1. The decision of the Responsible Authority is set aside.
2. In permit application PA0815869 a permit is granted.
3. Before ordering that the permit be issued, leave is given for written submissions from the Responsible Authority and the Applicant limited to the issue of the proposed condition for a public open space contribution.
4. The Responsible Authority must provide a written submission to the Applicant and the Tribunal by Monday 4 May 2009.
5. The Applicant must provide a written submission to the Responsible Authority and the Tribunal by Monday 18 May 2009.
6. In the meantime, if an agreed position on the condition is reached between the Applicant and the Responsible Authority, written advice of this should be provided to the Tribunal and a final order including this condition will be issued.
7. If no agreed position is reached, we will consider the written submissions and then issue a final order.

• Ms R Riddett, architectural historian of Anthemion Consultancies
• Mr A Robertson, town planner of Tract Consultants
• Mr C Coath, traffic engineer of GTA Consultants

He called Mr R Beeston, heritage architect of RBA Architects and Conservation Consultants to provide expert evidence.

Mr G Harper appeared on behalf of himself, Ms K Gothard and Mr Virant

Construction of a new parish centre; development of 11 double storey dwellings fronting Aitken and Pasco Streets; subdivision of the land to create 11 new lots with associated car parking, access ways and landscaping.

Section 79 Planning and Environment Act 1987

Heritage Overlay HO228 applying to the Holy Trinity Church of England complex on this site

Heritage Overlay HO8 applying to the Government Survey Heritage precinct that includes Aitken Street, Pasco Street and Nelson Place and all of this site.

cl 32.01-4 (construct two or more dwellings on a lot in R1Z)

cl 43.01-1 (subdivision of land, construction of buildings and carrying out of works under HO8 & HO228)

cl 63.05 (buildings and works for an existing use)[1]

The land contains the Holy Trinity Church, vicarage, weatherboard school hall, a number of sheds/outbuildings, a gravel car park, two disused tennis courts and a number of mature trees.

The land has a frontage of approximately 85 metres to Nelson Place and Aitken Street and approximately 90 metres to Pasco Street. A total area of approximately 7760 square metres.

The land slopes approximately two metres from west to east, towards Nelson Place.

There are no covenants or easements affecting the land.

1. This is an application to review the failure by Hobsons Bay City Council ('the Council') to grant a permit within the prescribed time for the subdivision of land, the construction of a new parish centre and the construction of 11 dwellings with associated car parking and landscaping at 255 Nelson Place, Williamstown
2. The site contains the Holy Trinity Church (fronting Nelson Place), together with a vicarage to the south of the church, a timber church hall building to the rear (fronting Pasco Street), and two disused tennis courts in the north west (rear) corner, fronting Aitken Street.
3. The overall proposal for this site includes:
   • The retention of the existing church;
   • Modifications and improvements to the existing car park on the north side of the church accessed from Nelson Place;
   • Modifications to the car parking and private open space for the vicarage on the south side of the church;
   • Relocation of the church hall off the land;
   • Construction of a new parish centre building between the vicarage and the church;
   • Development of a children's playground at the rear of the church;
   • The construction of three double storey attached dwellings fronting onto Pasco Street with a new concrete driveway and five car spaces adjacent to the parish centre and the vicarage; and
   • The construction of eight attached double storey dwellings with frontage to Aitken Street and rear double carports accessed via the new rear concrete driveway adjacent to the parish centre.
4. The Council resolved under delegation to refuse the planning application because it did not meet any of the requirements of the zone or overlay controls, nor the State and local planning policies; it did not respect the neighbourhood character; and it did not meet a number of the objectives of clause 55 (commonly known as ResCode).
5. Four of the original objectors to the permit application lodged statements of grounds with the Tribunal expressing concern about the appropriateness of the proposal in regard to neighbourhood character; design detail; heritage significance; car parking and traffic; removal of the church hall; and amenity impacts such as visual bulk and overshadowing.

1. The matters that we must consider in determining whether to grant a planning permit for this proposal are limited to the reasons why planning permission is required in the first instance. There are a range of planning controls that apply to this site or parts of this site; and there is already permission in place from Heritage Victoria for a number of components of this proposal. Mr Harper stated he found this quite confusing, which we understand. Below is a brief explanation of what matters actually require our consideration in determining whether to grant this planning permit:
   1. The whole of the site is contained within a Residential 1 Zone and planning permission is required for all of the proposed development and includes considering issues of neighbourhood character and amenity impacts;
   2. The whole of the site is affected by Design and Development Overlay Schedule 4 (DDO4), which requires planning permission for all of the development contained in this proposal as well as the subdivision of land. The objectives of this overlay seek to protect the Hobsons Bay foreshore environment and ensure new development is compatible with the prevailing character of the area;
   3. The whole of the site is affected by Heritage Overlays HO8 (Government Survey heritage precinct) and HO228 (a site specific control for the Holy Trinity Church of England complex). The majority of this complex (excluding the disused tennis courts) is included on the Victorian Heritage Register as H1734. Permission has been granted by Heritage Victoria for all of the proposed development and works contained on the registered land[2]. No planning permission is required under either Heritage Overlay for any of the development or works proposed on the land included on the Victorian Heritage Register. This includes the removal of the church hall;
   4. The disused tennis courts are affected by Heritage Overlays HO8 and HO228 and are not included on the Victorian Heritage Register, which means planning permission is required under the Heritage Overlay to construct approximately five and one part of the sixth attached dwelling along Aitken Street as well as the rear part of the new parish centre in the north west corner of the site;
   5. The church and its activities have what is called in planning terms 'existing use rights'. This means the church has been operating for a number of years and has the right to continue operating provided no building or works are constructed or carried out without a permit; and a permit must not be granted unless the proposed building and works comply with the other requirements in the planning scheme;
   6. The planning scheme requires the floor area of an existing use not to be increased until the required car spaces have been provided on the land. Mr Scally explained the overall floor area of the church activities is being slightly reduced[3] and therefore no planning permission is required for car parking or traffic associated with the church;
   7. The residential car parking is a matter to be considered under Clause 55 (ResCode) and Mr Scally pointed out the proposal does not provide two visitor car spaces. This is a matter that requires our consideration.
2. What this all means is our consideration of the heritage aspects of this proposal are limited to the five and one part of the sixth attached dwellings and the rear part of the new parish centre located in the northwest corner of the site. The development of the dwellings along Aitken and Pasco Streets must be considered in light of the objectives of Clause 55 including neighbourhood character, amenity impacts and car parking provision. All of the development must be considered in light of its impact upon the foreshore under DDO4. As there is essentially no change to the floor area associated with the existing church activities on the land, issues of traffic and car parking associated with the church and its activities are not matters requiring consideration as part of the merits of this case.

1. The parties referred to relevant State and local planning policies contained in the planning scheme during the course of the hearing, particularly Mr Testro and Mr Robertson. We do not intend to repeat verbatim all of the relevant planning policies, but rather, where appropriate, we will refer to relevant aspects of the planning policies in explaining the reasons for our decision

1. The issues in this case are the appropriateness of the proposal having regard to the significance of the heritage places (HO8 and HO228), the neighbourhood character, the amenity impacts and the lack of residential visitor car parking. In summary, having considered these issues, we find this proposal is an appropriate design response and should be approved subject to appropriate conditions.

Is the proposal acceptable in terms of its effect on the significance of the two heritage places?

1. The first matter to which we have turned our minds is the assessment framework in considering the impact on the significance of the heritage places. In this case, this includes two different places of heritage significance (HO8, which is an extensive area that includes this site and HO228, which is limited to the site itself); the approval already granted by Heritage Victoria for the development of approximately three quarters of the site; and the Heritage local planning policy in the planning scheme and the Guidelines for Infill Development in Heritage Areas in Hobsons Bay (2006), a document incorporated into the planning scheme.
2. As a result of the exemption provided in the Heritage Overlay where permission has already been granted by Heritage Victoria, the only part of the proposed development that requires our consideration in terms of the Heritage Overlay and the Heritage local planning policy is that part of the site located outside the Heritage Victoria registered land. This is essentially the disused tennis courts where five and part of a sixth dwelling and the rear part of the new parish centre is proposed.
3. In assessing the effect of these 5 to 6 dwellings on the significance of the two heritage places, we are of the opinion the assessment must be undertaken having regard to the development approved by Heritage Victoria. Or, to put it another way, to undertake a heritage assessment of only the northern 5 to 6 dwellings as if the southern 5 to 6 dwellings do not exist would be nonsensical. We have reached this conclusion on the basis that Heritage Victoria's approval has put beyond question any further heritage assessment of this portion of the whole development, including that portion of the dwellings within the Heritage Victoria land[4]. Heritage Victoria has concluded, on balance, that the impact of the development on local heritage values, both within HO8 and HO228, is acceptable. Importantly, this conclusion applies in particular to those dwellings within the land defined by the Heritage Victoria Register[5]. While there was some cross-examination at the hearing directed to the question of whether, or to what extent, Heritage Victoria considered the effect of the development, particularly the dwellings, on the heritage values of HO8 and HO228, we consider this matter to be irrelevant to our consideration. Heritage Victoria's permit exists and the exemption in the Heritage Overlay applies, i.e. there is no further requirement for a planning permit pursuant to the Heritage Overlay.
4. For this reason also, we find there is no value in assessing any heritage aspect of the development approved by Heritage Victoria. Rather, we have taken this development into account in our assessment of the heritage issues. We have also taken a similar approach in having regard to the as yet unbuilt two storey house on the adjoining lot in Aitken Street, immediately north of this site, which was approved by a previous Tribunal decision[6].
5. The statements of significance for HO8 and HO228 are respectively, and in part:
   • Government Survey Heritage Precinct (HO8):

Historically, the Government Survey Heritage Precinct demonstrates the most important and prosperous phase in the development of Williamstown from the mid nineteenth to early twentieth centuries, which was associated with the development of the port.

Socially, ..., for its ability to assist in understanding and interpreting the life style of this isolated and close knit community during the nineteenth century.

Aesthetically, ... as a whole it retains remarkably intact and cohesive groups of nineteenth and early twentieth century buildings that are an integral part of the special character of early Williamstown ...

• Holy Trinity Church of England Complex (HO228):

What is significant?: The Holy Trinity Church complex, comprising (Church, Vicarage, Hall, identified and associated trees) ... and the associated tennis court, at 255 Nelson Place, Williamstown.

Why is it significant?: (it) was one of the first Anglican Parishes created in Victoria and the complex illustrates the significant period of civic and community development of Williamstown during the mid to late nineteenth century associated with the prosperity of the port when Nelson Place was the civic and commercial centre of the town. ...

1. Both Ms Riddett and Mr Beeston asserted that they had only assessed the effect on the cultural heritage significance of that part of the proposed buildings and works outside the Victorian Heritage registered land. However, Mr Beeston's evidence appears to have assessed the impact of those dwellings outside of the Victorian Heritage registered land based on the heritage character of Aitken Street as it is now, rather than as it would be if the dwellings approved by Heritage Victoria and/or the approved two storey house to the site's north were constructed. We do not find this to be particularly helpful as part of our consideration of the merits of this proposal.
2. Mr Beeston concluded the two storey height and continuous built form of the proposed dwellings do not respect the single storey, modest, detached dwelling character of the existing contributory and significant buildings in HO8 in general or the contributory heritage buildings on the western side of Aitken Street in particular. He concluded "there is no precedent in the vicinity for two storey row houses". Ms Riddett's evidence was, conversely, that the portion of the proposed dwellings north of those approved by Heritage Victoria "complies with the Burra Charter and has regard to the Allom Lovell CMP[7]", and:

... Given the overall design quality of the town houses, the mixed streetscape of Aitken Street and the overall objectives for the Holy Trinity site, the design as proposed is acceptable and in accord with the objectives of Council for this precinct.

1. In terms of HO8, we see this site as quite distinct from the larger part of the precinct, which extends in a confused and random pattern over a wide area extending from Ferguson Street southwards to The Esplanade and the coast; westerly to the railway line; and easterly to a point close to the outlying tip of the "Williamstown peninsula" at Kanowna Street. The whole of this precinct is "the heritage place". It not only extends over a wide area, but is highly fragmented by numerous smaller precincts of more specific heritage character and, in addition, includes within itself a wide range of site specific overlay areas applied as a second layer, such as HO228.
2. We find the two sides of Aitken Street are, and will be after implementation of the two existing approvals[8], very different. The western side of the street contains a row of modest, detached, predominantly single storey dwellings with modest front gardens. While a substantial number of these properties are of contributory heritage status, the overriding character is their low scale. The eastern side of the street is very different. It includes the existing church, associated parish buildings and disused tennis courts; the Heritage Victoria approved component of the dwellings; two single storey double fronted detached dwellings of which one has approval for demolition and the construction of a new double storey house; modern two storey townhouses and the side view of the existing two and three storey commercial and residential building on the corner of Aitken and Ferguson Streets.
3. We also note that Aitken Street's heritage context, for anyone within or approaching it, includes a view northwards of two storey (or higher) commercial buildings in Ferguson Street and, to the south, of the very dominating presence of the high rise Housing Commission flats immediately opposite this site, on the southern side of Pasco Street. In fact, from within Aitken Street itself, there is no sense of any connection with the balance of the residential heritage areas in heritage precinct HO8.
4. Having regard to this context, we are of the opinion the construction of an additional 6 two storey terrace-style attached dwellings will not adversely affect the significance of the heritage places HO8 and HO228. They will be consistent with those approved by Heritage Victoria. They are of an appropriate scale in the context of the nearby and visible two to three storey commercial development in Ferguson Street, including the sideage of this development that extends southwards along Aitken Street and the approved two storey house to the north of this site in Aitken Street. Within this heritage context, we find the proposed 6 dwellings will be in keeping with the character and appearance of adjacent buildings and the heritage places (HO8 and HO228).
5. We are not persuaded there is any value, in terms of the significance of HO8 or HO228, in reducing the height of some of these dwellings, or in reducing their number and introducing spaces between them. That would merely introduce an additional and inexplicable variation within the overall row of attached dwellings, a variation that in our view would be of no particular benefit.
6. There is a small rear section of the parish centre that is not within the Victorian Heritage registered land. In assessing the effect of this part of the structure on the heritage significance of HO8 and HO228, we have again taken into consideration the Heritage Victoria approval of the balance of the parish centre. There are no effective views from surrounding roads of this section of the parish centre. The balance of the parish centre and the dwellings have been approved by Heritage Victoria, and we find this small portion outside the registered land will not have an adverse affect upon the significance of the heritage places.
7. We note Mr Scally's submission that there are some discrepancies between the Heritage Victoria approved plans and the planning application plans, and so we have included a permit condition to ensure the planning permit plans are in accordance with the already approved plans.

Is the proposal acceptable in terms of its effect on the Hobsons Bay Foreshore?

1. DDO4 is titled "Foreshore Height Limitation" and affects the land between the eastern (nearer) boundary of Aitken Street and the western (nearer) boundary of Nelson Place and extends northwards to the rear of commercial properties in Ferguson Street and southwards along Nelson Place, but excludes the commercial development there. Nelson Place itself lies within DDO8, another foreshore height limitation overlay. Neither Aitken Street itself nor the dwellings on its western side are included in DDO4.
2. The relevant design objectives of DDO4 are:
   • To protect and enhance the environment of the Hobsons Bay foreshore as an environmental, conservation and recreational asset of State, metropolitan and local significance.
   • To ensure that the height, scale, bulk, setback and appearance of new development is compatible with the prevailing character of the area.
   • To achieve development that is a high quality architectural and urban design standard.
   • To preserve solar access to the foreshore, including associated roadways, bicycle and pedestrian paths.
   • To protect and enhance key views and vistas.
   • To protect the foreshore reserve and significant public open spaces from inappropriate development.
3. We find the intention of DDO4's objectives, insofar as it is relevant to this proposal, can be understood best from the first section of the first objective - that is it relates to protecting the environment of the foreshore of Hobsons Bay. The foreshore can be defined as:

The ground between the water's edge and the land ... built upon[9].

1. We are of the opinion the relevant environment of the foreshore is that section of the built environment where further development would impact directly on the foreshore itself, whether by way of scale, appearance or detailing of buildings, key foreshore views and vistas or shading. Given this, we have considered the effect of the proposed development on the visual environment and amenity of the foreshore area, including key foreshore views and vistas rather than the impact of views from areas west (inland) of this site. In light of this, we conclude neither the proposed parish centre nor the row of two storey dwellings to its rear, facing into Aitken Street, would have any significant effect on the foreshore environment. They would barely be visible from the foreshore. Furthermore, their impact on the foreshore, if any at all, must be viewed within the context already set by the Housing Commission flats, the church on this site and the recently constructed two storey dwellings immediately north of the church in Nelson Place.
2. Mr Testro submitted the proposal is at odds with DDO4, including the objective "to ensure .. the height, scale, bulk, setback and appearance of the new development is compatible with the prevailing character of the area"; and the following decision guidelines:
   • Whether any increase in size and scale above that of surrounding buildings is an increment that can be absorbed by the character of the neighbourhood.
   • Whether the development is positioned on the site to characteristics that predominate in the neighbourhood.
   • Whether the development integrates into the design treatment of the walls and elevations - particularly the height of the eaves - the typical floor-to-ceiling heights found in the neighbourhood.
   • Whether any increase in height from an adjoining property provides a transition from the lower.
   • That the height of new development is not to result in amenity impacts upon adjoining residential properties due to overshadowing, overlooking and visual bulk
3. In our opinion the intent of DDO4 is to protect the environment of the foreshore. As such, these decision guidelines, in particular, should be considered in terms of their application to the impact of the proposal upon the built form character of the foreshore environment and the views from and along the foreshore area. We reject any suggestion that the decision guidelines should be read more generously, as if applicable to an assessment of neighbourhood character of a more widely defined (foreshore) area. The issue of neighbourhood character is considered in the following section pursuant to the objectives of the Residential 1 Zone and clause 55[10]. In our opinion, the proposal satisfies all of the objectives of DDO4.

Is the proposal acceptable in terms of neighbourhood character?

1. Clause 21.06 of the Municipal Strategic Statement includes an objective to ensure new development respects and enhances the preferred neighbourhood character of the residential areas of Hobsons Bay; and clause 22.10 contains an objective for development to respond to the preferred neighbourhood character. In this case, the statement of preferred neighbourhood character for this precinct is:

The spacious and informal qualities of the streetscapes, early architectural styles representing the historical development of Williamstown, and the distinctive low scale, lightweight nature of development should be retained and enhanced.[11]

1. Clause 22.10 goes on to provide a series of objectives and design responses to respond to this preferred character, including:
   • Maintaining and strengthening the garden settings of dwellings;
   • Minimising loss of front garden space;
   • Ensuring buildings do not dominate the streetscape; and
   • Encouraging innovative and contemporary designs.
2. We have considered the proposal as a whole[12], particularly in regard to how it would affect the immediately surrounding neighbourhood of Aitken Street, Pasco Street and Nelson Place. We note Council's urban design adviser, Mr Rob McGauran, concluded the proposal is acceptable. We agree with Mr Robertson that this precinct (5) covers a large area and the immediate neighbourhood displays a more varied character than that described in clause 22.10, including:
   • The 12 storey Housing Commission flats opposite the site;
   • The 3 storey commercial and residential development at the corner of Aitken and Ferguson Streets that extends along part of Aitken Street;
   • The 2 storey contemporary residential dwellings in Aitken Street[13], adjacent to the commercial/residential development;
   • The modern 2 storey development next to the church at 261 Nelson Place; and
   • The approved modern two storey house next door at 160 Aitken Street.
3. From Nelson Place, the site has an institutional character - a large space, landscaped with substantial canopy trees, containing within it two freestanding buildings of substantial scale, being the Vicarage and the bluestone church. Dominating the scene, to the south, are the Housing Commission towers; extending northwards are the adjoining, new two storey dwellings and an adjoining, older two storey building on the corner of Ferguson Street. In this context, the site itself appears relatively recessive because of the more limited buildings (notwithstanding the large scale of the church), their substantial setback from the frontages to Nelson Place and Pasco Street, the space and the relatively dense vegetation around them. The proposed new buildings - the parish centre and the terrace dwellings, will not be dominant (or even relatively significant) in scale or otherwise as viewed from either Nelson Place or Pasco Street. They maintain much of the garden setting along these streets and we find the design is respectful of the neighbourhood character.
4. With respect to Aitken Street, we have already stated the two sides of the street are very different. The western side of the street contains a row of modest, detached, predominantly single storey dwellings with modest front gardens. The eastern side of the street includes the disused tennis courts; two single storey double fronted detached dwellings of which one has approval for demolition and the construction of a new double storey house; modern two storey townhouses and the side view of the existing two and three storey commercial and residential building on the corner of Aitken and Ferguson Streets. In our opinion, the proposed new dwellings will be a substantial change to the disused tennis courts, but a residential change that is respectful of the neighbourhood character and that builds upon the existing diversity of buildings found along this side of Aitken Street.

1. Mr Testro submitted the dwelling diversity objective at clause 55.02-3[14] has not been achieved because the standard (B3) is not met. We note the standard states developments of ten or more dwellings should provide a range of dwelling sizes and types including dwellings with a different number of bedrooms and at least one dwelling that contains a kitchen, bath or shower, and a toilet and wash basin at ground floor level. This proposal includes 11 dwellings of similar layouts and all contain three bedrooms (with some also containing a study). We note standard B3 is not mandatory as it includes "should" rather than, say, "must"; therefore we are of the opinion discretion exists to determine whether the objective is met. We find the 3 bedroom size of the dwellings does provide the opportunity for diversity as a household of 1, 2, 3 or more persons could occupy each dwelling, hence the objective is achieved.

1. We agree with Mr Robertson's evidence that the design of the new dwellings will not create any unreasonable amenity impacts upon adjoining or opposite residential properties. Specifically, we find matters such as overlooking, overshadowing and visual bulk have all been satisfactorily dealt with. We note there are a few minor variations to the wall height and setback standards of clause 55, particularly adjacent to 160 Aitken Street and at the corner of Aitken/Pasco Streets, but we find these variations create no unreasonable amenity impacts.

1. Each dwelling is provided with two car spaces, but clause 55 also seeks the provision of 2 visitor car spaces for 11 dwellings. Mr Coath and Mr Scally both suggested this could be addressed through a parking management plan so that, for the majority of the time[15], visitors could use two car spaces in the parish centre car parking to be provided off Pasco Street.
2. The relevant clause 55 objectives include:
   • To provide convenient parking for resident and visitor vehicles.
   • To ensure that car and bicycle parking for residents and visitors is appropriate to the needs of residents.
   • To ensure that the design of parking and access areas is practical and attractive and that these areas can be easily maintained.
3. Eight of the dwellings have frontage to Aitken Street and taking up Mr Coath and Mr Scally's suggestions would mean visitor car parking would be some distance away from these dwellings. We accept that there may be occasions when parking demand in the area is high due to its proximity to restaurants and other venues along Ferguson Street and Nelson Place. However, on balance, we are of the opinion:
   • Convenient, practical and attractive visitor car parking for these dwellings is more likely (in reality) to be on street;
   • Visitor parking can be accommodated within the surrounding streets; and
   • It is appropriate in this instance not to require the provision of 2 visitor car spaces.

1. Our conclusion is that a permit should issue and we have outlined in Appendix A what the conditions of the permit will be. We have taken into consideration the submissions made by Mr Testro and Mr Scally about the Council's draft permit conditions and have made a number of changes to the changes, including:
   • Deletion of a number of the items contained in condition 1;
   • Deletion of a number of the subdivision referral authority conditions as they all sought referral of the subdivision plan submitted for certification which is dealt with by one of the Council's draft conditions[16]; and
   • Deletion of the conditions concerning protection of Kahroo Thom tree and a landscape bond as these are matters already dealt with in the Heritage Victoria permit.
2. There is one remaining condition in dispute, which is the proposed condition for a five percent public open space contribution. Mr Testro and Mr Scally agreed they wished to make submissions on this condition if we determined to grant a permit, which we have. Mr Testro suggested leave could be given for written submissions limited to the issue of the proposed condition for a public open space contribution. We have so ordered, and will issue a final order upon receipt of either an agreed position or written submissions on this condition.

Construction of 11 double storey dwellings, a new parish centre, associated demolition, buildings and works (including new and upgraded car parking) and the subdivision of the land into 12 lots in accordance with the endorsed plans.

The permit will contain the following conditions:

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 generally in accordance with the plans submitted with the application but modified to show to the satisfaction of the Responsible Authority:
   • (a) Modifications to accord with the plans approved by Heritage Victoria dated 6 August 2008.
   • (b) A survey plan of the subject land prepared by a licensed land surveyor showing the location of existing boundary fences and any other relevant land features in relation to the title boundaries. Any discrepancies between the plans submitted for endorsement and the survey plan must be rectified to the satisfaction of the Responsible Authority.
   • (c) A schedule of all external materials and finishes. The schedule must show the materials, colour (including two colour samples) and finish of all external walls, roof, fascias, window frames and paving (including car parking surfacing and the driveways and five parish centre car parking spaces incorporating a high quality finish and not plain concrete).
   • (d) 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.
   • (e) The proposed landscape treatment of the site including the location of all existing and proposed species. An emphasis must be placed on maximising the use of native drought tolerant species.
   • (f) Correct locations of the existing street trees on the Pasco Street frontage and suitable tree protection zones.
   • (g) The location of all service meters generally located in the front of each dwelling.
   • (h) If a group electricity metering facility is to be provided, the location and design (including elevations) within the front setback. The structure must be a maximum height of 1.5 metres and designed to minimise the visual impact on the streetscape and possible impacts on pedestrian safety and vehicle traffic. If no group electricity metering facility is to be provided a notation must be included on the plans to confirm this.
   • (i) Provision of a minimum door opening of 5.2 metres for the double carports.
   • (j) Provision of a minimum door opening of 2.6 metres for the single garages.
   • (k) The driveway to the vicar's carport splayed from the laneway to match the carport door opening.
   • (l) Front fencing details along Aitken and Pasco Streets.
   • (m) A subdivision plan that includes:
     • (i) all bearings, distances, levels, street names, lot numbers, lot sizes, reserves and easements;
     • (ii) appropriate arrangements for the shared access driveway to allow for common access (common property or carriageway easement).
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Prior to the occupation of the buildings hereby permitted the existing redundant vehicle crossings facing Pasco Street must be removed and the footpath, kerb and channel reinstated and made good at the cost of the owner to the satisfaction of the Responsible Authority.
4. Prior to commencement of works, the following provisions relating to the protection of the existing street trees must be undertaken to the satisfaction of the Responsible Authority:
   • (a) A suitable Tree Protection Zone with barrier fence must be established around the street trees on the Pasco Street frontage.
   • (b) The Tree Protection Zone must be enclosed using a 2 metre high temporary cyclone fence or similar, which must remain in place through all stages of the development. This fence must not enclose the footpath which must be kept clear for pedestrian access and a sign must be erected on the fence informing that the fence is a 'Tree Protection Zone'.
   • (c) The area within the Tree Protection Zone must not be disturbed by any means including parking of vehicles or storage of plant & equipment, materials, soil or waste.
5. Prior to the development allowed by this permit starting or the occupation of the buildings hereby permitted, landscaping works as shown on the endorsed plans must be completed and thereafter must be maintained to the satisfaction of the Responsible Authority.
6. Street numbers contrasting in colour to the background must be fixed at the front boundary of the property as near as practicable to, or on the letterboxes. Separate unit numbers must be placed adjacent to the front entrance of each dwelling, such numbers must be clearly legible from the access driveway.
7. All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.
8. Any alteration of soil level involving an increased or decreased level at the boundary must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall must be carried out by the owner.
9. All face 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.
10. Prior to the occupation of the buildings hereby permitted, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must to the satisfaction of the Responsible Authority be:
    • (a) Constructed.
    • (b) Properly formed to such levels that they can be used in accordance with the plans.
    • (c) Surfaced with an all-weather seal coat.
    • (d) Drained and maintained.

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

1. All basic services, including water, electricity, gas, sewerage and telephone must be installed underground and located to the satisfaction of the Responsible Authority.
2. The site must be connected to a legal point of discharge to the satisfaction of the Responsible Authority.
3. Before any construction or demolition works commence on the site, a secure fence must be provided around the perimeter of the site to prevent access to the site by unauthorized persons. This fence must be maintained for the duration of the construction and demolition, be a minimum height of 1.8m (or such alternative height as is approved in writing by the Responsible Authority), and be constructed to the satisfaction of the Responsible Authority. The gate or opening to the fence must be securely locked at all times when work is not being undertaken on the site.
4. The owner must 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 must obtain 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.
5. Any vehicle crossings must be constructed in the location shown on the endorsed plan to a standard satisfactory to the Responsible Authority. The relocation of any services including electricity poles, drainage pits, Telstra pits, fire hydrants and the like must be at the expense of the owner and approved by the appropriate authority prior to undertaking such works. Consent for such crossings must be obtained through Council's City Maintenance and Cleansing Department prior to construction.
6. If the nature strip is damaged during construction of the development approved or during the construction of any services, it must be reinstated and made good, including the planting of grass at the cost of the owner to the satisfaction of the Responsible Authority.
7. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authorities in accordance with Section 8 of the Act.
8. The owner of the land/developer must enter into an agreement with City West Water for the provision of water supply and sewerage.
9. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation for the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage systems and waterways, the provision of drainage works and other matters in accordance with the statutory powers of Melbourne Water Corporation.
10. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
11. The owner of the land/developer must enter into an agreement with Jemena Electricity Networks (Vic) Ltd for the extension, upgrading or re-arrangement of the electricity supply to lots on the plan of subdivision. (A payment to cover the cost of such work will be required and easements internal and external to the subdivision and provision of sites for substations may also be required). Where buildings or other installations exist on the land to be subdivided and are connected to the electricity supply, they shall be brought into compliance with the Supply and Installation Rules issued by the Local Government Electricity Supply Association (Vic) and Distribution Authorities to the extent determined by Jemena Electricity Networks (Vic) Ltd.
12. This permit will expire if one of the following circumstances applies:
    • (a) The development and subdivision 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.
    • (c) The subdivision is not completed within five years of the date of starting.

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] Mr Scally stated the continuing use of the land for Church purposes may continue subject to a planning permit for the buildings and works being approved under this clause. However, as the buildings and works do not change the floor area associated with the Church purposes/activities, no planning permission is required for car parking (or for the traffic associated with the car parking).

[2] Heritage Victoria has granted a permit for the construction of all that part of the proposed development that is situated within the heritage site as defined on the Victorian Heritage Register including, in particular, removal of the church hall and various minor structures, construction of the parish centre, construction of the relevant portion of medium density housing (being 5 whole dwellings and a large proportion of the sixth), construction of a new access road along the eastern side of the housing, alterations to various site works. The plans, as approved by Heritage Victoria, vary from the planning application plans in that there are minor changes to the layout of the dwellings.

[3] Given the floor area of the proposed parish centre is slightly smaller than the existing floor area of the church hall to be relocated.

[4] This is not, however, to make any assumptions as to whether that part of the proposal within the Heritage Victoria designated area is acceptable pursuant to any other permit requirements.

[5] For the sake of this conclusion, we consider it reasonable to put aside the technicality that the most northerly dwelling is not entirely contained within the Heritage Victoria-designated site. We conclude that this fact does not nullify the underlying principle.

[6] Refer to Mr. & Mrs. A Sargent v Hobsons Bay City Council [2005] VCAT 2071 that ordered a permit be issued for a contemporary two storey house at 160 Aitken Street

[8] The Heritage Victoria permit for this site and the planning permit for 160 Aitken Street

[9] Macquarie Dictionary, revised third edition (2002).

[10] We note clause 56 contains a neighbourhood character objective "to design subdivisions that respond to neighbourhood character" (rather than using the word "respect"). However, we have considered whether this proposal is respectful on the basis that the subdivision is primarily a product of the proposed development.

[12] In this section of our assessment, we are considering the whole of the proposed development.

[13] That step down to single storey, is built close to the side boundaries and is setback from the street frontage.

[14] The objective is "To encourage a range of dwelling sizes and types in developments of ten or more

[15] Mr Scally submitted there would be occasions when parking required for parish centre/church activities would mean no visitor parking would be available.

[16] Refer to condition 17 in Appendix A