Oxwood Holdings Pty Ltd v Yarra CC [2001] VCAT 2223 (31 October 2001)

Planning List; Application Under Section 79 of the Planning and Environment Act 1987; Five Storey Residential Building with Two Levels of Car Parking; Yarra Planning Scheme

Date of Hearing Friday 1 June, Tuesday 3 July and Monday 27 August 2001

Medium Neutral Citation [2001] VCAT 2223

The order of the Tribunal is that a permit must not be granted to demolish the existing structure on site and construct a new five storey building with two levels of car park basement in accordance with Application 00/1340.

Mr David Vorchheimer, Planning Advocate, appeared for the Responsible Authority.

Mr Adrian Finanzio of Counsel, by direct appointment, appeared for Ms Yvonne Allinson and Ms Yvette Yeates, respondents/objectors, and called Mr Alan Willingham, Architectural Historian and Conservation Architect and Mr Shayne Linke of Contour Consultants (Australia) Pty Ltd as expert witnesses.

Mr Geoff Harders appeared in person as respondent/objector.

Ms Roz Hansen, Principal of Hansen Partnership Pty Ltd appeared for the applicant and called Mr David Bick, Architectural Historian and Conservation Architect as an expert witness. On Day Three, Mr Russell Symons, Traffic Engineer of Ratio Consultants was called as an expert witness.

Application under Section 79 of the Planning and Environment Act 1987 for the failure to grant a permit within the prescribed time.

Two basement car parking floors and five apartment floors.

The land is located in a Mixed Use Zone with a Heritage Overlay under the Yarra Planning Scheme.

1. The proposal is inconsistent with the provisions of the MSS, Yarra Planning Scheme and the Development Guidelines for Heritage Places.

2. The proposal would adversely affect the significance of the heritage place and heritage places.

3. The bulk, scale and height of the proposal would detrimentally affect the character of the streetscape and adjoining buildings.

4. The basement car parks would not provide adequate and convenient parking for residents and visitors.

5. The proposal would cause unreasonable loss of amenity as a result of building bulk, loss of sunlight and daylight to adjoining properties.

6. The proposal has poor internal amenity and inadequate private open space for some dwellings.

1. This application is one brought by a permit applicant against the failure of Yarra City Council to grant a planning permit within the prescribed time for a five storey residential building with two levels of car parking at 18-22 Peel Street, Collingwood.

2. I am including copy of my reasons included with the Tribunal's order dated 6 July 2001 as an explanation of the matters considered on Day One, Friday 1 June 2001 and Day Two, Tuesday 3 July 2001:

"2. On Day 1 of the hearing, submissions were made on behalf of the Responsible Authority by Mr Vorchheimer and the Respondents by Mr Harders. Mr Finanzio was part way through his submission but submissions by his experts, Messrs Willingham and Linke were presented.

3. Prior to setting the date of a second day of hearing, the Tribunal indicated some initial concerns, since the Applicant had not presented its case, about the carpark layout, the roller shutter access, the interfaces of the proposed building to its neighbours to the north and east and treatment of the plinth. It was verbally ordered that the next day of hearing be Tuesday, 3 July at 9.00a.m.

4. Further, any new material prepared by the Applicant on which it hoped to rely, was to be circulated by 26 June with any comments from Council and Objectors by 29 June 2001.

5. On Day 2 of the hearing it was noted that the Applicant, after obtaining expert advice, redesigned the carpark and made other modifications to the plans, which were said to take some account of comments by various of the experts at the Day 1 hearing. These modifications were distributed on the 26 June 2001 to the parties in line with the verbal order on 1 June 2001.

6. Both Mr Vorchheimer and Mr Finanzio were concerned that the hearing should not proceed on Day 2 because they and/or their experts had not had time to consider the modifications made, which they believed warranted such consideration.

7. Ms Hansen suggested "a way forward" was for the Applicant to make an out of usual order presentation on the plans now prepared, whether or not the plans were substituted, as she had her submission and experts ready to go. Her proposal included bringing back her experts for cross examination at the next day of sitting, if required.

8. Both Mr Vorchheimer and Mr Finanzio were seriously concerned that the case should not proceed further until all parties had had proper time to consider the amendments.

9. The Tribunal agreed that proper procedure required an adjournment to allow full consideration by the parties of the amendments. I then temporarily adjourned this hearing while the parties considered a suitable day for resumption.

10. The date for continuation of the hearing was set for Monday, 27 August 2001 at 9.00 a.m.

11. Ms Hansen sought leave to substitute amended plans for those that were considered at Day 1 of the hearing. There was agreement to this course and I allowed the substitution.

12. The substituted plans are numbered - TP01/b, TP02/b, TP03/b, TP04/a, TP/05D, TP06/D, TP06/b, TP07/b as well as a coloured perspective and elevations. On plans displaying options the Applicant will clearly nominate which option is preferred by the Applicant.

13. The Applicant shall circulate the plans to all parties to these proceedings including the Victorian Civil and Administrative Tribunal proceedings within 2 days. Experts' reports shall be available from and to all parties by 13 August 2001."

3. On Day Three, Monday 27th August 2001, as preliminary matters:

(a) Ms Alison Green sought permission under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to be joined as a party having recently purchased commercial property at 68 Oxford Street intended for residential use. Since the application for the planning permit for the subject development was lodged 1st November 2000, Ms Hansen submitted that anyone purchasing property nearby should have made the necessary enquiries, she objected to Ms Green being heard and in any case other parties had similar concerns which are to be or have been heard. I agreed that her application was late and decided in the circumstances she would not be heard.

(b) Mr Vorchheimer said that the heritage adviser was unavailable for cross-examination but had provided additional comments dated 17 July 2001.

4. As already noted, submissions at the first day of hearing were made by Mr Vorchheimer on behalf of the Responsible Authority and Mr Harders on his own behalf. Mr Finanzio was part way through his submission and his experts Messrs Willingham and Linke had made submissions.

5. On Day Two, procedures were put in place for Day Three with revised drawings and submissions.

6. On Day Three, the Tribunal heard revised submissions from the parties and experts who had pre-circulated their submissions.

7. Mr Vorchheimer listed the changes made in the amended plans as follows:

"* The redesign of the basement car parking levels, including a reduction in car parking spaces from 53 to 48, the relocation of the lift well and fire stairs further north, a decrease in size of bin enclosure, the inclusion of bicycle parking, and the deletion of one vehicle entry point along Peel Street;

* A re-configuration of the layouts of all floor levels to correspond with the relocation of the lift well and fire stairs;

* The increase in void area above the pedestrian entry along Oxford Street at first and second floor levels from 1.2 metres to 3.35 metres;

* The redesign of Unit 18 (north-west corner) at second floor level, including the inclusion of an additional bedroom, re-configuration of the balcony area and the locating of living areas at third floor level;

* The decrease in setback of Units 22 and 23 from 2.2 metres to 2 metres along the Peel Street frontage at third floor level;

* The (south-west) corner element of Unit 21 set in 2 metres from both the Peel and Oxford Street frontages at third and fourth floor levels;

* The introduction of a 2 metre wide balcony area at the south-west corner of the third floor level;

* The setback of Units 27 and 28 from the eastern boundary increased from 5.135 metres to 5.4 metres;

* The relocation of Unit 26 from the north-west corner of the fourth floor to the south-east corner, adjacent to Peel Street;

* The setback of the fourth floor level at the north-western corner by 6.25 metres from the northern property boundary;

* The decrease in setback of the fourth floor level to the eastern property boundary from 13.4 metres to 6.6 metres; and

* The decrease in the setbacks for Units 24 and 26 at fourth floor level, from the Oxford Street boundary.

It is noted that the plans circulated to the parties by the applicant on 11 July, 2001, in accordance with the Tribunal's order included a number of additional minor modifications to the substituted plans, these include:

* The increase in width of the ramp from upper to lower level basement car park from 5 metres to 5.5 metres;

* The reduction in width of the pedestrian access adjacent to car space 20, on the upper level basement car park from 1.4 metres to 1 metre;

* The reduction in size of the bicycle storage area, adjacent to the lift-well at the lower level of the basement car park from 8.2m2 to 7.2m2;

* The setback of the south-eastern dwelling from the eastern property boundary increased from 6.4 metres to 6.6 metres;

* The omission of dimensions for the width of ramp on turn, at lower level of the basement car park; and

* The omission of dimensions on drawing TP07b - section BB, for the height of the ground floor above street level."

8. The Tribunal inspected the site and surrounds.

9. Mr Vorchheimer has described the subject site and surrounds as follows;

"The subject site is situated on north-east corner of Oxford and Peel Streets, Collingwood. The land is rectangular in shape and comprises of a 32.44 metre frontage to Oxford Street, and a 27.10 metre frontage to Peel Street, for a total site area of 879.12m2.

The land is currently occupied by a single storey building which abuts both street frontages and occupies approximately one third of the site area. The building has been used for the purpose of a hall, and has a 4 metre high brick façade to Peel and Oxford Streets, with a corrugated iron structure behind. Car parking is currently provided on the land, in an asphalted area at the northern end of the site. Two crossovers currently provide access to the subject site, one adjoining Peel Street, with the other off Oxford Street. The site has a slight slope to the east.

The subject land abuts the `Foy and Gibson' building complex to the north, which comprises of a 4-5 storey red brick building with parapet. This building is now used for a mix of residential and commercial purposes. The `Foy and Gibson' complex extends along much of Oxford Street. To the east, the site is adjacent to a row of two storey Victorian terraces with glass shop fronts. Land to the west of the subject land (north-western corner of Peel and Oxford Streets), is developed for a car park. On the south-eastern corner of peel and Oxford Streets, the land is developed with a two storey 1970's building used as a warehouse/factory. A two storey factory/warehouse building also exists on the south-western corner of Peel and Oxford Streets.

The scale of the surrounding area, with the exception of the `Foy and Gibson' buildings is generally two storeys.

The above context of the subject land presents a variety of opportunities and constraints which must be addressed in the layout, height, massing, materials and visual address of a development for the site. A development's response to this context is of even greater importance given the Heritage Overlay which affects the area and the historical value of the neighbouring `Foy and Gibson' buildings."

10. As previously stated the land is located within a Mixed Use Zone with a Heritage Overlay (Collingwood Slope Precinct Heritage Overlay (HO318)) and an Environmental Audit Overlay.

11. At Clause 32.04-1 of the Scheme, the purpose of the zone is expressed as:

"* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for a range of residential, commercial, industrial and other uses which complement the mixed-use function of the locality."

12. Clause 32.04-5 determines the matters that the Responsible Authority (Tribunal on review) must consider in addition to the decision guidelines at Clause 65, as appropriate, before deciding on an application included in a Mixed Use Zone. Such matters include:

"* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies; and

* The Good Design Guide for Medium-Density Housing, which does not apply to a development of five or more storeys, excluding a basement."

13. Clause 15.11 of the Scheme, deals with Heritage. It is the objective of planning:

"To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value important for scientific and research purposes."

14. Clause 16.02 - Medium Density Housing - has as the objective to:

"encourage the development of well-designed medium-density housing to improve housing choice, make better use of existing infrastructure and improve energy efficiency of housing"

15. Clause 19.03 - Design and Built Form has as the objective:

"To achieve high quality urban design and architecture that reflects the particular characteristics, aspirations and cultural identity of the community, enhances liveability, diversity, amenity and safety of the public realm, and promotes attractiveness of towns and cities within broader strategic contexts."

16. Clause 21 contains the Council's Municipal Strategic Statement (MSS) which provides the strategic planning framework for planning, land use and development within the City of Yarra.

17. The MSS notes that development within defined heritage areas and areas of established and consistent urban character, demand that particular attention be given to design in order to ensure it is respectful of existing streetscapes and neighbourhood character.

18. Clause 21.04 sets out the vision and strategic framework for Yarra. The objectives include enhanced liveability which "is to be achieved through amongst other things, ensuring that increasingly high standards of urban design and residential amenity are achieved".

19. Clause 21.05 sets out strategic elements for development within Yarra.

20. Element 1 - Urban Design Framework includes the following relevant objectives:

"* Streetscapes that maintain a consistent scale and rhythm where site consolidation or redevelopment occurs;

* New development which respects the `desired character' of existing neighbourhoods as defined by Yarra's Urban Character Strategy;

* Innovative contemporary architecture that is environmentally responsive, relates to the streetscape and is energy efficient; and

* Retention of important landmarks and icons which contribute to the identity of the City."

21. Element 2 - Residential Land Use - includes the following relevant objectives:

"* Preservation of the established urban character and strong `sense of community' associated with Yarra's distinct residential neighbourhoods;

* Enhanced levels of residential amenity including, a reduction in the impacts from traffic and business activities and high levels of community safety; and

* High quality design outcomes in respect to all new residential development, with emphasis on amenity for occupants and neighbours (adequate open space, privacy and daylight), energy efficiency in design, and a positive contribution to streetscape character."

22. Strategies to achieve these objectives include:

"* The creation of new residential opportunities within Mixed Use Areas (formerly marginalised industrial areas) where the conversion of existing premises and new residential development is encouraged; and

* Direct broad-scale residential development to Major Redevelopment Sites and Renewal Areas (selected arterial road frontages) to cater for demand in relation to innovative designs and higher densities, without compromising areas of established residential character."

23. Element 7 - Heritage Conservation - includes the following relevant objectives:

"* Conservation of places of aesthetic, archaeological, architectural, cultural, historical, scientific and social significance which reflect Yarra's historic development; and

* Retention and enhancement of the integrity of cultural heritage places."

24. Strategies to achieve these objectives include:

"Ensuring that our heritage places maintain their integrity through managing future development on and around heritage places."

"* To conserve Yarra's unique cultural heritage to ensure its future conservation and continued relevance to the community; and

* To retain significant view lines and vistas of sites of cultural heritage significance and to the low rise surrounding Victorian skyline.

The objective of these guidelines with relation to infill development is to ensure that new development respects the scale, height and setbacks of streetscapes of cultural heritage significance.

The guidelines set out that it is policy in relation to infill development to encourage design that:

* will not be confused with the original historic fabric;

* ensures that the original historic fabric remains in-tact;

* does not visually dominate an existing heritage place or street in terms of size, height and bulk from the surrounding street;

* considers the architectural integrity of the heritage place;

* reflects the particular rhythm, spatial characteristics and character of the surrounding historic streetscape; and,

* avoids blank walls at ground and upper floor levels when viewed from the surrounding streets.

The policy further encourages infill development that:

* does not obscure principal viewlines to heritage buildings or their features (such as verandahs, towers, porticos);

* does not obscure principal viewlines to existing or significant architectural features (such as verandahs, towers, porticos); and,

* respects the context of an adjacent contributory heritage building."

"The purpose of the Heritage Overlay (Clause 43.01-1) is:

* To implement the State Planing Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To conserve and enhance heritage places of natural or cultural significance.

* To conserve and enhance those elements which contribute to the significance of heritage places.

* To ensure that development does not adversely affect the significance of heritage places.

Pursuant to Clause 43.01 (Heritage Overlay), before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies;

* The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place;

* Any applicable heritage study and any applicable conservation policy;

* Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place;

* Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place;

* Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place; and,

* Whether the proposed works will adversely affect the significance, character or appearance of the heritage place."

26. Clause 45.03-1 requires a certificate of environmental audit to be issued for the land or a specialist environmental auditor must make a statement that the environmental conditions of the land are suitable for residential use (sensitive use).

27. This is a reference document in the Scheme which includes the subject land within Character Area 10 - Collingwood South. The area is identified as "an area recognisably Victorian in its origins, notable for the consistent brick-and-render `industrial' character of the Oxford Street area".

28. Contributory buildings in this area are the brick-and-render former industrial buildings in Oxford Street, Cambridge Street and Little Oxford Street north of Peel Street.

29. Guidelines provide the following design assistance:

"The guidelines applicable to this application include 2 - Activity Mix and Density, 4 - Position on the Site, and 5 - Building Appearance.

The objective of Guidelines 2 is to "relate the type of use and the intensity of activity to the desired character of the area".

The objective of Guideline 4 is to "relate the way the development is positioned on the site to characteristics of its surroundings".

The objective of Guideline 5 is to "relate the form of a building to the character of its surroundings".

* Building forms and styles - the highest quality design is encouraged from all site lines and is not necessarily limited to what is seen from the street. Proposals should complement the form of nearby `contributory buildings'.

* Materials - materials complementary to existing materials used in nearby `contributory buildings' should be used."

30. 7 March 1996 - Planning Permit No. 95/308 was issued for a five storey building with 20 dwellings and 30 associated car spaces. This permit lapsed on 7 March 1999.

31. 22 December 1999 - Planning Application 99/1798 lodged for demolition of the existing building and construction of a five storey building with two basements, 30 dwellings and 54 car spaces. This application was withdrawn on 1 November 2000.

32. 1 November 2000 - Planning Application 001340 lodged with the Responsible Authority. The application was advertised to the owners and occupiers of the neighbouring properties by way of signs on the site and mailed notices. Thirty-one objections were received with the following grounds of objection (summarised by Council):

"* Out of character with streetscape/heritage value of Oxford Street (Foy and Gibson buildings);

* Loss of Daylight/Overshadowing/Loss of outlook;

* Detract from homogenous character of Oxford Street;

33. The proposal was referred to Council's Heritage Adviser, who noted with reference to application plans that:

* "The Foy and Gibson buildings are listed in the Victorian Heritage Register. These buildings which are situated next to the subject site, have a strongly expressed end parapet, fire escape stairs and windows including string course band (dominant) between ground and first floor."

* "Heritage Victoria permits for the adaptation works to the Foy and Gibson buildings in Oxford and Cambridge Streets have aimed to maintain the buildings as intact individual buildings and as a group, making an evocative and visually powerful streetscape."

* "The dominance of the Foy and Gibson buildings in the streetscape is fundamental to the Precinct. The red brick context is of primary importance as are the parapets. A clear view exists to the Foy and Gibson building from Peel Street, and from Oxford Street south of Peel Street."

* "In Peel Street there are double storey shops in terrace groups, stepping down to Cambridge Street. The relationship to No. 24 Peel Street and other shops scale as well as size are also relevant."

* "The existing corner building on subject site is an appropriate building in the Oxford Street streetscape because of its industrial nature, materials, colour, simple expressions, and relatively low height. Similarly its appropriate in the Peel Street streetscape because its height is similar to the environs, and again its simple expression."

In relation to the proposed development Council's Heritage Adviser stated that:

* "The building should be lowered to a maximum height along Oxford Street of the second floor level window head of the adjacent Foy and Gibson buildings. The north boundary wall of he Foy and Gibson building should be retained as the visible element to south."

* "The Peel Street elevation should be lowered to a maximum height below the parapet of the adjacent two storey terrace building in Peel Street. The south face of the proposed building should step to a maximum height of the second floor level window head height of Foy and Gibson building,"

* "The garage door on the Peel Street façade should also be relocated away from the adjacent terrace building. The bay adjacent to terrace building in Peel Street should be solid face with any openings as punctuations."

34. Her comments with respect to the substituted plans are very similar although she regards the materials proposed in the north elevation options as being "appropriate".

35. Council's Engineering Department made an assessment of the car park and had detailed criticisms of it, the correction of which could result in improvements to the design.

36. 2 March 2001 VCAT received an application for review for the failure of Council to grant a permit.

37. 8 May 2001 - Council determined to advise the Tribunal that it would have issued a Notice of Refusal to Grant a Permit.

38. Ms Hansen has described the current proposal as follows:

"* Demolition of the existing building and structures on the site;

* The construction of a new five level building with two basements, comprising:

- 28 apartments - 19 two bedroom units and 9 one bedroom units;

* The basement carpark is accessed from Peel Street. Twenty-five spaces (18 in a tandem arrangement) are provided on the lower basement level, with 28 spaces (of which 16 are provided in tandem) plus a garbage collection area on the upper basement level. Six visitors spaces are also provided;

* The vehicle crossover on Oxford Street is to be reinstated, with vehicle access to the basement provided via the existing double crossover to Peel Street;

* Balconies, between 8 sq m to 17 sq m in size, are provided adjacent to the living room of each unit. Approximately 48.48 sq m of communal open space is provided on the east side of the third floor, adjacent to Units 13 and 23.

* Pedestrian entry to the building is provided from Oxford Street.

On Oxford Street, the building has a height of 11.5m on the boundary with an overall height of 17.25m. On Peel Street, the building is a minimum 12.2m high with a maximum of 17.2m. The building is articulated by way of setbacks and balcony areas in the following manner.

* eastern elevation - staggered setback between 0m and 3m

* east elevation - staggered setback between 0m and 3.435m

* southern elevation - setback between 0m and 2.2m

* eastern elevation - setback between 4.08m and 6.m

* eastern elevation - setback between 4m and 13.4m

* south elevation - setback between 0m and 2.05m."

39. Mr Finanzio highlighted the importance of the heritage overlay controls and in particular the unreasonable impacts upon the residents to the north with a blank façade so close to the boundary.

40. Ms Allinson and Mr Harders observed the consistency of one and two storey heights of buildings in Peel Street, the need to retain the dominance of the main heritage buildings as well as car parking and access problems.

41. There is little doubt that the Foy and Gibson complex in Oxford Street on the north side of the subject site, is of State architectural and historic importance as established in the Collingwood Conservation Study (1986) by Andrew C. Ward and Associates and supported by the National Trust, in its letter to the Historic Buildings Council dated 16 August 1989.

42. From the Heritage Act listings, its historical significance is described in the following terms:

"The former Foy and Gibson complex is of historical significance as a rate surviving major industrial establishment of the late 19th and early 20th Century. As early as 1906, it was described as `undoubtedly the largest factory in the Southern Hemisphere'. The complex employed 2000 people and was considered technologically advanced, ..."

43. The "complex is of architectural significance as an imposing and substantially intact example of late 19th Century industrial architecture and for its association with the eminent Melbourne architect, Williams Pitt, ..." "William Pitt was a respected architect with a great talent for distinctive industrial buildings".

44. Mr Willingham has provided ample evidence of the significance of the Foy and Gibson complex.

45. It is Mr Willingham's submission that while the subject site is located within the boundaries of Yarra Scheme Heritage Overlay HO318 and is included in the Collingwood Slope and Foy and Gibson complex boundaries, the land at 18-22 Peel Street has not been included in the area afforded statutory protection under the Heritage Act (1995). The Tribunal accepts this evidence.

46. Mr Bick notes with respect to heritage considerations, that the application needs to be considered principally in terms of its impact on that HO318 Collingwood Slope Heritage Overlay precinct. The precinct contains buildings including No. 68 to the north of the subject site on either side of Oxford Street which are former Foy and Gibson buildings and which are individually listed on the Victorian Heritage Register as H755, H896 and H897.

47. Mr Bick also notes that the two storey, "typical" nineteenth century buildings in Peel Street adjacent to the subject site are also part of the significance of the precinct, though "arguably" of secondary significance to the three dominant former Foy and Gibson buildings.

48. Of the subject proposal, Mr Bick says the "design reflects the character of the industrial buildings ... in a reasonably restrained modern style way ...". He says that the proposed building responds to its site by its red brick wall construction on both street frontages, arranged in bays reflecting the basic façade design of the former Foy and Gibson building but also the repetitive nature of the facades of the nineteenth century buildings in Peel Street. The set back third floor and fourth floor enclosed in a zinc type finished roof which respond to the site.

49. Mr Willingham said of the first proposal considered by the Tribunal that it will "adversely and unacceptably impact upon the existing architectural character and cultural heritage significance of the area ...".

50. The closeness of the proposal in the first proposal to 68 Oxford Street was regarded as "an intimidating gesture" and not acceptable on conservation grounds.

51. The existing free-standing setting of 68 Oxford Street should be maintained according to Mr Willingham.

52. The Council's Heritage Adviser notes that "the dominance of the Foy and Gibson buildings in the streetscape is fundamental to the precinct". The Adviser considered the development to be of excessive height, bulk and scale which is detrimental to the heritage and streetscape character of the Heritage Precinct. The development would visually dominate Peel Street and adjoining buildings in terms of height, size and bulk.

53. There is common ground amongst the heritage architects about the importance of the Foy and Gibson buildings.

54. Mr Bick could accept that it was not necessary for the Foy and Gibson building "to remain as dominating as it is now" since the buildings very large size and history provide their heritage value and therefore, could support the height and mass of the proposed building.

55. On the other hand the Council's Heritage Adviser thought that the top two floors, although recessed "would block from general views the south face of the significant heritage building. The presence of the freestanding building is dominated and its demonstration of the dominance of the F & G complex in the area would be further eroded".

56. While Mr Willingham expressed the view that the proposed development is "out of scale with its environs" and is "of excessive height and bulk and the mass of the proposed development, when juxtaposed against the free standing five storey building at 68 Oxford Street, serves to partially eclipse the dominating profile of this heritage place".

57. The Tribunal noted that the nearby buildings on the north side of Peel Street are generally two storeys in height and of varied architectural styles.

58. The Development Guidelines for Heritage Places at Clause 22.02 of the Planning Scheme applies for all development in Heritage Overlay areas.

59. A primary objective of the guidelines is "to retain significant view lines and vistas of sites of cultural heritage significance ...".

60. While the guidelines allow infill development that may be `contemporary', the design must avoid reproduction architecture and must not dominate the existing heritage places, but should "reflect the particular rhythm, spatial characteristics and character".

61. The Tribunal does not accept Mr Bick's submission with respect to the height and bulk of the proposal and is bound to take note not only of the expert evidence of the other two heritage architects but also the guidelines under Clause 22.02. The Tribunal finds that the proposal will appear to dominate the existing heritage place at 68 Oxford Street as well as the streetscape in Peel Street and will not reflect the particularly rhythm, spatial characteristics and character of the surrounds, significant view lines to the building will be lost.

62. The Tribunal finds the various horizontal lines, particularly the string cornice line on 68 Oxford Street should be respected in any new development on the site and would accept that the maximum height of the building should not exceed the window head height of the second floor (third level) windows to No. 68 Oxford Street. As recommended by Council's heritage Adviser the maximum height to Peel Street should not exceed the parapet height of the neighbouring nineteenth century building to the east for at least one bay length along the new south façade.

63. The car park should be recessed into the ground allowing the new ground floor to be close to footpath level along Oxford Street.

64. The new north wall of the building should not be closer to the existing north wall (which is to be retained) than 2.5m.

65. Mr Vorchheimer has noted that the dwellings in this proposal are each provided with an open space area varying in size between 7.6 sq m and 17.6 sq m and that due to site orientation, solar penetration to these spaces is limited. In fact those units orientated to the south will receive no direct sunlight. Open spaces less than 2m in width are less than appropriate.

66. Rooms with secondary natural light source will require careful design consideration to ensure that there is adequate amenity for occupants.

67. The Tribunal finds that the proposal to construct the subject building on the north property boundary was not only compromising the heritage importance of No. 68 Oxford Street, but also showed no regard for the occupants of No. 68 who required adequate set back to provide for daylight and minimise visual bulk as far as this was possible in this environment.

68. The revised car park design and Mr Symons' report have provided some reassurance that an adequate car park can be designed for this proposal.

69. However, the Tribunal finds that the proposal has not given sufficient regard to the Heritage Design Guidelines and these problems combined with the internal amenity problems, and finalising of the car park design require the proposal to be completely re-designed.

70. Therefore no permit shall issue for the present proposal.