Mr Adrian Finanzio of counsel, instructed by Best Hooper.

Mr Mark Waldon, Planning Consultant, of St-Wise Pty Ltd.

1. The purpose of this hearing is to decide a preliminary question of law: is the permit application prohibited by reason of the height control in schedule 4 of the Design and Development Overlay (DDO4) in the Hobsons Bay Planning Scheme?
2. Under the Design and Development Overlay[1] a permit is required to construct a building or construct or carry out works. Buildings and works must be constructed in accordance with any requirements in a schedule to this overlay. A permit may be granted for buildings or works which are not in accordance with any requirements, unless the schedule specifies otherwise. Clause 2.0 of schedule 4 to the Design and Development Overlay provides as follows:

A permit may not be granted to construct a building or to construct or carry out works exceeding a height of two storeys.

The height of a building or works is the height of its highest point above the permanent footpath at the centre of the site frontage. If there is no footpath, the natural surface level at the centre of the site frontage is the base level.

1. There is an existing, two storey block of flats on the subject land. The permit application seeks partial demolition, alterations and additions to the six existing dwellings and the construction of seven additional dwellings in a new building. The new building would have two levels over an under-croft parking area. It is conceded that internally the new building will have three levels. However, it will be the same height as the existing two level building and in terms of its external appearance, will present as a two level building.
2. The question to be determined is whether the development exceeds "a height of two storeys" assessed at the centre of the site frontage.
3. Clause 2.0 of DDO4 is a height control. Height controls are usually expressed in terms of metres. Expressing a height control in metres has the benefit of certainty. However, the height control in DDO4 is expressed in terms of "storeys", which is a far less precise means. DDO4 deals only with height. The name of the overlay is "Foreshore Height Limitation". The design objectives set out in clause 1.0 of schedule 4 are focussed on appearance and include:

To ensure that the height, scale, bulk, setback and appearance of new development is compatible with the prevailing character of the area.

1. Decision guidelines set out in clause 3.0 include the following which emphasise the appearance of the development in relation to surrounding development:
   • Whether any increase in size and scale above that of surrounding buildings is to an increment that can be absorbed by the character of the neighbourhood.
   • How the development replicates or interprets the broad forms (such as spam, shape, arrangement of ridges, use of gables or hips), pitch and eaves details of roofs that predominate in the neighbourhood.
   • Whether the development integrates into the design treatment of the walls and elevations - particularly the height of the eaves - the typical floor-to-ceiling heights found in the neighbourhood.
2. In addition to these matters specified in the schedule to the overlay, clause 43.02-5 sets out general decision guidelines for applications under the overlay, which include:
   • The design objectives of the relative schedule to this overlay.
   • Whether the bulk, location and appearance of any proposed buildings and works will be in keeping with the character and appearance of adjacent buildings, the streetscape or the area.
3. In my view, it is evident that in choosing to express the height control in DDO4 in terms of storeys rather than metres, there is a clear intention that it is the appearance of the new development that is paramount, not the actual height in metres. I consider the term "storeys" is used in a non-technical sense and is intended to describe the external appearance of the building in terms of number of apparent levels.
4. This was the view taken by Justice Morris in Poci Brothers Pty Ltd v Bayside CC[2]. He held that when interpreting a height control expressed in number of storeys:
   • Building height should not be assessed by simply counting every possible level or storey and reaching the conclusion by addition, but by approaching the task in a practical and common sense manner.
   • The way to characterise the number of storeys the building has for the purpose of interpreting a height control of this nature is by observation of the external built form and by reference to the purpose of the control.
5. The word "storey" is defined in clause 72 of the Planning Scheme as follows:

Storey That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

1. Justice Morris referred to this definition of "storey" in Poci Brothers but said:

[12] However it does not follow from the fact that the building has three storeys within it that the height of the building is the height of a three storey building. ...

1. The definition of "storey" was considered again in Cope v Hobsons Bay CC[3] where exactly the same provision that is now under consideration was closely examined by the Tribunal consisting of Justice Morris and Member Komesaroff. The Tribunal noted that ever since the introduction of the Foreshore Height Limitation in DDO4 in late 1999, the interpretation of the provisions has caused difficulty and the manner in which the provisions have been expressed has created ambiguities[4]. These difficulties and ambiguities are highlighted by reference to definition of the word "storey" in clause 72. The Tribunal then said:

[21] But there can be confusion about the precise nature of the two storey restriction. One reason for confusion is that the second paragraph of clause 2.0 is cast in language designed to measure height in terms of metres, not storeys. The problems caused by this paragraph are highlighted by the definition of the word "storey" in clause 72 of the scheme, namely

That part of a building between floor levels. If there is no floor level above, it is the part between the floor level and the ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

A literal meaning of clause 2.0 might be that a permit could not be granted to allow the construction of any portion of a two storey building above the ceiling of the upper storey. This is because, on one view, any portion of the building above the ceiling (including the roof) could be regarded as a building "exceeding a height of two storeys". But such an interpretation would be a nonsense. Thus it is difficult to conclude that this would have been the intent of the scheme.

[22] Another possible approach would be to interpret the provision as meaning that a permit may not be granted to construct any portion of a building exceeding a height of two storeys, other than essential components such as the roof. However this interpretation involves reading words into the clause and begs the question of what would be an essential component. What of a chimney? What of a television aerial? What of solar panels seeking to provide hot water utilising the energy of the sun? The problem with this approach is that it fails to definitively answer the question of what would be permissible above the ceiling of the upper level of a two storey dwelling. Thus it must be doubted whether the intention of the framers of the scheme was that these matters would be left to guesswork.

[23] The difficulties created by clause 2.0 of schedule 4 are revealed by examining the decisions of Vincent v City of Hobsons Bay (1999/08003) and Lee v City of Hobsons Bay [2000] VCAT 1520

1. After considering what was said in the cases of Vincent and Lee, the Tribunal went on as follows:

[26] It can be seen that by rejecting the applicant's submission that the height control introduces a storey as a unit of measurement, the tribunal in Lee has necessarily immersed itself in a complex analysis, full of uncertainties, that depend upon vague concepts such as "ordinary roof and foundation structures" in order to fathom a meaning of the provision. In our opinion, this is unlikely to have been the intention of the authors of the scheme.

[27] In our opinion, the provisions of schedule 4 of the Design and Development Overlay should be construed so as to promote the purpose underlying the control. That purpose, which is to achieve development of a height which is compatible with the prevailing character of the area, is designed to be applied in the context of dwellings containing storeys. With this in mind, we identify the clear purpose of the schedule as to introduce a height control that uses a "storey" as a unit of measurement. So interpreted, the control allows a permit to be granted for the construction of a building of one or two storeys, but does not allow a permit to be granted to construct a building of three or more storeys.

1. In adopting a purposive approach to the interpretation of clause 2.0 of DDO4, the Tribunal in Cope is effectively saying the same thing as what was said in Poci Brothers: that the way to categorise the number of storeys a building has for the purpose of interpreting a height control of this nature expressed in storeys is by observation of the external built form and by reference to the purpose of the control. I find in the present case that the purpose of the control is related to the appearance of the development and that the appearance of the development must not exceed two storeys. It does not matter in this context how many levels may be within a building. What is relevant is what the building looks like externally. To comply with DDO4, the external appearance must not exceed two storeys.
2. Having regard to the plans of the proposed development, I find that the development appears externally not to exceed two storeys in height. I therefore find that this particular permit application is not prohibited by clause 2.0 of schedule 4 to the Design and Development Overlay.

[2] [2003] VCAT 1884

[3] [2004] VCAT 2487

[4] [2004] VCAT 2487 at [17] - [20]