Galea v Hobsons Bay CC [2009] VCAT 623

Demolition of the existing building and the construction of a double-storey dwelling with basement

Section 77 of the Planning and Environment Act 1987

Clause 32.01-3 Permit required for the construction of a single dwelling on a lot of less than 500 sq.m

Clause 43.01 - permit required for alterations and additions in a Heritage Overlay.

I inspected the site and surroundings prior to and after the hearing.

I was provided with an extensive array of photographs of the site and the surrounding area together with plans, three-dimensional model views and policy guideline documents.

1. Mr Edwards sought leave to amend the name of the applicant for review from that of the design architect to the landowner Ms A Galea. There were no objections and I granted leave for the name change.
2. Following objections the applicant prepared revised plans in an attempt to accommodate the issues raised. The amended plans were duly circulated to the Responsible Authority and other parties in accordance with the Tribunal's Practice Note. The sole objector, Mr Gent of 23 Crawford Street, has since, by letter, indicated the withdrawal of his objection being satisfied with the amended plans.
3. Mr Edwards sought leave to substitute these plans for the originals. There were no objections and I granted leave to substitute the plans which now form the basis of this assessment.

1. The proposal now involves the demolition of the existing house and the construction of a new two-storey dwelling with basement with the following accommodation:
   • A basement providing gymnasium, laundry, cinema, cellar/store, bathroom, rainwater storage bladder and swimming pool.
   • Ground floor comprising study, bathroom, open plan kitchen / living/ dining area with access to a terrace and the swimming pool.
   • First floor with three bedrooms, bathroom, study and sitting area.
   • A single garage with a new cross over.

1. The subject site lies on the west side of Crawford Street, Newport. It has a frontage of 12.84 metres to Crawford Street with an average depth of some 25.1 metres with a total area of 322.9 sq.m.
2. The site is occupied by a single-storey weatherboard dwelling in fairly poor condition which is identified in the Heritage Precinct as a 'non-contributory' building. The dwelling appeared to be unoccupied and the site contains no vegetation of any significance.
3. No 27 Crawford Street, which adjoins to the north, is occupied by a single-storey weatherboard also in poor condition. It is, however, listed as a 'contributory building' in the Heritage Precinct and has a hipped corrugated iron roof with a prominent skillion-roofed verandah.
4. To the south is a post-war brick single-storey dwelling.
5. I will discuss the overall context of Crawford Street later in this assessment.

1. One objection, from Mr Gent, No 23 Crawford Street, was received in relation to the initial proposal. Council issued a Notice of Refusal of Permit on 3 September 2008 which included nine grounds of refusal which essentially emphasised that the design was inappropriate in the Heritage Precinct and was not respectful of neighbourhood character.
2. The applicant subsequently prepared amended plans and following their circulation Mr Gent formally withdrew his objection.
3. Council having assessed the revised proposal indicated that it has some reservations about the new plans but puts forward suggested amendments to assist in resolving its concerns.

1. In the SPPF:
   • Clause 12 - Metropolitan development
   • Clause 15.11 - Heritage
   • Clause 19.03 - Design and built form
2. And in the LPPF:
   • Clause 21.06 - Residential
   • Clause 21.07 - Heritage
   • Clause 22.01 - Heritage Policy
   • Clause 22.10 - Hobsons Bay East Neighbourhood Character Policy.
3. The latter Clauses call up a number of reference documents including:
   • Hobsons Bay Heritage Study 2006
   • Guidelines for Alterations and Additions to Dwellings in Heritage Areas in Hobsons Bay 2006
   • Guidelines for Infill Development in Heritage Areas in Hobsons Bay 2006
   • Hobsons Bay Neighbourhood Character Study December 2002
   • Precinct Brochures: Hobsons Bay North Precincts 1 - 13

1. There are essentially two issues in this matter.
   • Will the demolition of the existing dwelling adversely affect the heritage significance of the precinct?
   • Is the proposal for a new dwelling respectful of neighbourhood character and the objectives of the Heritage Precinct.

Will the demolition of the existing dwelling adversely affect the heritage significance of the precinct?

1. The existing weatherboard building at No 25 is of 1930s vintage, is unoccupied and in poor condition. Council submits that the building is not recognised in any Heritage Study as a 'contributory' building to the heritage objectives of the precinct and that its demolition would not detract from the character of the precinct. Having inspected the site and considered the submissions on this issue, I find that the demolition of the existing dwelling at 25 Crawford Street will not adversely affect the heritage significance of the precinct.

Is the proposal for a new dwelling respectful of neighbourhood character and the objectives of the Heritage Precinct?

1. In this context it is important to identify the key characteristics/objectives of neighbourhood character and heritage that the planning scheme seeks to achieve.
2. Mr Tenner in his submission provided a comprehensive coverage of the policy context. I found the following extracts particularly relevant.
3. Clause 21.06 - Residential

The residential areas will provide a choice of housing types to meet the needs of the diverse households in the municipality. Dwelling styles and designs will contribute to preferred neighbourhood character by harmonising with existing buildings and also by architectural innovation, uniqueness and excellence (my emphasis).

1. Clause 21.07 - Heritage, includes the following objectives:
   • To support the replacement of non-contributory buildings and public infrastructure with new development that responds more positively to the historic context provided by surrounding heritage places.
   • To ensure that new development does not distort the historic evidence provided by heritage placed by simply copying or reproducing historic styles or detailing.
   • To ensure that new buildings or works do not visually dominate or cause detriment to the aspects of a place's heritage values that are situated in its locality.
2. Strategies to give effect to those objectives will
   • Give preference to new infill buildings that are visually recessive and compatible in terms of their scale, siting, design, form and materials with the historic character of the heritage place or precinct in accordance with the Guidelines for Infill Development in Heritage Areas in Hobsons Bay (The Infill Guidelines).
3. The Infill Guidelines recommend that:
   • The form massing, height and bulk of the infill building should reflect the neighbouring heritage buildings.
   • The height and proportions of the new building should reflect the predominant height and proportions of adjacent buildings in the street.
   • The infill building should not be substantially larger or substantially smaller than the general height and proportions of buildings in the street.
4. The objectives of the Clause 22.01-1 General Heritage Policy, include
   • To ensure that new development is of a high quality design that creatively interprets and responds positively to the historic context provided by the heritage place or those in the surrounding area.
   • To ensure that new development does not visually dominate a heritage place or precinct.
5. Clause 22.10 - Hobsons Bay East Neighbourhood Character Policy identifies the subject site as included in Precinct 8 - Newport where the Statement of Preferred Character indicates that the mix of architectural styles and garden settings of the dwellings will be strengthened by
   • Ensuring new development reflects the prevailing front and side setbacks in the street.
   • Ensuring new development does not dominate the existing built form.
   • Encouraging innovative and contemporary, yet sympathetic dwelling extensions and infill development.
6. I conclude from the policy analysis that there is scope for new innovative design solutions but these must respect the heritage and neighbourhood objectives for the area in that any infill development
   • Must not be visually dominant
   • Must be visually recessive and provide setbacks from street and side boundaries in accordance with the prevailing pattern.
7. I have reviewed all the material put before me at the hearing including plans and three-dimensional model views prepared by the architects. I visited the site before the hearing and again after the hearing to assess the proposal in its context and to review other examples illustrated at the hearing.
8. I have concluded that the current proposal, while an improvement over the original plans, will still be visually dominant in the street and that the built form cannot be considered to be visually recessive.
9. I find therefore that the proposal is not consistent with the policy framework and should be refused for the reasons which follow.

1. Crawford Street lies within the Private Survey Heritage Precinct (Clause 22.01-3) which includes the area of Williamstown/Newport bounded by North Road, The Strand, Ferguson Street, Power Street and Melbourne Road and considered to illustrate the rise and decline of Williamstown as a port and the later development of railway and manufacturing industries.
2. Crawford Street is described as comprising

Predominantly modest single-storey, detached, timber Victorian cottages interspersed with some inter-war houses. The integrity is low and cohesion is moderate as there are some post-war houses. Notable dwellings include the small timber Victorian cottage (similar to a miner's cottage) at No 27 and a group of very narrow, detached timber Victorian cottages at Nos 6-18.

1. The differences between the western end of the street, which includes the Victorian cottages and the subject site, are notable. The row of Victorian cottages between 6-20 is largely intact and all are listed as 'contributory' to the Heritage Precinct. These are smaller single-storey dwellings on very narrow frontages although a few have added a second storey; this has been built at the rear in a recessive manner.
2. The west side of Crawford Street, the side including the subject land, is a mixture of building styles, again mainly single-storey. A large two-storey dwelling has been built on a large site at the intersection with Bunbury Street while a two-storey semi-detached development has been constructed at 11/11a Crawford Street. An earlier two-storey dwelling is located at 24 Crawford Street almost opposite the subject site.
3. However, the predominant built form of Crawford Street and the surrounding streets is of single-storey dwellings with noticeable side setbacks and recessive upper level forms where these have been included.

1. The major issues to be resolved are, in my view, the boundary-to-boundary nature of the new dwelling and its overall visual bulk.
2. Council's heritage advisor suggested that the original proposal was excessive in height and the large boxed form of the rear section together with the front balcony made the whole development visually dominant. She suggested that the basement garage and access were inappropriate in a heritage area and the side setbacks were inadequate resulting in a dwelling which was essentially an overdevelopment of the site.
3. The new plans have substantially changed the overall roof form to a pitched form limiting the boxed element to a smaller component at the rear to house part of the bedroom. The overall height of the front section to the ridge will be 7.14 metres, while the rear section will rise a further 0.65 metres to 7.79 metres. However, the overall effect is still of a very dominant built form.
4. Council originally requested that the overall bulk of the building would be reduced if the front upper floor bedroom was setback a further 2.0 metres from the frontage. At the hearing this request was reduced to 1.0 metres. Mr Tenner suggested that such a setback would provide for a less dominant first floor element and thus a built form which is more consistent with the prevailing single-storey development in the neighbourhood.
5. The height to the first floor eaves is shown on the plans as 4.9 metres. The skillion roof above the ground floor rises to some 3.6 metres leaving only 1.3 metres of exposed upper floor. In the front elevation the dominant form is the roof over the first floor and the skillion roof form creating the porch and enclosing the ground floor itself. I do not, therefore, see that this change will make any meaningful reduction in the building bulk.
6. In the original proposal it was intended to locate the garage in the basement which created a visual setback from the southern boundary due to the garage entrance driveway. While I support the removal of the basement garage, the consequence has been that the bulk of the garage has now been transferred to ground level.
7. The current proposal envisages that the garage wall will essentially be an extension of the wall of the dining/kitchen area which abuts the adjoining garage of 27 Crawford Street and continues on the fence line.
8. This wall will be 3.0 metre high and will then extend beyond the garage, as the kitchen wall, for some 10 metres and effectively form the boundary wall of the new dwelling, presenting a blank face to the adjoining driveway and will be highly visible from the street. I note that from the plans there appears to be a discrepancy in that the property boundary should be 400mm further south than the existing fence line. However, I note that the new dwelling wall will be built on the fence line.
9. The garage wall will then be recessed some 900mm behind the kitchen wall for a further 2.5 metres. However, this section of wall will fall under the roofline of the garage which will extend with eaves to a point some 300mm from the fence line.
10. The first floor will be recessed by some 2.0 metres from the ground floor wall except in the area of the bathroom window where the setback will be reduced to 1.5 metres.
11. The overall effect will, in my view, be of a building which is effectively built to the boundary, with limited setback at the upper level, a situation not consistent with the policy requirement.
12. In an attempt to mitigate this situation, Council proposed that a section of the garage wall on the boundary (approximately 2.0 metres in length) be set back in line with that part of the wall at the front of the garage which is 900mm from the fence line in order to reduce the length of high wall on the boundary.
13. I find this to be an essentially cosmetic proposal which will not result in any meaningful increase in the side setback.
14. On the northern boundary the enclosure created by the courtyard fence and the powder room also result in the dwelling being built on the boundary in the section most visible from the street.
15. As a further contribution to reducing the boundary-to-boundary form, Council suggested that the powder room should be setback 1.0 metres from the northern boundary to maintain views of adjoining dwellings. Again, I find this to be purely cosmetic as the consequences on the internal design had not been thought through and I do not find that this change will make any significant difference to the views of adjoining dwellings.
16. More significantly, on this elevation, the visual bulk is influenced by the setback of the upper floors. At the front of the house, the setback of the master bedroom, above the powder room, is some 2.0 metres from the boundary - the same as the ground floor - while the rear bedroom and sitting area are cantilevered over the pool with a lesser setback of 1.8 metres. There is therefore no attempt to incorporate a recessive element into that elevation, rather the opposite.
17. My attention was drawn to two existing two-storey dwellings in Crawford Street at Nos 24 and 11/11a as examples of two-storey development
18. In the case of 24 Crawford Street, the dwelling on that site, judging by its style, was built before the introduction of neighbourhood character and heritage controls. It is very box-like in appearance with little to suggest that it should be used as an example for future development. It does however incorporate setbacks on both sides, one of which is wide enough to include the driveway to a rear garage. These help to reduce its overall bulk.
19. At 11/11a, two semi-detached dwellings have been built. Despite the ground level being higher than street level these dwellings - built as one development - demonstrate side setbacks, recessed upper floor levels and recessed upper floor levels at the frontage which, taken together, demonstrate, I find, a sound attempt to meet local policy.
20. These features are not present in the proposal before me at 25 Crawford Street.

1. While the revised plans present an improvement over the original proposal my overall finding is that this is an overdevelopment of the site, created by the boundary-to-boundary built form and the overall building bulk.
2. I will direct that no permit issue.