MEDIUM NEUTRAL CITATION: [2003] VCAT 1722

i. must contain paragraph (c) as it appears in the Notice of Decision to Grant a Permit issued by the Responsible Authority on 22 July 2003;

ii. that it must contain paragraph (d) thereof, but with the expression "with a commensurate relocation of the first floor level staircase and walk-in robes" deleted;

iii. that it must not contain paragraph (e) as it appears in the said Notice of Decision; and

iv. that it must contain paragraph (g) renumbered to accord with the deletion of paragraph (e), but to read as follows:

"The first floor level south-east side wall setback opposite the light court at number 97 Danks Street is to be set back by 1 metre from the common boundary with that property".

Ms. Alisanne Green, Town Planner of the City of Port Phillip, appeared for the Responsible Authority. She presented written and oral submissions.

Mr. S. Jones, Barrister, appeared on the instructions of his clients for the Applicants. He presented written and oral submissions and called his client Mr. Justin Robert Ganly to give evidence.

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

Application under Section 80 of the Planning and Environment Act 1987 (PE Act) for review of conditions in a permit.

Alterations to an existing building including first floor extensions.

Residential 1 Zone and subject to Heritage Overlay under the Port Phillip Planning Scheme.

Conditions 1(c), (d), (e) and (g) in the notice of decision to grant a permit issued by the Responsible Authority on 22 July 2003.

1. This is a conditions review in relation to proposed extensions to a modest single storey weatherboard Victorian cottage located on the north side of Danks Street, Albert Park between Withers Street to the west and Victoria Avenue to the east. The next east-west street north of Danks Street is Graham Street. Between Graham Street and Danks Street there is a rear lane approximately 2.5 metres wide that runs east from Withers Street, past the rear of the appeal site, and for some distance further giving rear access to properties fronting the north side of Danks Street and the south side of Graham Street. Danks Street itself is, in this locality, a wide street with a substantial central plantation. The area is an attractive residential 1 zone subject to a heritage overlay.

2. The review site is the fourth property east of the intersection of Danks Street with Withers Street. It is one of a substantial row of single storey, single fronted weatherboard Victorian cottages running along the north side of Danks Street. These dwellings have retained substantial consistency and authenticity. They make a significant contribution to the streetscape and the neighbourhood character and they are contributory buildings in terms of the heritage overlay. Although these houses are modest, they make a significant contribution to the interest and attractiveness of the area, and their consistency in terms of scale and design should not be compromised, or further compromised.

3. I say further compromised because the property at 91 Danks Street has undergone an extension, including a first floor extension that pops up intrusively above the retained single storey front section of the dwelling. Although this intrusion could be worse, and worst examples can be found, I am nevertheless of the view that this development was unfortunate, and should not be repeated. A number of intrusions of that sort along this row of houses would seriously compromise the streetscape, the character of the neighbourhood and the heritage interest and authenticity of the row.

4. The situation in relation to over-high and bulky second floor extensions is, if anything, more sensitive in this location because of the width of Danks Street. Public areas of view extend over a more than usual distances across the medium plantation to the footpath on the south side of the street. The further away from the front of the house, the greater the extent to which the extension bulks up above its front roof line. It also increases the opportunity for angled views.

5. I am informed that the Applicants live in the house at present, and find it sufficient for their purposes. However, they propose to marry in the near future, and to have children. The present structure is necessarily limited as a family home. They wish to have a first floor extension to contain a master bedroom, ensuite, walk-in-robe, storage and similar facilities.

6. There is, of course, nothing wrong in that, provided the proposed extensions can be accommodated without compromising the streetscape and heritage values of the site and locality.

7. In the course of the hearing Ms. Green, on behalf of the Responsible Authority, took me through an extensive array of state and local planning policies and provisions. In his turn, Mr. Jones referred to the residential land use provisions of the Municipal Strategic Statement at cl.21.05-1 of the local section of the planning scheme. He took me particularly to a municipality wide strategy therein to the following effect, that is, that it is relevant to:

"Support the restoration and renovation (rather than replacement) of older buildings to encourage their retention and to ensure that they meet current-day living standards."

8. He was right to refer to this, and it is a relevant consideration.

9. In referring to it, Mr. Jones recognised that it is a consideration to be balanced with others. It is not, by any means, intended to be the decisive consideration to the exclusion of other values. I appreciate this point. Nevertheless, it is important that the streetscape and heritage values of this property and this row of properties should not be lost or compromised. If it comes to a clash between preserving them on the one hand, and providing a substantial family home on so limited a block, on the other, then I am of the opinion that the former considerations must prevail, and the aspirations of the large family home, must yield. I would only be minded to grant permission for an enlargement, including a first storey addition (whether or not it attains the status of a family home thereby), if it can be accommodated without compromising these important heritage and amenity considerations.

10. This case is not about whether a permit should be granted or refused, rather it is about what conditions should be imposed, the Responsible Authority having determined to grant a permit. The first condition appearing in the notice of decision to grant a permit issued by the Responsible Authority requires a number of modifications to the application plans. They are set out in paragraphs (a) to (i) inclusive of condition 1. The Applicants seek to challenge four of those modifications. These are the ones found in paragraphs (c), (d), (e) and (g).

11. The latter two of these have little or no impact on the public realm or, for that matter, on the important heritage and streetscape values I have been referring to. They are towards the rear of the proposed building when extended, and affect the amenity of the review site itself and the adjoining properties on either side. These two required modifications are less important and less contentious than those in (c) and (d).

12. Modification (e) requires a rear setback at first floor level to be increased to match the existing ground floor conditions at 93 and 95 Danks Street. The proposed setback at first floor level on the western side would have to be increased by approximately 0.5 metres to meet this condition. The rear setback on the eastern side is already setback to that extent. Although there were objections to the permit application, the objectors have not given statements of grounds or taken part in this review hearing. The owner of 97 Danks Street has expressed himself as satisfied with this aspect. The western portion of the rear wall is on the opposite side of the review site to his property, and the affect on his property is negligible, whether considered from the point of view of shading or inclosing. The portion complained of is to the east, and really more correctly to the south-east of 93 Danks Street. This "shoulder" structure will have little or no affect on the neighbouring property at No. 93, from a point of view of shadowing. I consider that the degree to which the aspect complained of imposes bulk and height on the neighbouring property to be minor and acceptable. I propose to uphold the appeal (to use a now an obsolete term in relation to planning proceedings) as to condition 1(e) and to delete it.

13. The modification in paragraph (g) concerns a light well or light court in the east wall, referred to in the paragraph as the south side wall, opposite the light court at No. 97 Danks Street. The requirement of paragraph (g) applies only to this item at first floor level and it requires compliance with standard A12 of cl.54 of the planning scheme. This requires the setback from the side boundary to be in the order of 1.7 or 1.8 metres. The light well on the adjoining property has a depth from the common side boundary of 1 metre. The Applicants have agreed with the owner of the adjoining property that there should be an equal depth of 1 metre on the side of the review property. I am prepared to accept this as reasonable and appropriate. I proposed to modify paragraph (g) accordingly.

14. There is a consistent style about the individual dwellings in this row of cottages. Part of that arrangement is that each has a side path or walkway down one side of the building so that each cottage is detached from its neighbours. That is in spite of the fact that the dwellings are of a style and appearance that frequently is constructed as a row or terrace. This feature of the side walkway has been generally maintained. It is desirable that it should be maintained, or if not maintained completely, then at least maintain to some extent. The tendency on modernising and enlarging the accommodation in these houses has been, and probably will be, to seek to build to the side boundaries. However, buildings into the side walkways should not come so far forward, towards the street frontage, as to be flush with the main front wall of the buildings, or close to those main front walls in terms of setback. There should be a distinct additional setback for the front of any structure occupying the side way, as compared to the setback of the main front wall.

15. The application plans shown an increased setback of only 0.3 metres. In my opinion this is insufficient. Mr. Jones, on behalf of his client, offered an increase to 0.6 metres. Paragraph (c) of condition 1 calls for a setback in the sideway of at least 1 metre.

16. On this matter I agree with the Responsible Authority and will retain modification (c).

17. This, of course, has some impact on the proposed front room which would be a bedroom. Nevertheless, although reducing its area somewhat, and perhaps making it slightly more awkward, I think the room can still be made useful, viable and convenient.

18. By far the most important, and most contentious issue in this case is that raised by the challenge to paragraph (d) of condition 1. This condition concerns the setback of the first floor addition from the front boundary, interrelated with its height. It concerns the very issue as to the degree to which the first floor addition will be visible above the front of the house when viewed directly or obliquely from the front street, including from footpaths on either side of that street. The proposed formula is that the floor area and height of the first floor addition should be reduced, and front setback of it increased, so that the extension will sit within a 10° sideline from the front gutter of the building. The extension, as depicted in the application plans, does not meet this requirement.

19. This formula is derived from Performance Measure No. 1 under cl.22.04 (Port Phillip Heritage Policy) in the local section of the planning scheme. Under that clause the following policy proposition appears:

"An upper storey addition is sited and massed behind the principle façade so that it preferably is not visible, particularly in intact or consistent streetscapes (see Performance Measure 1)."

20. I am satisfied that this streetscape should be regarded as intact and consistent (not withstanding the addition at No. 91).

21. Performance Measure 1 goes on to deal with scale and massing in relation to three situations. It is the second situation that is relevant here. Thus, omitting the irrelevant parts, Performance Measure 1 ( as relevant) reads:

"Upper storey additions may meet the building siting, scale and massing policy dot point 2 of Building Siting, Scale and Massing section if the following measures, as appropriate, are achieved:

They are sited within an "envelope" created by projecting a line at 10 degrees from the height of the base of the front parapet or gutter line on the main façade and extending to the rear of the heritage place, (illustration 2 or 3)."

22. Illustrations are provided to demonstrate the intention.

23. I have said that this is the relevant proposition in Performance Measure 1. It is the second. The first relates to a narrow street of five metres or less. That is not applicable because Danks Street is far wider than that.

24. The third proposition relates to exceptional cases where a heritage place is located in a diverse streetscape and the design of the proposed addition is considered to be an appropriate contextual response. In those circumstances, the envelope may be within the line up to 18° from the base of the front parapet or gutter line. However, this is in no way an exceptional case, and certainly not a diverse streetscape.

25. The issue then, in relation to modification (c), is whether the Responsible Authority is right to insist on the 10° envelope, or whether it should be relaxed, at least to some degree, to allow more building at first floor level, closer to the front.

26. The Responsible Authority has sought to apply its policy guideline, and it sees no reason to depart from, or relax it, in the circumstances. It may be a relatively conservative guideline, but it is intended to protect important values. I am aware of other cases where the Responsible Authority has sought to be consistent in applying it.

27. Mr. Jones contends that it is unduly and unnecessarily restrictive. He recognises the value sought to be protected, he would not advocate the worst excesses that may be seen in some other situations. He points to 91 as a benchmark, reminding me that the angle there is 15°, rather than 10°. He is not going so far as to say that 15° ought to be allowed here. The scope of the argument is more in terms of 13.5°, or 13°, or perhaps even 12°.

28. He is sought to illustrate his case by reference, not only to No. 91, but to a permit that has been granted in relation to the neighbouring property at 97, and others in the area.

29. The Responsible Authority points out that the permits for 91 and 97 were both granted before the planning scheme amendment that introduced the 10° limit it seeks to impose.

30. The permit in relation to No. 91 was, in fact, granted by the Tribunal in the case of Tsirogiannis v. City of Port Phillip [1999] VCAT 1188 heard on 1 June 1999 with the decision given on 30 June of that year.

31. That was an objector's appeal under s.82 PE Act. The Responsible Authority now takes the view that that permit, and its consequent development, is regrettable and should not be repeated.

32. The intention of the 10° rule is clear enough, and indeed, is expressed in the text of cl.22.04 and the Performance Measure 1. It is intended that any first floor addition should be sufficiently low and sufficiently far back as not to be visible from the front, or, at any rate, only to be visible to a minor and unobtrusive extent. It is not easy to have a first floor addition to a single storey house of this scale, even set to the rear, without some part of it being visible, at any rate on oblique views.

33. Nevertheless, I consider that the 10° rule produces a result where the addition, if visible, is kept to a minor and acceptable degree of visibility. This was illustrated in a series of photographs produced of single storey heritage area buildings that have had first floor rear additions that comply with that formula. Photographs of other, much less satisfactory results where the 10° was exceeded, were also produced.

34. Mr. Jones argued that adherence to the 10° rule here, on so small an allotment as this, produces a result where there can only be a room of approximately 4x5 metres into which a stairhead must be accommodated. Whilst not quite saying that the 10° would prohibit any useable first floor addition, he certainly suggested that it is unduly restrictive, and would be so, even if devices such as utilising roof space are employed. Some drawings were produced to illustrate the point.

35. I note that the application plans make fairly lavish provision for a huge walk-in-robe and considerable other facilities including ensuite and storage. The drawings produced suggested that compliance with 10° would require a room to the rear at first floor level, with a valley between its roof, and the roof of the existing portion of the house, where the valley could not be utilised because the head room would be only 2.3 metres.

36. I believe that a redesign could make a reasonable master bedroom with suitable facilities, even within the 10° line. I believe that some use can be made of the "valley" area for storage and some other facilities not requiring full head room. No doubt all this would call for some careful consideration.

37. Ultimately, it becomes a choice for the Applicants as to whether they wish to proceed with alterations and extensions within the limitations of the permit. Obviously compliance with the 10° guideline would afford them less than they wish to have.

38. Be that as it may, I am persuaded that the 10° rule, as imposed by the Responsible Authority, and in accordance with its heritage policy and Performance Measure 1, is appropriate, should be applied. I am not satisfied that there is a need to exceed it, but even if there is, I do not consider that such a departure would be justified. I see no other reason, in the circumstances to this case, from departing from it. I propose to retain condition 1(d), but will delete the phrase "with a commensurate relocation of the first floor level staircase and walk-in robes". I recognise that such relocation may be called for, but provided the 10° side line rule is adhered to, it is for the Applicants and their architect to consider what result is best whilst confirming to that constraint.