Ms Robyn Gray, Town Planner, appeared for the applicant. She presented written and oral submissions.

Ms Kylie Sullivan, Town Planner and Officer of the City of Hobsons Bay appeared for the Responsible Authority. She presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file on the Tribunal.

Application under s 77 of the Planning and Environment Act 1987 for a review of a decision of the Responsible Authority to refuse to grant an amendment to Planning Permit PA0815869 issued by the Responsible Authority on 23 June 2009 allowing the construction of 11 double storey dwellings, a new parish centre, associated demolition, buildings and works (including new and upgraded car parking) and the subdivision of the land into 12 lots.

Melbourne Anglican Trust Corporation Williamstown v Hobsons Bay CC [2009] VCAT 667 and [2009] VCAT 1182

Nelson v Hobsons Bay CC [2015] VCAT 1153

Lee v Hobsons Bay CC [2000] VCAT 1520

Vincent v City of Hobsons Bay, Victorian Administrative Appeals Tribunal decision in Application No. 99/08003

Franceshini v MMBW (1980) 1 PABR 276; (1980) 57 LGRA 284

Dervency Nominees Pty Ltd v City of Brighton (1994) 14 AATR 104

Poci Brothers Pty Ltd v Bayside CC (2003) VCAT 1884

Cope v Hobsons Bay CC (2004) VCAT 2487

Hill-Murray v Hobsons Bay CC [2007] VCAT 1764

Cosgrave v Hobsons Bay CC [2011] VCAT 519

Neil Fletcher Design Pty Ltd v Kingston CC [2011] VCAT 1184

Stein v Hobsons Bay CC [2013] VCAT 1828

1. This case concerns an existing three storey townhouse at 8 Pasco Street, Williamstown. The dispute concerns a roof structure that has been erected at second floor level over a roof top deck referred to as a "sunken terrace". It might also be called, perhaps more accurately, a roof top terrace.
2. A roof structure has been erected. Although the deck area, sheltered by the roof, has protection around it so that people will not fall from it, the upper levels between such protection and the roof are open and unwalled.
3. Although there is existing planning permission in relation to this property, which will be discussed below, there has been no permission for the roof structure.
4. The Responsible Authority takes the view that it has been constructed illegally, because it is prohibited so that no such planning permission can be granted.
5. The question of whether the structure is prohibited so that no permission for it can be granted is the main issue in this case.
6. The applicant has sought to remedy its situation by applying, to the responsible authority, under section 72 of the Planning and Environment Act 1987 (PE Act) for an amendment to the permit in so far as it relates to the review site. The proposed amendment seeks authorisation of the roof structure. The responsible authority has refused to grant the amendment on three grounds set out in its Notice of Decision to Refuse to Grant a Permit dated 21 October 2015. The third ground reads:
   1. The proposed roof structure above the sunken roof terrace is prohibited by reason of the height control in schedule 4 of the Design and Development Overlay (Clause 43.02) in the Hobsons Bay Planning Scheme.

1. A planning permit PA0815869 was issued by the Responsible Authority on 23 June 2009. It was issued at the direction of this Tribunal in its determination of planning application for review Melbourne Anglican Trust Corporation Williamstown v Hobsons Bay CC[1].
2. That case concerns a larger area of land being the church and vicarage property of Holy Trinity Williamstown at 255 Nelson Place, Williamstown. There is a substantial blue stone church and Vicarage towards the frontage of that land which is, of course, to Nelson Place. To the east of Nelson Place in this vicinity there is the foreshore of the Hobsons Bay portion of Port Phillip Bay.
3. Nelson Place runs generally north to south. The property to which the permit relates fronts its western side.
4. The property also has a side abutment to Pasco Street. That street runs west from its intersection with Nelson Place to Atkins Street and beyond. Atkins Street forms a crossroads intersection with Pasco Street and runs north from it along the rear of the Holy Trinity property which has a rear abutment to its eastern boundary.
5. Originally there was a parish hall and some tennis courts on the rear part of the property, behind and thus to the west of the church and the vicarage.
6. The permit directed by the Tribunal gave permission for the demolition of buildings and works at the rear of the property and, importantly from the point of view of this case, a subdivision to create 11 residential allotments plus permission for the construction of double storey dwellings on each of those allotments.
7. Eight of these double storey dwellings have been constructed and face the east side of Atkins Street. The remaining three residential allotments front the northern side of Pasco Street in the south western corner of the original Holy Trinity land.
8. They are lots 9, 10 and 11. Lot 9 is on the actual south west corner with a frontage to Pasco Street. The middle one is lot 10 and the current proceedings relate to lot 11, the third of the residential frontages to the north side of Pasco Street. It bears the street number 8 whilst lot 10 is number 10 and lot 9 is number 12.
9. There is an accessway that runs along the eastern side boundary of lot 11 to give access to the rear of the eight lots along Atkins Street as well as to the remaining church property. It was admitted, on behalf of the requestor, that this lane is a road. At the rear (northern) end of the request site there is a double garage with access to that lane.
10. Townhouses have now been constructed on each of the eight lots that front Atkins Street, the review site and lot 9 (no. 12) Pasco Street. Each of those lots has a frontage to Atkins Street or Pasco Street and rear access from the laneway or Atkins Street. Lot 10 (no. 10) remains vacant. It has a frontage to Pasco Street but no rear access. The case of Nelson v Hobsons Bay CC[2] was a conditions review under section 80 of the PE Act concerning that land and access to it.
11. Each of the dwellings that has been constructed has a first and second floor with a so called sunken terrace, and perhaps other features, at second floor level, that is to say, the third level above ground.
12. So far as the Atkins Street developments are concerned, the existence of sunken terraces is not apparent in the view from Atkins Street as those features are behind the ridge of the roofs, as viewed from that standpoint.
13. So far as the review site is concerned, the roof structure that has been built is quite visible from various points of view, including from Pasco Street.
14. Access to this roof deck is obtained via an internal stairway that rises to the third level from the first floor below. Such an arrangement calls for some means of preventing rain from entering the building down the stairway and its opening onto the third level. In this case the head of the stairway and its landing is protected by a part of the building that has walls and the roof above first floor level. Not only does this roof structure give sheltered access out onto the roof deck, but it contains a habitable room that has four walls, a roof and windows. The room is used as a study.
15. It is admitted on behalf of the applicant, and indeed volunteered, that this study is a habitable room in accordance with the definitions in the planning scheme. It is also admitted that the existing building is a three storey building.

1. The land is in a General Residential Zone and subject to two overlays. One is a Heritage Overlay and the second is a Design and Development Overlay which has a relevant schedule namely schedule 4.
2. It is the Design and Development Overlay, and its schedule, that are in question in this case.
3. The Design and Development Overlay provisions are found in clause 43.02 of the planning scheme. That clause applies to this and all other planning schemes based on the Victoria Planning Provisions. The specific concerns of the overlay are to be found in the schedule.
4. The purpose of the overlay, in addition to a general one is:

To identify areas which are affected by specific requirements relating to the design and built form of new developments.

1. Clause 43.02-1 is headed "Design objectives" and provides:

A schedule to this overlay must contain a statement of the design objectives to be achieved for the area affected by the schedule.

1. Clause 43.02-2 deals with buildings and works. It provides that a permit is required to construct a building or to construct or carry out works subject to some exceptions, the relevant one of which reads:
   • 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 setbacks.
• Building with a height.
• Plot ratio.
• Landscaping.
• Any other requirement relating to this design or built form of the 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 the schedule to this overlay, unless the schedule specifies otherwise.

1. I will discuss the schedule shortly but I think it is clear that it does specify otherwise so that no permit can be granted to construct a building that is not in accordance with the building heights specified in the schedule.
2. Clause 43.02-5 contains a number of design guidelines which, in addition to those specified in clause 65 of the planning scheme, are to be considered when determining whether planning permission should be granted. These guidelines include reference to the objectives of the schedule, relevant policies and urban design guidelines, bulk, location and appearance of the proposed building, scale of proposed buildings and their compatibility with heritage places surrounding the site and so on. However, these are matters relating to the planning merits that would become relevant if, on correct interpretation of the schedule, the permission sought can be granted.
3. Schedule 4 is the relevant one and it is headed "Foreshore Height Limitation".
4. Clause 1 of the schedule sets out the design objectives in the following term:

To protect and enhance the environment of the Hobsons Bay foreshore as an environmental, conservation and recreational asset of State, metropolitan and local significance.

To ensure that the height, scale, bulk, setback and appearance of new development is compatible with the prevailing character of the area.

To achieve development that is a high quality architectural and urban design standard.

To preserve solar access to the foreshore, including associated roadways, bicycle and pedestrian paths.

To protect the foreshore reserve and significant public open spaces from inappropriate development.

1. Clause 2 of schedule 4 deals with buildings and works and, in particular, "Building Height". It is the first of the two paragraphs under that subheading that is the key provision in relation to this case. In relation to building height clause 2 provides:

A permit must 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. Some planning scheme provisions relating to building heights specify maximum heights in terms of metres whilst others specify a number of storeys. In some cases there is reference to both.
2. Clause 3 of schedule 4 contains a number of decision guidelines. These, of course, relate to matters of planning merit to be considered by the Responsible Authority in determining a permit application. However, they also, together with the design objectives, are indicative of purposes to be gained or protected by the schedule. They are not limited to foreshore considerations. They include consideration of the size and scale of surrounding buildings, neighbourhood character, whether the development would predominate and whether it interprets broad forms of the neighbourhood. There are considerations in relation to whether the development 'builds' in the dominant waterfront style and contributes to the sea side character. There is reference to the height of development and maintaining human scale and effects on the amenity of adjoining residential property by virtue of visual bulk. There is specific mention of design treatments of walls and elevation particularly the height of eaves and typical floor to ceiling heights found in the neighbourhood. The amenity of the immediate locale, including of residential property is included, together with foreshore considerations.
3. There have been a number of previous decisions in relation to clause 2 or its equivalent that were referred to in the course of the hearing. The line of cases, so far as those referred to at the hearing are concerned, commences with Lee v Hobsons Bay CC[3] which in turn refers to an earlier decision of Vincent v City of Hobsons Bay[4].
4. Before discussing the line of cases further I wish to say that I think that the interpretation of clause 2 is more straightforward than some of those cases suggest.
5. I think that the first paragraph of clause 2 is plain enough. It means that there is a height limit of two storeys and that there cannot be three storeys because this sentence negatives the ability that the Responsible Authority would otherwise have to grant a permit to exceed the two storey limit in the schedule. There is no power to grant a permit for a building exceeding a height of two storeys.
6. It is argued, in some of the cases, that a distinction in interpretation is to be drawn between a building of two storeys and a building with a height of two storeys. This argument suggests that it is possible to determine a height of two storeys and if more than two storeys can be accommodated within that height, then there will be no contravention of clause 2 if the number of actual storeys exceeds two. No permit allowing three storeys would be needed.
7. Of course, building heights vary from building to building and different sorts of buildings, and buildings relating to similar uses but from different periods, commonly have different storey heights. Victorian residential buildings commonly have higher floor to ceiling heights than many more modern buildings. However, this clause relates to new buildings that are to be constructed.
8. Ordinary English words and expression are to be interpreted in accordance with the ordinary meaning in the context in which they are used unless defined for the purposes of the planning scheme. The meaning of an ordinary English word or expression is a question of fact, not a question of law, whether or not that meaning then becomes important in relation to a question of law, see Franceshini v MMBW[5]. The word "Storey" is defined, for the purposes of the planning scheme, in its clause 72 as follows:

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

1. Both "attic" and "mezzanine" are ordinary English words that are not defined in clause 72 of the planning scheme.
2. In this context I would take attic to mean a room within the roof space of a building, that is to say, between the ceiling of the floor below and the underside of the roof. Habitable attic rooms commonly have access to light and/or air by means of dormer windows, recessed windows or skylights. In Payton v Kingston CC[6] it was said that a roof space inside a roof is not an attic or extra storey if it has no floor, but only a plaster sheeting forming the ceiling of the room below attached to the underside of the purlins and where a person in that space would have to crawl from purlin to purlin.
3. I would take "mezzanine" to mean an intermediate storey between two other, usually principle, storeys. It is defined in the Macquarie Dictionary[7] as:

Mezzanine ...n. a low storey between two other storeys of greater height, esp. when the low storey and the one beneath it formed part of one composition; entresol.[8]

1. Both attics and mezzanine would normally have a smaller floor areas, or at least useable floor area in the case of an attic, compared with the floor below.
2. At any event, having regard to the definition of storey, each is to count as a storey according to the definition of that word in the planning scheme.
3. A basement also comes within the definition of storey, but, in ordinary English, would be disregarded for the purposes of determining whether a building has one storey or two or more.
4. Clause 72 defines basement in the following terms:

A storey below ground level, or that projects not more than 1.2 metres above ground level.

1. In some of the cases it is suggested that the second paragraph in clause 2 of the schedule, where it specifies the base level from which height is to be measured in terms of the footpath or natural ground level in the centre of the site frontage, implies a measurement in terms of metres rather than floors. It does not say so. The whole paragraph is redundant in this context if it is meant only to apply to measurements in metres, and not to apply to measurements in terms of storeys.
2. It is a principle of statutory interpretation that word, let alone paragraphs, are to be given meaning if that is possible. It is presumed that words, expressions and paragraphs are inserted on purpose, for a purpose, and that they are not redundant.
3. I suppose that the specification of a starting point or base level is more particularly relevant in relation to sloping land. The present site is flat or so nearly perfectly flat as to render the difference irrelevant. There is not so much need of a base starting point in relation to flat land, but there is such a point specified in this clause for the measurement, whether it is in terms of metres or storeys. In fact, it must be in terms of storeys, there being no limit expressed in metres.
4. The result is that the question arises as to whether the building has two storeys or less above that base. In those circumstances the clause is met. If, on the other hand, there are three or more storeys above that level, then clause 2 is offended.
5. I think it is a question of fact, to be determined on the facts of the particular case, whether the limit of a height of two storeys is offended or not. There could be doubtful cases where there is a ground floor with a floor level sunken below the starting point although it would have to be significantly below before a problem would arise. I would think that a building with two floors above the base line satisfies the clause, whether or not the floor level of the ground floor happens to be, at some points or all over, say 300 mm above or below the base. In fact the definition of basement allows for a protrusion of up to 1.2 metres above ground level so it appears appropriate to disregard a basement not exceeding that height when determining whether a building has two storeys or a height of two storeys for the purposes of the clause 2 height limit.
6. Clause 72 defines the expression "Building height" in the following terms.

The vertical distance from natural ground level to the roof or parapet at any point.

1. That definition of "Building height" differs somewhat from the formulation for determining the "height of a building" as it appears in the second paragraph of clause 2 in schedule 4.
2. I have drawn on the account of the decision in Vincent v Hobsons Bay CC[9] from the reasons in Lee v Hobsons Bay CC[10] as I do not have access to a separate copy of the original.
3. Vincent's case was determined by a then Deputy President of the Tribunal, later appointed as a County Court Judge and Vice President. It appears to be the origin of a somewhat different approach to building heights under clause 2 to the one that I have described above which I would have otherwise thought to have been the correct one.
4. It appears that, in Vincent, there was a proposal for two storeys upon a basement protruding 1.2 metres above ground level. At paragraph 14 of the reasons in that case the Tribunal said:

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

1. I respectfully observe that the above is an interpretation although not, I think, the only interpretation. It is hard to be certain of the intention or the mind of the person drafting or persons adopting clause 2, but it may be that they would be surprised that a height of two storey therein is not to be equated with a building having two but not more than two storeys above ground level, (basements protruding no more than 1.2 metres above ground level being excluded).
2. The reasons in Vincent went on to consider some policy provisions and the role of policy and statutory interpretation. I respectfully agree with what is said in that connection in paragraphs 16 and 17 of those reasons. They read:
   1. ... The precise manner of achieving the planning objectives to be found in a planning instrument is to be derived from the words in the control itself. No doubt the policy to be achieved may be resorted to clarify an unclear point of interpretation. Ultimately however the interpretation of the Hobsons Bay Planning Scheme on this point is in my view clear and there is no justification for modifying it on the basis that the Scheme's wider policies on Bayside height controls could have been achieved by a less restrictive or prescriptive limit.[11]
   2. Likewise, the choice of the height of two storeys creates the possibility of serious anomalies given that a storey has no fixed height; but the Responsible Authority in its role of considering permit application and this Tribunal on review of that function have no power to re-write the language of the Planning Scheme based upon considerations such as this.
3. I agree that modern interpretation favours giving effect to the purpose of a statutory provision, assuming that such purpose can be discerned, but that does not mean that the responsible authority or the Tribunal is free to contradict the clear meaning of the words in the statutory provision. It is not open to conclude that a provision banning, for example, black roofs is really a provision banning white roofs. That would not be correct. Neither would reasoning by a series of increments along the lines of slate grey is nearly black and therefore near enough to black, mid grey is nearly slate grey, dove grey is not far off mid grey, off white is like dove grey and therefore near enough to white therefore white is prohibited.
4. In Lee v Hobsons Bay CC[12] at paragraph 23 there is a lengthy three page extract from the submissions on behalf of the applicants in that case in relation to this question. That submission respectfully argues that the interpretation in Vincent is not correct and should not be followed. Rather it supports the approach that I have favoured above. It refers to other planning schemes and the decision in Dervency Nominees Pty Ltd v City of Brighton[13] supporting that view. The submission contains detailed argument in relation to various aspects.
5. Although the Tribunal in Lee agrees with some of the subsidiary propositions in the submission at its paragraph 30 it concludes:
   1. This Tribunal does not prepare to differ from the decision in Vincent v City of Hobsons Bay and considers that it is a correct exposition of the interpretation of this height control.
6. Although not adopted, this case in its quotation from the submission does illustrate, in my opinion, that there is a logical and respectable basis for an interpretation differing from that adopted in Vincent v Bayside CC.
7. Poci Brothers Pty Ltd v Bayside CC[14] is a decision of the then President of this Tribunal concerning a similar but nevertheless materially different clause as to building heights in a schedule to a Design and Development Overlay. The case concerns the one time Hampton Hotel at 56 Beach Road, Hampton where the façade of the original hotel had been retained and a modern building was constructed or to be constructed behind that façade. The dispute concerned the inclusion or construction of penthouses.
8. The relevant clause in that case was clause 2 of Schedule 1. It differs from the Hobsons Bay provision in other respects and also contains a site specific provision. It includes the following:
   • Building height must not exceed two storeys (excluding an attic or basement). A permit may be granted for buildings and works to a height of three storeys on land at 56 Beach Road, Hampton.
9. There is a further provision that a permit cannot otherwise be granted for the construction of a building not in accordance with the specified requirements (subject to a presently irrelevant exception).
10. The past President does not refer to any other cases. He complains about statutory drafting and refers to an unusual, if not improbable, illustration of a single storey building containing two vertical levels for the accommodation of dogs and as to whether these are mezzanines and storeys. He draws a distinction between three storeys and three storey height and, at paragraph 13 says something about counting levels that has subsequently been quoted.
11. That paragraph reads:
    1. Turning to what I regard as the key requirement, namely that the building on this land must not exceed a height of three storeys I find that the construction of the penthouses that are sought by application will not result in the height of the building exceeding three storeys. The height of the building is to be addressed, not by counting every possible level or every possible storey within the building and then reaching the conclusion by addition; but, rather, it is to be ascertain by being armed with all relevant information about the building and then reaching a conclusion as to whether the building should be characterised as a building which exceeds a height of two or three storeys (as the case may be).
12. The Tribunal then goes on to discuss what it takes to be both common sense and applicable policy coming to the conclusion that its decision accords with both.
13. Paragraph 13 suggests to me that it is saying that the decision is one made on the facts of the particular case although the notion of not counting every possible level and every possible storey has subsequently been referred back to. I would think that a counting of actual storeys would be a good approach.
14. In Cope v Hobsons Bay CC[15] the then President, sitting with another lawyer member, considered a proposed alteration to an existing building that had two levels and a stairway of leading up into its roof space. At that level there was a landing referred to as a mezzanine having an area of 2.5 square metres. Although labelled "mezzanine" that was probably a misnomer. Amendments C21 and C11 to the planning scheme brought in the current clause 2 controls.
15. The purpose of the stairway and landing was contemplation of the possibility of a future attic room. The panel considering the relevant planning scheme amendment was not opposed to the idea of the attic but provision for it was not included in the ultimate amendment.[16]
16. The proposal in Cope was to increase the area of the upper level from 2.5 to 23.2 square metres which would provide a room where, due to the sloping roof, the stand up area would be 16 square metres.
17. A declaration was sought that this was an internal alteration to provide an additional bedroom and that it was lawful, allowed by the planning scheme and did not require a planning permit.
18. At paragraph 21 the Tribunal said there was confusion about the precise nature of the two storey restriction. One reason was said to be that the language of clause 2 was designed to measure height in terms of metres. That, at any rate, is the inference that the Tribunal drew.
19. The observation was made that a literal meaning of clause 2 might mean 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 level. That was rightly observed to be absurd. Buildings need roofs and roofs are obliged to be above the ceiling of whatever is the upper storey.
20. At paragraph 22 reference was made to other above upper ceiling features like a chimney, TV antenna and solar panels. In times past chimneys were probably as essential as roofs, not only for heating but for cooking, laundry etc. I think that the constraint on storeys or height measured in storeys cannot be properly interpreted as constraining the inclusion of roofs or chimneys.
21. Television antennas and solar panels are optional extras, but similarly they are not storeys and I would not suppose that clause 2 was supposed to constrain them.
22. Clause 62 of the planning scheme deals with buildings not requiring a planning permit. The list includes an anemometer located on site for three years or less, a children's cubby house and external lighting normal to a dwelling. A further list in clause 62.02-2 includes works to which any requirement in the planning scheme relating to construction of the building does not apply. These include a fence, domestic services normal to a dwelling, a rainwater tank with a capacity of not more than 4,500 litres, a television antenna, a flagpole and solar energy facilities attached to a building that primarily service the land on which it is situated. These exemptions apply unless the planning scheme specifically requires a permit.
23. One of them reads:

The internal rearrangement of a building ... provided the gross floor area of the building ... is not increased and the number of dwellings is not increased.

1. The reasons refer to Vincent, Lee and Poci.
2. At paragraph 27 the Cope reasons state:
   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 the 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.[17]
3. At paragraph 31 the Tribunal correctly notes that the applicable definition of "building" in the PE Act includes part of a building. It goes on to say:

Hence the requirement of the Design and Development Overlay that a permit is required to construct a building extends to the construction of part of a building or an extension to a building. Similarly the limitation on the power to grant a permit expressed in clause 2.0 of schedule 4 is relevant in considering an application for a permit to construct an extension to a building. But, in such a case, how is the limitation that a permit may not be granted to construct a building exceeding a height of two storeys to be applied? We think that the provision means that a permit may not be granted to construct a building, or an extension to a building, so that the building becomes a building of more than two storeys (that is three storeys) by reason of the construction.

1. It was submitted that the creation of the attic room would not change the characterisation of the building as a two storey building but the Tribunal found at paragraph 36:

The fact that a building may appear as a two storey building from some locations does not make it a two storey building.[18] Further, the fact that an existing roofline is to be extended does not mean that a building is of the same number of storeys as the existing building. In the present case the construction of the extension will create the appearance of a three storey building when the building is viewed from positions 100 metres distance from the site in either direction among the Esplanade or toward the foreshore. This is not a case like Poci where an additional level has been created within the building in a way which made no discernible difference to the external appearance of the building.

1. As to this aspect the Tribunal concluded that it had no power to allow or grant permission for the construction of the proposed extension.
2. The Tribunal referred to Poci, and distinguished it, on the basis of whether the additional level was discernible in the external appearance of the building. However, it did not go so far as to say that this distinction was essential or that a three storey building would not be caught by the constraint merely because it was not apparent that it had more than two storeys.
3. That further step appears in Hill-Murray v Hobsons Bay CC[19]. In that case there was an existing two storey block of flats on the subject land. The proposal was for extensions to existing buildings to contain six existing dwellings and the construction of seven additional dwellings in a new building. At paragraph 3 the Tribunal said:

The new building would have two level over an under-croft parking area. It is conceded that internally the new building will have three levels. However, it will be the same height as the existing two level building and in terms of its external appearance, will present as a two level building.

In my view, it is evident that in choosing an express height control in DDO[20] 4 in terms of storeys rather than metres, there is a clear intention that it is the appearance of the new development that is paramount, not the actual height in metres. I consider that the term "storeys" is used in a non-technical sense and is intended to describe the external appearance of the building in terms of number of apparent levels.

1. I am not clear as to the distinction between technical and non-technical meanings of "storeys", but I should have thought that it is the definition in clause 72 of the planning scheme that is applied.
2. The reasons in this case refer to Cope but go beyond it and, I think, go beyond what is consistent with Cope.
3. I do not think that it is correct, if this is what has been done, to discern an intention and then construe a statutory provision, contrary to its terms, to achieve that suggested purpose. In so saying I recall the sentence quoted above from paragraph 36 in the reasons in Cope where the Tribunal observed that the fact that the building might appear to be a two storey building from some locations does not make it a two storey building.
4. The reasons in Hill-Murray refer to the cases I have discussed above taking the view, at paragraph 14, that Cope and Poci are effectively saying the same thing, that being, that, in interpreting height controls of this nature (expressed in storeys) it is by observation of the external built form with reference to the purpose of the control that should be adopted. It was found, in that case that the appearance did not exceed two storeys and that it did not matter how many levels may be within the building, see paragraph 14. A finding was made that the proposed plan did not appear to exceed two storeys in height externally and therefore was not prohibited by clause 2 of schedule 4. I must respectfully say that I think this takes the "purposive" approach rather too far.
5. The question arose again before a planner (not lawyer) member in Cosgrave v Hobsons Bay CC[21] where reference was made to Poci and Cope although I do not see reference to Hill-Murray. That case concerned a roof deck with no floor or ceiling above it. It was put that the Tribunal had found such roof top decks acceptable pursuant to DDO4[22]. The Tribunal was not persuaded that such was the situation. The Tribunal concluded[23]

...I am of the opinion the proposal is in excess of the two storeys and the inclusion of the roof terrace is therefore contrary to DDO4.

1. In Misquitta v Hobsons Bay CC[24] a similar situation arose in relation to this Clause 2. The Tribunal referred to Cope, Cosgrove and a Kingston case of Neil Fletcher Design Pty Ltd v Kingston CC[25]. There was also reference to Poci.
2. The Tribunal noted that the roof terrace was accessed by a lift and a stairwell both constructed above the roof with an internal floor to ceiling height of 2.4 metres and an area of 5 x 2.5 metres[26] with solid walls and windows. The Tribunal concluded that the proposed building exceeded two storeys, and virtually forms a third storey and that it is contrary to the intent of the schedule of the Design and Development Overlay.
3. Stein v Hobsons Bay CC[27] is a further and similar decision by a planner member in relation to a roof deck. Reference is made to Miquitta, Cosgrave, Cope and Poci. At paragraph 8 the Tribunal said:

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

1. It might be uncertain as to whether that quotation means that three levels that look like two is sufficient, or whether the height of two storeys implies a limitation to two storeys. In the particular case the Tribunal decided, amongst other things, that the form of the proposed deck was such that the enclosed stairwell would read as a third level, sitting above the roof line, albeit not a habitable space concluding[28].

...I do not consider the mandatory requirement of DDO4 would be met.

1. In this case I am asked to determine whether the Responsible Authority is correct in its view that the roof that has been erected above the roof terrace on the subject land is contrary to clause 2 of Schedule 4 of the Design and Development Overlay applying to the land, and further, whether the Responsible Authority is correct in concluding that no permission can be granted for it.
2. I consider that the Responsible Authority is correct on both counts. The roof is part of a building and thus a building within the definition of that term in the PE Act. That definition applies to considerations under the planning scheme.
3. Ultimately I do not have to decide whether this contravention would not apply if the result appeared to be two storeys or a height of two storeys in spite of being in fact, and admitted to be, a three storey building. I accept that it is a three storey building by virtue of the habitable room used as a study near the head of the stairway given access to that room and to the roof deck and further by the installation of the roof over the roof terrace.
4. Whether or not the mere appearance of two storeys is sufficient though there really is three storeys, does not arise because this roof is quite apparent from the public realm. If the Hill-Murray case is correct it does not avail in these circumstances. Accordingly I will confirm the decision of the Responsible Authority to refuse the proposed amendment of the permit.
5. I am not called upon, in this case, to do anything in relation to the other admittedly three storey aspects of this building as it now stands. I merely note that it is of three storeys, is admitted to be such, and also appears so.

[1] [2009] VCAT 667 and [2009] VCAT 1182.

[2] [2015] VCAT 1153.

[3] [2000] VCAT 1520.

[4] Victorian Administrative Appeals Tribunal decision in Application No. 99/08003.

[5] (1980) 1 PABR 276; (1980) 57 LGRA 284.

[8] The word "entresol" is defined in the same dictionary as "a low storey between two other storeys of greater height, USU. One immediately above the chief or ground floor; a mezzanine".

[11] While I agree with this passage generally I would not go so far as to say that clause 2 is so free of doubt and ambiguity that there is but one clearly correct interpretation.

[13] (1994) 14 AATR 104.

[14] (2003) VCAT 1884.

[15] (2004) VCAT 2487.

[16] See paragraph 9 of the Cope reasons.

[19] [2007] VCAT 1764.

[20] Abbreviation for Design and Development Overlay.

[21] [2011] VCAT 519.

[24] [2012] 1775 a similar situation arose in relation to this clause 2.

[25] [2011] VCAT 1184.

[27] [2013] VCAT 1828.