. Unfortunately the copy of the officer's report provided to the Tribunal reproduces only the even page numbers of the report, omitting each page that has an odd page number. Unfortunately the passage referred to my Mr Bell was on an odd numbered page, and I do not have access to it at the time of writing these reasons. However, I was referred to that portion of the text in the course of the hearing. The statement in the report is hearsay to the extent that it is the officer's account of what the consultant has apparently said orally. The statement in the report, for what it is worth, approves of the alteration made as a result of the criticism in the original assessment, but does not make it completely clear and explicit as to whether the consultant was completely satisfied in that respect. On the balance of probabilities in all these circumstances, and on the evidence presented to me, that the consultant does accept the current proposal as satisfactory. In any event, ultimately it becomes my decision, whatever expert opinions might be expressed by the consultant, or indeed by the expert witness called on behalf of the permit applicant.
12. I note that this existing house has been graded as a 'D' grade building which is the lowest classification available in the system of classification adopted by the responsible authority. Furthermore, the building appears in a level 2 streetscape which is the intermediate level between 1 and 3.
13. Nevertheless, although not completely intact and completely unaltered, the existing building is of some interest and some heritage value, and makes a contribution to its streetscape from a heritage point of view. Other properties, including that of Ms Carina do likewise, although there are various intrusions and alterations, including extensions; not all of which can be described as favourable to or harmonious with the heritage interest of the area which has justified the imposition of the Heritage Overlay.
14. I return now to the survey of the case put by Mr Wong on behalf of the responsible authority as set out in his written submission. He referred to a proposed amendment C66 but I accept, for the reasons he gave, that it does not bear on the matters in issue in the present case.
15. He then went on to expound the Council's case for its decision to grant an approval. The major aspects are the first floor extension, the eastern sideway including the question of loss of fabric and the permit applicant's appeal against conditions.
16. I can say that I agree with and adopt the reasons given by Mr Wong in relation to each of these matters.

1. Taking that view in relation to the first floor extension, I am not accepting what I consider to be the overly strict narrow and even purist and precious approach argued for by Mr Bell. In saying this I do not mean that the issue is not important, but that seeking more or less complete invisibility and more or less no loss of any original fabric in relation to the first floor extension goes beyond the reasonable application of the guidelines in the circumstances and would appear to be actually prohibitive of the first floor extension, notwithstanding that Mr Bell disclaimed any such intention. He said that such an extension was accepted, but it was a matter of what conditions and restrictions should be imposed upon it.
2. The proposed extension will be visible, from the public realm and from adjoining private land. In my opinion any reasonable extension will be visible, although it is a matter of degree. Some of the photographs of other sites produced at the hearing demonstrate things that certainly should not be allowed. Nevertheless, some minor diminution of the already not quite pristine structure and fabric has, in my opinion, to be accepted.
3. I regard views from the public realm, and particularly the front street, that is to say, Maysia Street as the most important. The first floor extension should be substantially hidden and only quite marginally visible, for example, from the footpath on the opposite site of the road. It is inevitable, or very nearly inevitable, that any reasonable first floor extension will be visible to some extent on oblique views from positions east or west in Maysia Street, including between the house on the review site and that at 13 Maysia Street, and across the intersection with Quantock Road. The views from Quantock Road are still important, but less so whereas views from the adjoining land across the eastern side and northern rear boundaries whilst still warranting consideration, are substantially less significant.
4. Mr Chow points out that the guidelines do not require invisibility but list propositions in relation to visible additions in the following terms:

When viewed from the street, visible additions should be:

• Of a lesser perceived volume and bulk than the original extended building;
• Relatable in roof form and plan form to the original building; and
• Recognisable as a separate element.

1. He asserts that the proposal is able to comply with those requirements and goes on to enlarge on various aspects, I have concluded that the first floor extension, in its modified form, is acceptable.

1. The existing house is set back sufficiently from its eastern side boundary to allow a walkway down the side from the front garden to the rear yard. This setback is wider in relation to the original house and narrower in relation to the c1992 extension. Some distance back from the front wall of the main house there is a so-called "wing wall". This is a brick wall at right angles to the side boundary and the side wall of the house, and running between them. It has an arched doorway or gateway through it with a centrally located door or gate.
2. This is asserted to be original fabric in relation to the original house, or at least a very early addition. The evidence given to me is not clear as to whether this wing wall is "keyed in" to the side wall of the house. The wing wall is set back from the face of the front wall. The proposal envisages its demolition and re-erection at a position that would be in line with the front wall or set back only fractionally from the alignment of the front wall. The plans depict the wall relocated in that position with a small shed occupying the space immediately behind the newly placed wing wall. This shed appears in plan with a doorway or gateway into the shed from the front garden located not centrally, but against the eastern boundary fence. This is supposed to be a storage area for bicycles and other material and it is also supposed to provide a continuing walkway so that someone coming from the front garden can enter the front door in the wing wall, pass through the shed into the remaining sideway.
3. Apart from the planned location of the shed, and the location of its proposed doors, there are no drawings, plans, elevations or specifications in relation to this structure.
4. I find it strange that the advisors of the permit applicant could think that permission for such a shed related to such a wall would be given in the absence of all this information. When cross examined as to this, the permit applicant's heritage witness was repeatedly obliged to say that she could not comment as she did not know what was proposed. I would not be prepared to grant permission for this feature in these circumstances.
5. The responsible authority, in any event, has required by paragraphs (a) and (b) of condition 1 a modification of plans, before approval, to delete the shed and retain the existing wing wall in its existing position. Part of the reason for this is the unnecessary compromise of the authenticity of this feature of the existing development that would otherwise be occasioned. I agree with this, in addition to not being prepared to grant planning permission under a Heritage overlay for something when I do not clearly understand what that something is.
6. An even more surprising aspect was that, in the last few minutes of the hearing, it was revealed that even the plan depiction of the shed and its two doors are not what is proposed. It was suggested that, after all, there should be a central door to the front garden under an arched lintel rather than the depicted door at the side.
7. I can understand a desire to have a storage space such as this shed would provide. I can understand that it is difficult to fit it in to the sideway, having regard to other items in the sideway, particularly windows and a door. Location here avoids using up other space, such as in the rear yard. Nevertheless, and for the reasons I have given, I consider that the status quo should be maintained in relation to the wing wall and the sideway in relation to it. Consequently, I propose to reject the application for review insofar as it relates to paragraphs (a) and (b) of Condition 1. In doing so I agree with the case put by Mr Chow on behalf of the responsible authority supported, as I understand it, by the Council's heritage advisor and the case put on behalf of the objector in this respect.

1. The proposed Condition 3 relates to plant equipment and features on the roof. It reads:
   1. No plant, equipment, air-conditioning or cooling units, condensers, services or architectural features other than those shown on the endorsed plan are permitted outside the approved building/s without the prior written consent of the Responsible Authority.
2. The permit applicant resists the imposition of this condition.
3. I am not presently provided with information as to such plant equipment etc, including possible solar panels or devices and the like. I do not suggest that they cannot be suitably accommodated, but there is no current proposal as to what or where. If it is true that they can be suitably accommodated, it is also true that they can be inappropriately located in a way that might compromise heritage values. What this condition does is not to prohibit such things, but to require a secondary consent from the responsible authority in relation to their nature and location. Where nothing is specified, this strikes me as being not unreasonable in the circumstances. This does not require a full planning permit application, unless the particular item or thing is something that would require planning permission under the Heritage Overlay in any event. In those circumstances, a permit would have to be applied for, as secondary consent under a planning permit condition cannot remove an obligation to obtain a planning permit where that obligation is imposed by the planning scheme.
4. Secondary consents are sometimes referred to as informal consents. They can be applied for by a letter to the responsible authority and granted in an answering letter. If unreasonably refused, Section 149 PE Act provides a remedy by way of review by this Tribunal. For these reasons I propose to disallow the review of condition 3.

1. Mr Bell criticised what he called the documentation in relation to this application. This criticism included criticism of the plans and specifications inasmuch as he claimed that some things are insufficiently specified. For example, are existing windows that are eliminated on the proposed new plans to be bricked up? Are windows bearing notations of obscured glass to be fixed, or are they to be moveable so that the purpose of the obscuring can be defeated by opening the window?
2. I do not think that it is necessary for me, in determining these cases, to tie down every plan detail of this sort. Condition 1 requires amended plans to be approved by the responsible authority. In its discharge of this responsibility it should not be content to approve plans that are vague, uncertain or insufficient. No doubt the matters pointed to by Mr Bell will be useful to the responsible authority as a check list, when it comes to consider plans submitted for approval under Condition 1. At this stage I am prepared to leave it to the responsible authority to attend to those matters.
3. I do make the point however, as it was made at various stages in the course of the hearing, that a detached house such as this one can be modified as here proposed without planning permission, except in relation to the Heritage Overlay, and except in relation to the values to be protected under the Heritage Overlay. Arguments about amenity are beside the point in the circumstances of this case. Unless there are heritage problems, the owner of this property can construct extensions, balconies and windows that overshadow, overlook or over dominate the adjoining properties. In particular, I make reference to the first floor windows complained of in relation to whether they are openable. Even if this proposal involved a second dwelling on the lot so that a planning permit was required, or even if this lot was of less than 300m2 so that a planning permit was required, a window to an ensuite or walk in wardrobe would not be a window to a habitable room. As such, it would not be subject to the objectives and standards in the ResCode provisions Clauses 54 or 55 of the planning scheme. The windows in question are to an ensuite, behind a bench containing a basin so that there would be little or no opportunity to obtain a downward overlooking view and an obstruction in the way of getting close enough to the window to effectively gain such a view.
4. Although many matters, not all of them relevant, were referred to in the course of the hearing, I have dealt with what I consider to be the significant issues in the reasons that I have given above, and other matters are even sufficiently dealt with by the conditions, or sufficiently minor in my opinion, not to warrant refusal of the proposal or other alteration to the conditions.

1. Consequently, my decision is to refuse both of these applications for review and to affirm the decision of the responsible authority to grant a permit in terms of its Notice of Decision to Grant a Permit dated 18 December 2007.

[2] [2003] VSC 195; (2003) 11 VR 124. V ConvR 54-681.

[3] [2003] VCAT 2039

[4] [2006] VCAT 68