1. In addition to ground and first floor additions to the dwelling, the permit issued in 2023, and endorsed plans of August 2023 and April 2024, show:[6]
   • retention of the front four rooms, and hall, of the dwelling with demolition of the balance, removal of some fireplaces and internal walls, and modified floor levels;
   • floor levels elevated compared with current floor levels within the retained front four rooms (and hall) of the extant building;[7]
   • retention of the chimneys above the roofline 'as is';
   • existing timber windows retained to the front façade of the building;
   • replacement of the front picket fence (1.5 metre high timber);
   • alterations to the non-original verandah to a raised finished tiled level by 360mm (RL 12.28 or 12.29 current increased to AHD FFL 12.65)[8]; and
   • recladding of the retained roof with a new metal roof of galvanised finish, and with a nominated pitch of 30 degrees.
2. These buildings and works have all remained constant (ie. unchanged) through plan endorsements and permit amendments granted by the Council.
3. Thus, the existing permit approval requires (as most relevant to the current amendment request):
   • the front four rooms (and hall) to be retained with a new, higher, internal floor level; and
   • the roof form to be retained but at a higher position on the land and possibly with a varied roof pitch.[9]
4. Submissions refer to the approved increased levels as 300mm and 560mm.
5. On our review of the plans, when comparing existing conditions with the approved new development, the modified floor and roof levels are:
   • an increase in the internal floor level of the front four rooms and hall in the retained portion of the building from 12.33 (at the entry and one bedroom) and 12.36 (living room) to a new uniform level of 12.700 AHD. This is an increased level of between 340mm and 370mm.
   • an increase in the overall height to the nominated roof ridge of 560mm (increase from 16.91 - 16.98 to a uniform 17.500). This is an increased level of between 520mm and 590mm.
6. The Council submits that the altered (elevated) floor levels associated with the retained portion of the building were not disclosed to it by the permit applicant or permit holder in any material supporting the permit application in 2021 or later. This includes an assessment in a heritage impact statement (2021). We have not been given any specific explanation from the applicant or in evidence as to how this apparent omission in the material arose.[10]
7. The Council also submits 'it appears to have been overlooked by Council because neither Council's heritage advisor nor the Council officer assessed this aspect of the proposal'.[11]
8. The endorsed plans do not document specific elements of retained fabric and how they will be treated. The heritage impact assessment states:[12]

All architectural features that contribute to the architectural character of the building, such as the hipped roof form, front façade detailing, comprising bracketed eaves and verandah, and brick chimneys, will be retained as part of the proposal....

The removal and replacement of the non-original tubular steel verandah posts and the concrete paving with new timber posts and a tessellated tile flooring is an appropriate response that will improve the principal façade and serve as a contemporary interpretation of a posted verandah. Where required in the instance of rot or damage, timber weatherboards, window and door joinery will be replaced to match existing. These works will not alter the presentation of the building in the streetscape.

In addition, the repainting of the building will improve the presentation of the building....

1. A building permit has issued and a building surveyor has been appointed.

CHANGES REQUESTED IN THE CURRENT AMENDMENT APPLICATION

1. Approval is sought to demolish the portion of the building that the permit shows as being retained and to construct a single-storey form in the approved location, to the approved levels, to appear like the demolished dwelling.
2. Based on Revision U plans,[13] the amendments to the permit that have been applied for, and refused also:
   • Contain notations with respect to proposed brick chimneys 'to match existing chimney' and proposed timber doors and windows 'to match existing'. That is, replacing the two chimneys (above roof level), front windows and front door whereas the endorsed plans refer to (inter alia) the 'existing timber window retained'.
   • Show the verandah floor level, the ground floor level, top of gutter and ridge levels, and building heights that match levels, dimensions and heights shown on the endorsed plans.
3. Figure 2 shows the proposed front (west) elevation.

Figure 2 - Extract from plan TP-16S (Proposed works, west elevation, with the approved two- storey addition shown to the rear).

1. The proposed amendments require modifications to the planning permissions already granted. The permit currently allows:

Partial demolition of the existing dwelling and construction of a double storey rear addition.

1. The parties agree the amendment application gives rise to the following:
   • clause 32.09-5 - a permit is required to construct or extend one dwelling on a lot less than 300 square metres.
   • clause 43.01-1 - a permit is required to demolish or remove a building; and to construct a building or construct and carry out works.

1. We are confined in this proceeding to review the decision to refuse to amend the permit. Unlike Tribunal cases to which we have been referred by parties in their submissions, we are not dealing with this as a fresh permit application for the whole development. We must assess the proposed changes to the existing permit and endorsed plans.[14]
2. We observe that:
   • No-one has sought to correct what has been described as an oversight and lack of disclosure. We confirmed with the Council at the hearing that it has not, for example, sought cancellation of the permit. It has also not sought to amend the permit to our knowledge.
   • While knowing of the approved lifting of the floor level in 2024 (as referred to in the officer's report with a final date of 27 December 2024) and expressing concern about this through the hearing, the Council granted a 12 month extension to the permit on 4 March 2025.

1. We must decide whether to grant an amended permit and, if so, whether the proposed amended conditions should apply to the permit. Would the amended permit result in an acceptable outcome having regard to the relevant scheme policies and provisions?

1. Clause 71.02-3 explains the task of 'integrated decision making'. The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making.
2. Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. The applicant submits that the proposed demolition is acceptable. The current state and condition of the dwelling, and the impracticability of retaining and repairing that dwelling, warrant demolition.
2. The applicant relies on structural engineering evidence by Mr Juers.
3. On the basis of that evidence, the applicant submits the Tribunal ought be satisfied that it is clear that the building is structurally unsound and there are no feasible options for repair. The amendments respond positively to the policy considerations in the Yarra Planning Scheme ('scheme') (notably clause 15.03-1L) for demolition in the specific circumstances.
4. Structural and engineering reports by Adams Structural and Civil Engineers ('Adams reports') submitted to the Council in processing the permit application were:
   • dated 12 July 2024; and
   • dated 1 October 2024 (which incorporates a response to Council's internal referral from Phelan Shilo Partners ('PSP') dated 22 August 2024).
5. Mr Juers prepared two reports ('Lockwood reports') in relation to the condition of the front portion of the dwelling in April and July 2025. His reports are based on detailed inspections over most of one day.[15] Mr Juers prepared an expert witness statement and a supplementary statement. The latter responds to structural engineering advice relied on by the Council.
6. We do not recite all of the detailed material in all of these reports and documents nor comments by the appointed building surveyor with respect to the prospect of granting regulation variations under the building codes.
7. The applicant commissioned geotechnical site investigation reports in 2021 and 2024. A further investigation is contained in advice dated 7 April 2025 (Melbourne Geotechnics) with respect to the existing footings associated with the southern wall, and two chimneys.
8. The applicant emphasises that the Council has not sought to call expert evidence and that demolition was accepted by the heritage advisor (subject to conditions) on the basis of the applicant's structural engineering reports.
9. The applicant also relies on the evidence of Ms White, a heritage consultant. She prepared the original heritage impact statement in 2021 and a further statement in 2024 in support of the current amendment request.
10. Ms White refers to the loss of a contributory building as acceptable given the structural engineering reports showing that the majority of the building's primary structural elements are irreparably compromised due to termite damage, rot, water seepage and failing footings. Ms White refers to the loss of contributory fabric if stabilisation works were able to be undertaken, as the majority of the external fabric to the building would require replacement. She finds the proposed replacement or reconstruction to be acceptable.

1. The Council opposes full demolition of the contributory building which forms part of an intact streetscape of contributory buildings in this part of the heritage place (HO309). Its submission states this as its position even though demolition was supported by Council's internal heritage advisor.[16] Its position is subject to the inclusion of a permit condition with respect to the reconstruction of the dwelling only, which is not opposed in principle. The Council submits demolition does not comply with the objectives of the Heritage Overlay and associated policy to '[p]rioritse the conservation and adaptive reuse of a heritage place over demolition'.
2. The Council's position is informed by structural engineering advice it obtained. The advice is referred to as a peer review of the structural engineering reports obtained on behalf of the applicant. This advice was from PSP in documents dated 22 August 2024, 5 August 2025 and 28 August 2025.
3. We were told PSP did not undertake a physical inspection of the property and building.[17]
4. We do not recite all of the detailed material in these reports and documents.
5. The Council relies on the advice.
6. The PSP advice concurs with that of Mr Juers insofar as attempting to retain and lift the entire building to raise the floor levels is impractical and unfeasible. The building will not survive and would be required to be demolished.[18]
7. The advice does not agree that the building is structurally unsound and that retention of the front four rooms of the original building is unachievable based on current levels. It refers to a lack of evidence to support a position that the superstructure is unsound ('beyond repair') or to suggest that (for example) foundations cannot be remediated via underpinning. PSP says remediation works are feasible from a constructability perspective and there is a lack of material about this and alternative stabilisation measures.
8. The advice states heritage fabric is in a salvageable condition, referring to the 'weatherboard and tin roof', and continues:[19]

The photos within the Applicant's reports to date show only local damage requiring replacement, but not enough to consider the weatherboard unsalvageable. Where local repairs are required to the weatherboards, heritage-suitable materials can be recycled from the rear of the site (i.e. from the extent of the building to be removed).

It is generally acceptable to repair or replace heritage corrugated iron roof sheeting with Council-approved products. The above position - that the roof sheeting is in salvageable condition - is made on the basis that there is no evidence to the contrary.

1. The Council acknowledges the extent of original fabric that needs to be replaced. It says the scope of works is not unusual for a dilapidated Victorian era weatherboard dwelling and will not undermine the integrity of the building. It submits:
   • contributory fabric that should be retained and restored is the front façade with its original ashlar block façade, central timber-framed four panelled front door with fanlight above, timber framed sash windows in a tripartite arrangement, brackets to the roof eaves above the verandah, and the two brick chimneys.
   • there are no internal heritage controls, therefore replacement of the sub-flooring, floorboards, internal wall and ceiling linings and brick fireplaces are acceptable from a heritage perspective.
   • it is not uncommon for dilapidated heritage buildings to have weatherboards and external roof sheeting replaced.
   • reconstruction of the non-original front verandah will enhance the contribution of the building to the streetscape.[20]
2. Ms Thomas emphasises that relocation (with respect to lifting levels) of the building is not sought by Council and is not consistent with scheme policy to prioritise conservation over demolition. The Council submits retention and remediation are an appropriate response when weighing up the condition of the building and when having regard to the sensitivity of the heritage context of the site.
3. She notes that the applicant has not provided any costings and does not contend that financial factors are relevant to a decision here.
4. Further, the Council states that the applicant should seek to amend the permit to lower the building so as to retain the contributory building fabric as is the outcome shown in the endorsed plans and the basis of the grant of the original permit and subsequent amendments.
5. Through Mr Juers' evidence and the Council's submission, we have been provided with copies of correspondence from the Council's Building Technical Officer with respect to flood levels and minimum floor levels. As we understand it, the generic advice was not recommending that the existing building on the subject land be raised. It states, in part, that there is no designated flood level at this time. But there is a plan to do so 'however events may also change which leaves the property as it is'.[21]
6. The Council states that it does not require the finished floor level of the existing building to be raised to meet building or flooding regulations. Moreover, raising the building was not assessed by Council in determining to grant the original permit and it would be contrary to policy at clause 15.03-1L which specifies: 'It can be demonstrated that the relocation is the only reasonable means of ensuring the retention of the heritage place'.

1. Having regard to relevant matters under the scheme, and evidence and submissions relied on by both parties, the key issues for the Tribunal to determine are:
   • whether the proposed demolition is acceptable having regard to the purpose and decision guidelines in clause 43.01; and
   • whether the proposed development is acceptable having regard to the purpose and decision guidelines in clauses 43.01 and 32.09.

1. The parties agree on a range of matters including the following:
   • the land is in a Heritage Overlay and Neighbourhood Residential Zone, is not affected by any Land Subject to Inundation Overlay, and the Council has not made any formal declaration of a flood height.[22]
   • the existing building is contributory to heritage precinct HO309.
   • the reasons as to why HO309 is significant, as set out in the statement of significance.
   • that the existing building has features that are identifiable as 'contributory elements' listed in the statement of significance for HO309.
   • the identification of scheme provisions and policies that are relevant through the scheme (with their focus on provisions and policies relating to the disputed demolition question).
   • that attempting to retain and lift the entire building to raise the floor levels is impractical and not feasible, based on their respective structural engineering advice.
   • no party contends that cost factors are relevant in this proceeding.[23]
   • if demolition of the front four rooms and hall is approved, the proposed works with respect to the replacement building are acceptable when assessed under the provisions of clauses 43.01 and 32.09 (including clause 54) - in heritage and character terms, and with respect to potential off site amenity impacts.

1. There is no dispute with respect to the qualifications and experience of:
   • the expert witnesses called by the applicant; or
   • the author of structural engineering advice relied on by the Council; or
   • the heritage advisor's heritage expertise (which does not include structural engineering).
2. We have read the reports, evidence and associated material, which are not recited in this determination.
3. It is relevant, however, to the consideration of and influential weight to be ascribed to this material by the Tribunal that:
   • we observe the different instructions that were given to the authors of the various pieces of structural advice and expert evidence, for example:
     • PSP was said in the Council's submission to have been asked to undertake a peer review of the Adams and Lockwood reports.
     • Some of PSP's advice of 5 August 2025 is framed as 'Council's recommended structural position' evident in the following quotes:[24]

The following is a list of arguments that the Council should clearly and concisely present at the VCAT hearing.

The purpose of this brief Consultant's Advice Notice (CAN) is not to act as an exhaustive response to the latest 80-page report; it is to reiterate the Council's main structural arguments.

• experts engaged by the applicant have undertaken site inspections, with detailed documentation contained in the Adams and Lockwood reports, whereas the expert advice engaged by the Council did not involve a site visit. It relied on a document review, photographs and visual material such as that supplied in the documents being reviewed.
• authors of the Council's heritage and engineering advice have not been called to give evidence and have their opinions tested through the hearing process, whereas Ms Juers and Ms White have.
• neither the Adams material or Ms White's evidence are independent of the process as they were associated with the permit application supporting the amendments sought. Mr Juers was engaged in March 2025 after the Tribunal proceeding was lodged in February 2025.
• the Lockwood reports contain detailed documentation relating to his investigations, albeit there are limitations such as:
• with respect to access to floor, sub-floor and wall fabric in the two rooms (he refers to these as north-east bedroom and living room) because wall and floor linings remain in situ; and
  • limited access along the northern side of the building due to the close proximity of the adjacent house to the north.

1. The above does not suggest that material presented by parties, and the Council's technical advice is not of assistance in the Tribunal's deliberations. Rather, documents, reports and advice must be understood in the context in which they are prepared and written, and also understanding that limitations may exist. This influences the differing weight that they are given by us.

1. Two permissions are triggered by the permit application under clause 43.01:
   • To demolish a building pursuant to clause 43.01.
   • To construct a building and to construct and carry out works in HO309 pursuant to clause 43.01.

1. The subject land is in heritage precinct HO309, shown in Figure 3 below.

Figure 3 - Subject land (marked) HO309. Image source: Planning property report.

1. Surrounding properties to the north, south and east of the subject land are part of the same heritage precinct.
2. No internal building controls or tree controls apply in relation to HO309.
3. The purpose and decision guidelines of clause 43.01 must be considered in determining the permit application. The purpose of clause 43.01 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.

To ensure that development does not adversely affect the significance of heritage places.

1. Relevant decision guidelines in clause 43.01-8 in relation to demolition and the proposed buildings and works are:
   • The Municipal Planning Strategy and the Planning Policy Framework.
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
   • Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
   • Any applicable heritage design guideline specified in the schedule to this overlay.
   • Whether the location, bulk, form or 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 demolition, removal or external alteration will adversely affect the significance of the heritage place.
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

1. The statement of significance for HO309 is extracted from the City of Yarra Review of Heritage Overlay Areas 2007.[25] This statement includes the following:

Main development era

The main development era evident in the heritage overlay is that of the Victorian and Edwardian-eras, with a contribution from well preserved inter-war buildings and individually significant places of all eras, such as the former Wertheim Piano Factory.

Contributory elements

The contributory buildings in the Bendigo St Heritage Overlay Area include mainly (but not exclusively) small attached and detached Victorian-era and Edwardian-era one-storey houses, but with some well preserved residential examples from the immediate post First-War era, having typically:

• Pitched gabled or hipped roofs, with some façade parapets;
• One storey wall heights;
• Weatherboard, face brick (red, bichrome and polychrome), bluestone, or stucco walls;
• Corrugated iron roof cladding, Marseilles pattern terra-cotta tiles, with some slate roofing;
• Chimneys of either stucco finish (with moulded caps) or of matching face brickwork with corbelled capping courses;
• Post-supported verandah or porch elements facing the street;
• Less than 40% of the street wall face comprised with openings such as windows and doors; and
• Front gardens, originally bordered by typically timber picket front fences or wire fences (inter-war) of around 1m height; also
• Corner shops and residences with large display windows and zero boundary setbacks.

How is it significant?

HO309 Bendigo Street Heritage Overlay Area, Richmond is aesthetically and historically significant to the City of Yarra (National Estate Register [NER] Criteria E1, A4)

Why is it significant?

The Bendigo Street Heritage Overlay Area is significant for:

• Its substantially intact single-storey Victorian-era housing that varies between modest and ornate;
• Edwardian house examples, particularly in Swan and Moore Streets, being both typical and highly decorated Edwardian dwelling types, complemented by the significant Edwardian-era former Wertheim Piano Factory;
• The retention of early materials and elements in the public domain, such as street construction, and the retention of many bluestone laneways;
• The demonstration of a typical 19th century suburban area with its attached and detached housing stock and corner shops, that has been subsequently lost in other parts of the inner suburbs; and
• The consistency of building scale and setbacks, creating cohesive and homogeneous streetscapes that are enhanced by mature plane tree avenue plantings.

1. The building on the subject land is contributory to the Bendigo Street Precinct Heritage Overlay.[26] That is, contributory to the identified cultural values of HO309 as stated in the statement of significance.
2. We have referred to the parties' agreed position that the extant building displays contributory features such as its scale, materials, roof form and elements such as chimneys and roof cladding.
3. The building is located with a street block of six lots on the east side of Bendigo Street that are all occupied by contributory graded buildings. There is also a strong representation of contributory buildings on the west side of this part of Bendigo Street.

1. Heritage-related policies in the Municipal Planning Strategy and the Planning Policy Framework include clauses 02.01, 02.01-6, 02.02, 02.03-4, 15.03-1S and 15.03-1L 'Heritage Conservation'.
2. Clause 15.03-1S has the objective to 'ensure the conservation of places of heritage significance'. Strategies include:

Retain those elements that contribute to the importance of the heritage place.

Encourage the conservation and restoration of contributory elements of a heritage place.

1. Other policies and assessment tools under the scheme apply which we do not recite, including the BURRA Charter ('Charter') referred to in clause 15.03-1S.
2. Clause 15.03-1L address heritage in the local context. The objectives are:

To conserve and enhance Yarra's natural and cultural heritage.

To preserve the scale and pattern of streetscapes in heritage places.

To ensure the adaptation of heritage places is consistent with the principles of good conservation practices.

To promote signs that conserve and enhance the significance of a heritage place.

1. The clause contains strategies that address new development, alterations or additions, as well as demolition and (among others) restoration and reconstruction, and relocation.[27]
2. These strategies include:

New development, alterations or additions

Retain, conserve and enhance individually significant and contributory buildings as identified in the incorporated document in schedule to clause 72.04 'City of Yarra Database of Heritage Significant Areas.'

Protecting and conserving the view of heritage places from the public realm (except from laneways, unless fabric visible from laneways is identified as being significant in the Statement of Significance for the place).

Demolition

Prioritise the conservation and adaptive reuse of a heritage place over demolition.

Prevent the demolition of individually significant or contributory buildings unless all of the following can be demonstrated:

• The building is structurally unsound rather than in poor condition.
• Alternative stabilisation works have been investigated and are not feasible.
• The replacement building and/or works is appropriate for the heritage context.

Restoration and reconstruction

Retain the significance of the heritage place and the original fabric through:

• Restoration (returning a place to a known earlier state by removing accretions or by reassembling existing elements without the introduction of new material).
• Adaptive re-use.
• Reconstruction, where evidence exists (returning a place to a known earlier state, including the introduction of new material).

Support the reconstruction of a building or works that previously existed in a heritage place if:

• The reconstruction will support the significance of the heritage place.
• Evidence exists to support the accuracy of the reconstruction.

Relocation

Retain a heritage place or a contributory element to a heritage place in its original location unless:

• The location is not an important component of the cultural significance of the heritage place.
• It can be demonstrated that the relocation is the only reasonable means of ensuring the retention of the heritage place.
• A suitable location is secured.

Not feasible to both retain and lift the levels in the building

1. We cannot ignore or downplay the fact that plans endorsed under the permit have approved level changes. This has not changed since 2023.
2. The parties agree, their expert advice concurs with, and we accept that attempting to retain and lift the building to raise the floor levels is impractical and not feasible. The front four rooms and hall of the building will not survive that process.
3. This is a significant point of agreement as it demonstrates that the approved and endorsed works cannot be achieved. The front four rooms cannot be retained and repaired/restored/reconstructed in situ while also complying with the approved new floor levels in the endorsed plans.

1. We appreciate that there are likely situations where owners decide to take on a project such as this and, as stated by PSP, 'with unlimited resources, any heritage asset can be retained'. For example, it may be possible to make repairs such as to the existing footing system.
2. Although the Council has not been satisfied that the building is structurally unsound, we are persuaded that structural elements comprising the timber floor framing, wall framing (wall studs, wall bottom plates and associated timber floor joists) and footings system are defective. There are not the same issues with the roof frame and structure. But Mr Juers' states:

The primary issue with remediating the footings in this case is that there is no point in temporarily retaining the existing floor framing, wall framing, and roof / ceiling framing so that the existing footings system can be augmented, only to then completely demolish the existing floor framing and wall framing systems anyway.

1. We accept the types of repairs cited by the Council as being possible, and frequently adopted in renovating heritage buildings, in this case do not overcome other problems that this building and site confront as emerges from a holistic analysis. For example, Mr Juers' states lowering the sub-floor soil level would make issues of water ingress, mould growth and premature structural damage to the low-level dwelling structure worse than it otherwise would have been if the sub-floor soils were not lowered. Drainage associated with surface levels changes, which could be increased, could impact on lower properties to the north and south of the subject land.
2. As noted, detailed information in evidence and the advice given to the Council relating to chimney underpinning lose some significance in our view when appreciating that the chimneys have been approved, and are still proposed, to be suspended and most fireplaces removed. Internal works are not the subject of planning permission under the scheme.
3. It is self-evident that that the front portion of the dwelling is in very poor condition. We place weight on Mr Juers' evidence, including detailed documented investigations of the structural elements of the building, and the opinion that:

...the original dwelling structure is in a severely deteriorated and compromised condition, is not structurally sound, and is beyond reasonable repair. As such, it is my opinion that the original dwelling structure is at the stage where it will require complete demolition and replacement with a new structure, and cannot practically or reasonably be retained and repaired in place.

1. No-one has said the building is about to collapse. It is not habitable. It may not seem too defective from the public realm as, for example, the external fabric masks the extent of damage, deterioration and differential settlements of the main structural elements associated with the floor and lower parts of the walls. There is also a large amount of vegetation in the front setback.
2. We find, on the available information, that the building is structurally unsound. There have been varying definitions in Tribunal decisions as to what 'structurally unsound' or 'structural soundness' means, as it is not defined by the scheme. These have been referred to by the parties.[28] We find the extent and degree of defects in the floors and walls in the front portion of the building are beyond what is normal or not unexpected for a structure of that age that has been maintained to a normal standard and in the particular circumstances of the particular structure in its setting.[29]

1. The Council does not consider floor levels need to be raised. In response to a question from the Tribunal at the hearing, Ms Thomas stated the applicant should seek to amend the permit to retain the current position of the front four rooms. This position weighs retention over 'relocation', or put another way using words in the demolition policy, 'conservation' over 'demolition'.
2. We do not find reliance on the local 'relocation' policy of great assistance for a building that has been intended to be rebuilt on the same footprint but with raised levels. If the situation can be properly described as relocation, we agree with the Council that relocation is not a means of ensuring the retention of the heritage place or contributory element, rather, it results in the building's demise in this case.
3. There is no mandated or required level based on localised flooding at this time. However, unlike the situation of a fresh planning permit for the whole of the development, the combination of the following cannot be ignored or be given substantially diminished weight:
   • the endorsed plans approve changed floor levels and roof levels.
   • all of the structural evidence, reports and advice acknowledge that key components of the structure (floors and lower portions of the walls) have been affected by water, reactive soil conditions, rot and movement, in addition to potential termite damage. There is also possible tree root damage, based on the substantial size of a tree root found under the floor boards in the north-west bedroom.[30]
   • repair of the building in situ has substantial difficulties, including with respect to worker safety based on Mr Juers' evidence, such that it cannot practically or reasonably be retained and repaired in place including with respect to the roof frame and structure.
   • if the building is retained, Mr Juers' states repair works would need to include complete upgrading of the building to comply with current National Construction Code requirements. His evidence is that this would not be possible due to the issues with the construction of the existing building (in particular the cut-in nature of the sub-floor area and the proximity of the timber floor framing to the ground level).
   • if the building is retained in situ, drainage and surface water would need to be managed to overcome the current issues from water and soil movement, lack of subfloor ventilation, and to avoid impacts on adjacent land.
4. Given known water issues (which we believe are not 'very slight' or 'slight' as referred to by PSP) and flooding levels shown in Council's modelling which have been given to the applicant and experts, one can understand why the applicant would seek to protect the new development by proposing elevated floor levels. We are not persuaded that the floor structure, whether remediated or replaced, can be constructed in a way to achieve adequate freeboard and subfloor ventilation without other consequences and impacts.

1. The Council relies on PSP advice that alternative stabilisation works have not been adequately investigated and documented, and are too 'high level' to be accepted. Mr Juers' does not agree, referring to his first report of 9 April 2025 where he said:

...[he] had considered all reasonable options for the retention and repair of the building and determined that they are not feasible in this case, prior to concluding that the building cannot be retained and repaired in place, and will therefore require complete demolition and reconstruction. [31]

Furthermore, in my Second Report I considered all of the options and alternatives provided by the first Council Engineer CAN in relation to the retention and repair of the building in detail, and determined that they are not feasible.[32]

1. Mr Juers' opinion is that alternative works such as underpinning and restumping are not feasible nor logical to carry out. He opines that:

Even if it were practical to carry out underpinning and/or re-stumping of the building (which it is not), this suggested course of action would involve extensive structural and non-structural works, only for the finished product to be highly susceptible to unacceptable building damages....

• Regarding the internal areas of the timber floor framing (away from the external perimeter walls), it would be possible but illogical to re-stump these isolated bluestone footings with new stumps and stump footings, as the entirety of the timber floor framing requires complete demolition and replacement anyway. So rather than "re-stumping", this would simply be demolition of the existing floor framing and footings, and construction of new footings, stumps and floor framing.

1. We have considered the expert evidence and the PSP advice.
2. We are not persuaded to accept the Council's submission that possible solutions can be employed that will allow the heritage building to be retained. We find that those solutions do not sufficiently address the retention of the building holistically, which is relevant to the practicality and feasibility of the solutions. Nor do they adequately have regard to consequential impacts and the inter-relationships involved with the repair of building fabric. We therefore prefer Mr Juers' evidence.

1. The current approval is limited with respect to what is to happen with external fabric. In addition to the doubt about new verandah works (which are not in contest), the external materials and colour legend suggest wall cladding and roof materials are replaced. Further, painting is evident from the plans, but no statement is provided with respect to retention of detailing and fabric such as windows and the front door, per se. No permit condition requires these types of details to be provided for Council's consideration and endorsement.
2. This is not a case where the repair process with the building in situ would be adverse to the cultural significance of the heritage place. We do not find that routine replacement of like-for-like materials such as weatherboards would undermine the contributory value of the building to HO309. This is the case even though replacement would be wholesale, rather than incremental as often occurs with maintenance.
3. We accept that external fabric contributes to the heritage value of the extant structure. Replacing like with like is commonplace. We believe some fabric is capable of renewal, through an extensive process and reconstruction (based on evidence to support its accuracy) - some fabric may be repairable or salvageable based on Mr Juers' evidence[33] and the other information that is before us. But little seems to be likely to be repaired and re-used given the warped and deteriorated ashlar block boards, side weatherboards, windows and front door. Moreover, the verandah is non-original, the roof cladding has approval for its replacement, and the existing two chimneys are approved to be suspended.

1. The external presentation of the building would represent reconstruction, even in the unlikely event that much original fabric can be salvaged. This would be based on evidence and would support the contributory values of this part of HO309. We accept Ms Whie's opinion that the replacement dwelling will present itself in a manner broadly consistent with the existing building.
2. The part of HO309 to which the Council refers comprises six single-storey dwellings, some with contemporary additions to a scale of two storeys.
3. As discussed in these reasons, the proposed replacement is agreed between parties to be acceptable and appropriate for the heritage context and HO309.
4. We have not been persuaded that the degree to which this row is intact provides any basis to depart from the findings otherwise made by us.[34]

1. Considering our findings having regard to the demolition policy at clause 15.03-1L, we conclude:
   • The building is in poor condition and is structurally unsound.
   • Alternative stabilisation works have been investigated and are not practical or feasible.
   • Replacement building and works are appropriate.
2. This is not a case where we prioritise retention of the contributory fabric over demolition. We have given weight to specific circumstances being:
   • the existing permit is live (and is the basis of a building permit);
   • the facts relating to the approved development which allow changes to the contributory values of the building and material changes to floor and roof levels;
   • the unsound structural condition of the front four rooms of the building documented in expert evidence;
   • the outcome of expert investigations as to alternative stabilisation works that demonstrate that such works are not practical or feasible;
   • the condition of external fabric, albeit most of that fabric is typical of contributory buildings in HO309 and replacement can occur;
   • the agreed position between parties that the replacement building and works are appropriate for the heritage context and in HO309.

Findings on reconstruction/replacement building

1. The parties agree that the location, bulk, form and general appearance of the heritage building will be substantially maintained in accordance with what has been approved under the permit due to the proposed reconstruction. We accept the outcome involving reconstruction is to occur in circumstances and with outcomes aligned with local policy.
2. Both Council's heritage advisor and Ms White recommend detailed documentation of the existing building prior to demolition. This is to include measured drawings, comprehensive photographic records of the existing building and a schedule of materials to match the existing.

1. For the reasons given, we find the proposed permit amendment is acceptable with respect to these permit triggers, subject to amended permit conditions:
   • To demolish a building pursuant to clause 43.01.
   • To construct a building and to construct and carry out works in HO309 pursuant to clause 43.01.

RESPONSE TO CLAUSE 32.09 - CHARACTER AND AMENITY

1. The permission under this clause is not challenged by the Council.
2. For completeness, we briefly address it.

1. As shown below, the subject land is in NRZ1. The NRZ1 zoning is consistent with the land's role in housing policy,[35] where the land is in a minimal change area. The Neighbourhood Residential Zone is applied to established residential areas with heritage significance where minimal change is anticipated.

Figure 4 - Zoning of the subject land (marked). Image source: Planning property report.

1. A permit is required to construct a dwelling on the subject land, which is less than 300m2 in area, pursuant to clause 32.09.
2. The purpose of clause 32.09 includes:

To recognise areas of predominantly single and double storey residential development.

To manage and ensure that development is responsive to the identified neighbourhood character, heritage, environmental or landscape characteristics

1. Decision guidelines in clause 32.09-14 are set out under headings including 'general' and 'dwellings'. The latter includes the objectives, standards and decision guidelines of clause 54.
2. Housing-related, design-related and character-related policies in the Municipal Planning Strategy and the Planning Policy Framework include clauses 02.0-6, 02.02-7, 02.02, 022.03-1, 02.03-4, 02.03-5, 15.01-1S, 15.01-1L-01, 15.02-2S, 15.02-2L, 16.01-1S and 16.01L.

1. The Council and respondent submit that the amendments respond appropriately to the purpose and decision guidelines in clause 32.09 and would not cause unacceptable amenity impacts.

1. We accept the agreed position in relation to relevant considerations under clauses 32.09 and 54.
2. We find the proposed permit amendment is acceptable with respect to this permit trigger, subject to amended permit conditions:
   • To construct one dwelling on a lot under 300m2 pursuant to clause 32.09.

1. The factual context in this proceeding is unusual.
2. The permit holder has the challenge of addressing an outcome in a permit with approved plans and with a building permit that cannot be feasibly or practically achieved.
3. In seeking to address the dilemma, the outcome sought to demolish the front portion of the building, is one that, on the specific facts and on our findings, is acceptable.

1. The parties agreed on 'without prejudice' amended permit conditions should the Tribunal determine to allow the application for review.
2. We accept their agreement. It includes ensuring the reconstructed roof pitch matches the roof pitch of the front four front rooms in the existing building. That is, comprising the area identified as the front four rooms labelled as 'bedroom' and 'living room', plus the 'entry' and hall, shown on plans TP-04P and TP-06P.

1. For the reasons given above, the decision of the responsible authority is set aside. An amended permit is granted subject to amended conditions.

APPENDIX A - AMENDED PERMIT DESCRIPTION AND CONDITIONS

To demolish or remove a building, including a front fence

1. Before the development commences, amended 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 this permit. The plans must be drawn to scale with dimensions, and must be generally in accordance with the plans prepared by Shaw Architecture, TP-07T (16.05.24), TP-07.1T (16.05.24), TP-05T (16.05.24), TP-08U (09.07.24) TP-10U (09.07.24), TP-10.1S (11.04.24), TP-11U (09.07.24), TP-12S (11.04.24), TP-14S (11.04.24), TP-15S (11.04.24), TP-15.1S (12.02.24), TP-16S (11.04.24), TP-17S (11.04.24) and TP-21P (31.03.23) but modified to show:

(a) An amended external materials, finishes and colours legend addressing the reconstructed works for the front of the new dwelling (comprising the area identified as the front four rooms labelled as 'bedroom' and 'living room', plus the 'entry' and hall, shown on plans TP-04P and TP-06P).

(b) The reconstructed roof pitch must match the roof pitch of the following four front rooms in the existing building - three labelled as 'bedroom' and one labelled 'living room' (x 1) shown on plans TP-04P, TP-06P, and TP-07P.

1. The development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Before the external demolition commences, a Reconstruction Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Reconstruction Plan will be endorsed and will form part of this permit. The Reconstruction Plan must include, but not be limited to, the following:

(a) Fully dimensioned and accurately measured plans at a scale of no less than 1:50 prepared by a suitably qualified heritage practitioner/ architect, detailing:

1. The existing façade, roof and return walls to a depth of approximately 5 metres, including sections of the thickness of architectural elements;
2. The proposed reconstruction, to the existing façade, roof, chimney and return walls, with all dimensions and levels; and
3. Photographs of all external architectural elements to be reconstructed such as doors and windows.

1. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the Responsible Authority.
2. Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
3. Within 2 months of the works being completed, or by such later date as approved in writing by the Responsible Authority, any damage to Council infrastructure resulting from the development must be reinstated:

(a) at the permit holder's cost; and

(b) to the satisfaction of the Responsible Authority.

1. Except with the prior written consent of the Responsible Authority, demolition or construction works must not be carried out:

(a) Monday-Friday (excluding public holidays) before 7 am or after 6 pm;

(b) Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or

(c) Sundays, ANZAC Day, Christmas Day and Good Friday at any time.

1. Vegetation must not exceed a maximum maintained height of 1.75m above natural ground level within 1.2 metres of the southern boundary with 79 Bendigo Street.
2. This permit will expire if:

(a) the development is not commenced within two years of the date of this permit; or

(b) the development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion.

[1] The submissions and evidence of the parties, supporting exhibits given at the hearing and statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the Tribunal's practice, not all of this material will be cited or referred to in these reasons.

[2] Based on Ms Cincotta's instructions that the dwelling has been vacant since 2015.

[3] Section 57A of the Planning and Environment Act 1987 (Vic). Our understanding is based on Ms White's oral evidence at the current hearing. She authored a 2021 heritage impact statement.

[4] Section 82 of the Planning and Environment Act 1987 (Vic).

[5] Applicant's written submission at paragraph 5. The Adams report is dated 20 May 2021. It was said by Ms Cincotta to be the first structural condition report to be sought for the building.

[6] This is not an exhaustive list, but focuses on key relevant matters to this proceeding.

[7] The relevant information is shown on the plans which have ground, floor, gutter and ridge levels (among others), to which we refer again below.

[8] Using information on the plans. We note the use of RLs and AHD. A datum to AHD is cited on the plans. TP-07P shows 'TBM Nail in Path RL 12.07 AHD'.

[9] We referred to a potential change in the roof pitch at the hearing, discerned from our reading of the plan levels. By the end of the hearing, Ms Cincotta stated that roof pitch of the front portion is 28-32 degrees, and the intent has been, and is, to match the current roof profile and form.

[10] We do know, however, that the land is subject to surface water flows that, as we refer to below, have contributed to its current state.

[11] Council's written submission at paragraph 14.

[12] Heritage Impact Assessment, December 2021, by Lovell Chen, page 12.

[13] Decision plans have various revision numbers. TP-08U (09.07.24) TP-10U (09.07.24) and TP-11U (09.07.24) show proposed brick chimneys 'to match existing chimney' and proposed timber doors and windows 'to match existing'.

[14] Wattleview Pty Ltd v Yarra City Council (Corrected) [2025] VCAT 24, to which Ms Cincotta referred.

[15] Stated in Mr Juers' oral evidence.

[16] We observe with some reservation with respect to the adequacy of information in structural engineering reports.

[17] The applicant's submission (paragraph 49) says the applicant invited the Council's structural engineer (at the applicant's cost) to meet onsite with the applicant's structural engineer. This invitation was not, we were advised, accepted.

[18] This is a different position to the officer's report which states in part 'that the raising of the internal floor does not require the full demolition of the dwelling'.

[19] 'Consultant advice notice' to the Council dated 5 August 2025, page 2.

[20] There appear to be different views as to whether these works are already approved because the endorsed demolition plans do not show the verandah removed but did show a new floor level. TP-05T, which is part of the current amendment request, shows its removal. The verandah is agreed by parties to be non-original fabric.

[21] Written advice by email to the Council's planning appeals advocate dated 5 August 2025.

[22] The Council officer refers to a maximum flood height of 12.20m AHD, with finished floor levels to be 300mm above (ie. 12.550mm). The endorsed plans show 12.700mm as recorded above.

[23] There is no material from a quantity surveyor. The applicant states repairs are on the evidence of Mr Juers not practical or feasible and thus costs are not argued for this reason.

[24] 'Consultant advice notice' to Council dated 5 August 2025, page 1, document 24-S-092-CAN-003 (Rev 1).

[25] It states it was formerly Appendix 8, City of Yarra review of Heritage Overlay Areas, Graeme Bulter and Associates (2007) which is as a background document in the schedule to clause 72.08.

[26] Incorporated document under the schedule to clause 72.04 - City of Yarra, Database of Heritage Significant Areas March 2024.

[27] The Council refers to lifting the building as 'relocation' for the purpose of policy.

[28] Ford v Port Phillip CC [2017] VCAT 1348; Advant Pty Ltd v Port Phillip CC [2016] VCAT 1113 which was followed in the decision of Poulakis v Moreland CC [2022] VCAT 195.

[29] Adopting wording in Poulakis v Moreland CC [2022] VCAT 195at [100] which relied to Advant Pty Ltd v Port Phillip CC [2016] VCAT 1113, at [22] and [23] with approval.

[30] There is no arborist report relating to that tree root, which is suggested in evidence to be from the street tree in front of the subject land. This plane tree appears to be part of the 'mature plane tree avenue plantings' cited in the statement of significance. What was pointed out at our accompanied site visit by a person associated with the applicant as being a very large tree root in the south-west bedroom was, in our observation, likely pipe-work or similar. We discussed this with the representatives at the hearing, after the site visit. It appeared common ground that the tree root identified by Mr Juers' (photograph 50 in his first report 9/4/25) related to a different bedroom, the north-west room.

[31] Supplementary evidence dated 7 August 2025, at paragraph 5.11.

[32] Second report dated 2 July 2025, at 8.15 point a.

[33] Timber detail above the verandah. However, this is not what the approved plans document or identify, as noted earlier in these reasons.

[34] We note a permit relating to 71 Bendigo Street, and endorsed plans, dating from 2021.