Goodfellow and Ors v Boroondara CC [2001] VCAT 2405 (13 September 2001)

IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

APPLICATIONS FOR REVIEW: 2001/31327 and 2001/50027

Applications for review pursuant to ss 80 and 82 of the Planning and Environment Act; Boroondara Planning Scheme; Residential 1 zone; Heritage Overlay; demolition of existing house and construction of new house; ambit of discretion pursuant to the Heritage Overlay - relevance of views from the private domain; issues of extent to which proposed new house affects the significance of the heritage place and is in keeping with the character and appearance of adjacent buildings and the heritage place

Application for Review 2001/31327 (by objectors against a decision by the responsible authority to grant a permit): A Goodfellow and D and B Burton

Application for Review 2001/50027 (by the permit applicant against a condition contained in a Notice of Decision to Grant a permit): P Zaviska - POZ International Pty Ltd

MEDIUM NEUTRAL CITATION [2001] VCAT 2405

Application for Review 2001/31327 is allowed and the decision of the responsible authority is set aside. Application for Review 2001/50027 is dismissed. It is ordered that no permit issue.

The land is located on the eastern side of Broadway, Camberwell, approximately 200 metres south of Canterbury Road. The site is L-shaped, with a frontage to the Broadway of 24.36 metres and an area of 2022 square metres. The land is currently occupied by a part single storey and part two storey 1950s cream brick veneer dwelling.

The proposal is to demolish the existing dwelling and construct a new dwelling. The key features of the proposed new dwelling have been conveniently described in the responsible authority's submission as follows:

"A basement level comprising four car parking spaces, a rumpus room, TV room and spa area;

A ground floor level comprising a studio/den, a bedroom, living room, dining room, laundry, open kitchen, family and meals area;

A first floor level comprising three bedrooms, a study and amenities area;

The dwelling is to be set back approximately 17.4 metres from the Broadway street frontage. The first floor addition will be set back approximately 22.4 metres from the Broadway street frontage. The dwelling is to be set back 3.0 metres from the southern boundary at ground and first floor levels, 2.46 metres from the northern boundary at ground floor level and approximately 8.9 metres at first floor level and approximately 12.4 metres from the eastern boundary at ground floor level.

Materials to be used include solid brick and masonry with concrete slab construction to the basement level and ground floor. The first floor will be constructed using a mixture of brick veneer and timber construction over partly concrete and timber floors. The roof will be clad with Welsh slate and metal ridges."

The land is in the Residential 1 zone and included in a Heritage Overlay (HO159- Prospect Hill Road Precinct, Camberwell). No permit is required for the proposed demolition, or for the construction of the new dwelling pursuant to the Residential 1 Zone. However, pursuant to the Heritage Overlay, a permit is required for both demolition and for the construction of a building, or to construct or carry out works.

These two Applications for Review have been brought forward to be heard concurrently. The grounds lodged by the objectors against the decision of the responsible authority to grant a permit in Application for Review 2001/31327 were:

"Mass/dimension of proposed house not in keeping with heritage area guidelines.

Heights of building, comparative to northern neighbours."

The grounds lodged by the applicant against a condition contained in the Notice of Decision to Grant a Permit in Application for Review 2001/50027 were:

The requirement to lower the building further than that recommended in the Council officer's report is unreasonable and excessive in the circumstances.

The condition in its current form is unnecessary on the basis that the proposal is consistent with the heritage objectives of the planning scheme."

Condition 1(a) contained in the Notice of Decision to Grant a Permit required the height of the overall dwelling be reduced by 1 metre. The position of the permit applicant is that he is prepared to lower the height of the building by 700mm, but considers even that to be unnecessary.

Responsible Authority: Mr S Taylor, Consultant Town Planner.

Applicant: Mr A Finanzio of Counsel by direct brief.

Objectors: Mr I McP. Pitt, of Best Hooper Solicitors

1. It is common ground between the parties that the existing dwelling on the land has no heritage significance and should be removed. The central issue to be determined is whether or not the proposed dwelling adequately meets the purpose of the Heritage Overlay in terms of bulk, presentation, appearance and façade details.

2. The purpose of the Heritage Overlay set out at Clause 43.01 of the Boroondara Planning Scheme includes the following:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places.

3. It is common ground between the parties that the heritage place in this instance is the area which is subject to the Heritage Overlay. It is also noted that it is an objective of planning under s 4(1)(d) of the Planning and Environment Act 1987 to conserve and enhance places of cultural value.

4. In assessing whether or not the proposed dwelling meets the purpose of the Heritage Overlay, the Tribunal is required to consider, as appropriate, in addition to the matters the matters set out in Clause 65, the matters set out in the decision guidelines at Clause 43.01-5 of the Scheme. These matters include:

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

Any applicable heritage study and any applicable conservation policy.

Whether the location, bulk, form or appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

5. The applicable heritage study in this instance is the Camberwell Urban Conservation Study 1991. The study is not an incorporated document in the Boroondara Planning Scheme, but it is a reference document pursuant to Clause 22.05-4. It must be considered along with the other relevant matters set out in Clause 43.01-5. That part of the study which sets out guidelines for new buildings and addition and titled "Development Guidelines, New Buildings and Additions", Camberwell Urban Conservation Study 1991, Vol 1 is an incorporated document pursuant to Clause 81 of the Scheme.

6. Clause 65 provides that before deciding on an application or approval of a plan the responsible authority (and therefore this Tribunal) must consider, as appropriate, a number of matters, including the following:

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

The purpose of the zone, overlay or other provision.

Any matter required to be considered in the zone, overlay or other provision.

7. In the State Planning Policy Framework at Clause 15.1 is set out the following objective:

To assist in the conservation of places that have aesthetic, historic or cultural significance as a means of understanding our past, as well as maintaining and enhancing Victoria's image and making a contribution to the economic and cultural growth of the State.

8. Clause 15.2 provides that the responsible authority should identify, conserve and protect places of natural or cultural value from inappropriate development.

9. The Local Planning Policy Framework contains a number of relevant policies. As summarised by Mr Pitt, the relevant policies are as follows:

"Pursuant to Clause 21.05-3 it is a strategy to conserve and enhance heritage areas.

The heritage policy in Clause 22.05 in the LPP applies to all heritage places.

To encourage the conservation and enhancement of areas ... of heritage value in the City.

To ensure that any replacement(s)/extension(s) of heritage buildings are respectful to the heritage character of the area.

New buildings and works be compatible with the characteristics of individual buildings and the area, and undertaken generally in accordance with any Council prepared guidelines.

The design, bulk and setback of any new building be responsive to existing heritage assets."

Mr Finanzio's argument - the ambit of discretion to be exercised by the Tribunal

10. The submission of Mr Finanzio in relation to the ambit of discretion to be exercised by the Tribunal in this case raises a question of law, or a question of mixed fact and law. Each of the parties gave consent for me to determine this question pursuant to s 58(2) and Clause 66 of Schedule 1 to the VCAT Act 1998.

11. Mr Finanzio's submission was that in this case the exercise of discretion by the responsible authority and by the Tribunal did not extend to a consideration of the appearance and presentation of the proposed dwelling from the private domain. In summary, his submission (which I expand upon below) was that in accordance with the principle set out by the Supreme Court in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] 37 LGRA 172 and affirmed more recently by Balmford J in Salmal Constructions v Richards and Anor (1998) 22 AATR 339, the discretion conferred by a requirement for planning permission must be exercised in accordance with the purpose for which that discretion is conferred. He contended that in order to achieve the purpose of the Heritage Overlay to conserve, enhance and protect the cultural heritage significance of heritage places, one must first identify what the cultural heritage significance is as a matter of fact, but Clause 43.01-5 provides no guidance in express terms. One must, he argued, go to the Camberwell Urban Conservation Study 1991, a reference document in the Scheme, and the "Development Guidelines New Buildings and Additions ", Camberwell Urban Conservation Study 1991, Vol 1, both of which must be given regard to pursuant to Clause 43.01-5. He submitted that for the objectors to succeed they must establish that the impact of the proposed dwelling when viewed from their back yards will have an adverse impact upon the significance of the heritage place in the terms in which that significance is identified in the conservation study.

12. It is apparent, he submitted, that from the statement of significance for this area contained in the Camberwell Urban Conservation Study, and the "Development Guidelines New Buildings and Additions " the significance of the

area to which Heritage Overlay HPO159 applies is to be derived from the presence and relative integrity of the large number of Victorian and Edwardian villas on large blocks and it follows that the agglomeration of these types of dwellings from the same era is the basis of significance of this area. In other words, the area subject to the Overlay control is considered significant because of the ensemble of the buildings, and the only place where the architectural features contributing to that ensemble may be appreciated is from the streets within the area. He submitted:

"It follows that any part of the proposed dwelling that is not visible from the street will not have an impact on the ability to perceive and appreciate the homogeneity of the period and style as a collection at all, even if the elements of the building are apparent from the rear yards of adjoining properties. This is so because the views from rear yards of adjoining properties is not the basis upon which the significance of the area HO159 has been established.

Finally, if any doubt existed that the cultural significance of this heritage place HO109 had nothing to do with the appearance of the building from the back yards of adjoining neighbours, the guidelines for new development and additions remove that doubt. These guidelines were clearly established to give effect to the protection of the area of cultural significance and given that they express no concern whatsoever in relation to views from the rear of buildings and painstakingly describe the manner in which visible additions or new buildings should be treated is clear evidence of the focus of the significance."

"It is submitted that it is not possible to appreciate the significance of the area HO159 from the backyards of existing dwellings, nor from the laneway or parkland that sits to the rear of the buildings with a frontage to Broadway"

13. In support of his argument that views from the private domain were not relevant to an assessment of the impact of a proposed building or development on the heritage significance of an area, Mr Finanzio referred me to Staged Developments Australia Pty Ltd v Executive Director of Heritage Victoria and Melbourne City Council and the National Trust (Vic) (2000/68339 and 2000/82270; as yet unreported) and D Maloney and M Urdamilleta v Boroondara City Council and Toscano Architects (2000/1512; unreported). Before turning to these cases I now deal with the question of the views of the proposed development from the right of way and from the park at the rear of the subject land.

The view from the right of way and the park at the rear

14. I have inspected the site and surrounding area. Parts of the rear of the existing building on the subject land can be seen from the right of way at the rear. However, from the park (Boroondara Park) parts of the rear and parts of the sides of the existing building on the site can be seen quite clearly. Indeed, from the slight bank which runs roughly parallel to the pathway running through the park some 30 metres from the rear boundary of the subject land, there is a panoramic view of the rear of most of the properties from the subject land to the rear of the units on the site abutting Canterbury Road to the north. Through that arc the rear sections of all the dwellings are clearly visible, although the rear of 70 Broadway is partly obscured by an outbuilding constructed on the rear boundary. It is clear to me that the dwellings on the east side of the Broadway were constructed not only to present impressively to the street, but also to take advantage and present to the park. From the park one can readily observe verandahs, bay windows, timber fretwork, gables and hipped roofs. The ensemble of buildings when viewed from the rear is relatively intact - this is not an area characterised by "Queen Anne fronts and Mary-Anne backs". The proposed building, being two and a half storeys above ground level at the rear and closer to the rear boundary by 10 metres than the current dwelling on the site, will be clearly visible from the park. In my estimation, the rear elevation excluding the basement level will be visible, as will parts of the side elevations. Obviously those views are relevant to an assessment of the proposed building.

The Tribunal decisions cited by Mr Finanzio in support of his argument

15. In the first of the cases Mr Finanzio referred me to (Staged Developments Australia Pty Ltd v Executive Director of Heritage Victoria and Melbourne City Council and the National Trust (Vic), dealing with the Herald and Weekly Times building in Flinders Street) the decision of the Tribunal is quite lengthy. I assume Mr Finanzio is relying on paragraph 130 of the decision. But in this paragraph the Tribunal did not find that only views from the public domain were relevant in assessing heritage significance. It found that the "historic as well as the architectural interest of the building is to be demonstrated in the external appearance of the building" and noted that "the entire facades to Flinders and Exhibition Streets, together with a return on Sargood Lane, are to be retained, and that this retains the full three dimensional appearance and proportions (of) the building from all relevant external public viewing points."

16. .The Tribunal went on to say that it "would only really be from above that it would be apparent that a substantial portion had been taken out of the northeast segment of the building to provide a site for the tower. There is room for some debate about whether a minor qualification to what we have just said is justified on the basis that it would be possible to obtain a minor and limited view down Sargood Lane. Beyond the preserved return wall, it might be seen that there has been interference to the original building. Whilst that is true, it is also true to say that this view, peering down the lane, is minor, in the whole scheme of things, virtually to the point of insignificance." I can find nothing in this paragraph to support the proposition that a view from the private domain is irrelevant.

17. In D Maloney and M Urdamilleta v Boroondara City Council and Toscano Architects it is a little difficult to establish precisely what was held by Mr Quirk in relation to the issue of the relevance of a view from the private domain. In this case Mr Quirk stated at para 16 that he agreed with Mr Bick's interpretation of dot point 5 of the guidelines in Clause 43.01-5. That dot point is as follows:

* Whether the location, bulk, form or appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

18. But what is it that Mr Quirk agreed with? Mr Quirk's understanding of Mr Bick's interpretation is found in paragraph 15, where Mr Quirk said "I considered both dot points 4 and 5 of the decision guidelines in relation to the heritage overlay and what dot point 5 means. In Mr Bick's view the guideline does not mean that the heritage place should be considered from other than the streetscape in which it exists and that dot point 5 is a control over the entire area and what appears on individual lots." If Mr Bick's interpretation was that only views from the public domain were relevant and Mr Quirk agreed with that interpretation, then why is it that Mr Quirk in para 16 goes on to discuss the impact of the proposal in this case on the private views from the rear yards of neighbours? If he had held that views from the private domain were irrelevant, then consideration of the views from backyards would have been irrelevant. But he obviously did not consider them irrelevant. Instead, he found them, in the context of the particular facts which applied, to be not important considerations.

19. It is my understanding that in the case before me, on the basis of his witness statement and on the basis of his evidence to me, Mr Bick is of the opinion that views of the proposed development from the rear yards of abutting properties are relevant. I mention this because that is not in accord with the apparent understanding by Mr Quirk of Mr Bick's view in the Maloney and Urdamilleta case. There are at least three possible conclusions to be drawn from that: Mr Bick has changed his opinion; Mr Quirk misunderstood what Mr Bick's opinion was in the first place; or Mr Quirk correctly understood what Mr Bick's opinion was, but expressed it a less than crystal clear manner. It seems likely that the last of these three possibilities applies.

20. The subject land and surrounding area are located in Precinct 26.4 Russell Estate- Broadway and Sefton Place in the Camberwell Urban Conservation Study 1991. The Study provides a brief history and description of the precinct and a statement of significance. The statement of significance is as follows:

"Camberwell has the reputation of possessing the best Queen Anne villa and Federation style houses in Australia: this precinct demonstrates this point ably with continuous streetscapes from the Edwardian period and picturesque street patterns which show these three-dimensionally conceived designs to their best advantage i.e Sefton Place. The contrived curves in the streets set the stage for this type of picturesque villa display and reflect the preoccupations of the innovative estate designers of the early 1900s (see also precinct 27.02). The period's best house designers, Ussher & Kemp, Cowper, Guthridge and Ward & Carleton are well represented in this precinct on sites which are almost ideal for their architecture. The houses are close to original and planting around them compliments (sic) that of the period. Historically these comfortable houses represent on the one hand the surge of population to the suburbs after the recovery from the 1890s economic gloom and the follow-on of the Edwardian middle classes from the colony's elite who resided in their Camberwell mansions during the late 19th century, safe from the effects of industry, close to new train lines and sited amongst the then fertile vineyards and orchards."

21. I can find nothing in this statement which suggests that the significance of the precinct is confined to views from the public domain and therefore essentially from the street. In fact there are several cues in the statement which suggest that the significance of the precinct area lies in the three dimensional presentation of its buildings. These include references to the presentation of the three dimensional designs to their best advantage in the first sentence, the planting around the dwellings in the fourth sentence, and the reference to comfortable houses in the last sentence. These references do not sit at all comfortably with the presentation just of the façade plus those parts of the side elevations as seen from the streets. The statement of significance does not support Mr Finanzio's argument.

"Development Guidelines New Buildings and Additions ", Camberwell Urban Conservation Study 1991, Vol. 1

22. Nor do the Development Guidelines for New Buildings and Additions support Mr Finanzio's argument. I draw attention to the following:

* In the Introduction under the heading of Alterations is stated "Parts of sites of A, B or C value which are visible from the street will be strictly controlled (except for paint colours). These controls will be relaxed (allowing minor element change) for sites graded D and the rear of buildings facing public reserves." This does not say that parts of buildings not visible from the street will not be controlled.

* The footnote to Table 1 refers to design which attempts to harmonize with its context. The definition of context which appears later in these Guidelines includes the "character and appearance of the area as a whole, and adjoining or nearby significant works or buildings, and in the case of additions or alterations, significant parts of the subject building."

* In Table 2 for New Building façade height and set-back appear the words "Recessive to adjoining A-D buildings."

* In Table 3 under the heading Additions appear the words "Concealed from public view and respectful". If the Guidelines applied only to views from the public domain then "respectful" would be redundant.

* Under Table 3 and the heading Comment appear the words "In a Level 1 or 2 streetscape, lesser in perceived scale and/or greater setback, to any contributory site i.e if the proposal adjoins a single storey contributory site, it must be no greater in height and/or volume."

In my opinion these points are sufficient to demonstrate that the Guidelines do not support the proposition that views of the proposed development in from the private domain, that is from the backyards of abutting or nearby properties, are irrelevant.

23. In summary, I find that the Camberwell Urban Conservation Study 1991 and the "Development Guidelines New Buildings and Additions ", Camberwell Urban Conservation Study 1991, Vol 1 do not support the proposition that the significance of the area subject to Heritage Overlay HO109 lies in the ensemble of buildings as viewed from the public domain, in this instance mainly from the Broadway, and that views of the proposed building from abutting or nearby backyards are irrelevant. It therefore follows that views of the proposed building from the private domain, in this case from abutting and nearby backyards, are relevant. Because the proposed building will be seen from the park to the rear of the subject land, the view of it from the park is also relevant.

24. I now turn to an assessment of the proposed building. The abutting property to the north is a single storey brick dwelling built in 1915 or thereabouts and is graded C2 in the Camberwell Urban Conservation Study 1991. To the west and directly opposite the site are single storey and attic style double storey Federation style dwellings. Abutting the subject land to the south at 62 Broadway on the corner of Broadway and Sefton Street is located a double storey attic style brick dwelling built in 1905 and graded B2 in the Conservation Study. This is Mr and Mrs Burton's house. At 1 Sefton Place is located a double storey attic style brick building graded C2 in the Urban Conservation Study. This is Mr Goodfellow's house. The Camberwell Urban Conservation Study utilises grades from A to E. Grade B is described as "considered highly important compared to examples taken from across the Metropolitan Area." Grade C is described as "considered important compared to examples taken from across the Metropolitan area".

25. As has been noted above, it is common ground between the parties that the existing dwelling on the subject land has no heritage value and should be removed. Mr Finanzio took some time to argue that the proposed new building cannot contribute to the heritage significance of the area and the best that can be hoped for is that it will not adversely affect the significance of the heritage place and if it does adversely affect the significance of the heritage place then it must not be approved. As to the purpose of the Heritage Overlay, he argued that if the proposed new building is no more detrimental than the existing building, it might be said that the heritage place has been conserved and that if the replacement building is a better building in the context of the heritage qualities of the area, then it might be said that enhancement will occur.

26. But in my opinion the proposed building will adversely affect the significance of the heritage place. I have come to that conclusion having examined the eastern, western, northern and southern elevations of the proposal. The proposed building will be out of scale and will have a detrimental impact on properties especially to the north when viewed from the park and laneway at the rear. To the east it will present as a two and a half storey building compared to the predominantly single storey and occasional two storey attic style presentation of buildings looking to the east and the park. The height and bulk of the building, the shape and form of the first floor, the absence of a verandah, and the shape and extent of windows on this elevation will make it visually prominent. The same comments apply to the north and south elevations. Normally one would place less emphasis or give less weight to a consideration of the "side" elevations of a proposed new building in a heritage area. However, in this instance a relatively high proportion of these elevations will be viewed from the public domain (from Broadway and from the park to the rear) and the extent to which these elevations will detract from the heritage significance of the area generally and the abutting buildings in particular by virtue of bulk, height, materials, size and shape of windows, and, on the south elevation, the sheer amount of glazing, is very considerable. On balance I am of the opinion that the east, north and south elevations would have a greater detrimental effect on the significance of the heritage area in general and of the abutting properties in particular than the western or street elevation. However, I also have concerns about that elevation, too, as indicated below.

27. I accept Mr Raworth's evidence that the setback of the building from the frontage of the second storey and its position behind the roof over the ground floor level at the front would result in making the second storey recessive in nature when viewed from the street. However, the resulting roof form over the ground floor level at the front is awkward and at odds with the shape and form of roofs on abutting and nearby properties. It results in an elevation which is out of proportion. In my opinion the roof is too high, given the design used. Roofs nearby with a similar height are usually over an attic storey and their expanse is broken up by the attic room windows. That is not the case here.

28. The façade facing the street is essentially flat. The absence of verandahs or other appropriate design features results in a lack of the articulation and the play of light and shadow which is very much a feature of the façades of abutting and nearby properties and contributes to their heritage significance. The "tower" on the western elevation appears as a squat, heavy structure, with almost slit windows, very much in contrast to the structures found on other houses in the area.

29. I appreciate that it is a great challenge to produce a design on a site such as this which is not simply copyist, but is modern and interpretative and at the same time does not detract from the significance of the heritage area generally, or the abutting buildings in particular. I do not agree with Mr Raworth that the proposed dwelling is an appropriate interpretative response to the site and its context.