Architectural render of the proposal looking south-east.[10]

Architectural render of the proposal looking north-east.[11]

1. The only provision of the planning scheme that triggers a planning permit in this case is the Heritage Overlay. The Heritage Overlay head provision has the following purposes relevant to this proposal:
   • 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.
2. Relevant decision guidelines under the Heritage Overlay include the following:
   • 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 proposed works will adversely affect the significance, character or appearance of the heritage place.
3. The site is located within the HO334 schedule precinct, known as the 'South Fitzroy Heritage Overlay Area'.
4. The Yarra planning scheme has various elements of policy that are relevant to this proposal. Policy is primarily aimed at conserving and enhancing the municipality's heritage character[13] and preservation of the scale and pattern of streetscapes in heritage places.[14]
5. Strategies to achieve the local policy aspirations at clause 15.03-1L include promoting development that is high quality and respectful in its design response by:

• Maintaining the heritage character of the existing building or streetscape.
• Respecting the scale and massing of the existing heritage building or streetscape.
• Retaining the pattern and grain of streetscapes in heritage places.
• Not visually dominating the existing heritage building or streetscape.
• Not detracting from or competing with the significant elements of the existing heritage building or streetscape.
• Maintaining the prominence of significant and contributory elements of the heritage place.
• Respecting the following elements of the heritage place:
  • Pattern, proportion and spacing of elements on an elevation.
  • Orientation to the street.
  • Setbacks.
  • Street wall.
  • Relationship between solid and void.
  • Roof form.
  • Chimneys.
  • Verandahs and canopies.
  • Materials.
• Being visually recessive against the heritage fabric through:
  • Siting.
  • Mass.
  • Scale.
  • Materials.
  • Architectural detailing.
  • Texture, colours and finishes.

• Setback residential infill development to match the setback of the principal street frontage of adjoining heritage buildings.
• Ensure that buildings and works associated with residential infill development are consistent with:
  • Prevailing side setbacks and building spacing.
  • Height relative to the surrounding context.
• Encourage new residential infill development to reflect the prevailing roof pitch and form.
• Discourage use of atypical buildings to determine the appropriate siting, form and appearance of new development in the context of its surrounds.

1. The Statement of Significance[15] ('SoS') for the HO334 area states the following:

The first subdivisions of Fitzroy went largely unregulated and resulted in "...a peculiar street layout...". As a result, legislation[16] was passed to address the ad hoc street layout and pattern. Then the earlier legislation was introduced in 1850 regarding building setbacks and materials for fire prevention purposes, with a high proportion of new buildings constructed of stone or masonry.

1. Given the current subdivision pattern of land, one can imagine that the lot configurations may well have largely existed since the 1800s. The result of which is small, narrow lots which, given the legislation for fireproofing purposes, naturally resulted in a high proportion of buildings being constructed of brick or stone. It is not difficult to imagine that the enduring nature of these materials has, in part, contributed to the intact nature of original buildings in this area.
2. The SoS also notes that early industrial developments "...tower above the predominantly low-rise nature of the early residential development".[17]
3. The Conclusion of 'What is significant' in the SoS states the following:

Conclusion

An extraordinary amount of comparatively homogeneous nineteenth century building stock has survived in Fitzroy, as compared to either the City of Melbourne or neighbouring suburbs such as Collingwood or Richmond. Some 22% of the buildings in the Heritage Overlay Area are individually significant compared with, for example, other large residential areas such as 7% for North Fitzroy or 9% for North Carlton. Some 18% of South Fitzroy buildings were erected by the 1860s as a demonstration of its early origins.

1. The SoS also sets out that contributory elements include mainly detached and attached Victorian and Edwardian-era houses with the following typical features:
   • Pitched gabled or hipped roofs, with many façade parapets,
   • One and two storey wall heights but with some isolated landmark 3-5 storey buildings,
   • Face brick (red, dichrome and polychrome), bluestone or stucco walls, some weatherboard;
   • Slate, corrugated iron roof cladding, some Marseilles pattern terra-cotta tiles;
   • Chimneys of either stucco finish (with moulded caps) or of face matching brickwork with corbelled capping courses;
   • Post-supported verandah elements facing the street, set out on two levels as required with cast-iron (typically mid to late Victorian-era) or timber detailing (typically Edwardian-era or early Victorian-era) also some use of arcaded masonry verandahs;
   • Less than 40% of the street wall face comprised with openings such as windows and doors;
2. The SoS sets out that the South Fitzroy Heritage Overlay Area is historically significant as Melbourne's earliest urban settlement outside the city grid, retaining several mid-19th-century buildings. It contains an unusually high number of early Victorian and Regency structures that reflect the suburb's early development.
3. The area demonstrates early government planning-like interventions from the 1850s to correct misaligned streets in what was originally a privately planned suburb. It also displays what has been deemed the effective application of the 1849 Melbourne Building Act, which required fire-resistant masonry construction and shaped the area's distinctive character compared with the abundance of timber constructed buildings in neighbouring suburbs.
4. The SoS also states that the South Fitzroy remains a largely intact mix of mid-19th to early-20th-century buildings, including notable inter-war examples, and features many individually significant, predominantly masonry buildings. Its ornate late-19th and early-20th-century architecture illustrates the prosperity of residents during that era.
5. Other than setting out that typically development is one and two storey height, the SoS does not otherwise make any commentary about the scale and nature of individual developments, such as being modest, moderate or generously proportioned, for example. Policy uses comparative terms in setting out what is sought. On this basis, there needs to be a degree of consideration as to what the context is. This, in my view, invites a decision maker to have regard to the HO334 as a whole, but also what is more proximate to the site, and how the proposal will respond to both.
6. Having said that, it is difficult to contemplate how a residential development on this site might impact upon, or be influenced significantly by, existing heritage fabric in the more distant reaches of the HO334, particularly given the limitations provided by the zoning. In my view, this places greater weight on what the impact of the proposal will be on its more immediate surrounds but still invites consideration of what comprises the HO334 precinct.

1. There was dispute between the parties about whether the proposal would 'dominate' its heritage context. Policy seeks new development be recessive against the heritage fabric, and promotes development that is:
   • Not visually dominating the existing heritage building or streetscape';
   • Not detracting from or competing with the significant elements of the existing heritage building or streetscape.
2. The applicants submitted that the proposal does not produce a dominating effect. It was submitted that this was the case because it sits lower than Cobden Terrace on the opposite side of Gore Street, and also the building opposite to the south. The proposal is also shorter in length along Gore Street than Cobden Terrace.
3. The applicant also submitted that given the relatively shallow width of the site (in an east-west orientation), this limits the ability for setbacks to Gore Street to be provided with any great depth, without compromising the ability to accommodate a new building.
4. The applicant said that "the scale, mass, proportions and design of the proposal have taken lead from the existing heritage buildings without competing, overpowering or dominating them".[18]
5. The evidence of Mr Beeston was that the proposal would augment the significance of the precinct by being a contextually responsive interpretation of the prevailing built typology, and is therefore an improvement over the existing non-contributory form of the existing dwelling.
6. Mr Beeston said the proposal draws its cues from existing heritage fabric in the following ways:
   1. Double-height bays articulated through the party/blade walls, reflecting the finer grain rhythm of the area.
   2. Restrained fenestration.
   3. Inclined, corrugated metal-clad bays which reinterpret the steeper pitched roof condition of early Victorian roof forms.
   4. The curved light scoop, being 'an interpretive gesture loosely recalling a chimney or industrial stack'.
7. Mr Beeston also said that the scale of the proposal is also to be assessed against the existing heritage fabric on the other three corners of the Gore and Condell intersection. It was his evidence that when viewed in that context, the proposal does not overwhelm but achieves a measured balance for a corner development.
8. Similarly, Mr Gard'ner's evidence was not disparate from that of Mr Beeston in many respects. At paragraph 93 of his evidence statement, he states:

It is my view that the proposed design is an appropriate response to the heritage streetscape and precinct setting, as an abstracted interpretation of the terraced house form, both in its single- and two-storey typology. The design explicitly references the datums, horizontal rhythm and pattern of earlier development in a contemporary manner.

1. Mr Gard'ner also referenced examples of other existing heritage buildings, including some of the finer detail of them, in concluding that the proposal was an acceptable response to its context. Examples of these include:
   1. Segmental and semi-circular pediments are common decorative features. Examples of those features relied upon are extracted from Mr Gard'ner's evidence statement[19] in the images below.

1. The building height is within the range typically found in Gore Street, where the height, scale and form of residential development can vary substantially.
2. The sloping, corrugated metal cladding references the roofs of the single storey cottages found in HO334. Examples drawn on include 110 and 114 Argyle Street, 331-335 and 332-336 Napier Street and the row at 410-420 George Street.
3. The wing walls further interpret the Victorian terrace typology through the use of the decorative stack bond and concrete in the place of cement rendered brackets.
4. The orientation of the proposed dwelling to Gore Street, which is reinforced by the repeating module of the wing walls, responds to the prevailing siting of dwellings to the street with their expressed party walls (Figure 46 & Figure 47) as well as reflecting earlier history of the subject site when it was occupied by two dwellings addressing Gore Street

1. Mr Gard'ner also said that the building height is an acceptable outcome having regard to the context of the site, as well as Victorian-era double storey development in general:

[100] The building height is within the range typically found in Gore Street, where the height, scale and form of residential development can vary substantially. The overall building height of the proposed dwelling is less than nearby residential buildings, and sits within a streetscape occupied by the substantial freestanding Victorian house at 202 Gore Street ('Dr Whitcombe's surgery & residence') on the opposite (south) side of Condell Street, and Cobden Terrace on the opposite (west) side of Gore Street which, at its maximum height, measures 12.8m. Even with the light well element, the proposed development is lower in height than a substantial two storey Victorian-era terrace.

[141] ...The character and appearance of HO334 is respected through the use of traditional materials and the use of sophisticated references to the forms, rhythm, datums, materials and colours of the heritage context and should, in my opinion should be approved.

And

[147] ...I consider the design approach taken by Edition Office which draws on the essential qualities of the architectural forms, rhythms and materials of the heritage context to be appropriate. The proposed development, in my opinion, will not adversely impact the identified heritage values of the South Fitzroy Precinct (HO334) or diminish its legibility.

1. Mr Stephenson agreed that the proposal does introduce some elements that are drawn from features found in the area that are not currently present on the site. These include the wing walls, or party/partition walls, the curved element above the first floor, and sloped walls to Gore Street.
2. However, Mr Stephenson's evidence was that the proposal will dominate the immediate context because of the collective appearance of the building design, including the sloping walls, the height of the wall to Condell Street, absence of obvious windows, little relationship to the street and the frequent party walls.
3. Mt Stephenson took issue with the following elements of the proposal:
   • The increasing setback of the principal façade as the wall rises in height, is not in-keeping with the predominant character of the contributory / significant buildings, which all have vertical walls of the same setback.
   • The 800mm setback of the full-height party-walls result in a very prominent feature that will detract from the Victorian and Edwardian character of the street. While projecting party walls are features of some buildings, they are typically set further back in and integrated into a verandah, which reduces their prominence.
   • The 800mm setback is a lot less forwards than the 3m setback of the significant dwelling at 202 Gore Street and the 1m-1.5m setbacks of the contributory buildings at 220-224 Gore Street. This will bring the façade forward, resulting in a dominant form presenting to the street and diminishing the contribution made by the adjoining properties.
   • The 6.204m wide courtyard introduces an opening into the street that doesn't maintain the continuous built form.
   • The 0m setback and height of the street wall to Condell Street results in a very prominent form on the corner. This form will reduce those western views up Condell Street towards the state-listed Cobden Terrace, compete against and therefore diminish the presence of 202 Gore Street, and dominate over and detract from 89 Condell Street.
   • The 0m setback of the studio at the north corner of the block protrudes beyond the setbacks of the contributory house at 220 Gore Street, which will dominate over and reduce the contribution / visibility of the dwelling when heading north up Gore Street.
4. Mr Stepehnson also said that whilst the proposal takes its design cues from the nearby terrace typology, it also departs from this quite radically because of:
   • The exaggerated depth of the party walls.
   • The narrowness between the party walls, measuring 3.15m.
   • The angular façade walls that replace the traditional vertical wall.
   • Emphasis of the horizontal through the layering of the corrugated metal cladding.
   • The heights of the proposed four horizontal sections do not relate to the heights of the horizontal elements seen on a typical terrace form.
   • Concealment of windows and doors, creating a less well articulated façade that appears more blank and 'bunker-like' when compared to the traditional terrace form, articulation and fenestration.
   • An overly large, asymmetrical, protrusion on the roof.
   • Lack of a pitched roof.
5. Mr Stephenson also stated that the referencing of terrace form also failed because the angled walls with their oversized panels, the protruding party walls, narrowness between the party walls, and lack of articulation and fenestration. His conclusion was that:

[127] ...It fails in terms of massing, articulation, fenestration, setbacks and design details by adopting an overly bold geometric form, dominant massing and blank walls that appear more Brutalist in aesthetic, than the traditional style of housing that forms the heritage values of the place.

1. In comparing the evidence of each of the witnesses, whilst all look at individual themes or aspects of the proposal, it appears to me that Mr Beeston and Mr Gard'ner have sought to break down the proposal into its individual elements and focus on them in that manner to draw their conclusions.
2. Mr Stephenson also takes this approach, however, his conclusion is, broadly, that the various elements that he takes issue with collectively result in a proposal that will dominate and detract from the contributory and significant buildings that comprise the streetscape.
3. Because this heritage precinct covers such a large area, it was accepted by all of the witnesses that whilst the entire precinct is relevant, looking at the more immediate context too was relevant. However, as to what the Tribunal should regard as to what constitutes the immediate area, was disputed, particularly between Mr Stephenson and the applicant's witnesses. Mr Stephenson took a more confined approach, whereas Mr Beeston and Mr Gard'ner looked somewhat further afield.
4. One and two storey development dominates the more immediate area, and is generally situated on narrow lots. The double-storey development that does exist is generally typical 19th century era with high floor to ceiling heights. These historic double storey buildings are therefore generally taller than more contemporary double storey development.
5. In considering the impact of the proposal upon the heritage place and whether the proposal results in an adverse effect on it, I find that it must be viewed from a more immediate context and the streetscape within which it sits. That is not to say a development is unable to draw upon features from further afield within the same heritage place. However, there needs to be a relationship between those, the heritage place, and the streetscape within which the proposal will be viewed.
6. From the submissions and evidence given, the real issues in contest here are whether the presentation to each street is an acceptable heritage outcome, particularly whether the proposal will dominate and compete with the existing significant elements of the heritage streetscape, and be visually recessive against the existing heritage fabric. In my view, this must be assessed on a holistic basis. A proposal may be a well-coordinated series of components, however, when viewed in totality, may still result in an unacceptable outcome. This is what I find has occurred here.

1. It is the combination of the elements that result in a building that I find will not be visually recessive against the existing heritage fabric, and compete with it, despite the height (excluding the curved light well feature) being lower than other existing heritage fabric. This includes:
   1. The repetitive wing walls which are much more closely spaced than most other similar features in nearby buildings.
   2. The projection of the wing walls from the main façade where this is not characteristic. Existing party walls that do project have a much lesser impact, primarily because they are incorporated into covered balconies and are therefore much less obvious.
   3. The extension of the wing walls into the Gore Street setback at ground level.
   4. The sloped walls/façade between the wing walls, which extend a significantly greater length than other similar features on existing nearby heritage fabric.
   5. The lack of legible fenestration.
   6. The curved roof element to the light well is a foreign feature. I disagree with Mr Beeston's and Mr Gard'ner's evidence that the relatively small features upon which they base their evidence in this matter, which are significantly smaller features than what is proposed here, adequately justify the scale and overall impact this feature will have. The examples they rely upon are also generally incorporated into the elevational envelope of existing buildings, whereas what is proposed is a distinct and prominent feature which only adds to concerns I have that the proposal is not visually recessive, and instead competes with the significance of the heritage place because it is so prominent when viewed from the north and north-west.
   7. The inclusion of the studio to the street edge with what is largely a blank presentation.
   8. The relatively small front setback to Gore Street, when accounting for the overall presentation of the built form.
2. In isolation, some of the elements that comprise the overall outcome which I have found unacceptable, may be acceptable in principle.
3. For example, the overall numeric height of the proposal is not necessarily an issue acknowledging the greater height of existing nearby heritage buildings.
4. In addition, the use of wing walls referencing party walls in existing terrace buildings is also not an in-principle issue. It is important to note, however, that double storey terrace typology is not the only form found in this area. The area is a mixture of single and double storey form, including the three single storey dwellings immediately to the north of the subject site.
5. I find that the proposal is too stark an insertion into this highly intact heritage streetscape and this is contrary to what policy seeks with respect to being visually recessive. Its stark contrast is also not favourable when policy seeks a proposal not compete with existing significant heritage elements. I find this proposal will compete with the significance of the heritage place, as well as the Cobden Terrace dwellings to an extent that is unacceptable in the Gore Street streetscape.

1. The council and Ms Williams raised concerns about the presentation of the proposal to Condell Street. Mr Stephenson also took issue with the way the proposal would present to Condell Street.
2. The council acknowledged that boundary walls are evident in the area and, that in principle, some boundary construction to Condell Street was acceptable. However, it was concerned with the sheer contemporary two-storey form being inconsistent with the heritage context, with a lack of windows and any significant articulation.
3. The council also said that the roof garden at first floor level fronting Condell Street, and directly abutting 89 Condell Street, would be a visually intrusive element.
4. Ms Williams said that the sheer wall to Condell Street at 7.42 metres would overpower the front wall of 89 Condell Street, which is a contributory building within HO334, and the transition to 89 Condell Street is not managed by the proposed first floor roof garden, which is discouraged by policy. Further, Ms Williams submitted:

"The street wall height in Condell Street dominates 89 Condell Street and is too abrupt a response on the street corner. The combination in height and the blank wall to Condell Street only accentuates the issue of visual dominance and building bulk."[20]

1. Mr Stephenson's evidence was the height of the street wall to Condell Street would result in a very prominent form on the corner which will dominate and detract from the heritage significance of 89 Condell Street.
2. Mr Gard'ner's evidence was that the stepping of the street wall height to Condell Street through the inclusion of the roof garden, provides an appropriate transition to 89 Condell Street.
3. It was also his evidence that the articulation of the proposed southern wall to Condell Street, with its soldier course brick detail and decorative stack, bond brick detailing, provides an appropriate reference to the articulation of end-of-terrace walls, which are found on 203 and 209 Gore Street (on the western intersection with Condell Street).
4. There was also concern raised about the proposed roof terrace, or roof garden at the first floor level abutting the Condell Street frontage, and abutting the western wall of 89 Condell Street. It was said that policy discourages roof terraces where they are visible from primary and secondary street frontages.
5. The concerns raised were in response to policy at clause 15.03-1L which states:

Roof terraces and roof decks

Set back roof terraces/roof decks so that they are concealed when viewed from the street and where on a corner, when viewed from the side street.

1. Mr Gard'ner's evidence was that this roof garden is not a roof terrace in the sense intended to be captured by the above policy and, regardless, would be concealed behind the balustrade and therefore would be consistent with the above policy.
2. I find that the presentation to Condell Street will be unacceptable. This is primarily because of the presentation of the southern boundary wall. While boundary walls on corner locations are common, the height of this wall and its position relative to the Gore Street frontage will contribute to the impact of the proposal, where policy seeks that such development be visually recessive.
3. While I accept that the proposal has sought to moderate this impact to Condell Street through the design detail methods, this wall is proposed to be a sheer two storey wall, between 7.15 and 7.55 metres in height, with no window openings, and set back from the Gore Street frontage approximately 1.34 metres. This setback to Gore Street is significantly less than the dwelling on the opposite side of Condell Street (202 Gore Street, a significantly graded building in HO334), approximately the same as 209 Gore Street, and more than 203 Gore Street. However, 203 and 209 Gore Street are contributory (in HO334), and VHR registered respectively, and so when policy seeks that new development be visually recessive to existing heritage fabric, the Condell Street wall being at a similar, or closer setback to Gore Street is not consistent with this policy aspiration.
4. In terms of the impact of this wall on 89 Condell Street, I am satisfied that the proposed has satisfactorily addressed this building with the inclusion of the recess of the first floor directly adjacent to it.

Architectural render of the Condell Street (south) elevation

1. I am not persuaded that the inclusion of the roof garden within this recess is unacceptable, or contrary to policy. Whilst some of the parties pressed that its inclusion was contrary to local heritage policy about the concealment of roof decks and terraces, I find that this is a misapplication of this policy.
2. The proposed roof garden is not on the roof of the primary building, it is above the roof of the ground floor of a two storey building, and is designed and positioned in much the same way that a balcony to an apartment might be, except it has no roof above.

1. The council and Ms Williams raised concerns that views to Cobden Terrace would be adversely impacted by the proposal being located along the Condell Street frontage, and with a small setback to Gore Street. In particular, it was said that views from further east along Condell Street, towards Cobden Terrace would be impacted by the proposal.
2. Policy[21] seeks that impacts of a proposal upon views to existing heritage be considered:

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).

Maintain views to the front of an individually significant or contributory building or views to a secondary façade where the building has two street frontages by not:

• Building over the front of it.
• Extending into the air space above the front of it.
• Obscuring views of its principal façade/s.

1. I am not persuaded that the impact of views to Cobden Terrace from east of the site will be unacceptable. Whilst there will be some interruption of views by the proposal from Condell Street, the impact would be minimal in the overall context of how and where Cobden Terrace is visible from otherwise.
2. From east of the subject site, views towards Cobden Terrace will be slightly 'delayed' as one traverses towards the site, compared with what is available now. However, they will still be available and, given the position of the site being on the opposite side of Gore Street from Cobden Terrace, will provide sufficient distance so as not to adversely impact any views.
3. Therefore, I am satisfied that the above policy would be satisfactorily achieved.

1. Ms Williams raised an issue with respect to part of the proposal being constructed over her title boundary.
2. The permit application includes Ms Williams' land as part of the subject site, albeit without her permission.[22]
3. Because there is nothing in the Planning and Environment Act 1987 (Vic) that prevents a permit being granted over someone else's land, the absence of the consent of the landowner, and in this case the express objection to it, is not a reason to refuse to grant a permit, despite the obvious uncertainties this potentially raises.

1. I am required to consider whether the proposal results in an acceptable planning outcome when balancing competing policies in the interests of net community benefit.
2. Here, there is little in the way of policy support for this proposal. The proposal does draw reference in its design response from features of surrounding heritage fabric, where the existing development on the site does not. However, it will result in an imposing built form outcome that is unacceptable, the result of which significantly outweighs any benefits derived from the gestures to existing heritage forms.
3. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

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

[2] Act for regulating Buildings and Party Walls, and for preventing mischiefs by fire in the City of Melbourne (1849)

[3] Statement of Significance, City of Yarra Review of Heritage Overlay Areas 2007, updated March 2013.

[4] Mr Gard'ner's evidence statement, 5.

[5] Mr Gard'ner's evidence statement, 14.

[6] Mr Beeston's evidence was that he had actively engaged with the applicants and the project architect following the lodgment of the application for review at his own suggestion, including a workshop where the applicant and the architect were present, in what Mr Beeston described as a 'very collaborative process'. This has reduced the weight I have given to his evidence as I find such interaction as potentially affecting the independence of Mr Beeston's evidence.

1. [7] [2025] VCAT 948 ('Perpetual')

[8] At page 3 of the council's written submissions.

[9] Source: the amended application plans.

[13] Including clauses 15.03-1S and 02.03-4.

[15] Which is a Background Document at Schedule 1 to clause 72.08 informing clause 15.03-1L.

[16] Act for Improvements in Fitz Roy Ward in the City of Melbourne, 1850.

[17] HO334 Statement of Significance, 153.

[18] Applicant's written submissions, 33.

[20] Mr Song's submissions on behalf of Ms Williams, [61(b)].

[22] Noting that under the Planning and Environment Act 1987 (Vic) express permission of an application being made is not required, just that the applicant declare that the owner has been notified of the application, per s 48.