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[2003] VCAT 325
appellant. The Tribunal set aside the Responsible Authority's refusal and directed that a permit be granted under s85(1)(b) Planning and Environment Act 1987 for alterations and additions to the rooftop...
VCAT set aside the City of Melbourne's refusal and granted a permit for modest rooftop alterations at a North Melbourne YHA. The Tribunal accepted the newly gazetted DDO32's mandatory 14 metre height but applied its own exception allowing alterations to existing non-complying buildings where an increased height 'improves the amenity and enhances the urban character'. The Tribunal found the proposed marginal height increase acceptable (subject to deletion of a visible southern extension) and imposed conditions addressing plans, materials and fencing.
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1,681 words · generated 02/07/2026
Ian Perkins & Associates (the applicant) applied for a permit to alter and extend the rooftop terrace of the Queensberry Hill Youth Hostel at 78 Howard Street, North Melbourne. The proposal comprised an 84 square metre enclosed common lounge under a skillion roof, a raised deck around that lounge and a 0.9 metre southern extension of the deck featuring booth seating. The existing building is a four-storey hostel authorised by a 1989 permit. The City of Melbourne refused the permit on height grounds, relying on a preferred 2–4 storey policy range and the council-adopted Amendment C20 which proposed a mandatory 14 metre limit under a Design and Development Overlay (DDO23B/DDO32). The applicant sought review in VCAT under s77 of the Planning and Environment Act 1987.
1 cited instrument linked from this judgment.
During the review process Amendment C20 (including DDO32) was approved and gazetted (19 December 2002). The gazetted DDO32 prescribed a maximum building height of 14 metres and contained a qualification: while a permit cannot be granted to vary the maximum height, a permit may be granted to replace or alter an existing building that does not comply with the maximum height only if the responsible authority is satisfied an increased height improves amenity and enhances the urban character of the area ([49], [74]-[76], [84]-[89]).
VCAT Member Vicki Davies inspected the site, heard expert and lay evidence, considered the planning controls and revised DDO32, and concluded that, subject to deleting the 900mm southern extension, the proposed works were a marginal increase (about 0.55m at the ridge) that met the qualified exception in DDO32. The Tribunal set aside the Council's refusal and directed that a permit issue with conditions (Order; reasons at [89], [100]-[103]).
There are three linked reasons driving the Tribunal's decision.
The Tribunal treated the approved DDO32 as part of the applicable planning context. It accepted the DDO32 imposed a mandatory maximum height ("A permit cannot be granted to vary the Maximum Building Height") but also contained a built-in exception for alterations to existing non-complying buildings, conditioned on an affirmative satisfaction that an increased height "improves the amenity and enhances the urban character of the area" ([49], [74], [85]). The Tribunal read that exception literally and applied it to the rooftop works.
On the facts, the Tribunal found the proposed increase would be marginal and largely concealed from primary public vantage points. The Member conducted a fact-specific visibility analysis, informed by an on-site inspection and the council officers' expert referrals. The Tribunal accepted the applicant's evidence on finished levels and ridge heights and the urban designer and heritage advisor's assessments that the works "sit comfortably" with the existing development and are sufficiently set back to be largely concealed from street level ([62]-[66], [70], [94]).
The Tribunal balanced heritage and amenity concerns and concluded that, provided the most visible component (the southern 0.9m extension with booth seating) was deleted, the altered rooftop would not adversely affect heritage values or neighbour amenity. The Tribunal was satisfied the modified proposal would improve the public realm (e.g. replacing a tarpaulin pergola with a designed structure) and therefore met the DDO32 exception test: an increase that in effect improves amenity and enhances urban character ([71], [75], [89], [94]-[102]).
The Tribunal emphasised that only very limited exceptional circumstances justify exceeding a mandatory maximum height, but held this marginal case to be one of those exceptions ([89]).
Before the decision:
After the decision:
Practical effect:
Passage: "A permit cannot be granted to vary the Maximum Building Height." ([49]) Plain-English: The DDO's table sets a maximum height that, on its face, cannot be exceeded by a permit.
Passage: "A permit may be granted to replace or alter a building or works existing at the approval date but which do not comply with the Maximum Building Height ... only if the responsible authority is satisfied an increased height improves the amenity and enhances the urban character of the area." ([49]) Plain-English: There is an explicit carve-out: you can get permission to change an existing building that is taller than the maximum, but only when the decision-maker is sure that making it taller will make the area better in terms of amenity and urban character.
Passage: "There are likely to be only very limited exceptional circumstances where the maximum height limit should be exceeded. This is such an exceptional circumstance." ([89]) Plain-English: The Tribunal accepts the rule is strict, but finds this small, carefully designed increase is a rare case where exceeding the maximum height is justified.
Passage: "I am satisfied that the proposed addition is generally acceptable in terms of urban design considerations. My reservation relates to the extended area to the south of the existing stairwell." ([62]) Plain-English: Overall the design is acceptable, but the Tribunal finds a particular part (the southern extension) unacceptable and requires its deletion.
Passage: "The proposal is permissible under the new DDO32 and the proposed works neatly fall within the qualified exception." ([100]) Plain-English: After examining the DDO and the proposal, the Tribunal concludes the proposed works fit within the DDO's carve-out and a permit can be issued.
This deep dive is limited to this judgment alone. The reasons expressly revolve around the specific wording of DDO32 and a fact-specific assessment of visibility, heritage and amenity. The Tribunal relied on its site inspection, expert referrals and the scheme text. The key legal principle is textual: where a DDO contains a qualified exception for existing non-complying buildings, the decision-maker must apply that test. This means later courts or tribunals will similarly look first to the DDO language and then to the facts, giving only limited scope to exceed mandatory heights outside the DDO’s own exception.
Practitioners should note that the decision does not purport to change the standing principle that mandatory controls are ordinarily rigid. It emphasises exceptional circumstances and factual analysis about visibility, design, and public amenity. Any later tribunal or court will thus need to evaluate both the precise DDO wording and the factual impact on amenity, heritage and streetscape.
How narrowly should "improves the amenity and enhances the urban character of the area" be read? The Tribunal accepted modest improvements (replacement of a tarpaulin with a designed structure) as satisfying the test. But future tribunals may adopt a stricter standard of demonstrable public benefit.
What evidentiary threshold is required to demonstrate "improvement" to amenity or urban character? The Tribunal relied on site inspection, urban designer and heritage advisor commentary, and comparisons of visibility. Future cases may require more detailed urban context reports or expert evidence depending on the projected visibility and sensitivity of the area.
What is the proper weight to be given to draft or adopted-but-unapproved amendments in the run-up to gazettal? This decision sidestepped that contested issue by applying the gazetted DDO; however, practitioners will face this question frequently during amendment processes.
How will the presumption of regularity operate where council records are sparse and the existing works' legality is unclear? The Tribunal favoured treating the current rooftop as the starting point for assessment. But litigation that turns on historic permit endorsements or enforcement histories may require firmer evidentiary findings.
When will marginal increases be regarded as not merely "no additional detriment" but positively improving the urban character? The line between acceptable marginal change and unacceptable incremental precedent-setting enlargement remains factual and finely balanced.
Practical takeaway: Where a DDO contains a qualified exception for existing non-complying buildings, a focused, fact-based case showing marginal height increase, limited visibility from sensitive vantage points, and demonstrable public amenity improvements may succeed, particularly where an obvious intrusive element can be deleted and appropriate conditions imposed. Drafting strong plans that respond to the DDO's design objectives, and assembling expert urban design and heritage evidence, will be key to persuading decision-makers that the very limited exceptional circumstances are present.
The order of the Tribunal is that the decision of the Responsible Authority is set aside.
A permit is granted and directed to be issued under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 78 Howard Street, North Melbourne which allows:
Alterations and additions to the existing roof top terrace for the construction of a new common area/lounge and open deck for the existing hostel in accordance with the endorsed plans.
1. Prior to the commencement of the development hereby permitted, the applicant must submit to the Responsible Authority three (3) copies of plans drawn to scale generally in accordance with the plans accompanying the application but amended to show:
a) the skillion roof (and associated wall) on the north elevation extending to the western perimeter of the habitable roof space in accordance with the roof plan;
b) the floor level of the enclosed habitable roof space on the roof plan at rl 48417 (existing floor level), and the deck level at rl 48607, in accordance with Section A; and
c) perimeter fencing to the deck at the minimum height to achieve compliance with the relevant building regulations;
(d) deletion of the 900mm wide extension to the roof deck area and the proposed booth seating and enclosure to the south of the southern stair well.
These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.
2. The development as shown on the endorsed plan shall not be altered or modified without the prior consent of the Responsible Authority.
3. Samples and/or details of all external materials and finishes, including the colour of external paintwork, must be submitted to the satisfaction of the Responsible Authority prior to the commencement of development.
4. Materials used on all external walls must be non-reflective to the satisfaction of the Responsible Authority.
5. The time for commencement of the development hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.
The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.
Ms Mary Hoffman, town planner, represented the Responsible Authority.
Ms Angela Williams appeared on behalf of the North & West Melbourne Association Inc.
Mr Paul Connor, of Counsel, appeared by direct brief for the Applicant for Review/Applicant for Permit. He called Mr Ian Perkins, the project's architect, to explain the proposal and Mr Ross McDougall, Victorian Operations manager YHA (Vic), to give evidence about the operation of the existing use.
The written submissions of the parties, further submissions made after the hearing, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.
Between the hearing dates the Tribunal carried out an unaccompanied inspection of the subject site and its environs.
1. This is an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Melbourne to refuse to grant a permit (in Application No TPO2/296) for alterations and additions to the existing roof top terrace for the construction of a new common area/lounge and open deck at 78 Howard Street, North Melbourne (Queensberry Hill Youth Hostel).
2. At the commencement of the hearing Ms Hoffma highlighted that the first ground of refusal refers to Clause 32-04-2 of the Melbourne Planning Scheme. She advised that that is an error as that clause is not relevant to the proposal. The ground of refusal should relate to Clause 22.13, the local policy for Development and Land Use in the Mixed Use Zone. Ms Hoffman noted that the other parties had been advised of the error. Although Ms Hoffman sought to have the matter formally corrected I indicated that I was not aware of any power to amend the wording of the grounds of refusal. In any event the other parties took no issue with this matter. The hearing proceeded on the basis that the ground should refer to Clause 22.13.
3. The subject site is located on the eastern side of Howard Street between Queensberry Street (to the south) and Courtney Street (to the north). It has a frontage of 32.11m and a depth of 31.5 m.
4. The site currently contains a four-storey building, with roof structures above, that is used as the Queensberry Hill YHA hostel. The building was approved by a planning permit (CM 15063) issued on 20 October 1989. It accommodates up to 348 visitors at a time.
5. The existing roof top terrace is used as an informal recreational space. Stairwells to the north and south provide access from the floor below. Magnificent panoramic views are available. There is a pergola covered by a tarpaulin in the central section and areas of open deck behind a low handrail. There are tables, chairs, sun lounges and barbeque facilities.
6. Pursuant to the Council's Heritage Places Inventory (June 2002) the existing building has no individual heritage grading but is located within the North & West Melbourne Precinct Heritage Place (HO3) in a Level 3 Streetscape.
7. The surrounding land has a mixture of uses, primarily residential to the north, south and west and commercial or light industrial to the east and southeast.
8. To the north of the subject site are four double storey brick Victorian style attached town houses (88-94 Howard Street) which are graded "C". Abutting the site to the south is a brick ecclesiastical building (the former Wesleyan Sunday School) which has been converted for use as six dwellings. It has a "B" grading. All developments on the opposite (western) side of Howard Street are within the Level 3 Streetscape and individually graded. The church and manse at 163 Howard Street has a "C" grading and is on the Victorian Heritage Register. The double storey flats at 171 Howard Street are graded "D". Four double storey terraces at 181-187 Howard Street are graded "D". Four single storey dwellings at 189-195 Howard Street are graded "D".
9. To the rear of the site there is a large single storey brick industrial building. It does not have a heritage grading. To the southeast is a smaller single storey brick industrial building with no heritage grading. Due to its height the building on the subject site is visible from many vantage points in the neighbourhood.
10. The following extract from Ms Hoffman's written submission (with minor amendments highlighted in her oral submission) succinctly describes the proposal:
s Increase in the habitable roof top area by approximately 10 square metres through the development of a 0.9 metre width extension beyond the existing south perimeter of the roof top terrace.
s Development of an enclosed habitable common area/lounge with an area of approximately 84 square metres including a central lounge with fireplace (with a skillion roof above) and a separate south-facing booth seating area (with a flat roof above in keeping with the existing adjacent stairwell roof height).
s Development of a deck 190mm (one-step) above the existing floor level to the remainder of the habitable roof top area (an area of approximately 97 square metres) including perimeter fencing, an external fireplace, and separate barbecue area. Part of the deck is proposed to be under a verandah to be formed by a continuation of the skillion roof to align with the eastern wall line of the existing stairwell structures.
s Re-painting of the existing stairwell structures and plant room.
s Glass louvred windows to all walls excepting the eastern façade to the central lounge.
s Glazed sliding doors and highlight windows to the eastern façade of the central lounge.
s Finish to the north and south projecting skillion wall line of the central lounge not specified.
s rl 51717 to the highest point of the skillion roof (ie. 18.197 metres above ground level at Howard Street (rl 33520)).
Note: The existing roof top plant room and covered pergola ridgeline are 17.484 metres and 17.647 metres above ground level at Howard Street respectively.
11. The planning context relevant to this application is complex. An indication of the complexity is the fact that around 15 pages of Ms Hoffman's written submission was devoted to detailing the zone provisions, overlay controls, State and Local policies, wide-reaching amendments proposed to the Planning Scheme and an unincorporated local plan.
12. The matter is further complicated by the fact that on 19 December 2002 (since the conclusion of the hearing) a major amendment (Amendment C20) has been approved and gazetted.
13. For the sake of brevity I do not intend to reproduce Ms Hoffman's description in its entirety. There is a need, however, to summarise the key controls and policies in some detail and explain the recent changes.
14. Under the Melbourne Planning Scheme the subject site is within a Mixed Use Zone. Pursuant to Clause 32.04-5 a permit is required to "construct or extend a residential building". As the proposal is for an addition to an existing four-storey building the ResCode provisions of Clause 55 are not applicable. Pursuant to Clause 32-04-7 a permit is required to "construct a building or construct or carry out works for a use in Section 2 of Clause 32.04-1" (in this case, a "Backpackers' lodge").
15. The subject site is covered by a Heritage Overlay. One aspect of the purpose of the Overlay is "To ensure that development does not adversely affect the significance of heritage places". Permission is required for the proposal pursuant to Clause 43.01-1. Decision guidelines are at Clause 43.01-5.
16. Relevant sections of the State Planning Policy Framework are Clause 17.04 (Tourism) and Clause 19.03 (Design and Built Form). Clause 17.04 encourages "the development of a range of well designed and sited tourist facilities". Clause 19.03-2 states:
Development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties.
17. Pursuant to Clause 19.03-2 for residential development proposals not covered by Clause 55 regard must be had ten specified design principles (including the public realm, heritage and architectural quality).
18. The purpose of the Mixed Use Zone includes the standard statement concerning the implementation of State and Local policies. It also aims "To encourage residential development that respects the neighbourhood character".
19. Council's Municipal Strategic Statement ("MSS"), known as "City Plan", is at Clause 21. Although its has been amended by the gazettal of Amendment C20 the following relevant provisions remain unchanged. Outcome 5.2.2 (under Aim 5.2 - "Attractive City") states that Council will "Assess development proposals in or adjacent to heritage places in terms of their sympathy with the character of the area...and give priority consideration to their likely impact". In the second part of the MSS the subject site is within "North and West Melbourne (Mixed-Use Area)". The identified development issues include urban renewal at a human scale, attractive streetscapes and lower-scale development. Planning scheme responses for each issue have been revised.
20. A key local planning policy is Clause 22.05 (Heritage Places Outside the Capital City Zone). One of its objectives is:
To ensure that... 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.
21. At the time of the hearing there was also Clause 22.13 (Development and Land Use in the Mixed Use Zone). It included a statement of the policy basis, objectives, policy relating to general design and land use principles and specific policies for three areas (including North and West Melbourne). A new Clause 21.13 (Land Use and Activities in the Mixed Use Zone) has been introduced by Amendment C20. As its name indicates its relates to use rather than development.
22. In addition to the provisions of Clause 22.05 since 19 December 2002 general design principles are contained in the revised MSS and Clause 22.17 (Urban Design Outside the Capital City Zone). Built Form Outcomes are also specified in a new Design and Development Overlay (hereafter, "DDO32") affecting the subject site.
23. Clause 22.17, effective since 19 December 2002, includes a policy basis, objectives and policy under a number off headings, including scale, context, building height, building bulk and building tops. Its objectives include:
* To ensure that the scale, siting, massing and bulk of development complements the scale, siting, massing and bulk of adjoining and nearby built form.
* To ensure that the height of buildings relates to the prevailing patterns of height and scale of existing development in the surrounding area.
24. Ms Hoffman also referred to "North-West 2010" - an adopted local plan for West Melbourne. It is not incorporated in the Planning Scheme although the MSS refers to its preparation. The subject site is within Precinct 4 of the local plan which is described as having "building heights generally at 1 to 2 storeys with some pockets of taller buildings of 2 to 4 storeys". The plan states that for this precinct "building development should accord with heritage guidelines and would generally be within the existing building heights of 2 to 3 storeys".
25. At the hearing Ms Hoffman's description of the planning controls placed considerable emphasis on two major planning scheme amendments relevant to the application. Ms Hoffman highlighted that the amendments have interrelated provisions. For instance, the Amendment C20 changes to the MSS and local planning policies have effectively been superseded by the more recently conceived Amendment C60.
26. Amendment C60 revises the MSS (in accordance with the mandatory three year review) and many of the local policies. It was exhibited from 14 November 2002. Ms Hoffman highlighted that a strategy under proposed Clause 21.05-4 (Housing and residential development) is to "Support the development of serviced apartments, backpacker accommodation, hotels and motels in close proximity to major visitor attractions". Specific to the predominantly residential areas of North and West Melbourne is a strategy to encourage "extensions that complement the architecture, scale and character of the areas". A strategy under the proposed Clause 21.06-3 (Cultural Heritage Places) is to "Ensure that...alterations and additions...[are] sympathetic to the historical form, scale...and any abutting significant parks, gardens and buildings within the heritage precincts of...North and West Melbourne".
27. At the hearing Ms Hoffman provided a detailed account of the background to the preparation of Amendment C20, its provisions and current status. I was advised that the amendment proposes to introduce a series of new Design and Development Overlays, make amendments to the MSS and introduce and revise several local planning policies.
28. At the hearing the parties placed particular emphasis on the new Design and Development Overlay relevant to the subject site which was included in the adopted Amendment C20. Ms Hoffman and Ms Williams provided background material on that matter.
29. I understand that the Council prepared and exhibited DDO23B "North Melbourne Peripheral Area" as part of Amendment C20 in response to the Ministerial direction following the approval of the new format panning schemes. It included a list of design objectives and a mandatory maximum height of "14 metres (4 storeys).
30. Ms Hoffman cited numerous extracts of the Panel report on Amendment C20 regarding building height controls. The Panel did not support the view "urged upon...[it] by several residents' groups that the Heritage Overlay was insufficient to protect the heritage areas of North and West Melbourne...and therefore a Design and Development Overlay with mandatory height limits was also required". The Panel also considered that "an over-reliance on mandatory building requirements in Design and Development Overlays" is a departure from and "undermines" the new planning system which is "objective based, strategic decision-making". The Panel considered the circumstances where mandatory controls would be appropriate and reached the view that those circumstances were not present anywhere in the City of Melbourne. The Panel's recommendations included that
A building requirement specified in a Schedule to the Design and Development Overlay should only be mandatory where there is a clearly defined and defensible reason for removing the discretion under Clause 43.0202.
31. Despite the Panel report the Council proceeded with a proposed 14 metres (4 storeys) mandatory height limit for the proposed DDO32 (renumbered from the earlier DDO23B). The Built Form Outcomes included:
* New development respects and is consistent with the built form especially low scale of the existing older building stock in the street.
* New buildings adjacent to heritage buildings reflect the height and setback of heritage buildings and the typical streetscape pattern.
* Visibility of upper levels of new development from heritage streetscapes is minimised.
* Development in streets with higher typical built form provides a transition in scale to the lower building forms.
32. Some elements of Amendment C20 were redrafted following the Panel report. It was adopted by the Council's Committee on 27 June 2002 and submitted to the Minister. At the hearing Ms Hoffman advised that it "awaits approval".
33. The Application for Permit was lodged on 26 March 2002. Further information which was requested by the Council was supplied on 15 April 2002.
34. Following the giving of notice of the application three objections were received - from the North & West Melbourne Association and two nearby Queensberry Street residents. Ms Hoffman summarised the grounds of objection as follows:
...the North and West Melbourne Association's objection relates to the proposal being unsympathetic to the heritage values of the areas. S Cichello's and C Gray's objections detail amenity concerns primarily in relation to the use of the development (noise, overlooking, littering) and a concern regarding loss of light.
35. The application was internally referred to the Council's Heritage Advisor. The comments included:
The works appear to be concealed between the existing stairwells. Although the works would exceed the recommended height limit, they do not appear to cause detriment to the HO [Heritage Overlay].
36. The comments of the Council's Urban Designer in response to referral included:
We support the plans for the additional level to the existing building. The works are generally located between two stairwells and a plant room. The scale, form, and elevational treatment of the proposal sit very comfortably with the existing development and are supported. The works are set back sufficiently from the Howard Street frontage to be concealed when viewed at street level.
37. The planning officer's recommendation that the application be refused was adopted by the Council's delegate. A Notice of Refusal to Grant a Permit was issued on 1 August 2002, with the following grounds:
1. The proposal is contrary to Clause 32.04-2 [sic] of the Melbourne Planning Scheme (Mixed Use Zone) by virtue of height.
2. The proposed height is contrary to Amendment C20 of the Melbourne Planning Scheme.
38. The application for review, lodged on 14 August 2002, stated three grounds. In summary, various reasons were advanced for the utilisation of discretion given that the existing height is above the maximum height of 14m proposed in DDO32. It was highlighted that Amendment C20 has not yet been approved, options are being considered and "Under the alternative height option the application would be likely to be approved".
39. On 30 August 2002 a Statement of Grounds was received from the North & West Melbourne Association Inc. It stated the following:
The applicant's grounds of application for review are refuted.
The reasons for refusal of the Responsible Authority are supported.
The proposal is contrary to Clause 43.01 and 22.05 of the Melbourne Planning Scheme.
40. At the hearing the parties spoke to written submissions. A large number of photographs, plans and other documents were tendered. Two witnesses were called, essentially to provide information about the proposal and the current operation of the hostel.
41. Ms Hoffman's written submission provided the following summary of "the Council's position":
The proposed development...which creates a fifth storey, is not supported as it exceeds:
* the 2-4 storey preferred height stipulated in the local policy for Development and Land Use in the Mixed Use Zone; and
* the 4 storey mandatory maximum building height proposed under Amendment C20.
42. The Applicant for Review's position can be summarised as follows:
* The subject land is appropriate for its well-established use and that is supported by the relevant State and local policies which encourage tourism.
* Council's approach to the application has been determined by height controls proposed in Amendment C20. For various reasons Amendment C20 should no longer be regarded as a seriously entertained planning proposal.
* Even if DDO32 is incorporated into the Melbourne Planning Scheme in the present form that would not prohibit the proposed works. There is what could be described as an existing development right and it is common sense to allow an improvement of the existing conditions.
* It has not been established that the existing works are illegal.
43. Ms William's presented the Association's submissions under a number of headings. They can be summarised as follows:
* The Association supports Amendment C20. The proposal exceeds the maximum building height of 14m (4 storeys) for DDO32.
* During the recent election campaign the State Government undertook to implement a large percentage of the adopted Amendment C20, including mandatory height controls for the North Melbourne Peripheral Area. The amendment is seriously entertained and should be given considerable weight.
* The existing extent of the roof terrace does not appear to reflect the stamped (but unsigned or undated) drawings for the permit for the existing development. The covering for the existing pergola structure has not been approved.
* The proposed enclosure would be visible from various vantage points. Given the visibility of the proposed structure there are heritage considerations (contrary to the advice given by the Council's Heritage Advisor). The proposal would be contrary to the Built Form Outcomes contained within DDO32 of Amendment C20 and contrary to the local policy at Clause 22.05.
* The proposal adds unnecessarily to the bulk of the 4-storey structure which is already an anomaly in the streetscape.
* The resulting increased usage of the roof top space would impact on the amenity of nearby residents.
* The proposed development would not be energy efficient.
44. Before considering the issues arising from those submissions I note that at the end of the hearing I gave leave to Ms Williams to make further written submissions in relation to Mr Connor's novel and controversial idea that there could be "existing development rights" which would not be affected by the introduction of mandatory height controls. Ms Hoffman had provided an oral response at the hearing which called for a rejection of Mr Connor's argument.
45. At the end of the hearing I reserved my decision. I called on Ms Hoffman to immediately advise me of any change to the status of Amendment C20.
46. Subsequent events are described fully in the reasons given for directions dated 5 February 2003. In summary, Ms Williams advised that her Association did not wish to respond to Mr Connor's particular submission. The Council formally advised that Amendment C20 had been approved by the Minister and gazetted on 19 December 2002. Mr Connor sought to make further uninvited submissions and I invited the other parties to respond to them. The further submissions of Mr Connor and the responding further submissions from the other parties are discussed later.
47. Changes introduced by Amendment C20 now form part of the planning context for this application for review. Of particular relevance are the local planning policy at Clause 22.17 (Urban Design Outside the Capital City Zone) and the incorporation of DDO32. The inclusion of Clause 22.13 is of marginal relevance as it relates to land use rather than development.
48. DDO32 has not been approved in exactly the same form put forward by the Council. The Design Objectives are identical to those in the final version proposed by the Council. They are:
* To maintain the predominant low scale nature of the area.
* To ensure that development retains views to significant landmarks.
* To ensure development supports high levels of pedestrian amenity related to access to sunlight and sky views and a pedestrian friendly scale.
49. Provisions under the heading "Buildings and Works" have been varied.
An application must be accompanied by a site analysis and urban context report which demonstrates how the proposed building or works achieves each of the Design Objectives and Built Form Outcomes of this schedule, and any local planning policy requirements.
A permit cannot be granted to vary the Maximum Building Height.
A permit may be granted to replace or alter a building or works existing at the approval date but which do not comply with the Maximum Building Height specified in the table, only if the responsible authority is satisfied an increased height improves the amenity and enhances the urban character of the area.
50. The Table to Schedule 32 includes a "Maximum Building Height" of 14 metres. It deletes the earlier reference to "4 storeys". There are five "Built Form Outcomes". Those relating to development in the vicinity of the Victoria Market and the median street trees in Peel Street are not relevant. The other three outcomes are:
New development respects existing built form especially low scale of the existing older building stock in the street.
Development in streets with higher typical built form provides a transition in scale to the lower building forms.
Development which retains views to the landmark Meat Market building and the North Melbourne Town Hall roof and tower.
51. The principal issue in this application is the appropriateness of the building form in terms of urban design and heritage considerations. A particular issue is the proposed height given new mandatory controls. A supplementary issue relates to off-site amenity.
52. Before discussing those issues I note that questions were raised about the legality of the existing roof structure and thus the proper analysis of the extent of new development.
53. Ms Hoffman was able to produce material from old Council files to provide background information on this question. A planning permit was issued on 20 October 1989 to erect a four level building and use it for the purpose of a youth hostel. The Officer report referred to a terrace, plant room and lift motor room on the roof. However, the Council's files do not contain a full set of signed endorsed plans.
54. Ms Hoffman suggested that plans on the file indicate that the roof terrace did not extend to the north or south beyond the stairwell structures and that the eastern and western extent of the terrace was greater than the current layout. She noted that the roof plan does not show a pergola but elevations indicate a pergola or roofing structure over part of the terrace. However, a western elevation (later endorsed to shows compliance with an external materials and finishes condition) does show the extent of terrace as it currently exists. An endorsed schedule also refers to a "roof pergola". The endorsed plan for a later permit for flagpoles shows the current layout of the roof including a pergola, but no pergola roof sheeting. It was also noted that there do not appear to be permits for the prominent solar hot water services on the edge of the roof. Ms Hoffman concluded that the Council has apparently approved what exists, except for the cover and raised ridgeline. She argued that it would have been expected that those features would have been shown if they were approved.
55. Ms Williams, who frequently walks around the neighbourhood, suggested that the canopy appeared only 3-4 years ago. She advised that for many years there was an uncovered pergola. Ms Williams argued that I should assess the current proposal relative to an open structure. On the other hand it was Mr McDougall's evidence that there was an awning in 1996.
56. The evidence about what has been approved over time is inconclusive. The lack of signed, endorsed plans is unfortunate. I note Mr Connor's submission that it unfair for the Council to now say the existing structure is illegal when the Council has never hinted at enforcement. I agree with Mr Connor that there should be a presumption of regularity. The proper point of comparison should be the current roof top structures.
57. The Council's first ground of refusal relies on Clause 22.13. When the Council considered the application, and at the time of the hearing, that clause contained a provision stating a preferred building height of 2-4 storeys. This was shown on a map. However, as highlighted by Ms Hoffman that map was annotated with a "sunset clause" (it does not apply after 31 December 2002) in anticipation of the approval of height controls in DDO32.
58. Ms Hoffman acknowledged that Clause 22.13 allowed discretion to approve development above 4 storeys. She argued, however, that in this instance exceeding the current building height would be contrary to the policy basis of that clause which calls for new development which "complements the future built form character and scale of each area and enhances its pedestrian amenity". In elaborating on the ground of refusal Ms Hoffman also referred to the General Design and Land Use Principles and matters to be taken into account when considering development in North and West Melbourne. In particular, she highlighted provisions calling for additions to be consistent with the dominant parapet height in the streetscape. Ms Hoffman submitted that the proposal is clearly inconsistent with such policies.
59. Ms Hoffman also relied on Clause 22.05 (Heritage Places Outside the Capital City Zone). In particular, she highlighted the policies in relation to works or additions to existing buildings which call for the height to respect the character and scale of adjoining buildings and the streetscape and for additions within residential areas comprising single and two storey terraces to be "respectful and interpretive".
60. The new Clause 22.13 relates to land use rather than development and is of marginal relevance to the issues in this application for review. There is no longer a map showing "preferred building height". I note that the new Clause 22.17 includes similar objectives to the earlier Clause 22.13. It has policy provisions with respect to scale, context, building height and bulk. For instance, the scale of new development is encouraged to respond to the scale of surrounding development and unacceptable bulk in buildings will be discouraged. With respect to building tops Clause 22.17 states:
All roof elements including plant, lift over-runs, and other roof top services are encouraged to be integrated within the overall building form or be included as part of overall roof design.
61. Clause 22.05, which remains unchanged, continues to be part of the relevant policy context. I note in particular that in a Level 3 Streetscape it requires the external shape of an addition to an existing building to be "interpretive". It does not require concealment of higher rear parts of ungraded buildings
62. Having examined the existing policies in detail and in the light of my thorough inspection of the neighbourhood and potential viewing points I am satisfied that the proposed addition is generally acceptable in terms of urban design considerations. My reservation relates to the extended area to the south of the existing stairwell.
63. In reaching that conclusion I have been influenced by Mr Perkins' explanation of the extent of the proposed works. I understand the at its highest point the new structure would be only 650mm higher than the ridge of the existing awning. It would be marginally closer to Howard Street than the edge of the existing metal awning frame in that the skillion roof would rise away from where there is now a handrail. I also understand that the finished floor level of the enclosed area remains the same as the existing trafficable area on the roof. There would, however, be a step up to the new decking level and a slight increase in the trafficable area (900m extension to the south adjacent to the proposed enclosed booth seating).
64. I have also been influenced by the fact that Council's Urban Designer and Heritage Advisor have indicated their support of the proposal (although they were not available as witnesses to be cross-examined). In particular I note that the Urban Designer considered that the works were set back sufficiently from the Howard Street frontage to be concealed when viewed from the street and the scale, form and elevation treatment "sit comfortably with the existing development".
65. I accept Mr Connor's argued that the "primary viewing point" is in Howard Street, on the opposite side of the street in front of the building. It became clear at the hearing that the drawing submitted with the application which shows the sightline from directly opposite in Howard Street is incorrect. There is no building above the property line at the top. However, it has not been established that the support of the Council's expert advisers was solely based on that drawing.
66. There may be visibility of the new structure from across the street. However, as shown on the revised sightline drawing tendered by Ms Williams, I consider this to be marginal. Only a small section of the skillion roof rising away from the west would be visible. There is no policy requiring absolute concealment.
67. Directly across the street is not the only vantage point which needs to be considered. On that matter I appreciate that the visibility of the new structure would vary depending on where the viewer was standing. From some oblique angles the structure would be obscured by the stairwells and the dominant plant room which extends to the edge of the roof towards Howard Street. Nevertheless, those features are obviously not capable of interrupting views from all angles.
68. My inspection of the area clarified the likely views of the proposed structure. From the northern end of Howard Street there would continue to be little appreciation of the building due the trees and the angle of view. Compared with the limited possible views from Howard Street there would be greater exposure of the proposed roof and glass walls from vantage points where the existing awning is highly visible: that is, from the north and east. The clearest views would be from the industrial properties to the north and from the vicinity of the extensive three storey residential buildings ("University Place") along Courtney Street and around into Bedford Street. There would also be clear views from the pocket park at the end of Capel Street. Essentially, the works would be more visible at a greater distance. There would also be relatively unrestricted views from sections of Queensberry Street (for instance, from outside St Joseph's). From that vantage point the proposed extension to the south of the stairwell would be highly visible. There would, however, be very limited views from further to the west in Queensberry Street, although again the extension beyond the stairwell would be visible.
69. Due to its height and bulk the existing building is a large and imposing building which is a dominant element in the built form of the area. From many angles the solar panels on the roof add to the impression of bulk. The building is, however, discrete and attractive compared to the Telstra building to the southwest which has extraordinary unarticulated mass and height with extensive plant and equipment on the roof. The existing building cannot be wished away. It is meaningless to talk of a preferred form of development as 2-3 storeys or parapet heights comparable to lower level buildings.
70. The proposed works would represent a marginal change to the height of the large building. I accept Mr Connor's submission they will create virtually no perceptible change, at least from many possible vantage points. The form and materials represents a lightweight construction. It is likely that from a distance the existing awning and the proposed louvred wall would have a similar appearance. I also consider that the proposed works would have a positive role in integrating the roof elements.
71. Nevertheless, as foreshadowed above, I have reservations about the proposed extension to the south of the stairwell to provide enclosed seating and an extended circulation area. There is no prospect that that area of the rooftop would be obscured by the stairwell from many vantage points to the south. While I appreciate that the seating is proposed to capitalise on the best views of the City (particularly at night) I do not consider that it can be justified in terms of its visual impact. It would represent the introduction of a structure and building mass where there is now none. That element of the proposal should be deleted.
72. It is no longer necessary to answer the difficult question of what weight should be given to Amendment C20 in the form which was adopted by the Council. In reaching an answer I would have needed to consider such matters as the Amendment's status as a "seriously entertained planning proposal", the adverse comments in the Panel report but various "undertakings" by the State Government prior to the State election that mandatory height limits would be introduced in North and West Melbourne in accordance with the Council's proposal.
73. The approval of Amendment C20 has simplified the situation. It has certainly undermined the central submission of Ms Hoffman that the prescriptive height controls in the Council's adopted version would mean no permit can issue for the proposal. The ultimate form of the approved DDO32 also reinforces the scepticism which commonly surrounds the words "election promise".
74. Nevertheless, I accept the further submission made on behalf of the Council (by the Corporate Solicitor) that the approved form of DDO32 remains as a mandatory control. The Schedule states that "A permit cannot be granted to vary the Maximum Building Height". However, the mandatory control is now subject to a qualification. Furthermore, there is also a requirement to demonstrate how proposed buildings or works achieve each of the Design Objectives and Built Form Outcomes "and any local planning policy requirements". Together those provisions represent a strict and onerous test. In that respect I accept the Council's further submission that DDO32 imposes a considerable impediment on the Tribunal directing that a permit issue.
75. The three Design Objectives that the proposal must meet are unchanged from those in the form adopted by the Council. Mr Connor submitted that given the absolute minimal nature of the proposed alteration the proposal can have no adverse impact whatsoever on any of the considerations. That is, it has no impact on the scale and nature of the area, does not adversely impact on any views to significant landmarks and, if anything, improves pedestrian amenity by replacing a tarpaulin with "a low impact, quality addition which is largely not visible from the public realm.."
76. On the other hand the further submissions of the Council and Ms Williams were that the proposal does not meet those objectives. In particular, Ms Williams submitted that any increase in height is clearly at variance with the objective of maintaining the predominant low scale nature of the area which is generally well below the 14m maximum limit. Ms Williams also submitted that the enclosure of the roof terrace would lead to a loss of sky views, particularly from Courtney Street (near to Capel Street) and adjacent to the pocket park in Bedford Street. She argued that this is in contrast to the open sky views available though the pergola prior to the addition of the tarpaulin. Ms Williams concluded that this does not meet the objective of high levels of pedestrian amenity relating to sky views in the predominantly low scale area. Ms Williams also challenged the assertion in Mr Connor's further submission that the addition "is largely not visible from the public realm". Ms Hoffman submitted that the proposal fails to meet the objective "To ensure that development retains views to significant landmarks" in that it may impact on some views to landmarks such as the North Melbourne Town Hall.
77. My finding is that if the proposal was modified by the deletion of the southern extension it would achieve the Design Objectives. The extent of works would then be marginal. It is arguable whether the predominant nature of the area within which the works would be visible is of a "low scale nature". The proposal would have no appreciable impact on the nature of the area. Arguments about the impact on significant landmarks are spurious. In theory there may be a vantage point where a view of the Town Hall would be interrupted - perhaps from a high rise building in Parkville or Carlton - but it is nonsense to suggest that is a real impact or the proposal would substantial reduce any view. It was conceded by Ms Hoffman that the development would not be expected to impact on sunlight or "pedestrian friendly scale". Provided the southern extension is deleted I am not convinced the proposal would have any appreciable impact on sky views compared to the existing situation.
78. In some respects the Built Form Outcomes required to be achieved are different to those in the version of DDO32 adopted by the Council. The first Outcome noted above has been slightly re-worded. The third Outcome is new. The Outcomes relating to development in the vicinity of the Queen Victoria Market and Peel Street are not relevant to the current application.
79. It must be seen as significant that the approved form of DDO32 has deliberately not included two Outcomes included in the version adopted by the Council - "New buildings adjacent to heritage buildings reflect the height and setback of heritage buildings and the adjacent streetscape pattern" and "Visibility of upper levels of new developments from heritage streetscapes is minimised". While heritage considerations remain relevant to the proposal they are no longer matters now sought to be achieved by the maximum building height control.
80. One Outcome, essentially unaltered, is that "New development respects existing built form especially low scale of the existing older building stock in the street". A further outcome retained in the approved form is "Development in streets with higher typical built form provides a transition in scale to the lower building forms". Ms Hoffman submitted that the proposal is not consistent with the low scale built form which is ecclesiastical or residential with a single or double storey appearance to the street. She also submitted that the existing building provides little transition and the proposal to further increase the bulk is contrary to the Outcomes.
81. For the reasons I have already stated I consider that the proposal (if modified) will achieve those Outcomes. Due to restricted sight lines the proposal will have no appreciable impact on the low scale of the existing buildings in Howard Street. Development between the stairwells would not alter the existing transition in scale between the existing building and lower buildings.
82. I have already commented on the further Outcome (not in the form adopted by the Council) which calls for "Development which retains views to the landmark Meat Market building and the North Melbourne Town Hall roof and tower". Although the subject site is in the vicinity of the Meat Market the proposed development would not interrupt any views of that building. Any theoretical interruption of a view of the Town Hall is inconsequential.
83. In their further submissions the Council's Corporate Solicitor and Ms Williams raised issues related to the proper interpretation of the Buildings and works provisions in DDO32. The Council questioned whether the proposal falls within the terms of the qualification which refers to a permit to "replace" or "alter" a building or works. It was submitted that the proposal is clearly not a replacement and that it is arguable whether the scope of the proposed works can be seen to "alter" the building as intended by the qualification clause. Ms Williams submitted that the control does create an exception for replacement or alterations to existing buildings exceeding the maximum height. The intention of that provision is that "existing development right" is preserved, albeit conditionally. Ms Williams submitted that the reference to "increased height" is not intended to discriminate in favour of existing non-conforming buildings by not only preserving their non-conformity but granting them additional development rights at odds with the design objectives.
84. I acknowledge that the wording of the provisions is not as clear as it could be. Nevertheless, I am prepared to accept that the proposed works do amount to an alteration to a building. Despite Ms Williams' argument I am also prepared to accept that permission can be granted for an "increased height" to an existing building which is already above the maximum building height. That seems to be the simple reading of the words in the provision.
85. Nevertheless, I accept the view put by the Council's Corporate Solicitor in further submissions that it will only be in exceptional circumstances that the responsible authority (and this Tribunal on review) will be able to be satisfied that an increase in height is justified in terms of the criteria or qualifying clause - that "an increase in height improves the amenity and enhances the urban character of the area". As noted in the Council's further submission it is not sufficient if the Tribunal concludes that the increased height does not cause further detriment beyond the present situation. There must be a demonstration that the proposal improves the amenity and urban character of the area.
86. In his further submissions Mr Connor argued that permission can be granted as the proposal satisfies the criteria of improving the amenity and enhancing the urban character of the area. He stated that the nature of the improvement and enhancement must be seen in context. He submitted that the increase in absolute height is a mere 0.55m at the proposed ridge height. That is insignificant and can have no demonstrable impact on the area. He also submitted that the altered roof cover represents a substantial improvement to the building from places where it can be viewed from the public realm.
87. In response it was the Council's submission that on the basis of submissions made at the hearing the proposal does not improve the amenity or enhance the urban character. In summary, it was argued that the proposal will be visible from Howard Street and other vista, the height is inconsistent with other buildings in the area, the increase in floor area towards the Howard Street perimeter of the roofline will result in further intrusion into the streetscape and the proposal is out of character with the surrounding heritage value of the area as recognised in the Heritage Overlay.
88. In her response Ms Williams submitted that the proposal would add an additional 0.55m to a 17.6m structure in a mandatory 14m area, in addition to filling in sky views. Ms Williams also submitted that Mr Connor has advanced only one positive argument in support of the improved urban character - the replacement of the tarpaulin (arguably illegal) with a permanent structure. She highlighted that the amenity of the area, rather than that of the building occupants, is the required consideration.
89. My finding is that the proposal is able to meet the revised test now set out in DDO32. There are likely to be only very limited exceptional circumstances where the maximum height limit should be exceeded. This is such an exceptional circumstance. (Alterations to the roof of the nearby Telstra building are likely to be a further example of such a circumstance.) Provided the southern extension is deleted the marginal increase to the height of the existing roof top structure appears to be precisely the type of situation where mandatory controls would have unreasonably restricted minor works which will improve the public amenity and enhance the urban character.
90. Lastly I note that Ms Williams submitted that it may be appropriate for the Tribunal to take a precautionary approach as following concerns expressed by the Council and others the "existing development right" included in DDO32 is "under review". I do not consider that any such precautionary approach is called for. I am required to decide the application for review in the light of the current planning controls. There is no material before me supporting the proposition that an immediate review of the newly introduced DDO32 is proposed.
91. Heritage considerations were not raised explicitly in the Council's grounds of refusal. I note, however, that heritage issues are included in the Clause 22.13 policy. The Council's position had apparently been influenced by the positive comments of the officer reporting on the application. The officer's report stated that the grading of the streetscape (Level 3) allows for partial visibility to the street for any new additions. It was noted that in this instance there would be oblique views from locations in Howard Street and Queensberry Street. The officer relied on the comments from the Heritage Advisor that "the works appear to be concealed between the existing stairwells" and the Advisor's conclusion that "there are no heritage issues associated with this application".
92. At the hearing it was suggested by Ms Hoffman that the advice of the Heritage Advisor's may be based on a misunderstanding (derived from the inaccurate sight line drawing). She submitted that the works are in fact not concealed by the stairwells. That position was supported in Ms Williams' submissions. Numerous photographs were tendered to show the possible vantage points.
93. Ms Williams also invoked the Built Form Outcomes in the adopted version of DDO32 which relate to heritage considerations. She also highlighted the policy at Clause 22.05 which calls for the height of a building to respect the character and scale of adjoining buildings and the streetscape.
94. The proposed works would only be concealed between the two stairwells to the extent that the stairwells are capable of concealing the development (that is, when viewed from the north and south). I accept that there would be views of the proposed development from numerous vantage points within the Heritage Overlay. However, provided the extension to the south is deleted I consider that the proposal would cause no detriment to the Overlay.
95. Heritage considerations are no longer covered by the Built Form Outcomes in the approved version of DDO32. I am satisfied that the proposal conforms with the policies for additions to existing buildings in Clause 22.05; particularly those relating to the form, materials, details and building height. To the extent that the works would be visible, and to the extent that such concepts are relevant to works on an existing modern building, I consider that the external shape and details are suitably "interpretative" and the surface materials are "respectful". The works would have little impact on the perception of the height of the existing building. The policy provisions relating to "concealment of higher rear parts" are restricted to new buildings and additions to graded buildings. The proposed works would not be visible from the "A" graded former "Meat Market". I have already determined that the new development proposed beyond the southern stairwell should be deleted on the basis of urban design principles. The deletion of that section would also mitigate any negative impact on the heritage buildings to the south (particularly the "C" graded Christian Brothers College on the south side of Queensberry Street).
96. No objectors living near the subject site are parties to this review. Ms Williams purported to speak on their behalf. In particular, she highlighted the potential increase in the level of noise experienced by adjacent Queensberry Street residents. Ms Williams also submitted that if a permit is to issue there should be conditions imposed limiting the hours of use of the roof top deck and prohibiting amplified music or a PA system.
97. I accept the view expressed in the officer's report that when the glass louvres are closed there is likely to be less impact on nearby residents, especially in relation to noise. That was also the evidence of Mr Perkins. I have already indicated that the area to the south of the stairwell should be deleted for reasons relating to urban design. The deletion of the extended trafficable area and booth seating would reduce any potential impact on nearby residents.
98. The proposal relates to alterations to an existing roof top terrace. I acknowledge that the proposed enclosure is likely to increase the use of the terrace in that it would be available for use in all weather conditions. However, permission is not sought for the use per se. The existing use is allowed by the 1989 permit.
99. There is an established principle that permit conditions must reasonably relate to the reason for which permission is required. There is thus no discretion in this case to impose conditions relating to the use of the terrace. Nevertheless, I note Mr Connor's submission that since its inception the facility has been
well-managed. In the light of Mr McDougall's evidence about the nature of the clientele, the attitude to alcohol and the management of the facility it is reasonable to expect that the altered rooftop is unlikely to lead to any complaints in the future. During my inspection of the building I also noted that there is a "quiet rule" imposed throughout the building between 11pm and 7am.
100. The Council's position on this application focussed on the issue of height and relied on the mandatory height controls in its adopted version of Amendment C20. The version approved since the hearing imposes a maximum height limit but provides for an exception. The proposal is permissible under the new DDO32 and the proposed works neatly fall within the qualified exception.
101. The proposal represents a minor change to an existing use which is supported by State and Local planning policies, particularly those encouraging tourism.
102. Provided the extension beyond the southern stairwell is deleted the proposal will have no adverse impact on the heritage values of the area. It would also be appropriate in terms of general urban design principles and have no detrimental impact on nearby residents.
103. Accordingly I will allow the Application for Review and make the appropriate order.
104. The conditions I intend to impose are based on those submitted by the Responsible Authority prior to the hearing and discussed at the hearing but modified to reflect my findings. They have also been modified to include revised conditions tendered by the Council at the hearing which incorporate a response to minor discrepancies in the submitted plans identified by Council officers. Ms Williams' suggested conditions relating to the use have not been included.
Perkins & Associates Pty Ltd
Melbourne CC [2003] VCAT 325
The Tribunal set aside the Responsible Authority's refusal and directed that a permit be granted under s85(1)(b) Planning and Environment Act 1987 for alterations and additions to the rooftop terrace at 78 Howard Street in accordance with endorsed plans, subject to conditions including deletion of the 900mm southern extension and other plan amendments, material/finish requirements, non-reflective external walls, and specified commencement/completion times (see Order and conditions at head of reasons and paras 1, 100-103).