Mega v Hobson Bay CC [2009] VCAT 1450 (28 July 2009)

Application under S.77 of the Planning and Environment Act 1987 for review of the refusal to grant a permit. Residential 1 Zone. Heritage Overlay. Partial demolition and double storey additions to a dwelling. Double storey garage/studio. State and Local Planning Policy Framework. Impact on heritage significance of reconstructed dwelling. Neighbourhood character.

Mega v Hobson Bay CC [2009] VCAT 1450

1. The decision of the Responsible Authority is set aside.
2. In permit application PA0816843 a permit is granted and directed to be issued for the land at 53 Victoria Street, Williamstown on the conditions set out in Appendix A. The permit allows:
   • Construction of double storey additions and alterations to an existing dwelling, construction of a detached double storey garage/studio and associated demolition works in a Heritage Overlay.

He called Mr Bryce Raworth, heritage consultant, to give expert evidence.

The proposal is for double storey additions and alterations to an existing dwelling, construction of a double storey garage/studio and associated demolition works.

Application under Section 77 of the Planning and Environment Act 1987 for review of the refusal to grant a permit.

Clause 43.01-4: demolish a building and construct a building or construct or carry out works.

Clause 22.10 (Hobsons Bay East Neighbourhood Character Policy)

The subject site is located on the western side of Victoria Street, approximately 39.62m south of Osborne Street, Williamstown.

It is a rectangular-shaped lot with a maximum width of 39.62m and a maximum depth of 42.67m, yielding a site area of approximately 650.3m2.

A right-of-way abuts the rear of the site and provides access to an open car space.

The land is currently developed with a detached, double-fronted single storey dwelling. It has recently been meticulously reconstructed in its original Victorian style, with period detailing and materials including weatherboards, slate roofing, decorative iron fretwork, rendered chimneys, wooden-framed double hung windows and a front fence comprising bluestone foundation, iron pickets and decorative iron pillars. Colours and finishes replicate those of the earlier period.

The site is within an established residential area, characterised by single storey dwellings from the Victorian/Edwardian era, recent two storey dwellings, dwellings with rear double storey additions and some older medium density housing developments.

The property abutting to the south (51 Victoria Street) is developed with a detached, double storey attic-style period dwelling. It has high roof pitches and dormer-style first floor windows. A garage at the rear abuts the shared wall with the subject site.

The property abutting to the north (55 Victoria Street) has been redeveloped with a detached, double storey dwelling. A garage at the rear is constructed to both side boundaries.

After the hearing, the tribunal conducted an external inspection of the subject site and the neighbourhood.

1. Vlado Mega applied to the Hobsons Bay City Council [the Council] for permission for alterations and additions to an existing single dwelling and a new garage.
2. In response to the giving of notice of the application, the Council did not receive any objections.
3. The Council's delegate adopted the planning officer's recommendation that the application should be refused. A Refusal to Grant a Permit was issued on 5 November 2008 with the following reasons:
   1. The proposed first floor is visible from the street frontage and will have a negative impact upon the existing contributory dwelling and distort its contribution to the heritage precinct.
   2. The excessive first floor building footprint and poorly arranged internal room layout represents an overdevelopment of the site.
   3. The sheer vertical walls and excessive building bulk of the dwelling additions overwhelms and dominates the existing contributory dwelling.
   4. The rear detached double storey building has an excessive building footprint and inadequate side setback to reflect the rhythm of spacing between dwellings.
   5. The proposed works will adversely affect the significance, character and appearance of the heritage place.
   6. The proposed development will have an adverse impact upon the heritage place covered by Heritage Overlay - HO33 (Victoria Street Heritage Precinct), under the Hobsons Bay Planning Scheme.
   7. The proposed development does not comply with the objectives, policies and decision guidelines under Clause 22.01 of the Hobsons Bay Planning Scheme including the Guidelines for Alterations and Additions to Existing Dwellings in Heritage Areas in Hobsons Bay, 2006.
   8. The proposed development does not comply with the objectives and guidelines of the Heritage Overlay, Clause 43.01 of the Hobsons Bay Planning Scheme.
4. At the hearing, Mr Lovell and Mr Scally spoke to written submissions. Those submissions, Mr Raworth's expert report, together with various photographs and other material tendered at the hearing, have been retained on the Tribunal's file.

1. Given the size of the subject site, no permit is required for a single dwelling pursuant to the Residential 1 Zone [R1Z] provisions at Clause 32.01-3. While the relevant requirements of Clause 54 (ResCode) will need to be met or varied at the building permit stage, a Clause 54 assessment is not invoked by the permit requirements.
2. A permit is only required under the provisions of the Heritage Overlay. In accordance with the 'National Trust principle',[1] only heritage considerations can be taken into account when deciding whether or not to grant a permit and any conditions that may be imposed. However, heritage considerations include a range of relevant matters. For instance, the character of an area is a relevant consideration under the Heritage Overlay and an objective at Clause 19.03-1 is to 'achieve a high quality urban design and architecture'. Furthermore, even though the Heritage Overlay is the only permit trigger, the purpose of the R1Z and State policies regarding housing are relevant. The fact that the dwelling is as-of-right reflects strong policy support for a single dwelling on the subject site.

1. The subject site is located within Heritage Overlay HO33 - Victoria Street Heritage Precinct, which covers all properties along Victoria Street.
2. The key decision guidelines at Clause 43.01-4 call for an assessment of whether the location, bulk, form or appearance of the proposed building 'will adversely affect the significance of the heritage place' and 'is in keeping with the character and appearance of adjacent buildings and the heritage place'.
3. A decision guideline at Clause 43.01-4 is 'Any applicable statement of significance, heritage study and any applicable conservation study'.
4. In this case, the Statement of Significance for HO33 is found in the Hobsons Bay Heritage Study 2006 [the Heritage Study]. The precinct is historically significant for its association with two well-known Williamstown figures. Furthermore,

Aesthetically, it is significant as a cohesive late nineteenth and early twentieth century residential street that is notable for the relatively intact groups of larger and predominantly single storey, single detached villas on generous allotments, which are enhanced by mature garden settings and mature street trees. There are also distant views to the sea and the railway station at either end of the street.

1. On the basis of that Statement of Significance, the Heritage Study identifies numerous properties that contribute to the significance of the precinct. On the west side of the street those properties include 49-53 Victoria Street.
2. Clause 21.07 and Clause 22.01-4 are local policies required to be considered pursuant to the decision guidelines at Clause 43.01-4. Reference should also be made to The 'Guidelines for Alterations and Additions to Dwellings in Heritage Areas in Hobsons Bay 2006' [the Guidelines]. The Guidelines were adopted by the Council in June 2006 and are an incorporated document under the planning scheme.
3. While I intend to refer to the detail of the policy provisions and the Guidelines later in these reasons, at the outset I note that they offer guidance on my decision on the overarching issue of whether the proposal would have an adverse affect on the significance of the heritage place. They cannot be determinative of the outcome in this review. A sensible and flexible approach is required having regard to the particular heritage characteristics of the site and area.

1. An interesting factor in this case is that the existing dwelling has been reconstructed. I was advised that demolition works were started illegally in 2002. An enforcement order application lodged by the Council was withdrawn on the basis of a permit issuing for alterations and additions to the existing dwelling. A permit was subsequently issued for the reconstruction of the dwelling based on measured drawings. The permit conditions include a requirement for a Section 173 agreement requiring the engagement of a conservation architect and the completion of the works to the satisfaction of the Council. Those works were completed in 2005.
2. A critical issue in this review is whether the reconstructed building is a contributory building in the Heritage Overlay.
3. Mr Lovell argued strongly that it is a contributory building. He cited its identification in the Heritage Study and the advice from the Council's Heritage Advisor. Specifically, upon referral Ms Gasparetto advised that 'the building is still contributory to the precinct because it was reconstructed in accordance with the Burra Charter.' Mr Lovell also submitted that any future review of the Heritage Study would not remove the contributory status of the dwelling on the subject site.
4. On the other hand, Mr Scally submitted that the existing dwelling makes no contribution to heritage significance. Mr Raworth's evidence supported that submission. He was firmly of the view that the reconstructed dwelling is 'replica infill' with any significance lost upon demolition of the original fabric. Mr Raworth noted that reconstruction is very rare, even when buildings are individually significant. He could not point to any example in Victoria, apart from La Trobe Cottage - which was both reconstructed and relocated. Mr Raworth acknowledged that the reconstructed dwelling helps to add to the character of the precinct, but argued that it does not - and cannot - make a contribution to significance.
5. Unfortunately, Ms Gasparetto was not called to give evidence to support her advice on the application. Nor was I given background information on why the dwelling on the subject site was identified as 'contributory' in the Heritage Study. On the latter matter Mr Raworth suggested that the designation of the dwelling as contributory was perhaps due to surveys for the Heritage Study being conducted prior to demolition of the original dwelling. If that was not the case, and the Heritage Study designation was indeed based on the reconstructed dwelling, Mr Raworth argued that it represented either an error of fact or judgment.

1. Given the above finding, it is axiomatic that the proposed demolition at the rear of the dwelling would not adversely affect the significance of the heritage place. Put simply, the proposal does not involve the removal of any significant fabric.

1. Mr Lovell's submissions regarding the unacceptability of the proposed upper floor addition were premised on the reconstructed dwelling being contributory. He argued, for instance, that the bulk of the first floor would not accord with the Guidelines which, amongst other things, seek to ensure new development 'does not visually dominate a heritage place or area' and 'does not distort historic evidence of heritage places by copying or reproducing historic styles or detailing'.
2. Mr Lovell submitted that the bulk of the first floor addition would not be visually recessive. He was particularly critical of the proposed sheer side walls. He argued that as there would be confusion about 'old' and 'new' fabric, the proposal would be contrary to the Council's policy. Mr Lovell also highlighted that it is policy at Clause 22.01-4 to encourage alterations and additions to 'be sited to the rear of the existing dwelling'. He argued that in this case the expectation would be no two storey development above the depth of the 'original' building.
3. Given my finding that the existing dwelling is non-contributory, it follows that I do not accept many of Mr Lovell's submissions.
4. I agree with Mr Raworth that even if the existing dwelling was contributory, it would be most unusual for a policy requiring additions to 'be sited to the rear of the existing dwelling' to be interpreted to mean any addition should be wholly behind or beyond the dwelling. I say that despite the text in the Guidelines regarding 'Rear additions' and the depictions of separate buildings at Figures 20 & 21.
5. Ultimately, there needs to be a consideration of whether the proposed upper floor addition would be visually recessive vis a vis buildings that do contribute to the significance of the heritage place. In that respect I note that despite the reference in the Statement of Significance to 'predominantly single storey, single detached villas', such buildings are not the prevailing form in the vicinity of the subject site. Mr Raworth observed that there are a surprising number of buildings with visible first floor additions. The individually significant building on the property abutting to the south is double storey, albeit in an attic style. Furthermore, the non-contributory building on the property to the north is double storey, with a very prominent roof form. All of the buildings from 49 to 57 Victoria Street - except the existing dwelling on the subject site - have a double storey form.

1. Mr Lovell submitted that the proposed upper floor of the structure at the rear is unacceptable, especially given the proposed sheer wall on the northern boundary. He was particularly critical of the combined impact of the addition to the dwelling and the rear structure. The Council's Heritage Advisor had commented upon the excessive height of the rear structure, noting that it would be visible along the open corridor between the building on the subject site and 55 Victoria Street.
2. The Statement of Significance for HO33 does not refer to buildings abutting rear laneways. Nor do the Guidelines address construction along laneways.
3. Despite the criticism of the Council's Heritage Advisor, I accept Mr Raworth's evidence that the proposed garage/studio is acceptable from a heritage point of view. As highlighted by Mr Raworth, the north elevation would only be marginally higher than the outbuilding at 55 Victoria Street. Although Mr Raworth did not see it as necessary, I adopt Mr Lovell's suggestion that the erection of internal fences - between the dwelling and the side fences - would reduce the exposure of the proposed rear structure to the street.

1. It follows from the above reasons that my conclusion is that the decision of the Council should be set aside and a permit should be granted.
2. In deciding the conditions to be included on the permit I have had regard to the draft conditions provided by the Council and the submissions and evidence of the parties, in addition to the matters that arise from these reasons.
3. In particular, I note that I do not intend to require further plan modifications as suggested in the Council's draft conditions, although it will be necessary to alter the east elevation to accurately reflect the proposed windows. As highlighted by Mr Scally, a condition relating to alterations to soil level is not necessary.
4. Although my order does not include the 'Note' suggested by the Council, such advisory information may be included on the permit that the Council is directed to issue.

1. Before the development starts, three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit.

The plans must be substantially in accordance with the plans considered by the Responsible Authority but modified to show to the satisfaction of the Responsible Authority:

(a) A schedule of all external materials and finishes. The schedule shall show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking surfacing).

(b) The positioning of all plant and equipment (including air conditioning units, heating units, hot water systems, etc) which is proposed to be located externally. Such plant and equipment must be positioned to prevent unreasonable noise and visual impact.

(c) All proposed upper floor windows shown on the east elevation; and

(d) The inclusion of internal fences - between the front wall of the dwelling and the side boundary fences.

1. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
2. All brickwork on or facing the boundaries of the site must be either raked and cleaned (face brickwork) or rendered and painted or bagged and painted to the satisfaction of the Responsible Authority.
3. Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles as shown on the endorsed plans must be:
   • (a) Constructed to the satisfaction of the Responsible Authority.
   • (b) Properly formed to such levels that they can be used in accordance with the plans.
   • (c) Surfaced with an all-weather seal coat to the satisfaction of the Responsible Authority.
   • (d) Drained and maintained to the satisfaction of the Responsible Authority.

Parking areas must be kept available for these purposes at all times.

1. The land must be connected to a legal point of discharge to the satisfaction of the Responsible Authority.
2. If applicable, the owner is responsible to meet the costs of all alterations to and reinstatement of, the Responsible Authority and other Public Authority Assets deemed necessary and required by such Authorities for the development. The owner is responsible for obtaining the prior specific written consent of the Council or other relevant Authority to such alterations and reinstatements and must comply with conditions required by the said Authority in relation to the execution of such works.
3. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two years of the date of this permit.
   • (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 three months afterwards.

[1] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Limited [1976] VicRp 60; [1976] VR 592.