1. Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following persons are joined as parties to the proceeding:

1. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended as follows:
   • For all the plans attached to the permit application, substitute the plans prepared by David Watson Architect Pty Ltd job 1522 drawing nos. TP001 - TP016 (inclusive) revision V.01 dated 16 September 2016

1. Pursuant to section 127 of the Victorian Civil & Administrative Tribunal Act 1998, the responsible authority's refusal to grant a permit dated 8 July 2016 is amended by adding the following reason for the refusal:
   • The height of the building does not comply with the maximum building height specified in clause 3.0 of schedule 1 to the General Residential Zone

1. On the question of law raised in this proceeding, I determine as follows:

Question

Does the height of the proposed building comply with the maximum building height under clause 3.0 of schedule 1 to the General Residential Zone in the Boroondara Planning Scheme?

Answer

No

1. The proceeding is adjourned for administrative mention on 13 December 2016. By that date the applicant must advise the Tribunal in writing if it intends to apply to the Tribunal to amend the permit application as a consequence of the determination of the question of law. No attendance is necessary.

1. An application to amend the permit application must be made in accordance with the Tribunal's practice note PEPN9 by no later than 13 February 2017.

1. This proceeding is listed for a further hearing in accordance with the details set out in item A above. No further hearing notice will be sent. Any changes to the hearing details will be notified by further order of the Tribunal. Please read the information included in Appendix A to the order dated 20 September 2016 and observe any directions included in the Appendix. All hearings will be conducted at 55 King Street, Melbourne.

• Mr Tomas Champion, land surveyor, Reeds Consulting Pty Ltd
• Mr Michael Loy, land surveyor, Lawlor & Loy (Vic) Pty Ltd

For Tom Mole, Geoff Tauro, Peter & Brenda Bahen, Duong Le & Thanh Ho, Jane Hargreaves & Eleanor Lam

No appearance (2 November 2016) & Mr Andrew Mackinnon (4 November 2016)

Mr Panos Nickas, Best Hooper Lawyers (2 November 2016)

• Mr Harry Reed, land and hydrographic surveyor (retired)

Dr Robert Townsend made a separate submission and attached to his written submission was the statutory declaration of Donald Campbell Gray dated 30 October 2016. Mr Gray was not required to be examined about his declaration.

Construction of five apartments in a four-storey building, plus basement

Application under section 77 of the Planning and Environment Act 1987 to review the Council's refusal to grant a permit

General Residential Zone (GRZ) Schedule 1 (Suburban Precincts Without A Consistent, Open Backyard Character)

Heritage Overlay Schedule 530 (HO530) (Yarra Boulevard Precinct, Kew)

The land is on the south side of Stawell Street, about 110 metres west of Studley Avenue and opposite the intersection with Yarra Street. It is rectangular in shape, with a frontage of 21.95 metres, a depth of 33.34 metres and an area of 730 square metres. According to the applicant's 'plan of relocation features and levels' dated 28 October 2015 the land falls 6.7 metres from the southwest corner to the northeast corner. The land is developed with a part two-storey and part three-storey building containing four apartments.

On 4 November 2016, the Tribunal inspected the land, 31A Stawell Street and 17 Dunlop Avenue, accompanied by the parties

Mrocki v Bayside CC [2015] VCAT 1371

Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364

Church Street Hawthorn Pty Ltd v Boroondara CC [2016] VCAT 766

Rizzi v Rockdale Municipal Council (1994) 85 LGERA 13

Benedetti v Moonee Valley CC [2005] VCAT 2227

Hooper v Mornington Peninsula SC [2008] VCAT 2115

Tribe v City of Greater Geelong [2002] 2 VPR 224

Lampard v Bayside CC [2005] VCAT 234

VPD Group Pty Ltd v Greater Geelong CC [2014] VCAT 913

1. Faversham Mews Pty Ltd (Faversham Mews) sought planning permission to construct a four-storey (plus basement) building containing six apartments on the subject land. The subject land is in a General Residential Zone (GRZ) under the Boroondara Planning Scheme (the scheme).
2. The Council refused to grant a permit on three grounds. Faversham Mews has now applied to the Tribunal to review that decision. The respondents are opposed to the application on various grounds as stated in their statements of grounds.
3. At the start of the hearing, I granted Faversham Mews leave to amend the permit application by substituting plans. The development shown in the amended plans is a four-storey, plus basement, building containing five apartments (the proposal). The amended plans have not satisfied the Council and respondents and each remains opposed to the grant of a permit.
4. Before the hearing, the Council filed and served notice that it had identified a question of law relating to whether the height of the proposed building complies with the maximum height for a building containing dwellings in the GRZ. At the hearing, the parties agreed that I should hear and determine the question of law before deciding how to proceed with the merits of the application.
5. The question is a question of law even though it is one of mixed fact and law. The question requires me to answer four discrete sub-questions:
   • What is the meaning of the expression 'natural ground level' (NGL) in clause 3.0 of schedule 1 to the GRZ. This is a question of law.
   • What is the natural ground level of the land? This is a question of fact.
   • What is maximum height of the building above natural ground level? This is a question of fact.
   • Does the Tribunal have jurisdiction to grant a permit to construct the proposed building? This is a question of law.
6. The context for the question is that the land is a sloping site with a fall of about 6.7 metres from the southwest (rear) corner to the northeast (front) corner and a cross fall of about 3 metres from the west side boundary to the east side boundary, towards the rear of the land. The land is developed with a part two-storey and part three-storey apartment building that was built about 60 years ago. The surface of the land was disturbed to construct the existing building, particularly towards the rear of the land.
7. My ultimate findings are as follows. First, the NGL of the land is its level about 60 years ago before it was disturbed to construct the existing buildings. This is the spot levels and contours shown on the applicant's plan of levels dated 28 October 2015 with the necessary interpolations for disturbance within the footprint of the building and within the surrounds of the building. Second, the proposed building exceeds the maximum permitted building height. Third, a permit may not be granted for the proposed building. My reasons follow.

1. What is the meaning of NGL is a question of law.[2]

1. In the scheme, the GRZ relevantly provides that:

32.08-7 Maximum building height requirement for a dwelling or residential building

The maximum height of a building used for the purpose of a dwelling or residential building must not exceed the building height specified in a schedule to this zone.

If no building height is specified, the requirement set out in the relevant standard of Clause 54 and Clause 55 applies.[3]

1. The schedule to the GRZ that applies to the land provides:

3.0 Maximum building height requirement for a dwelling or residential building

A building used as a dwelling or a residential building must not exceed a height of 9 metres unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case it must not exceed a height of 10 metres.[4]

1. The parties agree that the land slopes at least 2.5 degrees over an 8 metres long cross section of the land and therefore the relevant maximum height is 10 metres.[5]
2. Although clause 3.0 provides that 'a building ... must not exceed a height of 10 metres', I find the draftsperson intended it provide, in effect, that 'the building height of a building must not exceed 10 metres ... ' because 'building height' is the term used in the heading. The heading forms part of the provision.[6] 'Building height' is defined to mean:

Building height The vertical distance from natural ground level to the roof or parapet at any point.[7]

1. The only words in this definition that are defined in the Planning and Environment Act 1987 (PE Act) or the scheme are 'ground level'. 'Ground level' is defined to mean:

Ground level The natural level of a site at any point.[8]

1. It is unclear why the draftsperson included the adjective 'natural' in the definition of 'building height' because the level of the site in the definition of 'ground level' is defined to be the 'natural' level. I agree with the Tribunal's observation in Mrocki that there is no difference in meaning between 'ground level' and 'natural ground level'.[9]
2. Accordingly, I take the expression 'natural ground level' to be defined as 'the natural level of a site at any point'. Hence, the meaning of 'natural' is determinative. 'Natural' or 'natural level' is not defined in the scheme or the PE Act. The ordinary meaning of 'existing in or formed by nature, not artificial'[10] is suggestive of a level that is not formed by human intervention.

1. Mr Rantino and Mr Nickas made submissions that were broadly similar in effect. They contended, relying on Mrocki,[11] King,[12] VPD Group,[13] Church Street,[14] Rizzi[15] and Benedetti,[16] that NGL means the level of the relevant land at the date the relevant permit application was made to the responsible authority.[17] In this proceeding, that is 23 December 2015.
2. I do not adopt the meaning of NGL as established in these authorities for the following main reasons.
3. First, it equates natural level with, in effect, the existing level. If the draftsperson had intended the latter at a specified time (eg when the permit application was made), he or she could have included that meaning instead of 'natural'.
4. Second, the facts and the provision in which the expression NGL arose are different in the cases on which Mr Rantino and Mr Nickas relied.[18] None are 'on all fours' with this proceeding being the construction of a proposed building subject to a GRZ building height control in the circumstances of land with longstanding existing buildings. Care needs to be taken in applying principles or findings borne out of different circumstances.[19]
5. Third, it overlooks potentially significant disturbances to surface levels when constructing existing or former buildings. This difficulty was acknowledged in Mrocki in which the Tribunal preferred, on grounds of common sense, to find NGL to be the level that existed when the relevant land was created by a two-lot subdivision in 1999 and before the existing dwelling was demolished and construction of a new dwelling started.[20]
6. Fourth, it could result in manipulation. A person could raise the level of land by fill before making a permit application to propose a higher building than otherwise permitted under the GRZ height control.

1. Mr O'Farrell submitted the preferred meaning of NGL is as identified in Hooper[21] and Tribe.[22] I agree with him. Based on those authorities, I find NGL is the level of the land before the land was disturbed by any excavation, levelling or filling for development, including the construction of a building or the carrying out of works.[23] However, I hasten to apply two qualifications.
2. The first qualification is an evidentiary one.
3. Much, but obviously not all, excavation, levelling or filling for development is caused by the construction of buildings. Many new buildings are proposed to be built in existing urban areas and on land previously disturbed by the construction of existing or former buildings. Archaeology in old cities such as Rome and London shows that surface levels of land in older times are below those of current times. Urban development in Victoria is obviously much more recent, but there is some evidence of layered development over the years in central Melbourne.
4. So, for some land, it may be difficult to establish the earliest excavation, levelling or filling and the levels before that disturbance. In areas of substantial disturbance over many years, the fact-finder may need to rely on incomplete evidence and on inferences, interpolations or extrapolations.
5. The second qualification is the need to have regard to the purpose of the relevant provision that relies on NGL.
6. In interpreting a provision of a scheme, I must prefer a construction that promotes its purpose.[24] The GRZ height control provision in clause 3.0 derives from clause 32.08-7. The purpose of the latter clause is the same as, in the context of this application, clause 55.03-2 of the scheme. I make this finding because clause 32.08-7 applies the building height standard in clause 55.03-2 if no height is specified in the schedule.
7. The purpose of clause 55.03-2 is:

To ensure that the height of buildings respects the existing or preferred neighbourhood character.

1. In finding NGL in a particular case, it is necessary to consider this purpose. It may mean that some disturbance to the surface of land should form part of NGL if to do so accords with the purpose of the provision. To illustrate this qualification, consider the hypothetical example of land that has been excavated for a quarry and the land in the former quarry having been subdivided into a number of lots. An owner of a lot could claim the NGL is the pre-quarry surface level and seek to construct a building having regard to that level and not the current quarry floor level. The purpose of the relevant provision may make it clear that the relevant level is the current quarry floor.
2. This second qualification is relevant in this proceeding for reasons that I will come to.

1. What is the NGL of specified land is a question of fact.
2. In this part of the reasons, I provide a brief historical overview of development in the immediate area, describe existing levels of the land, describe Faversham Mews' claimed NGL and the evidence in support of that NGL, and make findings about NGL.

1. In historical terms, what I draw from photographs tendered at the hearing, the submissions and the oral evidence of the experts is as follows:
   • (a) In 1945, Stawell Street was an unconstructed road and all land immediately surrounding 33 Stawell Street on both sides of Stawell Street, including land to the north now on both sides of Yarra Street, was vacant and undeveloped.
   • (b) Around December 1948, the land south of Stawell Street, west of Studley Avenue (including what is now 33 Stawell Street and the lots in Dunlop Avenue) was subdivided[25] and, as Stawell Street was not a new road in the subdivision, there would have been no requirement to construct Stawell to the standard that now exists.
   • (c) In 1952, the main change from 1945 is that there are a few dwellings on what was vacant land and there is some disturbance of the land at what is now 33 & 35 Stawell Street. The disturbance is indistinct and I make no finding about whether the disturbance is fill or excavation or both.
   • (d) In 1955, an oblique image shows no relevant change and 31, 31A & 35 Stawell Street remain vacant.
   • (e) In 1956, the main changes from 1955 are that the buildings at 33 Stawell Street and (to its rear) at 17 Dunlop Avenue have been constructed.
   • (f) In 1958, the main changes from 1956 include the construction of the building at 35 Stawell Street, the two-level construction of Stawell Street and the construction of Yarra Street.[26] The buildings at 31 & 31A Stawell Street are yet to be constructed.
   • (g) In 1959, the main change from 1958 is that the dwelling at 31A Stawell Street has been constructed.

1. Attached to Faversham Mews' permit application was a plan of relocation features and levels dated 28 October 2015 prepared by its surveyor Mr Clarke (Mr Clarke's plan). It is based on a survey dated 23 October 2015.[27] Mr Clarke's plan shows existing spot levels to AHD to two decimal places (ie to one centimetre) and contours at 200 mm intervals for those parts of the land not covered by buildings. None of the three experts disputed the accuracy of Mr Clarke's plan.

1. The east and west elevations in the application plans show 'ground level at the title boundary' as a solid line. The experts agree that the depiction of this level is based on Mr Clarke's plan and is accurate. The east and west elevations also show 'natural ground level' as a dashed line.[28] It does not expressly state that it is NGL at the title boundary, but the experts did not draw any firm contrary conclusion.[29] Of course, building height relates to any point on the land and does not only relate to boundaries of the land.
2. The NGL dashed line on the east and west elevations extends beyond the land to the north into Stawell Street and to the south into adjoining land at 17 Dunlop Avenue.
3. The NGL on the east elevation is, by scaling, 1.3 metres and zero above 'ground level at the title boundary' at Stawell Street and the rear boundary, respectively. However, the difference is not uniform and, by scaling, it reaches 2.9 metres above 'ground level at the title boundary' towards the rear of the land.
4. The NGL on the west elevation is, by scaling, 1.2 metres and 0.7 metres above 'ground level at the title boundary' at Stawell Street and the rear boundary, respectively. However, again the difference is not uniform and, by scaling, it reaches 1.3 metres above 'ground level at the title boundary' towards the mid-point along the west side boundary.

1. Mr Champion's instructions were to assess the NGL of the land based on survey and inspection. His statement does not define NGL for the purposes of his evidence. He states NGL is 'difficult to ascertain' and there is no 'reliable' NGL, given the past extent of disturbance. Mr Champion supports reliance on the 'digital VicMap elevation dataset' (VicMap) provided by Land Victoria. He relies on it because it is the authoritative spatial data for Victoria. Land Victoria states the data is accurate to within ±0.5 metres.
2. Mr Champion prepared a plan of contour (not spot) levels based on VicMap at one metre intervals superimposed on a copy of Mr Clarke's plan (Mr Champion's plan). It retains Mr Clarke's spot levels, deletes Mr Clarke's contours and inserts the VicMap contours. Mr Champion's plan shows the northeast, northwest, southwest and southeast corners of the land at close to the AHD 41 contour, between the AHD 41 and 42 contour, close to the AHD 48 contour and between the AHD 46 and 47 contour, respectively.
3. Mr Champion satisfied himself of the accuracy of the VicMap data by reference to six locations in nearby reserves where he compared interpolated VicMap levels with his survey levels and found VicMap levels were no more than 0.4 metres different.
4. In answer to questions, Mr Champion stated the VicMap data is based on aerial photography and (where available) survey from the then Melbourne and Metropolitan Board of Works (MMBW). He stated the photography and survey would be from various dates, ranging from the 1960s or earlier and updated in the 1970s and 1980s by the MMBW's successor, Yarra Valley Water. He also agreed VicMap data may be viewed as an approximation of levels over a wide area and it is useful for preliminary planning in advance of more detailed survey work.
5. Mr Champion confirmed that NGL on the east and west elevations accurately shows the relevant VicMap levels and he therefore adopts what those elevations show as NGL.

1. Mr Reed's opinion is that the NGL is not as shown on the east and west elevations because VicMap is not a reliable indicator of levels in the vicinity of the land and land immediately to the east at 31A Stawell Street before the existing apartment building was constructed. Mr Reed's opinion is largely based on two documents.
2. The first document is MMBW detail plan no. 1351 (the MMBW plan). It shows the apartment building on the land as an existing building and the dwelling at 31A Stawell Street as a proposed building. He is therefore satisfied the MMBW plan would have existed before 1959 but he accepts it is likely to have been subject to later revisions.
3. After converting the levels from imperial to metric and adjusting them from the MMBW's datum of low water mark at Williamstown, he states the levels on the MMBW plan show a 'general correlation' to the spot and contour levels on Mr Clarke's plan where the surface has not been disturbed by constructing the apartment building. In other words, in his opinion, errors have crept into the VicMap data for the immediate area. In his statement, he suggests the errors may be the result of the local survey benchmark (known as MMB583 and located in Stawell Street to the west of the land) having a spot level on VicMap that is nearly 3 metres above its true ground level.
4. Mr Reed was questioned at length about the correlation between the MMBW plan and the VicMap levels at or near the four corners of the land and about the benchmark level and where it is located.
5. There is a good correlation between the MMBW plan and the VicMap levels at the two rear corners of the land, but this is no surprise. The contentious locations are towards the front of the land, especially the northeast corner, where the correlation is not strong. The northeast corner is AHD 40.64 on Mr Clarke's plan, AHD 41.07 on the MMBW plan and around AHD 42 on VicMap. Even allowing ±0.5 metres error for VicPlan, the lack of correlation is significant.
6. Ultimately, I find I am not greatly assisted by the levels in the MMBW plan in finding NGL. The levels in the MMBW plan confirm the surface levels of the land after construction of the apartment building.
7. The second document is an extract from MMBW survey level book 2344 (the survey book). It includes levels at the corners of the dwelling proposed to be built on abutting land to the east at 31A Stawell Street at an unspecified date before 1959. Mr Reed states the survey book reveals the levels are based on an error in the benchmark level because the error is corrected in the survey book on 3 October 1959 around the time construction of the dwelling at 31A Stawell Street started. The corrected error in the benchmark level was 2.3 metres.
8. Mr Reed's opinion, which he concedes involves a degree of speculation, is that the original error in the survey book crept into the VicMap data. Consequently, I would not find that VicMap levels are not NGL having regard to the survey book.

1. Mr Loy's instructions were to review Mr Champion's statement of evidence. Mr Loy proceeds on the assumption that NGL is the level of the land before construction of the existing buildings. In his opinion, no part of the land's NGL remains due to construction of the existing buildings and Stawell Street and Mr Champion's plan based on VicMap is the NGL. This opinion is based on his use of VicMap data for over 40 years and having found it to be a 'reliable indication of ground surface levels and contours'.

1. I have wrestled with the evidence about whether VicMap is the best indication of NGL, about the data on which VicMap is based, about VicMap's reliability, whether the MMBW plan and the survey book confirm or detract from VicMap's reliability. There is conflicting evidence. Ultimately, I am not satisfied that the VicMap is NGL for the land for the following main reasons.
2. First, if the VicMap levels are NGL, I accept Mr Reed's opinion that the mean difference between NGL and existing levels (as depicted on Mr Clarke's plan) is about 1.23 metres and this equates to a large and unlikely removal of 900 cubic metres of ground from the land before construction of the existing apartment building.
3. Second, having regard to the topography of the surrounding land, it is unlikely that excavation to the extent between NGL and existing levels was required. According to Mr Reed and his analysis of the MMBW plan, the whole of the frontage of 31A Stawell Street to a depth of about 4 metres and most of the frontage of 33 Stawell Street to a depth of up to about 4 metres was filled and not excavated. Mr Reed relied on his knowledge of the way MMBW surveyors symbolised fill on such plans at the time in the 1950s.
4. I accept Mr Reed's opinion about what the symbols on the MMBW plan mean given his employment with the MMBW survey branch in the 1960s and because he was not shaken from that opinion despite searching cross examination. The MMBW plan does not specify when the fill was laid and to what depth it was laid. The same fill symbol is also shown for the steeply-sloping median between the two carriageways in Stawell Street.
5. In a topographic sense, Yarra Street is a gully rising from the Yarra River in a southeasterly direction towards Studley Park Road and passing close by the land. The low point in the gully nearest to the land is at 31A Stawell Street. I cannot find a proper or satisfactory explanation for the VicMap inference that the land was significantly cut or excavated where it meets Stawell Street and that the land in Stawell Street itself was also significantly cut.
6. Based on my inspections and on the historical photos, the land in Stawell Street in the vicinity of 31, 31A and 33 Stawell Street and in 31A and 33 Stawell Street has been flattened. To flatten land in a gully at this location would more likely require fill than excavation. It is likely that the land in Stawell Street was filled in or before the 1940s as part of its initial formation and then filled again before or around 1957 when constructed to its current formation. The MMBW plan confirms this.
7. I find it plausible that the southern carriageway of Stawell Street, including the steep median, was filled rather than excavated, contrary to VicMap. It is also plausible that the front sections of 31, 31A & 33 Stawell Street were filled before late 1955 (when the first building on those lots, at 33 Stawell Street, was constructed) to help level those lots, as shown in the MMBW plan.
8. Based also on my inspection, little or no excavation would have been needed for the construction of the driveway at 33 Stawell Street and some further fill was introduced to construct the paved car space in the front setback on the west side and the associated retaining wall next to the footpath.
9. So what is more likely to have happened is that fill was added to the front of the land as part of the ultimate road construction, and was more likely to have been done before 1955 when the apartment building was constructed. The greater likelihood of fill, rather than excavation, is supported by Dr Townsend's tendering of plans for the construction of the single-storey dwelling at 31A Stawell Street in 1959. Those plans do not show any excavation at the front of that land, consistent with adopting VicMap as NGL. The plans also do not show any retaining wall on the side boundary near Stawell Street shared with 33 Stawell Street, consistent with excavation at 33 Stawell Street about four years earlier.
10. Third, while there is a degree of verification of VicMap against Mr Clarke's plan and the MMBW plan in the four corners of the land, this is not the case along all the boundaries of the land. For example, take a point on the eastern boundary about 12.5 metres south of the northeast corner, opposite and within about 4.2 metres of the northeast corner of the third floor (fourth storey). The level at this point is AHD 42.13 on Mr Clarke's plan and, by interpolation, is around AHD 44.3 on VicMap. This cannot be explained by reference to the MMBW plan.
11. Fourth, VicMap is not the preferred NGL having regard to the purpose of clauses 32.08-7, 55.03-2 and 3.0. The question is whether adopting VicMap levels of up to around 2 metres (with a consequential claimed accuracy of ±0.5 metres above existing surface levels would result in a maximum building height permitted under clause 3.0 that respects the existing or preferred neighbourhood character.
12. The existing character in Stawell Street and nearby in the vicinity of the land is buildings (mainly detached dwellings) of up to three storeys on hilly, well-treed sites with low front fences or retaining walls. The land is in precinct 13 under the Council's character study and applies to an area adjoining the Yarra Boulevard. The guidelines in the study seek 'to ensure buildings integrate with the prevailing scale of form of houses in the street ...' and 'to ensure buildings follow the contours of the land and step down in accordance with the slope of the site'.
13. Without hearing submissions or evidence from the parties about character but having regard to my observations at the inspection, I find that adopting VicMap levels as NGL enables building height that does not integrate with the prevailing built form in Stawell Street. I make this finding having regard to:
    • (a) The portion of the building that exceeds the maximum building height (that I refer to later in these reasons).
    • (b) The prevailing built form in Stawell Street abutting the land which comprises two single-storey buildings and one double-storey building to the east (at 29, 31 & 31A Stawell Street) and one single-storey and two double-storey buildings to the west (at 35, 37 & 39 Stawell Street).

1. The VicMap contours as shown on the east and west elevations and on Mr Champion's plan do not show the NGL of the land.
2. The existing contours and spot levels shown on Mr Clarke's plan do not show the NGL of the land. They show levels outside the footprint of the existing apartment building after its construction.
3. NGL is the level of the land before construction of the existing apartment building and after the front part of the land was filled as shown on the MMBW plan. No plan of NGL has been prepared and tendered by any of the parties. I must describe my findings by way of description.
4. Along the west and south boundaries of the land, NGL is the spot levels as shown on Mr Clarke's plan relating to levels at the base of the existing fence along these boundaries. No interpolation is needed given the generally undisturbed levels along those boundaries.
5. Along the east boundary of the land, NGL is the spot levels as shown on Mr Clarke's plan relating to levels at the base of the existing fence along this boundary, but interpolated because of the stepped nature of those levels along this boundary.
6. Across the land between the boundaries, NGL is interpolated spot levels or contours connecting the levels on the boundaries having regard to the curved (concave) rather than straight line fall to the northeast from the southwest corner of the land.[30]

1. Having found NGL as a question of mixed fact and law, I must now proceed to determine building height as a question of fact.
2. Mr Reed prepared a plan showing the difference between the spot levels in Mr Clarke's plan (ie existing ground level) and the parapet of the third floor (fourth storey) along its perimeter, having regard the stated parapet height of AHD 54.10.
3. If NGL was the same as the spot levels in Mr Clarke's survey, Mr Reed states the difference (ie building height) is greatest at the northeast corner at 12.1 metres. Moving south along the edge of the parapet, the difference reduces to 11.8 metres, 11.5 metres and then 9.2 metres at the southeast corner. At the northwest corner of the parapet, the difference is 11.2 metres and moving south, the difference reduces to 10.2 metres, 9.6 metres and then 7.8 metres in the southwest corner.
4. However, as I have found, NGL is not the levels shown on Mr Clarke's plan. Nonetheless, Mr Reed has identified the critical points for determining building height.
5. It is difficult to be precise about NGL at the critical points because of the need to interpolate. Nonetheless, my relevant findings are as follows.
6. The first critical points are long the northern edge of the roof or parapet of the third floor (fourth storey). AHD along the whole of the 12 metres long edge is 54.10.
7. NGL at the west side boundary near the northwest corner of the roof would be at Mr Clarke's spot level of AHD 43.64 (west side). The roof at its northwest corner is set back from that boundary about 4.2 metres, so an interpolated NGL would be marginally lower at about AHD 43.30. Hence, building height at the northwest point of the roof is about 10.8 metres or about 0.8 metres above the 10 metres maximum.
8. NGL at the east side boundary near the northeast corner would not be at Mr Clarke's spot level of AHD 42.13 but would be about AHD 42.2 after interpolation.[31] The roof at its northeast corner is set back from that boundary about 5.3 metres, so NGL would be marginally higher at about AHD 42.35. Hence, building height at the northeast point of the roof is about 11.75 metres or about 1.75 metres above the 10 metres maximum.
9. It follows that building height at all points below the 12 metres long northern edge would be between 10.8 metres and 11.75 metres following a curved rather than straight line between the two corners. It also follows that building height at all these points does not comply with the 10 metres maximum.
10. Because the NGL rises to the south from NGL below the line of the northern edge of the third floor (fourth storey) roof, the relevant question is at what distance from the northern edge is the point of the roof above NGL at 44.10 AHD. This is the relevant question because at those points building height is 10 metres. I find this point is about 11.5 metres south of the northern edge of the roof along the eastern side and about 3 metres south of the northern edge of the roof along the western boundary. If I draw a straight line joining these two points along the western and eastern edges of the roof, it means that about 50 per cent of the third floor (fourth storey), located broadly in the northeast sector of the floor, does not comply with the 10 metres maximum height.[32]
11. The maximum amount of non-compliance with the maximum building height is therefore 1.75 metres at the northeast corner of the third level (fourth storey) roof. I agree with Mr Rantino who submitted this is not a case where the degree of non-compliance is marginal. It would not therefore be appropriate to hear the merits of the application and, if a permit was to be granted, to include a condition requiring a land surveyor to confirm compliance at frame stage and at completion of construction.

1. The scheme does not allow the Council (or the Tribunal, on review) to grant a permit for a building that exceeds the 10 metres maximum height limit.
2. A permit cannot be granted in respect of the amended plans now forming part of the permit application.

1. It is open to me to affirm the Council's decision to refuse to grant a permit as a result of the finding that the building height exceeds the maximum building height.
2. Faversham Mews, at the conclusion of the hearing on the question of law, requested an opportunity to amend the plans in the permit application if I found the building did not comply with the maximum building height provision in clause 3.0.
3. I will grant leave for Faversham Mews to have this opportunity because the spirit of the Tribunal's practice note about amending plans in a permit application allows a permit applicant to propose amendments to plans to improve those plans and to address the grounds relied on by a responsible authority or respondents, provided an application to amend is made in sufficient time before a final hearing on the merits of an application and after appropriate notice is given. The hearing conducted so far has not been a merits hearing. The Council has, in effect, made out its grounds about non-compliance with the building height control by way of a preliminary question.
4. I will allow Faversham Mews a short period of time to consider whether it wishes to prepare an application to amend the plans in accordance with the Tribunal's practice note.
5. If it does not, it must notify the Tribunal and parties and I anticipate I would then issue final orders affirming the Council's decision and vacating a final merits hearing.
6. If it does, I will set a date by which an application to amend the plans in the permit application must be filed and served. This date is a date that is worked back from the date of final hearing. The parties estimate that three days would be required to hear the application if an application to amend the plans is filed and leave is ultimately granted to amend the plans. The earliest date at which the Tribunal could accommodate such a hearing is 3 to 5 April 2017.
7. Accordingly, I will set 13 February 2017 as the date by which an application to amend the plans must be filed and served. This date has regard to the 30 business days period before a final hearing referred to in the practice note. I encourage filing at an earlier date to avoid any opposition to the application to amend the plans, if the amendments are substantial and go beyond what might be necessary to comply with the building height provision and are claimed to be a transformation. An application to amend the plans in a permit application is at the discretion of the Tribunal and I therefore encourage Faversham Mews to closely follow the practice note provisions.
8. Faversham Mews filed statements of evidence prepared by Mr Sheppard, Mr Raworth, Mr Czarny and Mr Patrick on which it intended to rely at the final hearing. If Faversham Mews applies to amend the plans, it should notify the Tribunal and the parties by the date on which it files and serves the application to amend the plans if it intends to withdraw any of those statements.

[1] I have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I do not recite or refer to all of the contents of those documents in these reasons. Dr Mole's statement of grounds was a group statement comprising eight individuals. All of them, except Duong Le & Thanh Ho, were entitled to be parties because they had objected to the Council against the grant of a permit. Duong Le & Thanh Ho were not entitled to be parties because they were not original objectors. I joined them as parties before the conclusion of the hearing.

[2] I have disregarded any opinions expressed by Mr Champion, Mr Loy and Mr Reed about the meaning of NGL. As the meaning is a question of law, the experts' opinions about meaning are irrelevant.

[3] Boroondara Planning Scheme cl 32.08-7. Certain exclusions are specified but none are relevant in this proceeding.

[4] Boroondara Planning Scheme cl 32.08 schedule 1 cl 3.0.

[5] Strictly, the calculation must be made in relation to NGL, once it has been established, and not in relation to the existing surface level of the land. Despite this point, it is unlikely the outcome would be any different.

[6] Interpretation of Legislation Act 1984 s 36.

[7] Boroondara Planning Scheme cl 72. Refer to no exemption for roof top plant and whether the plant shown on the plans is included as part of the roof. The parties proceeded on basis that it would. I agree.

[9] Mrocki v Bayside CC [2015] VCAT 1371 [44].

[10] Macquarie Dictionary, 3rd ed (1997).

[11] Mrocki v Bayside CC [2015] VCAT 1371 [48].

[12] Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364, 370.

[13] VPD Group Pty Ltd v Greater Geelong CC [2014] VCAT 913 [11].

[14] Church Street Hawthorn Pty Ltd v Boroondara CC [2016] VCAT 766 [17].

[15] Rizzi v Rockdale Municipal Council (1994) 85 LGERA 113, 115.

[16] Benedetti v Moonee Valley CC [2005] VCAT 2227 [31].

[17] For completeness, this was Mr Nickas' primary contention. His alternative contention was that NGL is 'the ground level of the land immediately before it was disturbed'.

[18] For example, in Mrocki, a dwelling was being constructed when the Tribunal heard the proceeding and the Tribunal had to decide if the dwelling had more than two storeys (excluding a basement) under a requirement in a Design & Development Overlay. Part of a basement projected above ground level and if it projected 1.2 metres or more above 'ground level' is would be a separate storey and the dwelling would have in total three storeys. A three-storey dwelling was prohibited. The Tribunal had to consider the meaning of 'ground level'. In King, the Court was required to consider the expression 'alteration to the natural conditions or the topography' of the land in the definition of 'works' in the context of an application for an injunction. In Rizzi, the NSW Court of Appeal had to consider whether there was a breach of a development consent condition requiring a specified building height reduction as measured to 'existing natural ground level'.

[19] In particular, I do not consider myself bound by the Court's decision in King because it was considering NGL in the context of the definition of works in the PE Act and not in the context of a building height control. For completeness, neither Mr Rantino nor Mr Nickas relied on Lampard v Bayside CC [2005] VCAT 234. In Lampard, the Tribunal considered the meaning of NGL in the context of a clause in an agreement restricting the height of a wall measured from NGL immediately below the measured point of the wall. The Tribunal proceeded to consider the meaning of NGL having regard to the parties' intentions. It found the 'natural' contours of the land had been changed by 'successive developments over many years'. It ultimately found NGL was the actual level of the ground at the frontage of the land before constructing the wall. This decision has little persuasive value in this proceeding.

[20] Mrocki v Bayside CC [2015] VCAT 1371 [48].

[21] Hooper v Mornington Peninsula SC [2008] VCAT 2115 [37].

[22] Tribe v City of Greater Geelong [2002] 2 VPR 224, 227.

[23] Mr O'Farrell agreed that the meaning contended by Mr Rantino and Mr Nickas would be correct if the land in a particular case had not been disturbed before the making of an application, but emphasised this is not the case in this proceeding. It would rarely be the case in areas of existing urban development.

[24] Interpretation of Legislation Act 1984 s 35(a).

[25] Written submission of Dr Townsend, p 10.

[26] Dr Townsend states, at pages 7 & 8 of his written submission, that Stawell Street was reconstructed in 1956/57, based on the date of two photographs of the construction of Yarra Street held at the Kew Library. If this is correct, the 1956 aerial photograph appears to have been taken before the works started.

[27] The plan is reproduced in the application drawings as drawing no. TP002.

[28] The north elevation does not show either of those levels, although I infer the architect intended the solid line also be identified as ground level at the title boundary. However, there is no NGL shown as a dashed line. The south elevation shows 'existing ground level at title boundary' as dashed, but does not show NGL. It does show 'ground level' as a solid line below the dashed line. I infer from this that the proposed ground level at the boundary will be lowered.

[29] Mr Champion, in cross examination, conceded it was possible that the dashed NGL on the elevations was not NGL on the title boundary but at some internal plane on the land.

[30] There is one exception to this finding, which relates to the levels across the front (street) boundary where NGL is not the levels of the top of the on-boundary retaining wall. However, a finding of NGL along this boundary is not critical to the question of law because no part of the propoed building is located on or near this boundary.

[31] The required interpolation is relatively minor, having regard to the marginally disturbed levels along the northern part of the east side boundary. There are much greater disturbed levels along the southern part of the east side boundary.

[32] In this analysis, I have not taken into account the rooftop plant platform. The line joining the two points on the east-facing and west-facing edges of the roof bisects the plant platform. A further question then arises as to whether building height needs to be recalculated over the length of the bisecting line having regard to the 0.8 metres height of the platform. At the hearing, Mr O'Farrell and Mr Rantino agreed that the provision does not expressly excuse or remove from calculation any rooftop plant. I agree with them. I will not proceed to make any recalculations but simply observe that the area of the third floor (fourth storey) that exceeds the 10 metres height limit may be marginally greater in the area below the rooftop plant.