A. In this matter, the Applicant is given the opportunity to modify the proposal to address the findings of the Tribunal set out in this decision (notably the Tribunal's in-principle finding that all of the existing dwelling at 67 Leopold Street and the rear of No. 65 may be demolished but the Tribunal rejects the application to demolish the front section of the existing dwelling at 65 Leopold Street).

B. If the Applicant wishes to take up this opportunity to modify the proposal, it must advise the Tribunal in writing (and concurrently copy same to the Council and the other parties to the hearing) within 14 days of the date of these orders. In relation to copying any such correspondence to the other parties to the hearing, it shall be sufficient for the Applicant to provide a copy to the two relevant advocates, Ms Porritt and Ms Orrlov.

C. If the Applicant advises that it does not wish to take up this opportunity to modify the proposal or if no response is received in the timeframe, then the Tribunal will issue an order refusing the proposal.

D. If the Applicant does indicate within the 14 day timeframe that it wishes to proceed with modifying the proposal, then the Applicant must within 60 days of the date of these orders provide the Tribunal with the modified plans, and concurrently copy same to the Council, Ms Orrlov (two copies) and Ms Porritt (five copies).

E. The Tribunal will then shortly advise the parties of a fresh hearing date, at which time the Tribunal wishes to:

•

hear an objective explanation of the modified plans from the project architect, with the opportunity for questions afterwards;

•

give Council and the other parties the opportunity to make submissions on the new plans (with the opportunity available for any party to attach to their submission a Supplementary Report from any expert witness who has already appeared in this appeal, commenting on the modified plans);

•

give the Applicant the opportunity to make any other relevant submissions in support of the new plans

following which, the Tribunal will issue its final decision in this matter. The Tribunal retains the right to ultimately approve or reject any modified proposal.

Mr Chris Townshend of Counsel, instructed by Deacons lawyers

•

expert heritage evidence from Mr Willingham; and

•

expert planning evidence from Mr Biles

Mr Nick Tweedie, instructed by Ms Brigid Ryan (MCC Corporate Solicitor)

Ms Tweedie called expert heritage evidence from Mr John Briggs.

Ms Tamara Orrlov (planner) of Hansen Partnership represented Ms Julie Howell and Ms Pauline Hirsh

Ms Sarah Porritt of Counsel represented the numerous neighbours listed in the Appendix to her decision, a copy of which is attached at the back of this decision

•

expert heritage evidence from Messrs Beeston and Lewis;

•

evidence from Mr Pascoe in his capacity as an expert academic historian.

Ms Frank Perry appeared for Ms Wertheimer, a Leopold Street resident

Mr Edward Hodgson appeared in person, presented to us and provided some photos of the current No 109 renovation works.

1 This matter involves two single storey Victorian terrace houses in South Yarra, south of the Botanical Gardens, where it is proposed to demolish both existing houses and replace them with two double storey contemporary units. Council has issued a Notice of Refusal and there has been substantial objections from neighbours. In relation to the facades of the two existing dwellings, one is relatively intact and very recognisably as being built in the Victorian era, whereas the other is highly altered and barely recognisable as a Victorian terrace house. The site falls within a Residential 1 Zone and a Heritage Overlay HO6. During the hearing we heard evidence from a number of heritage consultants plus planning evidence from Mr Biles and we carried out a joint inspection after the hearing.

2 In summary, most of this decision focuses on the issue of whether either or both existing dwellings should be permitted to be demolished. There is a strong and prescriptive planning policy framework of valuing and seeking to protect heritage assets in the municipality. However the degree of intactness of the two buildings varies substantially. There are also issues of how the two buildings relate to other period dwellings further south on this side of Leopold Street. Ultimately we have found that the No. 67 dwelling (which is ungraded) may be demolished, but that the front section of the No.65 dwelling (which we accept has the weight of a "D" graded building) must be retained.

3 The last section of our decision indicates that while it was open to simply refuse the proposal, as a matter of fairness the appropriate course seems to be to allow the Applicant the opportunity to re-design the proposed new building and then come back for a further hearing for all parties to consider same. While we ultimately reserve our right to approve or reject any such modified design, we have offered some preliminary comments on the proposed new building in a spirit of assisting any such redesign process.

4 This is an appeal under Section 77 of the Planning and Environment Act 1987 ("Act") against Council's Notice of Refusal to Grant a Permit in relation to the land at 65 & 67 Leopold Street South Yarra ("subject land"). The proposal has been described in our summary above.

5 At the beginning of the hearing Ms Porritt requested that we join as formal parties to this matter a handful of local residents who wished to be represented by Ms Porritt (these relevant residents are highlighted in the Attachment to this decision. As there was no objection from any other party, we made an order to this effect.)

6 There was discussion of the availability of the Tribunal and relevant experts/advocates over the week and in the final result we were able to finish what was otherwise a five day hearing by late on the 4th day. We heard submissions from all the parties together with the evidence from the various witnesses listed above. We also had the benefit of a useful model, which we retained after the hearing to assist us in preparing this decision.

7 Before hearing the Council submission, we allowed the project architect Mr Gunn to give an explanation of the plans plus we gave the opportunity for the other parties to ask Mr Gunn questions.

8 After the hearing we carried out a combined unaccompanied view of the site and Leopold Street, including inspecting doing indoor and outside inspections of the subject land, the upstairs unit to the north and the dwelling to the south of the subject land. We walked the length of both Leopold Street and the laneway running behind the subject land, and also drove along several parallel streets in the locality.

9 The Council written submission provides a good overview here as follows.

The subject land comprises two adjacent properties, located about two kilometres south of central Melbourne, on the western side of Leopold Street, about halfway between Domain and Toorak Roads, South Yarra.

The Botanical Gardens are at the northern end of Leopold Street, and Fawkner Park at the southern end. Leopold Street rises gently from Domain Road to a point near the review site, then falls gently to the south to Toorak Road.

Leopold Street is developed for residential uses, and there are a mixture of one and two-storey dwellings, as well as a number of apartment blocks.

No 65 & 67 Leopold Street are single-storey, Victorian houses constructed in circa 1888/89.

Taken together, the two blocks have a total site area of 306 square metres.

The subject land has access to Corporation Lane 1448 at the rear (western) boundary.

To the north of the site at 73 Leopold Street is a two storey, interwar apartment building with 4 units (2 at ground level, 2 at the upper level). To the south is 61 Leopold Street, a two storey, altered, Victorian house.

10 In our inspection of Leopold Street and the laneway we took particular note of the mix of Victorian and inter-war houses and also of the nature of development at the rear of the western lots backing onto the laneway. As a general rule, the dwellings on the western side of Leopold Street have a more consistent Victorian flavour (reflecting their contemporaneous development with adjoining Park St properties), while there is a more substantial cluster of inter-war dwellings on the eastern side, particularly in the southern half of the street. In relation to the stronger flavour of Victorian dwellings in the northern half of the eastern side of Leopold Street, most of them are single storey (whereas the Victorian dwellings on the western side of Leopold Street are more of a mix of single and double storey).

11 While walking along the laneway behind the 109 Leopold Street dwelling being renovated, we took note of the period front section of that dwelling being retained, together with the very long double-storey new built form which extends to within about 3 metres or so of the 109 rear boundary. From what we were told during the hearing and from our inspection, the side walls of the front section of that part of the 109 period dwelling being preserved are being retained to a depth equivalent to about one and a half rooms back from the front façade. Based on this external inspection we noted that significant heritage fabric had been retained or appropriately repaired. Accordingly we rejected the proposition that this building had been, in effect, demolished.

12 While it is difficult with a handful of dwellings in Leopold Street to know if they are modified original dwellings or new dwellings, we were told at the hearing that very few original dwellings in Leopold Street (in fact possibly only one dwelling) have been demolished and replaced. Furthermore, unlike the other parallel streets, there are no large and ugly "six pack" type circa 1960s unit developments in Leopold Street.

13 In relation to the properties lying either side of the subject land, we note that the objector to the north is Ms Pauline Hirsh who owns the closest upper level dwelling (Unit 4) at No. 73 Leopold Street (this upper dwelling has no balcony or other exterior open space, just views out of its windows). The objector to the south is Ms Julie Howell who lives with her family in the two storey terrace house at No. 61, which has a rear ground level courtyard and a rear upper level balcony. Both neighbours were represented by Ms Orrlov at the hearing.

14 Our walk of the length of Leopold Street included inspecting the rather 'in-your-face' 10 storey plus apartments and mansion on the northern end of Leopold Street, and the Goodrest mansion and interwar apartments on the southern end (we felt like a good rest ourselves by this stage). While Mr Willingham encouraged us to give the same weight to these "end of street" developments as the balance of the street, we do share his views and see the streetscape character of Leopold Street as more driven by those dwellings oriented towards Leopold Street.

15 Again the Council written submission gives a good outline as set out below.

The proposal seeks planning permission to demolish the two existing houses on the site, and to construct two, two-storey dwellings (both with basement parking areas and roof terraces).

Unit 1 is the northernmost unit, and will occupy most of the site. It comprises a large library and an open plan living/dining/kitchen area on the ground floor, with two bedrooms plus study on the first level.

Unit 2 is the smaller of the two units, and shares an entry at the ground floor with Unit 1. It comprises a living/dining/kitchen and two external courtyards at ground level, a single bedroom with a study at the first level, and a rooftop deck.

Three carparking spaces are proposed in a basement car park, which also features two storage areas. Two of the spaces are tandem. The basement car park is to have an automatic garage door and to be accessed by the rear laneway.

Two existing trees in the front setback (a birch and a prunus) are to be retained.

16 Otherwise, we note that when the "basement car park" is considered in the elevation plans TP09, it clear that this is actually a semi-excavated "basement" car park rather than a fully underground basement car park. We are also mindful of Ms Orrlov's comment during the hearing that the various elevation plans do not show the actual natural ground level as might have been expected. We took particular note of the actual ground levels on the subject land and for the neighbouring dwellings during our inspection.

17 In relation to "common areas", it was explained to us by the Applicant that it is expected that (if approved) the two dwellings will in due course be subdivided, and that such subdivision will involve the basement car park being a common area, as will a small part of the ground floor for the purposes of joint access to the ground level (when coming up from the car park) to the two new dwellings.

18 Compared to a more conventional dual occupancy, the proposal here is unusual in that one unit (Unit 1) will be quite large and spacious (eg it will have 3-4 living areas including a large library) while Unit 2 will be only one bedroom and quite modest in size. Presumably the larger unit will have the use of two of the three car parking spaces.

19 We have had regard to the Grogan Richards letter of 15 November 2005 which is an attachment to the Tim Biles expert report. This 15 November 2005 letter essentially deals with access and "turning circle" issues associated with the access to and use of the proposed three basement car parking spaces. While we give less weight to this letter given that no one from Grogan Richards was called to give evidence, and we appreciate that the relevant turning circles provided by Grogan Richards are quite tight, equally we regard these parking/access issues as being ultimately more peripheral rather than central to our overall findings on the proposal.

20 The primary zoning of the subject land is Residential 1, but it also falls within a Heritage Overlay HO6 and also within a Design and Development Overlay No. 15. The subject land is in an Area A1 as identified in the DDO 15.

21 In relation to the proposed demolition of the two existing dwellings, the only permit trigger is the Heritage Overlay.

22 With respect to the two proposed replacement buildings, a buildings and works permit is required under HO6, DDO 15 and Clause 32.01-4 makes ResCode applicable (with two rather than one replacement dwellings being proposed).

23 In relation to HO6, the "heritage place" here is the "South Yarra Precinct". There is no formal Statement of Significance for the South Yarra Precinct, which we found quite surprising and unhelpful.

24 Pursuant to the Heritage Places Inventory 2002 which is an Incorporated Document under Clause 81 of the Planning Scheme:

•

the No.65 Leopold Street existing building has a conservation grading of "D". Again, there was no statement of significance describing the building's contribution to the South Yarra Precinct or the Leopold St streetscape.

•

the No 67 Leopold Street existing building (which has had substantial alterations to its front façade) now is ungraded. This is in the context of this building having originally been graded "E" in the 1985 South Yarra Conservation Study carried out by Meredith Gould, but with this building then having its grading removed as part of the 2000 Allom Lovell heritage review. As part or this 2000 review, the previous "A to F" system of heritage grading was replaced by an "A to D" system of grading;

•

substantial sections (but not all) of Leopold Street are listed as being a "Level 2 Streetscape", bearing in mind that the streetscape designation flows from those properties given a heritage grading. Yet again, we found no satisfying statement of significance for the streetscape.

25 With respect to the ordinary Heritage Overlay provisions, the relevant objectives are as follows.

To converse 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.

26 The relevant decision guidelines at Clause 43.01-5 are set out below.

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 study.

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.

Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

Whether the proposed subdivision or consolidation will adversely affect the significance of the heritage place.

Whether the proposed subdivision or consolidation will result in development which will adversely affect the significance, character or appearance of the heritage place.

27 I note that although the proposal itself does not directly include any "subdivision" or "consolidation" aspect, these points did come up in terms of our discussion near the end of the hearing regarding potential permit conditions (hence we have included the last two decision criteria set out above).

28 The DDO15 is essentially aimed at protecting the Botanical Gardens and it was common ground at the hearing that DDO15 plays no real role in our decision.

29 Moving from the controls to the relevant planning policies, Council relied on the following State Policies - Clause 12 (Metropolitan Development), Clause 14.01 (Planning for Urban Settlement), Clause 15.01 (Heritage), Clause 15.12 (Energy Efficiency), Clause 16.02 (Medium Density Housing), Clause 18.02 (Car Parking and Public Transport Access to Development) and Clause 19.03 (Design and Built Form).

30 In relation to the local policies, on 8 December Amendment C60 to the Melbourne Planning Scheme was gazetted, thereby updating the Council Municipal Strategic Statement ("MSS"). The Council written submission states at the end of page 4 that:

(i)

the preservation of heritage places and precincts;

(ii)

encouraging new development which adds positively to the overall character of the city; and

(iii)

preserving the City's "distinct local areas" (including South Yarra) and their valued, individual characteristics.

31 The Council written submission made the following general comments on local policies.

The preservation of heritage precincts is said to be "vital to the continuing character of Melbourne (Clause 21.02-3, page 6 of 8). The distinctive character of heritage precincts and places is identified as "a critical element in the diversity of the City's cultural heritage and its collective identity" (clause 21.05-1, page 4 of 13).

Clause 21.08 of the new MSS identifies a number of "Local Areas", each with particular "Local Implementation Strategies". The subject land is located within the "St Kilda Road and South Yarra" local area. These strategies relevant to this local area will be referred to in more detail later in these submissions.

The "Local Implementation Strategies" in the new MSS must be read with regard to the "Definitions and Interpretations contained in Clause 21.01. Of particular significance is the following definition:

"Protecting, Ensuring - Strongest policy to prevent or ensure change".

It follows that a policy in the MSS which calls for the protection of a heritage precinct, is a policy which is employing the strongest language available in MSS to achieve that result.

32 We have had regard to the various defined terms in Clause 21.01.

33 Clause 21.02 (Municipal profile) includes a section on "Enduring assets" in Clause 21.02-3. The text here includes the following paragraph.

While mostly known for Victorian and Edwardian streetscapes; many examples of outstanding interwar, post war and contemporary architecture exist in the municipality. The City of Melbourne contains many precincts, intact streetscapes and buildings which are recognised for their cultural heritage significance. Their preservation is vital to the continuing character of Melbourne.

34 The next heading is Clause 21.02-3 is "Distinct local areas" with the following commentary.

Parkville, Carlton, East Melbourne, South Yarra, North and West Melbourne and Kensington developed as distinct neighbourhoods, reflecting the timing and size of subdivision, the nature of their predominant uses, the socio economic status of the population and the topography of the land. Preserving the specific historical layout, character and ambience of these historic neighbourhoods is essential to the City's ongoing diversity and identity.

35 Turning to Clause 21.03 (Vision and Approach), the first section has the heading "Vision" and the relevant sections read as follows.

Melbourne to be a thriving and sustainable City that simultaneously pursues economic prosperity, social equity and environmental quality.

The vision for Melbourne will be achieved by a City that:

•

allows for increased residential densities and provides for diverse housing needs in a way that does not compromise the values characteristics of areas, including the City's Identified Heritage Places and Precincts;

The key to achieving Council's vision is the recognition that different

parts of the municipality have to be managed differently and that development potential varies markedly. There is a mixture of activities and built form throughout the City and understanding the local context of a proposal is the key to understanding whether or not a proposal is acceptable.

36 At the end of Clause 21.03 there is the heading "Increase residential population and managing housing change" and the following statement.

The City of Melbourne has experienced considerable residential growth, and the Metropolitan Strategy, Melbourne 2030, identifies that this trend will continue. Growth in dwelling and population numbers that preserves valued characteristics of Local Areas and ads to the liveability, sustainability and prosperity of the City is supported.

37 Clause 21.04 deals with Land Use. At page 3 under the heading "Housing opportunities" is the following text.

The City of Melbourne offers a considerable range of opportunities for new housing development. The degree of opportunity varies generally from area to area dependent on existing local characteristics, particularly the built form and character of areas. Within the municipality, some areas can absorb higher density housing without threat to their existing valued character, while in others (eg intact heritage streetscapes) housing development must be restricted to sensitive infill.

There are some stable areas which will experience minimal change, such as South Yarra, parts of Parkville, Carlton, East Melbourne and Jolimont. Other parts of Carlton and West Melbourne will accommodate increased population growth to varying degrees.

38 On page 5 of Clause 21.04 there is a map entitled "Figure 5: Housing Opportunities". In relation to South Yarra, there is a notation on this section of the map stating - "In stable areas such as South Yarra, little growth is envisaged (21.04-1)".

39 Clause 21.05 deals with City Structure and Built Form. At the top of page 3 is Table 4 - Built Form Amenity Principles. The left column has the various "built form characters" and the right hand column sets out the "amenity principles - built form".

40 Of relevance here is the first entry of "Areas where the existing built form character is to be preserved", with the accompanying column entry to the right setting out six bullet points of "amenity principles". These principles are:

•

Ensure that the height and bulk of new buildings, as well as new structures, including signage, respond to site context including the prevailing neighbourhood and heritage character.

•

Ensure that development does not undermine the significance of any identified Heritage Place of Precinct.

•

Ensure that neighbouring properties are not adversely affected by the scale and bulk of development.

•

Ensure buildings and designed and located so that levels of sunlight and daylight available to neighbouring properties are not unreasonably reduced.

•

Ensure buildings are designed to minimise overlooking of adjoining residential properties.

•

Ensure a high level of on-site amenity for future occupants of new residential developments.

41 There is then Clause 21.05-1 (Heritage), with the following heading and text at the bottom of page 3 and top of page 4.

Heritage features, buildings and streetscapes are a significant part of Melbourne's attraction, distinguishing it from other cities in Australia and internationally. Much of Melbourne's character is defined by its historic street pattern, boulevards and parks, the collection of buildings within heritage precincts, as well as individually significant buildings identified and protected for their high cultural heritage significance value. Sensitivity to heritage buildings and places, local landmarks, landscape, views and character is an important component of development in context.

The heritage character of particular Local Areas is conditioned by the timing and pattern of subdivision, predominant uses, topography and original socio-economic structure of the population. This has created unique neighbourhoods which are identified in the municipality's Heritage Overlays. The distinctive character of heritage precincts and places is a critical element in the diversity of the City's cultural heritage and its collective identity. Preservation of these distinctive neighbourhoods is achieved through the Local Areas Implementation Strategies as they apply to the heritage precincts.

42 There follows directly afterwards the heading "Objectives and strategies". We have not repeated them as they largely deal with similar themes to the Table 4 Built Form Amenity Principles already set out above.

43 Clause 21.08 deals with Local Areas, with the relevant one being "St Kilda Road and South Yarra" found at Clause 21.08-4. In the opening paragraphs of Clause 21.08-4 it is stated that "...South Yarra has many important heritage assets including buildings, streetscapes, parklands and institutions hat are worthy of protection. The existing residential area of South Yarra is well established and has limited capacity for growth...".

44 Further down page 20 under the sub-heading of "Vision for St Kilda Road and South Yarra", there is the following paragraph - "As South Yarra is an area of stability with minimal potential for new development, residential amenity has been maintained and the area's historic character and features have been preserved". While Mr Townshend put to us that the wording of this paragraph is such that it can be read as no more than an acknowledgement of the status quo, having regard to the fact that this paragraph lies under a heading of "Vision for St Kilda Road and South Yarra", we agree the paragraph's drafting could be better but view the paragraph as having implications for both the present and the future.

45 At page 21 there is a map with the heading "Figure 15: Local Area Map - St Kilda Road and South Yarra". The relevant notation for the "Area 1" which the subject land falls within is "Ensure residential development maintains the low scale nature of heritage streetscapes and buildings". The bottom of page 22 has the sub-heading "Heritage on St Kilda Road and in South Yarra" and then the following indented paragraphs.

Protect heritage places, including buildings, structures, streetscapes, historic subdivision patterns, street layout, landscape features and indigenous sites in St Kilda Road and South Yarra.

Ensure that development is sympathetic to the heritage values of adjacent heritage areas and places.

46 We then come to Clause 22.05 (Heritage Places Outside the Capital City Zone), which we consider to be the critical local policy for this case. We will not repeat the "Policy Basis" or "Objectives" text since they follow similar themes as already set out above. However the following provisions on pages 1 and 2 are worth repeating.

The following matters will be taken into account when considering planning applications for Heritage Places within the Heritage Overlay.

Performance Standards for Assessing Planning Applications

The performance standards outline the criteria by which the heritage aspects of planning applications will be assessed. Definitions of words used in these performance standards and an explanation of building and streetscape gradings are included at the end of this policy.

In considering applications under the Heritage Overlay, regard should be given to the buildings listed in the individual conservations studies and their significance as described by their individual Building Identification Sheets. The Building Identification Sheet includes information on the age, style, notable features, integrity and condition of the building.

Demolishing or removing original parts of buildings, as well as complete buildings, will not normally be permitted in the case of "A and "B", the front part of "C" and many "D" graded buildings. The front part of a building is generally considered to be the front two rooms in depth.

Before deciding on an application for demolition of a graded building the responsible authority will consider as appropriate:

•

The degree of its significance.

•

The character and appearance of the building or works and its contribution to the architectural, social and historic character and appearance of the streetscape and the area.

•

Whether the demolition or removal of any part of the building contributes to the long-term conservation of the significant fabric of the building.

•

Whether the demolition or removal is justified for the development of land or the alteration of, or addition to, a building.

A demolition permit should not be granted until the proposed replacement building or works have been approved.

47 At the bottom of page 2 and over page 3 is the text dealing with "Designing New Buildings and Works or Alterations to Existing Buildings". Whilst this text is to lengthy to repeat, suffice to say that the first section has a sub-heading of "Form" and states that - "The external shape of a new building, and of an addition to an existing building, should be respectful in a Level 1 or 2 streetscape, or interpretive in a Level 3 landscape". We have taken into account the definition of "respectful" versus "interpretative" on the following page.

48 At page 5 there is the following definition of a "D Graded" building.

"D" buildings are representative of the historical, scientific, architectural or social development of the local area. They are often reasonably intact representatives of particular periods, styles or building types. In many instances alterations will be reversible. They may also be altered examples which stand within a group of similar period, style or type or a street which retains much of its original character. Where they stand in a row or street, the collective group will provide a setting which reinforces the value of the individual buildings.

49 At the top of page 6 are the following relevant streetscape definitions.

Level 2 streetscapes are of significance either because they still retain the predominant character and scale of a similar period or style, or because they contain individually significant buildings.

Level 3 streetscapes may contain significant buildings, but they will be from diverse periods or styles, and of low individual significance or integrity.

50 Turning to the 2002 Heritage Places Inventory, it sets out for individual properties in Leopold Street at pages 115 and 116 the relevant heritage gradings per building and what level of "streetscape" applies to each heritage graded property. All of the graded buildings in Leopold Street are shown as "C" or "D", with a large majority of graded buildings being on the west side of the street (ie odd numbers). All graded dwellings on the western side are shown as having a Level 2 Streetscape. The relatively modest number of graded buildings on the eastern side (ie even numbers) follow suit in having a mix of "C" and "D" gradings, but differ in that while 84-102, 106 and 110 are ranked as a "Level 2 Streetscape", No. 48 is ranked as a "Level 3 Streetscape". This "west" versus "east" contrast reflects the common evidence during the hearing that the development of the eastern side of the street "stalled" after the property crash in the 1890s.

51 It follows from the information in the preceding paragraph that:

•

some sections of Leopold Street which do not have any heritage graded buildings have no streetscape grading (this is more relevant to the eastern side of Leopold Street);

•

at least on the eastern side, there is more than one streetscape grading; and;

•

accordingly, we agree with Mr Townshend that one cannot make a blanket statement that Leopold Street is a "Level 2 Streetscape" (noting however that there is only one graded property that is ranked as a Level 3 rather than a Level 2 Streetscape, being No 48/50).

52 We have considered the Building Identification Forms for 61, 65 and 67 Leopold Street.

53 We were provided with a copy of various memorandums by the Council internal heritage consultant, Mr Bryce Raworth (who did not object to the proposed demolition of either 65 or 67 Leopold Street). The memorandum of 9 June 2004 is the key one, with the most relevant paragraphs being the following.

The subject site(s) sit within a very mixed streetscape. 67 Leopold Street was formerly graded E and is now ungraded. 65 Leopold Street is graded D. The building to the south is ungraded, and the building to the north is graded D and probably sits at the lower end of the spectrum of D grade buildings.

Demolition of 67 Leopold Street is not an issue, subject to an appropriate design. Recognising this, there seems little imperative for the retention of a lowly graded single storey building (No.65 Leopold Street) between ungraded buildings in a very mixed streetscape of predominantly two storey scale. On this basis I feel that the proposed demolition of both houses can be seen to be acceptable subject to an appropriate design.

•

in relation to the first paragraph quoted above, Mr Raworth got it wrong in that No 61 to the south is a graded building (ie D) and No 73 to the north is not graded. Taking this paragraph in isolation, be suspect that Mr Raworth used the wrong terms but was still focusing on No. 61 in making his "lower end of the spectrum" comment in the final sentence of this paragraph; but

•

there is an error of more consequence in the second paragraph quoted above, in that Mr Raworth incorrectly refers to No 65 as being sandwiched by non-graded dwellings (when in fact the adjacent No. 61 dwelling is graded D).

•

there was also criticism of the fact that Mr Raworth failed to acknowledge in these two paragraphs the "Level 2 streetscape" that applies to No.61 and No.65 Leopold Street.

55 We were provided with copies of various previous Tribunal decisions by some of the parties. To avoid duplication, we shall not list these cases individually but confirm we have taken same into account.

56 With the key issue in this appeal being "heritage", it was not surprising that we heard from four heritage experts (we have listed them in the order they appeared before us). Before launching into our discussion of our findings, it seems worth summarising the main features of the respective evidence of these heritage experts. We have included Mr Pascoe here, but noting his expert expertise is still relevant but of a somewhat different flavour (ie as an academic historian).

Supports this section of Leopold Street being a "Level 2 Streetscape"

Conceded that No. 67 is "not a contributory building"

57 We turn now to dealing with the merits of this appeal. We shall not repeat the submissions of the parties (copies of the various written submissions are retained on the Tribunal file) but concentrate on what we see as the key issues.

58 Before setting out our actual findings, it is appropriate that we first deal with some preliminary issues. In relation to the proposed demolition of the two dwellings, we also acknowledge that the only permit trigger here is the Heritage Overlay and hence our discussion of the "demolition" aspects of the appeal focuses simply on the heritage issues (consistent with previous cases such as Reis v Port Phillip CC (VCAT 2000/23643).

Our Consideration of Heritage Gradings of Relevant Dwellings

59 There was debate at many stages during the hearing regarding the heritage qualities of the No. 61, 65 and 67 dwellings, and we see our role as including reaching our own conclusions on this debate. However to remove any doubt:

•

in setting out below our findings regarding the heritage qualities of these three dwellings, we are not seeking to re-visit the grading of any of these dwellings and/or effectively re-grade them;

•

rather, we are indicating the heritage weight we are giving to each building, in terms of our own assessment process and our findings about the heritage significance of each building. In this regard, we rely on the relevant statements by Deputy President Bruce in Reis v Port Phillip CC [2001] VCAT 489 particularly at paragraph 150. In paragraph 150 Ms Bruce confirms that in a situation of conflicting evidence the Tribunal can make its own finding of fact about the heritage significance of any building but needs to "beware of "rewriting" an incorporated document".

Should No.65 Leopold Street dwelling be given heritage weight as a "D" graded building ?

60 It was submitted that Leopold St.contributes to the wider South Yarra heritage area and, in turn, that the two buildings in question contribute to the Leopold St Streetscape (and to some extent, gain significance from it). We found that Leopold St. had significance as a distinct example of the 1880's development 'boom' in the area characterised by the subdivision of large holdings. As such it represents a distinct phase of building between 1880 and the truncation of development by the 'bust' of the 1890's. The street's significance is enhanced by the survival of all but one of the dwellings of this period (not considering the large houses facing Domain and Toorak Rds.). The street's significance is also enhanced by its social history which reflects its occupation by identifiable stratas of society which have progressively contributed to the cultural identity of South Yarra.

61 Having considered the relevant submissions and expert evidence and having done an inspection of the No.65 Leopold Street dwelling, and having regard to the definition of "D grading" in Clause 22.05, our finding here is that we see no reason to deviate from this "D" grading. We rely here on the evidence of Messrs Beeston and Lewis and do not accept the evidence of Mr Willingham. Although it is clearly true that there are many similar buildings throughout Melbourne our focus in this case relates to the building's contribution to the streetscape and South Yarra Precinct. We also found it difficult to sustain Mr Willingham's suggestion that the degree of difficulty and cost in reversing the alterations to the frontage and façade of No.65 significantly reduced its heritage value. Further his observation that the building's interior was "tired and worn out" can carry little weight given the scope of HO6 does not extend to internal controls; nor did Mr Willingham appear to be suggesting the building was structurally unsound.

62 We consider it important that the façade of No.65 retains many of its original Victorian decorative features. It is clearly identifiable as a reasonably intact Victorian building, retaining its original character. Despite the fact of the alteration of the front gable window, we agree with Mr Lewis that this could be removed and an appropriate sash window with brickwork reinstated in a fairly straightforward manner. Regardless of the debate whether No. 61 provides a link with the other Victorian dwellings further south on this side of Leopold Street, we consider the substantial degree of intactness of the façade of No.65 means that its "D" grading can be justified in terms of its architectural contribution to Leopold St.

Should No. 67 Leopold Street dwelling be given heritage weight as a "D" graded building?

63 It is common ground that the No. 67 dwelling is ungraded. This was supported by Mr Willingham but contested by Messrs Beeston and Lewis, who gave evidence that the No. 67 dwelling still meets the criteria for "D" grading. On the other hand, it was noted that Mr Briggs did not seek to justify this dwelling being "D" graded.

64 We have inspected this dwelling, taking particular note of the alterations to its façade. In particular, virtually all of the Victorian decorative features of this dwelling have been removed from its facade, and it seems fair to say that its only remaining Victorian feature is its basic dimensions as a single fronted Victorian dwelling. Its façade is now very bare and if anything has a vaguely art deco appearance.

65 Bearing in mind that this dwelling has never received a "D" grading despite being considered twice (ie by Meredith Gould in 1985 and by Allom Lovell in recent years), we consider that there would need to be a strong case put before us for it to be appropriate for us to take a different view. For example, the situation would be different if there was clear evidence of a typing error in the Building Information Sheet or if the façade had been sympathetically restored since the last assessment was done; or, indeed, if some historical or other cultural significance was found. However we cannot see any such strong case here. Any case for the building's significance seems to rely solely on its existence as another remnant of the historical subdivision of the street or as part of a 'pair' with 65 Leopold St. Although we accept that these matters did have relevance in this case, we were not persuaded that 65 Leopold St. demonstrated them to a degree which would encourage us to, in effect, upgrade it. Accordingly, we:

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rely on the evidence of Mr Willingham and the position taken by Mr Briggs;

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do not adopt the evidence on this point from Messrs Beeston and Lewis;

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do not see that the No. 67 dwelling has sufficient remaining heritage qualities to be given the same weight as a "D" grading, having regard to the definition of same; and

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for the above reasons accept the ungraded status of the No. 67 dwelling.

Should No. 61 Leopold Street dwelling be given heritage weight as a "D" graded building?

66 One of the issues that arose more spontaneously during the course of the hearing was the heritage qualities of the No. 61 dwelling and whether that dwelling should be given the weight of a "D" graded building. It was common ground that the building was originally a double storey Victorian dwelling, with a previous owner creating the front garage entry point circa 20 years ago (we were shown a photo of this dwelling with the garage installed but before any makeover). The current owner then gave the balance of the façade a "makeover" in the 1990s, with the practical result that the façade now has a vaguely "southern American" (in Mr Willingham's terms) look about it. On the other hand, there are some "period" features of the façade that still remain, notably the vertical windows and the veranda on one side of the front of the building.

67 Mr Willingham did not support the "D" grading of this dwelling, whereas Mr Beeston and Mr Lewis in the course of their evidence did offer such support. During our inspection we took close note of the makeover of the façade of this building.

68 It was common ground by the end of the hearing that if one reviews the current Building Identification Sheet for No. 61, many of the "description/notable features" listed have in fact been removed and/or changed. Hence we accept Mr Townshend's point that the evidence indicates that even Allom Lovell in recent years did not take into account the makeover of this building.

69 On there other hand, it is significant that the definition of "D" graded buildings does anticipate a role for altered buildings, with the key text from this definition stating as follows.

"They may also be altered examples which stand within a group of similar period, style or type or a street which retains much of its original character. Where they stand in a row or street, the collective group will provide a setting which reinforces the value of the individual buildings".

70 On balance, we accept that the No. 61 comes within the criteria set out above and therefore we accept it should be given weight as a "D" graded building. While we certainly do not condone this type of makeover and see it as an unfortunate result, the fact remains that No. 61 sits alongside two other double storey Victorian terraces houses to the south, with a significant number of Victorian buildings lying further south again on this side of Leopold Street. When this heritage context to the south is factored in, we see this as getting the No. 61 building "over the line" to being given weight as a "D" grading. We also see it as important that while we expect many people would regard the makeover as historically distasteful and although the makeover did significantly alter the façade, No. 61's general scale and its period references - vertical windows and a front veranda - remain.

71 Another issue which surfaced from time to time during the hearing was the "streetscape ranking" of Leopold Street. It was common ground by the end of the hearing that it is incorrect to simply describe Leopold Street as having a "Level 2 Streetscape", when significant sections of the street (notably on the eastern side in the southern half) are ungraded, plus the Heritage Places Inventory 2002 shows No. 48/50 as a "Level 3 Streetscape". However it is also true that in relation to all graded Leopold Street dwellings, all but one are graded Level 2 Streetscape and all of the graded buildings on the western side of the street are graded Level 2 Streetscape. This is not surprising given the history of the development of Victorian dwellings on the western side having proceeded substantially (in harness with those in east Park St.) further by the time of the property crash in the 1890s.

72 If one concentrates just on the western side of Leopold Street, and bearing in mind that the definition of "Level 2 Streetscape" does not require every relevant dwelling to be graded but takes a more holistic approach, we consider that using this broader approach it is fair to say that the western side of Leopold Street comes within the definition of Level 2 Streetscape. However we recognise that the extent to which the western side of Leopold Street has a Victorian flavour is not uniform along the length of the street (with the 1890s MMBW plan being a useful guide) but:

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is most consistent in the northern half of the western side of the street;

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has breaks where development had not occurred by the 1890s, being 21-23, 43 and 73-79 Leopold Street; and

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the degree of Victorian flavour mid way along the street on the western side is (apart from a more recent 73-79 dwelling) further reduced somewhat by the makeover to the No. 61 dwelling and by the removal of the Victorian features from the façade of the No. 67 dwelling.

73 In summary then, we see the main point here as being that one cannot just generalise about the streetscape characteristics of Leopold Street, but rather it is helpful to distinguish between east and west, and to take into account the breaks in the sequence of intact Victorian dwellings. This approach is consistent with the view that part of the streetscape's significance lies in its interest as a very intact heritage fabric highlighting the cultural aspects of the subdivision (particularly the 1884 Leopold St/ Park St subdivision) of the area in the 1880's 'boom' and the subsequent truncation of development with the 'bust' of the 1890's.

Issue of Demolishing "D" Graded Buildings in a Level 2 Streetscape

74 One of the points put to us in the various anti-demolition submissions was that the demolition of "D" graded buildings is not normally allowed in a Level 2 Streetscape.

75 For clarity, we accept Mr Townshend's point that this submission is not actually reflected in the current local policies, notably Clause 22.05. On the other hand, as fairly conceded by Mr Townshend, we also accept that (as a matter of "good heritage practice") there is a common approach of applying a greater level of caution to any proposed demolition of a "D" graded building in a Level 2 Streetscape compared to a Level 3 Streetscape. Put another way, we accept that "the bar for demolition is significantly raised" in a Level 2 Streetscape - see for example paragraphs 53.11 and 57 in the case of Sisters of Mercy Property Association v Melbourne CC (VCAT 2001/51476), where Member O'Leary refused permission for the demolition of the contentious "D" graded building in a Level 2 Streetscape.

BASIS OF DECISION - DEMOLITION OF NO. 67 LEOPOLD STREET

76 We have already indicated above that, in terms of the heritage weight we are giving the No. 67 Leopold Street dwelling, we accept its non-graded status and its lower degree of significance

77 We refer to our matrix above, in terms of which heritage experts opposed the demolition of No. 67, despite its non-grading. It is obvious that mounting a case against the demolition of the No. 67 dwelling is a much harder exercise when this dwelling is not graded, although it is still open to us to find against demolition if we considered this appropriate in light of the relevant heritage policies and Overlay decision criteria - in particular, its contribution to the architectural, social and historic character of the streetscape or precinct. However it is fair to say that, for an ungraded building, there would need to be a very persuasive case put before us.

78 There are several particular points we wish to make here.

79 First, cultural or social significance. We accept the cultural heritage evidence of Mr Pascoe in relation to the contribution to the social character of Leopold St. of interesting residents (including a range of individuals of wider social interest). This character has given the street a heritage dimension beyond its architecture. However, in respect to No. 67 this is not a situation where for example a major historical figure (eg Sir John Monash) lived there. Indeed, there was no evidence before us that either No.65 or No. 67 may have any distinctive cultural heritage history in terms of the persons who have lived there from time to time. While we accept the whole street may have some cultural heritage significance, we are satisfied that the contribution of No. 67 to that significance is both marginal and degraded. Accordingly, we do not see any compelling reasons in this regard to specifically decide against the demolition of No. 67.

80 Second, the condition of the building. In the case of No. 67 we find that the building is severely compromised in both integrity and intactness - further reducing its significance. Here we see integrity in respect to a heritage place as a descriptor of the 'veracity' of the place as an example of the heritage from which it purports to draw its significance. For example, a place proposed as important on account of its special architectural details may be said to lack integrity if those features are destroyed or obliterated. It may be said to have low integrity if some of those features are altered. In the same case but where significance related to, say, an historical association the place may retain its integrity despite the changes to fabric. Intactness, on the other hand, relates to the 'wholeness' of (or lack of damage to) the place. Depending on the grounds for significance, this can relate to a reference point of original construction or may include original construction with progressive accretions or alterations. Again, another assessment of significance of the place can alter the assessment given identical physical evidence.

81 Although both integrity and intactness may be recovered through appropriate restoration or reconstruction, on the other hand conjectural (i.e. guesswork without any clear reliable evidence from the remaining fabric and/or documents) reconstruction can falsify the heritage fabric. Nonetheless we can see in some circumstances where introduction of some minor conjectural elements can still be worthwhile and produce a beneficial heritage result (for example, to reinstate parts of a building which is in a row of intact period buildings where the streetscape has a very high value). In the case of No. 67 we were presented with insufficient evidence to find that the major reconstruction required could go beyond the conjectural to produce a good heritage outcome.

82 Third, cost. Mr Lewis submitted his opinion that the cost of reinstating the façade and frontage details would not be excessive.

83 The Planning and Environment Act allows us to take account of subjective financial or economic factors and to allow demolition (or alteration) where "fair, orderly, economic and sustainable use" is threatened. Sometimes this has been taken to mean:

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there is unreasonable hardship on the current owner ('fair');

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the significance of the building does not warrant undue expenditure ('orderly, economic, and sustainable').

84 Hardship is subjective; however it would seem necessary for an owner to demonstrate:

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loss, especially financial loss;

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the anticipated quantum of the financial loss, as reasonably verified by an appropriate consultant;

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the subjective effect of the loss;

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avoidability of the loss - ie. examination of prudent or reasonable options which may mitigate the loss.

85 It is not sufficient to demonstrate that there has been a loss of expectations. Again, it is not sufficient to simply demonstrate a cost of repairs or maintenance. Similarly, in respect to 'orderly, economic and sustainable use' the effect of demolition must be examined with regard to the overall planning impact and direct evidence regarding the heritage place.

86 In the absence of other evidence on these matters, we accept Mr. Lewis's opinion; however, in the light of the level of significance of the building including its lack of integrity and intactness, it is not a determining matter.

87 Fourth, contribution to streetscape. The reduction in the intactness and integrity of No. 67 affects not only its individual significance but also its contribution to the streetscape. If No. 67 were intact we consider that it would make a contribution to the Level 2 Streetscape (particularly the western side) as a part of the 1884 subdivision (with its historical associations) and as an integral architectural feature of the street. However in the light of the building's reduced significance we do not see this "Level 2 Streetscape" factor as significantly changing the overall position.

88 In summary, we do not accept that the necessary "very persuasive case" has been made out and we find that (subject to the Clause 22.05 condition precedent of needing planning approval for a replacement dwelling) there is no planning obstacle to the No. 67 dwelling being demolished. We accept that the case for demolishing the No. 67 dwelling satisfies the relevant heritage policies and the requirements of the Heritage Overlay as we have set out above.

BASIS OF DECISION - DEMOLITION OF NO.65 LEOPOLD STREET

89 We have already indicated above that, in terms of the heritage weight we give to the No. 65 dwelling, we do not deviate from its "D" grading. Other issues outlined above in respect to No. 67 (above) are relevant (albeit determined differently) and are not re-iterated here.

90 Having considered the planning controls and policies, the submissions and evidence and having inspected the No 65 dwelling, our finding is that we are not satisfied that the proposed demolition of the front section of No 65 meets the requirements of the relevant policies and Heritage Overlay decision criteria. Hence we have made orders rejecting this aspect of the proposal.

91 In making this finding, we rely on the following factors.

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the Level 2 Streetscape of the western side of Leopold Street;

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this is not a situation where we have been presented with evidence that the front section of No. 65 is structurally unsound;

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the relatively high degree of intactness of the façade of No. 65, in terms of the heritage significance of the dwelling itself;

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Clause 22.05 in the local policies indicates that demolition will not normally be permitted in the case of "many "D" graded buildings". The choice of the word "many" (instead of say "some") indicates to us on the one hand a clear policy discretion for us to potentially approve the demolition of No. 65 (which we accept has heritage weight as a "D" graded building), but on the other hand the need for a rigorous approach before approving demolition;

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the very strong level of policy support for the protection of heritage assets in the City of Melbourne. We have gone to some trouble to set out above the various policy statements in the Melbourne Planning Scheme dealing with heritage issues. This policy is essentially "one way traffic" in terms of a clear policy intent to give a high priority to preserving the important heritage character and features of the relevant areas of the municipality. Indeed, we would be surprised if any other metropolitan planning scheme is so detailed and prescriptive in dealing with heritage issues. When this situation is combined with South Yarra being generally nominated as an area where minimal future change is expected, this "sets the bar quite high" in terms of the case an Applicant needs to make out to still justify the demolition of the front section of a dwelling with a relatively intact façade which we accept has the weight of a "D" grading which lies in a Level 2 Streetscape;

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although we accept that under the Heritage Overlay a central consideration is the contribution of No 65 to the heritage place (which is the whole of the HO6 South Yarra area), the relevant local policies give major policy weight to considering development applications from a local perspective. Accordingly, we are satisfied that there is a valid policy basis for assessing the contribution of No. 65 to not only South Yarra generally but also Leopold Street more specifically. In this regard, we are satisfied that with its relatively intact façade, the No. 65 dwelling does make a real contribution to the heritage significance of both the HO6 place and more specifically to Leopold Street;

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the heart of Mr Townshend's case in favour of the demolition of No. 65 was that this mid section of the western side of Leopold Street is the "weak link" in the collection of Victorian buildings on this side of the street and that accordingly (particularly if No 61 is seen as being fatally made-over) No 65 sits in a more isolated section of the street from a heritage perspective. Following this line of thinking, with No. 65 not being part of a row but having a more isolated location, the case for demolition may become more acceptable. We accept this is a legitimate argument, but ultimately find it unpersuasive for two main reasons. First, as we have indicated above, we still see No. 61 as being worthy of "D" grading, which gives No 65 a direct link with several graded buildings further to the south on this side of the street. Second, we accept Mr Brigg's basic argument that No 65 constitutes an important "bridge" or "stepping stone" between the Victorian houses to the north and south on this side of the street. Particularly, with single storey Victorian terrace houses being less common on the western side of Leopold Street compared to the eastern, we see No. 65 as having a significant role in the pattern/history of development in Leopold Street;

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we have carefully considered the four bullet point decision criteria set out under the heading "Demolition" in Clause 22.05. We consider our findings set out above already deal with the first two decision criteria of the degree of significance of the buildings and their contribution to the streetscape and the area. The third decision criteria does not seem relevant here. In relation to the fourth decision criteria of whether demolition is justified "for the development of land", this is not a situation where the proposed replacement building is a form of development that will have major countervailing public benefits identified in the Planning Scheme. The proposal here is simply replacing two dwellings with two new dwellings.

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in relation to Mr Townshend's invitation for us to give weight to the quality of the design of the proposed new dwellings, we are unsure if the word "development" in the fourth bullet point allows us to do this, but in any case we see this invitation as only carrying weight if the proposed replacement dwellings positively contribute to the heritage area, effectively outweighing the loss of the significant building from a heritage perspective. Here, for instance, it may have been argued that the new building was consistent with the architectural, historical or social significance of the precinct and contributed to it. In this case, we are satisfied that the replacement building is of architectural merit and an appropriate infill were Nos. 65 and 67 vacant. However we do not agree that a general policy encouraging high quality architecture, alone, is sufficient in the question of demolition of a significant building.

BASIS OF DECISION - PROPOSED REPLACEMENT DWELLINGS

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we have in principle approved the demolition of the No. 67 dwelling in its entirety (but noting here that Clause 22.05 only allows a demolition permit to be granted when a proposed replacement building or works have been approved);

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bearing in mind that the Planning Scheme provides that the demolition controls for a "D" graded building only apply to the front section of the building, we have rejected the demolition of the front section of the No. 65 dwelling but have no issue with the demolition of the rear section of No. 65 (subject to the same proviso re the need for approval for any replacement dwelling before a demolition permit can issue);

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the proposed replacement building is a contemporary building that presents to the street as two dwellings, with basement car parking off the laneway. However what is unusual is that the proposed Unit 1 (which occupies the whole of the north side and the rear of the south side) is much larger than the proposed Unit 2 (which occupies only the front section on the south side). The explanation given for this was that the current owners want a spacious unit for their own use (ie Unit 1) whereas Unit 2 would probably be rented out. We were intrigued that Unit 2 also seems to roughly correspond with the front two rooms of the existing 65 Leopold Street dwelling, but Mr Townshend did not refer to this and ultimately it makes no difference to our decision whether this is intentional or a coincidence.

93 While it was also open to us to simply refuse the whole proposal based on our refusal to allow the demolition of the front section of No. 65, as a matter of fairness, we see the best way forward is for the Applicant to have the opportunity to (if it wishes to) prepare a revised design that incorporates the front section of the No.65 dwelling, with a view to having a further hearing to give all parties a chance to put further submissions to us. Some factors which have encouraged us to take this approach are:

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our expectation that the overall size of the combined site should be large enough per se for two units to be viable even if the front section of the No.65 dwelling is retained. However this will probably require some of the space currently allocated to Unit 1 being transferred to Unit 2. While we would be more concerned about this if the existing plans had only marginal living space available for Unit 2, these existing plans in fact show Unit 1 as having the benefit of a very large front library, a dining area, a rear living area, a ground level deck, an upper level study and a 3rd level roof deck. Accordingly, there seems plenty of scope for this transfer of space without starving Unit 1 of living space;

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the fact that Unit 2 as currently proposed roughly corresponds with that part of the No.65 dwelling to be preserved, which should make the re-design process somewhat easier;

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our view that, broad brush, the proposed new building has considerable merit and is a good starting point for a re-design exercise. We give weight to much of the evidence of Mr Biles in relation to the proposed new dwelling.

94 While we generally reserve our right to judge (and approve or reject) any new design on its merits, the following comments are offered in a spirit of assisting this re-design process:

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in relation to how the new building presents to Leopold Street, despite some initial misgivings, we warmed to the proposed front façade treatment. We accept that it is suitably contemporary, simple, appropriately sited relative to the neighbouring dwellings and picks up the design cue from the Victorian buildings of having windows and doors set back from the façade that provide a beneficial recessing effect. However we believe the project architect must now review this proposed façade treatment in light of the need to retain the front section of the No.65 building and, noting the care already taken in designing an appropriate 'transitional' building, it may be that some revision of the No. 67 façade flows from this. In either case we seek details of façade finishes and their relevance to the existing streetscape;

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in relation to precisely how much of the front section of the No.65 dwelling must be retained, on the one hand the policy guide is to retain the front two rooms in depth. On the other hand, as we understand it, the No. 109 Leopold Street redevelopment only involves about the front one and half rooms in depth being retained. We consider that some flexibility is appropriate here, and note that at the hearing the objectors did not take a "hard and fast" position on this issue either. Accordingly, we see an appropriate range as being determined by sight lines from the east side of Leopold St at a nominal eye level of 1.8m. or a minimum of the front 6 to 8 metres of depth back from the front wall as being that part of the No.65 dwelling that should be preserved;

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we regard the design concessions recommended by Mr Biles in his evidence to protect the views out from the living room of the closest upper unit of the No.73 building as essential. Having inspected this upper unit, which does not have any upper deck or balcony, we see that a high priority needs to be given to minimising any additional blocking of the viewline out of the windows of this upper living room (notably in relation to the living room window closest to the laneway, which has a viewline which includes the attractive large tree at the rear of No.61);

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one of the most contentious aspects of the proposed new dwelling was the proposed top level roof deck, which was criticised by Ms Orrlov as being an unreasonable indulgence for the Unit 1 occupants. While we can see her point, equally we can see that privacy concerns can probably be dealt with by appropriate screening. This leaves as the key issue to what extent the proposed roof deck (including its screening treatment) constitutes unreasonable visual bulk when viewed by its neighbours (notably from the No 61 upper rear balcony) or from Leopold Street. In relation to the view of the proposed roof deck from Leopold Street, the situation is now changed with the front section of the No.65 dwelling to be preserved, which in turn may make the roof deck visible from Leopold Street in a way it would not otherwise have been. If any revised design wishes to persist with the proposed roof deck, we would want to see "line of sight" plans which demonstrate the extent of any viewlines of the roof deck from the neighbouring back yards and from the footpath on the opposite side of Leopold Street;

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another hotly debated feature of the proposed new building is the fact that it extends right to the rear of the subject land. Ms Orrlov and Mr Perry put to us that this is out of character with the pattern of development between Leopold Street and the laneway, and that a more respectful approach would have been to retain some open space at the rear of the subject land as per the neighbouring properties. Mr Townshend in response put to us that the site could reasonably accommodate development to the rear boundary and that this would have no unacceptable amenity impacts on the neighbours. During our inspection we walked the length of the laneway. Whereas the northern end of the laneway has a more open feel (although even then the new double storey rear extension at No. 109 extends to within about 3 metres of the rear boundary), we accept that the middle section (which includes the subject land) and some of the southern section of the laneway has a more "built up" character. This more built up character takes the form of a number of properties having very high rear fences and/or upper decks extending to the rear boundaries. In this context, whereas we would have more concerns if the appeal site was further north, we consider this existing "built up" character to provide sufficient flexibility to reasonably allow for this type of development to the rear boundary. Having said this, the debate about the merits of the proposed roof deck is still in the balance;

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in relation to the proposed rear car parking arrangements, while we can see the turning circles are tight, this needs to be counter-balanced by the fact that this is an inner-city location where we expect tight parking arrangements would be common (and people can choose to drive smaller cars). In relation to Mr Perry's query about the workability of car access via the laneway, we agree that some inconvenience may arise from time to time, but again this "goes with the territory" in our view. Overall we have no problem with the proposed parking arrangements.

95 See our orders at the beginning of this decision in terms of the next steps to facilitate this redesign process, if the Applicant wishes to take this up. In terms of how any further hearing would operate (if one is needed), we:

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would like the project architect to give an objective explanation of the features of the modified design, with the opportunity for questions;

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would like to give all of the advocates the opportunity to make written submissions to us on the modified proposal; but

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we do not want a situation where numerous experts are recalled to give verbal evidence at the further hearing, which would seem an overkill. We see a reasonable compromise here as being that if any party wishes to, they can organise a Supplementary Report on the modified design from any expert who has already presented to the Tribunal, and then attach that Supplementary Report to their written submission as an Attachment.

96 For the reasons set out above, we accept in principle that the No. 67 dwelling may be demolished altogether as part of an approved development, but we have found that the front section of the No. 65 dwelling must be retained. Clause 22.05 of the Planning Scheme provides that despite this in-principle finding regarding the demolition of No. 67 and the rear of No. 65, no demolition permit can be issued until a proposed new building is approved. Given our finding that the front section of No. 65 must be retained, the plans for the proposed replacement (which assume all of the No. 65 building will go) are now outdated. While it was open to us in these circumstances to simply refuse the Application, we see the best way forward as being for the Applicant to have the opportunity to carry out a redesign of the proposed new dwelling in light of our findings and to circulated revised plans, with a view to having a further hearing as needed, at which all parties can present their views on the modified design of the new dwellings.

[ * indicates this person joined as a party at beginning of hearing]