* Replace sub-condition (a) of condition 1 with the following:

Redesign the proposed carport located adjacent to the front verandah of the dwelling, so that it is setback at least 1 metre behind the front facade of the existing dwelling and so that there is a gap of at least 700mm between the outer edges of the roof gutters of the existing verandah, and the proposed carport.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Ms Kate Adam, Town Planner, appeared on behalf of the Responsible Authority, Boroondara City Council.

Ms Josephine Dunin, Mr Simon Grope, and Mr Darren MacNicholas, applicants for review appeared on their own behalf and on behalf of their families. These applicants for review called Mr Trevor Westmore, Conservation Architect as a witness in support of their submissions.

Mr Ian Wight, Town Planner, appeared on behalf of the respondent/permit applicants, Michael and Jenny Hall.

1. This is an application for review of the decision of the Responsible Authority to permit buildings and works and associated demolition on the subject land, comprising a new first floor extension towards the rear of the existing building, and two new carports. A permit is required for these buildings and works, in this instance, because the land is affected by a heritage overlay. The existing dwelling on the land is a D grade building within a level 2 streetscape under the provisions of the Camberwell Conservation Study. A permit is not otherwise required in the planning scheme for the proposed buildings and works. The parties and the witness in the appeal made both verbal and written submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

2. During the course of the hearing the ambit of discretion available to the Tribunal in the context of this application for review was raised on a number of occasions. I advised the parties that it was a well established principle of administrative law that the matters which the Tribunal can consider in the context of this application for review were the matters relevant to the heritage overlay control. In a practical context, the extension proposed by the permit applicants in this case does or can be made to conform to the requirements of the applicable building regulations, and could have been implemented by the permit applicants without any restraint, if it was not for the existence of the Heritage Overlay Control. The effect of the rule of law is that the existence of the heritage control cannot be used as a backdoor device for limiting the freedom of the permit applicants to redevelop their land for reasons unrelated to the heritage controls. Because of the topography of the site, the extension will be significantly elevated above neighbouring properties and as a result issues of building bulk and privacy vis a vis neighbouring properties do arise, but are not relevant issues under the heritage control.

3. The Tribunal gave oral reasons for its decision to uphold the decision of the Responsible Authority, with some variations in relation to the carport proposed towards the front of the subject land, at the conclusion of the hearing. A summary of the Tribunal's reasons are set out below.

4. Mr Westmore in his analysis formed the view that there were a number of inaccuracies in the application plans, and argued that the inaccuracies were of a sufficient magnitude to make it impossible to properly assess the proposal. Mr Westmore's submission included plans and three dimensional renderings of the proposal based on his, conservative assessment of the true picture.

5. In relation to these alleged inaccuracies, they fall into two groups, which are relevant or irrelevant to the decision of the Tribunal in different ways, i.e.:-:

* The first group relates to the side wall heights of the proposed first floor level extension, above natural surface level adjacent to these walls. In my view the issue of whether or not the drawings are entirely accurate in this respect is not relevant to my decision, and is more relevant to the question of whether or not the extension conforms to the setbacks required by the building regulations. The resolution of this question does not significantly impact on the visual effect of the proposed extension from the public realm.

* The second group of alleged inaccuracies relates to the height relationship between the roof of the existing dwelling and the walls and roof of the proposed extension. These relationships do affect the appearance of the proposed extension from the public realm. However, I have formed the view that even if I accept Mr Westmore's conservative assessment of visual impact of the proposed extension, as depicted in his sketches, my view as to the appropriateness of that impact is not altered, and therefore I do not need to investigate further the extent to which Mr Westmore's assessment may overstate the impact.

6. The proposed extension is set back some 16 metres from the front boundary of the site, and some 11 metres from the front wall of the existing dwelling. The proposed extension is set behind the existing roof of the main portion of the existing house. The proposed extension will be visible from Selwyn Street, particularly from an oblique view, and to a lesser extent from other nearby streets.

7. In my view it is entirely reasonable to allow the extension and adaptation of existing dwellings within Heritage Overlay areas. Moreover, I am of the view that it is acceptable for such extensions and adaptations to be visible from the public realm, provided they do not diminish or unreasonably detract from the existing built form which contributes to the heritage values of the area. Where a new building is visible from the public realm, it should be identifiable as being new, and not confused with the existing fabric of the heritage building.

8. >From the Selwyn Street perspective, the proposed extension is set behind the main part of the existing dwelling, and is set back a considerable distance from the frontage of the lot. The materials and roof forms proposed relate well to the materials and forms of the existing dwelling and nearby dwellings. In my view this is a reasonable approach to the extension of the existing dwelling within a Heritage Overlay area. There will be distant views of the proposed extension from other nearby streets, but I consider that these views are not critical from the perspective of the heritage area.

9. I agree with Mr Westmore's opinion that in relation to new buildings in a heritage area, one's aim should be to reduce the scale and impact of the extension, to the maximum extent that is possible. In this case, while I am of the opinion that the extension proposed is acceptable from a heritage perspective, I have looked at options for further reducing the impact of the extension from the public realm, in particular by reducing the floor to ceiling heights at first floor level. However, given my conclusion that the extension is basically acceptable, such modifications should not compromise the reasonable expectations of the permit applicants. In this case, I accept that the permit applicants should not be required to lower the ceiling in their existing dining room at ground floor level, nor should they have floor to ceiling heights in any of their first floor bedrooms which preclude the use of a ceiling fan. In this context no further modifications are possible.

10. In relation to the carport at the front of the property, I agree that the carport as proposed will diminish the appearance of the existing dwelling. On the other hand I also accept that it is not entirely unreasonable for thereto be a carport in this general location on the land. I propose to strike a balance between these competing objectives by requiring the proposed carport to be set back 1 metre from the frontage of the existing dwelling, and for there to be a minimum gap between the gutters of the proposed carport, and the existing verandah of 700mm. In this way it should be easier to retain a visual impression of the existing appearance of the dwelling.