2 If the Permit Applicants so elect, they must give written notice of this election, no later than 10 August 2004, to VCAT and to all parties. These proceedings will then be listed for a further hearing on the merits to enable all parties to comment on same.

3 If the Applicants for Review do not so elect within the time limits, we will issue an order, seven days after 10 August 2004, that a planning permit must not be granted for the proposed development.

4 There appears to us to be no need for an exchange of responses in this matter and submissions on the listed hearing date should be adequate. If any parties disagree with this approach, they have liberty to apply.

Mr Chris Wren instructed by Clayton Utz Solicitors.

Mr Stokans called Mr Mark Bernhardt, Enforcement Officer to give evidence.

1 This was an application under section 77 of the Planning and Environment Act 1987 to review a decision by the City of Bayside to refuse a permit (in Application No. 03/0644) for the construction of an attic in a DDO Schedule 1 generally in accordance with the endorsed plans on the land at 39 Seacombe Grove, Brighton**.**

2 At the commencement of the hearing and pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Chris Wren requested the Tribunal to amend the application for permit by substituting revised plans for those which had originally accompanied the application.

3 Copies of the revised plans had been forwarded to all parties under cover of a letter dated 23 April 2004 by Clayton Utz Solicitors detailing the changes and outlining the Permit Applicant's intention to seek approval for their substitution.

4 Mr Wren briefly outlined the nature and extent of the changes. These included a [without prejudice] planning application to construct an attic in the roof with concomitant roof alterations as built by the applicant, as opposed to the attic and roof alterations as applied for in the permit application plans.

5 As there was no objection to the substitution of these plans, the Tribunal made the amendment in the manner requested.

7 At the commencement of the hearing and pursuant to s.127 of the Victorian Civil and Administrative Tribunal Act 1998 (`VCAT Act'), Mr Egils Stokans requested the Tribunal to amend the council's statement of grounds of refusal by adding two additional points of law expressed under cover of their letter dated 10 May 2004, the basis of which is that the application for planning permit is prohibited.

8 As there was no objection to the amplification of the grounds of refusal. The Tribunal made the amendment in the manner requested.

9 This portion of the decision is made by the legal member, Mrs Tonia Komesaroff.

10 The subject land is zoned Residential 1 under the Bayside Planning Scheme. Within the Residential 1 Zone no permit is required to construct or extend one dwelling on a lot of this size.

11 The land is also covered by Design and Development Overlay No.1. Pursuant to clause 43.02-2 as expressed at the time of the first building permit:

a permit is required to construct a building or construct or carry out works.

This does not apply if a schedule to this overlay specifically states that a permit is not required.

Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A schedule may include requirements relating to ... building height ... any other requirements relating to the design or built form of new development.

A permit may be granted to construct a building or construct or carry out works which are not in accordance with any requirement in a schedule to this overlay, unless the schedule specifies otherwise.

a permit is not required to construct a building or construct or carry out works for:

A building with a building height of not more than 2 storeys[1] provided that each storey is less than 3.5m measured from the floor level to the finished floor level of the floor above or if there is no floor above, to the ceiling (excluding staircases, architectural voids and light wells).

Buildings which have a building height of not more than 6.0m1.

Buildings and works must be constructed in accordance with the following requirements:

Building height must not exceed 2 storeys (excluding an attic or basement).

14 This case concerns the third level of a house which, at a lower level, had been extended to join up with its appurtenant boat house fronting the beach. It involves the age old question of whether this third level is, as Mr King expressed it, an attic-storey or a regular-storey.

15 If it is an 'attic storey', and if the DDO1 applied at the time of its construction, the question we need to consider is whether a permit should be granted for its construction, based on the DDO1 decision guidelines:

A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows mounted flush to the roof, recessed or of minimal dimensions.

16 All parties agreed that there was a hiatus in the Schedule 1 to the DDO1 for 17 days between 30 June and 17 July 2002, when it lapsed and was

re-instituted by gazettal, although council submits that the DDO still operated, it was just the Schedule 1 that lapsed.

17 Mr Wren intends to argue at a separate legal hearing (which was adjourned by Directions of Morris J. dated 2 April 2004) that the roof alterations and third level construction occurred during this hiatus, when no planning permission was therefore necessary at all.

18 Mr King for the respondent objector submits that, during the hiatus, no building permit was issued for the third level works for which a planning permit was purportedly not required, so they remain unlawful from a planning perspective.

19 But the question of law of the effect of this hiatus is not before me and has been adjourned to a later date following this part of the decision. This part of the decision proceeds on a without prejudice basis on the assumption that a permit for an 'attic storey' is required pursuant to the DDO1.

20 If it is a 'regular storey' at this third level, Mr Wren accepts for the purpose of this part of the review, that it is prohibited under DDO1 cl. 2.0 and no permit may be granted.

Chronology of permissions and construction undertaken

21 As no planning permission for extension to a house was required at the time of commencement of construction, the 27 July 2001 first building permit plans endorsed by a Mr Sam Coco, the relevant building surveyor employed by the applicant, show:

iii a small roof deck (7.5 m x 4.5 m & 34 m2 area) off the lift lobby within the western gable on the third level;

iv a gymnasium, steam room and shower on the ground floor in the north west corner, (next to the billiard room and barbecue entertaining kitchen with its fully glazed roof).

22 The section shown on Drawing No. A-9a shows the roof deck entirely concealed within the roof space/geometry. (The west elevation A-6 errs in not showing the deck).

23 Missing from the west elevation plans Drawing No. A-6 is the deck cut into the western roof form.

24 At this time, Am C12 had reinstated DDO1 until 31 December 2001.

25 Mr Chernov gave evidence that this first endorsed set of plans was given to Mr Coco as a rush draft set only, not intended for endorsement, as VicCode was becoming ResCode. Mr Chernov says he had no idea that a copy of same had been lodged with council under the Building Act 1993 by Sam Coco.

26 I am of the opinion that a planning permit was not required at this time for the third level works (lift, lift lobby and deck) shown in this first building permit, because the works comprised only a small deck and access to it.

27 This intended original set was given to Mr Coco for endorsement, with Mr Chernov giving evidence that he believed a copy of this set was lodged with council.

28 These plans show a basement, ground floor, first floor and roof terrace.

29 As to the roof or third level, the second endorsed building permit plans show:

i a hipped roof form with a cut out for the roof terrace (the architect anticipating that most of the air conditioning plant would fit within the roof);

iii an elongated roof terrace (27.5m long overall with widths varying between 3.2-3.9m) off the lift lobby which is cut into the hipped roof;

iv the insertion of an elongated wall breaking the roof pitch at the third level.

v two glass doors from the lift lobby to the terrace;

30 The design of the roof over the second level kitchen and lounge area was redesigned to allow the elongation of the terrace across the entire west façade on the third level.

31 As pointed out earlier, as at 31 August 2001, Am C12 had reinstated DDO1 until 31 December 2001.

32 It is difficult to assess whether a planning permit was required at this time for an attic comprising the third level works (lift, lift lobby and alteration to the roof by the insertion of a wall across the entire west façade above the second level) shown in the second building permit drawings. Provided nothing occurs at the third level besides access to the roof terrace, the break in the roof line may not be caught by the DDO1. On the other hand, not only was the terrace increased in size by well over fifty percent, the lobby was now accessed by stairs as well as the lift, had doubled in size and the break in the roof line is marked. The plans do not show access into the roof space, however we were told at the hearing that it was planned to locate air conditioning plant on the concrete floor of this level, within the roof space.

33 On balance, looking at the extent of wall, lobby size and storage accommodation within the roof space, this can be characterised as an attic. If it is an attic, the planning scheme requires that the roof must match typical roof details of the surrounding neighbourhood and any windows must be constructed flush to the roof, recessed or of minimal dimensions. In terms of the glazed doors, it is clear that they are not recessed, mounted flush to the roof, nor are they of minimal dimensions.

35 Mr Mark Bernhardt, council's Investigations Coordinator/Enforcement Officer, received a complaint concerning the height of the building, resulting in him undertaking an inspection. This inspection confirmed the heights were within the scheme's limits.

36 He was only aware of the 27 July 2001 first endorsed building plans, which had been lodged with council by Mr Coco[2]. His third level inspection confirmed these plans, and he saw:

iii a roof deck off the lift lobby on the third level. As many works and scaffolding were in progress, Mr Bernhardt could not recall the length of the terrace, or whether it had stretched beyond the smaller deck indicated in the 27 July 2001 first endorsed building plans;

iv a small doorway off the deck into the roof space. When he queried this, Mr Chernov, architect, advised it was going to be used as a machinery space for the air conditioning units, hot water etc. He advised Mr Chernov any `formal' use of that space may need planning permission.

37 Mr Bernhardt recalled that he had to crouch below the roof trusses in the roof space to check the doorway into the roof space.

30 March 2002 - 31 August 2002 - 3rd building permit background

38 Plans for the internal layout changed during construction.

39 Retained features (pertaining to the roof or third level) were:

i a hipped roof form with a cut-out on the west side for a roof terrace;

i a door and four glazed folding windows from the lift lobby onto the roof terrace;

ii two air conditioning platforms cut into the roof at the northern and southern ends;

iii additional air conditioning plant notated as within the roof space with an access door from the lift lobby to the plant room;

iv an altered (to the south west) but still elongated roof terrace (20.8m overall and widths between 3.3m and 2.8m). (The reduction in length of the terrace was the result of a decision not to roof the pool located in the south west corner of the level below.);

v alterations to the southern section of the roof including an addition of a parapet feature on the southern elevation and the deletion of the roof over the pool.

vi an altered roof over the barbecue entertaining kitchen below (from full glazing to slate and skylights);

vii an extension to the roof over the porte cochere;

41 At this stage the redesign of the roof over the second level family kitchen/ lounge area resulted in a disruption to the plane of the roof pertaining to the wider section of the terrace south of the chimney stack.

42 Mr Chernov's explanation for the delayed 31 August 2001 building practitioner endorsement was a dispute between them over Mr Coco seeking a fee for each of the many alterations being made. The matter was only settled in August 2002.

43 On 31 August 2002 Mr Sam Coco retrospectively approved building plans dated 30 March 2002 showing (as relevant to this decision):

iii an elongated roof terrace (19 metres) off the lift lobby;

iv four folding windows and a door (10.848 metres long) and a wall inserted into the western elevation.

44 The combined effect of these alterations resulted in a differentiation of that portion of the roof containing the attic/third storey from the rest of the house.

45 By the time of this endorsement, Am C27 had reinstated DDO1 until 31 December 2002.

46 The reason no `attic' was shown on the 31 August 2002 endorsed plans was that, according to Mr Chernov, when these plans were drawn on 30 March 2002, it was not designed in, although they wished to `make provision' therefor.

i he discussed the plan amendments with council's Jeff Green who allegedly told him orally no planning permit was needed, but did not confirm same in writing;

ii Mr Coco endorsed with a Building Permit stamp dated 30 August 2002, a facsimile from the building construction manager, Alex Tseberg to himself, advising of the above conversation with Jeff Green that the amendments shown on the 30 March 2002 building plans did not require planning approval.

iii Mr Coco had an independent obligation to check with town planning that no permit was required, and the fact that Mr Coco endorsed the plans with "Building Approval 30/8/2002" indicated that the wall and roof form in the 30 March 2002 plans did not require planning approval as an "attic", or "attic-storey".

48 Was a planning permit required at this time for the third level works?

49 Given that I am persuaded that a planning permit was most likely required for the third level works as at 31 August 2001, it follows that this applies even more so to the third level works for which a building permit issued on 30 August 2002.

50 Am C22, which operated DDO1 until 30 June 2002, lapsed and was only reinstated on 18 July 2002 by Am C27 until 31 December 2002.

51 Between 1 July 2002 - 17 July 2002, there was no Schedule 1 to the DDO overlay.

i he became aware from Lew Sayer, planning consultant, that DDO1 had lapsed; and

ii he rang the Department every three to four days to check that the DDO schedule 1 was not in force, as the Minister had not yet signed the amendment.

53 On 3 July 2002 he prepared an Issue B plan `New layout and attic roof space' to discuss with Sam Coco for endorsement, but Mr Coco would not make himself available for this discussion.

54 Mr Chernov's evidence of the works performed during this period are:

i the collar ties in the third level roof were raised to allow a coved ceiling of maximum height 2830mm;

ii a stud supporting wall 1750mm high was built to enable a person to walk upright at that level and to replace the props which had previously supported the roof;

55 Mr Butterss' solicitors, Clayton Utz, wrote the following letter to the Responsible Authority's solicitors on 28 May 2003:

We are instructed that the details for the building works carried out in the roof deck/attic area ...during the period 1 July 2002 to 17 July 2002 are as follows:

i. Revised roof framing to create envelope for proposed areas to achieve 2.9 metre floor to ceiling height;

iii. New stud walls framed for bathroom and toilet, steam room and gymnasium;

v. Extension of plumbing and electrical services to this level.

56 The windows in the western wall were not installed until August 2002, by which time DDO1 was reinstated.

57 On 4 November 2002, Mr Coco issued a notice against Rod Butterss under the Building Act 1993, s.106 alleging that the balcony in the south facing wall and stair risers contravened the Act and on 30 December 2002, he issued an Order under the Building Act 1993, s.111.

58 After much correspondence between the two between August and December 2002, on 14 January 2003, Clayton Utz for Mr Rod Butterss challenged Mr Coco's competency and integrity and took proceedings to the Building Appeals Board.

59 As no such contraventions by the builder had occurred, both the Notice and Order were dismissed with costs against Mr Coco. The Building Commission subsequently replaced Mr Coco as the relevant building surveyor with Mr Anthony Stokes[3].

60 After receiving another complaint, Mr Mark Bernhardt inspected the roof again and saw many changes in the roof space compared with his May 2002 inspection:

i a higher roof, as he no longer had to crouch to walk in the third level;

ii space for a gymnasium in the roof being used as a temporary bedroom for a caretaker/security guard;

vi glazed folding windows and doors onto the terrace.

61 Mr Bernhardt was concerned with the gymnasium, sauna and change rooms and instructed council's solicitors to prepare an enforcement application, believing the third level was now a storey and prohibited by the planning scheme.

62 Discussions ensued between council's Jeff Green and the applicant, who lodged a without prejudice planning application for an attic in the roof space. Mr Bernhardt's enforcement application took a back seat.

63 On 28 August 2003, Mr Chernov lodged a without prejudice planning permit application for roofing alterations and use of attic space with the Responsible Authority.

ii a roof terrace (19 metres long) off the lift lobby reduced by the deletion of the section north of the chimney stack;

iii insertion of three velux skylights into the expanded roof form next to the terrace;

iv four folding windows and a door exiting onto the roof terrace;

v a gymnasium, steam room, change room, toilet and shower located between the lift lobby and the air conditioning platforms, with increased glazing to the west;

vi two air conditioning platforms in the roof space (as before);

vii the western plane of roof broken as illustrated previously in the second building permit.

65 There is also a door from the steam room to the air conditioning platform and a window in the north wall of the shower.

66 By contrast with the planning application plans, the plans substituted at this hearing revert to an even longer terrace form cut into the hipped roof and the addition of differently configured windows to the west wall of the terrace.

67 Am C2 Part 1 gazetted 2 July 2003 altered the height controls under the DDO.

68 Am C32 gazetted 18 December 2003 required planning permission for all roof decks located above the second storey of a building. By then all construction was complete.

69 The fact that there was a deck above the second storey or first floor is irrelevant for the purposes of this decision, as those controls came in after building plans were approved for this development.

70 `Storey' is defined in cl.74 of the Bayside Planning Scheme to mean:

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

71 The DDO contemplates that an attic is a permissible part of construction above two storeys, although it requires planning permission.

72 What is not defined is attic, which must be considered according to its ordinary meaning.

73 Case law can be of assistance, but that is as far as it goes. The statutory definitions of other states are not definitive, only helpful in ascertaining the common and ordinary meaning.

74 Does `attic' involve an assessment of the configuration or proportion of the attic in relation to the size of the roof/dwelling?

75 It is generally agreed that an attic is recessed into the roof space, a characteristic which makes it barely apparent, if not unnoticeable, from some view points. This is indeed the case when viewing the subject dwelling from the east.

76 In addition to the extent of the cut in the roof, the view of the `attic' from other vantage points is compromised by the visually prominent air conditioning platforms to the north and south. These emphasise the harsh interruption to the roof form at this third or terrace level. The sloping screen walls seem to emphasise this disruption, particularly when viewed from the south/west.

Attic, n. in architecture, 1. a low wall or story above the cornice of a classical façade

2. the room or rooms just below the roof of a house; garret.

Attic, n. 1. that part of a building, esp. a house, directly under a roof; garret

2. a room or rooms in that part, frequently used for storage

3. A low storey or decorative wall above an entablature or the main cornice of a building.

Attic (orig. adj) 1. A small order (column and entablature) placed above another order of much greater height constituting the main façade (usually an Attic order, with pilasters; whence the name]

2. attrib. Quasi-adj in Attic storey: orig. the space enclosed by such a structure; hence the top storey of a building under the beams of the roof, where there are more than 2 storeys.

3. The highest storey of a house, or a room in it; a garret.

78 `Attic' was defined in Wunsch & Ors v Rockdale City Council (2002) NSW LEC 103 (28 June 2002) as:

an habitable space within a building, contained wholly within the roof pitch, that is not immediately enclosed by vertical external walls such as gable ends and that may contain dormer windows.

79 In Carey v North Sydney Council (1999) NSW LEC 174 (29 July 1999) the dwellings contained two open air balconies recessed in the roof structure as is the case here. That case held that neither of the recessed balconies were contained wholly within the roof space since the balconies were not roofed at all and, therefore, could not constitute an attic. Similarly, a dormer style balcony, though roofed by the dormer style roofing, similarly was not contained wholly within the roof space. That case went on to say that such a space is not materially different from a three storey residential building. The court held that the structure was not an attic because of:

1. the physical qualities of the floor space of the utmost levels of each of the proposals as previously described;

2. the relationship (spatial and functional) with the other levels contained in each of the proposed dwellings; and

3. the significant contribution made by the existence of the topmost level to the mass and scale of the built form of each of the proposed developments.

80 In Martino v Moonee Valley City Council (2003) VCAT 1615 (5 November 2003) the Tribunal said:

An attic style means rooms accommodated within the roof space. The roof angle is usually steeper than the typical pitch of 25 to 30o of the Victorian, interwar or post world war 2 houses. Exceptions to this roof angle are Edwardian/Federation/Queen Anne style buildings from the beginning of the twentieth century. Another feature of an attic style house is a dormer window which indicates that there is another level in the roof. The proportion of space in the roof is comparatively small.

81 In that case, the Tribunal held that the development had a proportionately expansive area of roof massing and bulk which constituted a storey.

82 My decision in Payton v Kingston CC [2000] VCAT 216 also considered the meaning of the word "attic" although that case was at the other end of the spectrum. After an exhaustive dictionary analysis against the construction, I held that a roof space was only a cavity and not an attic, when it had no floor or ceiling and one had to crawl over roof trusses to transverse the space.

Is the space shown on the second building plan an attic?

83 I have already expressed my opinion that, on balance, the third level in the second building plan could be considered an attic.

Is the space shown on the third building plan an attic?

84 I have already expressed my opinion that the third level on the third building permit is an attic storey, and therefore requires a permit.

Is the space as constructed and in the substituted plans an attic?

85 Mr King submits that an attic implies a space formed within the roof space, with the roof continuing to its apex from the second level. The internal space is constrained, often with raked ceilings following the form of the roof, with limited head room at the edges.

i 2.9 metre ceiling height with the raking not constraining head room;

ii walls (and windows) to the third storey component;

iii a separate level of construction to the third storey so that the second storey has its own roof and this third storey has its own walls and roof (instead of being a continuation of the roof of the second storey;

v space for two separate gymnasium and sauna rooms;

vi space for a toilet and a shower and change room.

87 From the common understanding of an attic both in case law and generally, it appears that the essence of an attic is that it is wholly enclosed within a roof space and does not have any external vertical walls.

88 I agree with the Responsible Authority's submissions that the following characteristics render the as built third level a storey, which is prohibited under the DDO1, and not an attic:

* it is immediately enclosed by a vertical external wall on the west elevation;

* it is not contained wholly within the roof pitch;

* the substantial area under the roof (80 square metres) is a significant proportion of the building's footprint, notwithstanding the palatial size of the dwelling it serves;

* its relationship (both space and function) with the other levels is that of a conventional storey;

* the significant mass and scale of the built form.

89 In short, the third level as constructed, in my opinion, forms a third storey to the dwelling.

Consideration of the merits in the event of an error in law

90 This part of the decision is being made by both members.

91 Mr King insisted the disruption in the roof plane to the west over the family kitchen/living area, meant that the accommodation at the third level was no longer `in the roof space'. Mr Wren in contrast, argued that the disruption related only to the allowable terrace, and not to the accommodation within the roof. Were there no terrace or accommodation at this third level, a roof form to the second level, accommodating both planes, could be constructed. Therefore the insertion of habitable rooms into this roof geometry could still be characterised as an attic.

92 It is our opinion that notwithstanding these submissions, when viewed from may vantage points on the foreshore, the pier and the groin, the third level is clearly differentiated from the lower two. As noted earlier, the location of the air conditioning platforms at either end of the roof deck serves to emphasize the break in the roof line and the projection of this third level out of the main roof line. From the west and the north, the third level appears as an additional storey to a viewer on the foreshore.

93 This brings us to the question of when does an attic become a storey? If it is a storey, end of story, as no permit can issue.

94 But if we are wrong in law and contrary to our view it is indeed an attic, we need to consider whether it complies with the objectives and decision guidelines of DDO1.

95 In considering whether or not the as-built construction is an attic, we make the following observations.

A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch, roof form and materials

in our view the roof details of the surrounding neighbourhood are so disparate as to provide no guidance as to what might be regarded as 'typical', ranging as they do from flat to steeply pitched.

97 As noted above, neither the glazed doors and windows to the lobby and gymnasium, nor the smaller windows in the as built change room and bathroom, can be regarded as recessed or mounted flush to the roof. Were the terrace area smaller and the accommodation consequently more enveloped by the roof and in particular, were the roof to the north and south unencumbered by the air conditioning platforms, this full height glazing might indeed appear to be recessed.

98 In our opinion, the as built development does not protect and enhance the foreshore environment and the views of Bayside from the foreshore and Port Phillip Bay. We say this notwithstanding Mr Sayer's evidence that the sombre materials and finishes and background of trees from some viewpoints, or the presence of the three storey block of flats to the south minimise the impact of the third level. As noted above, we consider the third level element is read clearly from many vantage points addressed by the Tribunal, both on the beach and from the bay.

99 We have had regard to the urban design and development objectives of the Bayside Coastal Strategy 1997 and the Victorian Coastal Strategy, but have not found them particularly helpful in determining the merits. They largely address the public domain and aim to ensure that buildings on the coast positively contribute to the coastal landscape, and do not mitigate against the open feel of the foreshore in this particular precinct.

100 We acknowledge any potential overshadowing of the foreshore is minimal and of no concern.

101 In summary we have found that the planning scheme enables the grant of a permit for the attic-storey as applied for by Messrs Chernov and Butterss. We are both unable in law and unwilling on the merits to grant a permit for the as-built third level in the substituted plans.

102 Given the expense incurred by all parties to date, we propose giving the Applicants for Review an opportunity to amend their plans back to their lodged plans.

103 In this way the parties can make submissions to us on the lodged plans and if we consider them acceptable, albeit with further modifications, we could so direct the issue of a permit for an attic subject to modified plans.

[1] It was only after 18 December 2003 that these exemptions stopped including a roof deck located above the second storey of a building.

[2] The 31 August 2001 building plans were not lodged by Mr Coco, in breach of the Building Act 1993.

[3] we are told this is a rare occurrence