1. The decision of the Responsible Authority is varied.
2. The Tribunal directs that Planning Permit PA1020650 must contain the conditions set out in the Permit PA1020650 issued by the Responsible Authority on 17 November 2010 with the following modifications:
   1. Condition 1(d) is deleted.
   2. Condition 1(e) is amended to read:

The detail of the first floor terrace adjacent to bedroom 3 to demonstrate that it will leave the existing roof and guttering of the house intact and merely place the screening and balustrading around the existing roof.

Colorbond/zincalume roof material of low reflectivity and of a colour that generally matches the existing galvanized iron roofing, quad gutters and round downpipes.

1. The items in condition 1 are renumbered consecutively (a), (b), (c), etc.
2. Condition 4 is deleted.
3. Conditions 5-7 are renumbered as conditions 4-6.

1. The Responsible Authority is directed to issue a modified permit in accordance with this order.

The site has an angled frontage of 8.84m, a depth of 28.35m and an overall area of 250.6m2. There is a laneway at the rear of the site.

The site contains a single storey Victorian weatherboard dwelling with a single car space at the rear.

Demolition of the existing roof form to the rear kitchen/living area, as well as an existing shed and carport to the rear. Construction of a new addition including a new first floor level containing two bedrooms, a bathroom and two terraces. Construction of a roof terrace above the first floor addition.

Section 80 Planning and Environment Act 1987

Clause 32.01-3 To extend a dwelling on a lot less than 500m2 in R1Z.

Clause 43.01-1 To demolish a building and construct a building or carry out works in HO17.

By order dated 10 February 2011, the Applicant was required to circulate shadow diagrams and an alternate stair design option. This was received on 21 February 2011.

The other parties were provided with an opportunity to respond to this material, and each of the objectors responded by 25 February 2011.

Cope v Hobsons Bay CC [2004] VCAT 2487 (the Cope decision)

Poci Brothers Pty Ltd v Bayside CC [2003] VCAT 1884 (the Poci decision)

1. This is an application to review the conditions contained in a planning permit issued by Hobsons Bay City Council (the Council) for demolition, alterations and additions to a house at 14 James Street, Williamstown.
2. The planning application was lodged for the demolition, alterations and additions including a first floor addition and a roof terrace. However, the Council has granted a permit for a two storey addition to the rear of the existing house, and has not given permission for the roof terrace.
3. The permit conditions in dispute are:

Deletion of the roof terrace and external stair case leading up to it including all associated screening.

Relocation of the internal staircase a minimum of 1.1m east so no alterations are made to existing roof form of the front portion of the house.

First floor terrace adjacent to 'bedroom 3' to be reduced in width so as to clearly avoid interfering with the existing roof form of the house.

A schedule of all external materials and finishes including (ii) galvanised steel roofing, quad gutters and round downpipes.

1. Condition 4 is also in dispute, but Ms Castles acknowledged on behalf of the Council that this condition (requiring brickwork on or facing the boundaries to be either racked or cleaned or rendered and painted or bagged and painted) is not necessary as there are no new brick walls proposed. Hence, the Council agreed this condition should be deleted. As such, I have not considered the merits of this condition and have merely ordered that the condition be deleted.

1. Having regard to the conditions in dispute, three of them relate to matters of design detail associated with the Heritage Overlay (conditions 1(d),(e) and (h)), and one relates to a question of mixed fact and law as to whether the roof terrace is contrary to the provisions of DDO4. I will deal with each of these in turn.

1. Mr Livingston explained the concern with this conditions is the requirement for the new first floor roof to have galvanised steel roofing rather than colorbond roofing. Ms Castles submitted this requirement was included based on the advice of Council's heritage adviser and the requirements of the Guidelines for Alterations and Additions to Dwellings in Heritage Areas in Hobsons Bay (2006) ('the Guidelines'). The Council relied upon clauses 21.07 and 22.01 of the planning scheme in support of this condition, which require consideration of the objectives and standards of the Guidelines, including:

Generally the most appropriate roof form is one that matches the existing. Getting the pitch and the roof cladding material to match are essential.

1. Ms Castles submitted the house is Victorian with a galvanised iron roof, hence it is appropriate to require the addition to have galvanised steel roofing in order for the addition to respect the heritage character of the house.
2. Mr Livingston submitted the permit applicant wishes to use a zincalume product. He stated this has advantages over galvanised iron as it lasts longer and it is cheaper. Mr Livingston advised the permit applicant is happy to have a requirement that the roof material be of low reflectivity and submitted that its colour can be selected to generally match the galvanized iron roofing.
3. The citation for the James Street Heritage Precinct (HO17) states it is significant because it is one of the first private residential subdivisions in the area and includes some of the oldest homes. It is also significant for its distinctive and consistent 19th Century residential character which derives from the presence of a number of architecturally significant and contributory houses. This house is listed as one which contributes to the significance of the precinct. Later in the citation, the precinct is described as having housing stock that is characterised by pitched roofed forms.
4. Whilst the Guidelines encourage roof cladding material that "matches", this choice of wording does not necessarily mean it must be the same roofing material. It must be remembered that the Guidelines are exactly that - guidelines, and it is not always necessary to comply with the Guidelines in order to achieve design alterations and additions to dwellings that do not adversely affect the significance of the heritage place. The applicant is proposing to accept requirements that the roof material be of low reflectivity and of a colour generally matching the galvanized iron roofing. Hence, I am satisfied the intent of the Guidelines is met as the new roof cladding material will 'match'. Hence, this condition will be modified to allow colorbond roofing subject to these two requirements.

1. The purpose of these two conditions is to ensure the new addition is clearly separated from the original house by removing any intrusion into the roof form and thus (as Ms Castles put it) ensuring the integrity and significance of the contributory house is maintained.
2. The Council wants the internal staircase that has a projection up through the rear of the roof of the existing house moved 1.1 metres further back (to the east) and the first floor bedroom 3 terrace that is adjacent to the stairway moved 20-30 centimetres further back (to the east) so that neither are interfering with the existing roof form.

1. Mr Livingston submitted moving the terrace further back 20-30cm is just not necessary. It is not visible from James Street and even on an oblique angle will be difficult to discern. In addition, Ms Somerville (the architect who was present at the hearing) advised this proposed terrace design will leave the guttering intact and will place the balustrade and screening around the guttering. Given this, I will alter the wording of condition 1(e) to require the detail of the first floor terrace to demonstrate that it will leave the roof and guttering intact and merely place the screening and balustrading around the existing roof.

1. In regard to the stairwell, I note that it is a sloping structure. The sightlines on the proposed north elevation illustrate this structure will have limited visibility directly opposite the house in James Street. Ms Castles advised the Council's concern is the oblique angle from the southeast as illustrated on the proposed first floor plan. She submitted the Guidelines seek major additions to be treated as a separate visual entity or by forming a visual break, which means the existing roof form as viewed from the oblique angle along the street should not be altered by the addition. Mr Livingston submitted compliance with this condition is problematic as it would require significant alterations to the design of the addition, including the ground level kitchen.
2. The stairwell up through the existing roof is set behind the existing pitch of the roof and the existing chimney. It is also set back in excess of 9 metres from the street frontage. Whilst I agree with Ms Castles that it will be visible on an oblique angle from the south/southeast, the Guidelines do not state that an addition, in particular a first floor addition, must be invisible. The Guidelines state where an addition is visible, it must retain the visual dominance of the significant elements of the heritage place and the significant aspects of the heritage precinct. The Statement of Significance acknowledges in its description of the precinct that it is characterised by pitched roof forms. I am satisfied that the location of an angled stairway behind the ridge of the pitched roof and chimney is appropriate. It is only visible on an oblique view and is well setback, which ensures that it reads as no more than a distant secondary element. As such, I find this element will not adversely affect the significance of the heritage place. Hence, I will order condition 1(d) be deleted.

1. The Council has not granted planning permission for this aspect of the proposal. Rather, it has included condition 1(c) requiring these components of the proposal to be deleted. The Council is of the view a permit cannot be granted to construct a building over two storeys in height pursuant to DDO4. This raises a question of mixed fact and law regarding the interpretation of DDO4 and the parties did not object to me determining this.
2. Section 2.0 of DDO4 states:

A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys.

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

1. Ms Castles submitted the roof deck includes 1.7m high screening above the roof line, which in the Council's view means it appears as a third storey and therefore does not comply with DDO4. In forming this view, the Council has relied upon the findings of the Tribunal in the Cope and Poci decisions. The constitution of the Tribunal in each of those cases included Justice S Morris (a former President of the Tribunal).
2. Mr Livingston stated the proposed roof deck does not have a floor or a ceiling above it, therefore the definition in the planning scheme (clause 72) of being "a storey" is not met. Mr Livingston stated that, as the roof deck does not constitute a third storey, it can be considered on its merits having regard to the objectives and decision guidelines of DDO4. Mr Livingston relied upon a recent decision of the Tribunal relating to 84 The Strand Newport[1]. This property is affected by DDO4 and the Application for Review was brought by an objector against the Council's decision to grant permission for the construction of two double storey dwellings, including two roof top decks. Mr Livingston submitted the Tribunal had found that roof top decks were acceptable pursuant to DDO4, but I am not persuaded that is the situation. Rather, in that case, the Council had formed the view the roof top decks were acceptable and the roof top decks and their legality were not matters in dispute. Instead, an objector was raising a concern (amongst other concerns) that there may be overlooking from the roof decks into her property. It is this matter that the Tribunal had to determine and not the issue in this case that the roof terraces are contrary to the requirements of clause 2 in DDO4. Hence, I have given no weight to this decision in considering this question of mixed fact and law_._
3. In the Cope decision, the same DDO4 control applied as in this case. There is some discussion in that decision about the structure and wording of DDO4. It ultimately finds that DDO4 should be interpreted to mean a permit is required to construct a building; and such a permit must not be granted to construct a building exceeding the height of two storeys[2]. The decision goes on to acknowledge that there can be some confusion about the precise nature of the two storey restriction as the second paragraph of clause 2.0 contains language designed to measure height in terms of metres, but the first paragraph uses the word storey. The decision acknowledges the definition of storey in clause 72 and determined:
   1. ... A literal meaning of clause 2.0 might be that a permit could not be granted to allow the construction of any portion of a two storey building above the ceiling of the upper storey. This is because, on one view, any portion of the building above the ceiling (including the roof) could be regarded as a building "exceeding a height of two storeys". But such a interpretation would be a nonsense. Thus it is difficult to conclude that this would have been the intent of the scheme.
   2. Another possible approach would be to interpret the provision as meaning that a permit may not be granted to construct any portion of a building exceeding a height of two storeys, other than essential components such as the roof. However, this interpretation involves reading words into the clause and begs the question of what would be an essential component. What of a chimney? What of a television aerial? What of solar panels seeking to provide hot water utilising the energy of the sun? The problem with this approach is that it fails to definitively answer the question of what would be permissible above the ceiling of the upper level of a two storey dwelling. Thus, it must be doubted whether the intention of the framers of the scheme was that these matters would be left to guesswork.
4. The Tribunal went on to find:
   1. In our opinion, the provisions of schedule 4 of the Design and Development Overlay should be construed so as to promote the purpose underlying the control. That purpose, which is to achieve development of a height which is compatible with the prevailing character of the area, is designed to be applied in the context of dwellings containing storeys. With this in mind, we identify the clear purpose of the schedule as to introduce a height control that uses a "storey" as a unit of measurement. So interpreted, the control allows a permit to be granted for the construction of a building of one or two storeys, but does not allow a permit to be granted to construct a building of three or more storeys.
5. The Cope decision makes reference to the Poci decision, which found that the height of a building should be assessed not by counting every possible level or storey but by being armed with all relevant information and then reaching a conclusion as to whether the building should be "characterised" as a building which exceeds a height of two storeys. The Tribunal goes on to explain that this approach is called for to ensure that the outcome is both practical and of common sense, but also to give effect to the clear purpose of the control.
6. I adopt the findings in the Cope and Poci decisions, which means it is not necessary or appropriate to determine whether the roof terrace is a "storey" per se. But rather to consider all relevant information about the proposal and then reach a conclusion as to whether the building should be characterised as a building in excess of two storeys so as to give effect to the purpose of DDO4.
7. The relevant information about the proposed roof terrace is:
   • It is accessed via an external staircase that wraps around the southern wall of the first floor addition, with a timber wall that screens the staircase from view. In Mr Livingston's straight stair design option there is a similar outcome but with a "lightweight and open screen" to the external straight staircase.
   • The roof terrace is 6.3 metres long and 3.3 metres wide.
   • It is surrounded on all sides by timber batten privacy screening, the majority of which is 1.7 metres in height.
   • The south elevation illustrates a higher first floor wall height and the roof terrace screening sitting above the first floor roof guttering and apex (respectively).
   • The north elevation illustrates the roof terrace screening sitting within the first floor roof form and extending above the apex of the roof.
8. Having regard to these details of the proposed roof terrace, I am of the opinion the proposal is in excess of two storeys and the inclusion of the roof terrace is therefore contrary to DDO4. Hence, I agree with the Council that the roof terrace and external stair should be deleted. Mr Livingston made submissions about the importance of the roof terrace provided useable private open space for the applicant; and Ms Darcy and Ms Coghill made submissions about the amenity impacts caused by the roof terrace. However, as I have found the roof terrace is contrary to DDO4, it is not necessary for me to consider the 'merits' or impacts of the roof terrace.
9. It will be evident from my findings that it is the design and appearance of the roof terrace that has resulted in it being contrary to DDO4. Hence, there may be opportunities for the applicant and the Council to consider an alternative design for a roof terrace if it can be achieved without the building being characterised as in excess of two storeys.

[1] Gruneklee v Hobsons Bay CC [2010] VCAT 2030

[2] Refer to paragraph 20 of the Cope decision