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[2003] VCAT 1428
respondent. Tribunal affirmed the Responsible Authority's decision to refuse a permit for demolition and directed that a permit must not be granted; the Tribunal held that at least the front two rooms of...
VCAT affirmed Maroondah City Council's refusal to permit demolition of Jenkins Cottage (c.1872), an individually listed heritage place (HO49). The Tribunal found the cottage significant and sufficiently intact in its front two rooms, rejected the applicant's financial hardship argument as insufficient to justify demolition, and concluded that at least the front two rooms should be retained. No permit to demolish was granted in the absence of acceptable redevelopment, protection or relocation proposals (see [8], [23], [27], [35], [36], Orders).
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1,801 words · generated 06/07/2026
Mark Matthews sought a permit to demolish Jenkins Cottage at 334 Mount Dandenong Road, Croydon. The property is individually identified in the Maroondah Planning Scheme by Heritage Overlay HO49 (see [5], [16]). The dwelling, constructed around 1872, sits well back on a 2,081m2 lot and was described in the Maroondah Heritage Identification Study as historically and architecturally significant (see [2], [3], [8]). The Maroondah City Council refused the demolition permit. The applicant applied to the Victorian Civil and Administrative Tribunal for review under s.77 of the Planning and Environment Act 1987 (see [1]).
No linked legislation citations have been extracted yet.
At the VCAT hearing the applicant called a heritage consultant (Mr Briggs) and a building consultant (Mr Kukulka) to support demolition on grounds of diminished context and economic impracticability of restoration. The Council called its heritage adviser (Mr Petersen) and argued for retention or partial retention of the cottage (see [10]–[14], [17], [24]).
The core dispute was whether demolition accorded with heritage overlay decision guidelines and whether the economic burden of restoration justified demolition. The Tribunal accepted that the cottage is of heritage significance and that the front two rooms represent original, relatively intact fabric (see [16], [22], [23]). Evidence estimated restoration costs at 25–40% above replacement, but the Tribunal found these costs not outside normal expectations for heritage restoration and noted uncertainty in the estimates (see [27]).
The Responsible Authority was willing to accept partial demolition provided the front two rooms were retained and a sympathetic rear addition constructed; the applicant preferred total demolition or partial demolition without a replacement strategy (see [29], [33]). The Tribunal concluded that at least the front two rooms should not be demolished and, in the absence of any acceptable redevelopment or protection proposal, affirmed the Council's refusal and directed that no permit be granted (see [35], [36], Orders).
The Tribunal's reasoning rests on these pillars:
The statutory and policy framework. The Tribunal applied Clause 43.01-5 (Heritage Overlay decision guidelines) and Clause 65 (general decision guidelines) of the planning scheme, together with the objectives of planning under the Planning and Environment Act 1987, which include conserving buildings of historic or cultural interest (see [6], [7], [18]). The Tribunal treated the site-specific Heritage Overlay citation and the Maroondah Heritage Identification Study as determinative of the cottage's significance (see [16], [22]).
Significance and intactness. The Tribunal found, on the evidence, that the cottage is significant at least locally and that the front two rooms constitute original, relatively intact fabric capable of conveying significance (see [17], [23]). The Responsible Authority's heritage evidence showed these rooms could be restored and incorporated into a modern rear addition to produce a comfortable dwelling (see [24]).
Balance of interests. The Tribunal recognised that demolition would have an adverse effect on cultural significance but observed that adverse effect alone does not prevent the Tribunal from permitting demolition where appropriate considerations justify it (see [20]). Here the applicant relied on economic hardship: an estimated 25–40% additional cost to restore compared with replacement. The Tribunal did not find these figures sufficient to demonstrate unfairness; it saw them as within expected heritage restoration costs and noted the estimates contained uncertainties (see [27], [28]).
Procedural and factual fairness. The Tribunal distinguished Renzow v Casey (1998) 1 VPR 155, where demolition was permitted because the owners were unaware of the heritage listing at purchase and thus faced exceptional hardship. In Matthews the applicant had purchased after the VPP-format planning scheme was in place and had been informed of the heritage controls, so that case did not justify similar relief (see [31], [32]).
Practical alternatives and lack of proposals. The Council's willingness to accept partial retention or relocation of the dwelling was a feasible alternative that the applicant had not properly pursued; because no credible redevelopment or protection plan was before the Tribunal, the Tribunal would not permit demolition that would leave the building's significant fabric at risk (see [29], [33], [34], [36]).
These considerations led the Tribunal to direct that no permit be granted and to require retention of the front two rooms (see [35], [36], Orders).
Before this decision, the relevant law required decision-makers to weigh heritage significance under heritage overlays against planning objectives, including efficient use of land and economic considerations. Renzow v Casey provided a factual scenario in which demonstrated hardship (due to surprise at a heritage listing) could tip the balance in favour of demolition.
Matthews v Maroondah CC clarifies and applies those principles in a context where the owner had notice of the heritage controls and the place retained identifiable significant fabric. The decision emphasises:
Thus the after-state emphasises a robust application of heritage overlay decision guidelines and a reluctance to permit demolition where feasible partial retention is available and owners were on notice of constraints at acquisition.
"The impact of the demolition would quite simply result in an adverse affect on the cultural significance of the heritage place. But that should not be taken as resulting in no discretion being open to the Tribunal to direct demolition." ([20])
"It is quite inconsistent and misconceived to think the Planning Scheme through the provision of a site specific heritage overlay would provide a greater level of protection to a heritage place than that of a State Heritage Register listing." ([21])
"In conclusion I am satisfied that at least the front two rooms of this cottage should not be demolished. Given there are no proposals for redevelopment or protection works I am not prepared to issue a permit that may leave the remaining part of the building exposed to an uncertain future." ([36])
Discussion of costs: the Tribunal regarded the applicant's 25–40% cost premium for restoration as "not in my view outside the expected costs associated with restoring or maintaining a heritage property" ([27]).
This decision is most directly engaged where:
In such fact patterns Matthews signals that decision-makers should require retention of the significant fabric unless the applicant demonstrates exceptional hardship or impracticability, or presents an acceptable alternative that conserves significance.
The judgment itself cites and distinguishes Renzow v Casey (1998) 1 VPR 155, treating that case as factually distinct because of the purchasers' lack of notice of the heritage control and resultant hardship (see [31], [32]). Matthews is best read as reinforcing that lack of notice can be a decisive fairness factor, but where purchasers had notice, ordinary elevated restoration costs do not by themselves require demolition.
Practitioners should expect tribunals and councils to rely on Matthews where a place is individually listed, retains original fabric, and the owner had prior notice. Matthews offers a precedent for requiring partial retention and refusing demolition in the absence of a realistic conservation/redevelopment strategy. It also provides a helpful articulation of how to treat cost estimates and the limited weight to give them unless particularly compelling.
Quantification of hardship. Matthews notes restoration costs of 25–40% above replacement are not determinative ([27]), but the decision does not set a threshold beyond which costs would be regarded as unfair. How large or certain must cost differentials be to amount to unfairness remains fact-specific and open.
Relocation as a remedy. The Tribunal in Matthews entertained relocation of the building closer to the frontage as a compromise and observed the Responsible Authority would accept relocation though it preferred in situ retention ([33]). The decision does not fully resolve the circumstances in which relocation off-site or to another part of the lot is an acceptable way to conserve significance and will depend on the overlay, citation and local policy.
Partial retention orders. Matthews requires retention of the front two rooms and refuses a permit where no redevelopment plan exists ([36]). It leaves open how specific a later application must be to secure Tribunal approval for partial demolition coupled with a new addition; the Tribunal indicated it would likely grant such an application if the front two rooms were retained in a respectful way ([35]), but the precise content of acceptable design and protection conditions remains to be tested in later cases.
Comparative status of heritage lists. The obiter comment that a local heritage overlay does not provide greater protection than State registration ([21]) is analytically correct but raises implementation questions about how different registers interact in practice, particularly where state and local policies diverge.
In sum Matthews v Maroondah CC is a detailed application of heritage overlay decision-making. It reinforces the importance of the overlay citation and evidence of intactness, sets a cautious approach to economic hardship arguments where owners had notice, and shows readiness to require partial retention when feasible. Counsel preparing heritage demolition applications should bring clear, quantified evidence of hardship and realistic redevelopment or protection proposals if seeking demolition where significant fabric remains.
1. The decision of the Responsible Authority is affirmed.
2. The Tribunal directs that a permit must not be granted.
1. This hearing is made pursuant to s. 77 of the Planning and Environment Act 1987 seeking a review of the Maroondah City Council's decision to refuse to issue a permit for the demolition of the existing dwelling at 334 Mt Dandenong Road, Croydon.
2. The subject site is located on the south side of Mt Dandenong Road, west of Bennison Street. The site has a frontage to Mt Dandenong Road of 29.0m and a depth of approximately 71.6m resulting in an overall area of 2081m2.
3. A dwelling is located on the site known as Jenkins Cottage (Cottage) originally constructed around 1872. The dwelling is located in the rear third part of the site well set back from the street frontage. Mature vegetation exists at the front of the site.
4. The proposal is to demolish the existing dwelling on the site and all of the existing outbuildings.
5. The planning controls that apply to the site include that the land is contained within a Residential 1 Zone and is affected by a Significant Landscape Overlay Schedule 2 (SLO2 doesn't control demolition of buildings). Importantly the land is identified in a individual heritage overlay area namely HO49, Jenkins Cottage which applies to this site only. A permit is required to demolish or remove a building pursuant to Clause 43.01-1 and the Schedule to the Overlay identifies that external paint controls apply to this overlay area.
6. The purpose of a Heritage Overlay Area includes:-
* 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.
7. In addition to the decision guidelines set out in Clause 65 of the Planning Scheme Clause 43.01-5 provides decision guidelines specifically in respect of Heritage Overlay areas and these include considering:-
* The significance of a heritage place and whether the proposal will adversely affect the natural and cultural significance of the place.
* Any applicable heritage study; and any applicable conservation policy.
8. The heritage significance of the site is identified in the Heritage Identification Study prepared for Maroondah City Council in 1998. The statement of significance is as follows:-
An early timber symmetrical cottage built in c1872 for pioneering dairy farmers Peter and Robert Jenkins, who had settled as early as 1861, It is probably the oldest house in Croydon, and still located in an evocative setting. It has historical significance to the Melbourne Region as a pioneering building surviving from rural settlement, now engulfed by suburban development. It is an extraordinary embodiment of the way of life in the earliest settlement of Croydon. It is architecturally significant as an early symmetrical cottage, rare in this context.
9. The site was also the subject of a recent two-lot subdivision approved in February 2001. It appears from the Council's report that support for this two-lot subdivision was in part based on the objective that approval of the subdivision would in some way assist the long-term survival of the cottage. Unfortunately nothing in the permit numbered M/2000/785 imposes an obligation to restore, maintain or enhance the existing cottage.
10. Ms Lane for the Responsible Authority put forward a strong case supporting the Responsible Authority's decision to refuse the application. She took the Tribunal to a number of cases which dealt with the issues relating to the extent of remedial work required to be carried out on premises within heritage areas, the issue of fairness in terms of the imposition of financial hardship to owners to undertake the remedial works, the cultural significance of the cottage and the alternatives for future development. Ms Lane called Mr Petersen, Heritage Adviser to give evidence in relation to the heritage significance of the cottage.
11. Mr Conner for the applicant for review also set out a strong case for setting aside the Responsible Authority's decision and allowing for the demolition of the cottage. He called two witnesses to support the applicant's case. Mr Briggs, a Heritage Consultant and Mr Kukulka a building consultant.
12. Mr Conner submitted essentially that while the cottage had local significance its demolition was warranted given its position on the site was out of the public view and its retention would be both awkward and financially prohibitive. Mr Briggs similarly argued that the dwelling had now lost its cultural context of an early rural dwelling in a rural setting, and the feasibility of re-use, retention, restoration and/or preservation was no longer worth pursuing.
13. Mr Briggs argued that while the building was significant at the local level it had a low level of regional interest and it was not an example of a rare or instructive example except at the local level.
14. Mr Kukulka suggested that the estimated additional costs of some 25-40 percent for the restoration and repair of the cottage above that of a replacement dwelling could simply not be justified. Mr Kukulka identified a number of deficiencies with the building most however related to the age of the structure and were typical of a building of this age that had not had the benefit of continuous maintenance.
15. This case needs to be distinguished from many other of the cases referred to me as there are no proposals before me for a replacement building or development. The key issues in this matter appear to me to be:-
* Does the demolition of this dwelling accord with the provisions of Clause 43.01?
* Is its level of intactness appropriate and sufficient for it to be retained?
* Should the weight of fairness in terms of the economic imposition required to be imposed on the owner/applicant override the heritage significance of this cottage?
16. The first issue in respect of this proposal is that the proposed building is individually identified in the Planning Scheme as a heritage place pursuant to HO49. It is not part of a broader heritage area or precinct so its significance is purely related to the discreet significance set out in the statement of significance. A statement of significance for this site is derived from the Maroondah Heritage Identification Study a reference document to the Planning Scheme at Clauses 21.05 and referred to earlier in this decision.
17. As referred to earlier both Mr Briggs and Mr Petersen acknowledged the cottage was significant at the local level. Mr Petersen went on to expand on its cultural significance stating:-
A characteristic early timber symmetrical cottage built in about 1872 for pioneering dairy farmers Peter and Robert Jenkins, who had settled there as early as 1861. It is historically significant at regional level and is the oldest building known in the City of Maroondah and to the Melbourne region as a characteristic pioneering building surviving from early fringe rural settlement, now engulfed by suburban development. Locally it affords rear physical evidence of the way life in the earliest White settlement of Croydon.
It has local architectural significance as a rare surviving early symmetrical cottage. It is still relatively in tact in general form and when last closely inspected in relatively good condition for its age, although needing repair. It retains its historical evocative rural setting well back on its block with eight pine trees on the front and side boundaries.
18. It is convenient at this point to set out the principles I am required to consider in determining this matter. These include the matters set out in the Maroondah Planning Scheme at Clause 43.01-5 and Clause 65 and the matters set out in the Planning and Environment Act 1987 in:-
Section 4 Objectives
(a) to provide for the fair, orderly, economic and sustainable use, and development of land; ...
(d) to conserve and enhance those buildings, areas or other places which are of significance, aesthetic, architectural or historic interest or otherwise of special cultural value.
84B matters which the Tribunal may take into account
1. In determining an application for review under this Act the Tribunal -
(b) must have regard to the objectives of planning in Victoria.
Thus in my view there is a nexus in decision making between the objectives of planning in Victoria in relation to fair and orderly development of land and the conservation of heritage buildings.
19. Clearly in terms of the first guideline decision of Clause 43.01-3 the local policy at Clause 21.05 supports the retention and enhancement of the cottage. Having no replacement development limits consideration of alternatives for the site. However given its Residential Zone the efficient use of the land for residential purposes would be an obvious objective to balance against the retention of the cottage given its location towards the rear one-third of the site.
20. The impact of the demolition would quite simply result in an adverse affect on the cultural significance of the heritage place. But that should not be taken as resulting in no discretion being open to the Tribunal to direct demolition.
21. It should be noted that one of the primary purposes of identifying a property or area within a heritage overlay is to enable further detailed consideration of any future development, change or demolition of the heritage place at the time an application is made. That is to that at the time properties or areas are included in the planning scheme as a heritage place no detailed consideration is given to demolition or redevelopment issues. That is to occur at the time an application is made. It is at that time that the determination of whether the objectives of Clause 43.01 are achieved. Further to this consideration it is worth noting that even properties on the State Heritage Register of Victoria may seek approval for demolition. Thus it is quite inconsistent and misconceived to think the Planning Scheme through the provision of a site specific heritage overlay would provide a greater level of protection to a heritage place than that of a State Heritage Register listing.
22. The reference to the Heritage Study of this cottage is quite clear and not disputed by the parties. A photo held by the Croydon Historical Society collection accurately depicts the front of the dwelling in part of the citation for this property. No significant change to the front of the property is apparent when referencing this photo.
23. Thus the first matter for consideration, in terms of the significance of the property even at the local level, is not disputed. Another matter I must consider is whether the property is sufficiently intact to reflect its significance. Again while there was some discussion in terms of the extent of the original fabric including the chimneys, the rear skillion and rear kitchen area it was generally agreed that the front two rooms were the original fabric of the cottage.
24. Mr Petersen on behalf of the Responsible Authority submitted it was entirely foreseeable that the front two rooms could be restored and a sympathetic addition containing modern amenities and facilities could be undertaken. Such an addition would in Mr Petersen's view result in a comfortable, modern home.
25. Thus the question arises should the demolition of this building be permitted as a consequence of the economic burden of retention places on the owner. Is the cost of the conservation and future maintenance of the cottage unfair and impracticable?
26. As stated earlier Mr Briggs suggested the significance of the dwelling was prejudiced by the change of setting that had occurred. I find some difficulty with this proposition for two fundamental reasons. The first is that the setting has not changed since its identification in the Planning Scheme as a heritage place. Secondly there would be few of Melbourne's individually identified heritage places that sit in their original setting, but they, nonetheless, retain their heritage significance.
27. Turning to the cost/financial issue both Mr Briggs and Mr Kukulka based their evidence and calculation on the retention of the whole of the building and carrying out restoration work on all of the existing fabric. While even at this level of remedial work the added cost amounted to a financial imposition of between 25 and 40 percent above new replacement, a figure which is not in my view outside the expected costs associated with restoring or maintaining a heritage property or older dwellings in the metropolitan area. Even so the figures estimated included some guess work and as conceded by Mr Kukulka could still vary.
28. It was submitted by the applicant, that given the standard of accommodation that may result from such works, could still result in a be compact and perhaps unsuitable building for modern housing accommodation this expense could not be justified and would place an unfair financial burden on the applicant/owner.
29. However as stated earlier the Responsible Authority does not oppose the demolition of part of the cottage building provided that the front two rooms are retained and an addition to the rear is carried out in a compatible manner. This alternative course of action does not appear to have been fully investigated by the applicant.
30. The front two rooms of this dwelling have sizes of approximately 4m x 3m each. These sized rooms could easily be incorporated into any new addition providing for functional and useful room sizes.
31. As mentioned earlier the Tribunal was taken to a number of cases to determine some parallels. One particular case Renzow v Casey City Council (1998) 1 VPR 155 had a number of issues which are similar to issues in this particular case. The Tribunal in that particular case constituted by Member Mulchay was persuaded by the economic and fairness argument of the applicants to allow the demolition of the cottage involved in that particular matter. That matter needs to be distinguished to the present case where the owners in that matter were not aware at the time that they purchased the property that the property in fact had a heritage listing and that such a listing had not been marked on the Planning Scheme maps nor referred to by the Council in any planning certificate. It was only once that the Renzows discovered that their property was the subject of heritage controls, that it became an issue in relation to restoring the existing dwelling on the site. Member Mulchay was persuaded that in the circumstances the hardship experienced by the Renzows was an influencing factor in the Tribunal's decision to direct the demolition of the cottage in that particular case. As was set out in Ms Lane's submission on page 22 :-
102. There is no evidence in this case that the applicant in this case is similarly disadvantaged. Jenkins cottage has been subject to planning controls concerning heritage since the gazettal of the VPP format Maroondah Planning Scheme. The applicants acquired the land in February 2001, more than 12 months after the introduction of the VPP format planning scheme. Moreover, prior to purchasing the property, the applicants met with and had telephone discussions with the then strategic planner of Council, Mr Simon Skinner. Mr Skinner informed the applicants of:
* the heritage controls which applied to the cottage under the Maroondah Planning Scheme.
* the fact that the heritage controls applying to the cottage were a significant constraint on the development of the site; and
* the fact that Council would not support a permit for the demolition of the cottage.
32. These factors distinguish this case from the Renzow's case.
33. At the conclusion of the hearing I invited the parties to consider a relocation of the dwelling to a position closer to the frontage of the site. My objective was to determine whether such a move would be an acceptable compromise to the parties as it would ensure the retention of the dwelling on its original site albeit relocated and free much of the land for future development. While the Responsible Authority responded it preferred the dwelling to remain in its current position it would accept such a relocation. The applicant for review did not support the concept and maintained its request for demolition (although it indicated a partial demolition was preferred to a total refusal). The applicant made two suggestions in response to a potential finding that the first two rooms of the cottage were found to justify its retention . The first to the effect if the dwelling is to be retained then it should be retained in this location or alternatively it should be dismantled and relocated offsite or stored in the interim.
34. As mentioned above the applicant for the permit suggested that if I find that the retention of the significant part of the building is justified then I should direct a permit for the demolition of the balance of the buildings. I am reluctant to take this course of action without a replacement or reconstruction strategy in place.
35. I do wish to express my view that any future application that maintains the front two rooms of the cottage (including the front verandah) would be appropriate if combined with a suitable addition to the rear carried in a respectful manner. If such application was before me I would expect a permit would be granted.
36. In conclusion I am satisfied that at least the front two rooms of this cottage should not be demolished. Given there are no proposals for redevelopment or protection works I am not prepared to issue a permit that may leave the remaining part of the building exposed to an uncertain future.
37. For the reasons outlined above I propose to uphold the Responsible Authority's decision and direct no permit be granted.
Matthews
Maroondah CC [2003] VCAT 1428
Tribunal affirmed the Responsible Authority's decision to refuse a permit for demolition and directed that a permit must not be granted; the Tribunal held that at least the front two rooms of Jenkins Cottage should not be demolished and refused demolition in the absence of acceptable redevelopment, protection or relocation proposals (see Orders; [35], [36], [37]).