Construct a building and construct or carry out works.

Brandon Zappia and Matthew Campbell, Town Planners of Hobsons Bay City Council

The partial removal of a front fence, and construction of a crossover and off-street car parking area

Application under section 77 of the Planning and Environment Act 1987 (Vic) - to review the refusal to grant a permit.

Clause 43.01-1 to demolish or remove a building, to construct a building and construct or carry out works on land to which the Heritage Overlay applies.

Clauses 11, 15, 43.01, 52.06, 59.07, 65, 71.02 and 72.04.

The land is an irregular shaped allotment with a frontage of 10 metres on the northern side of Railway Place, and an overall area of approximately 422 square metres. The land presently supports a single storey detached Victorian dwelling.

1. Brendan O'Loughlin (the 'applicant') seeks to review the decision of the Hobsons Bay City Council (the 'Council') to refuse to grant a permit for the part demolition of a front fence and construction of a crossover and car parking space on land at 48 Railway Place, Williamstown (the 'review site').
2. The Council's grounds of refusal are set out below.
   1. The proposal does not respond to the relevant decision guidelines listed at Clause 59.07-2 (Applications Under a Heritage Overlay) as follows:
      1. The proposal would adversely affect the significance, character and appearance of the heritage place.
      2. The proposal is contrary to the identified statement of significance in the 'Hobsons Bay Heritage Study' (2007, amended 2017), a policy document listed in Clause 15.03-1L-01 of the Hobsons Bay Planning Scheme.
      3. The proposal is contrary to local heritage policy, specifically Clause 15.03-01-1L (Heritage conservation) of the Hobsons Bay Planning Scheme.
      4. The proposal does not comply with the 'Guidelines for Alterations and Additions in Heritage Areas in Hobsons Bay' (2006), a policy document listed in Clause 15.03-1L-01 of the Hobsons Bay Planning Scheme_._
3. I have decided to set aside the Council's decision and direct the grant of a planning permit. Reasons for my decision were given orally at the conclusion of the hearing. What follows is an edited version of my oral reasons.
4. This being a VicSmart application I am guided by the decision guidelines at Clause 59.07-2 of the Hobsons Bay Planning Scheme. The relevant decision guidelines are set out below.

In assessing an application the responsible authority must consider as appropriate:

General

• The significance of the heritage place and whether the proposal will adversely affect that significance.
• Any applicable statement of significance, heritage study and any applicable conservation policy.
• Whether the proposal will adversely affect the character or appearance of the building or heritage place.
• Any relevant local heritage policy set out in the planning scheme.

• Whether the outbuilding to be demolished contributes to the significance, character or appearance of the building or heritage place.

• Whether the location, bulk, form and appearance of the proposed building or works will adversely affect the significance of the building or heritage place.
• Whether the proposed building or works will affect the health or appearance of a tree which is the subject of a Heritage Overlay.

• Whether the fence proposed to be demolished contributes to the significance, character and appearance of the building or heritage place.
• Whether the proposed fence, including its style, height and materials, is appropriate to the building or heritage place.

1. It is evident from these decision guidelines that an important starting point is an understanding of the significance of this heritage place. The review site is contained within Schedule 8 to the Heritage Overlay, which applies to the Government Survey Heritage Precinct. This precinct is provided with a lengthy Statement of significance. I have set out below the most relevant component.

Historically, the Government Survey precinct demonstrates the most important and prosperous phase in the development of Williamstown from the mid nineteenth to early twentieth centuries, which was directly associated with the development of the port and later influenced by the development of railways and associated industries. The early settlement of Williamstown and its importance as a port and defence facility also contributes to a broader understanding of the history of Victoria.

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

Aesthetically, while there are examples of unrelated postwar development within the precinct, as a whole, it retains remarkably intact and cohesive groups of nineteenth and early twentieth century buildings that are an integral part of the special character of early Williamstown. Key elements include:

• The distinctive street layout based on a series of intersecting grids, which illustrates prevailing attitudes towards town planning in the nineteenth century.
• Unusual or rare early building styles and types such as the basalt houses and the timber duplex houses with no dividing wall that are characteristic of this part of Williamstown but less common elsewhere in the metropolitan area.
• The major nineteenth century community and civic buildings, many designed by noted Melbourne architects, both individually and in key groups - notably in Electra Street and the former Market Reserve.
• The unifying effect throughout the precinct of groups of predominantly Victorian and Edwardian era houses with common or similar characteristics of design, siting and scale that creates cohesive and homogeneous streetscapes. Many are externally intact and others, although altered, still retain their distinctive form and siting and hence contribute to the precinct.
• The basic nineteenth century or early street construction and the remnant mature exotic street planting found in some streets that combines with exotic planting in private gardens to reinforce and enhance the period expression of the precinct.

1. The Council submits that the proposal to construct a crossover and off-street parking area is inconsistent with policy at Clause 15.03-1L-01 which states:

Discourage vehicle crossovers and off-street parking provision at the front of heritage places, unless these features were historically found in the street where the property is located and no suitable alternative exists.

1. They also submit that the proposal is contrary to an Incorporated document in the Hobsons Bay Planning Scheme, the Guidelines for Alterations and Additions to Dwellings in Heritage Areas in Hobsons Bay (Hobsons Bay City Council, 2006) where it states:

Vehicle crossovers and off-street parking areas can have detrimental impacts on both heritage places and precincts. They are generally not original features of heritage streetscapes and can result in additional hard surfaces and reduced landscaped nature strip and front garden areas.

Vehicle crossovers in front of properties and associated parking areas within the front setback of properties are discouraged in heritage areas, particularly contributory heritage places. If possible, vehicle access should be via existing Right Of Ways to the rear or side of a property to minimise the impact on the streetscape.

Vehicle crossovers and parking areas within frontages exist in some heritage precincts in Hobsons Bay. The existence of these facilities should not be used to justify additional inappropriate crossovers/ parking areas as incremental approval of inappropriate development can result in significant impacts to heritage streetscapes over time.

1. The Council submits that in accordance with this guidance, the proposed crossover and car parking area:
   1. Are not historically found in this street;
   2. Are discouraged under policy and the Incorporated document;
   3. Would result in further adverse impact to the character and appearance of the heritage place;
   4. Would detract from the significance, appearance and character of the building and precinct;
   5. Would obscure views to the contributory graded dwelling from the street; and,
   6. Would result in additional hard surfaces and reduced landscaping areas.
2. I am not persuaded by these submissions, and instead find that the proposed development is an appropriate response to the heritage place, having regard to the guidance from the Hobsons Bay Planning Scheme. I make this finding for the following reasons.
3. Firstly, the proposed crossover and car parking space would not impact any of the elements that comprise the significance of the heritage place. Relying on the Statement of significance, it is the early buildings and street layout of intersecting grids that provide the basis of the significance of this heritage place. The statement of significance does not refer to the absence of crossovers, the front garden spaces, or the absence of car parking on sites, as elements that contribute to the significance of the heritage place. To the extent that the Statement of significance refers to the homogenous streetscapes, the absence of crossovers is not a unifying element of this streetscape, due to the current prevalence of crossovers that have appeared over time in this street. Further, to the extent that the Statement of significance refers to exotic planting in private gardens, no such planting is to be removed or impacted for this proposal.
4. Secondly, the proposal would also not detrimentally affect the character of this heritage place. While the heritage place is a broad precinct, it is appropriate to carry out this assessment having primary regard to the component of the heritage place that is proximate to the review site. The character of this part of the heritage place is already dominated by crossovers. Of the 15 properties that have a frontage to Railway Place between Pasco Street and Parker Street, there are 13 properties with crossovers. The proposal that is before me would make it 14 of 15 properties in this part of the heritage place with crossovers. Further, the submissions filed by the applicant demonstrate that crossovers are a common feature in more distant parts of Railway Place. Clearly, crossovers already form a part of the character of the heritage place.
5. Thirdly, I acknowledge the discouragement for crossovers in the policy at Clause 15.03-1L-01 of the Hobsons Bay Planning Scheme. However, the policy provides such discouragement where no suitable alternative exists. As the review site is not a corner allotment, and does not have access to a rear laneway, there is no alternative in order to provide for on-site car parking. The applicant has stated that they need an on-site parking space to allow for electric vehicle charging. As no alternative exists for this to occur, the policy provides for a crossover to be established on the review site in these circumstances.
6. I also acknowledge the clear guidance in the Incorporated document that crossovers are discouraged, and the existence of other crossovers should not be used for justification. I have two observations to make about this guidance. Firstly, the Incorporated document discourages crossovers, but that does not act as a prohibition. Discretion to grant a permit prevails, and a contextual analysis is still required. Secondly, I read the statement of not using existing crossovers to justify additional ones, as applying in contexts where the number of existing crossovers are limited to an amount where they do not presently impact the heritage streetscape. As per my analysis set out earlier in these reasons, that is clearly not the case here. With just one other nearby property without a crossover, we have clearly passed the point sought to be avoided by the Incorporated document, of crossovers having an impact on heritage streetscapes.
7. Fourthly, in response to the other submissions put forward by Council I note the following:
   1. The proposed crossover and car parking space would be ground level elements that would not obscure views to the contributory graded dwelling on the review site. That is, no carport or other structure is proposed. While a parked vehicle may obscure views to part of the dwelling, the proposed car parking space is located to one side of the front elevation of the dwelling, reducing its impact to an acceptable level. Unobstructed views to the contributory graded dwelling will still be able to be gained in the streetscape.
   2. The extent of additional hard surfaces is minimal comprising an area approximately 2.4 metres wide by 5.9 metres long. The overwhelming majority of the front setback area will remain as a garden space, and as such the impact on the balance of hard paving and green space will be incremental.
8. Finally, I note that some minor alterations are proposed to the front fence to provide for a vehicular gate. These are not opposed by the Council, and I agree that the proposed design is sympathetic to the heritage place.
9. For these reasons I find that the proposed crossover and car parking space, as well as the alterations to the front fence, are an appropriate response to the Hobsons Bay Planning Scheme and the Incorporated document.
10. It therefore follows that I will set aside the Council's decision, and direct the grant of a planning permit subject to conditions. I will broadly adopt the conditions as circulated by Council prior to the hearing, but I will delete Condition 4 as drafted by Council, as I do not see the need to specify when the permit commences operation.

Construct a building or construct or carry out works.

Compliance with documents approved under this permit

1. At all times what the permit allows must be carried out in accordance with the permit and the requirements of any document approved under this permit to the satisfaction of the responsible authority.

Approved and endorsed plans - no changes required

1. Before the development starts, plans must be approved and endorsed by the responsible authority. The plans must:

(a) be prepared to the satisfaction of the responsible authority

(b) be drawn to scale with dimensions

(c) submitted in electronic form

(d) be generally in accordance with the plans that form part of the application.

1. The layout of the development must not be altered from the layout shown on the approved and endorsed plans without the written consent of the responsible authority. Unless specified in a permit condition, this requirement does not apply if an exemption is available under the Hobsons Bay Planning Scheme.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within three (3) years of the issued date of this permit.

(b) The development is not completed within five (5) years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

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