Retention of this house would require extensive replacement of the structure and therefore little of the original fabric would be retained. Despite this, retention of the house and repair is possible as there are many examples of this type of house construction being retained around Melbourne, where the proposal is for retention. These examples can be achieved with rudimentary construction practices. These construction practices can also be used to make the house compliant with current building standards.

The question of whether the house be demolished is not one I believe is answered based on the condition of the structure alone. A heritage assessment of the building will significantly impact on the decision for demolition or retention. The evaluation of the proposal for demolition should include:

- A determination of the amount of fabric that can be retained should the house be kept, based on the condition of the various fabric/structural components of the building as indicated in this report. This building, if kept, will only retain the bulk of the timber stud wall framing, bulk of the feature front wall block cladding, and possibly a percentage of the weatherboards to the side walls. The roof, ceiling and wall framing would need strengthening. Whether this is an adequate degree of fabric retention to justify building retention is for others to decide. Retention of wall framing while replacing floor framing and stumps introduces a difficulty to construction that appears excessive for what in the end is being retained.

- A comparison of the cost of repairing/partial local replacing structure to the cost of demolition and building a new house. Note this cost argument can be argued not to apply, or weakened, where there has been a significant lack of maintenance to the house. The maintenance funds that should have been spent on the house through the years could be argued to account for some/all of the differential between the usually more expensive repair/partial replacement cost and the demolish/new build cost.

In my opinion the building could be retained but it would be done so with little of the original and therefore is somewhat of a futile exercise. A better result would be achieved with new construction in terms of the durability of the house going forward, and standard of new finishes which can be applied to a straight and true new structure.

1. During the course of giving his oral evidence, Mr Spano stated that there could be two approaches in defining whether a building is structurally sound. The first of these relates to whether the building is safe, that is whether it is not in danger of imminent collapse. If this definition is applied, then the subject dwelling is not structurally unsound. The second relates to whether the building is not in compliance with the relevant building code and not in good condition. If this definition is applied, then the dwelling is structurally unsound. Mr Spano's evidence is that the dwelling is not in danger of collapse but is structurally unsound due to its current condition where a number of elements do not comply with the current building code and has limited suitability for continued use. His conclusion is that, for these reasons, in its current state the building is structurally unsound.
2. In addressing this issue in submissions, the applicant encouraged the Tribunal to consider that 'structurally unsound' might or should be considered to extend to include consideration of when appropriate dwellings are in a condition that is considered unliveable (in that they do not meet the basic safety standards of the code) that they require so much work to achieve a basic liveable standard for basic occupancy that it is no longer preservation or restoration but redevelopment.
3. The issue of whether the dwelling is structurally unsound is relevant in the assessment of the proposal against the local heritage policy in determining whether the demolition of the building is justified. It is a consideration to which Ms Riddett had regard. However, she relied upon the opinion of Mr Spano in this respect on the basis that she is not qualified to make this assessment. Ms Riddett's written and oral evidence on the first hearing day was based on the building not being structurally unsound, with this conclusion being derived from the referral comments of the Municipal Building Surveyor, the Structural Assessment which accompanied the planning application and her understanding of Mr Spano's written evidence.
4. Subsequent to Mr Spano giving his evidence that the building is structurally unsound, Ms Riddett was re-called by the applicant. Ms Riddett advised that she does not have the expertise to dispute Mr Spano's evidence and accepted that the dwelling is structurally unsound. Ms Riddett went on to state that this does not alter her assessment or conclusions both in respect of the demolition and the proposed development.
5. This question of whether a building is structurally unsound has been considered by the Tribunal in other cases within the Port Phillip municipality, as the Heritage Policy has formed part of the Planning Scheme for a number of years. In the matter of Harding v Port Phillip CC,[3] the applicant in that case put to the Tribunal:
   1. ... that relevant part of the The Macquarie Dictionary (3rd edition) definition of "sound" is free from injury, damage, decay, defect, disease etc; in good condition", and that the relevant part of the definition of "structure" is "mode of building, construction or organisation; something built or constructed; a building, bridge, dam, framework etc". Therefore "structurally unsound" means that the building or parts of it such as the foundations and/or walls and/or roof are not free from injury, damage, decay or defect.
6. In response to this submission, the Tribunal found:

We are of the opinion that the expression "structurally unsound" in relation to a building has an element beyond these dictionary definitions and in ordinary usage would include the meaning that the building or significant structural parts of it, such as the foundations and/or walls, and/or roof, are likely to collapse within the foreseeable future (say, within the next 10 years).

1. In the more recent case of Advant Pty Ltd v Port Phillip CC,[4] ('Advant') the Tribunal had the following to say in respect of the term 'structurally unsound':
   1. ... In my view, the term connotes a high level of unsoundness given the context of allowing a contributory building in a heritage place to be demolished contrary to an overarching policy in this scheme to protect, conserve and enhance such a building. It needs more than defects that would be normal or not unexpected for a structure of that age that has been maintained to a normal standard and in the particular circumstances of the particular structure and its setting.
   2. Accordingly, if a building is structurally unsound for the purposes of demolition policy in this scheme, its structural core comprising its walls, roof or foundations must be more likely than not to fail to such an extent, within the medium term without repair or remedial works, as to make the building likely to collapse or unable to be reasonably or safely occupied. In this sense, I am in broad agreement to the approach taken in Harding.
2. I agree with the Tribunal's conclusions in Advant. Within a policy context that explicitly seeks to protect, conserve and enhance a contributory building, the term 'structurally unsound' in the Planning Scheme must in my opinion refer to defects in the dwelling's structure which manifest in a risk of collapse and/or make the building unsafe to occupy. There is no evidence before me that this is the case here. While extensive repair and remedial work is required to bring the dwelling into compliance with current standards, and it is in such a state of neglect which does not make it suitable for occupation, it is not in danger of collapse nor has it been demonstrated that it is unsafe. To the contrary, the evidence is that there is no immediate risk of the building collapsing. Further, there is no evidence that the building is more likely than not to collapse in the short to medium term. I do not disagree that, in its current state, the building is not suitable for occupation. It is in very poor condition. There is a substantial amount of work which needs to be done to rectify all the faults and restore it to a habitable condition. However, I am unable to agree with the evidence that because the building has limited suitability for continued use and has a number of elements which do not comply with the current standards, that this means it is structurally unsound. It may mean that the building is uninhabitable, which I would agree with, but not that it is structurally unsound in the terms expressed by the Tribunal in both Harding and Advant. Whether the building is habitable is a different consideration, and not one which forms part of the policy test in the Planning Scheme.
3. It follows that, as I have not been persuaded that the building is structurally unsound, the policy 'test' in clause 22.04 in respect of the demolition of a contributory building has not been satisfied. This, however, does not mean that a permit cannot be granted to demolish the building. The policy guides the exercise of the discretion which is conferred by clause 43.01-1, but does not fetter that discretion nor can it dictate an outcome. The non-compliance with the policy is a highly relevant and influential consideration, but it is not determinative. The discretion must still be exercised having regard to the specific facts and circumstances of the case, the site's physical and strategic context, and within the decision-making framework which seeks acceptable planning outcomes and net community benefit.
4. Although I have not been satisfied that the building is structurally unsound, I am persuaded that the remedial work required to bring the dwelling to an acceptable standard of construction and suitable for occupation is substantial. This was clear in Mr Spano's evidence. Having regard to the extent of re-construction and replacement required, there is some basis to the evidence and submissions that little of the original fabric will remain. Mr Spano's evidence is that, if the building is kept, only the timber framing, the feature front wall block cladding and possibly 'a percentage' of the weatherboards to the side walls will remain. He noted that retention of the wall framing while replacing the floor framing and stumps introduces a degree of difficulty that appears excessive for what in the end is being retained.
5. In similar vein, Ms Riddett's evidence is:
   1. ... the building is in a poor state and devoid of much original fabric and almost all decorative elements, including the front verandah. The only original elements are the façade and door case, chimney, some skirtings and architraves and internal doors, a mantelpiece and a grate. While some of the built-in area at the back is possibly original or at least pre-1894, it is unusable and illegal in relation to current standards. Much of it would need to be demolished. In its current state overall, the dwelling is unliveable and in many respects does not comply with current standards and codes. On the basis that it would not be unreasonable to retain the façade and chimney, almost everything else would need replacement and it is questionable as to whether or not it would still be a Victorian cottage and whether or not it would still be contributory to the heritage precinct in any meaningful way. On balance, in my opinion, demolition could be contemplated given the condition of the dwelling, the extensive scope or [sic] works which would be required to renovate it and make it compliant and the mixed streetscape context in which it sits.
6. What original fabric will remain once all the necessary reconstruction and remedial works are undertaken is a relevant consideration in this case. If all that is retained is the front façade and the surviving chimney (and potentially a portion of the side walls, although there is some doubt concerning this), it is questionable whether this heritage dwelling is being protected, conserved and enhanced as is sought by the Planning Scheme's policies and provisions. The extent of new fabric will far exceed the original fabric. I agree with Ms Riddett that, while the retention of the façade and chimney may make a contribution to the streetscape, there is a question as to whether the remainder of the dwelling as renovated should continue to be considered a contributory dwelling.
7. A further important consideration is the degree of intactness of the streetscape itself. Within a highly intact or consistent streetscape there would be greater justification for the retention of the dwelling (or part of it) than in a streetscape which lacks an evident consistency of heritage character. There is a dispute between the parties in respect of whether the streetscape is in fact intact or consistent in heritage terms.
8. The Council's submission is that this section of Draper Street is considered to be intact. It bases this submission on the classification of the majority of the buildings as being 'significant' within HO442 and its opinion that these buildings are mostly single-storey double-fronted cottages. While acknowledging the existence of newer buildings, the Council said that these are scattered throughout the street and that a lower scale of one and two storeys is retained. In particular, the Council focussed on the southern side of Draper Street, and the section to the west of the review site. Reference was specifically made to the two dwellings at Nos. 59-61 and 63, which have Victorian origins.
9. The applicant and Ms Riddett disagree with the Council. In their view the Draper Street streetscape, when considered as a whole, is a mixed one, displaying a variety of dwelling styles from a range of eras. The photographs tendered at the hearing, and my observations during the site inspection confirm that this is the case. Draper Street does not present a consistent or intact streetscape. While it is true that the Heritage Review identifies a number of significant buildings on the southern side, the streetscape is read and understood as a whole, especially given its narrow width. The appearance or presentation of one side cannot be divorced from the other. When viewed holistically, the streetscape is an eclectic one. The retained original dwelling stock is interspersed with examples of modified Victorian dwellings, and contemporary dwellings constructed in the latter part of the last century and during this century. The Council placed some emphasis on the dwelling being part of a row of three with the two to the west. However, some doubt transpired during the hearing regarding the authenticity of the adjoining dwelling at No. 59-61. The 1894 MMBW plan shows that land as being occupied by what appear to be two single-fronted dwellings. Ms Riddett noted that there were some elements of the existing double-fronted dwelling on that land that did not appear to accurately reflect Victorian origins. I was advised that permits which variously authorised partial demolition, additions and alterations, including to the façade of No. 59-61, were granted in 2003, 2004 and 2014. This lessens the weight to be given to the Council's submissions regarding the streetscape's intactness.
10. Ms Riddett's evidence includes a helpful description of the dwellings which are on both the north and south side of Draper Street between Montague and Merton Streets. I consider this to represent the relevant section of the streetscape for the purposes of assessing the degree of intactness. The description contained in the evidence is summarised as:
    1. In Draper Street seven allotments address St Vincent Place North and have contemporary development addressing Draper Street. An additional eight buildings which address Draper Street are not from the Victorian and Edwardian eras and therefore have no heritage value in this context if at all. Only fourteen buildings are of the Victorian era and they have heritage significance. Draper Street is not an intact streetscape.
11. Ms Riddett's evidence also contains the following description, with which I agree:
    1. Draper Street is very mixed in terms of building heights (single and double storey); dwelling types, eras and styles; garages and boundary walls; materials; presentation to the street and also contains built form which is actually on the rear boundaries of properties fronting St Vincent Place North. The existing heritage built form is more of a collection of individual buildings interspersed by non-heritage or intrusive elements, along street frontages rather than presenting as an intact streetscape.
12. Draper Street is not an intact streetscape. Indeed it is quite eclectic in its composition. It has dwellings from the Victorian and Edwardian eras which have been restored, others from these eras which have been altered (some substantially), inter war flats, brick veneer post-war dwellings, contemporary dwellings and the rear of properties which front St Vincents Place North and display two-storey garage/outbuilding structures of relatively recent origin.
13. The subject dwelling itself is one of the Victorian buildings which has been significantly altered (or, even, defaced) through the removal of the original verandah structure and construction of an enclosure in its place in form similar to a 'sleepout'. The removal of one of the chimneys is also noticeable.
14. The dwelling has been identified as being 'contributory'. Clause 22.04-5 defines such heritage places in the following terms:

Contributory heritage places include buildings and surrounds that are representative heritage places of local significance which contribute to the significance of the Heritage Overlay area. They may have been considerably altered but have the potential to be conserved. They are included in a Heritage Overlay and are coloured "green" on the City of Port Phillip Heritage Policy Map, in the Port Phillip Heritage Review, Volume 1-6

1. I accept that the dwelling makes a contribution to the significance of HO442. Ms Riddett's evidence contains the Statement of Significance in an Appendix. Under the heading 'Why is it Significant?', is the following extract:

Aesthetically and architecturally, the precinct is significant for its fine collection of late Victorian dwellings. These demonstrate a range of typical housing types of the 1870s and '80s: modest single-storeyed cottages in both timber and brick (mostly concentrated in the south-east and south of the precinct) as well as grander villas, double-storeyed terraces and townhouses (mostly concentrated in the east of the precinct). Although these exist both as cohesive strips (eg single rows of terraces or cottages) and as more heterogeneous streetscapes (with a mixture of dwelling types), they are nevertheless unified by their closely comparable dates and by their frequently consistent scale, form, materials and detailing. Considered collectively, the late nineteenth century housing in the Albert Park Residential Precinct represents one of the finest, most extensive and varied collections of 1870s and 1880s dwellings in the City of Port Phillip.

1. In the more localised context, Ms Riddett's evidence contains an extract of the City of Port Phillip Heritage Policy Map, which forms part of the Heritage Review. This shows that the majority of properties on the south side of Draper Street support significant heritage places. Out of 15 properties, only three (comprising the review site, the adjoining property to the west and the property on the south-east corner of Draper Street and Merton Street) do not support significant heritage places. However, this can give a misleading impression of the heritage significance of the streetscape, as seven of the properties have frontage to St Vincent Place North and what they present to Draper Street is their rear abuttal. This comprises the presentation of outbuilding structures, the majority of which make little, if any, contribution to the heritage value of Draper Street.
2. The heritage place in this instance is HO442, which can fairly be described as an extensive precinct. When considered in this context, I agree with Ms Riddett that the loss of the subject building, given its characteristics and its location in a diverse streetscape, will not have an adverse impact on the significance of the heritage place. Had the building been a more intact example of its style and/or within a more intact streetscape, I may have formed a different view. Also influential in my conclusion on this point is the extent of reconstruction required in order to make the building compliant with the relevant code and standards. This brings into question whether it can legitimately continue to be considered a contributory building, if this were done.
3. My conclusion is that the demolition of the dwelling will not have an adverse impact on the significance of the heritage place.

1. The Council considers that the overall composition of the ground and first floor levels, as they present to Draper Street, are contemporary and sheer, but generally consistent with the existing streetscape. The Council's concern lies with the proposed second floor level and its visibility in oblique angles from within Draper Street. Reference was made in the Council's submissions to the consistent one and two-storey scale of development in Draper Street. It was submitted that the second storey (third level), while set back from the frontage, would be noticeable and detrimental to the low-scale character of the street. Attention was drawn to the visibility of the overall mass of the top level, given the single-storey height of neighbouring dwellings. In the Council's opinion, the development should be restricted to two storeys.
2. Mr and Mrs York support the Council and submitted that the proposed three-level dwellings will be significantly at odds with the existing streetscape, describing the outcome as being 'jarring' for residents in the surrounding area.
3. The decision guidelines at clause 43.01-4 include:

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.

To ensure all new development and redevelopment of significant and contributory places is respectfully and harmoniously integrated with the surrounding character.

To promote design excellence (in terms of building siting, scale, massing, articulation and materials) which clearly and positively supports the heritage significance of all Heritage Overlay areas.

To ensure that new development and any publicly visible additions and/or alterations in or to a heritage place maintains the significance of the heritage place and employs a contextual design approach.

1. Pursuant to clause 22.04-3, amongst others it is policy to

Encourage new development to be respectful of the scale, form, siting and setbacks of nearby significant and contributory buildings.

Encourage a contextual design approach for additions and/or alterations to a heritage place or for new development. A contextual approach is where the alteration, addition or new development incorporates an interpretive design approach, derived through comprehensive research and analysis. New development should sit comfortably and harmoniously integrate with the site and within the streetscape and not diminish, detract from or compete with the significance of the heritage place or streetscape character.

1. It is also policy that new development generally reflects the prevailing streetscape scale and does not dominate the streetscape or public realm. The related Performance Measure 3 states that, if located in a street with a diverse building scale, and adjacent to a significant or contributory heritage place, the height of the new building is of a scale and mass that respects both the adjacent heritage place and the prevailing scale of the area.
2. In respect of the issue of the development's height, the applicant relied upon the evidence of Ms Riddett, who supports a proposed overall height of 7.7 metres. This height has been achieved by adopting a split-level design whereby the rear portion of the ground floor is set below the level of the Draper Street footpath. Ms Riddett states that "low height for three levels has been achieved by setting the kitchen, dining and rear living areas into the ground below the front living room which will be at the existing pavement level". She describes a typical Victorian streetscape in Albert Park and elsewhere as including two-storey Victorian dwellings of approximately 9.5 - 10 metres next to single-storey dwellings of approximately 7 to 7.5 - 8 metres and considers the proposal to be appropriate and acceptable in terms of height. While acknowledging the visibility of the second floor level in the oblique from the east, in her opinion it will be no more noticeable than the rear double-storey additions of existing buildings in surrounding streets which form part of the visual catchment of Draper Street.
3. Due to the proposed excavation at the rear of the property, the overall height of the development is comparable to that of the neighbouring two-storey dwellings. Based on the levels specified on the plans, the development will be 0.87 metre higher than the two-storey wall height of the dwelling at 60 St Vincent Place North and 0.11 metre lower than the dwelling at 62 St Vincent Place North. It will not represent a height which is foreign in this locality and, being confined to the rear of the property, will have a comparable context with these two adjoining dwellings.
4. Height, however, cannot be assessed in isolation of the building's massing. Given the diverse nature of Draper Street, I agree that the presentation of the ground and first floors is acceptable both in the streetscape directly and in oblique angles. While it is arguably of a plain and relatively unarticulated appearance, it has some characteristics and features which reference the heritage building stock in the street. These were summarised by Ms Riddett as follows:
   1. The proposed façade is symmetrical as in the existing façade and those of the typical Victorian dwellings in the street and the window and door openings are vertically-oriented rectangles of similar proportions but different dimension to those of the Victorian dwellings. In any event new buildings fronting Draper Street include a variety of window and door shapes and sizes, including one with no windows at all. ... The façade is also divided into 9 separate sections which disguises the fact that the building is a semi-detached pair and also breaks up the façade into a finer grain which is generally reflective of the area.
5. I have some reservations regarding the restrained architecture of the proposed development, based on its sheer front elevation and relative absence of any meaningful articulation but consider it to be acceptable on the basis that it is within a streetscape which is eclectic in its composition and overall appearance. Within a street which has a greater and more coherent representation of heritage buildings, I may have formed a different view.
6. The rear three-storey section is problematic. It has a massing which accentuates its visual presence and building bulk. This has the result of making the development too large for its context. At the rear, this level has a sheer form with the level below, itself partly cantilevered over the ground floor level, and minimal differential side setbacks. It has a 'bulky' appearance. When considered in conjunction with its plain geometric form, the second floor will be a prominent and discordant element as viewed from both the public realm. To an extent, this can also be said in respect to the development's presentation to the rear yards of neighbouring properties. It will be a visually overwhelming presence. The proposal is an unacceptable design response to the site's context. I agree with the Council that the second floor level should be removed. In addition to addressing visual bulk concerns, such a modification will also reduce amenity impacts on adjoining properties, such as overshadowing.
7. The deletion of the second floor cannot be satisfactorily achieved by a permit condition as it will also involve removing access to the rooftop decks, which are the sole private open space areas for the dwellings. A different design is required.
8. The remaining issue of concern to the Council is the reduction of the parking requirement. Having concluded that a permit should not be issued for the development, I do not need to make any finding in respect of this issue. If a reduction of the car parking requirement is sought as part of any future proposal for the review site, then it is appropriately assessed having regard to the circumstances which are in existence at that time. Such circumstances may include the site's planning and/or physical context.

1. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] Amendment VC139 was gazetted subsequent to the hearing, on 29 August 2017. By order dated 31 August 2017, the parties were provided with the opportunity to make further written submissions addressing any implications arising from the gazettal of Amendment VC139 for the Tribunal's consideration of the application. A submission was received from the Applicant and has been considered. No submission was received from the other parties.

[2] The submissions and evidence of the parties, any supporting exhibits given at 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.

[3] [2002] VCAT 416

[4] [2016] VCAT 1113