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[2001] VCAT 697
appellant. Permit application no. 1622/99 granted for alterations and additions, subject to conditions requiring approved amended plans, deletion of Studio 2 over the existing garage and its connecting stair,...
The Tribunal approved a revised upper-level addition to a significant heritage dwelling. It treated the Heritage Overlay as controlling the scope of the assessment, so privacy, overshadowing and loss of daylight could not be considered as general amenity objections in this permit decision. The addition was sufficiently set back from Armstrong Street to read as a recessive new part of the building. Removing the garage studio and walkway and reducing the balcony also reduced its effect on Ashworth Street. The permit was granted with conditions.
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2,160 words · generated 01/10/2026
LRM Design House applied to the Victorian Civil and Administrative Tribunal for review under s 79 of the Planning and Environment Act 1987 because Port Phillip City Council had not granted a permit within the prescribed time for alterations and additions at 93 Armstrong Street, Middle Park ([1]). The Tribunal heard the matter on 5 July 2000 and issued its decision on 31 January 2001.
1 cited instrument linked from this judgment.
The site was a 412.76-square-metre corner allotment in a Residential 1 Zone and Heritage Overlay No. 3 ([6], [19], [21]). It contained a substantially intact, single-storey Federation-style dwelling constructed around 1920. The dwelling stood in a streetscape described as relatively intact and dominated by single-storey Federation and other period houses ([7]-[12]). Under the Port Phillip Heritage Review 1998, the dwelling was classified as a “Significant Heritage Place” ([30]).
The proposal included a new upper-level extension to the rear of the dwelling, providing a bedroom, studio space, storage and a rear balcony. It also included an attic area and, in its original form, a second studio over the existing garage, connected to the dwelling by an elevated walkway ([13]-[18]). The extension was to be set back about 17 metres from the Armstrong Street frontage ([13]).
Before submissions were made, the applicant said it would not pursue the garage studio and connecting stair, and was willing to reduce the rear balcony ([4]). The Tribunal’s final order required amended plans to delete Studio 2 over the garage and its stair, reduce the rear balcony generally as shown in the sketch considered at the hearing, and provide a schedule of materials, finishes and colours. It also imposed conditions controlling later changes to the endorsed plans and setting time limits for starting and completing the development.
The Council supported a permit subject to changes, while the adjoining occupiers objected on grounds including visual bulk, neighbourhood character, overlooking, shadowing and loss of daylight ([30]-[33]). The Member granted the permit in the amended form, finding the proposal acceptable under clause 43.01 and relevant planning policies ([47]).
The decision has two central steps. First, the Member defined what the Tribunal could consider. Second, the Member applied the heritage and character provisions to the amended proposal.
The permit was required because the property was in the Heritage Overlay. The Member therefore treated the purposes and guidelines of clause 43.01 as setting the scope of the assessment. At [35]-[36], the reasons referred to two earlier decisions, National Trust (Vic) v T & G Mutual Life Association Ltd and Salmal Construction Pty Ltd v Richards & City Of Hobsons Bay. The Member used them for the proposition that a decision-maker must not use a discretion conferred for one planning purpose to pursue unrelated purposes.
At [37], the Member applied that approach to the Heritage Overlay: its objectives and decision guidelines were “limited to heritage matters” and did not extend to general amenity considerations. Privacy, overshadowing and loss of daylight were identified as examples of matters that could not be considered in deciding this particular application. This did not mean those concerns were unimportant in every planning context. It meant that, in the Member’s view, they were outside the scope of the control that triggered this permit requirement.
The relevant assessment was instead whether the proposed height, bulk and appearance were in keeping with adjacent buildings and whether the heritage significance of the place would be adversely affected ([38]). The planning scheme provisions and policies set out in the reasons emphasised conserving heritage places, protecting established neighbourhoods and ensuring that new development responded appropriately to local character ([21]-[29]).
The physical design was important to the result. The upper level was set well back from Armstrong Street, behind the first two rooms of the dwelling and the existing front chimney. The Council’s planning officer said it would be partly visible but mainly seen as recessive roof form ([39]). The Member accepted that it would be read as a new, recessive element rather than displacing the original dwelling as the streetscape’s dominant feature ([44]).
The Member also considered the effect on Ashworth Street. Removing the garage studio and walkway, and reducing and setting back the balcony behind a complementary roof form, significantly reduced that impact ([45]). Although the side wall facing Ashworth Street would become higher, the Member did not consider the change adverse to the heritage significance of the place ([45]).
Finally, the reasons did not require exact architectural imitation. The Member accepted that not every design detail replicated Federation-era work, but considered the overall forms and details sufficiently respectful of the original building while allowing the extension to be identified as new ([46]). The proposal, with the agreed amendments, was therefore found acceptable under clause 43.01 and relevant policies ([47]).
The judgment is a VCAT decision applying the planning scheme provisions and authorities before it. It does not purport to set out a comprehensive history of Victorian planning law, nor does the supplied text establish the present status of the scheme provisions or the later treatment of this decision.
The relevant legal framework described in the reasons was as follows. The site was in a Residential 1 Zone, where a dwelling was an as-of-right use. The reasons state that the zone did not require a permit for an extension on a lot exceeding 300 square metres. Amendment C22 had introduced a permit requirement for certain dwelling extensions on lots between 300 and 500 square metres, but the amendment’s transitional provision excluded applications lodged before 15 March 2000. This application had been lodged in December 1999 ([19]-[20]). The permit requirement relevant to this case instead arose from the Heritage Overlay ([21]).
The “before” position described by the Member was that the general planning principle from National Trust and Salmal confined a discretion to the purposes for which it was conferred. The Member applied that principle to the Heritage Overlay and held that general amenity concerns were outside this particular decision’s scope ([35]-[38]).
The “after” position in this individual proceeding was the determination that the amended development was acceptable under clause 43.01 and the relevant policies, and that a permit should issue on conditions ([47] and order). The judgment does not state that it changed the law. Its significance in the text lies in applying the purpose-of-control principle to the facts of a Heritage Overlay application and distinguishing heritage impacts from general amenity objections.
The reasons also discuss the policy preference for a reconstruction or replica approach in some significant heritage settings ([29]). The Member did not treat that approach as requiring every feature of the addition to copy the original. Rather, the decision accepted an addition that was identifiable as new, but considered its location, setback, bulk and overall design sufficiently respectful of the heritage place ([43]-[46]).
At [35], the Member stated that “the scope of the matters which I may consider is constrained by the nature of the planning control which ‘triggers’ the need for a permit.” In plain English, the decision-maker must identify why a permit is required and keep the assessment connected to that reason.
At [37], the Member said clause 43.01 was limited to heritage matters and did not extend to general amenity considerations. In this case, that meant the Tribunal did not decide the permit by weighing privacy, overshadowing or loss of daylight as independent amenity grounds. The controlling question was the effect on heritage significance and character.
At [38], the Member framed the “fundamental issue” as whether the extension’s height, bulk and appearance fitted the character and appearance of adjacent buildings and whether the significance of the heritage place would be adversely affected. This directs attention to the heritage-related built-form effects, rather than treating every objection as equally relevant to the permit.
At [43], the Member observed that double-storey rear additions to formerly single-storey houses were not unusual in inner urban areas, including heritage areas. The passage is an observation about a design approach, not a rule that such additions must be approved. Its relevance was that a new upper level can sometimes be made visually recessive while the original single-storey element remains dominant.
At [44], the Member found the proposed addition would be set well back from Armstrong Street and “read as a new and recessive element”. In practical terms, the setback helped preserve the contribution made by the original part of the house to the principal streetscape.
At [46], the Member accepted that not every detail copied Federation-era design, but said that this was not by itself fatal. The Member considered the overall design sufficiently respectful of the original building. The passage supports a contextual, whole-design assessment rather than a requirement of exact replication.
The reasoning is most directly relevant where a permit is required under a Heritage Overlay and a party seeks to rely on general amenity objections in deciding that permit. The judgment says those objections are outside the discretion where they are not referable to the purpose of the heritage control ([35]-[38]). It is not a general statement that privacy, daylight or overshadowing can never matter in planning decisions. The reasons tie the limitation to this permit trigger and the provisions being applied.
The design reasoning may also be relevant to proposals for upper-level additions to heritage dwellings in predominantly single-storey streetscapes. The features that mattered here included a substantial setback from the principal street, retention of the original streetscape-contributing portion, the addition’s recessive appearance, and amendments that reduced bulk and visibility ([39], [44]-[45]).
The decision should not be read as establishing that every rear second storey is acceptable, or that a balcony or higher side wall will always be acceptable. The Member assessed the proposal in its particular setting, on the amended plans, against the cited planning policies and the heritage significance identified for this property ([42]-[47]). The conditions formed part of the outcome.
The reasoning about design detail is also fact-sensitive. The Member accepted that not every detail replicated Federation architecture because the overall forms and details were considered sufficiently respectful, and the Council’s Heritage Advisor had not objected to relevant details such as fenestration and materials ([31], [46]). The decision does not say that architectural detail is immaterial in every heritage assessment.
The supplied judgment contains no account of later cases applying, distinguishing, approving or disapproving LRM Home Design v Port Phillip CC & Copolov and Or. It is therefore not possible, from the supplied material, to describe how later courts or tribunals have treated this decision.
The judgment itself refers to two earlier authorities. It cites National Trust (Vic) v T & G Mutual Life Association Ltd at [35] and Salmal Construction Pty Ltd v Richards & City Of Hobsons Bay at [36]. The Member relies on them for the proposition that a planning discretion is confined to its statutory or scheme purpose, then applies that proposition to the Heritage Overlay provisions in this matter ([37]).
Those citations show the reasoning’s stated foundation, but they do not establish the later precedential status of LRM Home Design. Nor does the text provide full report citations or paragraph references for the cited earlier decisions. Any account of subsequent treatment would require sources beyond this judgment.
The reasons determine the application before the Tribunal but leave questions that cannot be resolved from this text alone. One is how the purpose-of-control analysis would operate where a concern characterised as amenity also bears directly on heritage significance or the appearance of a heritage place. The Member excluded general amenity concerns, while allowing consideration of heritage-related location, bulk, form and appearance ([37]-[38]). The judgment does not explore the boundary between those categories in detail.
Another question is how far the design reasoning extends to sites with different heritage classifications, different streetscape conditions or more visible upper-level additions. This dwelling was identified as a Significant Heritage Place, stood in a relatively intact streetscape, and the extension was set well back from Armstrong Street ([12], [30], [44]). The judgment does not lay down a numerical setback test or a general height threshold.
The reasons also do not explain the full effect of the Port Phillip Design Manual’s 10-degree sightline guideline. The parties discussed the guideline and an 18-degree sightline ([39]-[40]), but the Member’s conclusion rested on the proposal’s setback, recessive character and heritage effects rather than a formal ruling that one sightline measure governed.
Finally, the judgment is dated 2001 and describes the planning scheme then applicable. It does not establish the current wording of the Planning and Environment Act, the planning scheme, or later case law. Those matters remain outside what can be concluded from the supplied judgment.
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IN THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Planning List - S. 79 Planning and Environment Act 1987 - Port Phillip Planning Scheme -- Residential 1 zone - Heritage Overlay - MSS - Local Policies -Extension to dwelling - impact on heritage significance - impact on character - building bulk - amenity.
RESPONSIBLE AUTHORITY: Port Phillip City Council
1. With respect to permit application no. 1622/99, a permit is granted for alterations and additions to the existing dwelling at 93 Armstrong Street, Middle Park. The permit must contain the following conditions:
1. Before the use and development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must generally be in accordance with the plans prepared by LRM Design House Daw No 19564 dated November 1999 incorporating revisions dated February 2000, but modified to show:
(a) the deletion of Studio 2 over the existing garage and the stair connecting the Studio 2 with the dwelling.
(b) Reduction in the size of the rear balcony generally as shown on the sketch submitted to and signed by the Tribunal at the hearing and attached to the Tribunal's order.
(c) A schedule of materials, finishes and colours.
2. The development as shown on the endorsed plan must not be altered or without the written consent of the Responsible Authority.
3. This permit will expire if one of the following circumstances applies:
(a) The development is not started within two years from the date of this permit.
(b) The development is not completed within one year of the date of the commencement of works.
2. Pursuant to Section 85 (1) (b) of the Planning and Environment Act 1987, the Council is directed to issue a permit subject to conditions as set out in the order.
Applicant for Review: Mr P Edwards, Planning Consultant with Fastnet Consulting
Responsible Authority: Mr P Little, Planning Officer
1. This is an application under s.79 of the Planning and Environment Act 1987 brought by the permit applicant, LRM Design House, against the Port Phillip City Council's ("the Council") failure to grant a permit within the prescribed time with respect to Permit Application No. 1622/1999.
2. The parties tabled and spoke to written submissions to which they added further oral submissions. I was also presented with various other material including photographs of the subject land and the surrounding area, locality and planning scheme maps, plans and extracts from the planning scheme and other documents containing information or guidelines considered by the parties to be relevant to the consideration of this matter. All of the submissions and other material presented during the course of the hearing has been considered and is retained on the Tribunal's file.
3. After the hearing I inspected the subject land and locality.
4. Before the parties proceeded to make their submissions, Mr Edwards advised me that the applicant would not be pursuing the construction of a second story addition over the existing garage located at the rear of the land. Mr Edwards also said that the permit applicant was also willing to reduce the size of the proposed first floor balcony at the rear of the extension.
5. The other parties proceeded to make their submissions on the understanding that the applicant is willing to make the above modifications to the proposal.
6. The subject land is located on the north-east corner of Armstrong Street and Ashworth Street, Middle Park. The land has a regular rectangular shape with a frontage of 10.26 metres, a sideage to Ashworth Street of 40.23 metres and an overall area of 412.76 square metres. A bluestone laneway with a width of about 3 metres runs along the subject land's rear boundary.
7. The subject land is currently occupied by a single storey Federation style dwelling constructed circa 1920 which is setback about 7.5 metres from the land's Armstrong Street frontage but constructed to Ashworth Street boundary. The front section of the existing dwelling is also constructed to the north-east side boundary for a distance of about 9.3 metres with the balance or rear part setback about 800mm.
8. The original dwelling structure and period detailing appear to be substantially intact although it would seem that a single storey extension was constructed to the rear some years ago. The extension was constructed in manner that replicates the design of the original dwelling.
9. The only other building on the land of any note is a garage constructed to the rear southern corner, with access to it being from Ashworth Street.
10. The subject land has a common side boundary with the property at 91 Armstrong Street which is occupied by Mr Copolov and his family. The Copolov property is occupied by a single storey Federation style dwelling which is setback about 800mm from the common boundary with the subject land.
11. The property to the south, on the opposite side of Ashworth Street, is also occupied by a single storey Federation style dwelling fronting Armstrong Street. This property, known as 95 Armstrong Street, is occupied by Ms Kehoe.
12. The subject land is located within an established residential area. Armstrong Street displays a relatively intact streetscape dominated by the predominance of single storey Federation and other period dwellings.
13. The proposal involves alterations and a new upper level extension to the rear of the existing dwelling. The extension provides for one additional bedroom, a studio space with associated storage and an upper level balcony facing towards the rear. This section of the extension is to be setback about 17 metres from the subject land's Armstrong Street frontage. The extension will require the height of the existing south-west and north-east side walls of the dwelling to be increased by about 2.5 metres.
14. The balcony shown on the plans has an area of about 27 square metres, however, Mr Edwards indicated that the applicant is willing to reduce the size of the balcony by about 9 square metres by setting it in from the edge of the existing walls. This would allow for pitched roof form to rise from the wall up to the edge of the balcony to give this section of the extension the appearance of being single storey. He tendered a sketch showing how this could be achieved.
15. The proposal also involves the transformation of part of the existing roof space forward of the extension into a small attic space that provides for a small dark room, storage area and toilet.
16. The materials to be used for the extension are red bricks and a terra cotta roof tiles to match the existing external finishes of the dwelling.
17. Other alterations and works include the construction of a new front fence, the re-configuration (including a small extension built to the north-east boundary) of an existing bedroom to provide for stairs leading to the new upper level whilst also maintaining a bedroom (albeit smaller).
18. The plans also show a second studio space to be provided in the form of an upper level addition over the existing garage together with an elevated walkway which connects this area with the upper level of the extension to the dwelling. The applicant has agreed to delete this component of the proposal.
19. Pursuant to the Port Phillip Planning Scheme, the site is located in a Residential 1 Zone the provisions for which are found in Clause 32.01 of the planning scheme ordinance. "Dwelling" is an as of right use within the zone. The zone provisions do not require planning permission to be obtained for an extension to an existing dwelling when it is located on a lot with an area exceeding 300 square metres.
20. Amendment C22 to the Port Phillip Planning Scheme introduced provisions (see clauses 52.03 and 81) whereby a permit is now required to construct an extension to a dwelling located on a lot with an area between 300 square metres and 500 square metres. Although these new provisions are now in force, they also contain a clause stating that they do not apply to the consideration of permit application lodged with the Responsible Authority before the 15 March 2000. This proposal was lodged with the Responsible Authority in December 1999.
21. However, the subject land is affected by the Heritage Overlay No. 3, the provisions for which are found at clause 43.01. Under this clause a permit is required to demolish or remove a building and to construct a new building and works. The purpose of the overlay control is:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To conserve and enhance heritage places of natural or cultural significance.
* 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.
* To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.
22. Decision guidelines set out at clause 43.01-5 that are relevant to this matter include giving consideration to:
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
* Any applicable heritage study and any applicable conservation policy.
* Whether the location, bulk, form and appearance of the proposed building will adversely affect the significance of the heritage place.
* Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
* Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
23. Relevant policies within the State Planning Policy Framework are at:
Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development.
* Clause 19.03 - Design and built form, which states, in part:
Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising the detrimental impact on neighbouring properties...
New development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations.
24. Relevant strategic objectives for Residential Land Use set out in clause 21.02-1 of the Municipal Strategic Statement (MSS) which forms part of the Local Planning Policy Framework include:
* Protection of established residential neighbourhoods from inappropriate new development.
* A city which retains its residential flavour, especially by protecting residential properties and streetscapes which are significant for their heritage or character.
25. Relevant strategies for Neighbourhood Character and Urban Design as set out in clause 21.02-3 of the MSS include:
* The protection of the rich architectural and cultural heritage of Port Phillip, through conservation, adaptive re-use, and sympathetic restoration and renovation of these important assets.
* Any proposal to significantly alter or construct a new dwelling should be consistent with the guidelines contained in the Port Phillip Design manual and reflect the prevailing scale, height, orientation and setback of existing buildings adjacent to and in the immediate vicinity of the site.
* Where a streetscape is substantially intact any increase above the height of the adjacent building should be setback to avoid an adverse visual impact from the street level.
27. Relevant strategic objectives for Heritage Conservation as set out in clause 21.02-4 of the MSS include:
* The retention, protection and enhancement of buildings, places, trees and streetscapes with identified historical, architectural, cultural, social, scientific or environmental significance.
* New development which is sympathetic to heritage places and contributes positively to the heritage value of the municipality.
* Restoration or sympathetic recycling of heritage buildings which will encourage their retention.
28. The subject land is located within Area 1 of the South Melbourne, Albert Park Middle Park neighbourhood. The local policy for this area, at clause 22.03-2, includes, the following objectives:
* To retain the architectural diversity and integrity of the South Melbourne, Albert Park and Middle Park established residential areas by protecting and conserving individually significant heritage buildings and streetscapes including small streets and laneways
* To ensure that new development complements or reconstructs/replicates the identified heritage qualities of the neighbourhood.
* Any Significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included within the Heritage Overlay (clause 43.01) should be conserved.
* In many cases the preferred approach for additions to significant and contributory heritage buildings and for new residential development in intact streetscapes is a reconstruction/replica approach. This approach is preferred in order to minimise any reduction in heritage value of the area.
30. Mr Little advised that under the Port Phillip Heritage Review 1998, the existing building on the land has been classified as a "Significant Heritage Place".
30. Permit application No. 1622/99 was lodged with the Council on the 13 December 1999 for alterations and extensions to the existing dwelling. The Council required notice of the application to be given, and in response it received 3 objections. Mr Little summarised the grounds of objection as follows:
* The proposal is not sympathetic to the neighbourhood character/the extension does not adhere to classical Edwardian Design.
* The proposed addition will result in visual bulk and mass to the adjoining properties and Ashworth Street.
* Loss of sunlight and overlooking to adjoining properties.
* Overdevelopment of the existing dwelling resulting in a detrimental impact upon the adjoining properties and the existing streetscapes.
* Bulk of the first floor balcony and stairs at the rear.
* Overlooking from the proposed stairway linking the second studio and the balcony.
* Loss of light to adjoining properties at 91 and 95 Armstrong Street
* Loss of neighbourhood character due to height and density of the development.
31. Mr Little said that the proposal was referred to the Council's Design and Heritage Advisor several times with the proposal "reworked extensively" through consultation with the designer. The Heritage Advisor's comments with respect to the proposal were summarised by Mr Little as follows:
HEIGHT: Height works better in terms of original building scale and surrounds.
BULK: Bulk will be an issue because of the amount of first floor accommodation proposed. Bulk is reflective of the space `required' at first floor. Roof forms broken down at rear using smaller gables.
FENESTRATION OK as negotiated. Windows better resolved as semi dormers with casements. Windows to garage should be reduced in width.
STREETSCAPE: Addition has been reduced to acceptable visibility, roof lines and shapes are OK.
32. Before the Council made its decision, the applicant lodged the application for review. Mr Little advised that the Responsible Authority has adopted the position that it supports the grant of a permit subject to:
* A hipped roof form on both the front and rear of the proposed addition.
* Removal of the studio over the garage and associated stairs.
* Removal of the rear balcony to be replaced with a skillion roof.
33. With respect to the above points, Mr Little said that the Responsible Authority is satisfied that;
* The plans now before me show a hipped roof form at the front of the extension, with the only further amendment required being that the two small gables facing the rear balcony to be modified to a hip form in order to reduce bulk.
* The removal of the rear balcony is not necessary if it is modified as shown on the sketch tendered by Mr Edwards.
34. After considering the submissions presented by the parties, the matters set out in the planning scheme and the merits of the proposal, it seems to me that the key issue in this matter is whether the proposed extension represents an appropriate design response when consideration is given to the objectives and decision guidelines set out in clause 43.01 for land within the Heritage Overlay as well as the relevant policies set out in both the State and Local Planning Policy Framework.
35. Although Mr Copolov and Ms Kehoe raised a number of general amenity concerns relating to issues such as overlooking, overshadowing, loss of daylight to windows and the positioning of the gate in the front fence, the scope of the matters which I may consider is constrained by the nature of the planning control which `triggers' the need for a permit. This principle is well documented and clearly set out in the following statement of the Full Court of the Supreme Court in National Trust (Vic) v T & G Mutual Life Association Ltd at 606 (see 7 AATR at 2 editorial comment)
"The discretion conferred by cl.24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed by Cl. 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area within which the land is situated and the amenity of the neighbourhood, in other respects other than with the height of the building, is to endeavour to achieve ends outside the purpose for which the power is conferred and intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the Planning Scheme under such considerations and could not properly have regard to them in determining whether or not to grant a permit or not."
36. This principle was again confirmed by the Court in Salmal Construction Pty Ltd v Richards & City Of Hobsons Bay, (22AATR 339) where, in setting aside a decision by the former Administrative Appeals Tribunal, Her Honour Balmford J said:
"In my view, the Tribunal, in reaching its decision on the basis of its required consideration of the matters referred to in the second guideline, relied on matters of general amenity which were not referable to the purpose of the discretion. Adapting, as italicised, the language of the Full Court in the National Trust case, I would say that, to use that discretion for the purpose of endeavouring to ensure the privacy of a neighbour and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the conservation and enhancement of an area of architectural and historic significance and the encouragement of development that is in keeping with it, is to achieve ends outside the purpose for which the power is conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The Tribunal could not properly refuse the permit under the planning scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not"
37. In this case the provision which "triggers" the need for a permit those set out in Clause 43.01 which apply to heritage overlay areas. The objectives and decision guidelines set out in clause 43.01 are quite clearly limited to heritage matters and do not extend to general amenity considerations. Accordingly neither the Responsible Authority or this Tribunal is able to take general amenity issues such as privacy, overshadowing and loss of daylight etc. into account in determining an application of this type.
38. In view of this, the fundamental issue which I must decide is whether the proposed extension, in terms of its height, bulk and appearance is in keeping with the character and appearance of adjacent buildings and whether the whether the significance of the heritage place will be adversely affected. This assessment needs to be made against the relevant objectives and policies set out in the planning scheme.
39. Mr Little submitted that, subject to some relatively minor changes, the proposed extension has been designed in a satisfactory manner. He submitted that the second storey addition has been designed to be contained within an 18 degree sightline projected from the parapet or gutter line so that it will be generally concealed from view from the street. Mr Little acknowledged that the PPDM states that "in general" an upper floor addition should be sited within a 10 degree sightline, however in this case, he submitted that the proposed extension will not have any significant adverse impact on the character of Armstrong Street for the following reasons:
* The addition will be setback behind the first two rooms of the dwelling which is approximately 17 metres from the front of the property
* The addition will be setback behind the existing front chimney.
* The proposed addition will be partly visible from the street, however the view will be mainly of recessive roof, blending in with the existing Armstrong Street view of the dwelling.
40. In relation to the impact on the significance of the heritage place, the general thrust of Mr Copolov's submission was that the extension, due to its height, mass and design, presents excessive visual bulk having regard to the single storey nature of surrounding development. He also argued that the extension has not been designed to replicate the typical architectural detailing and features associated with Federation style dwellings. In particular, Mr Copolov criticised the lack of compliance with the 10 degree sightline guideline in the PPDM, the transverse hipped roof form, the inclusion of an upper level balcony and that the design detail does not replicate that of Federation architecture. Accordingly he submitted that the proposed extension would be detrimental to the streetscape and would have an adverse impact on the heritage place. Ms Kehoe generally supported Mr Copolov's submissions, particularly with respect to the adverse impact on the significance of the heritage place.
41. Mr Edwards submitted that the proposed extension has been designed to take into account all the relevant planning controls and policies. In particular he submitted that the extension had been designed to be consistent with the "reconstruction approach" set out in the PPDM which also accords with the reconstruction/replica approach called for in the local neighbourhood policy at clause 22.03-2. He submitted that the extension is acceptable given that it is well setback from Armstrong Street and whilst visible in the context of Ashworth Street, this is not unacceptable given that it is not the primary street. He also submitted that the overall scale, mass and siting of the extension complies with the PPDM whilst the details such as materials, finishes, fenestration and ornaments have been properly considered.
42. After having considered the various submissions put to me and the merits of the proposal, I am of the view that the proposal has been designed in a manner which is in accordance with the provisions of clause 43.01 and the local policies.
43. The construction of a double storey extension over the rear section of what were originally single storey dwellings from past eras is not in itself an unusual occurrence in inner urban areas. It is a design approach which is commonly used in neighbourhoods, including heritage areas, where the predominant building height is single storey. This approach allows for an upper level extension to be clearly identified as a new and recessive element from the streetscape, whilst at the same time, allowing for the single storey component of the building to continue to be the dominant element from a streetscape viewpoint.
44. In this case the proposed extension is to be well setback away from Armstrong Street and will clearly be read as a new and recessive element within the streetscape. Accordingly, I accept the submissions put to me by Mr Little and Mr Edwards that the extension will not detract from the streetscape in an unreasonable way nor will it reduce the significance of the heritage place by way of its location, bulk and form. I consider that the approach adopted is appropriate in that it allows for that part of the building which makes the most significant contribution to the streetscape to be conserved, thereby enabling it to continue to form part of the streetscape.
45. The impact on Ashworth Street has been significantly reduced as a result of the applicant's agreement to remove the upper level studio over the garage and the walkway, as well as the stepping back of upper level balcony so that it is set behind a complementary roof form. Although the height of the part of the side wall facing Ashworth Street is to be increased, I do not consider that the extent to which this will occur will have an adverse impact on the significance of the heritage place.
46. Although Mr Copolov was critical of the design approach adopted, I note the Responsible Authority's Heritage Advisor did not express any concerns with respect to design detail such as fenestration, materials and its impact on the streetscape. I accept Mr Copolov's submissions to the extent that not every design detail replicates that of a dwelling built during the Federation era, however, this in itself is not fatal to the proposal. It seems to me that overall, the Responsible Authority has accepted that the general design forms and detail employed are sufficiently respectful of the character of the original building, whilst at the same time allowing for the extension to be identified as a new element. I find myself in general agreement with the Responsible Authority's position, although I do not consider that it is necessary to modify the small rear gables to reduce bulk.
47. I find that the proposal, incorporating the amendments put forward by Mr Edwards, is acceptable having regard to the provisions of clause 43.01 and the relevant policies. A permit is granted subject to conditions.
LRM Home Design
Port Phillip CC & Copolov and Or [2001] VCAT 697
Permit application no. 1622/99 granted for alterations and additions, subject to conditions requiring approved amended plans, deletion of Studio 2 over the existing garage and its connecting stair, reduction of the rear balcony, and a schedule of materials, finishes and colours. The development was also subject to commencement and completion time limits. The Council was directed under s 85(1)(b) to issue the permit.