[2005] VCAT 2600

In this matter, the Applicant's appeal against the Responsible Authority's failure to make a decision in the statutory period is granted. In relation to the land at 42 Gellibrand Street and 8 Stokes Street, Queenscliffe ("Site"), the Responsible Authority is directed to issue a permit allowing:

•

The use of the land at 8 Stokes Street for a dwelling;

•

The use and development of the land at 42 Gellibrand Street for a shop;

•

The development of the land at 42 Gellibrand Street for 11 dwellings (incorporating the conversion of the Ozone Hotel into 8 dwellings and the construction of three dwellings within two new double storey buildings);

•

Buildings and works associated with the aforementioned use and development of the Site;

•

A reduction in the standard carparking requirement under Clause 52.06 and a waiver of the loading bay requirement under Clause 52.07 of the Planning Scheme.

The above approvals under the issued permit are subject to the endorsed plans and to the following permit conditions.

1 Before the development starts amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale and dimensioned and three copies must be provided. The plans must be generally in accordance with plans submitted but modified to show:

(a)

a schedule of all external materials and finishes. The schedule must show the materials, colours and finishes of all external walls, roofs, fascias, window frames glazing type, doors, paving and roadways all to the satisfaction of the responsible authority. Cladding to the sides of the tower is to be replaced with slate. The colours and type of building materials to be used must be sympathetic to the existing streetscape to the satisfaction of the responsible authority;

(b)

elevations and height of the proposed timber picket fence on Gellibrand Street frontage to the satisfaction of the responsible authority;

(c)

a reduction in the height of the lift to not exceed the adjacent eave height of the existing building and the design and form of the lowered lift structure to the satisfaction of the responsible authority. The lift structure is to be constructed of materials and finished so as to match the host building and all reference to zinc cladding is to be deleted;

(d)

details of the location and heights of all external building plant, equipment and services, television antenna and/or satellite dishes; such structures to be located or visually and acoustically screened to the satisfaction of the responsible authority. The roof top plant above Apartments 4 and 5 is to be setback as far east as possible to minimise its visibility and screened to a height of 1.2m above the roof plant platform level. This plant and associated screen must not extend beyond the height of the roof ridge;

(e)

natural ground level, floor levels and maximum building heights to be expressed to Australian height Datum (AHD) and/or reduced levels to the satisfaction of the responsible authority;

(f)

dimensioned building setbacks from all boundaries;

(g)

the lower deck associated with Apartment 7 is to be set at a level no higher than 1.7m below the sill height of Apartment 3's north facing meals window;

(h)

screening up to a height of 1.7m above floor level on the north side of Apartment 7's upper balcony with materials to the satisfaction of the responsible authority;

(i)

deletion of roofing on the covered walkway in favour of an open pergola/arbour style frame for climbing plants;

(j)

the location and number of bicycle racks in Hesse Street;

(k)

correct depiction of window and door openings on the west side of Apartment 3 to achieve consistency between floor layout and elevation plans. Floor and ceiling levels are to be shown on the elevation plans (Section C-C);

(l)

car spaces and access aisles fully dimensioned and drawn to scale in accordance with the design standards set out under Clause 52.06 of the Planning Scheme. A 1m wide reversing area at blind aisles and widening of carspaces by 300mm where such spaces abut solid barriers is to be provided. These dimensions may be varied with the consent of the responsible authority;

(m)

widening of the garage door (Garden Apartments building) to 5.6m;

(n)

redesign of the entries to Apartments 9 and 10 to allow general pedestrian access to and from the carpark in lieu of the access point on the east side of car space No. 5;

(o)

deletion of the lap pool and retention of the large Angophora sp. tree at the rear of the hotel;

(p)

design details of all boundary fences to the satisfaction of the responsible authority;

(q)

south elevation of the garden apartments redesigned including deleting the "metal grill panels" feature and the large square shaped window area, and the use instead of narrower vertical style windows with proportions and spacing more appropriate for the historic context;

(r)

the location of car spaces and their allocation as follows:

1 car space for each 1 or 2 bedroom dwelling/apartment;

(s)

revised treatment where the access way connects with Stokes Street to provide improved sight distances at the frontage to the satisfaction of the responsible authority;

(t)

the use of a sealed surface to the section of the accessway from Stokes Street to the proposed security gate and for the walkway from Hesse Street to the satisfaction of the responsible authority;

(u)

storage space for the waste containers for the shop; and

(v)

details of the proposed interpretive display within the Gellibrand Street frontage.

2 The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

3 Before construction begins, an annotated photographic study of archival quality of the building prepared by a suitably qualified person to the satisfaction of the responsible authority must be submitted to the responsible authority as a record of the building. The survey must include:

a.

each elevation of the building;

b.

the interior of the building; and

c.

architectural design detailing of the building.

4 Prior to the commencement of any buildings or works the owner must provide an updated detailed stormwater drainage plan for the development to the satisfaction of the responsible authority. The drainage plan must:

a.

be in accordance with Water Sensitive Urban Design Principles consistent with "Urban Stormwater - Best Practice Environmental Guidelines" (CSIRO 1999);

b.

show how existing drainage patterns on the subject land will be affected by the proposed development and what changes are proposed to these drainage patterns; and

c.

show measures of onsite collection and treatment of all stormwater runoff.

5 All areas of the development must be drained to a legal point of stormwater discharge via an underground drainage system or other approved method of stormwater drainage to the satisfaction of the responsible authority.

6 Before the occupation of the dwelling units the areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the responsible authority, be:

a.

constructed, properly formed to such levels that they can be used in accordance with the plans;

b.

surfaced with an all-weather seal coat or other approved surface;

c.

drained and maintained, line-marked to indicate each car space and all access lanes; and

d.

parking spaces for allocated and marked.

7 Vehicular crossings must be constructed in accordance with the endorsed plans to the satisfaction of the responsible authority and before the use is commenced or building occupied:

a.

vehicular crossings must be constructed and/or widened at right angles to the road to suit the proposed driveways to the satisfaction of the responsible authority;

b.

any redundant existing crossing must be removed and the footpath and kerb reconstructed incorporating bluestone pitchers or suitably shaped and coloured concrete kerb and channel to match existing kerb and guttering (as appropriate), and any new car spaces created along the street frontage of the site as a result of the removal of the crossing must be line marked to the satisfaction of the responsible authority;

c.

any proposed vehicular crossing must have satisfactory clearance of any side-entry pit, power or telecommunications pole, manhole cover or marker, or street tree. Any relocation, alteration or replacement required must be in accordance with the requirements of the relevant Authority and must be at the applicant's expense.

8 The applicant/owner must do the following things to the satisfaction of the responsible authority:

a.

pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for development;

b.

obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatement;

c.

comply with conditions (if any) required by the Council or other relevant Authorities in respect of reinstatement.

9 During the construction of the buildings and works allowed by this permit, the roads and laneways adjacent to the subject land must be kept free of parked or standing vehicles (other than for the minimum time required to unload or load) or any other obstruction, including building materials, equipment etc. so as to maintain free vehicular passage to abutting benefiting properties at all times.

10 The walls on the boundary of adjoining properties and/or the laneway must be cleaned and finished in a manner to the satisfaction of the responsible authority.

11 All piping and ducting above the ground floor level of the building (except for guttering and rainwater heads) must be concealed or recessed.

12 Before the use of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

13 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority.

14 Before the development starts, a tree protection fence must be erected around all vegetation to be retained on adjoining properties at a radius recommended by a qualified arborist from the base of the trunks to define a Tree Protection Zone. The fence must be constructed to the satisfaction of the responsible authority. The tree protection fence must remain in place until construction is completed.

15 No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone ("TPZ") without the prior written consent of the responsible authority. Any such request for consent must be accompanied by the report of a qualified arborist with appropriate recommendations to minimise root damage including measures for supervision of works by an arborist, to the satisfaction of the responsible authority. No storage or dumping of tools, equipment or waste is to occur within the TPZ.

16 Any pruning that is required to be done to the canopy of any tree to be retained is to be done by a qualified arborist to Australian Standard - Pruning of Amenity Trees AS4373-1996. Any pruning of the root system of any tree to be retained is to be done by hand by a qualified arborist.

17 To ensure compliance with this permit a licensed surveyor's report confirming reduced levels as shown on the endorsed plans with particular regard to the finished levels and overall building height must be submitted to the responsible authority on the completion of the relevant floors.

18 Except with the written consent of Heritage Victoria, works associated with the conservation and restoration of the hotel building must be carried out and completed to the satisfaction of Heritage Victoria prior to the occupation of any dwelling.

19 This permit will expire if one of the following circumstances applies:

The development and use are not started within two years of the date of this permit.

The development is not completed within four years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

• Mr Russell Fairlie gave traffic evidence;

• Mr John Patrick gave landscaping evidence;

• Ms Sandra Rigo gave planning evidence;

• Mr Peter Lovell gave heritage evidence.

J Kenwood, Andrew Pamvouxoglou, David Kenwood and David Conneley appeared in person. In addition, Mr Pamvouxoglou also spoke on behalf of Symi Nominees Pty Ltd and Mr Chris Johnson (as secretary) spoke on behalf of the Queenscliffe Community Association Inc.

1 The Ozone Hotel is one of several iconic buildings in the seaside village of Queenscliffe. Constructed c. 1881 and listed on the Victorian Heritage Register, the privately owned hotel is a grand three storey Italianate style building whose facilities include guest rooms, a restaurant, bar and beer garden. Amongst other things, this proposal involves redevelopment of the hotel comprising internal works for its conversion into 8 apartments and the development of two new free standing buildings for a shop and 4 further dwellings. Key issues for consideration include the proposal's compatibility with the township's unique seaside character and heritage attributes. In addition to the proposal's visual impacts, local opposition to the proposal revolves around the loss of the hotel use (with associated loss of employment opportunities) and the loss of general public access and enjoyment of its interior.

2 Having considered these and other matters such as traffic, parking and landscaping we conclude that the proposal is worthy of support. In reaching our conclusion, we also find that there is strong policy support and net community benefits to be gained by the building's restoration and thus its on-going architectural and visual contribution to the township.

3 This matter involves the Ozone Hotel at 42 Gellibrand Street and an associated building at 8 Stokes Street in Queenscliffe ("subject land"). The Ozone Hotel is a landmark building in Queenscliffe, with the hotel being oriented to the east (ie towards the coast). The hotel is visually prominent when walking or driving along this section of Gellibrand Street or when enjoying the coastal public open space on the other side of Gellibrand Street. The building at 8 Stokes Street (under common ownership with the hotel) is a period dwelling. It has in the recent past been used as a dental surgery and office but has now returned to a residential use.

4 We were advised at the hearing that the hotel had already ceased public trading during the course of this year and is currently locked and unoccupied.

5 As set out in the Application for Review, the application is for:

"Use of 8 Stokes Street for a dwelling. Use and development of 42 Gellibrand Street for a shop. Development of 42 Gellibrand Street for eleven (11) dwellings (incorporating the conversion of the Ozone Hotel into 8 dwellings and construction of 3 dwellings within 2 new two-storey buildings. Buildings and works associated with the use and development of the site, including a variation of the General Requirements of the Design and Development Overlay 1. Waiver of the car parking requirement of the Queenscliffe Planning Scheme.

6 The Application for Review takes the form of an appeal against the Council's failure to make a decision in the statutory period.

7 The hearing of this matter took place over 29 & 30 September 2005 and then (given additional time was needed) on 11 October 2005. Apart from receiving submissions from Council, the Applicant and objectors, there was also expert evidence from four experts called by the Applicant, dealing with heritage, planning, traffic and landscaping issues.

8 After the first two hearing days but before the 11 October final hearing day, we carried out an inspection of the subject land and a variety of more distant vantage points across the town. In this regard, we visited the vantage points requested of us by Council (these vantage points were endorsed by the Applicant). While we understand some of the objectors faxed to the Tribunal a similar letter suggesting vantage points, we did not sight this letter (despite our last minute enquiries to the Tribunal Registry) prior to our inspection.

9 We note that early in the hearing Mr Chen (the project architect) provided a useful overview of the design approach. He was also called back before the Tribunal on the last hearing day to provide us with further information.

10 At the beginning of the hearing we made reference to the earlier Orders of Deputy President Gibson in her decision dated 6 September 2005. As well as dealing with other procedural matters, the Deputy President made the following order:

Any grounds with the statement of grounds filed and served by the objectors and/or the responsible authority which relate to permissions under clause 43.01 of the Queenscliffe Planning Scheme concerning that part of the land described as 42 Gellibrand Street Queenscliffe may not be relied upon as no permits were required under Clause 43.01 by virtue of clause 43.01-3 having regard to permit No P9191 dated 23 May 2005 issued under the Heritage Act 1995.

11 While this 23 May 2005 permit issued under the Heritage Act 1995 ("Heritage Permit") does not deal with the 8 Stokes Street allotment, it does allow from a heritage perspective the re-development proposed on the main 42 Gellibrand Street allotment (ie the residential conversion of the hotel building, the new central car park/dwellings and the new shop/dwelling facing Hesse Street). It was made clear to us early in the hearing that the relevant objectors are unhappy at the due process that was involved in the granting of this 23 May 2005 heritage permit. As we understand it, this unhappiness is not so much any querying of compliance with the strict requirements of the Heritage Act 1995, but more frustration at what is seen as an inadequate opportunity for resident involvement in the approval process. We make two comments here:

•

first, we acknowledge these residents' frustrations, but are mindful that the Applicant may well also have frustrations about the nature of the permit approval process, in terms of the "two step process" of requiring the Heritage Permit before then being able to get a planning permit. There seems little doubt that the current "permit approval" arrangements are cumbersome when a project requires approval under both the Heritage Act 1995 and the Planning and Environment Act 1987, but the problems here can "cut both ways"; and

•

second, as we indicated at the hearing, our role in dealing with this appeal is to deal with the application before us rather than getting bogged down in debate or criticism regarding the processes that led to the granting of the Heritage Permit. Such debate may well be timely but is ultimately a political matter of statutory reform for another day.

12 We have formally set out further below what the "permit triggers" are here. At this stage, in relation to heritage matters, suffice to say that we indicated at the beginning of the hearing that (following the Orders of the Deputy President) the scope of our ability to consider heritage issues was constrained, but we would still be examining certain heritage matters such as the 8 Stokes Street property, the relationship of the proposal with the adjacent church which is also subject to a Heritage Overlay, and to what extent the new built form associated with the proposal would impact on more distant views of the Ozone Hotel and the neighbourhood character more broadly.

13 The combined (irregular) area of the subject land is about 3,437 square metres. To the west, the subject land abuts Hesse Street, which is the "main street" of Queenscliffe. Hesse Street is reached by exiting the rear of the hotel, walking west through what used to be the beer garden area, and then continuing through a relatively narrow strip of land to Hesse Street. Visibility through this strip is further restricted by large native trees from the adjoining church site, whose canopies substantially encroach into the airspace of this strip.

14 In relation to this section of Hesse Street, starting at the point where the subject land meets Hesse Street, there is a brick church building to the south, and two non-descript shop buildings to the north. The closest shop building is double storey, the one further away is single storey (they are used as a pizza shop and a fish & chip shop respectively). Where this eastern side of Hesse Street continues further north towards the end of the shopping strip, in very general terms:

•

the northern end of this section of Hesse Street is more intact and has some attractive period buildings; but

•

the southern end of this section of Hesse Street (ie closer to the subject land) has a less intact and somewhat "hard edge" character, due to the more contemporary (some might say utilitarian) appearance and associated signage of several of the shops.

15 By contrast, if one looks along this section of Hesse Street at the built form on the western side of the street, there is a very intact and highly attractive series of mostly period buildings.

16 Moving around to the frontage of the 8 Stokes Street property, to the west is the church hall, and to the east is initially a single storey dwelling, then the imposing "Lathamstowe" mansion. On the other side of Stokes Street, there is a large Uniting church at the end of St Andrews Street.

17 Continuing on to Gellibrand Street on the east side of the subject land, this is the primary frontage of the Ozone Hotel, with the former main public entrance being off Gellibrand Street. From Gellibrand Street and the public open space (Citizens Park) further to the east, there are extensive views of the hotel from a variety of vantage points. Further east again lies the foreshore.

18 The final perspective of the subject land is from the north, with the properties accessed off Gellibrand Street further to the north being residential properties. To the north of the rear of the hotel is the rear of the other neighbouring commercial properties which face on to Hesse Street. The main views of the hotel from the north are when one walks or drives along Hobson Street further to the north and looks back (over the top of the intervening residential properties) to the higher parts of the hotel.

19 During our drive around various other parts of Queenscliffe, it is evident that in some street locations the hotel is largely screened by other built form, whereas from certain spots (eg looking from the front of the Council offices) there is at least a good view of the top section of the hotel. However our walk and drive around the locality overall reinforced that the primary and best viewing point for the hotel remains Gellibrand Street.

20 The hotel itself was built circa 1881 and is listed both under a Heritage Overlay and also on the Victorian Heritage Register. It is a three storey, very handsome building in an Italianate style. Curiously, there is a small single storey dwelling occupying part of what would otherwise be the front yard area of the hotel, facing Gellibrand Street. One practical result is that the balance of the hotel's front yard area is quite modest, and the more significant open spaces associated with the hotel are on the western side behind the hotel (notably the former beer garden area).

21 From our inspection of the hotel interior and exterior areas, the interior presents as mainly being in good and relatively original condition. We were intrigued by the "Marie Celeste" feel to the conference room, dining room and bar area, with all of the eating and drinking supplies and equipment still in place as if the hotel had closed the previous day. The exterior of the hotel showed much more evidence of requiring upkeep and maintenance, and in a few cases (eg the top of the tower) more sensitive use of materials.

22 The period building at 8 Stokes Street we understand has in its recent past been used as an office and for a dentist. Its interior has since been refurbished and it is now used as a 4-bedroom dwelling which is apparently available for use as holiday accommodation. It has a relatively narrow side driveway, a rear wooden deck and an attractive, well landscaped rear yard. One feature of this back yard is the very high brick fence associated with the Lathamstowe property further to the east. From our inspection, the inside of the building is in good condition.

23 Given that the proposal has different aspects to it affecting different parts of the site, it is useful to set out below the summary of the proposal taken from Ms Rigo's statement of evidence:

In summary, the proposal comprises the conversion and additional development of the Ozone Hotel site for both residential and retail purposes. The proposal includes the following key elements:

•

Ozone Hotel Apartments - Renovation/refurbishment of the interior of the existing Ozone Hotel for 8 dwellings, including demolition of the rear wing of the building.

•

Garden Apartments - Use and development of a two storey building to the west of the site (at the rear of the hotel) which will contain, at ground level, an eight space car park with two dwellings at first floor level.

•

Hesse Street Building - Use and development of a two storey building adjoining Hesse Street which will contain a shop at ground level and dwelling above with a single car parking space to the rear.

•

Stokes Street Cottage site - Retention of the existing building fronting Stokes Street and conversion to a dwelling. An eight space covered car park is proposed to the rear (north) of the existing dwelling to serve the development (in conjunction with the Garden Apartments car park).

•

Seventeen car parking spaces are proposed to be provided in total, with 4 dwellings within the Ozone Hotel building being allocated two spaces, and the all remaining dwellings (including the Stokes St cottage) and the shop, allocated with one car parking space.

The proposal includes a landscaped communal pool area at the rear of the Ozone building, communal rubbish storage area and a covered walkway from the car parking areas to the Ozone building.

All apartments are served with decks and service yards at ground floor or balconies as private open space.

I am aware that one change has been made to the proposal since public notice of the application was given. This change involves the provision of a permanent public interpretive display located to the north of the main pedestrian access point along the Gellibrand Street frontage. The display will outline the history of the Ozone Hotel and was included in response to concerns raised by objectors relating to the loss of the public function of the Hotel.

24 Otherwise, we note that some significant features of the proposal are that:

•

there will be no on-going public access to any part of the hotel;

•

there will be the demolition of various non-original parts of the hotel built fabric (such as the kitchen building to the west of the dining room), and the reinstatement/improvement of various features of the hotel (eg the top of the tower will be more appropriately re-clad and some of the dining room windows will be reinstated); and

•

the new mezzanine level proposed in the dining room will be engineered so as to be readily capable of being dismantled at a later stage without impacting on the relevant walls of the dining room.

25 The core section of the subject land on which the hotel is located is zoned Residential 1 under the Queenscliffe Planning Scheme ("the Scheme"). A permit for multiple dwellings is required under this zoning, with ResCode (Clause 55 of the Scheme) being applicable.

26 The balance of the subject land (ie the Hesse Street and Stokes Street frontages and the former "beer garden" area) are all zoned Business 1. Under this zoning, the proposed shop use is as-of-right and the only proposed dwelling use requiring a permit is in relation to the 8 Stokes Street building.

27 The relevant Overlay controls are the Design and Development Overlay Schedule 1, the Heritage Overlay Schedule 7 (Hesse Street Commercial Urban Conservation Precinct) and the Heritage Overlay Schedule 22 (42 Gellibrand Street - Ozone Hotel).

28 Clause 52.06 of the Planning Scheme is relevant in terms of the proposed car parking arrangements.

29 In relation to the State Planning Policy Framework, the relevant policies include Clause 11.01 (Introduction), Clause 12 (Metropolitan Development) Clause 14.01 (Settlement), Clause 15.11 (Heritage), Clause 16 (Housing), Clause 17.04 (Tourism), Clause 18.02 (Car parking) and Clause 19.03 (Design and built form).

30 With respect to the Council Municipal Strategic Statement, Clauses 21.03, 21.04 and 21.05 are relevant in terms of Council's strategic vision for Queenscliffe, key land use influences and objectives/strategies/methods.

31 Other relevant policies in the Local Planning Policy Framework include Clause 22.03 (Heritage Policy) and Clause 22.04 (Urban Character Policy).

32 One of the more complex features of the hearing was understanding the particular permit triggers in question, given the range of planning controls and the irregular nature of the subject land (which connects with three different streets and is affected by two zones and multiple overlay controls). In this regard, it is convenient to set out below the helpful outline of the permit triggers from Ms Rigo's statement of evidence:

I note that the eastern half of the site (including the hotel building fronting Gellibrand Street) is located within the R1Z, and pursuant to Clause 32.01 of the Planning Scheme a permit is not required for the use of land as a dwelling

Pursuant to Clause 32.01-4, a permit is required to construct two or more dwellings on a lot and therefore the internal reconfiguration of the Ozone Hotel requires a planning permit. The development must also meet the requirements of Clause 55.

The western portion of the site is located within the BIZ including the undeveloped rear portion of the Hotel site which fronts Hesse Street and the existing single storey weatherboard building fronting Stokes Street.

Pursuant to Clause 34.01 of the B1Z, a permit is not required for the use of land as a dwelling, as long as the use meets the condition with regard to the frontage of the building. The proposed Garden Apartments meet the relevant condition.

A permit is required for the use of the building at 8 Stokes Street for a dwelling, given the proposal involves an existing building with a frontage to Stokes Street greater than 2 metres.

I note that a permit is not required for use of the land fronting Hesse Street for either a dwelling or shop as both uses, as proposed, meet the conditions set out in the Table of Uses in Clause 34.01-1. The dwelling component is situated at first floor level, while the shop is at ground floor level and there is no maximum leasable floor area identified within the schedule to the zone.

A permit is required for buildings and works pursuant to Clause 34.01-4 in relation to the development of the proposed Hesse Street shop and apartment, Garden Apartments and car parking areas.

I note that decision guidelines contained within B1Z require consideration to be given to Clause 55 of the Planning Scheme However, unlike the RIZ, it is not a mandatory requirement for the proposal to meet the objectives of Clause 55. Nevertheless, a Clause 55 assessment for the proposed garden apartments, together with the Ozone apartments has been prepared and forms part of this statement (Appendix 2).

A permit is not required to carry out routine or preventative maintenance works to existing structures.

A permit is required for all other buildings and works, including a front fence.

DD01 also outlines a series of requirements relating to the use and development of land which will be addressed within the key issues section of my statement.

In accordance with the provisions of the Heritage Overlay (Clause 43.01-3) of the Queenscliffe Planning Scheme, a planning permit is not required to develop a heritage place which is included on the Victorian Heritage Register if a permit has been granted under the Heritage Act 1995. HO22 (Ozone Hotel site) is included on the Victorian Heritage Register under the Heritage Act 1995.

Permit No. 9191 was issued by Heritage Victoria on 23 May 2005 for the redevelopment of the Ozone Hotel site.

A planning permit is therefore not required to redevelop the Ozone Hotel and Hesse St site (being all the land in HO22) under the Heritage Overlay.

A permit is required under the Heritage Overlay for the demolition of the ramp and buildings and works at 8 Stokes Street given this property is affected by H07 relating to the Hesse Street Commercial Urban Conservation Precinct, and does not form part of the registered site.

33 To this we add the need for a permit to reduce the standard carparking requirements under Clause 52.06 for a shop and dwellings in the Business 1 zone. A permit is also required to waive the requirement for a loading bay under Clause 52.07.

34 Our consideration of the merits of this appeal over the balance of this decision is based on the various permit triggers outlined above.

35 We will not repeat the submissions of the parties but concentrate on what we see as the key issues, particular given that copies of the written submissions are retained on the Tribunal file (along with the various tendered photos, plans and other materials).

36 Before turning to the key issues, we acknowledge that there was considerable discussion at the hearing about the extent to which we can into account heritage matters.

37 In the case of three of the four key elements of the development, being the hotel building, garden apartments and shop/dwelling in Hesse Street, we again affirm that our ambit of discretion in relation to heritage matters is limited to a consideration of those heritage characteristics in neighbourhood character terms. These considerations are based on the relevant provisions of the DDO1 as distinct from the Heritage Overlay (HO122) itself, the latter whose provisions we simply cannot consider given the issuance of the Heritage Permit by Heritage Victoria for these three key elements of the proposal.

38 The fourth element, the dwelling at 8 Stokes Street, being within a separate Heritage Overlay (HO7) and thus excluded from the Heritage Permit, is on the other hand, capable of consideration under the terms of the Heritage Overlay in addition to the DDO1.

39 Notwithstanding, we observe that the nature of this proposal is such that the elements with the greatest potential for visual amenity impacts are the garden apartments and shop/dwelling in Hesse Street. In this context, we think an important question is whether these elements have a contemporary form and design that is sufficiently out of character with the locality to justify the refusal of the proposal, with particular reference to the requirements of the DDO1. In forming our view, we are mindful of the need to consider the proposal's impact upon an observer's visual appreciation and views of the hotel from the surrounding area.

40 We also accept that the siting and design of these elements, particularly their relationship with the hotel building itself give rise to questions as to whether they achieve an appropriate planning outcome in urban design terms without constituting an overdevelopment of the site.

41 In addition, there are other planning issues which require consideration but where we consider the merits of the proposal to be more straight forward, at least with appropriate permit conditions and/or design modifications, being:

•

the level of broad policy support for the creation of the new dwellings and a shop;

•

car parking, access and traffic;

•

external and internal amenity issues such as overlooking and adequacy of private open space.

42 We shall deal with these more straightforward planning issues first, then return to the more difficult neighbourhood character and overdevelopment issues.

43 Putting to one side the micro-issues of the form and extent of the proposed alterations and new built form, and concentrating more at a macro-level on the proposed dwellings and a shop, we consider that (at this macro level) the proposal is consistent with the relevant local and state policies.

44 In relation to the proposed new shop facing Hesse Street, this is consistent with the purposes and decision guidelines of the Business 1 zone, and the general policy objective of having active street frontages in commercial/retail areas such as Hesse Street.

45 It was common ground at the hearing that a key strategic issue for Queenscliffe is a declining population, together with the more general trends of an aging community and smaller average household sizes. The proposed new dwellings create the opportunity for more local residents and provide greater housing diversity in the locality. In addition, the new housing has the advantage of being located close to the heart of the township, consistent with urban consolidation principles and Melbourne 2030.

46 In relation to local policy and MSS references to Queenscliffe needing to maintain its distinctive heritage and culture, the proposal involves minimal external alterations to the existing hotel, at least when viewed from the primary aspect of Gellibrand Street.

47 We acknowledge that the objectors have strong views on what they regard as unacceptable consequential outcomes of the proposal, such as:

•

the loss of local jobs associated with the hotel operations;

•

the loss of the public's ability to enjoy the interior of the hotel, notably the dining room; and

•

the fact that the conversion of the hotel to dwellings will firmly end the previous situation where part of the marketing of Queenscliffe as a tourist destination was the Ozone Hotel as a landmark working hotel.

48 While we agree with the objectors that these are all important issues in a practical sense, where we differ is that:

•

regardless of our decision in this appeal, the fact is that the hotel has already closed to the public, with the associated loss of jobs and the loss of ability to market the Ozone Hotel as a working hotel;

•

the provision of an interpretive display in the front setback facing Gellibrand Street will allow passers-by to obtain an appreciation of the hotel's cultural significance;

•

when one reviews the MSS and local policies, there are no specific local policies promoting on-going public access to the interior of historic buildings like the Ozone Hotel, nor is there any specific local policy aimed at stopping the conversion of working hotels into dwellings;

•

the use of the hotel for dwellings does not require planning permission.

49 In summary, our role here is to make our decision with guidance from the relevant planning policies and planning scheme controls. While we sympathise with the concerns expressed by objectors about the loss of the hotel use given its contribution over many years to Queenscliffe's social fabric and local economy, the relevant local policies do not in any specific way reflect or support these submissions raised by the objectors.

50 In saying this, we are mindful of the matters set out in Clause 11.01 of the Scheme which remind decision makers of the need to:

...integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

51 In balancing conflicting objectives, we regard the external restoration of the hotel as an extremely positive outcome that just simply cannot be ignored. We are firmly of the view that restoration of this important landmark building will advance policy objectives which seek the long-term conservation of heritage assets for their enjoyment by present and future generations. In doing so, the hotel's contribution to the architectural richness of the township will be maintained and enhanced. Although the hotel use has historically provided a social and economic dimension which is clearly different to the current proposal, we see the physical conservation of the building as an outcome entirely consistent with policies (such as Clause 21.05-4) that seek to enhance sustainable tourism activity and the enhancement of the local economy.

52 The proposal involves the provision of 17 on-site carparking spaces. The planning scheme rates vary for the proposed dwellings given the site's partial location within a Business 1 and Residential 1 zone. Having regard to these zone variations, we note that 30 car spaces would be required for the various aspects of the proposal as follows:

•

8 spaces associated with the shop top dwelling, garden apartments and Hesse Street dwelling (i.e. 2 spaces per dwelling);

•

13 spaces associated with the dwellings within the hotel building (based on the resident and visitor parking rates under Clause 55 for 1, 2 and 3 bedroom dwellings);

•

8 spaces associated with the shop;

•

1 space associated with the 37sq.m office within the hotel.

53 In support of the proposed parking provision, it was Mr Fairlie's evidence that the 17 on-site spaces proposed should be allocated in the following way:

•

1 car space for 1 or 2 bedroom dwellings (7 spaces)

•

2 spaces for the four larger apartments in the hotel building (8 spaces);

•

1 space for the Stokes Street cottage;

•

1 space for the shop.

54 We are satisfied that the proposed number of parking spaces (allocated in the manner proposed by Mr Fairlea) would be satisfactory to cater for likely demand generated by the various uses in the majority of occasions. In relation to the dwellings (except for 8 Stokes Street) the number of resident car spaces per dwelling equates with the suggested ResCode rates. We are not overly concerned by the provision of 1 instead of 2 spaces for the 8 Stokes Street dwelling which has 4-bedrooms. Nor are we troubled by the need for visitors associated with the residential and shop use to park in the street. We are satisfied that the proposed parking arrangements will be satisfactory and will not result in any unreasonable overspill in nearby residential areas for the following reasons:

•

At present there are no on-site car spaces associated with any of the existing or former uses. We note for example that 20 lodging rooms were previously available for guests of the hotel.

•

Reliance upon on-street parking for visitors is we think appropriate for a shop use of the size proposed in commercial centres such as this where customers are likely to make multiple visits whilst at the centre.

•

We observe that on-street parking is available in Stokes Street immediately in front of No. 8 for occupants of this dwelling.

55 While we appreciate that on some occasions such as market days, there is a high demand for on-street parking in the area, we are of the opinion that the proposal strikes a reasonable balance between an efficient use of the site on one hand and the sharing of on-street spaces with other users, on the other.

56 We have excluded any requirement for carparking associated with the small office area within the hotel accessed from a landing as we are satisfied that this aspect of the proposal is ancillary to the dominant uses. From our inspection of this space, it offers limited internal amenity and is likely to be used infrequently and for administrative purposes associated with the complex.

57 In terms of the car park layout, Mr Fairlie's written statement of evidence indicates that "each car space has a minimum width of 2.6 metres wide by 4.9 metres deep, with a minimum aisle width of 6.4 metres". These are the dimensions specified under Clauses 52.06 and 55.03 (ResCode) in the Planning Scheme. He produced plans depicting turning movements for each car space. These show that although access to each car spaces is possible, in a number of cases (particularly car space No.'s 1, 9, 12 and 17), accessing arrangements are "tight", requiring multiple turning manoeuvres.

58 Upon our review and scaling of the plans showing turning manoeuvres subsequent to the hearing, we observe that the dimensions of car spaces and aisles do not correlate with those described above by Mr Fairlie. For example, the aisle width in the carpark beneath the Garden Apartments is 6m rather than 6.4m. Car spaces scale with dimensions of 2.4m x 4.6m. This might perhaps explain in part why access to various spaces is tight. While not fatal to this application, we will nonetheless require the plans to be properly dimensioned to reflect the Planning Scheme dimensions, unless otherwise to the Council's satisfaction. We also note the desirability of providing additional space for blind aisles (typically 1m) and an additional width of 300mm for door opening where car spaces abut a solid barrier (i.e. car spaces 1, 4, 5, 8, 9, 12, 13, 17 and 16). This may involve a slight redesign of some elements, such as the storage lockers and covered bin area to achieve the necessary dimensions. A slight reduction in the width of the landscape strip in front of the Garden apartments also seems necessary to facilitate access into car space No. 17. We are otherwise satisfied with the design and layout of the carpark.

59 In relation to the proposed access arrangements, we are satisfied that the driveway access from Stokes Street is appropriate. We think this offers a superior outcome than for example, access from Hesse Street as suggested by Ms Johnson. We acknowledge that the strip of land in Hesse Street adjacent to the fish and chip shop has traditionally provided vehicle access to the site. However, we would be concerned about the potential for increased conflict between vehicles entering and exiting the site and pedestrians walking along the footpath. The creation of an active frontage to pedestrian areas by placing the shop in this location is, in our view, entirely consistent with principles of orderly planning and the decision guidelines under the Business 1 zone.

60 There was some criticism of the driveway design which only allows one-way vehicle access. Whilst perhaps not ideal, we think, on balance that the arrangement will be acceptable. First and foremost, we make this finding on the basis of the desirability of maintaining the original heritage fabric of No. 8 Stokes Street and the benefits of using Stokes Street as opposed to Hesse Street (in terms of avoiding pedestrian conflicts). Secondly, this will be a low speed environment and a limited number of dwellings are to be served. We note that if necessary, there are opportunities for drivers to pull into the carport area or the east-west arm of the driveway in the event of an on-coming vehicle. Ultimately, we expect that driver courtesy and common sense will prevail in such situations.

61 In relation to traffic impacts, we are not persuaded that the amount of traffic arising from the site's redevelopment will place an unreasonable load on local streets or cause unacceptable amenity impacts upon neighbours.

62 Finally we consider that the size of the shop is such that a dedicated on-site loading bay is not warranted in this instance. Importantly, we are satisfied that there are adequate opportunities for delivery vehicles to park in Hesse Street.

63 We are struggling to see any material external amenity impacts arising from the proposed new central car park/dwellings, the new shop/dwelling and the conversion of the 8 Stokes Street building to a dwelling. The interfaces with other adjoining properties seem fairly benevolent, and the garden apartments (while double storey) has the benefit through its central location of being more removed from neighbouring properties.

64 Our main concern here is with the interface with the existing residential properties lying to the north of the subject land. In particular, there seems scope for inappropriate privacy impacts of the back yards of these northern properties, in terms of northern views out of the new dwellings in the upper floors of the hotel. However we consider that this can be adequately addressed in terms of suitable permit conditions dealing with appropriate screening of any upper west-facing windows or balconies in the hotel.

65 We will also require a lowering of Apartment 7's deck which is located adjacent to the meals room window of Apartment 3 so as to minimise overlooking between the two.

66 Mr Davis, who presently runs a gallery at the neighbouring Church, tabled plans of a dwelling associated with a planning application lodged some two years ago with the Council. The dwelling would be located at the rear of the Church. He submitted that the proposal has the potential to detrimentally impact upon any future dwelling at the rear of his site in terms of visual amenity and noise associated with the movement of pedestrians and cars on the review site. We find that we can give little weight to these submissions on the basis that the proposed development had not, at the time of our site inspection, come to fruition. Indeed we were advised that Council had not determined the application. Notwithstanding, we observe that this neighbouring site is also within a Business 1 zone. In such commercial zones, we simply note in passing that it is unrealistic to expect a level of amenity commensurate with that of a residential zone. We would therefore have difficulty refusing this application on this basis.

67 With respect to internal amenity issues, the main issue here seems whether there will be sufficient internal amenity for future occupants of those new dwellings within the hotel building. Our view here is that a commendable feature of the proposal is the generous size of the new dwellings, none of which could be described as "pokey". While it is true that some new dwellings in the hotel (notably those with ground level south-facing open space areas) will have their private open space areas overshadowed, we consider significant flexibility is appropriate here, in recognition of the Applicant having to work around the constraints of retaining the original sections of the hotel. In other words, we would be more concerned about internal amenity issues if the proposed dwellings were to be new purpose-built buildings. However, on balance we are less concerned about this issue in the context of the conversion of a historic hotel and the broader benefits we have identified in relation to the building's restoration and thus its on-going contribution to the public realm.

68 We turn then to the central issue on which this appeal turns, being whether the proposal is unacceptably out of character with the historic/seaside locality within which the subject land lies.

69 A good starting point here is the requirement of the Design & Development Overlay 1 ("DDO").

70 It is very clear that the DDO is seeking to protect and enhance what is seen as the distinguishing features of the Queenscliffe township, such as the many Victorian era buildings, the protection of shorter views to historic buildings and streetscapes, and so on. The Design Objectives also seek:

To ensure the height, form, mass, siting, style and materials of new development is responsive to the heritage qualities of the town of Queenscliffe.

71 There is a height limit of two storeys and no more than 8.5 metres above ground level, although there is also recognition that a "bottom up" approach to building design may make a shorter building appropriate. There are also set back, landscaping and front fencing requirements prescribed.

72 In summary, the DDO is providing Planning Scheme guidance that Queenscliffe is not the place where architects should be looking to "make a statement" with "look at me" style development. Rather, the intent is that new development in Queenscliffe has a form which is driven by and blends in with the distinctive existing character of the existing built form and streetscapes of Queenscliffe. This is to not to say that new development should simply seek to mimic existing architecture. But rather, we think a well mannered and simplified interpretation of those contributory heritage elements is warranted.

73 We refer to our explanation earlier in this decision of the more limited extent of the scope of our discretion in relation to heritage matters. We will begin by making some broader observations about the development's compatibility with the neighbourhood character including its heritage features before returning to matters of detailed design.

74 In this context, having considered the submissions of the parties, the heritage evidence of Peter Lovell, the relevant planning policies and controls and from our inspection of the site and locality, we find the proposal to be acceptable in neighbourhood character terms. We rely here on the following points:

•

we consider the evidence of Mr Lovell to have been credible and not significantly challenged by any of the cross-examinations;

•

we consider that the proposed new shop/dwelling facing Hesse Street will have no unacceptable impacts on the adjoining church native trees and church building (both of which specifically have protection under their own Heritage Overlay). In relation to the trees which overhang into the strip of land on which the proposed shop/dwelling will be located, we accept that the real heritage value of these trees seems constrained by them being circa 1970s native trees, without any obvious link with the much older church building. Furthermore, we see real weight to Mr Bissett's argument that the Applicant has inherent property law rights to trim these trees, to the extent the trees encroach on the airspace above land owned by the Applicant. In relation to how the new Hesse Street building (with a contemporary style, highlighted by its flat roof) will sit in close proximity to other buildings along Hesse Street which also are affected by a Heritage Overlay, we consider this section of the eastern side of Hesse Street to be less intact and already have a somewhat "hard edge" character. In this context, we see the proposed contemporary design of the new building as appropriate;

•

while the scope of our discretion is much broader in relation to the 8 Stokes Street property (which falls outside of the Heritage Permit), we consider the heritage issues for this property to be innocuous. There are no significant changes proposed to the built form of this building and there are no planning controls specifically protecting the back yard landscaping that will have to be removed as part of the proposal;

•

the views of the hotel from the primary viewing area of Gellibrand Street and Citizens Park are largely unaffected by the proposal;

•

although the new shop/dwelling may block some existing distant views of the hotel tower when looking across from other parts of the town further to the west or south-west of the subject land, these are fairly fleeting distant views which can already quickly "open" and then "close" according to where you are walking or driving. We do not see any reasonable basis for refusing the proposal simply due to impacts on these already limited distant views of the hotel tower;

•

we acknowledge that the most significant loss of view in relation to the hotel tower will be from the western side of Hesse Street, looking across the street and then up the narrow strip of land to the rear of the hotel. In other words, where this narrow strip currently allows a good view of the upper section of the rear of the hotel and a more limited view of the lower section of the hotel, this viewline will be blocked by the new double storey shop/dwelling. However ultimately we see this loss (while unfortunate) as acceptable, given:

s the significant distance from Hesse Street to the rear of the hotel;

s primary views of the hotel are from Gellibrand Street and Citizens Park;

s views from Hesse Street are to the less visually significant rear portion of the hotel.

•

We also rely here on the fact that the church native trees already substantially encroach into this viewline and only leave a very narrow view of the lower part of the rear of the hotel. In any case, one only needs to move two or three metres sideways when standing on the western side of Hesse Street, and the relevant viewline of the hotel opens up but then closes again (ie it is a very narrow viewline that will be lost).

Detailed Design and Over-Development Considerations

75 Turning now to our detailed design and overdevelopment assessment of the proposal, it is useful to break this down to the four different elements of the proposal.

76 As alluded to above, when the hotel building is viewed from Gellibrand Street (being the key public viewing area of the hotel), we are satisfied that there will be minimal visible changes to the external fabric of the building. Rather, the main points here seem:

•

the view of the proposed new balcony and stairs on the north side of the hotel, when looking across from Hobson Street (but bearing in mind there are already fairly unsightly metal stairs on the eastern side of the hotel); and

•

the view of the top of the proposed new lift will sit within the roofline of the rear of the hotel. We note that while the original application envisaged that the top of this lift would sit significantly higher than the gutter line of this section of the hotel roof, in responding to Heritage Victoria concerns, Mr Bissett indicated that the Applicant was volunteering that (assuming a permit issues) a new Condition 1 sub-clause could provide that the top of the lift shaft be no higher than the eave level of the existing building.

77 In summary, we are satisfied that these proposed alterations to the hotel building do not constitute an over-development of the hotel building nor an unacceptable visual result. Given the existing unsightly stairs on the northern side of the hotel, the proposed new stairs/balcony seem no worse a result and could in fact (with the use of sympathetic materials/colours) be an improvement on the status quo.

78 While we would have struggled to accept the original maximum height of the new lift (which was lampooned during the hearing as having a "rocket appearance"), we are satisfied that the top of the lift (when restricted to eave height in relation to the existing roofline) will sit fairly comfortably with the balance of the building and the locality. We rely here in particular on the fact that the top of the new lift will sit at the rear of the building, and we expect there will only be limited views of the top of the new lift from other vantage points in the town.

79 In a similar vein, we are satisfied that views of the roof top plant in the roof valley near the lift will be quite limited. We will however require appropriate permit conditions to confirm design details including screening measures and its pushing back as far east as possible (to minimise its visibility).

80 As we have previously said, it is also a "plus" for the proposal that it involves significant maintenance and refurbishment works of the exterior of the hotel building, such as more sympathetic materials for the cladding of the top of the tower. These works should give the hotel a "lift" in terms of its external appearance and help secure the long term protection of the condition of the hotel building (which in turn should help facilitate the long term contribution which the exterior of the building makes to the historic streetscape character of Queenscliffe, notably in terms of views of the hotel from Gellibrand Street).

81 In terms of the recreational features proposed at the rear of the hotel, most notably the lap pool, we note that its provision involves the removal of a substantial Smoothbarked Apple-Myrtle (Angophora costata) tree. Although Mr Patrick's landscape proposals entail replacement planting with 2 new Angophora sp. generally at either end of the pool, we doubt the practicality of this arrangement. In any event, we consider that the existing tree makes a valuable landscape contribution and is worthy of retention. We will consequently require deletion of the lap pool and retention of this tree.

82 We now move to the new building proposed for what was formerly the beer garden at the rear of the hotel. We understand that while initially there was some consideration of an extension of the main hotel building at the rear, the eventual design approach was to keep the existing hotel and the new building in this centre part of the subject land quite separate and distinct. In simple terms, this has been done by the proposal involving the demolition of the existing kitchen building and non-original bar area at the rear of the hotel, by the area west of the north wing of the hotel being instead used as an open terrace/pool area, and by the new central building being quarantined to the former beer garden area. Following this approach, the new central building is separated from the hotel building by a new walkway area and by a new pool.

83 The central building involves 8 car parking spaces at ground level, with cars entering this car park via Stokes Street, driving up a north-south driveway and then coming into the car park area via a roller door. A driver then wishing to move to the hotel building has an exit door on the east side of the central building, which it would appear involves moving around any car parked in the new car space No. 5 (a design shortcoming we have dealt with in the conditions). Obviously a driver living in a dwelling above would simply use the stairs to go upwards.

84 The level above the car park in the central building features two dwellings (apartments 9 and 10), which each have a north-south layout and two bedrooms. In terms of the different elevations of the central building, the east and west elevations are more subdued, with face brickwork at the lower level and painted weatherboards and a modest number of windows at the upper level. With the other two elevations, the north elevation involves the same "face brickwork" lower treatment but extensive central windows and two vertical windows on each edge of the upper level. The south elevation has more features again, consisting of:

•

the face brickwork and roller door at the lower level;

•

vertical windows on each edge of the upper level;

•

working inwards on the upper level, there are two "metal grill panels" which are an apparently vertical architectural feature; and

•

in the middle of the upper level two large, square shaped areas of glazing. The balance of the upper level is weatherboards.

85 In terms of our findings here, subject to the issue of the southern elevations which we discuss further below, we are satisfied that the garden apartments are acceptable. We rely on the following points in making this finding.

86 First, we accept that there is something of a pattern in Queenscliffe of prominent historic buildings having significant open space around the front or primary viewing area of these buildings. We are thinking here in particular of the adjacent church building on Hesse Street and of the Lathamstowe mansion now used as a B & B, both of which have large open garden areas when viewed from their frontage.

87 Because of this pattern, we would have been very cautious had this proposal involved the in-fill of any part of the front yard where the hotel faces on to Gellibrand Street. However the reality here is that the central building is proposed behind the hotel, in the former beer garden area. While it is not hard to imagine this beer garden area being a terrific location for a cooling ale on a hot day, the beer garden is a more utilitarian area largely hidden from the public realm, with only limited visibility from Hesse Street along the narrow strip of land alongside the church. The land to be occupied by the garden apartments has its primary relationship with the rear of commercial properties to the north and west. Given that we regard this interface as the least sensitive and this "limited visibility from the public realm", we are satisfied that:

•

a two storey building of a contemporary design can be constructed in the beer garden area without this constituting an over-development of the subject land; and

•

there will only be fleeting glimpses of the garden apartments from the north and west, and the new central building will not be visible from Gellibrand Street at all. Subject to our comments below about the more prominent views of the south elevation of the new building, we accept that the garden apartments will be largely hidden from the public realm and hence have minimal impact on the distinctive neighbourhood character of Queenscliffe.

88 Second, the garden apartments satisfies the DDO requirement of being limited to two storeys.

89 Third, subject to our comments about the south elevation, we consider the use of materials for the new central building (ie lower level face brickwork and upper level weatherboards) to be a sensible and sensitive design response to the existing built form in the locality.

90 Fourth, we endorse the design approach taken of having a "stand alone" central building rather than a contemporary extension of the west side of the main hotel building. Based on our inspection of the site, we are satisfied that the siting of the garden apartments in the location proposed is a logical spatial solution. We agree that keeping the "old" and the "new" built form quite separate is a positive feature from the perspective of maintaining an appropriate setting and context for the hotel. We regard this outcome as consistent with one of the design objectives under the DDO1, namely:

To ensure that an appropriate setting and context for buildings, sites or objects listed in the Heritage Overlay.

91 We are also satisfied that the setbacks from the north and west boundaries are acceptable and will allow a reasonable landscaping result at this commercial interface.

92 We return now to the issue of the proposed southern elevation of the central building. As we foreshadowed at the hearing, we have some reservations about the detailed design treatment of this façade. In particular, we have concerns about the large expanse of glazed panels and the lack of vertical expression associated with this elements. We also consider that the metal grille panels and horizontal balustrading are uncharacteristic materials in this historical context but which are used extensively on the façade.

93 Our concerns here are compounded by the following. When we walked around all four sides of the subject land, our strong impression was that the new central building (while largely screened to the west, north and east) will be quite prominent when viewed from the other side of Stokes Street, in standing in front of the Uniting Church building and looking north. In other words, we expect there will be a fairly prominent view of the southern elevation of the new central building when looking from Stokes Street across the top of the proposed new north-south driveway and the rear of the adjacent church site.

94 To put it in frank terms, our real concern here is that a person walking along Stokes Street will:

•

on the one hand be able to enjoy the historic and distinctive streetscape character of the locality, particularly if the person has come in off Gellibrand Street; but

•

on the other hand find jarring and confronting the view across to the extensively glazed southern side of the new central building.

95 Accordingly, our finding is that we regard the proposed southern elevation of the new central building as unacceptably out of character with the historic and more fine-grain character of Queenscliffe. We see the best way forward here as imposing an additional Condition 1 sub-clause requiring the Applicant (as part of preparing the endorsed plans) to re-design the southern elevation to a more muted design which better reflects the historic streetscape of Queenscliffe. We are thinking here of a more restrained design which deletes the "metal grill panels" feature and the large square shaped window area, and instead features a more fine-grain and muted appearance including narrower vertical style windows with proportions and spacing more appropriate for the historic context.

8 Stokes Street property/Carport Structure/Covered Walkway

96 We refer here to the proposed conversion of the 8 Stokes Street building to a dwelling and to the new car port to be located on what is currently the back yard of the 8 Stokes Street property. This car port will provide 8 car parking spaces. We have also considered the covered walkway running between the hotel and the south side of the garden apartments. We shall separately comment further below on that part of the covered walkway (i.e. the colonnade) on the south side of the proposed new shop/dwelling facing Hesse Street.

97 With respect to the use of the 8 Stokes Street building as a dwelling and the development of the covered walkway and the new car port, in all cases we see the new built form as being fairly innocuous and acceptable. To ensure an appropriate landscape outcome as suggested by Mr Patrick, we will however require deletion of the roof element over the walkway in favour of an open style arbour with climbing plants.

98 While we would understand if some local people find the removal of the existing attractive 8 Stokes Street back yard landscaping a disappointing result, there is no vegetation of particular significance warranting retention. We also rely on the fact that the conversion of the 8 Stokes Street building to a dwelling will involve minimal changes to that building and its use seems consistent with the more residential flavour of Stokes Street compared to Hesse Street.

99 While there was some debate at the hearing regarding the southern end of the new north-south driveway involving vehicles passing fairly close to a prominent existing street tree, we see the situation here as acceptable provided any new sealed areas are restricted to merely the footpath area. While there may be some degree of additional compacting of the soil around the prominent street tree, Mr Patrick considered the situation to still be in order and our inspection of the relevant tree during our view leads us to the same conclusion.

100 The last component of the proposal involves the new lower level shop and upper level dwelling facing on to Hesse Street.

101 At the ground level, the shop will be accessed from the front off Hesse Street, and there is a rear ground level entrance for the dwelling (which involves then heading up a set of stairs). At the rear of the shop is an ancillary office and adjacent to the rear entrance for the dwelling is a single ground level car park. Moving to the upper level, there is a two bedroom dwelling with the bedrooms at the western end and the living areas at the eastern end.

102 In relation to the elevations, on the south side is a large masonry wall with a render finish. The upper section of this wall is cantilevered over the bottom section along the southern line of the building, to create a pedestrian walkway/entrance underneath (i.e. a colonnade). This also involves the use of vertical steel columns along the southern boundary of this narrow section of the subject land, so that a person moving along the colonnade towards the hotel will have the wall of the shop on their left and the series of steel columns (and boundary fence) on their right. The project architect indicated that the columns are largely intended to be an interesting design feature, and that the combination of the poles and the walkway are aimed to provide articulation/softening of the view of the south side of this building when viewed from Hesse Street.

103 The eastern elevation of the building involves metal grills on the northern side as an apparent design feature, together with a large ground level window with translucent glazing and otherwise a rendered masonry wall. The upper level similarly is a combination of rendering and a significant area of glass. Most of the northern side of the building will be hard up against the adjacent existing shop.

104 The roof treatment of the building is essentially a flat roof. In relation to the frontage of the building, the bottom level will be dominated simply by a glass frontage. The upper level will have a galvanised steel balustrade and veranda frame, and a mixture of glass windows and rendered masonry. There will also be a canopy with canvas blind. Apart from the ordinary roof occupying the front half of the roof area, there is also a "metal deck roof with clear highlight glazing" occupying the rear half of the roof area.

105 We refer to our comments above regarding the nature of the streetscape on this section of Hesse Street, on the eastern side of the street.

106 In summary, our finding here is that notwithstanding the very contemporary style of this proposed new building, in this particular section of Hesse Street, the building is acceptable.

107 Our starting point here is the fact that this section of Hesse Street on the eastern side is already characterised by rather hard edge and non-descript more modern buildings, with the relevant businesses including a pizza shop, a fish-and-chip shop and an ANZ bank (with the associated somewhat gaudy signage). It is also important that many shops along Hesse Street are double storey and hence we consider that restricting this building to a single-storey shop would be an inappropriately timid design response that may look "stunted".

108 We accept that a key thrust of the relevant Planning Scheme DDO provisions and general policies is that new development should respect and enhance the distinctive and historic character of Queenscliffe. While we consider this thrust to be highly relevant and necessary for the more intact sections of Hesse Street, we consider that "the horse has bolted" in terms of trying to keep the built form on the eastern side of this section of Hesse Street intact and with a period feel. Rather, we consider this section of Hesse Street already has a more modern and hard edge streetscape character, where a new contemporary building of the type proposed (eg with a flat roof) can sit comfortably with the neighbouring buildings to the north.

109 While we accept that the new building will be of a very different style to the historic church located further to the south, this is not necessarily a bad thing in terms of promoting contemporary architecture that cannot be confused with older buildings. In addition, it is a "plus" for the proposal that the closest part of the new building is four metres from the closest part of the church, and that the ridge line and spires of the church are significantly higher than the height of the top of the new building. Hence we are convinced that the new building will not visually overpower or dominate the adjacent historic church.

110 We otherwise comment as follows:

•

as we have alluded to above, we consider the existing built form of Hesse Street (with many double storey period buildings) to create synergies with the new building being double rather than single storey;

•

while we acknowledge that the flat roof may be somewhat more noticeable because of the pitched nature of the roof of the adjoining shop to the north, the trade-off is that the flat roof will sit lower than the ridge line of the adjacent shop roof;

•

having a ground level shop promotes the policy goal of having interactive property frontages in an area zoned Business 1, and the use of extensive ground floor glazing seems appropriate in this context. The use of a mixture of rendering and vertical-shaped windows at the upper level facing Hesse Street is a good design approach given the upper vertical windows of the shop to the north, and the metal deck roof is set back an appropriately significant distance from the front boundary;

•

we acknowledge that there is uncertainty as to how effective the proposed walkway will be in terms of creating a more visually recessive southern elevation, in that we do not know over the longer term whether the fence on the boundary between this section of the subject land and the church will be wire or solid in construction. A solid fence here may in reality still create a somewhat "hard edge" visual result. On the other hand, while there is at least the possibility of a wire (ie more transparent) fence along this boundary, credit should be given for the design response here of creating the walkway and the use of the vertical steel columns, which we accept will add significant articulation, visual interest and at least some degree of recessing effect;

•

in relation to the "metal grill" design feature on the eastern end of the building, it will have face brickwork on its north and south side. As this feature will have limited visibility from the public realm, we are content for this feature to remain;

•

we have commented above on the loss of the view from the other side of Hesse Street of the upper part of the hotel building that will be caused by the new shop/dwelling. For the reasons already set out, we consider the loss of this narrow viewline does not in itself justify the refusal of the proposed Hesse Street shop/dwelling;

•

while we appreciate some or possibly all of the objectors may prefer that this narrow strip of land remain simply an open walkway generally open to the public, this is akin to "sterilising" this narrow walkway in terms of its development potential. Given that this would be a very harsh result for the Applicant, the only way we could see such "sterilisation" more validly being achieved (hypothetically) would be if some arm of government had previously committed to acquire at least this section of the subject land by compulsory acquisition, including fair compensation. Obviously this has not occurred here;

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while it is possible the construction of the walkway and new steel columns might impact on the roots of the adjacent trees on the northern edge of the church front open space, it is appropriate that we give this possibility less weight because we understand they are circa 1970s gum trees. In any case Mr Patrick's landscape evidence was that he did not envisage any significant impact on the long term viability of these trees provided appropriate tree protection measures are implemented (despite the need for substantial pruning).

111 Before finishing this decision, we wish to comment on the difficult issue of the desire of some sections of the community for public access to be preserved to historic buildings such as the Ozone Hotel where such public access has been available in the past. Certainly it was clear to us that the objectors who presented to us are passionate in their concerns about this proposal involving the loss of public access to the hotel, particularly the striking dining room.

112 However it also needs to be said that where historic buildings like the Ozone hotel have operated as a private business, then on-going public access to the building will usually be strongly linked to the ability of the business operating in the historic building to remain viable. In this case we were advised that the Applicant has already closed the hotel to the public due to commercial difficulties. While this reason was not substantiated at the hearing in any real way, part of Council's opening submission was that Council is grappling with problems caused by the demographic patterns of an aging local population and many local dwellings being used as "weekenders" (which in practice shrinks the permanent population of Queenscliffe).

113 Ms Rigo surmised that the introduction of the ferry service across the Bay has changed visitation patterns such that Queenscliffe has become popular as a day trip destination rather than a place for overnight stays. As a consequence, the demand for overnight accommodation in establishments like the Ozone hotel has, over time, lessened. Whatever the reasons, the reality is that privately run businesses are subject to the rigours of the free-market. This is despite such businesses often having a public and social dimension cherished by local communities.

114 The position put to us by objectors highlights the dilemma of conserving the original built form and public access dimensions of historic buildings versus commercial pressures. Other recent examples include the struggle by historic single screen independent cinemas to remain viable. In this regard, we understand that the Astor Cinema business is on the market and that the Westgarth Cinema business has recently been sold to a major cinema operator.

115 We cannot see any "silver bullet" to solving these tensions, and it is not the role of the planning process to interfere in the free-market. However, we do see a valuable role for any one or more of the three levels of government providing practical assistance or some form of partnership to assist businesses operating out of historic buildings with public access to stay viable, particularly where such businesses are fragile. This could take the form of relief from rates and/or taxes, low interest loans, heritage grants or practical assistance in terms of business management and marketing the business to take advantage of the heritage assets.

116 The potential benefit here is in taking a proactive approach of seeking to avoid such businesses becoming commercially distressed, rather than only intervening when the business is already in distress and it may be too late. The positive scenario here is that such assistance or partnerships assists businesses operating out of historic buildings to remain viable long term, which in turn can have the public benefit of ensuring long term public access to the historic building.

117 We recognise that most or perhaps all of the initiatives we have mentioned here are not new ideas. Our point is more that for such initiatives to be effective, there needs to be an appropriate commitment to them, particularly in terms of the available funding levels, and there needs to be a good level of public awareness of the practical assistance that is available. Noting that there was no discussion at all during our hearing of the potential role of these types of initiatives, it would appear that a lot more can be done to promote the goal of maintaining public access to historic buildings. It seems unlikely this goal will be achieved simply by hoping that private owners of historic buildings will philanthropically choose to retain public access arrangements when facing significant commercial pressures.

118 The suggestions we raise here, are however part of a bigger picture that are not directly relevant in the current context of our need to consider the appropriateness of this proposal with guidance from the controls and policies in the Planning Scheme. While the cessation of the hotel use clearly signals the end of an era, the truth of the matter is that the planning process cannot compel an existing or pre-existing use to continue. Most importantly though, we conclude that the proposal before us will ensure that this building will remain as an architectural icon of Queenscliffe and a viable element of its physical and visual character.

119 For the reasons set out above, we consider that the proposal is deserving of approval, and we have made orders to this effect. We consider the key issue to be whether the proposal would be compatible with the unique seaside heritage character of Queenscliffe. We have found that the proposal is an appropriate design response that has taken sensible advantage of the opportunities presented by the site and most importantly involves the restoration of an iconic building.

120 Our approval of the proposal is subject to numerous permit conditions. Apart from those standard conditions, we have included a number of new conditions which pick up various design improvements discussed during the hearing and/or that we consider should be incorporated.