Victorian Civil and Administrative Tribunal|2013-02-26|Before: Ms J

Perkins Architects v Melbourne CC [2013] VCAT 210 (26 February 2013)

Section 80 of the Planning & Environment Act 1987; Melbourne Planning Scheme; Residential 1 Zone; Heritage Overlay; Grade 'B' building; Partial demolition; Alterations and additions; Heritage.

Perkins Architects v Melbourne CC [2013] VCAT 210

(a) the floor level of the roof deck in the north-west corner of the building reduced by a minimum of 350mm.

Mr C Taylor, Solicitor of Planning & Property Partners. Evidence was called from:

Mr B Raworth, Conservation Consultant and Architectural Historian of Bryce Raworth Pty Ltd.
Mr John McFarlane, Structural Engineer of McFarlane & Partners.

Mr M Friedrichson, Town Planner, and Ms J Lee. Evidence was called from Mr R Beeston, Conservation/ Heritage Architect of RBA Architects and Conservation Consultants.

Partial demolition and the construction of alterations and additions to the existing building.

Application under Section 80 of the Planning and Environment Act 1987.

Heritage Overlay - Schedule 3, East Melbourne and Jolimont Precinct (HO2).

Design and Development Overlay - Schedule 22, Yarra Park Area (DDO22).

Cl. 32.01-4 (construction of an extension to a dwelling if there is more than one dwelling existing on a lot).

Cl. 43.01-1 (demolition, the construction of a building and the construction or carrying out of works on land in HO2).

Cl. 15.01, 15.03, 21, 22.05, 32.01, 43.01, 55 and 65

The review site is located on the eastern side of Vale Street in East Melbourne. This slightly irregular lot has a frontage of 11 metres and an overall area of 366 square metres. Occupying the land is a two-storey building of the 'Arts and Crafts' Federation style, dating from 1914. To the north is a single-storey dwelling, while to the south is a two-storey building. On the opposite side of Vale Street are Yarra Park and the Melbourne Cricket Ground.

The Melbourne City Council has issued a planning permit for the land at 82-84 Vale Street in East Melbourne. The permit allows partial demolition of the existing building and construction of alterations and additions including a roof deck, lift shaft, basement and garage. A number of conditions apply to the permit, one of which requires the submission of plans showing modifications to the proposed development. Amongst the required changes is "retention of the front part of the existing roof structure to the first hip ridge junction, and associated reduction to the terrace area"[2]. The permit-holder has requested the Tribunal to review this requirement.
Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided to vary the Council's decision. My reasons follow.

What is the 'heritage place' in this instance, and what is its significance?

The review site is within Heritage Overlay Schedule 2, East Melbourne and Jolimont. It is an area (or precinct) based control that extends beyond the review site and its immediate surrounds to cover a relatively large geographic area. In general terms, this precinct is bounded by Punt Road to the east, Victoria Parade to the north; and Lansdowne Street and Jolimont Road to the west. Its southern boundary is defined by the east-west 'leg' of Vale Street, and by Yarra Park. Somewhat unhelpfully in my opinion, there is no Statement of Significance for this precinct - as confirmed in the evidence of both heritage experts called by the parties. Although there can be no dispute that the precinct as a whole has readily evident heritage qualities, there is no documented identification or assessment of the elements from which its heritage significance is derived.
The building on the subject property was ascribed a 'B' grading in the East Melbourne and Jolimont Conservation Study 1985, which is a reference document to Clause 22.05[3]. The same study attributed a 'Level 2' classification to Vale Street. Both the building and the streetscape grading were confirmed in the more recent Heritage Places Inventory July 2008, this being an incorporated document in the Planning Scheme. An explanation of what these gradings mean is found at Clause 22.05:

'B' buildings are of regional or metropolitan significance, and stand as important milestones in the architectural development of the metropolis. Many will be either already included on, or recommended for inclusion on the Register of the National Estate.

Level 2 streetscapes are of significance either because they will retain the predominant character and scale of a similar period or style, or because they contain individually significant buildings.

There exists a description of the building, which is derived from the Conservation Study mentioned above:

This is an unusual block of flats, built in red brick with two projecting octagonal bay window wings with render bands which are fronted by a two-storey timber verandah with terra cotta tile roof and timber shingle fascia. The balustrade to the upper verandah is of fine timber fretwork. The building is divided into flats entered at the base of the towers and is capped by a substantial brick and render parapet with render bands.

The Council's heritage database provides further information in relation to the building, notably that it was constructed in 1914, is substantially intact, of good integrity and in good condition.
In summary, therefore, the building is of heritage value in its own right, as recognised through the incorporated document, but has not been ascribed individual heritage recognition or individual statutory protection under the provisions of the Heritage Overlay. It is not a heritage place in itself but, rather, forms part of a wider precinct. The heritage place for the purposes of assessing the proposal against Clause 43.01[4] and Clause 22.05 is the broader East Melbourne and Jolimont precinct. It is within this context that an assessment against the planning scheme must be undertaken, to which I now turn.

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.

The decision guidelines detailed at Clause 43.01-4 specify a number of matters which must be considered, as appropriate, before deciding an application. Relevantly, amongst these are:

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

Any applicable statement of significance, heritage study and any applicable conservation policy.

Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

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

In considering both the purpose and the guidelines, it is important to remain mindful that, in this instance, the heritage place is not the review site, but the precinct. Tempting as it may be, given the 'B' grading of the building, it would not be correct in my view to limit the assessment to the confines of the site.
The policy at Clause 22.05 is relevant to the consideration of the application. It is a detailed policy which specifically addresses heritage and applies to all places with the Heritage Overlay - with the exception of Capital City Zone and the Docklands Zone. The policy basis states that the policy is the mechanism to conserve and enhance places and areas of architectural, social or historic significance and aboriginal archaeological sites and to encourage development which is in harmony with the existing character and appearance of designated heritage places and areas.
Objectives of the policy include:

To conserve all parts of buildings of historic, social or architectural interest which contribute to the significance, character and appearance of the building, streetscape or area.

To ensure that new development, and the construction or external alteration of buildings, make a positive contribution to the built form and amenity of the area and are respectful to the architectural, social or historic character and appearance of the streetscape and the area.

According to the policy, demolishing or removing original parts of buildings, as well as complete buildings, will not normally be permitted in the case of 'A' and 'B', the front part of 'C' and many 'D' graded buildings. It goes on to state that, before deciding on a demolition application, the Responsible Authority will consider, as appropriate:

The character and appearance of the building or works and its contribution to the architectural, social or historic character and appearance of the streetscape and the area.

Whether the demolition or removal of any part of the building contributes to the longterm conservation of the significant fabric of that building.

Whether the demolition or removal is justified for the development of land or the alteration of, or addition to, a building.

The policy also addresses the renovation of graded buildings. Intact significant external fabric on any part of an outstanding building[5], and on any visible part of a contributory building, should be preserved. In considering a planning application to remove or alter any fabric, consideration will be given to:

Its contribution to the significance, character and appearance of a building or a streetscape.

The character and appearance of proposed replacement materials.

The contribution of the features of the building to its historic or social significance.

The Council argued that the roof structure and parapet at the front of the building make a strong contribution to the significance of the building. While acknowledging that that the roof has limited visibility from the street, the Council submitted that the policy at Clause 22.05 does not identify visibility or otherwise as a relevant consideration for highly graded buildings. Concerns were also raised that the removal of the roof structure is likely to impact on the structural integrity of the parapet, which is a notable feature of the building.
In support of its case, the Council called evidence from Mr Beeston. His evidence was that the building is appropriately graded as an outstanding building. Mr Beeston emphasised that a building must be viewed as a three-dimensional form, and that it is important to uphold the principle that heritage is not confined to the façade of a building. In Mr Beeston's view, there is an inference that visibility is not necessarily the test for heritage significance or whether existing fabric should be removed. In his opinion, the heritage significance relates to the entire building and it is important to retain the front portion of the roof to understand the building's history, notwithstanding the roof's limited visibility. A significant amount of demolition has been approved at the rear of the property, increasing the importance of retaining the disputed roof element. He considers that the demolition of the roof will reduce the building's heritage significance.
In contrast, the Applicant's case is that the limited visibility of the roof allows for its removal without unacceptably impacting on the building's heritage significance. Mr Raworth gave evidence for the Applicant. In summary, his evidence is:
- What is to be considered is the impact of the proposed demolition on the character and significance of the heritage precinct identified by the Heritage Overlay (HO2). The works will not affect the significance of HO2, as the proposal is affecting a constituent building's roof element which has minor visibility. Neither the streetscape nor the wider heritage area will be affected.
- It is not reasonable to say that visibility is not a test in heritage assessments, as terms such as 'visible' and 'concealed' are referred to in the policy at Clause 22.05. The policy addresses the presentation to the street; it includes a visibility test that is concerned with concealment; and there is reference in the policy to visibility from the public realm.
- Visibility is enshrined in demolition criteria, and character and appearance are meaningless without it. Visibility is a criteria that should be taken into account. It is a measure in Clause 22.05.
- The roof is glimpsed from limited views, and has been designed 'out of appearance' by the building's architects. The roof is not a significant element of the building.
- The building has been designed in a manner that means that the largely concealed roof is not an important part to the three-dimensional expression/presentation of the building.
- There is no Statement of Significance, but the building's citation sets out the elements of primary interest. It is notable that there is no reference to the main roof. This contrasts with the buildings on either side of the review site, where the rooves are highly visible and specific reference to the roof form is included in the citations. It is therefore reasonable to conclude that the subject roof is not important or significant. In undertaking an assessment, it is relevant to consider to what extent the proposal affects the elements in the description contained within the citation.
- The removal of the western portion of roof will not adversely affect the heritage significance of the place.

Will the removal of the western portion of the roof represent an acceptable heritage outcome?

As outlined earlier in these reasons, it is important to bear in mind that the heritage place in the circumstances of this Application is the East Melbourne and Jolimont precinct, defined by Heritage Overlay HO2. It is the effect of the proposed demolition upon the heritage values of this precinct which is relevant to my assessment.
Within this context, having considered the submissions and evidence of the parties, and undertaken an inspection of the site and its surrounds, I find myself in agreement with the Applicant that the removal of the roof will not manifest as an unacceptable heritage outcome.
The roof form is indeed a highly recessive, and largely concealed, element of the subject building. The upper portion of the building is dominated by the very strong parapet form and chimney - both of which present significant visual interest due to their unusual form and 'heavy' appearance arising from their red-brick construction. Within the streetscape, one's attention is drawn to the two projecting octagonal bay window wings, the central triangular parapet & chimney, and the central two-storey timber verandah structure. It presents as an unusual, but interesting, composition of evident heritage character and significance.
The prominence of the castellated parapet is apparent in views of the building from the public realm. It substantially limits the visibility of the pitched roof behind to the extent that it appears as an incidental or minor utilitarian element that is positioned and designed to visually defer to the parapet. As raised in cross-examination, building parapets are typically designed to either fully or partially conceal the roof behind. It appears that this is the case here.
The policy directs the consideration of a number of matters before determining an Application. These were set out in an earlier section of these reasons, and I have had regard to these in reaching my decision. It is an objective of the policy that all parts of buildings that contribute to the significance, character and appearance of the building, streetscape or area are conserved. Based on the description (citation) of the building, the subject roof form does not contribute to the significance of the building. Its recessive nature means that it does not, in my opinion, make any apparent or obvious contribution to the character or appearance of either the building or the heritage place. The roof's removal will not, therefore, be contrary to this objective.
It is not in dispute that the building makes a contribution to the heritage character and appearance of the precinct and, at a local level, to the Vale Street streetscape. However, I have not been persuaded that the roof form is integral to this contribution. It is the octagonal bay window wings, the substantial brick and render parapet and the central timber verandah that are the important elements. These will remain unaffected by this proposal. At close quarters, where the building's contribution is best appreciated, the roof is invisible. Indeed, even from more distant vantage points, visibility of the roof is extremely limited and can be read as part of the more prominent roof form of the building to the south. The loss of the roof will not alter one's appreciation or understanding of the building itself, nor will it detract from the building's contribution to the heritage character of the streetscape or precinct.
I acknowledge the Council's desire the keep the front portion of this building intact, particularly given its grading as being of regional or metropolitan significance. However, the site has not been individually listed as a heritage place. Its heritage value must therefore be understood within the context of its contribution to the broader precinct. Further, on the information available, the roof is not important or significant either in its own right, or in terms of the building's contribution to the local heritage values.
For these reasons, I have not been persuaded that the removal of the disputed roof will result in an unacceptable heritage outcome. Accordingly, I will require the deletion of Condition No. 1(a).

In response to the Council's concern regarding the impact of the roof's removal on the stability of the parapet, the Applicant called evidence from Mr McFarlane, a structural engineer. Mr McFarlane agreed with the Council that the removal of the roof will potentially have an impact. Strengthening works that will ensure structural strength and stability of these elements are recommended. He confirmed that the necessary works can be carried out without any damage to the external appearance of any of the existing chimneys or parapets. In response to my question, Mr McFarlane advised that this is a matter that will be addressed at the Building Approval stage.
I accept Mr McFarlane's evidence. There was no opposing evidence called, and nothing was brought out in cross-examination that would cause me to doubt that the parapet could, with the appropriate measures, be strengthened and retained. This is something which, I would suggest, would require careful consideration and assessment at the Building Approval stage to ensure that this very important heritage element is not compromised (or jeopardised) by the proposal.
In his evidence, Mr Beeston referred to 'ramifications' arising from the roof's removal - such as the creation of a habitable deck which would be occupied by persons and external furniture, potentially including umbrellas and pot plants. He acknowledged that there is no particular policy addressing this, but in his view it is a concern. This section of the terrace is elevated by 700mm above the remainder of the roof deck. Consequently, the parapet would have a height of 1.1 metres as it presents to this space and will act as a balustrade. As I understand it, the terrace is elevated to allow occupants to enjoy views of Yarra Park and the central city skyline when seated at the outdoor furniture.
Mr Raworth stated that persons seated on the north-west part of the terrace would not be visible. While at times persons may be seen on the terrace, given it is a trafficable space, he said that this would only be an occasional occurrence and would not impact on the character or appearance of the heritage place. Mr Raworth is not concerned about umbrellas being erected on the terrace as these are likely to be taken down when not in use to avoid wind damage. They would not be fixed elements. To the extent that any foliage from pot plants may be visible, he considers that this would be of 'enigmatic note' rather than something that detracts from the building's heritage significance.
In response to the Council's concerns, Mr Taylor advised that his client would accept a reduction in the floor level of the elevated terrace by 350mm to further reduce the visibility of persons and furniture from the street view.
This issue has been considered, to a varying extent, in other Tribunal decisions[6]. In general terms, the Tribunal appears to have based its assessment on whether elements such as furniture, plants and umbrellas, if visible from the public realm, would unacceptably impact on views of a building's principal façade. In this instance, I largely agree with Mr Raworth's evidence. By lowering the terrace as offered by Mr Taylor, the outdoor furniture, which is likely to be in place in this position on an on-going basis, will be screened from the view of persons within the public realm. The intermittent erection of an umbrella, being a lightweight non-permanent element that is likely to be removed when not in use, is not something that I consider will impact on one's appreciation of the heritage qualities of the building. The prominence of the castellated parapet form, chimney, verandah and projecting octagonal wings will remain unaffected. Within the overall scale, form and three-dimensional expression of the building, the occasional erection of an umbrella is unlikely to detract from the heritage value of the building or precinct. Neither will the observation of persons circulating on the rooftop deck by the casual observer. It is evidence of the residential use and occupation of this heritage building, consistent with its purpose. Indeed, some similarities may be drawn with the use of front verandahs of the nearby terrace row. I do not therefore propose to entertain the inclusion of a restriction of some form to regulate the placement of such elements on the roof deck. I have reached this conclusion based upon the facts and circumstances of this case. Each proposal must be assessed on its merits and a different approach may be justified elsewhere.

It is for these reasons that I have reached my conclusion that the Council's decision should be varied. I will require the deletion of Condition No. 1(a) and its replacement with a requirement to lower the floor level of part of the roof deck.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Heritage Places outside the Capital City Zone

[5] The Policy defines an 'outstanding building' as a grade A or B building anywhere in the municipality.

[6] For example Mann v Port Phillip CC [2009] VCAT 2460; Kidston v Port Phillip CC [2009] VCAT 233, McPhee v Port Phillip CC [2009] VCAT 515

Perkins Architects v Melbourne CC [2013] VCAT 210

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Perkins Architects v Melbourne CC [2013] VCAT 210 (26 February 2013)

Parties