1. The decision of the Responsible Authority is set aside.
2. In permit application 2007/608 a permit is granted and directed to be issued for the land at 4 Bonleigh Avenue Brighton in accordance with the endorsed plans and subject to the following conditions. The permit allows the construction of a front fence, gates and a side return fence under the Heritage Overlay in accordance with the endorsed plans and subject to the following conditions:

1. The plans to be endorsed and which will form part of the permit are:

• The layout plan showing the location of the front fence, gates A & B and the side return fence;
• The detailed elevation of the gates A & B with the handwritten note of the olive green colour;
• The substituted elevations of the front fence and side fence known as pages 579 and 582 in the applicant's volume of exhibits provided at the Tribunal hearing.

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

3. This permit will expire if one of the following circumstances applies:

• The development is not started within two years of the date of this permit.
• The development is not completed within four years of the date of this permit.

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.

1. This is an application by Mr Langton-Bunker to review the decision by Bayside City Council ('the Council') to refuse to grant a permit for the construction of a new front fence, gates and a side return fence at an individually heritage listed property at 4 Bonleigh Avenue, Brighton.

1. The site has a total area of 842m2 and contains a double storey dwelling. It is situated one property north of the intersection of Bonleigh Avenue and Martin Street. At present, the site has a driveway at either end of its frontage with no fence or gates on either side of the driveways. In the centre of the frontage is a low bluestone wall with landscaping behind.

1. It is proposed to construct two pairs of wrought iron gates across the two existing driveways at the north-west and south-west corners of the site. Each pair will be 2.165m in height with scrolls and lamps adding an additional 0.7 to 0.75m in height. Between the gates will be a new front fence comprising coursed bluestone of 0.75m in height with wrought iron infill above to a height of 0.95m, creating a total height of 1.7m. Along the southern boundary will be a return bluestone boundary wall that curves up to reach a maximum height of 2m.

1. The review site is zoned Residential 1 under the Bayside Planning Scheme ('the Planning Scheme'). No planning permission is required for the construction of a front fence, front gates or side return fence under the zone provisions.
2. The review site is affected by a Design and Development Overlay Schedule 2, which is a building height control for inland areas. No planning permission is required to construct a fence under this overlay as planning permission to construct a fence is not specifically contained in Schedule 2.
3. The site is also affected by Heritage Overlay HO80, which is a site specific heritage control affecting 4 Bonleigh Avenue, Brighton. Planning approval is required to construct a building or construct or carry out works, including a fence (which also includes front gates). The construction of a fence is exempt from the notice requirements, decision requirements and review rights generally provided to adjoining property owners and occupiers.
4. The decision guidelines require consideration to be given to whether the bulk, form and appearance of the proposed fence and gates will adversely affect the significance of the heritage place.
5. There is a Heritage local planning policy in the Planning Scheme that applies to all properties within the Heritage Overlay. It is policy to take into account the statement of significance of a heritage place when making decisions about proposed buildings and works associated with that place. In regard to front fences, it is policy to ensure that new fences are constructed in a manner that is sympathetic to and contributes positively to the significance of the heritage place. The performance standards to be applied to achieve the policy outcome are:
   • Fences should not obscure views to the front façade of significant or contributory heritage places from adjacent streets.
   • The materials and scale of new fences should be consistent with the architectural period of the significant or contributory heritage building... Generally, fences should not exceed 1.2m in height and should only be constructed in solid materials if this is consistent with the architectural period of the building or precinct.
   • Where the design details and materials of an original fence are known reconstruction is encouraged. Where such details are not known cues may be taken from original fences within the precinct (where relevant) or on properties from heritage places from the same architectural period.

1. The Council refused this application for the following reasons:
   1. The proposal will detract from the existing streetscape and neighbourhood character.
   2. The proposed front fence and gates will have a detrimental impact on the heritage significance of the existing dwelling.
   3. The proposal is contrary to the purpose and objectives of the Heritage Overlay.
2. As I have already explained, the reason planning permission is required to construct the proposed front fence, gates and side fence is because of the Heritage Overlay. This overlay is a site specific control that affects 4 Bonleigh Avenue because of its heritage significance. It is not an overlay that affects a precinct, which is generally a broader area of a street or a neighbourhood. As such, I find the first ground of refusal is irrelevant to the reasons why planning permission is required. Therefore, my consideration of the planning merits of this proposal have focused upon whether it will have an adverse impact upon the significance of this individual heritage place.

1. In the City of Bayside Heritage Review by Allom Lovell and Associates, the site (Bonleigh) is described as a substantial double storey Victorian rendered brick residence and is considered to be of historical and aesthetic significance. The Statement of Significance includes:

Historically, the house remains an important remnant of one of Brighton's extensive 19th Century seafront estates. Aesthetically, the house is a substantially intact example of the type of seaside mansion which was extremely common in Brighton in the 19th Century, but of which only a few examples remain.

1. Mr Michell, on behalf of the Council, referred to a previous application for alterations and additions that was considered by VCAT; and relied upon the advice of the Council's heritage advisors.

1. In 2005, Senior Member Byard considered alterations and additions to Bonleigh, which included new front gates. Mr Michell referred to paragraph 61 of the decision and submitted Senior Member Byard was not persuaded the gates should be accepted, but Mr Michell acknowledged Senior Member Byard withheld final judgement on the merits of the gates. In that case, Senior Member Byard was presented with expert heritage evidence in support of both the Council's case and Mr Langton-Bunker's case (including evidence from Allom Lovell & Associates). I am of the opinion it is useful to quote a few paragraphs of Senior Member Byard's decision as it assists to set the context within which the Council has made its decision on this planning application.
   1. The case is put on behalf of the responsible authority that gates A and B, that is to say, the gates proposed at the street frontage, are also quite inappropriate to the building, at least in their proposed sitings. They are not at the beginning of a driveway through substantial grounds leading to a mansion house. They are stuck on a street frontage 7 metres from the alignment of the front wall of the mansion. While not so elaborated as the arched gates C and D, they are nevertheless ornate, and in the view of the responsible authority and its heritage advisor, over ornate for their proposed context.
   2. I have some sympathy for the view of the responsible authority in this respect. I am not persuaded that the gates should be accepted. Nevertheless, I have two points to make in relation to them. The olive green colouring of the wrought iron work means that the installed gate posts, at any rate, are not overly prominent and intrusive. Perhaps the posts are less ornate than the gates, and perhaps they may detract less from the relative simplicity and dignity of the house. Furthermore, although I think there is some weight in the argument that they are all together too close to the house, it is nevertheless true that, although related to the house, they are not attached to it. Indeed they are, to some extent, detached from it. Are they then necessarily beyond the pale?

62 The heritage consultant called as a witness on behalf of the responsible authority took a fairly purest view in relation to conservation and alterations to the heritage building. That view favours conservation, and that is fair enough. However, the pre 1917 verandah cannot be conserved, as it was removed in that year. The view is then taken that photographs and other evidence might be studied with a view to producing an authentic replication of what has been lost. I have described this view as somewhat purest because it seeks to exclude the substitution of something that might have been available and equally in keeping with the original. It seems that this view, applied to any front fence or gates on the current street alignment would dictate that there cannot be any such structures. There was no front fence or gates here originally, because this was not the street frontage anyway. Does this mean that there cannot be any front fence or gates if now desired?

63 I don't think the responsible authority is necessarily going so far as to say that. Perhaps some relatively simple and modest expression of a fence and gates interpretive of (to use currently favoured jargon) suitable 19th century structures of that sort may meet with council approval. It seems that gates like A and B may be thought to be far too elaborate and interesting in themselves and such as to detract from the heritage building and what is left of its context.

64 I am of the view that it is inappropriate to make a final decision in relation to gates in isolation from the intended associated fence. The inter-relationship of gates and fence is so important that I think it is inappropriate to consider them separately. I have mentioned that there is a principle to which applications for various planning permissions for one project should not be made separately in a piecemeal sequence so that the inter-relationship of components cannot be properly considered. I consider that this principle must apply to fence and gates, if they are to be pursued, in relation to the street frontage of this property.

65 I therefore propose to decline to grant permission for gates A and B. In doing so, I am not purporting to finally reject them, although I am certainly not determining that they will be ultimately acceptable.

1. The Council referred this application to Lovell Chen (the new company name for Allom Lovell and Associates) who stated the proposed front gates and piers appeared to be the same as those refused by the Council and VCAT in 2005. The advice went on to state the gate design is over elaborate and inappropriately scaled for the property and for its proximity to the house; the gates are well in excess of the recommended height of 1.2m; and a low bluestone front fence and tall gates are at odds with the type of construction expected in the 19th Century. It was suggested that any variation between the bluestone fence and gate height would have been mediated by a palisade fence on top of the bluestone wall to bring the scale of the fence in line with the gates. Lovell Chen concluded such a design would be out of keeping with this particular place, obscure views of the place and be inconsistent with the house and its location.
2. The design of the front fence is depicted in an elevation that was substituted at an earlier Tribunal hearing on this matter. Because of this late substitution the hearing of the merits of the case was delayed until now so the Council could seek further comments from its heritage advisor. Mr Michell advised its heritage advisor had now changed from Lovell Chen to Mr T Westmore. Mr Westmore's referral advice comments on the history of Bonleigh including that its frontage is not its historical frontage and the carving up of the land around it has effectively left it on a "mere suburban block and in a suburban setting". Mr Westmore acknowledges that, in this setting, it has no front fence where a front fence would be a normal part of its context, and states a sympathetic outcome to its heritage significance requires reference to the typical suburban fence topology of the 19th Century. His concerns with the proposal are:
   • The fence does not have a pedestrian entry.
   • The elaborate gates at the side of the site distract from the desirable central focus and give the vehicular entries (of which there are theoretically too many) undue prominence in the overall composition with the dwelling behind.
   • The use of wrought iron in the proposed patterns is not consistent with the Victorian character of the place as established by the building, or for that matter with the Interwar classicist style of the added portico/ verandah. While wrought iron may have been a common Interwar fencing material, it would not have been used in the way proposed to front a Classicist composition.
   • The use of basalt pitchers is entirely inappropriate. These were intended only for road-works, not for focal parts of high status dwellings. Their use in fencing, even when common in the mid-late 20th C is regrettable and now passé.
   • The height and proportions of the fence are inappropriate. Fences to historic two storey buildings in a tight suburban context are appropriate at 1.5m but not higher.

1. At this point in my decision, I wish to digress for a moment to make comment on the Council's processing of this application and, specifically, its practice of not providing internal referrals to a permit applicant. The Council sought the advice of Mr Westmore following the substitution of the amended front fence elevation in May 2008 and has provided quotations from Mr Westmore's advice and a full copy of the advice in the appendices of the Council's submission. Lovell Chen's advice is also quoted in the Council's submission. Mr Langton-Bunker brought to my attention that he was not provided with a copy of these internal referrals in full but rather a photocopied extract of less than a page of the four page advice by Mr Westmore as to what would be an appropriate solution for the design of the front fence and gates. Mr Michell explained to me the Council does not allow internal referrals to be provided to the applicant because "they have been taken out of context in the past" and the Council relies upon a decision of the Tribunal in support of this practice.
2. The decision of the Tribunal was by Deputy President Gibson at a directions hearing in February 2005 where the Deputy President ordered that a request for a direction that Council release internal officer's memorandums from its files be refused. The reasons were given orally at the direction hearing and subsequently revised and, hence, consist of three paragraphs. I note the application for review was against conditions contained in a permit and Deputy President Gibson found it was not considered appropriate to make such an order "in that case". That, in my opinion, is the key phrase for the Council to be cognisant of. The Council must decide in each application (in each case) whether it is appropriate to provide copies of internal referrals to an applicant. In this case, the Council is relying upon the advice of its heritage advisors and yet, the applicant was not provided with a full copy of the original advice from either of the heritage advisors[1] upon receipt by the Council officers. In the interests of fairness and natural justice, I encourage the Council to review its practice and make a judgment in each application as to whether internal referrals should be provided to an applicant so that they can understand, and respond to, matters of concern to the Council. I am of the opinion this case is an example of when internal referrals should be provided to an applicant.

1. Mr Michell summarised the position of the Council's heritage advisors by stating the scale and design detail of the front fence and gates is not appropriate for the period and style of the dwelling; they will impact upon the heritage significance of the house; and they will result in unreasonably dominant and distracting discordant features.
2. Mr Langton-Bunker relied upon and provided to the Tribunal extensive exhibits. He submitted Bonleigh is not pristine in its heritage value because of the 1920s portico that sits on the front façade of the building. The use of wrought iron and bluestone is integral to the history of the development of fences and gates in the period during which this house was constructed. He submitted:
   • The design of the wrought iron scrolls in the gates is a similar detail to that found at Billilla (26 Halifax Street, Brighton) which was constructed in 1878 and I note Bonleigh was constructed around 1871 or a little earlier.
   • Examples of gate height and detailing that was used as a basis for the design of the proposed gates include decorative cast iron examples in a Stewart and Harley catalogue of 1897; the existing gates at Wanganella in Camberwell (built in 1870), at Airlie in South Yarra (built circa 1873), at Linden in South Yarra (1872), and at Highlands in Hawthorn.
   • Examples of tall wrought iron gates within Victoria Parade that are about 1.5m from the frontage of buildings.
   • The front fence design is based on cast iron gates and standards found in the Stewart and Harley catalogue of 1897 which have a bluestone plinth and a continuation of wrought iron design work that matches the design work of the front gates.
   • The height of the bluestone plinth in the proposed front fence matches the height of the central panel in the proposed front gates.
3. Mr Langton-Bunker submitted the proposed front fence and gates are respectful of the significance of his heritage building and would not adversely affect its heritage significance. In saying this he contrasted his proposal with the existing front fence and gates of B graded buildings (like his building) at 32 Middle Crescent, Brighton (known as Melville) and 22 Martin Street, Brighton (known as Warrawee). These examples are modern, solid and tall fencing and gates that are not consistent with the architectural period of the B graded building. I agree with Mr Langton-Bunker that these two examples are, arguably, not respectful of the significance of the B graded buildings.
4. The matters I have listed above that form part of Mr Langton-Bunker's submission are by no means the only matters and examples that he provided to me in the five volumes of exhibits in support of the design of his front fence and gates. I find Mr Langton-Bunker has undertaken a great deal of research and given detailed consideration to the design and appearance of the front fence, gates and side return fence to his heritage listed house.
5. I return to the Council's internal heritage referral advice and the Heritage local planning policy in regard to front fences and find the proposed front fencing and gates are to be constructed in a manner that is sympathetic to the aesthetic values of this heritage place. The existing open frontage of Mr Langton-Bunker's property makes no contribution (positive or negative) to the significance of this heritage building. I am satisfied the proposed design has taken its cues from original fences and gates that were constructed on properties erected in the same architectural period. I am also satisfied the materials and scale of the new fencing and gates will not dominate the front façade of the building but will be a distinct element that is separated from the house. The view of the front façade of the house will not be obscured by this proposal.
6. I have had the benefit of inspecting the gates in their proposed locations and am satisfied that the proximity of the gates to the front façade of the house, including the 1920s portico that is not original, will not detract from the historic or aesthetic significance of Bonleigh.
7. For these reasons I am of the opinion that it is appropriate to grant a planning permit for the erection of the front fence, gates and side return fence.

[1] I note from the volumes of exhibits provided by Mr Langton-Bunker that he was provided with a quote in a letter from the Chief Executive Officer of Bayside City Council dated 21 January 2008 that appears to be the comments of Lovell Chen in full, but this was provided to Mr Langton-Bunker after the decision to refuse the application was issued on 3 December 2007.