Ms R Miletic, Planning Officer, for the Responsible Authority.

1. This is a preliminary hearing in relation to an application by Mr Lee against the refusal by Hobsons Bay City Council to grant an application for a permit for the demolition of an existing dwelling and construction of a new dwelling at 59 The Strand, Williamstown.

2. The purpose of the preliminary hearing is to consider whether the grant of the application for a permit is prohibited by Clause 2 of Schedule 4 to the Design and Development Overlay forming part of the Council's Planning Scheme by virtue of the height controls contained in Clause 2.

3. The land is located on the western side of The Strand north of the Yarra Street intersection. The site has City line views and overlooks the foreshore. It is generally regular in shape. It has a splayed frontage and a sliver of land extending along the western boundary. It occupies an area of 522m2 and has a notable slope from the frontage to the rear.

4. A 1970's two storey dwelling currently occupies the site.

5. The site is zoned Residential 1 under the VPP new format Hobsons Bay Planning Scheme. Pursuant to Clause 32.01 of the Residential 1 Zone no permit is required for demolition building or works where the land is over 300m2 in area and only one dwelling is proposed.

6. The site is subject to a Heritage Overlay where a permit for all demolition buildings and works is required.

7. The site is also located within the Design and Development Overlay (Schedule 4 - Foreshore Height Limitation) which sets out a maximum height of two storeys and requires a planning permit to construct a building or carry out works.

8. Clause 43.02-2 of the Design and Development Overlay provides that a permit is required to:

"construct a building, construct or carry out works. This does not apply if a schedule to this overlay specifically states that a permit is not required."

"Buildings and works must be constructed in accordance with any requirements in the schedule to this overlay. A schedule may include requirements relating to:

* Building setbacks, building height, plot ratio, landscaping any other requirements relating to the design or built form of new development.

A permit may be granted to construct a building or to carry out works which are not in accordance with any schedule to this overlay, unless the schedule specifies otherwise."

9. Schedule 4 to the Design and Development Overlay relates to Foreshore Height Limitation.

10. Clause 1 of the Schedule sets out the design objectives:

To protect and enhance the environment of the Hobsons Bay foreshore as an environmental, conservation and recreational asset of State, metropolitan and local significance.

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

To achieve development that is a high quality architectural and urban design standard.

To preserve solar access to the foreshore, including associated roadways, bicycle and pedestrian paths.

To protect the foreshore reserve and significant public open spaces from inappropriate development."

11. Clause 2 sets out the Height Control and reads 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 service level at the centre of the site frontage is the base level."

12. Clause 72 of the Planning Scheme defines the following relevant terms:

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.

The vertical distance between the ground level and the finished roof height directly above."

13. After the submissions by the parties at the hearing, the attention of the parties was drawn to the decision of Deputy President M F Macnamara of the Tribunal in Application No 1999/08003 in R Vincent v City of Hobsons Bay dated 31 March 2000 which related to the interpretation of the same height control in respect of the neighbouring property and 57 - 58 The Strand. The Applicant did not raise this decision in argument.

14. Clauses 14, 15, 16 and 17 of the decision read as follows:

"14. Mr Naughton was correct to observe that the prohibition is directed not to the number of storeys which may be contained in a building but to whether the building exceeds the height of two storeys. In my view these proposed units do exceed the height of two storeys as those expressions are used in the Planning Scheme. It may be conceded that in so far as the basement's protrusion above ground does not exceed 1.2m it is not a "storey"; however the prohibition is not upon buildings exceeding a particular number of storeys, rather it is against buildings exceeding the height of two storeys. These proposed buildings are two storeys high plus 1.2m. In the circumstances therefore they would if built, clearly exceed the height of two storeys.

15. It may well be that the corresponding height limits in the Kingston Planning Scheme and the Bayside Planning Scheme would not prohibit these developments. However the draftsmen of those schemes have chosen significantly different language to the language which is to be found in the Hobsons Bay Scheme DDO. These provisions are to be found in the local section of the relevant schemes and so there is no reason to suppose that these height controls should be uniform across municipalities. Moreover, when a draftsman chooses language different from a model that one might have expected him to be aware of, the presumption is that he was seeking to achieve a different result. Had the Hobsons Bay Planning Scheme intended to achieve the same result as either the Bayside Planning Scheme or the Kingston Planning Scheme it would have used either the same language as one or other of those Schemes or language which appears to have grammatically the same effect. The Scheme fails to do either.

16. It may well be that the overall policy which is evident in the height control and which can be derived from the explanatory statement accompanying Amendment L21 could in a general sense be as well achieved by the use of controls similar to those in the Bayside Planning Scheme or the Kingston Planning Scheme rather than the one actually adopted in Hobsons Bay which has a more rigorous operation for reasons I have already given. The precise manner of achieving the planning objectives to be found in a planning instrument is to be derived from the words in the control itself. No doubt the policy to be achieved may be resorted to clarify an unclear point of interpretation. Ultimately however the interpretation of the Hobsons Bay Planning Scheme on this point is in my view clear and there is no justification for modifying it on the basis that the Scheme's wider policies on bayside height controls could have been achieved by a less restrictive or prescriptive limit.

17. Likewise, the choice of the height of two storeys creates the possibility of serious anomalies given that a storey has no fixed height; but the Responsible Authority in its role of considering permit applications and this Tribunal on review of that function have no power to re-write the language of the Planning Scheme based upon considerations such as this."

15. At the conclusion of the hearing the parties were given the opportunity to make written submissions in relation to this decision. Subsequent to the hearing the parties made written submissions.

16. As mentioned above the land slopes upwards from the street towards the rear.

17. At the front of the proposed building, excavated to the same level as the street frontage, is a garage and store, a laundry opening into an entry area on the eastern side of the building.

18. Above that is a main floor. Immediately above the garage store and laundry this comprises a sitting, living and dining area, and a terrace at the front projecting over the driveway. Behind the dining, living room is a kitchen on the western elevation and a void enclosing the stairway above the entrance hall on the western side. Behind that is a bathroom, powder room on the east side and an office on the west, steps leading down to a playroom and bedroom which opens onto the rear garden at the same level.

19. Above is an upper level commencing behind the dining living area. It comprises a terrace on the roof of the entry hall, bedrooms 1 and 2 and appropriate ensuites and dressing rooms.

20. The rear of the two storey section is at natural ground level is raised above the natural ground level as it progresses towards the front of the block.

21. The highest point of the building is a 6 metre long 300mm high projection above the roof level at the front of the upper level running across the land commencing at the eastern elevation of the building.

22. Leaving aside this projection the roof of the upper level is the highest

23. The relevant parts of the Applicants supplementary submissions are as follows:

The permit applicant accepts that the two storey height limit in the Schedule is a mandatory requirement.

The permit applicant accepts that wherever a basement level is located on the site, it is defined as a storey, having regard to the express terms of the definition of basement. This is in contrast to provisions of the Bayside and Kingston Planning Schemes which specify that a building or works must not exceed two storeys, excluding any basement.

The predecessors of these controls were considered in Dervency Nominees Pty Ltd v City of Brighton (1994) 14 AATR 104, referred to by the Tribunal in the Vincent decision. In Dervency, the Tribunal held that a three storey building, comprised of a level no more than 1.2 metres above ground level and two storeys above the lowest level was not prohibited. Because the lowest level fell within the definition of basement, the height control did not prevent three levels.

In accordance with well established principles of statutory construction, it is submitted that the two paragraphs of part 2 of Schedule 4 must be given meaning and operation, and they must be read together.

The first paragraph regulates height by reference to the number of storeys. The second paragraph identifies where height is to be measured from; it does not specify how height is to be measured e.g. in metres. Nor does not he definition of building height in the planning scheme prescribe the units in which height is measured e.g. metres, storeys, adjacent buildings.

Accordingly, the permit applicant submits that the Schedule controls height not as measured in metres or works, but in storeys. The Schedule does not either expressly or by implication control height by reference to a height equivalent to a "conventional" two storey building height, contrary to the suggestion in the legal advice received by the Council.

The permit applicant accepts that the Schedule regulates height by reference to the number of storeys, but does not accept the distinction drawn by the Tribunal in paragraph 14 of the Vincent decision.

It is the permit applicant's submission that in applying the height control, there is no material difference between regulating height by reference to storeys and regulating the number of storeys itself. This is because "storey" is not defined in terms of metres, but is defined as "part of a building". Part of a building which is not a storey is not regulated by the height control. Otherwise the height control would create the absurd result that a two storey building could have no roof above the second level ceiling. This would be contrary to the decision of the Tribunal in Payton v Kingston City Council [2000] VCAT 216, paragraph 63 in which it was held that a pitched roof constructed over a two storey building was not an attic, did not fall within the definition of storey and was not an additional storey for the purposes of the height control in the Kingston Planning Scheme.

Similarly, works which are not part of a storey cannot be regulated by the height control. Tis would result in the absurd outcome that a two storey building could not be built on stumps or bearers above natural ground level; or that a two storey building on sloping land could not be built on fill to allow construction on a levelled site.

It is submitted that the Schedule allows a two storey building irrespective of its height in metres, location on a sloping site, construction on fill, floor to ceiling heights or roof pitch. Any of these techniques could increase the overall height of a building considerably whilst still complying with the Schedule.

If the height control had been intended to be measured in metres or to limit works on an equivalent of two storeys in height, such an intention should be manifest from the words of the control. The control should not be tortured into a meaning which its words do not justify, simply to provide the responsible authority with a more stringent mandatory height control.

Accordingly, the permit applicant submits that the proper interpretation of Schedule 4 of Clause 43.02 is to allow a building of any height (measured in metres) provided that provided no more than two storeys are above the level of the permanent footpath at the centre of the site frontage, measured above that level at any point on the site.

This interpretation means that a basement with two storeys above it is only permissible under the Schedule if the basement is entirely below the level of the permanent footpath at the centre of the site frontage. This is because the Schedule is on its face a control on the height above the level of the permanent footpath.

In this case, a particular design has been employed which steps the building up along the site with the slope of the land.

It is submitted that the finding that the design complies with the Schedule is consistent with the principle of statutory interpretation which requires a construction that promotes the purpose of object of a provision. In this case, the explanatory information accompanying Amendment L21 which first introduced the DDO provides that the control is to ensure that development is proximity to the coast protects the environmental and landscape values of the coast and is in keeping with the existing neighbourhood character.

It is submitted that on no view can the Schedule be interpreted to require a building to "look like" two storeys from a particular (but unspecified) point or points.

The responsible authority and Tribunal retain a discretion to determine whether any building which meets the two storey height control should be approved, having regard to the streetscape, urban design considerations and the view from the bay. It is submitted that the existence of this discretion warrants a liberal interpretation of the height control, given the residual discretion to refuse a proposal if it is unacceptable in design or character terms.

Accordingly, it is submitted that the plans comply with the requirements of Schedule 4 because no part of the building is more than two storeys above the footpath at the front of the site when measured at any given point. This is demonstrated by reference to section A-A.

It is submitted that the definition of storey does not include a landing between floor levels which functions only as a transitional space. A landing is not in the same class of spaces as an attic or mezzanine, because it provides no habitable living area. Accordingly it is submitted that the landing on the upper level should not be counted as a storey for the purpose of the height limit.

If the Tribunal is not satisfied that the proposal is three storeys because of the landing, a condition could require the removal of the pool at the lowest level where there are two levels above it. This solution is shown on the attached plan TP-01 Rev B.

Further, if the Tribunal is concerned that filling or other works above natural ground level in the centre of the site would make the building "more than two storeys", the building can be constructed using a cantilevered slab so no works take place above natural ground level in addition to the two storeys. This is shown on the attached plan TP - 15 Rev B.

If the decision of Deputy President McNamara is taken to hold that floor space below two discrete storeys constitutes something "more than two storeys", the permit applicant respectfully submits that the decision is fundamentally wrong and should not be followed. It is submitted that a subfloor area or space, whether it involves works or not, is not to be taken into account unless it is a storey - in the form of a "basement" of "built over parking area". The same principle applies to an above ceiling area or space. It is not to be taken into account unless it is a storey in the form of an attic.

It is submitted that the control is not breached unless there are to be more than two storeys above the level of the permanent footpath, that is, there are two storeys and part of an additional storey. There is no prohibition on two storeys and some additional part of a building that does not constitute a storey."

24. The Tribunal does not accept the Applicant's submission that the height control introduces a "storey" as a unit of measurement. Certainly the presence or not of 2 storeys is an element in the calculation, whether or not the storey is a conventional one, but the test is whether the height of the highest point above the specified level exceeds 2 storeys. In the Tribunal's view, any excess is either a storey or part thereof or an excess according to the ordinary units of measurement.

25. The Tribunal agrees with the Applicants submission that the height control cannot be given effective meaning on the basis of the strict definition of "storey". Ordinary roof and foundation structures in the building are not in the Tribunal's view prohibited by Clause 2. However the roof and foundation structures must to some extent be taken into account because Clause 2 imposes a limitation on "the height of its [a building or works] highest point above the permanent footpath at the centre of the site frontage."

26. Thus a 2 storey building with ordinary foundations, floor and roof structures built on a level site would not in the Tribunal's view offend Clause 2, but this site is not level and slopes upwards from the front to the rear.

27. The Tribunal accepts the Applicant's argument that the entry stairwell void does not constitute more than 1 storey, notwithstanding various access landings and bridges forming part of the stairs.

28. The Tribunal agrees partly with the Applicant's proposition that the height control allows a building of any height (measured in metres) provided no more than 2 storeys are above the level of the permanent footpath at the centre of the site frontage, measured above that level at any point on the site, but this Tribunal considers that this proposition does not dispose of the issue that the highest point of a 2 storey building on or above the natural surface on a block sloping upwards, could exceed a height of 2 storeys, the excess, being the distance between the lower level from which the height control is measured and the base of the building, and thus may breach the height control.

29. A result of the height control may be that if the land slopes upwards from the frontage, only 1 storey can be built on the higher natural surface level, or that 2 storeys can only be built if the site is excavated to the level at the frontage. Such a result results from the very specific drafting of the control. We do not consider there is any ambiguity uncertainty in the interpretation of the control, and consider it is not appropriate to use the Interpretation of Legislation Act to rewrite it when its intention is clear from its own words notwithstanding that it might be suggested that a height control expressed in some other way, such as metres, would be fairer and result in better design outcomes.

30. This Tribunal is not prepared to differ from the decision in Vincent v City of Hobsons Bay, and considers it is a correct exposition of the interpretation of this height control.

31. Analysing the structure of this building in the light of these principles indicates:

* the highest point of the building is a 300mm projection above the roof of the upper level, running 6 metres in from the eastern elevation,

* this projection forms the southern or front wall of Bed 1 on the upper level and is placed above part of the entry stairwell void.

* it is above the living, dining, kitchen area on the main floor level.

* directly below it is the northern wall of the basement garage store.

32. On this analysis the Tribunal finds that the height of the building exceeds 2 storeys, in that the height of its highest point above the permanent footpath at the centre of the site frontage exceeds 2 storeys in two respects.

(a) from the southern (front) aspect of the highest point, the excess is the height of the upper level, roof and projection above the 2 storeys comprising the basement and main storeys.

(b) >From the northern (rear) aspect of the highest point, the lowest point of the 2 upper and main storeys commences at a height about 2.8 metres above the frontage level.

33. This conclusion would lead to a dismissal of the application with a direction that no permit issue unless the applicant sought leave to substitute amended plans, and accordingly the Tribunal decision is to adjourn the matter to an Administrative Mention in about 60 days time.

34. In this context the Tribunal notes that but for the application of the height control, it would have been disposed to approve the proposal.