Victorian Civil and Administrative Tribunal|2009-03-27

McPhee v Port Phillip CC & Ors [2009] VCAT 515 (27 March 2009)

Application under s. 80 under the Planning and Environment Act 1987 against Permit Conditions Requiring Modifications to Design of Proposed Ground and First Floor Extensions to Single Storey Dwelling; Port Phillip Planning Scheme; Heritage Overlay; Heritage Consideration and Amenity Impact.

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

The decision of the Responsible Authority is varied. The Tribunal directs that Permit No. 36/2008 must contain the conditions set out in the Permit issued by the Responsible Authority on 17 October 2008 with the following modification:-

"The finished floor level of the upper roof deck reduced to a maximum of 6.08 metres instead of the proposed 6.31 metres."

The Responsible Authority is directed to issue a modified permit in accordance with this order under the provisions of Section 85(1)(e) of the Planning and Environment Act 1987.

Mr. David Song, Town Planner, Aspect Town Planners. He called Mr. John Briggs, Heritage Architect, to give evidence.

Mr. Aaron Hewett, Town Planner, City o Port Phillip

This is a review under Sec. 80 of the Planning and Environment Act 1987 against two requirements of Condition 1 of a permit issued to make alterations to the ground floor and construction of a first floor extension involving partial demolition of the existing single storey dwelling at 7 Beaconsfield Parade, Port Melbourne. The contested conditions are 1(b) and (c), which require:

(b) The retention of the existing roof until at least 1 metre to the rear of the chimney.

(c) The entire upper level wall to the rear of the light court set back from the south east boundary by at least 1 metre.

The review site is on the north (in fact northeast side but described as north for convenience) side of Beaconsfield Parade, approximately 30 metres west of Pickles Street, Port Melbourne. It is developed with a single storey Victorian terrace house. This dwelling is one of a row of 12 single storey terraces. Mr. Hewett advised that this row is the only remaining row of Victorian houses in Port Melbourne facing the foreshore.
The terrace to the west at No. 8 has been extended with a first floor, a roof garden over the new first floor, and relevant to this review, a roof terrace behind the front roof facing the foreshore.

The proposal is to extend the dwelling so that it has a full width ground and first floor at the rear.
The new first floor is set 15 metres from the street.
A feature of the extension is a roof terrace behind the ridge of the roof facing the street. It is set back approximately 6.2 metres from the street.

The review site is in the Residential 1 Zone of the Port Phillip Planning Scheme ('the Scheme') under which a permit is required for the alterations and additions to a dwelling on a lot under 500 sq m. The provisions of Clause 54 apply.
The site is affected by a Heritage Overlay under which a permit is required for demolition and construction of buildings and works. A permit is required for the proposal under this overlay. The Schedule of the overlay is HO3 (South Melbourne, Albert Park, Middle Park and part of St. Kilda).
Other relevant policies and provisions of the Scheme are Clauses 11, 15, 16.01 21.05 (Residential Land Use), 21.05-3 (Neighbourhood Character), 21.05-4 (Urban Design), 21.05-5 (Heritage Conservation), 22.01 (Residential Neighbourhood Character Policy), 22.04 (Heritage Policy and 65.

At the hearing, parties spoke to written submissions. Mr. Briggs, called to give evidence, was made available for cross-examination.
At the conclusion of the hearing, decision was reserved. The Tribunal indicated that it would inspect the site before doing so. The inspection was carried out on 20 March 2009.

A permit has been issued for the proposed extension. The issue here is limited to the contested conditions of the requirements to require the retention of the roof up to 1 metre behind the existing chimney of Condition 1b) as a heritage consideration, and setting back of the first floor from the eastern boundary with No. 6 of Condition 1b) as an amenity consideration.
The Tribunal will address them in turn.

Conditions 1(b) the retention of the existing roof until at least 1 metre to the rear of the chimney

This condition is related to heritage and requires the entire traverse gable roof at the front and that part of the roof behind this roof to be retained to 1 metre behind the existing chimney. Council explained that this is to assist in the retention of the chimney and to reduce the visibility from the street of any future temporary structures, people and privacy screens on the deck.
The main contention is whether the extent of roof to be retained required by this condition relevant to the heritage consideration of the proposal, particularly with regard to the recommendation to retain the principal façade or roof of a heritage place in Clause 22.04.
Council submitted that the principal facade of the building is not just the skillion roof form projecting above the verandah but the return and hipped sections of the roof.
It relied on the decision of Senior Member Baird in Kidston v Port Phillip CC [2009] VCAT 233, where she refused an extension of the building which also included a similar roof deck at No. 2 Beaconsfield Parade.
Apart from the visual intrusions of structures and people above the roofline of the building, Council was also concerned about the viability of the chimney proposed to be retained. This chimney is located in a central position of the deck. It was not satisfied that the safety of the chimney has been demonstrated as there is no ground support by means of the existing fireplace on the ground level. The last concern with regard to heritage is the visibility of the privacy screen of this roof deck from the street.
Mr. Song's argument was that Clause 22.04 is about retention of the 'principal facades or roof' and that the part of the roof to be demolished is not the principal roof. He submitted that Council officer's report [1]conceded that the facade and external side walls will remain intact in the proposal, and that its concern is the chimney and not the part of the roof to be demolished which are not visible from the street. He submitted that the condition requiring the extent of retention of the existing roof is not warranted by clause 22.04.
With regard to the concern about the chimney lacking support, his argument was that the proposal is to retain the chimney, and it is up to his client to determine how it can be done.
He tabled the example of a similar roof deck at No. 8, one which was supported and approved by Council under similar circumstances.
Mr. Briggs, called by Mr. Song, gave evidence that the proposed deck will have no impact on the heritage fabric of the building and no detrimental impact on the experience and appreciation of the heritage place. He found the deck at No. 8 as not evident from the public domain except when in use and the use of the deck does not adversely affect the heritage significance of that place. His view is that the rear and hidden section of the roof required to be retained by this condition is not the 'principal roof'.
As for visibility of occupants on the roof from the street, his opinion is that Beaconsfield Parade is particularly wide with a distance of some 31 metres from the property frontage of the site to the bike bath opposite, 40 metres to the footpath beside the bluestone wall, and the beach and water at a greater distance.
He disagreed with Senior Member Baird's finding for No. 2 Beaconsfield Parade which also proposed a deck behind the roof, that there is in fact no local policy against removal of parts of a principal roof which is hidden from public view.
To determine whether the demolition of the back side of the traverse roof is appropriate, it is necessary to review the heritage policy of Clause 22.04. The relevant parts of this policy is reproduced here:

It is policy to encourage additions and alterations that incorporate the following design characteristics:

The additions and alterations:
- Do not change the original principal facade(s) or roof.
- Are distinguishable from the original parts of the heritage place to be conserved if a contemporary architectural approach is used.
- Do not obscure or alter an element that contributes to the significance of the heritage place
- Maintain an existing vista or viewlines to the principal facade(s) of a heritage place.
- An upper storey addition is sited and massed behind the principal facade so that it preferably is not visible, particularly in intact or consistent streetscape (see performance measure 1),
- If visible, the roof form of any addition is related that of the heritage place
- Where the property is located on a corner site .......

The first dot point is the case in point: that the addition and alteration should not change the original principal facade(s) or roof.
Mr. Brigg's evidence is that the part of roof to be removed is not the principal roof.
The Tribunal disagrees. The traverse roof and the hipped roof at the front half of the building make up the principal roof of the building, although most of the principal roof is concealed from street view. Under this interpretation, the part of the roof to be demolished for the deck, is part of the principal roof, although not visible from the street.
However, it is an accepted heritage principle that removal of those parts of the fabric hidden from public view is an acceptable compromise to ensure the continued active use of a building, particularly if this building is not a distinguished individual building of regional or state significance.
The Tribunal accepts Mr. Brigg's opinion that not retaining the hidden parts of the roof would not reduce the understanding and appreciation of the building. It is whether the replacement deck, or use of the replacement deck may cause an adverse impact on the heritage significance of the place, such as having people or garden structures that 'loom' over the roofline of the building.
Photographs tendered at the hearing showed people at the deck at No. 8 with their torso visible above the roof line. The Tribunal's inspection show palms coming above the roof.
Council tabled the endorsed plans of No. 8 to assist the Tribunal. However, the Tribunal cannot rely on these plans to get an understanding of the existing deck at No. 8. The cross-section plan showing sightlines shows the back of the traverse roof retained, which also means someone cannot physically stand right up against the ridge of the roof. The constructed deck allows people to go to the edge of the roof ridge. Further, no finished floor level was given, meaning that it is difficult to gauge the elevation of the deck. Finally, the first floor extension and deck as constructed are different from the endorsed plans. Mr. Song's photograph of the roof deck showed five steps from the meals area when the endorsed plan showed only two.
The sightline diagram tabled by Mr. Song for the review before this Tribunal is also of limited use. This plan shows the finished floor level of the deck at 6.08 metres, and that a person of 1.7 metres high would not be visible from the footpath of the house, the head visible when viewed from the median and bike lane on the opposite side of Beaconsfield Parade.
The finished floor level of the upper roof terrace is proposed to be 6.31 metres, meaning persons standing near the roof ridge will be much more visible than suggested in the diagram. It also means furniture and garden facilities above a person's sitting height may also be visible.
With the extent of visibility of people or facilities possible in the proposed deck, the Tribunal doubts that would be a situation where the existing vista or viewlines of the principle facade of this heritage building would not be disturbed or interrupted as intended in the policy.
To ensure a minimal intrusion above the roofline, the Tribunal will amend this condition to require a lower finished floor level of the upper deck to 6.08 metres.
The Tribunal now returns to the matter of the chimney. It agrees with Council that the retention of the chimney is doubtful without the structural support of the fireplace on the ground floor which is proposed to be demolished. It is in fact doubtful how the chimney can be retained when the building around the chimney is to be demolished before reconstruction. However, Mr. Song strongly argued that the proposal is to retain the chimney, regardless of whatever methods required.
Although it intrigues the Tribunal how the chimney[2] can be retained, it is an undertaking Mr. Song's client has given. If the chimney collapses or becomes damaged, it may be an enforcement for Council.
One last issue is the 1.7 metre high privacy screen for the deck that may be visible from the street. With the revised condition requiring the lowering of the finished floor level of this deck, the Tribunal is confident that the visibility of this screen will be diminished to the extent that its visibility from the public realm will be negligible.

Condition 1(c) - The Entire Upper Level wall to the Rear of the Light Court Set Back from the South East Boundary by at Least 1 Metre

The issue is the height of the two storey wall on the boundary against No. 6 Beaconsfield Parade to the southeast. The height of this wall at 6 metres does not meet the average 3 metres height of Standard A11. Council imposed this condition as this wall is on the northwest side of the principal area of private open space of that dwelling, and that this wall covers over half (55%) of the boundary along this courtyard.
Mr. Song, on the other hand, submitted that the impact on the amenity of No. 6 is 'minimal', as it does not cause unreasonable overshadowing and that it meets the daylight standard of Clause 54. Further, he submitted that a reduction in the width of the first floor (the principal bedroom of the dwelling) would compromise the amenity of this room for a lot that is a single front property.
The Tribunal accepts that inner urban terrace houses are often compact and existing "cheek by jowl". Whatever little amenity in secluded private open space and access to sunlight and daylight are precious.
This proposal is to have a two storey wall (Council measured at 6 metres and Mr. Song 6.5 metres) on the northwest side of No. 6 Beaconsfield Parade opposite which is at least one habitable room window, a 'sunroom' and part of the secluded private open space of this dwelling.
Having reviewed the decision guidelines for Clause 54.04-2, the Tribunal is not satisfied that the objectives of this clause have been adequately achieved to warrant deletion of this condition.
The Tribunal is inclined to support a two storey wall on the boundary if it abuts a simultaneous on-the-boundary wall. This is not the case here. Its inspection of other two storey on-the-boundary extensions of this row of terraces reveals that they are on a simultaneous on-the-boundary wall.

The decision of the Responsible Authority is varied and contested conditions amended/retained as stated in this order.

[1] Page 12 of Council's delegate report

[2] There may be a chance that the existing chimney is not an original chimney of the house, given the different bricks used and the different in design and construction of this chimney and the other original chimneys of the same row of terraces.

Environment Act 1987

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

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

McPhee v Port Phillip CC & Ors [2009] VCAT 515 (27 March 2009)

Parties

Legislation Cited (1)