Victorian Civil and Administrative Tribunal|2009-02-17|Before: Mr J

Kidston v Port Phillip CC [2009] VCAT 233 (17 February 2009)

Section 77 of the Planning & Environment Act 1987; Port Phillip Planning Scheme; Residential 1 Zone; Heritage Overlay (HO3); Alterations and Additions to a Dwelling; Two Units; Off Site Amenity Impacts; Neighbourhood Character; Heritage Values.

Kidston v Port Phillip CC [2009] VCAT 233

Mr C Wren SC. Evidence was called from Mr D Crowder, town planner of Ratio Consultants, and Mr J Briggs, heritage architect of John Briggs Architects Pty Ltd.

Mr P Bisset, solicitor of Minter Ellison lawyers for M Stokie and G & E Amira. Mr W Beazley in person.

Demolition of the rear of the existing building to enable the construction of ground and first floor additions to create two dwellings. The dwelling to the site's frontage would contain one bedroom and have no on-site parking. The larger rear unit would have three bedrooms and two on-site spaces (one using a turntable). A revised eastern elevation was tendered at the hearing.

Residential 1 Zone. Heritage Overlay (HO3). Design and Development Overlay (DDO1-5). Development Contributions Plan Overlay (DCPO1).

Clause 32.01 (Clause 55 applies) for the development of two dwellings. Clause 43.01 for demolition, buildings and works. Clause 43.02 for buildings and works.

Clauses 11, 12, 14, 15.11, 15.12, 16.02, 19.03, 21, 22.01, 22.04, 22.09 & 65. The building on the subject land is "significant" based on the map in Clause 22.04.

The review site is on the north side of Beaconsfield Parade. It has a frontage of 10.06 metres, a depth up to 38.63 metres and an area of 391.1 square metres. The land partly abuts laneways to its east and west. It is occupied by a single storey double fronted Victorian dwelling from which rear additions have been removed under an earlier permit.

The site abuts a large three storey development to the east incorporating a double storey Victorian dwelling. This is used as two dwellings but was developed as a dwelling and three flats. Balconies and habitable room windows in various units face the review site with screening devices.[2] A row of 12 period dwellings is west of the site. They appear as single storey to Beaconsfield Parade. Several cottages have two storey additions to their rear and two have roof decks inserted into the principal roof form. The cottages are all "significant". No. 9 Pickles Street is north of the site with windows in the south elevation serving additional windows within the dwelling. Further north are multi-level residential developments that are seen behind the review site when standing on Beaconsfield Parade.

11 February 2009 including the site and from within No. 1 Beaconsfield Parade and No. 9 Pickles Street.

On behalf of his client, Ian Kidston lodged a permit application involving partial demolition, and new works, to create two units on the land at No. 2 Beaconsfield Parade, Port Melbourne. The application was refused by the Council and review of that decision has been requested by the permit applicant. The Tribunal must decide whether a permit should be granted.
The key issues are the proposal's relationship to the site's heritage and character contexts, potential impacts on the amenity of neighbouring properties, and criticisms with respect to the layout of the units.
Having considered all submissions and evidence with regard to the provisions of the Port Phillip Planning Scheme, and having inspected the site and locality, I have decided to affirm the Council's decision as significant changes would be required to the proposal before it could be found to be acceptable. My reasons follow, noting I do not recite all material tendered as all documentation is retained on the Tribunal's file.

Is the proposal acceptable in terms of heritage considerations?

The Council and some Respondent Objectors expressed concern about the overall scale and massing of the proposed works. They argued that the additions would be visually intrusive in the streetscape and inappropriate with respect to the host building. Reference was made to the height of the works, the varied roof profile when compared with the retained building, limited setbacks, and the intrusion into the retained roof by the upper deck.
In reply, Mr Wren SC submitted the proposal is acceptable in the site's context that includes the large buildings to the east and north. Mr Briggs' evidence was that the proposed works would not be visually dominant with respect to the host building or setting. He referred to the more visible form of the addition at No. 13 Beaconsfield Parade and relied upon the other approved developments along the row of single storey cottages with which the proposed works would correspond.
Clause 43.01, supported by the local policy at Clause 22.04, seeks:
- 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.
I do not need to recite all of the decision guidelines in Clause 43.01 and all of the applicable local policies. I note the intent in local policy to:
- Not change the original principal façades or roof;
- Mass and site upper storey additions behind principal façades so that they are preferably not visible particularly in intact or consistent streetscapes;
- If visible, relate the roof form of an addition to that of the heritage place.
My assessment must take into account the relationship of the proposal to the significant buildings to which it abuts and the wider precinct and whether those relationships are acceptable. The double storey building to the east is itself altered (such as by glazing to the balcony) and a substantial three storey development partly wraps around it. The row of cottages is intact but has additions including two buildings where roof decks have been inserted into the roof and extend through to the front. I understand these were found to be acceptable and approved by the Council. The cottages generally appear as an intact row with the addition at No. 13 Beaconsfield Parade being the most obvious in near and distant views.
I find retention of the dwelling and works around it to create two dwellings are acceptable in principle. However, some aspects of the proposal do not accord with local policy, notably the roof deck replacing a substantial part of the principal roof form, the mansard roof to the addition, and the degree of visibility of the addition. These are my primary heritage concerns.
I generally accept Mr Briggs' evidence with respect to how the proposal might read but I agree with concerns raised by some parties with respect to:
- Firstly, the intrusion of the roof deck into the principal roof form and forward of the chimneys. Mr Briggs' evidence was that some human presence in the area of the roof valley would not compromise or diminish the appreciation of the heritage place when observed and when the deck is not in use there will be no issue. While I understand his point, and note previously approved decks nearby, I consider the works would diminish the integrity and significant of the place.
- Secondly, the height, scale and visibility of the addition even though it would be read next to the larger form to the east and, in some views, with a backdrop of larger buildings to the north. The addition is offset from the line of the retained building. The stair element and steeper, mansard, roof profile are particularly problematic in my view.
The design would afford occupants outstanding Bay/foreshore views but I am not persuaded that overrides impacts on the building's significance and design elements that are contrary to policy even in this physical context. Adaptation of significant heritage fabric is reasonable, dependent on what is required, but I do not consider the extent of the deck and overall form and massing of the addition are sufficiently respectful of the heritage fabric of the host building and in this streetscape. The respectful and harmonious relationship sought by policy is not sufficiently achieved. I have considered changes proposed by Messrs Wren and Bisset and those recommended by Council's heritage advisor. I do not adopt any one proposed set of changes. I find the works would need to be modified to reduce their scale and height by relocating the stairs, matching the roof pitch of the retained roof, and modifying setbacks as well as cutting back the roof deck. These changes would reduce the floor area to the dwelling and height of internal spaces.

Is the proposal acceptable in terms of neighbourhood character & DDO1?

The submissions by the Council and Respondent Objectors with respect to neighbourhood character were similar to those matters I have addressed above. DDO1 was less contentious although there were some submissions on these provisions as well.
Neighbourhood character and heritage are intrinsically linked in the site's context and that is evident in Clause 22.01. However, there are broader considerations mindful that the site and surrounds are in an area promoted for development (DDO1 is the Port Melbourne Mixed Use Growth Area). Clause 55 and the Residential 1 Zone require the proposal to respect neighbourhood character and here there is guidance concerning development expectations and design objectives in this locale.
In my view, the proposal responds better to the character and design outcomes being pursued by the Scheme than heritage outcomes. Character and design objectives and policies suggest a degree of change is acceptable. That must be balanced with heritage objectives. The existing degree of diversity in the streetscape and wider view cone allows some variety to be accommodated. I have less concern about the proposed works from a neighbourhood character perspective given that diversity and the background and foreground elements which are read together with the built form on the review site. The proposal would meet the mandatory standards of DDO1 and I note the layout would not exceed two storeys.
Mr Hewett submitted the proposal would not comply with the building design requirements because the rear unit would not have a sufficient degree of visual interaction with the street. I do not agree. The lane is an acceptable entrance as a matter of principle. However, in my view, this aspect of the proposal requires some design revisions as I discuss below particularly to reduce the development's impact on the Beazley dwelling.

Would there be unreasonable impacts on the amenity of abutting dwellings?

Messrs Hewett and Bisset raised concerns about the potential impacts of the development on the amenity of the property to the east of the site [No. 1 Beaconsfield Parade] in terms of visual bulk and overshadowing. Mr Bisset referred to the location of private open space in his clients' dwellings [which I have viewed] and the extent to which the proposal would represent unreasonable visual bulk. He was critical of the proposal's failure to meet Rescode standards with respect to overshadowing and referred to a lack of articulation associated with the eastern upper level wall. He also submitted the proposal would unreasonably impact on a window in the older part of the building as a result of the position of the stairs to the deck. He opposed the extent of the deck particularly in terms of privacy impacts. Mr Bisset tabled plans showing ways in which the development could be modified to reduce the impact upon his clients' properties.
Mr Wren relied upon Mr Crowder's evidence that the proposal achieves an acceptable outcome. Mr Crowder referred, inter alia, to the proposal's compliance with Standard B17 of Clause 55 (based on equivalent floor levels) and suggested the eastern elevation could be further articulated in terms of materials and finishes. A revised eastern elevation was tendered by Mr Wren involving increased setbacks and variations to the rear roof form as well as additional windows (said to be fixed obscure). Mr Bisset said his client would prefer the windows deleted if the proposal proceeds.
The building to the east of the review site imposes itself upon the review site. The proposal is able to achieve a reasonable separation from the abutting dwellings and the alterations to the eastern elevation tendered by Mr Wren offer a reasonable outcome in my view taking into account further reductions in floor levels and roof pitch to address the matters I have referred to above. That is because the setbacks would be increased and the height would be lowered. In reaching my conclusion that an acceptable balance could be achieved, I give weight to compliance with the applicable Clause 55 standard (B17). Shadowing to the lower unit may not comply with the Clause 55 standard but the shadowing impacts would be reduced with greater setbacks and a lower building with the changes I have identified. I would prefer windows (that could be highlight in format instead) in the eastern elevation but another treatment may be possible.
Mr Bisset suggested that the roof deck be setback to align with the boundary wall of the two storey Victorian building for privacy reasons. I agree with his suggestion for heritage reasons, as discussed, rather than because I consider the off-site amenity impacts would be unreasonable. Similarly, I am concerned about the position of the stairs to the deck for heritage and streetscape reasons rather than amenity effects on the window in No. 1 Beaconsfield Parade that is on the boundary.
I next refer to the northern elevation. Mr Beazley's dwelling is to the north of the review site. His concerns focus on impacts on the windows in his dwelling in terms of a loss of daylight and sunlight. There are five large obscure glazed window panes on the southern elevation of this dwelling that are associated with a corridor into which the only available bedroom, kitchen and dining room windows face. While Mr Wren questioned the legality of the boundary windows and position of the title boundary, the issue arising in this permit application is about a solid wall that would limit light and sunlight into Mr Beazley's dwelling; the sets of internal and boundary windows are the only windows to the habitable rooms. In my view, the position of the garage and entry to the rear unit with a wall height of 3.4 metres is an unreasonable imposition and would negatively affect the amenity of the Beazley dwelling. Changes to the proposed rear wall and entry position could reduce the impacts. That could be achieved by reducing the length of the wall by repositioning the entry and lowering the wall by using a raked roof for the garage. The type of approach is shown in the plans tendered by Mr Bisset at the hearing.
Finally, the plans do not show the location of plant and equipment. This is, however, a matter that could be addressed by permit conditions where such details are shown on endorsed plans.

Some parties, including the Council, were critical of the use of one of the lanes to access the rear unit as noted above. This was said to be an uncharacteristic design response.
I am not persuaded that access from the laneway should be precluded and the question is really how this might work in a revised proposal. The suggestion offered through Mr Bisset's submission is one example and a revised design can provide a gate for security and design cues/architectural detailing as markers to the entry.
The Council also referred to other concerns about the layout of the development upon which I summarise my findings next:
- the open space for the rear unit is contained in two areas of which the roof deck is accessed via stairs and separate from the living room. The unit has a secondary area at ground level. Even with the deck cut back, I find the outcome to be acceptable albeit a little unusual.
- I agree that shadowing of the small area of private open space for the front unit is a concern. While I note the expansive public resource in the immediate area, the area would be substantially shaded and that could be reduced by reducing or removing the cantilevered section over the 2.7 metre wide section.
- I am satisfied that the western elevation could be suitably treated to respond to energy efficiency objectives.

For the above reasons, I find the proposal does not represent an acceptable outcome in the terms required by the Port Phillip Planning Scheme. The proposal would need to be revised and modified to potentially produce an acceptable outcome as discussed above. In addition to a modified east elevation, the changes would require matching the roof pitches of the retained dwelling and the addition, reducing the deck intrusion into the retained roof, lowering the whole of the addition, reducing the height and extent of the northern boundary wall, and improving open space for the smaller front unit.
My expectation is that the height of the addition would need to be reduced to generally accord with developments such as the approved works at No. 7 Beaconsfield Parade.
I have carefully considered whether the changes can be dealt with by permit conditions or whether to issue an interim decision. Given the extent of changes and mindful of potential unforseen consequences and impacts, I have decided the appropriate course is to affirm the Council's decision and hope that the clear directions I have set out in these reasons assist all parties in the preparation of any future permit application.

[1] Due to the offset orientation I have simplified directional references for ease.

[2] A section 87 proceeding has been lodged by Mr Wren's client with respect to a permit issued by the Council for balcony treatments to be modified to screening. That has not been heard by the Tribunal. The permit has not been enacted.

Environment Act 1987

Kidston v Port Phillip CC [2009] VCAT 233

At a glance

Court

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Before

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Judgment (24 paragraphs)

Kidston v Port Phillip CC [2009] VCAT 233 (17 February 2009)

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Legislation Cited (1)