Victorian Civil and Administrative Tribunal|2009-11-19

Mann v Port Phillip CC [2009] VCAT 2460 (19 November 2009)

Section 77, Port Phillip City Council, dwelling on lot less than 300 sqm, heritage overlay, rooftop terrace, removal of original window, Clause 54, Residential 1 zone

Mann v Port Phillip CC [2009] VCAT 2460

Mr David Song, Town Planner of Aspect Town Planners Pty Ltd with Mr Mann and Ms Avery

Buildings and works to a dwelling on a lot less than 300 sqm in a heritage overlay. The works in dispute are:

A roof top deck to the front of the dwelling that will overlook Port Phillip Bay, over Beaconsfield Parade. The application plans show this deck to be 1.06m below the roofline of the building façade. Condition 1(e) of the permit issued requires this deck to be lowered to 1.47m below the roofline, a difference of 41 centimetres.
Replacement of an original window in the front façade with double glass doors of a similar width but greater height than the existing window opening.

cl. 22.01 - Residential Neighbourhood Character Policy

cl 32.01-4 (development on a lot less than 300 sqm)

43.02- buildings and works in a heritage overlay HO3

16 Beaconsfield Pde is a single fronted single storey terrace house with single front door, original front window and modern fence to the street.

The house is one of a row of terraces, many of which have been altered over time with a number being more recently renovated and partly restored[1]. Of these two others have roof top terraces constructed to the front section of the house and two other terraces have been approved but not yet constructed.

Opposite is Port Phillip Bay and part of the Port Melbourne Beach front.

I inspected the site and surrounds after the hearing on 17 November 2009.

Port Phillip City Council has issued a planning permit to Mr Richard Mann to extend and renovate his house at 16 Beaconsfield Parade, Port Melbourne. The permit includes a number of conditions. Mr Mann has asked the Tribunal to review two of these conditions:
- Condition 1(b) that requires an existing front window to be retained, rather than replaced with glass doors as indicated on the application plans
- Condition 1(e) that requires lowering a proposed rooftop deck located to the front of the dwelling by 41 centimetres. The proposed deck has two levels. An area 3.2 x 4.2m, over the second bedroom below is to be 1.8m below the roof ridgeline. Between this and the ridge line is a 2m wide section located over the front bedroom below that will be set 1.06m below the roof ridge line. This raised area then "wraps" around the lower section of deck, over the existing hallway that is approximately 1.0m wide. The condition requires this upper level to be lowered to be at least 1.47m below the ridgeline.
I need to determine if either or both of these conditions should be removed or amended. To do so I find I need to have regard to the purpose of the planning permit. This is two part:
1. Will there be a detrimental impact to the heritage, character or amenity of the area if the floor level of the deck is not reduced?
2. Will there be a detrimental impact to the heritage significance of the site if the existing front window is removed?

Will there be a detrimental impact to the heritage, character or amenity of the area if the floor level of the deck is not reduced?

Mr Hewett submitted that other decks had been approved in the terrace row but some had been refused. He submitted the 1.47m height below roof ridge in the condition was derived from other permit approvals and sought to establish consistency in decision-making. Both he and Mr Song cited other examples and history which I summarise below:

No. 2 Beaconsfield Parade, a double fronted Victorian dwelling not part of the row of terraces that includes the subject site. This has a hip roof where side sections of the roof can be seen more easily from the street. Proposed extensions included front deck refused by Council and upheld by the Tribunal[2]. This included concern that alteration of roof form was too detrimental to the heritage significance of the place. 2. No. 7 Beaconsfield Parade, roof terrace sought. Condition required "retention of the existing roof until at least 1 metre to the rear of the chimney". This condition was referred to the Tribunal[3]. The Tribunal ruled the rear section of roof could be removed, behind the main roof ridge. The height of the deck below the ridgeline was lowered to be 6.08m AHD. In effect this results in the deck being 1.47m below the roof ridgeline. Mr Song submitted the permit applicant suggested this condition at the hearing as it was structurally possible given ground floor conditions. This deck has not yet been constructed.

No. 8 Beaconsfield Parade, constructed front roof deck approved by Council (December 2000). The Tribunal reviewed other aspects of the proposal, but the deck was not in dispute. I understand this deck is located approximately 1.1 metre[4] below the roof ridge height.

No. 13 Beaconsfield Parade, constructed deck 1.075m below the roof ridge. This deck was approved at 1.275m but not constructed in accordance with the permit. Mr Hewett advised Council had not pursued enforcement of the condition. 2. No. 15 Beaconsfield Parade, constructed deck (unknown height) behind roof chimney line. Mr Hewett advised Council was not concerned about the height of the deck below the ridge line on this site as the deck was set well back from view of the street, i.e. behind the line of the chimney.
In summary, four other decks have been approved in the same terrace row. One appears to have been approved at 1.1m below the ridgeline (No. 8), one at 1.275m (No 13), one of irrelevant height because it is behind the chimney and one at 1.47m[5]. I am not convinced that any consistency has been applied to date. The question is whether there is any need for this new terrace to be identical to at least one other deck height?
The primary concern raised by Mr Hewett about the roof deck height was that it would enable greater viewing of people and/or temporary plants or structures (e.g. umbrellas) on the rooftop when viewed from Beaconsfield Parade. In short, the upper 74cm of a 1.8m high person may be seen from the street on the deck rather than 33cm if the condition is maintained.
Neighbourhood character and amenity provisions derived from Clause 54 for dwellings on lots less than 300 sqm affect the site. There is nothing in this clause that would suggest a roof-top deck where people are visible from the street would be out of character or reduce amenity to adjoining properties other than to ensure any direct overlooking into adjoining habitable open space areas is maintained. The deck height will not impact these measures and Mr Hewett did not contest that Council had imposed the condition because of the provisions of Clause 54.
This leaves the provisions of the heritage overlay with relevant purposes[6] to:

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.

Council has endorsed the removal of part of the roof form in its planning permit. The removal of heritage fabric is therefore not in question, only whether being able to occasionally see people above the roof ridge will adversely affect the heritage significance of the site.
The significance of the heritage place is the intact nature of the row of terraces as the only remaining nineteenth century residences in Port Melbourne which face the foreshore, demonstrating the original residential character of the area[7].
Mr Hewett's submission included comments from Council's heritage advisor. This did not include any comment or objection to the deck either in application or form as imposed by the condition.
I find this is perhaps because the deck itself does not alter the built form that comprises the heritage fabric.
Both Members Fong and Baird in their respective decisions[8] raised concern that the ability to view people from the principal view lines from Beaconsfield Parade[9] may diminish the appreciation of the heritage place. In Member Baird's case the overall roof alterations were not supported and in Member Fong's case I accept Mr Song's submission that she approved the deck at 1.47m below the ridge height because the ground floor roof level enabled this and she considered it would "ensure" minimal intrusion of the view of the principal façade.
No. 16 Beaconsfield Parade has an existing front bedroom and hallway with 3.6 metre ceiling heights. To lower the roof terrace to 1.47m will require demolition and reconstruction of these rooms and internal features. Council has already approved other decks and indeed accepts a deck in this current application. It is only whether occasional intrusion of a person's head and shoulders rather than their head, shoulders and torso will so severely impact the view of the principal façade so as to detrimentally affect the heritage place.
I accept Mr Song's submission that it is too onerous to require such reconstruction when the subsequent impact to the heritage significance is so minor. The main intent of heritage provisions of the planning scheme is to protect existing heritage fabric and to ensure that new built form does not detrimentally alter remaining heritage fabric.
Views of people, tops of plants or umbrellas occasionally on a roof top terrace will result in very minor and non permanent changes in a view of the principal façade and I find not so major to warrant substantive structural changes to a building to ensure that only a person's head and shoulders can be seen rather than their torso as well.
I am also mindful that the section of deck to be at 1.06m below the roof ridge is only 2 metres wide with a more usable area at a lower level. The use of the upper level is therefore more likely for occasional viewing over the roof rather than regular sitting at an outdoor table setting or similar.

Will there be a detrimental impact to the heritage significance of the site if the existing front window is removed?

The permit also includes a condition to retain the existing window to the front façade.
I find this will result in a permanent and significant change to the fabric that makes up the heritage place. Whilst only three of the twelve terrace houses retain original windows, the photos tabled by Mr Hewett indicate that many of the other dwelling facades were substantially altered prior to 1994 when the photos were taken which is well before the current heritage provisions of the planning scheme. Since then many of the dwelling facades have been restored. Mr Song noted example such as 8 Beaconsfield Parade where similar narrow double doors have been allowed. However, the photos submitted by Mr Hewett clarify that many properties, including 8 Beaconsfield Parade had much larger, inappropriate windows. Hence, the establishment of double doors on these properties was not removing heritage fabric but replacing already inappropriate fixtures with more respectful fixtures. I find this does not justify removal of original fixtures such as the window at 16 Beaconsfield Parade.
Mr Mann indicated the opening of the window was to enable better use of the front bedroom and interaction to the front courtyard. The window provides daylight into the bedroom that accords with the provisions of ResCode. The proposed extensions include two first floor deck areas providing more than adequate outdoor living spaces. I find no extenuating need to remove the original fabric so as to enable functional use of the dwelling.

It therefore follows that I will direct to delete the permit condition to lower the roof terrace but retain the condition that requires amended plans be submitted to show the existing original front window retained.

[1] Mr Hewett tabled a number of photos from 1994 indicating various houses had undertaken restoration works between then and now.

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

[3] McPhee v Port Phillip CC & Ors [2009] VCAT 515

[4] Mr Song submitted the endorsed plans for 8 Beaconsfield Parade show a deck at 1.1m below ridge height. Mr Hewett did not dispute this figure.

[5] I find the decision relating to 2 Beaconsfield Parade is not directly relevant as the existing façade and roof form is different. This was also not the sole reason the Tribunal upheld Council's decision in this case.

[6] Cl 43.01 - last purpose has not been transcribed as I find it not relevant.

[7] City of Port Phillip Heritage Review - citation No. 621

[8] McPhee v Port Phillip CC & Ors [2009] VCAT 515 and Kidston v Port Phillip CC [2009] VCAT 233 (17 February 2009)

[9] Local policy 22.04 includes provision that additions or alterations maintain an existing vista or viewlines to the principal facade(s) of a heritage place.

Mann v Port Phillip CC [2009] VCAT 2460

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Mann v Port Phillip CC [2009] VCAT 2460 (19 November 2009)

Parties