1. As in the exemption provision of DDO1, the permit requirement is also expressed in terms of building height not exceeding 2 storeys, but in this case it excludes an attic or basement. For similar reasons to our interpretation of the exemption provision, we consider that this permit requirement relates to storeys above ground level. This is because the requirement refers to building height and, as previously noted, this relates to height above ground level not below ground.
2. On this basis, it is difficult to understand why 'basement' has been excluded. It does not matter how many basement levels there may be, so long as they comply with the definition of basement in clause 72, they will not contribute to building height (i.e. height above ground level). We therefore find that there is no constraint placed by this permit requirement on the number of basement levels that may be permitted.
3. With respect to attics, they are excluded from the permit requirement which imposes the height control. There is a mandatory building height of 2 storeys above ground, but this excludes an attic. Therefore, it is possible under DDO1 to obtain a permit for two above ground storeys plus an attic.
4. If a proposed building comprises two above ground storeys plus an attic, it is also a permit requirement that:
   • A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch and form and any windows in the roof must be dormer windows, mounted flush to the roof, recessed or of minimal dimensions.
5. This requirement, which is expressed to be mandatory, contains a considerable degree of subjective assessment. Nevertheless, it is a requirement that relates to roof form when a roof contains an attic and a permit is required for the attic. If the building is exempt from the need for a permit under the DDO, this requirement would not apply.
6. The other provisions in clause 2.0 of DDO1, which relate to identifying an attic and what factors are indicative of an attic, may be useful in situations where there are two above ground storeys and then there is a third storey for which a permit is required. The question may arise in this type of case as to whether the third storey is an attic and consequently whether a permit can be granted, or whether it is a third storey not being an attic, for which no permit can be granted. These provisions contain guidance in assessing whether such a third storey is an attic but cannot be wholly definitive. It will always be a question of fact whether a proposed third storey above ground is an attic or not. What is an attic will depend on the ordinary meaning of this term and the facts and circumstances of the particular case.

1. We have set out what we find to be the meaning of the requirement in the schedule that building height must not exceed 2 storeys (excluding an attic or basement). This does not accord with the submissions made by the council.
2. The council agreed that, on the facts of this case, the upper floor shown on the Cushen plans can be characterised as an attic. However, Mr McIlrath submitted that an attic is not to be regarded as a separate storey and a basement level is not to be regarded as a separate storey if it can be regarded as coming within the definition of storey as defined in clause 72 of the planning scheme.
3. The basis of this submission rests on the definition of storey in clause 72, which, according to Mr McIllraith, "expressly includes attics and basements as forming part of a storey." Mr McIllrath further submitted:

The second storey may include an attic. If it includes an attic, then it's still a 2 storey building, because the attic is included as part of the storey below. No other construction is open. It was not necessary for the draftsperson to specifically exclude attics from the exemption.

1. We disagree with this view about the meaning of 'storey' and these submissions. The definition of storey in the planning scheme is:

Storey That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

1. We find that the word 'It' at the beginning of the second sentence refers to 'storey'. Thus, the definition must be taken to read: Storey may include an attic, basement, built over car parking area, and mezzanine.
2. It means that a storey is that part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. An attic may be a storey; a basement may be a storey; a built over car parking area may be a storey and a mezzanine may be a storey. It does not mean that in circumstances where there is an attic, basement, built over car parking area or mezzanine, those levels are part of the storey above or below. If that was what was intended, the draftsperson would have defined 'storey' to be 'That part of a building between floor levels plus any attic above or basement below'.
3. Each of those elements - attic, basement, built over car parking area, and mezzanine - if they can be characterised as an area between floor levels or between a floor level and a ceiling, will constitute a storey in their own right. This interpretation is supported by the definition of basement, which is a 'storey below ground level, or that projects no more than 1.2 metres above ground level'. If a basement was not to be regarded as a separate storey, it would have been defined as being part of a storey. In our view, the definition of basement is simply not consistent with the council's interpretation.
4. The council's interpretation is at odds with both common sense and the way in which 'storey' has been repeatedly interpreted by the Tribunal.[20] In our view, the council is wrong in saying that the definition includes attics and basements as forming part of a storey. The definition contains no such words and there is no justification for importing such words. The definition provides that a storey may include an attic or basement etc. They are examples of the types of areas between floor levels or between a floor level and a ceiling that come within the definition. They are specifically referenced as being included in the definition of storey to remove any doubt that they are to be considered as a storey when regard is had to their common meaning and when there might be argument about whether an attic, basement, built over car parking area or mezzanine fall within the definition.
5. Finally, we note that what will be categorised as a storey, in terms of the definition of storey, must be distinguished from what will be counted as a storey for the purpose of interpreting the exemption from the need for a permit or the permit requirement imposing a height limit. As we have previously found, some stories (such as a basement) will not count when considering a control that refers to a building with a building height of not more than two storeys. When interpreting any planning control, regard must be had to the specific words used and their context. Thus there are some decisions of the Tribunal about the meaning of DDO1 that relate to differently worded versions of the overlay, which cannot necessarily be relied upon when interpreting DDO1 today.
6. For example, in Park v Bayside CC[21] the Tribunal said:

[22] The land is also affected by Schedule 1 - Coastal Environs, of the Design and Development Overlay, the controls for which are set out at Clause 43.02 of the Scheme. Under these controls a permit is required to construct a building or to construct or carry out works unless the schedule to the overlay states that a permit is not required. Of relevance to this application, Clause 2 of Schedule 1 provides that a permit is not required to construct a building which, among other things, has an internal storey height (measured from floor to ceiling) of 3.5m or less. A permit is also not required, for buildings which do not exceed two storeys or 6m in overall height.

[23] A storey is defined at Clause 72 of the Scheme as:

"That part of a building between floor levels. If there is no floor above, it is the part between the floor level and the ceiling. It may include an attic, basement, built over car park area and mezzanine."

Accordingly, in view of this definition, the proposed development can be described as being of three stories as it comprises two levels of living space over a basement level car-park.

[24] For completeness I should record the fact that the car park level constitutes a `basement' as also defined in the Scheme as no part of it exceeds a height greater than 1.2m above natural ground level.

[25] Schedule 1 to the Design and Development Overlay goes on to state that a permit cannot be granted to construct a building or to construct or carry out works which are not in accordance with the following requirements:

"* A building must not be greater than two storeys in height (excluding any attic or basement).

* A roof containing an attic must match typical roof details of the surrounding neighbourhood in terms of roof pitch, roof form and materials."

Accordingly, although a permit is required, because the buildings comprise three stories, a permit may be granted as one of those stories is a basement.

1. In this decision, the Tribunal found that a building comprising two levels of living space over a basement level car park was a 3 storey building and that the basement, which complied with the definition of basement in the planning scheme, was a separate storey. This accords with the way we have interpreted 'storey' and does not accord with the council's interpretation.
2. The Tribunal in Park found that a permit was required because the building comprised 3 storeys. At that time (2002), the wording of DDO1 in the Bayside Planning Scheme was different to its current wording. It provided that:

A building must not be greater than 2 storeys in height (excluding any attic or basement).

1. This compares to the current wording, which provides:

Building height must not exceed 2 storeys (excluding an attic or basement).

1. Park's decision does not record whether the exemption from the need for a permit in DDO1 was the same in 2002 as it is now. However, we have discovered that the wording of the exemption at that time read:

Buildings or works which do not exceed 2 storeys or 6.0 metres in overall height.

1. This wording is also different to the current wording of the exemption.
2. In our view, at the time when Park v Bayside CC was decided, the interpretation of DDO1 that was adopted was open to the Tribunal. However, with modifications to the wording of both the exemption and the permit requirements regarding height, the introduction of the term 'building height', which is a defined term in the planning scheme, has resulted in a subtle change of meaning to these provisions. As we have previously noted, our interpretation of these provisions where the expressions are used - 'a building with a building height of not more than 2 storeys' and 'building height must not exceed 2 storeys (excluding an attic or basement)' - is that the term 'building height' refers to height above ground level. Consequently, the two storeys referred to in each expression are two storeys above ground level, not below.
3. In our view, this demonstrates the need to pay particular attention to the actual wording of the planning scheme provisions in question before relying upon interpretations made in other cases. Thus, if faced with the same type of development considered in Park's case today of a building of 3 storeys comprising two levels of living space over a basement level car park, we would conclude that it did not require a permit because it is a building with a building height of not more than 2 storeys - i.e. not more than 2 storeys above ground level. The storey below ground level (i.e. the basement) does not contribute to the building height, which is defined to be the vertical distance from natural ground level to the roof or parapet at any point.

IS A PERMIT REQUIRED FOR THE BUILDING ON 29 ST NINIANS ROAD?

1. The works being undertaken at 29 St Ninians Road and shown on the building plans for which a building permit has been granted show:
   • A proposed basement/garage, which is a renovation of the existing basement that once formed part of the Miles house;
   • A proposed ground floor;
   • A proposed first floor;
   • A proposed attic floor set within the roof space of the dwelling. The four sides of the roof will be steeply sloping slate roof shingles capped with a flat colorbond roof over the central section of the attic space. Initially, the attic floor included balconies to the north and west, and was accessed by a stair and a lift. Those plans were amended and the balconies were deleted. The attic now contains no windows; it would be accessed by a pull down ladder, but not by the lift. It will contain only the lift overrun. The ceiling in the proposed attic floor below the central flat colorbond roof area appears to be 2.3 metres high.
2. We find that the proposed building comprises 4 storeys in total. There is no contention that the proposed ground floor and first floor levels comprise two above ground storeys. There is dispute about how the proposed attic floor should be characterised, how the basement level should be characterised, and how they should be counted

1. We consider that the proposed attic floor is an attic. It has a large usable floor area with a sufficiently high ceiling height to allow people to move freely about. It is a space within a building, contained wholly within the roof pitch, and is not immediately enclosed by vertical external walls. Whilst it does not contain any windows or skylights, these features are not essential to its characterisation as an attic. No part of the interior of the attic is evident from the outside. Nevertheless, the steep pitch and overall height of the roof contribute to the overall height and bulk of the building form in order to accommodate the usable floor space area. However, whilst these may be factors which are relevant to whether or not a permit would be granted for this attic, we do not consider that the contribution of the attic to the scale and mass of the building form is so great that this level could not be described as an attic in the context of other robust built forms within the surrounding neighbourhood. We do not consider it would need to be characterised as a third above ground storey not being an attic.

1. With respect to the basement level, we have already made findings that it does not comply with the definition of basement in the planning scheme because it projects more than 1.2 metres above ground level. Accordingly, we find that it is a storey above ground level. It does not benefit from the exception for basements when considering the permit requirement that building height must not exceed 2 storeys (excluding an attic or basement).

1. Accordingly, we conclude that the proposed building on 29 St Ninians Road must be characterised as a building with a building height of 4 storeys, one of which is an attic. As such, it does not come within the exemption from the need for a permit in DDO1 because it is not a building with a building height of not more than 2 storeys.
2. We also conclude that no planning permit can be granted for the building because it does not comply with the permit requirement that building height must not exceed 2 storeys (excluding an attic or basement). Whilst the attic can be excluded from this limitation, the basement level cannot be so excluded due to the fact that it protrudes more than 1.2 metres above ground level. Consequently, excluding the attic, the building has a building height of 3 storeys, which means that no permit can be granted.

1. The council suggested with respect to the basement level that it is not necessary to decide whether it is a basement as defined in the planning scheme because it can be regarded as a built over car parking area. If this is accepted then it does not matter whether the height of the car park is more than 1.2 metres above ground level.
2. We do not consider that this argument has any merit. We find that the basement level is not just a car parking area. It includes areas marked as storage, gym, wine store, WC and 'EXG MODIFIED RACK', as well as garage and car turntable. In any event, a built over car parking area is still a storey. The argument does not assist the council's position.

1. Clause 63.10 relates to existing uses and provides:

If at least 50 percent of the gross floor area of a building or at least 50 percent of the area of any works is damaged or destroyed so that the use cannot continue without the building or works being reconstructed, the land must be used in conformity with this scheme, unless a permit is granted to continue the use, and to construct or carry out buildings or works.

1. The council submitted that the part demolition of the former house on 29 St Ninians Road constituted damage or destruction within the meaning of clause 63.10. Clause 63.10 allows for redevelopment of buildings to the same height, even where height controls have been subsequently introduced, which are more restrictive than applied at the time of construction. In the event that the Tribunal ruled that the floor level of the proposed new dwelling was prohibited by DDO1, the owner would be entitled to seek a permit under clause 63.10 to rebuild to the same floor levels.
2. We reject this argument for various reasons:
   • Clause 63 protects existing uses, including the use of existing buildings, not existing developments.
   • The use of 29 St Ninians Road for residential purposes was and is an as-of-right use.
   • There is no question that the use may continue without the need for any permit under clause 63.10.
   • The reference to a permit for buildings and works in clause 63.10 addresses a situation where a permit is sought to continue a non-conforming use. The clause makes it clear that a permit is also required to reconstruct a building within which to conduct the use. The situation is quite different in the present case where no permit is required for the use of the land under the zone, and consequently none under clause 63.10.
   • The height controls that applied under DDO1 when the dwelling was constructed by Mr Miles in 2000, although differently worded,[22] exempted the dwelling from the need for a permit. The development that is now proposed was never exempt from the need for a permit, but in fact would have been prohibited, just as it is now.
3. We simply do not see how clause 63.10 is relevant in any sense.

1. Having made the findings that we have and in the level of detail which has been necessary, we conclude that we should make appropriate declarations. It would be a hollow victory to make the findings contended for by the Mrockis but not to make the appropriate declaration sought.
2. The declarations simply seek a characterisation of the proposed development under the provisions of the planning scheme and a statement of the law applicable to such characterisation in terms of whether a permit is required or can be granted. This is quite a different type of declaration than was sought in the Doug Wade case[23], which was urged upon us on behalf of Mr Cushen as being a similar case where declaratory relief was refused and which we should follow.
3. In the Doug Wade case, one of the issues was that a permit had been issued by the responsible authority and acted upon by the Wades. The Court found that no permit for some of the works undertaken by the Wades was required and that the permit issued for other works was null and void. The Court made a decision that it would not issue a mandatory injunction requiring removal of the extension to which the permit related. In light of this, the Court concluded that it would be futile to grant the declaration sought. Part of the Court's reasoning was that it was by no means certain that a permit may not have been granted for the offending works.
4. In the present case, no planning permit has been issued. Mr Cushen has always maintained that he does not need a permit and the council has supported this view. However, the Mrockis have always maintained that a permit is required or that the development is prohibited. They have expressed this view since before any building works commenced. The works that have been undertaken by Mr Cushen have been done in full knowledge of the Mrockis' views. It would have been open to Mr Cushen to seek a declaration from the Tribunal under section 149A of the Planning and Environment Act 1987 as to whether or not a permit was required or could be granted before undertaking any works. He chose not to do so. Even after the Mrockis made their application for declaration under section 149B of the Act to resolve this issue, Mr Cushen proceeded with further work.
5. It is fair to say that the planning system under the Planning and Environment Act 1987 has changed considerably since the Doug Wade case, and in part because of that case, in terms of the sort of remedies available in circumstances where there is an alleged breach of a planning scheme or there is risk of one occurring.
6. The following principles guide decisions about whether to grant declaratory relief:[24]

1. The power to grant declaratory relief is a discretionary power which cannot and should not be fettered by laying down strict rules as to the manner of its exercise. 2. Declaratory relief must be directed to the determination of legal controversies and not answering abstract or hypothetical questions.

1. The person seeking relief must have a real interest.

1. Relief will not be granted in relation to circumstances that have not occurred and might never happen or if the declaration will produce no foreseeable consequences for the parties.
2. We consider that the legal controversy in this case is not an abstract or hypothetical question. The Mrockis have a real interest in the outcome and we consider that a declaration will produce foreseeable consequences for the parties. There is the possibility of an application for enforcement order being applied for by either the council or the Mrockis. Alternatively, Mr Cushen may decide to amend his plans and seek a permit for that which he can legitimately apply. Making a declaration may assist parties in making decisions about future actions. We are not being called upon to make any decision about such actions or to recommend how the consequences of our findings should be resolved. There may be various outcomes. The existence of alternative remedies is not a bar to the making of a declaration, although they may be a factor in the exercise of the Tribunal's discretion to make a declaration.[25] We do not consider that there is a strong reason based on the existence of alternative courses of action open to the parties for us not to make a declaration apart from the high financial costs to Mr Cushen.
3. We recognise that the extent of changes which may need to be made to enable a development to comply with the planning scheme may be substantial having regard to the status of the basement level. However, we do not consider that we should be deterred from making a declaration because of this. The alternative would be to effectively condone a building being completed which does not comply with the planning scheme and indeed is prohibited by it. This is in circumstances where the legality of the building has been a live issue since before the works began. The advice by the council that no permit was required is not relevant to the declarations we are asked to make because, as noted earlier, the Mrockis are not seeking any declarations regarding the actions of the council and are not challenging any council decision. Rather, the declarations they seek are confined to an interpretation of DDO1 applied to the facts of the case.
4. We do not consider that the motives of the Mrockis in challenging the development by Mr Cushen on No 29 St Ninians Road are relevant. They might be self-interested in terms of seeking to protect their views and their amenity, but these are not improper planning grounds. There is now no suggestion that the Mrockis have not complied with their own planning permit regarding height.
5. In terms of the basement level when it was part of the dwelling constructed by Mr Miles, no objection could have been made to it because, together with the single storey above it, the building was only ever a two storey dwelling for which no planning permit was required. It is Mr Cushen's attempt to 'recycle' the existing basement level and use it as a base upon which to construct two further storeys plus an attic (thus effectively resulting in a four storey building), which has caused problems and results in a building that is prohibited under the planning scheme.
6. We conclude that in all the circumstances of this case, it is appropriate to make a declaration that the proposed development comprises a four storey building and is prohibited by clause 43.02 of the Bayside Planning Scheme, notwithstanding the implications of this for Mr Cushen.

1. The final matter that needs to be considered is the application by Mr Cushen to review the council's decision to amend the planning permit for development at 27 St Ninians Road, Brighton.
2. The only issue in dispute is the form of screening that should be required for certain upper level north facing windows. The Mrockis wish this to be 75% translucent film fixed to the glass to a height of 1.7 metres above floor level. This will match the screening on other windows. This is what the council approved, but Mr Cushen wants screening to take the form of louvers.
3. We are not persuaded that there is any substantive reason to prefer louvers to translucent glass. Having inspected the Mrockis' dwellings, we support their desire for the screening to match the screening on other windows.
4. We therefore affirm the council's decision regarding amendments to Permit No. 2006/618/4.

[1] [2015] VCAT 720

[2] All questions of law in this decision have been determined by Deputy President Gibson: all other questions have been determined by the Tribunal as a whole, irrespective of the way in which findings have been expressed.

[3] A further declaration about compliance with a section 173 Agreement, which affects the land was originally sought, but was not pursued at the hearing.

[5] We have used the term 'attic' here for ease of convenience. We will discuss the meaning of this term in the context of DDO1 later.

[6] Simon Martyn of Fulcrum Urban Planning

[7] As a result of consents required under the Building Act

[8] Letter dated 6 May 2014 to Bayside City Council from Stephen Bitmead, Fastnet Consulting

[9] A new dwelling is currently under construction on number 31.

[11] This leaves aside the status of the attic, which is a separate issue that we shall deal with later.

[12] For example, in the definitions of wall height and building height

[13] [2005] VCAT 234

[14] For example see Benedetti v Moonee Valley CC [2005] VCAT 1580 at [34]

[15] [2014] VCAT 459

[16] Boroondara CC v 1045 Burke Road Pty Ltd [2015] VSCA 27

[17] [2015] VCAT 720

[18] The definition of attic in the Macquarie Concise Dictionary is:

1.The part of a building, especially a house, directly under a roof; a garret. 2. A room or rooms in that part, frequently used for storage.

The definition of attic in the Australian Concise Oxford Dictionary is:

1. The uppermost storey in a house, usu. under the roof. 2. A room in the attic area.

[19] Except that a permit may be granted to replace a building or works existing before 24 February 2000 which does not meet the height requirements of this clause. This is the date that the Bayside New Format Planning Scheme commenced. The house built by Mr Miles on 29 St Ninians Road did not exist at this date. It was built sometime later in 2000.

[20] For example, see Renback Pty Ltd v Bayside CC [2012] VCAT 1632; and Farag v Bayside CC [2014] VCAT 459

[21] [2002] VCAT 808

[22] DDO1 in the Bayside New Format Planning Scheme when it first commenced on 24 February 2000 exempted from the need for a permit 'buildings or works which do not exceed 2 stories or 6.0 metres in overall height.'

[23] [1985] VicRp 48; Thorne v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433

[24] See Phillips v Greater Shepparton CC [2015] VCAT 653 at [108] quoting the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

[25] Phillips v Greater Shepparton CC [2005] VCAT 653