review of a decision to refuse to grant a permit.

To demolish existing buildings and works, including a 2-storey dwelling constructed in 1900 and known as Duart, at 121 Beaconsfield Parade and a 3-storey block of flats at 122 Beaconsfield Parade. To refurbish and make alterations to the existing 3-storey Victoria Hotel building at 123 Beaconsfield Parade. To construct new buildings and works to an approximate height of 16.6 m or 5 stories over a basement carpark and to use the whole complex for the purpose of 58 flats and a café/restaurant, with associated carparking.

Port Phillip Planning Scheme. The land is zoned Residential "C" with Urban Conservation Area No 1 and Height Controls Area 0818 Overlays.

1. The proposal is inconsistent with the objectives of the Urban Conservation controls.

2. The proposal would lead to the demolition of a locally significant historic building at 121 Beaconsfield Parade.

3. The proposal would lead to the demolition of significant sections of the Victoria Hotel building.

4. The proposal is excessive in height and there are no grounds to permit the variation to the extent sought.

5. The proposal would adversely affect the amenity of adjacent residential properties.

6. The proposal fails to comply with the objectives and techniques of the Good Design Guide.

7. The proposal represents an overdevelopment of the site.

8. The proposal would detract from a regionally significant historic building and is unsympathetic to it.

9. The proposal is unsatisfactory in terms of bulk and mass.

10. The proposed height is unsympathetic to abutting and adjacent buildings.

Mr C Canavan, QC and Mr J Gobbo, Barrister, instructed by Deacons Graham & James, Solicitors, for the Permit Applicant. They called as witnesses Mr Daryl Jackson, Architect, Professor Roz Hansen, Planning Consultant of Hansen Partnership, Mr David Whitney, Planning Consultant of Perrot Lyon Matheson Pty Ltd, Mr Bruce Trethowan, Specialist Heritage Consultant of Robert Peck von Hartel Trethowan, Architects, Dr Jan Penney, Professional Historian, Ms Carol Frank-Mas, Landscape Architect and Mr Russell Symons, Traffic Engineering Consultant of Ratio Consultants.

Mr I McP Pitt, Solicitor of Best Hooper, Solicitors, for the Responsible Authority. He called as witnesses Mr James Holdsworth, Manager of Urban Design and Architecture for the City of Port Phillip and Mr Andrew Ward, Architectural Historian

A number of Objectors made submissions on the following topics:-

- Dr Nick Cominos and Mr Patrick Casey (Overlooking/Privacy)

Dr Miles Lewis, Architectural Historian was called as a witness by the Objectors who supported their submissions with a number of models, a video, overhead projection slides, photographs and other documentation.

Written submissions were received from a Mr K A Wyatt and from the Conservation Manager of the National Trust of Australia (Victoria).

The Registrar of the Planning List of the Tribunal also received from the Office of the Minister for Planning and Local Government on 7 August 1998 a copy of a letter which the Minister apparently forwarded to Deacons Graham and James the Solicitors for the Applicant. The letter contained the following paragraphs:-

"Council has recently adopted its new format planning scheme and submitted it for my approval. The adopted scheme contains height controls that have been translated from the existing scheme and have not been strategically reviewed. This was recognised by the Advisory Committee/Panel appointed to hear submissions to the scheme as it recommended that the controls should expire on 31 December 1998.

Council had adopted this expiry date and I understand that it has commenced the review of height controls, which includes an assessment of urban character and heritage. Given this commitment, I would expect that any appeal heard during the transition period between adoption of the new scheme and its approval, would take a wider strategic view of the issues associated with any proposal and not be limited by the translated controls."

The following is an extract from the written submission made by Mr Pitt, Solicitor on behalf of the Responsible Authority:-

2.1 The appeal site is situate within a Residential C (South Melbourne) zone, to which clause 126 applies.

2.1.2 Pursuant to clause 126-1.2 "flat" is "permit required".

2.2.1 Under the adopted new format planning scheme [VPP] the appeal site would be situate within a Residential 1 zone in which zone the use is "permit not required".

2.2.2 A permit would be required to construct two or more dwellings on a lot pursuant to VPP clause 32.01-4.

2.3.1 The appeal site is within an Urban Conservation Area No 1 to which clause 154 applies.

2.3.2 Within that Area a permit is required, inter alia, to construct a building and for a building to be demolished, removed or altered externally.

2.3.3 Pursuant to clause 154-3 before deciding on an application mandatory considerations include, as appropriate:

* the character and appearance of the building or works and their significance to the architectural and historic character and appearance of the area;

* whether the location, bulk and appearance of the proposed building or works will be in keeping with the character and appearance of adjacent buildings and the area.

2.4.1 The appeal site is situate within Height Control Area 0818 under clause 144, which came into operation on 23 March, 1990.

2.4.2 Clause 144-3A makes specific reference to the special character of the South Melbourne foreshore and adjacent area.

2.4.3 Pursuant to Table 2 to clause 144 the maximum height limit for the site is 9 metres.

2.4.4 Pursuant to clause 144-3A a permit may be granted to exceed the maximum height limits.

"...where this is done to achieve the following urban conservation objectives:

* to conserve and enhance areas of architectural and historic significance and encourage development that is in keeping with them;

* to match the façade, parapet, wall or roof height, scale and bulk of adjacent buildings graded as either A or B in the South Melbourne Urban Conservation Study 1987;

* to restore or reconstruct missing and altered architectural elements on buildings graded A or B in the South Melbourne Conservation Study 1987;

* to develop new infill structures which complement but do not necessarily imitate the existing buildings listed as being of heritage significance in the South Melbourne Urban Conservation Study 1987;

* to ensure that any new structure is in harmony with the existing streetscape and heritage area characteristics.

2.4.5 The Hotel Victoria is graded A under the South Melbourne Urban Conservation Study 1987.

2.4.6 Duart is graded B under the South Melbourne Urban Conservation Study 1987. (As is the row of terraces adjoining to the west at 113 - 120 Beaconsfield Parade).

2.5.1 Victoria Hotel is also listed in the Heritage Overlay Schedule under clause 140A which makes that site subject to clause 6R in the State Section.

2.5.2 Under clause 6R-1 a permit is required to remove or demolish a building and to construct a building unless, pursuant to clause 6R-3 a permit for the development has been granted under the Heritage Act 1995.

2.6.1 Under the adopted VPP Scheme the Heritage Overlay under clause 43.01-1 and a Design and Development Overlay under clause 43.01-1 would apply.

2.6.2 Clause 43.03-1 is substantively the same, for present purposes, as clause 6R.

2.6.3 Under the Design and Development Overlay control in clause 43.02-2 a permit is required to construct a building unless exempt under the schedule."

Following a directions hearing on 17 April 1998, Mr R Byard, then a Deputy President of the Administrative Appeals Tribunal, directed that the appeal should be conducted on the basis of plans prepared by Daryl Jackson Pty Ltd, Architects, (Revision A) which amended the plans originally lodged with the application to the Responsible Authority.

At this hearing the Permit Applicant sought to substitute a further set of plans (Revision D) prepared by Daryl Jackson Pty Ltd, Architects and after hearing evidence as to the amendments to the plans from Mr Daryl Jackson, Architect, the Objectors sought a ruling from the Tribunal that the hearing should be adjourned to enable the amended plans to be further advertised to give the Objectors an opportunity to consider the amendments in detail and prepare themselves for an adjourned hearing.

After hearing submissions from all the parties the Tribunal announced that it would permit the Applicant to substitute the amended plans Version D for Version A and stated that it did not believe that the substitution would unduly prejudice the Objectors in the presentation of their submissions or deny them natural justice. The Tribunal stated that it believed that the details of the proposal were now clear to all the parties and that if necessary leave would be given to the Objectors to make additional submissions after the Responsible Authority and the Permit Applicant had completed their submissions and evidence.

The hearing then proceeded to consider the permit application with the plans prepared by Daryl Jackson Architects Pty Ltd (Revision D) in substitution for those lodged with the permit application.

After inspecting the site and the surrounding location and considering the submissions of the parties and the evidence given during the hearing the Tribunal decided that it should affirm the decision of the Responsible Authority to refuse the permit application and notified the parties that it would deliver oral reasons for its decision and hand down a written order on Friday 25 September 1998. However on Tuesday 22 September 1998 the Solicitors for the Permit Applicant sent a fax to the Tribunal advising that a further amended proposal was being prepared by its Architect, Mr Daryl Jackson, and requested the Tribunal to adjourn the delivery of its decision to enable discussions concerning the further amended plans to be held between the Applicant, the Responsible Authority and the Objectors.

When the parties assembled to hear the Tribunal's reasons for decision the Tribunal stated that, in the circumstances, it would be prepared to publish its reasons for rejecting the proposal so that all parties would be aware of its views but would not make a formal order and would adjourn the matter to a date to be fixed to enable the further proposal to be finalised and discussed and if necessary further refined. When this process had been completed the Tribunal indicated it would re-convene the hearing to further consider the application. All parties agreed to this course of action.

The following are the reasons on which the Tribunal had decided to affirm the decision of the Responsible Authority to refuse the permit application:-

"This application for review raised the following principal issues for determination:-

. Whether by constructing buildings in excess of the 9 metre height control the development will achieve the urban conservation objectives listed at Clause 144 - 3A of the Port Phillip Planning Scheme.

. Whether it is appropriate to demolish Duart, a B graded building in the South Melbourne Urban Conservation Study of 1987, given its local significance and its contribution to the special heritage character of the urban conservation area within which it is located.

. The likely impact on the amenity of occupants of adjacent residential properties, especially in terms of visual impact and overlooking, having regard to the purposes of the Residential "C" Zone, the purposes of the Urban Conservation Area No 1 and the Ministerial statement of August 1997 in response the Review of Development Control Techniques.

. The design excellence and liveability of the proposed dwellings having regard to the objectives in the Ministerial statement of August 1997 and the Residential "C" Zone purpose to ensure that adequate provision is made for, among other things, daylight.

. The provision to be made for off-street parking and access to such parking spaces and whether an unreasonable level of reliance is made on kerb side parking spaces.

Our principal finding is that the development falls at the first hurdle of the height control. Put simply it is our conclusion that the additional height above 9 metres cannot be justified on the basis of achieving the urban conservation objectives set out in Clause 114-3A. Our reasons for making this finding are set out in more detail later. By falling at the first hurdle there is arguably little need to set out our findings and reasons in respect of the other issues in dispute. However, having regard to the likelihood that a future application may be made, it is appropriate, we believe, to briefly set these out.

Despite the very interesting historical research undertaken by the various conservation experts, as well as Mr Peter Wilson's carefully prepared submission, we have been unable to find that Duart is a building which must be preserved "for ever".

We do say however that Duart makes an important contribution to this seaside streetscape. It may not incorporate view-seeking towers, as later versions of the Queen Anne style appear to have done but then not many other dwellings in Beaconsfield Parade have done this either. We prefer Mr Lovell's analysis of the building's significance. At page 12 of his report on Duart Mr Lovell concludes, in relation to the level of significance of the building, that:-

"The residence at 121 Beaconsfield Parade is considered to be significant at a local level. The significance of the building relates principally to its role as one of a group of surviving late nineteenth and early twentieth century elements in this stretch of Beaconsfield Parade_. Its historical association with former Victorian Premier and long-time politician, Allan McLean, is of interest and adds to this local significance."_

It is useful to refer also to Mr Lovell's findings in relation to the historical significance of the Victoria Hotel. At page 16 of that report a positive benefit is acknowledged from the fact that the block of Beaconsfield Parade within which the hotel stands (and which includes Duart next door but one), "still conveys a strong sense of its history as a seaside residential and recreational precinct and is substantially intact to its late 19th century appearance." Accordingly we find that Duart contributes to the setting of the Victoria Hotel.

Not withstanding our finding that Duart may not be of sufficient significance to warrant preservation for all time, our acknowledgement of its contribution to the local character of this heritage precinct causes us to accept Mr. Pitt's submission, that the building should be removed only if its replacement makes an equal or greater contribution to the urban conservation character of the precinct.

Appended to Mr Pitt's submission was a decision by the former Administrative Appeals Tribunal, comprised of Mr Russell Barton then Deputy President and Mr Gerard Sharkey, in Royal United Group v City of St Kilda Appeal No 1993/73854 (unreported). This was an appeal against a decision to refuse a permit to demolish 82 Queens Road, an 1880's villa, and to construct an eight level building comprising 84 apartments over basement car parking. In that case Mr Pitt also represented the Responsible Authority and he called Mr Trethowan to give expert evidence. In Mr Trethowan's opinion - as set out in his study of 20th century buildings in St Kilda - under which study the building had been Graded "A" despite not being of the 20th century - "where a graded building was proposed to be demolished any new development should contribute to an equal or greater extent to the urban character of the precinct or streetscape in which it was located."

Compared to Duart, the proposed wing A would not make an equal or greater contribution to the precinct. We say this not only in relation to its impact on the Beaconsfield Parade streetscape - where rather than celebrating the Bay we wonder whether it might be better described as exploiting bay views - but also in relation to its impact on other properties to the rear, which form part of this Urban Conservation Area No 1.

Mr Casey was concerned that the proposed development was not as respectful as Duart in terms of its contribution to the heritage character of the neighbourhood and we accept this submission. A person such as Mr Casey, who has purchased his dwelling mindful that his and his neighbours dwellings are within an urban conservation area, should be able to have confidence that the purpose of the controls over demolition and new development will be respected and pursued. The purpose of the Urban Conservation Area controls is "to conserve and enhance areas of architectural and historic significance and encourage development that is in keeping with them." We find that the rear treatment of the development, especially its bulk and modelling, does not conserve the architectural or historic significance of the area.

The Report of the Independent Panel which considered the Victoria Planning Provisions (VPP) format, Port Phillip Planning Scheme - an extract of which was included among Ms Hanson's appendices - made eloquent reference to the distinction between maintaining the heritage character of an area, where this has been recognised in statutory controls, and maintenance of urban character in a more general sense. The following relevant extracts are from pages 34 and 35 of that report:-

"The difficulty is that the quest to maintain a range of choice (in dwelling types and sizes throughout the municipality) is being confused with the issue of maintaining urban character and the issue of urban character is being confused further by frequently equating it with heritage character....

Maintaining urban character is not synonymous with maintaining existing building stock. Maintaining urban character pre supposes change, but change which respect the characteristics and elements which produce the evident character of the place.

Maintaining heritage character pre supposes that change will be minimal_. Most frequently it is the existing building stock which contributes to the heritage character of an area. Buildings, either individually or collectively, will have a heritage significance which should be conserved and enhanced. For this reason, there are controls over heritage places in respect of demolition, alterations or additions to buildings to ensure that the heritage significance of heritage places (be they individual buildings or precincts) is not adversely affected. This is not to say that new buildings cannot be constructed in heritage places,_ but greater respect and restraint will usually be required than in other locations_."_

It appears to us that the submissions and evidence called by the permit applicant failed to recognise this distinction.

A principal reason for demolishing Duart is to provide enough space for the basement and above ground carparks necessary for a development of this magnitude. Allied to this is the argument that restoration of the Victoria Hotel, a building of state significance, can be achieved only if supported or supplemented by a development of this magnitude. In other words the greater benefit of restoration of the hotel justifies the "sacrifice" of Duart.

This is certainly an argument which may be justifiable in appropriate circumstances. As it transpires we have found that a development of this magnitude, whilst enabling restoration of the hotel, will at the same time, "kill the Golden Goose". As we say later, a development of this size will, we believe, detract from or otherwise erode the elements or qualities which give the hotel its significance.

It is apparent to us that any future redevelopment will need to be of a lesser magnitude. Accordingly there may be less of a necessity to demolish Duart. Certainly any redevelopment scheme should give serious and careful consideration to its retention, albeit that development may be possible beneath and upon its grounds.

We have said already that as a replacement for Duart the proposed development does not make an equal or greater contribution to the heritage character of this urban conservation area. The scale and monolithic block-like character fails to respond, in our opinion, to the pattern or rhythm of development within the precinct. A dramatic illustration of this was provided by Dr Cominos' before and after, architectural models.

Even in the absence of this neighbourhood being within an urban conservation area, we would have found that the visual impact, in terms of a monolithic, block-like structure, would have constituted an inappropriate addition to this Residential "C" Zone. The Ministerial statement of August 1997, in response to the report of the Advisory Committee appointed to review development controls techniques to achieve good built form and design outcomes - the essence of which statement is now to be found within Clause 19-03 of the VPP, State Policy Framework - lists design principles to be had regard to in assessing developments not covered by the Good Design Guide. The relevant design principles of "context" and site consolidation, for development to take into account the natural, cultural and strategic context of its location and for new development to contribute to the complexity and diversity of the built environment, have relevance to these proceedings. We could find little in either Mr Jackson's or Ms Hanson's analyses of "context" which would justify a building of this magnitude interfacing, in the manner proposed, with the abutting residential precinct of which it forms a part..

There was concern also with the extent of window and balcony openings on the north and part of the west facing facades and the prospect of overlooking to the rear of dwellings in Kerferd Road, Phillipson and Ashworth Streets. Whilst we agree that a perception of overlooking may be likely, given the seeming five storey high wall of windows and balconies which this development presents, we find on analysis that actual overlooking, due to the nature and dimensions of nearby properties, is not as extensive as might first appear. We are confident that with careful attention, such as was suggested by Mr Morrison, the angle of vision could be deflected above and beyond any neighbouring rear yards.

In her evidence Ms Hanson drew our attention to the internal layout of these proposed apartments and the opportunities for daylight penetration into rooms located towards the centre of each apartment.

In order to maximise the number of dwellings able to obtain a sea view, each dwelling in Wing A has only one room opening to Beaconsfield Parade. This is the Living-room/kitchen. It is then some 24 metres from this window to the rear façade and the only other windows to these apartments, namely to the two bedrooms. The entry, bathroom and the third bedroom or study are proposed to be lit and ventilated by two, 5-storey high light-wells having dimensions of 2 metres squared and 1.2x1.8 metres.

Under cross-examination Ms Hanson admitted that this provision for light and ventilation was "a bit mean". We would go further and suggest that it is "very mean". Ms Hanson's suggestion for the light well adjacent to the study to be widened is, in our opinion, insufficient and inadequate.

The design principles set out at Clause 19-03 of the VPP's as introduced by the aforementioned Ministerial statement, include principles for energy and resource efficiency and for architectural quality as follows:-

. "All building, subdivision and engineering works should promote more efficient use of resources and energy efficiency....

. New development should aspire to the high (sic) standards in architecture and urban design."

At a time when designers are being encouraged to give greater consideration to daylight penetration in buildings and to the energy efficiency of their designs it is extraordinary that buildings with what can only be described as 19th century internal lighting are being designed here. Indeed we would go so far as to say that the 19th century dwellings within this area, given their one and two storey heights, have far better potential for natural light and ventilation than this development. Accordingly we seriously question whether the advantages brought by a single window facing the bay can be said to outweigh the inadequate provision for natural light and ventilation.

The evidence demonstrated that kerb side parking for persons resident within this neighbourhood is at a premium. This is due primarily to the fact that most dwellings within this area make no provision for off street parking. Given car ownership levels and the ratio of dwelling frontages to on-street spaces, it is understandable that persons within this neighbourhood should be concerned at the prospect of greater demands being placed upon the already limited number of kerb side parking spaces. The availability of kerb side parking is exacerbated by the proximity of this neighbourhood to the popular South Melbourne beaches.

The proposed development provides a vastly superior ratio of off street car parking spaces to dwelling units than is the norm within this neighbourhood. We are satisfied, given the relatively small size of these dwellings, that the provision to be made for residents is sufficient. Indeed it would be fair to say that most of the concerns raised about parking related to the provision for visitors to the apartments and for patrons of the restaurant.

It was Mr Symons evidence that of the 89 off street spaces, 83 would be available for residents of the apartments - at a ratio of 1 space for a 1 bedroom apartment and 1.5 spaces for the larger apartments - leaving 6 for use by restaurant staff. As a result, any visitors to the site would be required to park on the street. Applying a credit for the hotel's `potential', albeit "unrealised" parking demands, it was Mr Symons' submission that a net reduction in kerbside demand would result.

The only flaw to this analysis is the fact that hotel patrons are at present limited as to where they may park for more than half an hour or, at maximum, one hour. It was Mr Symons evidence also that visitor parking demands in high density residential development sites within other parts of the City of Port Phillip - namely St Kilda Road and Queens Road - had been observed to be higher than the 0.2 spaces per apartment suggested in the Good Design Guide. If this higher ratio of 0.5 spaces per flat is applied, a visitor demand of 29 spaces results, compared to 12 spaces under the Good Design Guide.

Presumably residents of these apartments will be as eligible as anyone else for the resident parking permits that enable them and their visitors to ignore the parking restrictions which existing hotel patrons and beach goers must observe.

Would this change from hotel patrons to visitors associated with such future apartments make a material alteration to the availability of kerb side parking within this neighbourhood? Having given some consideration to this issue we are of the opinion that whilst some change would result it would not be an unreasonable change given the potentially greater reduction in hotel patrons which the proposal provides for.

Clause 114 - 3A of the Port Phillip Planning Scheme is entitled `South Melbourne Foreshore Areas.' The purpose of this Clause is:-

"* To recognise the special character of the South Melbourne Foreshore and adjacent area.

* To reinforce the objectives of the South Melbourne Urban Conservation Study, 1987.

* To protect and enhance the built form and streetscape character of the South Melbourne Foreshore and adjacent areas.

* To specify the maximum building height for all new development, works and alterations in the South Melbourne Foreshore Area."

Under this overlay control the South Melbourne Foreshore, bounded by Beaconsfield Parade, Pickles Street, Frazer Street and an in-land line formed by Cameron Place, Beaconsfield Lane and Ashworth Street is included in a Height Control Area. This control applies in addition to the Urban Conservation Area Control. It was introduced by amendment RL 63, approved by the Minister for Planning and Environment on 13 March 1990. The explanatory report to Amendment RL 63 noted that:-

"Three separate height control areas (are proposed, with maximum height levels of 6 metres, 9 metres or 14 metres for new development.........Developments may be allowed to exceed the set maximum height limits where this is done to achieve urban conservation objectives, eg to match the height of an adjoining building of heritage significance.

The new controls are intended to ensure that new development is compatible with the scale and character of existing buildings and streetscapes identified as being of architectural or historic importance."

Except for a small area between the Mount Carmel School and Mills Street, where a 14 metre height limit applies, the majority of properties within the Height Control Area are limited to 9 metres with, for the most part, 6 metres being applicable at the fringes.

"A permit may be granted for a development to exceed the maximum height limit where this is done to achieve the following urban conservation objectives:-

* To conserve and enhance areas of architectural and historic significance and encourage development that is inkeeping with them.

* to match the façade, parapet, wall or roof height, scale and bulk of adjacent buildings graded as either A or B in the South Melbourne Urban Conservation Study 1987_._

* To restore or reconstruct missing and altered architectural elements on buildings graded A or B in the South Melbourne Urban Conservation Study, 1987.

* To develop new infill structures which complemen_t but do not necessarily imitate_ existing buildings listed as being of heritage significance in the South Melbourne Urban Conservation Study, 1987.

* To ensure that any new structure is in harmony with the existing streetscape and heritage area.

It was Mr Canavan's submission that this Clause should be read to mean that only one of the listed urban conservation objectives needed to be met in order to justify an exceedence of the 9 metre height control. In support of his contention he relied upon a legal opinion from Best Hooper solicitors to the City of Port Phillip, in relation to Appeal No 1997/72859 (unreported) R & J McIntyre and Others v City of Port Phillip and Riddle Radcliff, Architects. The opinion sought to make a distinction between a requirement to meet "objectives", such as the objectives of a clause within which controls are set out, and conditions for approval, such as may be found in the tables of uses for particular zones. It concludes that:-

"The better interpretation of Clause 144-3A is that Council has the discretion to grant a permit for a development which exceeds the maximum height limit provided one or more of the urban conservation objectives set out is met."

The opinion notes also how, in many instances, it might not be possible to satisfy all objectives at the one time. Referring to a decision of the Tribunal in Brown v Frankston City Council (1986) 24 APA 470, which considered the objectives of a planning scheme, Best Hooper Solicitors observed how the Tribunal had found that it would be rare for proposals to be consistent with all objectives of a scheme. The Tribunal said that "the important consideration was whether the proposal generally conformed with one or more of the relevant objectives."

Mr Pitt, arguing against Mr Canavan on this point, contended that whilst it might not be necessary for all objectives to be met, the better interpretation of clause 144-3A was that all relevant objectives needed to be met. In his submission he said it would be distorting the language and intent of the Clause to attempt to include within the phrase "done to achieve the following urban conservation objectives" the words, "done to achieve at least one of the following urban conservation objectives."

In our opinion Mr Pitt's is the approach to be preferred as it is more supportive of the purpose the Clause. Adopting Mr Canavan's approach one might be found to be endorsing something which, whilst complying with one objective, failed to meet another. The result could be a development, which constituted a poor urban conservation outcome. In our view the better interpretation is that the Clause requires a proponent to demonstrate that there is a warrant, for urban conservation reasons, to exceed the height control.

Mr Canavan and the witnesses called by him and Mr Gobbo, sought to demonstrate that this development should be permitted to exceed the 9 metre height control for the following reasons:-

1. The boulevard character of Beaconsfield Parade would be enhanced if a uniform, built form edge of about 5 storeys was to be constructed on its inland side.

2. The visual prominence and landmark qualities of the Victoria Hotel would be enhanced by the addition of Wing A as this would make the building read as a larger element overall, within the Beaconsfield Parade streetscape. In relation to this latter issue our attention was drawn to the inter-war addition to the George Hotel in Fitzroy Street, St Kilda which, in Mr Trethowan's opinion, had added to the visual prominence of that structure, giving it more of a landmark quality within Fitzroy Street.

We could find nothing in the material presented to us to justify the contention that a five storey built form edge to this beach side boulevard was either an original 19th century design intention or a design objective under current planning policies.

It appears to us that Mr Jackson, in making his claim for a higher built form edge, placed excessive reliance on the findings of the South Melbourne Urban Conservation Study of 1987 where, in relation to the heritage significance of Beaconsfield Parade, it is noted at page 6/8 of Volume 3 as follows:-

"Beaconsfield Parade is a component of a boulevard that originally extended from Port Melbourne to Elwood. Since the section through St Kilda and Elwood has been landbound, the section from Frazer Street to Pickle Street is an important major component that retains its original design concept. The location and layout of such a major beach promenade is reminiscent of the beach resort of the South Coast of England, for example Brighton_."_ (Tribunal's emphasis)

Mr Jackson appeared to be suggesting that, as with Brighton, England, a five-storey built form edge was a desirable outcome. In our opinion the reference in the conservation study goes more to the actual geographical and physical qualities of the Parade in relation to its foreshore location than to the buildings which front it. Indeed under the heading `Significance of Beaconsfield Parade", the study notes that it is "the basalt wall and broad pavement (which) provide a promenade that clearly evokes the period in which it was constructed. The direct view of and access to, the beach is of primary importance to Beaconsfield Parade."

Accordingly, we find the significance of Beaconsfield Parade as a boulevard lies with its physical and geographic qualities rather than with any building height or style which abuts it. If the height of an appropriate built form edge to the boulevard is to be determined then, in our opinion, it is the height suggested in the height controls of Clause 114-3A.

There was no disagreement that the visual prominence and landmark quality of the Victoria Hotel contributes to its heritage significance. Indeed Heritage Victoria's statement of significance for the Hotel includes:-

"The Victoria Hotel is of architectural and historic significance as:

* A prominent and substantial reminder of the recreational activities along Beaconsfield Parade in the 1880's;

* A substantial hotel which is which is an outstanding example of 1880s hotel architecture;

* Important illustration of the prominence of hotels in a late nineteenth century community;

* Important surviving example of the work of architect Richard Speight."

We do not accept the opinion of Mr Trethowan that the new buildings, by increasing the overall size of the structures associated with the hotel, will enhance the visual prominence of the hotel. Rather, we adopt Mr Holdsworth's opinion that the prominence and thus significance of the hotel will be compromised, rather than complemented by these new works. Such an outcome would be contrary to the Urban Conservation Objectives set out at Clause 144 - 3A. We agree with Ms Bunnett's submission that the additions to the George Hotel provide an example of how a larger structure, attached to something which may once have been visually prominent, can serve to diminish or belittle the original component. Having inspected the George Hotel it is our opinion that the original structure now has the appearance of a tacked-on or secondary element. In our opinion a similar change of emphasis would occur if Wing A were to be attached to the Victoria Hotel.

Not only do the new additions fail to complement the hotel and thus the historic significance of this area, in which it is the dominant element, they also fail, as was put by Mr Holdsworth, to respond sympathetically to the terraces next door to the west and to the dwelling at 202 Kerferd Road.

We agree with Mr Holdsworth that in order not to compete with the prominence of the hotel and to respect the abutting buildings, the development should be reduced overall by at least one storey - including at the west end adjacent to the terraces and at the north east end adjacent to No 202 Kerferd Road. Notwithstanding that the Revision D plans step the building down at the west and north east ends, we find that the resultant four and three storey edges fail to make an appropriate transition.

We do not go so far as to say that in Wing A, anything above second floor level should be set further back than the ground and first floors but we do accept Mr Holdsworth's opinion that the whole of Wing A - including any balconies - should be set back from the street. Such a set back should be located between the first and second windows in the hotel's western wall in order to reveal sufficient of the hotel's western wall to enable it to read as an individual structure. It would also provide a more appropriate setting for the terraces to the west.

The visual scale of Wing A is of concern also in that, despite its vertical and horizontal divisions, it has a monolithic quality. As was demonstrated by Mr Geoffrey Mills' analysis of visual bulk, this causes the structure to read as an out of scale element in the streetscape and could compete with the hotel for prominence. This might be able to be addressed by a more clear division of the structure into two parts, for example by dividing the wing into a four storey and a three storey component. At the same time a transition would be achieved between the terraces and the hotel. It may be possible also, as was suggested by Mr Holdsworth, to deal with this issue of visual scale, by the application of a heavier masonry base for the lower façade.

A final issue is that of the weight to be given to the permit issued by Heritage Victoria for that part of the proposed development occupying the actual hotel site.

Mr Canavan submitted that such permits, and the fact that pursuant to Clause 6R of the State Section, their issue absolves an applicant from the need to obtain a planning permit pursuant to the individual building controls of Clause 140A, is evidence of the fact that the new buildings do not detract from the heritage significance of the hotel. He contended that, as a result, the Tribunal was relieved of any obligation to assess the new buildings and works against the Urban Conservation Area No 1 controls of Clause 154 - particularly those buildings and works on the hotel site itself.

We accept that weight must be given to Heritage Victoria's permit, due to the acknowledged status and expertise of that body. We disagree however that we are prevented from making our own assessment pursuant to Clause 154. The matters to be had regard to when assessing a development against the Urban Conservation Area Controls are quite different from those to be taken into account by Heritage Victoria - particularly in the absence of the hotel being part of a `heritage precinct', as can now be provided for under the Heritage Act 1995.

We believe a distinction can be drawn between the assessment of the heritage impact of these new buildings and works on the architectural and historic significance of the hotel itself, and their broader impact on the architectural and heritage significance of the area within which the hotel and terraces are located. We have found that the hotel's visual prominence is an important element of the character and appearance of the area and we find that it is important, in order to conserve and enhance this area of architectural and historic significance, that this be maintained and not eroded.

1. The order of the Tribunal is that the hearing of the application to review the decision of the Responsible Authority to refuse the permit is adjourned to a date to be fixed.