TP00, TP01, TP02, TP03, TP10, TP11, TP12, TP13, TP20, TP21, TP22, TP23, TP30, TP31, TP40 (All Revision H)

2 In application P658/2020 the decision of the responsible authority is set aside.

3 In planning permit application PP19/00297 a permit is granted and directed to be issued for the land at 55 Molesworth Street, Kew in accordance with the endorsed plans and the conditions set out in Appendix A. The permit allows:

• Demolition of the existing dwelling and construction of a new dwelling in a Heritage Overlay - Schedule 530
• Construction of a new dwelling more than 6 metres in height in the Significant Landscape Overlay - Schedule 1
• Vegetation removal in the Significant Landscape Overlay - Schedule 1

Mr M Myer, town planner of Urbis. He called expert evidence from:

• Mr B Raworth, heritage architect
• Mr D Atkinson, landscape architect

Mr D Song, town planner of SongBowden Planning Pty Ltd. He called expert evidence from:

Demolition of the existing dwelling and construction of a new dwelling more than 6 metres in height. The application also seeks to remove four trees under the provisions of the SLO1.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.

Significant Landscape Overlay - Schedule 1 (SLO1) - Yarra (Birrarung) River Corridor Environs

Clause 43.01-1 -Demolition of the existing dwelling and construction of a new dwelling in HO530

Clause 42.03.2 -Construction of a new dwelling more than 6 metres in height

The land is located on the southern side of Molesworth Street, in Kew. It is generally of rectangular proportions, with a frontage to Molesworth Street of 18.3 metres, a depth of 46.3 metres and a total site area of 822 sq.m.

Topographically, the site has a gradual cross fall of approximately 8.7 metres from the high point in the northeast corner of the subject site adjacent to Molesworth Road to a low point on the southwest corner of the subject site adjacent to the rear boundary of the review site adjacent to 36 Yarravale Road.

An existing single storey / split level detached dwelling currently occupies the site. The dwelling (Birdwood) is a contributory dwelling in the Heritage Overlay and is set back approximately 7.8 metres from Molesworth Street and 2.8 metres from the western boundary. A concrete driveway is located adjacent the western boundary. No front fence exists across the site frontage.

Scattered trees and vegetation are located within the front setback to the north of the sleeper retaining wall.

1 This proceeding is an application by the permit applicants (Jason & Sarah Downing) to review the decision of Boroondara City Council (the Council) to refuse to grant a permit for full demolition of a building in a Heritage Overlay, remove vegetation from the land and to construct a new two storey dwelling that exceeds 6 metres in height.

2 Council refused the proposal on the following grounds:

• The proposal to demolish the existing contributory graded building fails to respond to the purpose and decision guidelines of the Heritage Overlay (Clause 43.01) and the purpose, objectives and policy requirements of Council's Heritage Policy (Clause 22.03).
• The façade height, street setback and materiality of the proposed dwelling fails to respond to the characteristics of adjoining and nearby contributory and significant graded dwellings in the Yarra Boulevard Precinct (HO530). This is contrary to the purpose and decision guidelines of the Heritage Overlay (Clause 43.01) and the purpose, objectives and policy requirements of Council's Heritage Policy (Clause 22.03).
• The extent of proposed hard surfacing fails to respond to the landscaped setting of dwellings in the Yarra Boulevard Precinct (HO530). This is contrary to the purpose and decision guidelines of the Heritage Overlay (Clause 43.01) and the purpose, objectives and policy requirements of Council's Heritage Policy (Clause 22.03).
• The location and design of the proposed car parking accommodation will dominate the streetscape appearance of the dwelling. This is contrary to the purpose and decision guidelines of the Heritage Overlay (Clause 43.01) and the purpose, objectives and policy requirements of Council's Heritage Policy (Clause 22.03).
• Insufficient area is proposed to be provided on the site to accommodate appropriate tree planting to help filter views of the proposed dwelling and ensure the site contributes to the landscape character of the area. This is contrary to the purpose, landscape character objectives and decision guidelines of the Significant Landscape Overlay (Clause 42.03).

3 Prior to the commencement of the hearing, the applicant circulated amended plans in accordance with the Tribunal Practice Note PNPE9. In summary, the plan amendments comprise:

• Modifications to the ground and basement levels to ensure the basement level footprint does not project more than 1.2 metres above natural ground level at any point, to achieve compliance with the mandatory height control under NRZ1.
• Reduced overall building height to ensuring the front façade height aligns directly with the height of the adjoining contributory graded heritage place.
• Reduced the first-floor wing wall between the guest bedroom and main dwelling entry pathway.
• Reduced retaining wall heights throughout the front setback landscape and change of retaining wall materiality from concrete to face brickwork.
• Introduction of face brickwork features into façade detailing at all elevations.
• Front door changed from red painted treatment to a timber door.
• Garage treatment changed from black stained vertical timber to a natural vertical timber treatment.
• A revised Landscape Concept Plan, which now provides canopy tree planting within both the front and rear yards of the site, together with smaller tree plantings along the side boundaries.

4 Despite the amended plans, Council continues to maintain its opposition to the proposal. There being no objection, I allowed the amended plans to be substituted and these now form those on which my decision is reached.

5 Mr Menelle (the respondent) is an owner of an adjoining property. Prior to the commencement of the hearing, he advised the parties and the Tribunal that he no longer opposes the proposal provided that a revised screen location was provided (along his boundary) and at the applicant's expense. The applicant advised at the commencement of the hearing that they accepted this agreed position and that this could be achieved via amendments to the tendered Landscape Concept Plan.

6 I must determine whether the application will produce an acceptable outcome having regard to the relevant policies and provisions in the scheme. Clause 71.02-3 requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

• Does the proposal achieve an acceptable heritage outcome with respect to the demolition of the existing dwelling on land? If a permit for demolition is refused, no permit for the proposed development can be granted.
• If a permit for demolition is granted, is the proposed dwelling sufficiently sympathetic to the significance and character of the heritage place and will it maintain the existing scale, massing, form and siting of contributing buildings?
• Is the landscape response acceptable?

8 I must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, I have decided to set aside the decision of the responsible authority and direct that a permit be granted.

10 The subject land is within a Heritage Overlay (HO530), which is a precinct known as the Yarra Boulevard Precinct, Kew. The precinct is generally bounded by Molesworth Street to the north, Stawell Street to the south, Studley Avenue and Barry Street to the east, and Yarra Boulevard adjacent to the river on the west. The broader precinct is characterised by undulating topography and the building stock predominantly belongs to the post-war period with many examples of Modernist architecture.

11 Mr Lewis (at p.15 of his evidence statement) describes the existing dwelling on the land as follows:

The house has a simple form with a main hipped roof with eaves overhangs, with an angled projection to the north-west with a central chimney to the north-west wall. The roof is clad with glazed terracotta tiles, the walls are built with calcium silicate bricks. It has steel framed windows. The front porch is set between the junction of the two wings, and has a flat steel tray roof with raised seams. This is supported on timber latticed piers. The rear additions have flat steel roofing. There is a driveway on the west side and there is no front fence.

12 To the east of the land are three contributory dwellings. The first, at No. 53 Molesworth Street, is a two storey dwelling designed by the architect, Anatol Kagan. While two storeys, the house appears low in the streetscape due to the design of the house which has almost an undercroft style ground level. The dwelling on this site was constructed circa 1958 and is set back approximately 15 metres from the street.

13 To its east, at No. 51 Molesworth Street, is a further contributory dwelling also designed by Anatol Kagan and constructed circa 1960. Its neighbour to the east at No. 49 Molesworth Street, is another contributory dwelling which was constructed circa 1961-62.

14 To the west of the review site at No. 57 Molesworth Street, is a two storey non-contributory dwelling, set back approximately 7.6 metres from Molesworth Street. It has a 1.7 metre high brick fence across the frontage.

15 Further west at No. 59 Molesworth Street is a significant graded dwelling constructed circa 1956-57 which was designed by prominent Melbourne architect, Robin Boyd.

16 To the rear are No's. 34 and 36 Yarravale Road. No. 34 is developed with a contributory building, while No. 36 is developed with a non-contributory building. Directly opposite the site on the northern side of Molesworth Street are properties outside the HO.

17 More broadly within the HO530, there are a mix of significant, contributory and non-contributory buildings.

18 The land is affected by SLO1. The landscape character objective to be achieved includes:

• To retain vegetation that contributes to landscape character, heritage values or neighbourhood character.

19 Under SLO1 a permit is required to remove, destroy or lop vegetation, unless certain exemptions apply. A permit is also required to construct a building or construct or carry out works which exceed 6 metres in height above ground level. A permit is required to construct the proposed dwelling under the SLO1.

20 Under the HO a permit is required to demolish a building and to construct a building and construct and carry out buildings and works. Key purposes of the overlay include:

• To conserve and enhance heritage places of natural or cultural significance.
• To conserve and enhance those elements which contribute to the significance of heritage places.
• To ensure that development does not adversely affect the significance of heritage places.

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.

Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.

Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

22 I refer to the statement of significance for HO530 below. Heritage policies are included in clauses 15.03-1S, 21.04-5 and 22.03. I have considered these fully but do not recite them all. I note that the Burra Charter is a policy guideline. State and local policy are framed within the Charter and its principles.

23 The review site is located within a "heritage place", identified in the schedule to clause 43.01 as HO530 (Yarra Boulevard Precinct, Kew). The statement of significance for the HO530 is included in Heritage Policy - Statements of Significance Reference Document, which is cited as a source of precinct statements in Clause 22.03 Heritage Policy.

24 It identifies that the Yarra Boulevard Precinct, Kew, (HO530) is an area of cultural heritage significance for the following reasons:

Historically, the precinct is significant for its association with a phase of Modernist and architect designed residential development, which occurred largely between the 1940s and 1960s complemented by some residential development dating from the earlier interwar period and the late 1960s-1970s. During these years, the precinct was closely developed with houses that adapted to the natural setting and hilly topography. The move towards the simplified Modernist mode of dwelling, and in some cases experimental approach, also represented a move away from the more conservative house designs found elsewhere in the municipality. This aspect of the precinct's history reflected both the period of development, and also the willingness of property owners to embrace new and innovative residential design, a trend which has continued into more recent times. The precinct is accordingly also important for its association with many prominent architects and architectural practices of the postwar era; these include, but are not limited to, Theodore Berman, Chancellor and Patrick, Ernest Fooks, Anatol Kagan, McGlashan and Everist, Romberg and Boyd, and Bernard Slawik.

A number of houses on the outer edges of the precinct which date from the interwar period and precede the predominant postwar development are also significant in that they help demonstrate the gradual subdivision of the area.

The precinct has historical significance for its association with the sustenance employment schemes of the Great Depression, which resulted in the construction of the Yarra Boulevard.

Architecturally, the Yarra Boulevard precinct is significant for its high concentration, richness and diversity of Modernist residential dwellings, complemented by examples of interwar and late 1960s-1970s residential development, set within an irregular, median-strip divided curvilinear street layout. The overall intactness of the more visible components of the dwellings is comparatively high, and alterations generally adopt a sympathetic approach. Many of the residences also display a high degree of sensitivity to site and topography, and ingenuity in their architectural approach, including to the design and orientation of buildings. This has created a distinctive aesthetic character for residential development within this area of the municipality. The concentration of well-preserved postwar Modernist houses is also arguably distinctive in the wider metropolitan context.

The landscaped character of the precinct is significant. This is demonstrated in the garden settings to many of the houses which were often sympathetic to the Modernist architecture and reflected a contemporary response to the area's topography and natural setting, as well as site-sensitive planting schemes and approach. Noted landscape designers, such as Ellis Stones, are also believed to have been involved in some of the residential developments. The adaptation of street layout and house siting to the unusually hilly Melbourne terrain is additionally significant, including the irregular, median-strip divided curvilinear street layout.

25 Clause 22.03 is Council's heritage policy. Clause 22.03-3.3 addresses contributory heritage places. Demolition policy includes:

Retain contributory built fabric and not normally allow demolition.

Consider the following, as appropriate, before determining an application for demolition of 'contributory' heritage places: -

• The cultural heritage significance of the heritage place and its contribution to the significance of the precinct.
• Whether the demolition or removal of the entire heritage place or any part of the place will adversely affect the cultural heritage significance of the wider precinct.
• Whether the demolition or removal contributes to the long-term conservation of the heritage place.
• Whether the heritage place is structurally unsound and cannot be reasonably rectified. The poor condition of a heritage place should not in itself, be a reason for permitting demolition of a 'contributory' heritage place.

26 The application seeks to demolish the existing house and construct a new double storey dwelling, above sub-basement level car parking (including car stacker). The existing dwelling is set down the slope of the land and has a pitched tiled room as shown in the image below.

Image of existing dwelling. Source: Evidence statement of Mr Lewis

27 Mr Lewis's evidence is that the house was built for E.F. & E.G. Smithers sometime between 1953 and 1954 and designed by little known architect Geoffrey Nichols. A timber rear addition was built in 1965, and a west side projecting deck was built for subsequent owners in 1975. He describes the residence as having a simple form with a main hipped roof with eaves overhangs, with an angled projection to the north-west with a central chimney to the north-west wall. The roof is clad with glazed terracotta tiles, the walls are built with calcium silicate bricks. It has steel framed windows. The front porch is set between the junction of the two wings, and has a flat steel tray roof with raised seams. This is supported on timber latticed piers.

28 The new dwelling, at ground floor will comprise a double garage, bedroom, study and kitchen, dining and living areas. The front setback proposed to the garage is 10.7 metres. SPOS is provided at the rear of the dwelling and includes an alfresco terrace area and swimming pool. The first floor comprises two bedrooms, guest retreat space, and parent's retreat space. The first floor front setback is 10.9 metres. The building height, facing the street, is 6.23 metres. The front façade is shown in the image below.

29 Materials and finishes comprise a mix of brick, concrete render, black metal framed window and black steel balustrading. A flat colorbond roof is proposed. The proposed streetscape elevation is shown below.

30 All vegetation, bar some recent planting along the rear property boundary, is proposed to be removed from the land. An existing basketball court at the rear of the site is also proposed to be retained.

DOES THE PROPOSAL ACHIEVE AN ACCEPTABLE HERITAGE OUTCOME WITH RESPECT TO THE DEMOLITION OF THE EXISTING DWELLING ON LAND?

31 The Council says that the proposed demolition is a threshold issue in this matter. That is, if the Tribunal accepts (as the Council does) that demolition should not be permitted, then the application must be refused. Failing that, it says that the subsequent design of the replacement building is unacceptable. It says that the proposal would produce a poor and ultimately unacceptable heritage outcome, as the demolition of the existing contributory graded building is not supported by the Heritage Overlay and the local heritage policy.

32 In broad terms the Council opposes the demolition of the building because of its contributory status, as its local policy explicitly discourages the demolition of contributory buildings.

33 The Applicant's position is that notwithstanding the building being classified as contributory under local policy, the existing building contributes little to the significance of the heritage place, and its demolition therefore would not adversely affect the significance of the place.

34 Two expert heritage witnesses, Mr Lewis on behalf of Council and Mr Raworth on behalf of the applicant, gave evidence in this case. There is no significant dispute between the witnesses about such matters as the design of the extant building. The principal area of disagreement between the witnesses concerns the contribution the building makes to the significance of the heritage place.

• the review site is within a row of four contributory heritage houses.

• the dwelling itself was architecturally designed by Geoff Nichols and constructed in 1953-54[2].

• the building was constructed within the identified significant development period of the precinct.
• although not positioned within an entirely intact heritage context comprising a non-contributory building to the west and non-contributory fabric opposite the site, this does not automatically lower the contributory value of the dwelling.
• although of a modest design, the house is representative of a style that is shared by a large number of contributory post-war houses in the precinct with pitched tile roofs. Further, it has an unusual, angled projecting living room wing presumably to relate to the sloping site with views to the south-west.

36 On behalf of the applicant, Mr Raworth gave evidence that in his opinion, the demolition of the building is supported on the basis that:

• the building makes a relatively low contribution to the HO precinct due to its limited interest and the low heritage value of the broader streetscape context.
• the immediate streetscape is of low significance, characterised by 'non-contributory' sites adjacent to the west, 'contributory' properties adjacent to the east, with additional 'non-contributory' sites further east of these, and ungraded sites that fall outside of the precinct along the opposite side of the street to the north.
• the dwelling does not sit in a highly prominent or visible location within this part of Molesworth Street, being partially concealed by the slope of the land.
• the relatively poor heritage context contrasts with parts of the HO precinct which have streetscapes composed of a higher proportion of 'significant' and 'contributory' buildings, and where the loss of a contributory building would have a greater impact on the integrity and significance of the street.
• the visible front parts of the building do not feature inventive or unusual decorative elements, or distinctive architectural massing.
• the dwelling is partly concealed from street view by the slope of the land, and the topography of the land on which the building is sited results in limited visibility of the subject building from the streetscape.
• the building is not a good exemplar of the mid-twentieth century Modernist typology captured by numerous other 'Significant' and 'Contributory' examples in the precinct referred to in the Statement of Significance, which largely focuses on more elaborate or sophisticated examples of Modernist design.

37 In his view, the modernist architecture identified as significant in this heritage precinct is not augmented to any appreciable degree by the modest and unimpressive building presently existing on the land.

38 In this proceeding, there is contradictory evidence about the heritage significance of the building proposed to be demolished and the nature of its contribution to the heritage precinct. Having carefully considered the information, evidence and opinions put forward by Mr Lewis and Mr Raworth, I prefer the evidence of Mr Raworth regarding the building's contribution to the significance of the precinct, and the impact that its demolition will have on the significance of the heritage place.

39 Inevitably, the demolition of any contributory building will reduce the stock of heritage buildings in the relevant precinct. However, not all contributory buildings make the same contribution. There is a spectrum of contribution.

40 In undertaking my assessment, I am cognisant of the Council's local policy which explicitly encourages the retention of contributory buildings. Relevantly, no policy can be read as a control or prohibition on a certain outcome. A policy does no more than provide guidance to the exercise of discretion. Importantly, the relevant local policy on contributory buildings does invite a consideration of a building's contribution to the significance of the precinct when deciding whether the demolition of the building is acceptable. This approach is consistent with the decision guidelines of the Heritage Overlay at Clause 43.01.

41 I have concluded that the extant building's contribution to the heritage significance of HO530 is at the lower end of the spectrum. For various reasons I think that the building on the review site makes a very limited contribution to the special character of the overall heritage precinct, which, on my count, numbers more than 120 buildings.

42 I am satisfied that because of the minimal contribution of the existing building to the significance of the heritage precinct, the proposed demolition is acceptable and will not result in any measurable diminution of the significance of the precinct, and that none of the heritage attributes stated in the precinct citation will be unreasonably affected.

43 While I accept Mr Song's assertion that the HO precinct is not exclusively focused on Modernist dwellings, these clearly represent the dominant architectural contribution. The extant dwelling, being constructed in either 1950 or 1953-54, is similar to that of the mass-produced brick veneers of middle and outer suburbs of that period. While it is of post-war construction, it demonstrates no design features that respond to modernist design techniques or material use, nor does the building appear to nestle into the topography like, for example, the Kagan and Boyd dwellings do.

44 The Statement of Significance makes it clear that architecturally, HO530 is significant for its high concentration, richness and diversity of Modernist residential dwellings, complemented by examples of interwar and late 1960s-1970s residential development. Further that the precinct was developed with "houses that adapted to the natural setting and hilly topography" and demonstrate a "move towards the simplified Modernist mode of dwelling, and in some cases experimental approach" and "a move away from the more conservative house designs found elsewhere in the municipality".

45 No expert opined that stylistically the extant building was of a simplified Modernist design, that it demonstrated any experimental approach in design, or shows any significant difference from other conservative house designs of that era found elsewhere in the municipality. While Mr Lewis says that the angled projecting living room wing is unlike more conservative house designs (and the angled form responding to topography is a Modernist characteristic), Mr Raworth thought the external chimney at the end of this living room wing was uncharacteristic of Modernist buildings. At best, both experts agreed that the building was architecturally designed in the early 1950's, and pre-dates its more experimental Modernist neighbours to its west.

46 Visually, it does not appear to sit in a grouping of similar buildings. There is no visual connection with the adjacent contributory dwellings to the east, which are both Modernist in design and architecturally designed by a listed architect. Under the definition of contributory heritage places at Clause 22.03-5, contributory buildings are described as being integral in demonstrating the cultural heritage significance of a precinct when combined with other 'significant' and/or 'contributory' heritage places. In this case, the inconsistency between the architectural styling of the extent building and the adjacent contributory buildings (which in my opinion more accurately reflect the relevant statement of significance) diminishes its capacity to function in combination with other heritage places to demonstrate the significance of the precinct.

47 Further, I agree with Mr Raworth that not all post-war buildings make a contribution to the precinct based on their period of construction. This is demonstrated by the adjacent property to the west, at 57 Molesworth Street, which was constructed within the similar time period yet is not listed as a contributory building. Mr Raworth's evidence is that this inconsistency demonstrates the uneven and subjective assessment of contributory significance in the relevant heritage study, in that some post-war buildings make only the most limited contribution, but are graded, and some are judged to make so little as to warrant a non-contributory assessment. In his view, the subject building is of no appreciably greater value than the non-contributory building at 57 Molesworth Street.

48 In carrying out my inspection of the specific HO precinct and more broadly along Molesworth Street, it is evident that Molesworth Street itself is characterised by an inconsistent mixture of non-contributory, contributory, significant and contemporary infill developments.

49 In my view, the mixed heritage context contrasts with other environs in the precinct which have streetscapes composed predominantly of 'Significant' and 'Contributory' buildings, and where the loss of a comparable post-war contributory building would have a greater impact on the integrity and significance of the street and broader heritage place. In comparison, the proposed demolition will have a negligible impact on the significance of the streetscape and wider precinct.

IS THE PROPOSED DWELLING SUFFICIENTLY SYMPATHETIC TO THE SIGNIFICANCE AND CHARACTER OF THE HERITAGE PLACE AND WILL THE PROPOSED BUILDING MAINTAIN THE EXISTING SCALE, MASSING, FORM AND SITING OF CONTRIBUTING BUILDINGS?

50 The Council says that the new dwelling is unacceptable and would be visually intrusive and jarring, as it will sit forward of the neighbouring contributory heritage building at No. 53, which will dominate and detract from its heritage qualities. It says the building will overpower the setting, in an instance where policy calls for deference.

51 For the Council, Mr Lewis acknowledges that the revised plans represent an improvement from the advertised plans, due to the height now matching its neighbour at 53 Molesworth Street. He also agrees that the building design detailing and materiality is generally acceptable for the precinct and respects the significant Modernist values of the HO530.

52 However, he says the proposed dwelling is not acceptable as the setback and building envelope will mean that the proposed dwelling will be more dominant than the adjoining contributory heritage place.

53 Further, he says that the extent of driveway reduces the front garden area and the garage wing which projects forward is the most dominant element of the proposal. He says that the creation of a large sunken garden with dominant curved retaining walls is not sympathetic to the significant landscape character of the precinct.

54 For the applicant, Mr Raworth's evidence is that the combination of external materials and finishes including concrete, brick, timber, black metal framed windows, and large expanses of glazing, will break up the bulkiness and massing of the dwelling. He says that the timber materiality of the garage and front door will read as suitably natural within this streetscape. He is satisfied that the landscaped frontage to Molesworth Street, which will comprise a curvilinear retaining wall with lawn and native trees suitably responds to its context. Further, that the use of timber vertical batten detailing will break up the bulkiness of the frontage. Vehicular access via the façade is a common feature of this modernist precinct, and to that extent the proposed driveway down to a double garage on the east side of the façade is acceptable.

• The façade height has been managed to be comparable to those of the adjacent buildings, including that of the 'contributory' buildings.
• The proposed front facade adopts a staggered street setback alignment to suitably transition to the adjoining contributory graded property next door.
• The scheme includes setbacks to the side property boundaries comparable to the contributory building at No. 53 Molesworth Street.
• The flat roof form, common to modernist architecture within the precinct, will 'sit well' within the streetscape and precinct.
• The extensive use of panelled glazing presented in the scheme is also prevalent throughout the precinct.

56 The experts agree, as do I, that the design detail and materiality, including the use of flat roof form, horizontal façade expression and expanses of glazing, broadly responds to the linear composition of the Modernist housing within the precinct and evident in the dwellings to the immediate east. It responds positively to heritage policy for infill in terms of matters relating to architectural character and form. In my view, the design is a well-mannered and respectful contemporary built form that is sympathetic and complementary to the broader heritage place.

57 I have referred to the purpose and decision guidelines in clause 43.01-8 relating to new buildings and works, including replacement buildings. Clause 15.03-1S includes strategies including to encourage appropriate development that respects places with identified heritage values. Clause 22.03 provides, amongst other matters, that new development should not unreasonably obscure contributory fabric in the wider precinct or dominate the heritage place or detract from its values.

58 Council's concern is that the proposed building, being set forward of its neighbouring development will obscure its contributory fabric.

59 I am satisfied that the proposed building height is acceptable and that its height does not result in a dominating of the contributory fabric of the adjoining building. As evident from the image provided earlier, the dwelling will be of equivalent height as its contributory neighbour at No. 53 Molesworth Street and set back from their shared boundary by approximately 1.2 metres. It reflects the height and scale of contributory buildings within the immediate context.

60 The adjoining contributory dwelling at No 53 Molesworth Street is set back 15.1 metres from the street. The other adjoining non-contributory dwelling at No. 57 Molesworth Street is set back 7.6 metres from the street. The proposed dwelling is set back a minimum of 10.7 metres from Molesworth Street, with that setback progressively increasing to 12.5 metres centrally and 15 metres at the edge of the front façade, adjacent No. 53 Molesworth Street.

61 I am satisfied that this staggered setback provides a respectful transition between the two neighbouring properties either side. While sitting forward of its neighbour at No. 53 and acknowledging the significant slope of the land away from Molesworth Street, from a streetscape perspective I am satisfied the setting forward of the building in front of its neighbour will not result in a domination of this individual building or the broader heritage place.

62 All vegetation within the property has been valued as low retention value and Council does not oppose its removal. However, it says that insufficient area is provided to accommodate appropriate tree planting commensurate with the landscape character of the area and the aims of the SLO1. Particularly, it says that the extent of hard paving within the front setback constrains the opportunity to provide reasonable canopy planting to screen the building from the street.

63 With respect to the landscape response, the applicant relies on the evidence and Landscape Concept Plan prepared by Mr Atkinson. The Concept Landscape Plan proposes to introduce an indigenous and drought tolerant landscape scheme comprising a range of large, medium, and small trees throughout the site, together with understorey vegetation and ground coverings. Based on the Landscape Concept Plan, four large native trees will be planted capable of growing more than 12 metres in height. In addition, two smaller native trees are proposed and one exotic tree in a planter box. All trees are proposed to be planted at 1.8 metres in height and as semi-advanced specimens.

64 I am satisfied that the area set aside for landscaping along the street frontage is reflective of the character of the immediate streetscape, with more than half of the front setback dedicated to landscaping and tree planting. The proposed pedestrian path adopts a natural exposed aggregate treatment, consistent with the naturalistic landscape setting evident on the property to the west. The sub-basement being set back from the property boundaries allow for in-ground planting, including canopy trees

65 I am not persuaded that there is an unreasonable extent of hard paving within the front setback. Based on other existing examples of driveway widths in the immediate locality, I am satisfied that the single width crossover widening within the front setback of the building is generally consistent with these examples.

66 I am satisfied that the relevant landscape character objectives under SLO1 are satisfied by the proposal.

67 Conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions plus further consideration by the Tribunal. I have amended Condition 3 to require that the Concept Landscape Plan be amended to reflect the agreement between the applicant and the respondent.

68 In conclusion and having regard to the requirements of Clauses 65 and 71.02, I consider that the proposal is an acceptable outcome, and that when assessed against all relevant policies, it does, on balance, achieve a net community benefit. For the above reasons, I find the proposed building demolition and removal, and new building all acceptable and respond appropriately to state and local heritage and vegetation policies.

69 The decision of the responsible authority is set aside, and a permit is granted.

• Demolition of the existing dwelling and construction of a new dwelling in a Heritage Overlay (HO530)
• Construction of a new dwelling more than 6 metres in height
• Vegetation removal in the Significant Landscape Overlay - Schedule 1

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed, they will then form part of the permit. The plans must be substantially in accordance with the amended plans received on 09 July 2021, prepared by Architected, Revision H but modified to show:

(a) Confirmation of the operability and design of the car stacker located within the double garage in accordance with Clause 52.06-9 of the Boroondara Planning Scheme.

(b) Any changes required by the Landscape Plan in accordance with Condition 3 of this permit; and

(c) Any changes required by the Tree Management Plan in accordance with Condition 6 of this permit.

2 The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason (unless the Boroondara Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.

3 Prior to the endorsement of the plans referred to in Condition 1 of this permit, a Landscape Plan must be submitted to and approved by the Responsible Authority. When endorsed, the plan will form part of the permit. The plan must be substantially in accordance with the Landscape Concept Plan but modified to show:

(a) Installation of a 3.0 metre high screen in between the mid planting zone of the current fiscus hedge, at the applicants expense. Such screen must be shown as independent of the existing boundary fence and have a 1500mm deep perforated black aluminium screen fixed to the top of the supporting posts to act as a visual barrier between 34 Yarravale Road private open space and the rear of 55 Molesworth Street back- yard.

(b) Detailed construction specifications for all permeable surfaces that include cross-section diagrams.

(c) Relevant tree protection zones for all trees proposed for retention in accordance with Condition No. 6.

(d) All trees must comply with Australian Standard AS2303:2015 - Tree Stock for Landscape Use;

(e) All trees must be planted by an AQF Level 3 Qualified Arborist, Landscape Gardener or Horticulturist.

4 Landscaping as shown on the endorsed landscape plan/s must be carried out and completed to the satisfaction of the Responsible Authority prior to the occupation of the development.

5 All landscaping works shown on the endorsed landscape plan/s must be maintained and any dead, diseased or damaged plants replaced, all to the satisfaction of the Responsible Authority.

6 Prior to the endorsement of the plans referred to in Condition 1 of this permit, a Tree Management Plan must be submitted by a suitably qualified and experienced Arborist in relation to the management and maintenance of the street trees 2 & 6 and neighbouring trees 1, 19, 20, 21, 31-34 as numbered in the Melbourne Arboricultural Services Pty Ltd Report authored by Richard Warren-Smith dated 27 August 2019.

The Tree Management Plan must be approved by the Responsible Authority prior to the commencement of any works including demolition and levelling of the site. The Tree Management Plan must make specific recommendations in accordance with the Australian Standard AS4970: 2009 - Protection of Trees on Development Sites and detail the following to the satisfaction of the responsible authority ensuring that the tree remains healthy and viable during construction.

(a) A tree protection plan to scale is to be submitted along with the tree management plan that is to show:

1. Tree protection zones and structural root zones of all trees to be retained;
2. All tree protection fenced off areas and areas where ground protection systems will be used;
3. The type of footings within the tree protection zone;
4. All services to be located within the tree protection zone and a notation to state that all services will either be located outside of the tree protection zone, bored under the tree protection zone, or installed using hydro excavation under the supervision of the project arborist; and
5. A notation to refer to the tree management plan for specific detail on what actions are required within the tree protection zone.

(b) Details of how the root system of any tree to be retained will be managed. This must detail any initial non-destructive trenching and pruning of any roots required to be undertaken by the project arborist; and details of how any permeable surfaces within the Tree Protection Zone of retained trees will be constructed.

(c) Supervision timetable and certification of tree management activities required by the Project Arborist to the satisfaction of the Responsible Authority.

(d) All remedial pruning works that are required to be performed on the tree development of the site. The pruning comments must reference Australian Standards 4373:2007, Pruning of Amenity Trees and a detailed photographic diagram specifying what pruning will occur.

(e) The recommendations contained in the approved tree management plan must be implemented to the satisfaction of the Responsible Authority.

Contractors to be advised of trees to be retained

7 The owner and occupier of the site must ensure that, prior to the commencement of buildings and works, all contractors and tradespersons operating on the site are advised of the status of trees to be retained as detailed in the endorsed Tree Management Plan and are advised of any obligations in relation to the protection of those trees.

Regulation of activities in Tree Protection Area

8 No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Area as detailed in the endorsed Tree Management Plan without the prior written consent of the Responsible Authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone.

Documentation and Certification by Project Arborist

9 Prior to the commencement of any site works, including demolition and excavation, the Responsible Authority must be provided with evidence that a project arborist has been engaged as part of the ongoing consultant team to oversee the design and construction, and to ensure the development does not have a detrimental impact on the ongoing health and stability of the trees to be retained. The project arborist must hold suitable qualifications and experience to the satisfaction of the Responsible Authority. Evidence of the appointment of the project arborist must be submitted to the satisfaction of the Responsible Authority (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) not less than seven (7) days before the commencement of works on site.

10 Prior to the commencement of any site works, including demolition and excavation, a timetable for the supervision and certification of tree management activities which is to the satisfaction of the Responsible Authority must be prepared by the project arborist and submitted to the Responsible Authority for approval. A signed and dated copy of each stage of the supervision timetable certified by the project arborist (quoting the Planning Permit number and site address, emailed to Boroondara@boroondara.vic.gov.au) must be submitted to the Responsible Authority not more than seven (7) days following the completion of each stage.

11 The site must be drained to the satisfaction of the Responsible Authority.

(a) The development does not start within two (2) years of the issue date of this permit; or

(b) The development is not completed within four (4) years of the issue date of this permit.

The Responsible Authority may extend the times referred to if a request is made in writing before the permit expires or:

1. within six (6) months afterwards if the development has not commenced; or
2. within twelve (12) months afterwards if the development has not been completed.

Council and the Victorian Civil and Administrative Tribunal are unable to approve requests outside of the relevant time frame.

[1] The submissions and evidence of the parties, any supporting exhibits provided to the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] The Kew Heritage Precincts Study 2013, prepared by Lovell Chen lists the dwelling as being constructed in approximately 1950 and designed by the architect Geoffrey Nichols.