1. The decision of the responsible authority in relation to permit application 916/2010 is set aside.
2. A permit is granted and directed to be issued for the land at 27 Canterbury Road, Middle Park. The permit will allow-
   • Partial demolition of the existing building
   • Construction and carrying out works for a two storey addition to the rear of the retained building
   • Construction of a two storey building (garage/studio)

in accordance with the endorsed plans and subject to the conditions contained in Appendix B to these reasons.

He called Mr Peter Lovell, heritage consultant, as a witness

Mr Ian Macdonnell, in person and on behalf of Ms Jane Macdonnell

Demolition of the rear of an existing dwelling, the construction of a two storey addition to the retained dwelling and the construction of a two storey building (garage and studio) at the rear of the land.

Application under Section 79 of the Planning and Environment Act 1987.

Clause 43.01-4: demolish a building and construct a building or construct or carry out works

The land is located on the western side of Canterbury Road, Middle Park. It is between Mills Street (to the north) and Wright Street (to the south). It has a frontage of approximately 10 m and a depth of 50.79 m, yielding a site area of around 508 m2.

The land is developed with a double storey Victorian dwelling of brick and render, with a hipped roof. It has single and double storey rear wings and an ornate tower.

The rear boundary abuts Canterbury Place, a fully constructed small street that is 6.2 m wide.

The land is within an established residential area extending to the west from Canterbury Road. On the opposite side of Canterbury Road there is a rail reserve then the Melbourne Sports and Aquatic Centre and Albert Park. The land to the south (28 Canterbury Road) is developed with a two storey period dwelling with a contemporary extension. To the north the land abuts the side boundary of 26 Canterbury Road and the rear boundaries of 1, 3 & 5 Mills Street.

1. On 14 September 2010 Nicholas Hayward, of Jackson Clements Burrows Architects, applied to the Port Phillip City Council for a permit in relation to the land at 27 Canterbury Road, Middle Park. The proposal was described as:

Partial demolition of existing residence with new extension and renovation works to main house. New garage and studio building to rear of property replacing existing carport.

1. The Council received 21 objections in response to the giving of notice of the application.
2. The Council failed to make a decision on the application in the prescribed time and the permit applicant has applied to the Tribunal for a decision on the application.
3. The Council has subsequently decided that if the application for review had not been lodged, it would have determined to issue a permit, subject to conditions. The conditions include a requirement for plan amendments.
4. A number of the objectors are Respondents. They maintain their opposition to the issue of a permit.
5. Since the lodgement of the application for review, the applicant has circulated amended plans that I allowed to be substituted.[1] Amongst other things, they show the rear ground level footprint reduced in length by 1.2 m, the northern section of the first floor addition reduced in length by 1.2 m and an entry door to the garage from Canterbury Place.
6. I must decide whether a permit should be granted and, if a permit is granted, what conditions it should contain.
7. As the only need for a planning permit arises under the Heritage Overlay, relevant considerations are limited to heritage matters. That is consistent with Deputy President Gibson's opinion on a question of law that arose during this proceeding. The opinion is included in Appendix A to these reasons.
8. With respect to the merits of the proposal, the key issue to be determined is whether the proposal would adversely affect the significance of the heritage place.[2] My principal finding is that the proposal would not have that effect. Accordingly, I have decided to set aside the Council's decision[3] and grant a permit, subject to conditions. My reasons are set out below,[4] after a description of the key features of the proposal.

1. The key features of the proposal include:
   • Demolition of some internal partition walls, some exterior walls, windows, the chimneys and the roofs over the rear half of the dwelling and the carport and toilet block in the rear yard.
   • On the ground floor, an extension of the wall on the northern boundary by 3.6 m and an extension of the southern wall (set back 900 mm from the boundary) by approximately 800mm, to create an open plan living/dining/kitchen area. There is an internal courtyard on the northern side.
   • On the southern side of the land, the existing two storey wing would be remodelled and have a new roof and windows. It would comprise a bathroom and a bedroom, with a 5 m-long deck projecting to the west. It would have a traditional appearance, with the render restored. It would have a maximum wall height of approximately 6.8 m and a new corrugated metal roof matching the existing roof pitch.
   • On the northern side of the land, the construction of a first floor element comprising a master bedroom suite. From the void above the internal courtyard, the building would extend 12.4 m to the west and cantilever over the ground level. It would be set back 1 m from the northern boundary. It would have an angled western wall, extending a maximum of 8.6 m to the west of the southern upper level element. It would be set back 4.36 m from the southern boundary. It would have a contemporary style, with the use of vertically aligned metal cladding punctuated by vertical windows. It would have a maximum wall height of approximately 8 m and a shallow skillion roof.
   • A new full-width two storey building extending 6.5 m into the site from the rear (Canterbury Place) boundary. It would have a maximum height of 5.9 m and have a flat roof. It would be constructed of face brick, with a hardwood roller door. There would be a garage and store at ground level and a studio at the first flor.

Would the proposal adversely affect the significance of the heritage place?

1. The subject site is located within Heritage Overlay HO3 - South Melbourne, Albert Park, Middle Park and part St. Kilda. Its significance was most recently considered in Port Phillip Heritage Review, Version 14 2009.[5]
2. As HO3 covers such a broad area, with diverse forms of development, it is not surprising that the Statement of Significance is not very helpful in assessing a proposed development on one lot. As Mr Lovell noted, it is an 'unenlightening Statement of Significance'.
3. Ms Pridmore advised that Amendment C72 proposes to split HO3 into 7 areas, with the subject site in HO444 (Middle Park/St Kilda West). The Amendment was adopted by the Council on 8 August 2011 and is now before the Minister. HO444 has a modified Citation.[6] It mentions that the 'largest and grandest residences' proliferate along Canterbury Road and are 'most evident at its northern fringe' where streetscapes are dominated by rows of double-storey Victorian Boom-style terraces.' Nos 25-36 Canterbury Road are some of the examples cited.
4. The dwelling on the subject site, known as 'Normanby', was included in the 1987 South Melbourne Urban Conservation Study as Citation No. 41. It was identified as an A grade building.
5. The subject site was subsequently identified as a significant heritage place in the Port Phillip Heritage Review. As are numerous others in the locality, including the properties to the north along Canterbury Road, the dwelling on the land to the south (28 Canterbury Road) and 1-3 Mills Street. No 5 Mills Street is contributory.
6. In the 2009 version of the Port Phillip Heritage Review, the citation (now No. 998) identifies the construction date as 1886 and has the following Statement of Significance:

'Normanby' is of significance as a substantially intact major Victorian house with distinction particularly in the detailing of its render, joinery and leadlight glazing. The conservatory is a rare example of a once common appendage to buildings of this type and is unusual in its location on the building. The front and side fences are integral to the significance of the house.

1. Although the tower is not referred to in the Statement of Significance, the Description section of the citation comments:

It is however the tower that sets this building apart from the norm. It is set on the side, south, face of the house and the door and entrance porch are housed at its base. The door is an intact six panelled door and has very fine leadlight intact to the sidelights and fanlight. Above this is a most unusually placed small conservatory with its original timber framing, while stepping back, the tower rises above. Its typically Italianate decoration includes couple round headed windows and an ornate cornice line decorated with dentils and modillions.

1. Since the permit application was lodged, new policies regarding heritage have been introduced into the planning scheme, by the approval of Amendment C62 on 9 June 2011.
2. The Macdonnells submitted that the amendments to clause 22.04 'have made the Heritage Policy more stringent.' In particular, they highlighted that it is now an objective '[t]o ensure all new development and redevelopment of significant and contributory places is respectfully and harmoniously integrated with the surrounding character.'
3. The wording of the Heritage Policy in clause 22.04 has changed, but I adopt the advice of Ms Pridmore that there are no changes of substance. In particular, Ms Pridmore highlighted that there is no substantive change to the policy regarding additions at the rear of land. Nor are there changes to the illustrations emphasising views from the front of properties. As put by Mr Lovell, the amendments are a refinement or reinforcement, rather than a shift in principles or guidelines.

1. Many of the respondents objected to the extent of demolition. The Macdonnells raised particular concerns about the demolition of 'an original, billiard room with coved ceiling and hipped roof', that is a 'unique' structure that 'is not unsound'.
2. The loss of the billiard room, at the rear of the existing dwelling, cannot be given any weight. The Schedule to clause 43.01 does not identify HO3 as a heritage place where internal alteration controls apply. Accordingly, the internal layout or specific use of rooms is not relevant
3. More generally, the provisions of the Heritage Overlay and clause 22.04 contemplate demolition. As summarised by Ms Pridmore, clause 22.04 provides for demolition if it does not affect the significance of the heritage place and the proposed additions (or replacement) are sympathetic.
4. I agree with Mr Lovell's expert opinion that the extent of demolition is relatively modest and, most importantly, it would have no adverse impact on the significance of the heritage place.
5. As Mr Lovell put it, the demolition works 'are of a typical nature in that they involve the removal of some original and some added fabric at the rear of the house to enable alterations and additions.' The fabric to be removed is largely unseen from Canterbury Road and would have limited visibility from Canterbury Place.
6. None of the important elements identified in the Citation are to be demolished. The primary part of the building, including the tower, would remain intact. The Council proposes a permit condition relating to the control of the method of demolition. It includes a requirement for protection works to ensure the retained fabric is safeguarded.

1. Many of the respondents objected to the contemporary style of the new wing on the northern side of the subject site. For instance, the Macdonnells described it as having the appearance of shipping container. They also argued that the use of metal cladding should not be permitted.
2. The architectural style of a building is a matter of taste. Ultimately, I have no concerns about the adoption of a contemporary style for the northern projection, with a conservative style adopted for the retained section on the southern side.
3. The local heritage policy at clause 22.04-3 states that the design approach for new additions and alterations can include:

Contemporary architecture and innovative design which is an important part of the contextual approach because it adds to the existing diversity and layering of styles through time. This layering is a defining feature in a number of areas and is therefore an important component of Port Phillip's heritage.

1. The design is by a prestigious, award-winning firm of architects. I agree with Mr Lovell that a skillion roof on a simple, projecting form is not unusual. I also agree with Ms Pridmore that it is appropriate that the contemporary element incorporates 'materials of a new era'.
2. In accordance with a fundamental tenet of heritage practice, which is refected in clause 22.04, there would be a high level of legibility between the original fabric and the new development.
3. Adopting the recommendation of the Council's Heritage Advisor, the Council seeks to impose a permit condition requiring the external material to be 'a light grey zinc panel (VM Zinc or equivalent).' The Advisor considered that an altered material would 'present with a matt patina and [be] reflective of corrugated iron roofscapes.' Ms Pridmore suggested that a lighter grey would soften the presentation. Mr Kane indicated that a modified colour would be acceptable to the applicant, but submitted that the wording of the condition is too prescriptive.
4. I consider that a lighter colour would be preferable. However, the precise materials can be endorsed by the Council, as part of a permit requirement for amended plans showing a schedule of all materials, finishes and paint colours.

1. In describing what they seek to control and achieve, the Victoria Planning Provisions and the Heritage Overlay are both silent as to what vantage points are relevant when considering impacts upon heritage significance.
2. The Port Phillip Planning Scheme is not unusual in having local policies that apparently distinguish between concealed built form and built form that is visible from the street. For instance, it includes the following:

To ensure that new development and any publicly visible additions and/or alterations in or to a heritage place maintains the significance of the heritage place and employ a contextual design approach.[7]

New development should sit comfortably and harmoniously integrate with the site and within the streetscape and not diminish, detract from or compete with the significance of the heritage place or streetscape character.[8]

Maintain an existing vista or viewlines to the principal façade(s) of a heritage place.[9]

An upper storey addition is sited and massed behind the principal façade so that it preferably is not visible, particularly in intact or consistent streetscapes (see Performance Measure 1).[10]

1. Mr Lovell was firmly of the view that as the local policy refers to the views 'to the principal façade(s)', in this case the focus is the primary address, or Canterbury Road. He noted that there are only limited cases in Melbourne, such as Parkville and East Melbourne, where rear façades are identified as significant. He also observed that in the shift from HO3 to HO444 it is not proposed to elevate 'the secondary street system.'
2. The Tribunal has endorsed that interpretation of the local policy on numerous occasions. For instance, in Surac v Port Phillip CC Senior Member Liston stated:

... the contribution of the existing dwelling to the significance of the heritage place relates to its contribution to the Beach Avenue streetscape. It follows from this that the replacement of the rear parts of the building with a new extension is an acceptable approach to the adaptation of the building for modern use. It also follows that arguments in relation to "backyard scape" and "lane scape" are not relevant to my decision.[11]

1. In Martin v Port Phillip CC, Member Sibonis held that contrary to how the residents perceive the heritage character of their neighbourhood, 'the Planning Scheme does not ascribe any heritage significance to the "backyard realm"'.[12]
2. Ultimately, local policies relating to visibility or vantage points are only a guide in an assessment of the primary consideration of how the proposal would impact on heritage significance. In that respect, a relevant decision guideline in clause 43.01-4 is:
   • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
3. In that regard, I agree with the submission of the Macdonnells that the principal street presentation, or address, is not necessarily the sole vantage point that could be relevant. However, in this instance, the significance of the heritage place, as described in the Citation, clearly focuses on the street presentation.

1. The proposed alterations and additions would have very limited visibility from Canterbury Road. The only change would be a new roof on the retained two storey wing on the southern side of the land. It would be glimpsed from the street, but would sit behind the primary building form. It is to have an appropriate pitch and material. I agree with Mr Lovell that it would have no adverse affect on heritage significance.
2. Clause 21.05-2 includes various strategies relating to urban structure and character. They include:

Require new development to respect the preferred character of an area...

Require new development to respect and not detract from the scale, form and setbacks of nearby heritage places in the Heritage Overlay.

1. In this instance, the reference to neighbourhood character in the first strategy should properly be read and understood within the heritage context of the land, informed by the relevant Statement of Significance and local policies that focus on the 'principal facades(s)'. It does not call for a ResCode neighbourhood character assessment. Although the second strategy is not worded so as to be limited to the primary streetscape, it also needs to be read and understood in terms of the identified heritage significance.
2. From the rear (Canterbury Place) and the short laneway that runs south from Mills Street, there would be views of the proposed contemporary wing on the northern side of the land. They would be more than glimpses. However, I am not persuaded that those views would adversely impact the significance of the heritage place.
3. Views from the rear, or other areas of the public realm, are not mentioned in the Statement of Significance. Furthermore, contrary to the submission of the Macdonnells, I do not consider that the presentation to Canterbury Place of the rear of dwellings is 'largely intact'. On the contrary, there are examples of contemporary additions and new buildings. The dwelling on the land abutting to the south (28 Canterbury Road) has a modest rear addition, in a contemporary style, which obscures the original building fabric. There is a real prospect that other dwellings will have rear additions in the future.
4. The proposed contemporary-styled wing is lower than the height of the main building form and no higher than the retained two storey wing on the southern side.
5. As put by Mr Lovell, the essential question is whether the proposed contemporary-styled wing is projecting too far so as to impose on the heritage place. I adopt his opinion that it is not.
6. Later in these reasons I say more about the impact on views of the tower, but that relates to the proposed garage/studio rather than the additions to the existing building.
7. There is no suggestion that any potential overshadowing or overlooking arising from the proposed development are relevant in terms of heritage significance. The relevant clause 54 standards will be applicable at the building permit stage.
8. Visual bulk is clearly a relevant consideration, but only to the extent that it relates to the purposes of clause 43.01. A decision guideline at clause 43.01-4 is:
   • 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.
9. The Macdonnells do not reside at an abutting property. They live at 30 Canterbury Road, which is 3 properties to the south. Nevertheless, they raised particular concerns about the impact of the proposal on Nos 1, 3 & 5 Mills Street, which adjoin the subject site's northern boundary. They argued that the extent of proposed development, especially the large master bedroom suite, is excessive and 'unfair', in that it would impose upon the small lots to the north and constrain the ability of their present or future owners to extend their dwellings.
10. The neighbouring properties are part of the heritage place. However, as highlighted by Mr Lovell, the subject site is not at an inter block location. It is within an irregular subdivision, with the rear of properties abutting its northern boundary. Those abutting properties have buildings of various styles. I agree with Mr Lovell that they are not 'high quality interfaces'. Any constraint on the development of the lots to the north is not a heritage issue. Although there will be a views of the proposed contemporary-styled wing from the rear of 28 Canterbury Road, the view will be from a property which itself has a contemporary addition.

1. The respondents submitted that the two storey building proposed at the rear of land is unacceptable in terms of its presentation to Canterbury Place. They are also particularly concerned that is will obstruct views of the significant tower of 'Normanby'. In that regard the Macdonnells noted that as there are only limited, or fleeting, views of the tower from Canterbury Road, it makes it more important to preserve the views from other vantage points. They argued that any development should at least preserve the view from directly behind the subject site.
2. It is an oversight that the tower is not mentioned in the Statement of Significance, especially as its importance is so lyrically described in the Description section of the Citation.
3. The two storey garage/studio would interrupt some views of the tower. However, I adopt Mr Lovell's evidence that there is nothing fundamentally important about views of the tower from the rear. It was his evidence those 'secondary viewing locations' are 'not locations which are referred to or identified as being of value in the assessed significance of the place.' In any event, there would still be some views of the tower from the rear, especially from the southern end of Canterbury Place.
4. I do not have any concerns about the presentation of the garage/studio to Canterbury Place. As Mr Lovell highlighted, this part of Canterbury Place was never the frontage to cottages. It is a functional service road that was not created as a primary viewing point. There are already a few double storey buildings abutting Canterbury Place. The Council's Heritage Service Practice Note regarding laneways,[13] which also applies to 'narrow streets', encourages utilitarian building types, with no setback from the laneway and over the full width of the site.
5. Given the width of the roadway, the two storey building would not be overbearing. It would extend no further into the subject site than the outbuildings on both sides. It is a simple form that would have no adverse impact on the heritage significance.
6. The plans show the use of dark brickwork. The Council's Heritage Advisor recommended a permit condition requiring the side walls and the Canterbury Place wall be 'constructed and finished with red face brickwork with struck mortar joints.'
7. I agree with Mr Kane that that requirement should be deleted. Struck mortar joints may be unnecessary. While Mr Lovell endorsed the use of a lighter colour of brick, he did not necessarily support the use of conventional red bricks. That is a matter that could ultimately be to the satisfaction of the Council when a full schedule of materials, finishes and colours is provided.
8. The plans need to clarify that the pedestrian door on the south west elevation (Canterbury Place) opens entirely within the title boundary and does not project over the footpath.

1. It follows from the above reasons that my conclusion is that the decision of the Council should be set aside and a permit be granted.
2. In deciding the conditions to be included on the permit I have had regard to the draft conditions provided by the Council and the submissions and evidence of the parties, in addition to the matters that arise from these reasons.
3. The Council sought to impose a condition requiring the owner to retain Jackson Clements Burrows Architects 'to complete the design and provide architectural oversight of the delivery of the detailed design'. The on-going involvement of the project architects is desirable, and likely to occur, but it should not be a binding condition.

OPINION BY LEGAL MEMBER PURSUANT TO CLAUSE 66(1)(B) OF SCHEDULE 1 OF THE VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL ACT 1998**

1. I am the legal member appointed to provide an opinion on a question of law in application P1473/2011. The question of law is as follows:

The Tribunal's ambit of discretion in this application for review, even though the site is in excess of 500 sq. m., is not just confined to heritage considerations but includes the proposal's impact on the amenity of adjoining properties by way of overshadowing, privacy and visual bulk. That is, it includes:

1. Sections 4 and 60 of the Planning and Environment Act 1987;
2. Clause 15 of the State Planning Policy Framework included in the Port Phillip Planning Scheme; and
   1. Clauses 21, 22, 43 and 65 of the Local Planning Policy Framework of the Port Phillip Planning Scheme.
3. The question of law was formulated by the parties at the hearing on 13 October 2011 before Member Davies. By order dated 14 October 2011, Member Davies set out the question of law in the above terms to be referred to a legal member and made procedural directions for parties to make submissions.
4. By letter dated 13 October 2011, the objector/respondent, Jane Macdonnell, requested that the question of law be reformulated. No further order has been made by the Tribunal to reformulate the question of law, therefore I will deal with the question of law as set out above and in the Tribunal's order dated 14 October 2011.
5. Written submissions in accordance with the Tribunal's order were received from the responsible authority, the permit applicant, Christopher Hermann, and Jane Macdonnell on behalf of herself and other respondent/objectors. A number of respondent/objectors have written to the Tribunal endorsing her submissions.

1. It is a well accepted tenet of planning law that where the need for a permit is triggered by a planning scheme control imposed for a specific purpose, then it is inappropriate to seek to control any aspect of the development or use which is unrelated to the control itself.[14] The principle that the discretion of a decision maker should only be exercised in accordance with the purpose for which that discretion has been conferred is known as the National Trust principle.[15]
2. In the context of the present case, the only need for a planning permit arises under the Heritage Overlay. The operation of the National Trust principle would mean that only matters relevant to heritage arising under clause 43.01 of the planning scheme would be relevant when exercising a discretion whether to grant the permit or not. Those aspects of the State and Local Planning Policy Frameworks and the decision guidelines in clause 65 called up by the decision guidelines set out in clause 43.01-4 are limited to heritage related matters and must be applied only for the purpose for which the control has been conferred under clause 43.01. They would not extend to a consideration of matters that may arise under other provisions of the planning scheme where the purpose of the control may be to protect residential amenity or neighbourhood character or for other purposes.
3. Ms Macdonnell challenges this interpretation and application of the National Trust principle. She relied upon statements by Warren C J sitting in the Court of Appeal in Sweetvale Pty Ltd v Victorian Civil & Administrative Tribunal[16] where Her Honour said:

[16] The National Trust case was concerned with circumstances where the relevant planning control was silent as to conservation matters hence rendering the objection irrelevant. In the present case the Act and Scheme specify the matters to be taken into account and the exemptions that are to apply with respect to objections. In this matter the scope of relevant considerations to be applied by the responsible authority and, if needs be, the Tribunal on review, is defined by the Planning and Environment Act and the Scheme.

1. Ms Macdonnell submits that, as the Court of Appeal held in Sweetvale, the "scope of relevant considerations is defined by the P&E Act and the scheme". Where, as in the case of clause 43.01, a stated purpose of the provision is to implement the SPPF and LPPF, including the MSS and local planning policies, the decision maker cannot simply refuse to consider any provision of the planning scheme other than the clause under which a permit application is made. The reference in the stated purpose of clause 43.01 "to implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies" means that all the matters referred to in these provisions, whether characterised as heritage considerations or otherwise, are relevant considerations.
2. Ms Macdonnell relies on cases that consider what are relevant matters within the meaning of section 60(2)(j) of the Planning and Environment Act 1987[17] for the proposition that where matters are advanced in objections and submissions - such as the fair and orderly development of land, the orderly planning of the area, securing a pleasant living environment, whether the architecture minimises detrimental impact on neighbouring properties, the effect on the amenity of the area and whether the built form offers a high level of amenity for residents etc - then by reason of the requirement in section 60(1)(c) that all objections and other submissions which have been received must be considered, these matters are thereby relevant.
3. I do not accept this argument. Objectors cannot make things relevant that would not otherwise be relevant simply by raising them in objections. I do not consider that the comments of Warren C J in Sweetvale can be construed as providing a basis for undermining or setting aside the long established interpretation and application of the National Trust principle. The validity of the principle has been endorsed by the Supreme Court and the Tribunal on numerous occasions subsequent to Sweetvale. For example, in Stogdale v Stonnington CC[18] Osborn J observed:

[29] ... Mr Wren relied upon the well accepted principle that a discretion cannot be exercised for a purpose other than that for which it is granted. There is no doubt as to the underlying validity of the principle.

1. Later in Stogdale, Osborn J makes the following comments:

[33] The plaintiff's case was put by reference to the line of authority which constrains the purposes by reference to which a permit may be refused pursuant to specific provisions of the Planning Scheme despite the broad terms in which general considerations affecting such a decision are stated both in the Act and the Planning Scheme. This principle which has become known as the National Trust principle was recently affirmed with respect to the current format of planning scheme by Morris J in Victorian National Parks Association Inc & Anor v Southern Grampians Shire Council & Ors. Morris J concluded:

"The function of sections 60 and 84B of the Planning and Environment Act is precisely the same as clause 65 of each planning scheme in Victoria and, more significantly, is precisely the same as clause 5A of the Melbourne Metropolitan Planning Scheme at the time of the National Trust case. In my opinion, just as it was proper to have regard to the matters prescribed by clause 5A in the context of a control over the height of buildings, sections 60 and 84B must be applied in a particular application for permit, or a particular application for review, in the context of the discretion then being exercised. But the scope of relevant considerations in the exercise of a discretion under a planning scheme provision is to be ascertained by reference to the purpose for which the discretion has been conferred, not by reference to the broad words of clause 65 or sections 60 or 84B."

1. Ultimately, the appeal in Stogdale concerned the question of whether a particular condition could properly be placed on the relevant permit. The tests for the validity of a condition were considered. The appeal was unsuccessful because the court held that the condition in issue could not be shown to be invalid by reference to the accepted test for the validity of a planning condition. Nevertheless, there is clear endorsement by the court of the validity of the National Trust principle.
2. In the case of Victorian National Parks Association Inc v Illuka Resources Limited[19], which was quoted with approval by Osborn J in Stogdale, Morris J (in his capacity as President of the Tribunal) found that not only does the National Trust principle continue to apply, it has a valuable role in the administration of planning under the VPP based planning schemes by ensuring a manageable decision making process. He said:

[35] The National Trust principle has a valuable role to play in the administration of planning in Victoria. Indeed, current planning schemes, which are based on the Victoria Planning Provisions, are predicated upon the application of the National Trust principle. These schemes contain many provisions which require a permit to be obtained in specific circumstances, which are designed to regulate use or development in those specific circumstances. For example, there are specific controls in relation to the construction of buildings in wildfire areas, in areas prone to erosion, in areas susceptible to flooding and in areas susceptible to land salinity. Similarly there are provisions in relation to the height of buildings, access on to main roads and the removal of native vegetation. Sometimes these specific controls are part of an overlay provision; sometimes they are the result of specific clauses of the scheme. If, upon an application for a permit under one of the specific provisions, the decision maker was required to consider the full panoply of planning considerations set out in sections 60 and 84B of the Planning and Environment Act and in clause 65 of each planning scheme, planning decision making would grind to a standstill.

1. In my view, Ms Macdonnell has misconstrued what Warren C J said in Sweetvale. The issue in Sweetvale was whether exemptions from third party notice and review provisions, which applied to some but not all of the permissions that were required to be obtained for a particular proposal under the planning scheme, applied when a single permit application was made for the proposal rather than separate applications for each permission required under the scheme. Her Honour summarised the plaintiff's argument as follows:

[14] ... Mr Wright submitted that because the single application was partly to carry out building and works but also partly to carry out demolition and the other matters, the application assumed a characteristic that disqualified it from the benefit of the exemptions. Accordingly, so the argument ran, the application for a planning permit did not answer the description of "an application to construct buildings or to construct or carry out works" (my emphasis) and, therefore, was not exempt from review. If the argument was valid the practical effect on the review before the Tribunal would be that all aspects of the application for the permit would be at large and subject to challenge by the appellants.

1. To understand the comments made by Her Honour about the National Trust case, reference must be had to the context in which they were made, which was a continuation of the summary of the arguments put by the plaintiff as follows:

[15] ... Reference was also made to a judgment of the Full Court in National Trust of Australia (Vic.) v Australian Temperance and General Mutual Life Assurance Society Limited and Anor in support of the proposition that a responsible authority is obliged to have regard to all relevant considerations in relation to both exempt components and to non-exempt components and that, therefore, the Tribunal on review, must do the same, that is, the scope of the relevant considerations for the Tribunal is defined by the purpose for which the discretion is conferred and not by the existence of an exemption. In the National Trust case the planning tribunal dismissed an objector's appeal on the grounds that the objections were concerned with conservation matters that were not relevant to a refusal to grant permits. Essentially, the planning issues in the case were concerned with the exercise of a discretion with respect to height controls.

[16] The National Trust case was concerned with circumstances where the relevant planning control was silent as to conservation matters hence rendering the objection irrelevant. In the present case the Act and Scheme specify the matters to be taken into account and the exemptions that are to apply with respect to objections. In this matter the scope of relevant considerations to be applied by the responsible authority and, if needs be, the Tribunal on review, is defined by the Planning and Environment Act and the Scheme.

1. When read in this context, there can be no suggestion that Warren C J was casting any doubt on the National Trust principle. Her comments are directed to the exemptions that apply with respect to objectors. Her Honour is not disputing that a responsible authority (and the Tribunal on review) is obliged to have regard to all relevant considerations in relation to both exempt components and non-exempt components. She is saying that the scope of the relevant considerations for the Tribunal is defined by the purpose for which the discretion is conferred, not by the existence of an exemption. It is the Act and scheme which define the scope of relevant considerations. However, in looking at the Act and the scheme to identify what are relevant considerations, there is no justification to depart from the principle that relevant considerations must be confined to the purpose for which the discretion is granted. Nothing Warren C J says in Sweetvale derogates from that proposition and the same proposition applies in the present case.
2. The critical issue is to determine what are relevant considerations to be considered having regard to the purpose of the control.
3. I find that the purpose of the Heritage Overlay, which is the sole provision in the planning scheme under which a permit is required, is set out in clause 43.01 as follows:

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.

To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.

1. With respect to the first purpose - To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies - I find that, based on the National Trust principle, this is confined to implementing policy relevant to heritage considerations and the other purposes set out in clause 43.01.
2. Ms Macdonnell is particularly concerned with the proposal's impact on the amenity of adjoining properties by way of overshadowing, privacy and visual bulk. It is a question of fact to be determined by Member Davies as to whether any of these matters affect the heritage significance of the heritage place in question. It is clear from the decision guidelines set out in clause 43.01-4 that the question of whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place is a relevant consideration. Thus visual bulk is clearly relevant in a heritage context. Overshadowing may be relevant depending on the circumstances of the case. It is more difficult to see how privacy would be relevant, but that will be a finding which the member will need to make depending on the particular significance of the heritage place.
3. However, these matters are only relevant in the context of the purposes of clause 43.01 as they relate to heritage. I find that there is no opportunity to consider the proposal's impact by way of overshadowing, privacy and visual bulk on the general amenity of adjoining properties beyond the ambit of heritage considerations. The same applies to the general matters set out in clause 65. They too are only relevant to the extent they relate to the purpose of the control.
4. In terms of the extent to which aspects of clause 21.05-2 in the MSS about urban structure and character are relevant, this is a question for Member Davies to decide having regard to the heritage significance of the subject land and the statement of heritage significance of the precinct within which it is located. Some of the issues may be relevant if the heritage significance of the precinct is based upon neighbourhood character. References to neighbourhood character in this part of the Local Planning Policy Framework when considered in the context of a permit under the Heritage Overlay do not necessarily have the same ambit of meaning that may arise if a permit is required under a zone, overlay or particular provision where the purpose of the control is to protect residential amenity or neighbourhood character.

1. I therefore conclude that there has been no derogation of the National Trust principle as a result of the comments made by Warren C J in Sweetvale. I find as a matter of law that a discretion in the planning scheme must be exercised for the purpose for which the discretion is conferred and must be based on the considerations relevant to that purpose despite the broad terms in which general considerations affecting such a decision are stated both in the Act and the planning scheme. I find that the issue of whether particular matters are relevant to the purpose of the control will depend on the facts and circumstances of each case and is a question of fact to be determined by the member considering the merits of the permit application.
2. On this basis, I respond to the question of law that has been framed for my consideration by saying that it is not an accurate representation of the Tribunal's ambit of discretion in this application for review. The Tribunal's ambit of discretion is confined to matters of heritage significance. The decision must take into consideration matters set out in sections 4 and 60 of the Planning and Environment Act 1987 and clauses 15, 21, 22, 43 and 65 of the planning scheme only so far as they are relevant to heritage considerations and the purpose of the control in clause 43.01.

• Partial demolition of an existing building
• Construction and carrying out works for a two storey addition to the rear of the retained building
• Construction of a two storey building (garage/studio)

in accordance with the endorsed plans and subject to the following conditions.

1 Before the use or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the elevations and sections depicting demolition (being plans TPO-201 and

TPO-301, dated September 2010) and the plans substituted at the hearing of Application for Review P1473/2011 but modified to show:

(a) The roof form depicted on plan TP1-100 consistent with the elevations.

(b) A full schedule of materials, finishes and paint colours, including colour samples (colour samples in a form that is able to be endorsed and held on file).

(c) The pedestrian door to the southwest elevation (Canterbury Place) to open entirely within the title boundary and not project over the footpath.

1. The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. Prior to the commencement of the works permitted by this permit, including any demolition works, a fully detailed 'demolition method statement' prepared by a qualified structural engineer must be submitted to and approved by the responsible authority. When approved, the statement will be endorsed and will then form part of the permit. The 'demolition method statement' must fully describe and clearly demonstrate that the construction methods to be used on site will ensure that the building fabric required to be retained on the endorsed plans approved under Condition 1 of the permit will be safeguarded during and after the demolition process has occurred. The demolition method statement may need to include reference to staging of demolitions on site in some instances. The statement must detail the necessary protection works required to retain individual walls, chimneys, flooring, roofing and other heritage features of significance during demolition.

1. Before the development commences a Sustainable Design Assessment that outlines proposed sustainable design initiatives must be submitted to and approved by the Responsible Authority. Upon approval the Assessment will be endorsed as part of the planning permit and the project must incorporate the sustainable design initiatives listed.

1. Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

1. All external materials, finishes and colours as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

1. All service pipes/service units (excluding down pipes, guttering and rainwater heads) must be concealed from view from the public realm and any screening devices suitably integrated into the design of the building to the satisfaction of the responsible authority.

1. Prior to the occupation of the building(s) allowed by this permit, all new or extended walls on or facing the boundary of adjoining properties and/or the laneway must be cleaned and finished to a uniform standard. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed to the satisfaction of the responsible authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the responsible authority.

1. No plant, equipment or domestic services (including any associated screening devices) or architectural features, other than those shown on the endorsed plan are permitted, except where they would not be visible from a street (other than a lane) or public park without the written consent of the responsible authority.

1. Vehicle crossings must be constructed in accordance with Council's current Vehicle Crossing Guidelines and standard drawings to provide pedestrian priority to the satisfaction of the Responsible Authority. All redundant crossings must be removed and the footpath, nature strip, kerb and road reinstated prior to the completion of the development to the satisfaction of the responsible authority.

1. Prior to the completion of the development the Applicant/Owner must do the following things to the satisfaction of the Responsible Authority:
   • (a) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for the development.
   • (b) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement.
   • (c) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of alterations/reinstatement.

1. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (b) The development is not completed within two years of the date of commencement of works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[2] A purpose of the Heritage Overlay, in clause 43.01, is '[t]o ensure that development does not adversely affect the significance of heritage places.'

[3] In accordance with s.4(2) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application

[4] In setting out the reasons for my decision I do not recite all of the documentation tendered by the parties, as all material is retained on the Tribunal's file

[5] An incorporated document listed in the Schedule clause 81.01

[6] Arising from the review by Simon Reeves, Architectural Historian

[9] Policy relating to Additions and/or Alterations to Heritage Places in Clause 22.04-3

[11] [2008] VCAT 1153 at [23]

[12] [2011] VCAT 787 at [20]

[13] HSPN 04: Laneways in Heritage Overlay Areas, City of Port Phillip Heritage Advisory Service, 22 March 2006

[14] Shalit and Faine v Boroondara CC & Ors [2002] VSC 528 at [9]

[15] National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592

[16] [2003] VSCA 83

[17] Such as Returned Services League of Australia (Victorian Branch) Inc, Glenroy Sub-branch v Moreland CC [1998] 2 VR 406, [1999] VSCA 37. Also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325, [2001] HCA 30

[18] [2004] VSC 348

[19] [2004] VCAT 20