2. A permit must not be granted in this application.

Mr J Cicero appeared with Mr D Scally, both of Best Hooper, solicitors, on behalf of the responsible authority.

C J Canavan QC appeared with Mr D O'Brien of Counsel, instructed by McKean & Park, lawyer, on behalf of the Applicant.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("the Act") for review of a decision of the Port Phillip City Council ("the Council") as responsible authority under the Port Phillip Planning Scheme refusing to issue a permit in application no. 1248/1999.

2. The application is for demolition of existing buildings, including an existing house, at 31 Ormond Esplanade, Elwood ("the subject land"), and for construction of two semi-detached dwellings and garages, in accordance with accompanying plans.

3. The permit application was made by Riddle Radcliff Pty Ltd, a firm of architects which was the Applicant for Review. Both applications were amended in the course of the hearing by the substitution of Adrian Reis and Maureen Reis, who are the owners of the subject land and intending developers, as Applicants in lieu of their architect.

4. On the first hearing day, Mr Canavan QC, who appeared with Mr O'Brien of Counsel on behalf of the Applicant, applied to amend the permit application by the substitution of a revised set of plans in place of the plans that had accompanied the application. The new plans were drawn by Riddle Radcliff, project no.98101 drawing nos. TP02a, TP03a and TP04a, all dated 4 March 1999 and marked Revision A.

5. These plans had already been submitted to the Council. Mr Cicero, who appeared on its behalf with the assistance of Mr Scally, had described the differences between the two sets of plans in his written submissions.

6. Mr Cicero agreed that no further notification of the proposed amended plans was required. The Tribunal then amended the permit application under Clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, to make the substitution of the Revision A set of plans.

7. The subject land is situated on the south-east corner of the intersection of Normandy Road and Ormond Esplanade, Elwood. It has a frontage of 27.7 metres to Ormond Esplanade and 48.7 metres to Normandy Road, with a site area of approximately 1,321 square metres.

8. The existing dwelling is single storey, set back some 9 metres (varying) to Ormond Esplanade and 6 metres to Normandy Road, except for a brick garage built to the boundary and a section of solid wall forming part of a porte cochere about 2 metres from the boundary. There are crossovers on both frontages, providing a carriage sweep that passes under the porte cochere at the front entrance to the house, which faces toward Normandy Road. Wide verandahs face both streets. There is a low rendered pillar and rail fence on both frontages (the rear part of the Normandy Road frontage having a section higher fence and gate), and paling fences on the other boundaries.

9. At the rear of the site there is a private garden area. At the front, there are garden beds containing what appear to be generally low-maintenance shrubs fringing lawns. The outstanding feature of the front garden is that there are two large palm trees, one at each end, of a species that bushes out from low above ground. The area taken up by these two palms makes them incompatible with the proposed development. Although not indigenous to the area, various types of palm tree are well known as quite a traditional part of gardens close to the foreshore. It was not asserted by any of the witnesses that the palm trees had a value that made it undesirable for them to be removed.

10. In describing directions, I have simplified the actual orientation. The part of Ormond Esplanade which includes the subject land runs in a slight curve from north-west to south-east, facing directly towards the beach in close proximity to the foreshore. The intersecting streets run north-east/south west on a regular grid. This gives rise to some interesting angles and irregular setbacks in the properties fronting Ormond Esplanade.

11. It is proposed to demolish the existing house at the subject land, and to construct two new semi-detached dwellings, both two-storey, with basement parking. Both would front towards Normandy Road in terms of their front door and vehicle access.

12. The front dwelling as proposed would "face" towards the foreshore, in that it would have its living areas, with large windows, and a recessed front balcony, located at the upper level facing across Ormond Esplanade towards the bay. The location of most bedrooms on the ground floor and the living areas at first floor level responds to the availability of a prized bay view, which has obviously been a dominating element in design of both detached dwellings and apartment blocks in this part of Ormond Esplanade, as illustrated by the many photographs tendered by both parties.

13. There would be no gate or crossover onto the Esplanade. The removal of vehicle access from Ormond Esplanade is supported. The Council, however, wishes to see the dwelling "addressing" Ormond Esplanade, to reflect a characteristic of buildings in this area. The present dwelling only does so by continuing its verandah around to the Ormond Esplanade elevation. The Applicants submitted that the proposed dwelling would improve the impression of address to the Esplanade.

14. The rear dwelling would have limited oblique views towards the bay. It would have its living areas concentrated on the ground floor, and the bedrooms upstairs. It would share a common driveway with the front dwelling, under a wooden canopy entrance feature. Each dwelling would have its own separate front door and pedestrian path onto Normandy Avenue.

15. Both dwellings are lavish in size. The front dwelling has three bedrooms, one of which is situated on the upper floor with its own terrace and a full sized en suite bathroom, plus a study, office, games room, parent' retreat and living, dining, family room and separate meals area, as well as kitchen and various additional bathrooms. The rear dwelling has four bedrooms, numerous bathrooms etc, with games room, parents' retreat, study, an open kitchen family room area, and a combined living/dining space. Each has its own lap pool. The basement parking accommodates three car spaces and a lift well for the front dwelling, and four spaces for the rear unit.

16. Secluded garden space is not over generous for dwellings of this size; but gardens are not a big feature of this part of Ormond Esplanade. No serious criticism was made of the open space provided.

17. It will be necessary to return to some details of the proposal, but for immediate purposes, I will record that there is general compliance with residential standards under the Good Design Guide, as set out in Mr Collie's statement of evidence.

18. Although there were two objections to the Council, one from a company associated with the nearby 35 Ormond Esplanade, no-one served with notice of the commencement of the Application for Review has responded by pursuing an objection to the proposal at the Tribunal.

19. The subject land is located in a Residential 1 zone, and is affected by both a Heritage Overlay and a Design and Development Overlay. No permit is required for the use of the subject land for the purpose of dwellings in the Residential 1 zone, and the Overlays deal with construction, not use. The proposed use therefore requires no permit.

20. Ormond Esplanade is in a Road Zone Category 1. Under Clause 59.29 of the Planning Scheme, a permit would have been required for creation or alteration of an access to this zone, and the application would have been required to be referred to Roads Corporation. However, this is unnecessary in view of the proposal to remove the existing crossover to Ormond Esplanade, and to have crossovers for both the proposed new houses in Normandy Road.

· under Clause 32.01-4 (Construction and extension of medium-density housing and residential buildings) for construction of two dwellings on a lot in the Residential 1 zone;

· under Clause 43.01-1 for both demolition of the existing buildings and construction of new buildings in a Heritage Overlay area; and

· under Clause 43.02-2 for construction of the proposed new buildings and carrying out works in a Design and Development Overlay area.

22. With respect to the demolition of the existing house, therefore, the only permit required is under Clause 43.01-1, the Heritage Overlay.

23. The Council decided to refuse the application on grounds related to non-compliance with -

* Council's Local Neighbourhood Policy for Elwood; and

24. No particulars of alleged non-compliance with any of the provisions or documents referred to were cited in the grounds of refusal, but the Council officer's report amplified the issues. Mr Cicero tendered a copy of it on the first day of the hearing.

25. Mr Cicero conceded that under the relevant planning controls, the subject land would qualify as a site for development if it were not for heritage considerations.

26. The Applicant's grounds of review may be summarised as that the proposed development -

* satisfies the purpose of the Heritage Overlay and Design and Development Overlay;

* complies with Council's local neighbourhood policy and building guidelines;

* complies with the intent and objectives of the Good Design Guide;

* will respond and contribute positively to the streetscape; and

* will be consistent with the orderly and proper planning of the area.

27. The last ground is irrelevant. It was not alleged that the demolition of one house on the subject land and its replacement by two houses, in a Residential 1 zone, would not be in accordance with orderly and proper planning. Both are forms of "dwelling" use that are as of right in the zone.

28. Mr Cicero and Mr Canavan agreed that there were two issues:

? Is the subject building of such significance that it should be retained and not demolished?

? Whether the proposed building is appropriate, assessed on character considerations.

29. As the proposed new development is designed in such a way that it cannot proceed unless the existing house is first demolished, the first question to be answered is whether a permit should be granted for demolition. The cannot be decided, however, without reference to the proposed replacement buildings.

30. The matters which the Tribunal must or may take into account in determining an Application for Review are set out in Section 84B of the Act. Section 84B(1) directs the Tribunal to take into account any relevant Planning Scheme. Clause 65 of the Planning Scheme sets out general decision guidelines.

31. It is well established that the law to be applied to the decision is the law as it stands at the date of the decision: Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

32. A relevant constraint on the matters which may be taken into consideration in making a decision on an application for a permit to demolish the existing building is referred to in Salmal Constructions Pty Ltd v Richards & Ors (1998) 99 LGERA 423. In that case, Balmford J considered an appeal from a Tribunal decision to grant a permit under the controls which were the equivalent to the Heritage Overlay prior to the adoption of the VPP format Planning Scheme. Her Honour stated (at 427-8):

"The permit is required only because the property is in an urban conservation area. That being so, the matter must be considered solely in accordance with the provisions of cl. 156 .... The requirement of a permit pursuant to this clause cannot be invoked to open the door to the consideration of criteria which are not relevant to the consideration of an application for a permit under that clause. The purpose of the urban conservation area overlay appears in cl 156 as `to conserve and enhance areas of architectural and historic significance and encourage development that is in keeping with them'. The discretion conferred upon the responsible authority (and on appeal, upon the Tribunal) to grant or refuse a permit for a building in an urban conservation area to be altered externally is directed to that purpose, and to that purpose only."

33. In reaching her decision, Balmford J followed the well established authority of the decision of the Full Court in National Trust of Australia (Vic) v Australian Temperance & General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592. The subject requiring a permit in that case was the height of a new building, which was proposed to exceed the stipulated maximum. The challenge to the proposal was based on the necessity to demolish an existing National Trust classified building on the site in order to build the new building. But demolition did not require a permit. It was argued that the general clause setting out criteria for the exercise of discretions, equivalent to the present Clause 65, justified consideration of the effect on the amenity of the neighbourhood of the demolition of the existing building. The Full Court rejected that proposition. It identified the purpose of the grant of the discretion as being to control the height of buildings, and found that notwithstanding the general words of the "discretion" clause -

"...... the responsible authority is not entitled `to introduce into considerations affecting the grant of a licence an element foreign to the duties' of the authority in that regard, or to engage `in a consideration of matters extraneous to the application for a licence', or matter which is `too remote' therefrom: see Victorian Railway Commissioners v McCartney [1935] HCA 28; (1934) 52 CLR 383 at 390, 395, 398. `The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purposes for which the discretion or power is conferred: see Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613 at 620, 237, 631 and 632. The discretion conferred by cl. 24(4) is one conferred for the purpose of controlling the height of buildings. In that connection it is proper to have regard to what is prescribed in cl. 5A. But to use that discretion for the purpose of endeavouring to ensure the conservation of an historic building and to regulate the orderly and proper planning of the area in which it is situate and the amenity of the neighbourhood, in other respects than with regard to the height of the building, is to endeavour to achieve ends outside the purpose for which the power in conferred and to intrude into the exercise of the discretion matters which are extraneous to it. The responsible authority could not properly refuse the permit under the planning scheme on such considerations and could not properly have regard to them in determining whether to grant a permit or not."

34. In this case, the Tribunal has to consider separate permit requirements addressed to different controls included in the Planning Scheme for different purposes, all of which have been invoked by the single permit application. Relevance is an issue in the consideration of each aspect of development for which a permit is required.

35. Also relevant to the resolution of conflict over interpretation of the Planning Scheme, as Mr Canavan pointed out, is Section 7(4) of the Act, which provides:

"If there appears to be an inconsistency between different provisions of a planning scheme--

(a) the scheme must, so far as practicable, be read so as to resolve the inconsistency; and

(i) the State standard provisions prevail over the local provisions; and

(ii) a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guideline in the planning scheme."

36. The subject land is within the "heritage place" identified as in the Schedule to the Heritage Overlay as "HO8". This heritage place is described as "Elwood-Glenhuntly Road, Ormond Road".

37. Since the hearing, there have been amendments to the Heritage Overlay Schedule, by the commencement on 21 December 2000 of the final version of Amendment C5. The subject land remains in the same overlay area, and the requirements set out in the Schedule for HO8 remain the same. The description of the area identified as HO8 in the Schedule has been expanded by inclusion of a brief outline of its limits. There has been no change to the relevant provisions of Clause 43.01 itself.

38. At the time of the hearing, the local policy was an interim policy that had been inserted into the Planning Scheme by Amendment C5 on 31 December 1998, originally for 12 months. Its operation had been extended until 31 December 2000. Amendment C5 was finally brought into operation in its approved form shortly before that date.

39. A number of changes have been made to the Local Planning Policy Framework as part of Amendment C5. The Municipal Strategic Statement ("MSS") divides the municipality into neighbourhoods, and sets out issues, "vision", objectives and strategies for each of them. At the time of the hearing, the context was set by general descriptions and a brief outline of the situation with respect to each of the issues separately identified in Clause 21.01, and "core framework objectives" identified at Clause 21.01-5. The issues included Heritage and Neighbourhood Character and Urban Design.

40. The amended MSS identifies the "planning neighbourhoods" on which the strategy is based in Clause 21.01,and goes on in Clause 21.02 to a background outline of each issue and each neighbourhood. Key issues are identified in Clause 21.03, both for the entire municipality and for each neighbourhood. The "vision" statement follows in Clause 21.04, again dealing with issues which are municipality-wide and then issues for each neighbourhood. Objectives, strategies and implementation for each identified issue in each identified area follow in Clause 21.05-1.

41. In both the current version and the original version of this statement, the great contribution made by Port Phillip's heritage buildings and places "to the attractiveness of the area as a residential location and pleasant place to do business" is recognised. The subject land is within the Elwood and Ripponlea Neighbourhood in both the interim and final MSS.

42. At the time of the hearing, the Elwood and Ripponlea Neighbourhood (neighbourhood 2) was divided into three sub-areas. In the final approved version, there is a new "Residential Neighbourhood Character Policy", which applies to all new development in a Residential 1 Zone: see Clause 22.01. The subject land is in the sub-neighbourhood 2 area of the Elwood and Ripponlea Neighbourhood.

43. There was no separate policy for residential neighbourhood character in the former version, although neighbourhood character was a matter relevant to a number of State as well as local strategies and policies, particularly the State policies referred to above and Clause 21.02-3: Neighbourhood Character and Urban Design.

44. I have looked at the policies as amended by Amendment C5 from December 2000 in order to ascertain whether there was any substantial change that would affect either local heritage policy, or local policy on any other matter relevant to any of the permit requirements relevant to this application. I have concluded that this Application is capable of being determined solely on heritage grounds - that is, grounds related to the permit requirements in Clause 43.01. A number of local policies contain a heritage component relevant under Clause 43.01. I will return to the local policies after starting with the State policy and the Heritage Overlay, which is a standard VPP provision applying in every VPP format Planning Scheme.

45. The State heritage objective, which appears at Clause 15.11-1, is:

"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, as a means of understanding our past, as well as maintaining and enhancing Victoria's image and making a contribution to the economic and cultural growth of the State."

46. Clause 15.11-2 (General implementation), commences with the statement that:

"Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development."

47. "Development " is defined in Section 3 of the Act to include "demolition of a building". This definition also applies in the Planning Scheme.

48. The list of places included in Clause 15.11-2 (General Implementation) is expressed to be inclusive rather than exhaustive. They are:

* Places of botanical, zoological or other scientific importance, including national parks and conservation reserves and the habitats of rare or endangered plants and animals.

* Places and sites of geological, palaeontological or other scientific importance, including rock formations and fossil sites.

* Places of Aboriginal cultural heritage significance, including historical and archaeological sites.

* Sites associated with the European discovery, exploration and settlement of Victoria.

* Important buildings, structures, parks, gardens, sites, areas, landscapes, towns and other places associated with the historic and cultural development of Victoria, including places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria.

49. There is a further heritage component in State policy, to be found in Clause 19.03, the Design and built form policy. This is:

New development should respect, but not simply copy, historic precedents and create a worthy legacy for future generations.

50. The State heritage policy is primarily directed at conservation of places with the requisite significance or value. "Enhancement" comes into the State policy objective itself only with respect to "Victoria's image". But in Clause 15.11-2 (General implementation), planning authorities are directed "to have regard to Local Government Heritage Guidelines (Department of Planning and Housing 1991) when preparing planning schemes or amendments to assist the conservation and enhancement of places, sites and objects of non-Aboriginal cultural heritage value."

51. Mr Canavan submitted that use of the words "or other special value" in the opening words of Clause 15.11-1: "To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value..." requires all the preceding matters to qualify as being of special value. In other words, he submitted that it is not State policy to protect all such places, but only those which are "of special value".

52. In Icon Developments Pty Ltd v Port Phillip (Application for Review no.2000/3244, decided 22 June 2000 by Ms Moles, Member), to which both parties referred, the Tribunal accepted that "cultural significance" is a term drawn from the "Burra Charter" ("The Australia ICOMOS Charter for the Conservation of Places of Cultural Significance"), which was drawn up in 1977 by the Australian branch of the International Charter for the Conservation and Restoration of Monuments and Sites, for the management of places of heritage significance.

53. In Icon Developments, the Tribunal described the role of the Charter as follows:

"The Charter seeks to set a standard of practice for those who provide advice, make decisions about, or undertake works to places of cultural significance, including owners, managers and custodians. It would be fair to say that the Burra Charter has become widely accepted throughout Australia as a guide to proper heritage conservation.

The Charter defines "cultural significance" as follows:

`Cultural significance means aesthetic, historic, scientific, social or spiritual value for past, present or future generations.

Cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects.

Places may have a range of values for different individuals or groups.' "

54. I agree that the fundamental concepts in the State heritage policy which may be considered to be relevant to buildings appear to have been drawn from the Burra Charter, to which Mr Beeston in particular referred in the course of his evidence on behalf of the Applicants. The concept of conserving "places" which may be sites, areas, buildings or groups of buildings etc, adopted in the Heritage Overlay, also follows the Burra Charter.

55. By definition in the Burra Charter, "cultural significance" means "aesthetic, historic, scientific, social or spiritual value for past, present or future generations". The significance lies in this value. The nature of "value" for the purpose of the State heritage policy in its application to buildings is illuminated by the Charter, on which the policy is largely based.

56. The Charter also defines "conservation", so as refer to the processes of looking after a place to retain its "cultural significance". It would therefore appear that the significance of a place lies in its enduring value, retention of which is the aim of conservation. The element of enduring value is implicit in the reference to value in terms of generations. It also receives support from the Design and built form heritage component in Clause 19.03, which looks to creation of a worthy legacy for future generations.

57. "General implementation", in Clause 15.11-2, states that planning and responsible authorities should "identify, conserve and protect places of natural or cultural value from inappropriate development", before setting out the list of places quoted above.

58. Although the State heritage policy objective is based on the Burra Charter, it appears to me to have been drawn so as to extend beyond the "cultural significance" addressed in the Charter, to add both elements of natural and environmental significance which are caught neither by the "aesthetic" nor "scientific" aspects of cultural significance, and also an extra potential class of "other special value" which will cover matters not otherwise included, but which may also have an enduring value that should be conserved. Because the list of potential "places" is not exhaustive, provision is made in the policy implementation for a place of "other special value" to be recognised under the heritage controls. I should add that the list of "places" does not attempt to divide aspects of the heritage objective into separate boxes for "natural", "cultural", historic and so on. "Cultural" and "historic" elements are treated as going together.

59. Clause 15.11 is a policy, not a part of the regulatory provisions of the Planning Scheme. It is not expected to have to be scrutinised as an exercise in statutory interpretation, although of course meaning has to be given to the words used in order to properly understand the intention of the policy. "Significance" is an imprecise, and therefore flexible, term made to cover a wide range of different types of place, and different categories of significance representing different values. It allows scope for the discretions contained in the Heritage Overlay to be exercised on the merits of each case, subject to the relevant policies and other criteria which are to be considered under Clause 43.01-5. I find that it is not necessary for each place having significance within any of the categories named in the policy to have "special" significance before its protection under the Overlay can be justified. There is no concept of "special significance" in the Burra Charter, nor does the State heritage policy itself create two different degrees of significance.

60. The policy does not provide justification for demolition of any significant "place". But as the place in question here covers a broad area, the demolition of one building within that area would not necessarily be inconsistent with the conservation of the place as a whole, unless the building itself has some importance to the cultural significance of the place. Whether retention of an individual component of a "place" is important in the conservation of that place is a matter for consideration in the particular case.

61. The Municipal Strategic Statement Heritage Conservation overview in Clause 21.05-5 ascribes the significance of the municipality's heritage places to their "strong reference to the rich social and cultural history of the area". This is also consistent with the definition of "cultural significance" in the Burra Charter.

62. The purposes of the Heritage Overlay include "enhancement" as well as conservation of both heritage places of cultural significance, and those elements which contribute to the significance of the heritage place. This implies that some elements may be demolished so long as they do not contribute to the heritage value of the place (the value being what makes it significant), and the consequence of the demolition will be enhancement of the heritage place.

63. The implication of allowing change through "enhancement" is that the opportunity is limited. The limitation is implicit in the degree to which enhancement of the heritage place can be brought about by demolishing part of it. I take the relevant meaning of "enhance" to be "To raise the value", rather than the alternative meaning of raising the price: see The Macquarie Dictionary, 2nd Revised Edition. This is supported by the definition "To raise or increase in value, importance, attractiveness" from The Shorter Oxford English Dictionary 3rd ed., which confirms that "value" is not confined to value only in terms of price. Indeed, it was not suggested by either party that the impact of the proposed development on the value in price terms of the subject land was relevant as a "significant economic effect" to which regard might be had under Section 60 of the Act.

64. The decision guidelines do not explicitly merge the issue of demolition with the issue of approval of a new building on the same site. They require that demolition should be considered as a separate issue in the context of its potential to adversely affect the significance of the heritage place, as well as directing consideration of a number of general issues that apply equally to demolition and construction.

65. Even though the requirement for a permit for demolition and a permit for construction of new buildings are separate permit requirements, both are part of the implementation of heritage objectives, and I do not consider that the Tribunal is debarred from considering the quality of the replacement building in assessing the application under the decision guidelines in Clause 43.01-5 by the issue of relevance, although policies not directed to heritage would be irrelevant. By contrast, the Design and Development Overlay is in the nature of a height and setback control, and it would be as wrong to apply heritage criteria to the decision under that Overlay as it would be to apply height concerns to the application for a permit to demolish the existing building.

66. Although the State heritage policy does not expressly link demolition to the quality of a replacement building, local policy does connect approval for demolition with the quality of new development (and has done so in both the interim and final forms of Amendment C5, to which I will return below).

67. The heritage place identified as HO8 is cited in the Schedule to the Overlay as "Elwood-Glenhuntly Road, Ormond Road". It extends with irregular boundaries from north of Shelley Street, including parts of Glenhuntly Road and Ormond Road, to south of Vautier Street, and includes parts of Ormond Esplanade to the west. The whole of Normandy Road (except the shopping centre) and the properties fronting Ormond Esplanade between Tiuna Grove and Glenhuntly Road are included.

68. The Heritage Overlay does not identify the subject land as a separate entity which is a "significant Heritage Place", in the words of the local heritage policy. The subject land is only identified in the Heritage Overlay as a part of the area included in the heritage place HO8.

69. In the decision guidelines set out in Clause 43.01-5, "the significance of the heritage place" is given prominence. But the Heritage Overlay itself does not indicate degrees of significance for the heritage place. Nor would it be safe to assume, in the case of a heritage place covering a wide area (as in the present case) that every property within a Heritage Overlay has at least some degree of significance that would individually justify its inclusion is such an Overlay.

70. In Icon Developments Pty Ltd v Port Phillip, the Tribunal recognised that -

"...... it is an initial step in assessing whether the demolition proposal would affect the cultural significance of this Heritage Overlay area to identify from whence the area derives its cultural value. Not all buildings or features of the Heritage Overlay area will have a role to play in cultural significance".

71. The dichotomy between "significant" and "contributory" places is reflected in the local heritage policy. This follows a well-established basis of distinction in heritage controls that apply to areas rather than to individual buildings. The Overlay's purpose distinguishes between the heritage place and those elements which contribute to the significance of the heritage place.

72. The decision guidelines require the responsible authority to consider "any applicable heritage study and any applicable conservation study". The Council has made use of the tools set up for the purpose in the VPP Heritage Overlay. It has carried out a heritage review, and has adopted local policies on heritage issues.

73. The Council relied heavily on its local heritage policy (forming part of the interim Amendment C5 provisions) that:

Any significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved.

74. The local heritage policy no longer applies only to significant Heritage Places identified originally in the Port Phillip Heritage Review (1998), but to "all land within a Heritage Overlay": Clause 22.04.

75. The Heritage Review (1998) was carried out by Mr Andrew Ward, an architectural historian who gave evidence on behalf of the Council. The Version 2, 2000 Review has replaced the 1998 Review as the document incorporated into the Planning Scheme under Clause 81 of the Planning Scheme, as well as cited in the relevant clause.

76. The Heritage Review (1998) did not contain a map showing the properties identified in it as significant or contributory; but a map based on the information contained in the Heritage Review had been prepared. This map, a copy of which was tendered by Mr Cicero, shows properties identified as "significant" in red, "contributory" places in green, and other properties uncoloured. Not every property within the HO8 area was coloured either red or green. At least one such property was shown to have been an omission. In any event, that map had no statutory status. It was a useful quick reference to the values given by the Council policy to the properties which formed the context of a particular site, as well as to the heritage status of sites. It is noted that a map of similar kind is now part of the incorporated documentation for the amended local heritage policies.

77. A very large number of the properties within the HO8 area are coloured red, or "significant" on the map tendered by Mr Cicero. The subject land and the property on the opposite side of the Normandy Road intersection, which is called "Yarramundi", are both significant. The properties next door to the subject land in both Ormond Esplanade and Normandy Street are "contributory". The two properties next to "Yarramundi" in Ormond Esplanade are contributory, but the properties to the north of it are significant. The majority of the properties between Bluff Avenue (to the north-west) and Normandy Road are shown as significant, but in the block south-east of Normandy Road, the concentration of significant buildings is diluted, returning to a high concentration of significant buildings on the east side of Byrne Avenue.

78. In the case of the properties fronting to Ormond Esplanade, the majority of the buildings in the HO8 area are shown as significant. Only about four are shown neither as significant nor contributory. Further south-east, Ormond Esplanade straightens out and ceases to follow the bay. It is notable that once it effectively swings inland, the concentration of significant buildings on the Council's plan diminishes to almost none, with the exception of one area at the southern extremity of HO8.

79. At the time of the hearing, Clause 22.02-1 contained the introduction to the local policies. The "by neighbourhood" format of the policies meant that there were heritage aspects, as well as urban character issues, in the policies relevant to the area within which the subject land is located. The main issues facing the Elwood and Ripponlea Neighbourhood did not include any specific heritage issues. But "valued Characteristics" of the neighbourhood" included "The ambience of the neighbourhood and sense of the area's history and heritage."

80. "The future vision for Elwood and Ripponlea" was expressed, in the case of the relevant sub-area (Area 2), as:

"Marine Parade and Ormond Esplanade are popular foreshore boulevards which will retain their residential character and continue to experience change. Existing dwellings and apartment buildings will be upgraded and, in some cases, replaced with new single houses and multi-unit developments. All new buildings in this area will incorporate high quality designs. New developments south of Meredith Street of 3 storeys in height will incorporate a pitched and tiled roof form to minimise the visual bulk when viewed from the boulevard, foreshore and adjacent residential streets and complement the character of the area."

81. I note, in relation to the reference to Ormond Esplanade continuing to experience change, that although the subject land is within a part of Ormond Esplanade that is contained in a Heritage Overlay, only about half the length of the Esplanade is affected by heritage controls.

82. Clause 22.02-3 identified Area 2 as an established residential area, and set out the policy basis for Neighbourhood Character and Urban Design issues. This includes:

"The Elwood and Ripponlea Neighbourhoods are important in the City of Port Phillip as they contain a valuable supply of large homes on large allotments which provide suitable housing for families. This is in contrast to many other areas of Port Phillip which typically comprise smaller houses and allotments which are not generally suited to the needs of larger households.

This neighbourhood has already undergone considerable redevelopment in the past, to the extent that over 60% of properties in the area have been converted to medium-density housing and apartment buildings. It is therefore vital that the remaining stock of larger family homes and single dwelling allotments are protected in order for the City of Port Phillip to continue to offer a range of housing choices to the community.

It is therefore important to retain the low density nature of parts of the Elwood and Ripponlea neighbourhood, and ensure that new development minimises site coverage and maximises land available for landscaping."

To encourage the retention and renovation of large homes in the Elwood and Ripponlea areas.

To restrain new multi unit development in established residential areas, except in appropriate locations such as on main roads or public transport routes, where no other constraints exist such as heritage considerations.

84. Policy included reference to Schedule 7 to the Design and Development Overlay with respect to Marine Parade or Ormond Esplanade, and also required consistency with the guidelines contained in the Port Phillip Design Manual (1998).

85. A separate "Heritage" section of this policy referred to the Elwood and Ripponlea neighbourhood as being important -

"...as the area demonstrates the final phase of the formation of the suburbs of the City of Port Phillip. The neighbourhoods has several areas which are of considerable heritage significance and are included in the Heritage Overlay (Clause 43.01). These include, but are not limited to:

· The dominance of Federation and Inter War apartment blocks and houses in the areas between Ormond Esplanade and Ormond Road, demonstrating the influence of the former electric tramway on residential densities in Elwood at the time."

86. The heritage section of Clause 22.02 continued:

"The Municipal Strategic Statement requires that heritage places be protected and conserved and that new development contributes positively to the heritage value and local urban character of a place. It also envisages attractive residential areas which are desirable places to live, offer a high level of amenity (including open space, privacy, solar access, parking and access to public transport) and are protected from inappropriate development.

Because of the rich urban character and heritage of these neighbourhoods, it is important that new development is carefully designed to fit into the context of its surroundings, and that the integrity of the heritage areas and individual buildings within them are maintained and conserved." [emphasis added]

87. The heritage policy references were Port Phillip Heritage Review (1998); Port Phillip Urban Character Study (1997); Port Phillip Development Controls Review (1998).

88. An extract from the Design Manual referred to in Clause 22.02-3 was tendered by Mr Cicero. He relied only on the "demolition" section of the Heritage Building Guidelines. The Design Manual (1998) has been replaced as a document referred to in the Planning Scheme by a "Port Phillip Design Manual, Version 3, 2000", which is a reference document to the Port Phillip Heritage Policy: Clause 22.04-4.

"It is City of Port Phillip policy to retain and conserve identified heritage buildings, including both significant and contributory heritage buildings.

There are therefore very limited circumstances in which the demolition of a contributory building (in whole or in part) will be considered by the City of Port Phillip as outlined in the following guidelines.

? To retain and conserve identified heritage buildings in order to maintain the integrity and character of significance streetscapes and areas.

? To ensure that demolition of an identified contributory heritage building (in whole or in part) only occurs where it can be demonstrated that demolition is the only feasible option and that new development will make a positive contribution to the character of the streetscape and does not diminish the heritage value of the area."

? Demolition of a significant heritage building is not supported.

? Permission will only be given for the demolition of an identified heritage building if sufficient justification is provided. Reasons for considering demolition include:

* The heritage buildings or parts of the heritage building to be demolished are structurally unsound and beyond repair in accordance with the provisions of the Building and Control Act 1993. Documentation is required to support such a claim.

* The heritage building cannot reasonably be renovated or incorporated into a new development. Documentation is required to support such a claim.

* In the rare situation where the responsible authority is satisfied that demolition of a heritage building is justified, this will only be approved if plans for a new development that will make a positive contribution to the character of the streetscape are approved concurrently.

92. With respect to the last guideline quoted above, I would have given no weight in considering the application under Clause 43.01 to the requirement that a replacement building "make a positive contribution to the character of the streetscape", as this relates to "streetscape character" rather than the preservation of the significance of the heritage place. But in any event, this material has been effectively superseded by the Demolition section of the Port Phillip Heritage Policy in Clause 22.04 of the Scheme. The new policy statement applies equally to both significant and contributory buildings (with an additional guideline in the case of contributory buildings), so that the impression given by the Manual that the Council would not consider applications for demolition of significant buildings is no longer a defect in the policy.

93. In Clause 21.04-3, the MSS states its current vision for the Elwood and Ripponlea Neighbourhood. This still contains a heritage element. Leaving aside the retail centre element, the vision includes:

· Marine Parade and Ormond Esplanade retain their residential character. Existing dwellings and apartment buildings are upgraded and, except for identified heritage places replaced with new single houses and multi-unit development. A high standard of design that responds to the character of the area is achieved in recognition of the prominence of this area along one of the major seaside boulevards in the municipality. [emphasis added]

94. General Residential Land use objectives continue to encourage retention and construction of large dwellings to cater for large households, and also design excellence. The specific Residential Land use objectives for the Elwood and Ripponlea Neighbourhood are:

· Discourage new medium density development in established areas, except in appropriate locations such as on main roads or public transport routes if no other constraints exist such as heritage considerations. [emphasis added]

· Protect the remaining stock of large dwellings and single dwelling lots in order to offer a range of housing options to the community.

· Protect the residential character of Marine Parade and Ormond Esplanade.

95. A distinction between issues relevant to heritage controls and neighbourhood character issues which arise pursuant to the Zone requirements appears in the general Neighbourhood Character strategy set out at Clause 21.05-3. Implementation of this strategy includes (in the case of areas covered by a Heritage Overlay) using the Heritage Policy in Clause 22.04 to manage new development and demolition of part of a heritage place, and using the Residential Neighbourhood Character Policy (Clause 22.01) to encourage new development covered by the Good Design Guide to respond to neighbourhood character.

96. Although heritage issues have been included as part of more general policies, they are also the subject of specific local policies.

97. Prior to 21 December 2000, Clause 21.02 set out the Council's strategic statements of what was sought to be achieved by its policy, and the policy commitments to assist in achieving those aims. Clause 21.01-4 dealt with heritage conservation. The relevant aims were:

· The retention, protection and enhancement of buildings, places, trees and streetscapes of identified historical, architectural, cultural, social, scientific or environmental significance.

· New development which is sympathetic to heritage places and contributes positively to the heritage value of the municipality.

· Restoration or sympathetic recycling of heritage buildings which will encourage their retention.

98. The new statement of heritage conservation strategy appears at Clause 21.05-5. Although it rewords these three objectives, it does not change their substance. I will set out the objective which is most changed, as this does add one aspect that was not previously explicit in this particular statement of objectives, although it appears in other policies that are also relevant. This is (with changes highlighted):

· To encourage new development that is sympathetic and respectful to heritage places and encourages high quality design that positively contributes to identified heritage values.

99. Relevant policy commitments for means of achieving the aims in the former policy included the following, which I will number for convenient reference:

(1) By using the Heritage Overlay to protect heritage places throughout the city.

(2) By encouraging heritage buildings and buildings in heritage areas to be restored or recycled and renovated in a sympathetic manner which will enhance the heritage value of the place.

(3) By ensuring that any additions or new development complements or replicates the identified heritage qualities of the city's heritage places.

(4) By supporting increased residential densities on sites where it can be achieved without adversely affecting the identified qualities of a heritage area.

100. The new provisions place (1) in "Implementation", reword (2) and (4) to provide minor clarification and relate more precisely to the subject of the control provided by the VPP format Heritage Overlay, and delete (3), which amongst other things gets rid of the term "replicates". The new text of (2) and (4), which remain the relevant statements for this proposal is:

· Encourage all heritage places in a Heritage Overlay to be restored, recycled and/or renovated in a sympathetic manner that will enhance the heritage value of the place.

· Encourage a conservative approach to urban consolidation in Heritage Overlay areas by supporting increased residential densities on sites where it can be achieved without adversely affecting the identified significance of a Heritage Overlay.

101. The local policy objectives for heritage in the Ormond Esplanade area of the Elwood and Ripponlea neighbourhood relevant to areas included in a Heritage Overlay, such as the subject land, were:

" To retain the architectural diversity of the Elwood and Ripponlea established residential area by protecting and conserving individually significant buildings and streetscapes.

To ensure that new development is sympathetic with the scale and form of existing heritage buildings and streetscapes in the established residential areas."

(a) Any significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved.

(b) Any Contributory Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved. However, as application to demolish part or all of a Contributory Heritage Place will be considered where it is not part of an intact streetscape, and:

· It is structurally unsound or cannot feasibly be reused; and

· The applicant can demonstrate that a replacement building will make a positive contribution to the area; and

· The replacement building complies with other parts of this policy.

(c) Any proposal to significantly alter or construct a dwelling is consistent with the Port Phillip Design Manual (1998) and reflects the prevailing scale, orientation and setbacks of existing buildings adjacent to and in the immediate vicinity of the site."

103. Clause 22.04, which contains the Port Phillip Heritage Policy, contains new elements. Its policy basis includes "Protection of the large number of heritage places that do not have heritage significance in their own right but collectively are part of the significance of these areas within an identified Heritage Overlay area". The policy basis also refers to the Port Phillip Heritage Review, Version 2, 2000.

104. Clause 22.04-2 now sets out a series of definitions which were not formerly included as part of the Planning Scheme:

Heritage place is a place that has identified heritage value and could include a site, area, building, group of buildings, structure, archaeological site, tree, garden, geological formation, fossil site, habitat or other place of natural or cultural significance and its associated land.

Significant heritage places include buildings and surrounds that are individually important places of either State, regional or local heritage significance or are places that together within an identified area, are part of the significance of a Heritage Overlay. These places are included in a Heritage Overlay either as an area or as an individually listed heritage place and are coloured "red" on the City of Port Phillip Heritage Policy Map in the Port Phillip Heritage Review, Version 2, 2000.

Contributory heritage places include buildings and surrounds that are representative heritage places of local significance which contribute to the significance of the Heritage Overlay area. They may have been considerably altered but have the potential to be conserved. They are included in a Heritage Overlay and are coloured "green" on the City of Port Phillip Heritage Policy Map in the Port Phillip Heritage Review, Version 2, 2000.

Non-contributory properties are buildings that are neither significant nor contributory. They are included in a Heritage Overlay and have no colour on the City of Port Phillip Heritage Policy Map in the Port Phillip Heritage Review, Version 2, 2000. However any new development on these sites may impact on the significance of the Heritage Overlay, and should therefore consider the heritage characteristics of any adjoining heritage place and the streetscape as covered in this policy.

105. The definition of "Contributory heritage places" appears to have confused the "heritage place" with the constituent parts of a "Heritage Overlay area". The "Heritage Overlay area" is not different from the heritage place. The scope of the Overlay is described in Clause 43.01. The area within which the Heritage Overlay operates is the "heritage place", each place being distinguished by its HO number in the Schedule to the Heritage Overlay. There is no such confusion in the purpose of the Heritage Overlay, which distinguishes between a heritage place and "those elements which contribute to the significance of heritage places".

106. A new set of Objectives appears in Clause 22.04-2:

"To encourage the conservation of all significant and contributory heritage places in the Heritage Overlay.

To discourage the demolition of significant and contributory heritage places in the Heritage Overlay.

To encourage all new development and redevelopment of significant and contributory places to be respectfully and harmoniously integrated with the surrounding character.

To encourage the retention, reuse and recycling of significant and contributory heritage places in the Heritage Overlay in a manner which conserves and does not detract from the surrounding character.

To promote design excellence which clearly and positively supports the ongoing heritage significance of the Heritage Overlay.

To ensure new buildings and additions complement existing heritage characteristics.

To ensure that new development and any publicly visible additions and/or alterations in or to a heritage place maintain the significance of the heritage place and employ a contextual design approach."

107. It might appear at first sight that these objectives vary from the Purposes of the Heritage Overlay as set out in Clause 43.01 by emphasising respectful integration with "the surrounding character" as a heritage objective, whether or not that character is established by the buildings that give the heritage place its significance, and irrespective of whether the surrounding character is established by buildings within the Heritage Overlay. However, the Heritage Overlay itself provides the means by which to define the relevant area from which "character" is identified for the purpose of deciding a permit application.

108. The Purpose deals with both conserving and enhancing the elements that contribute to the significance of the heritage place, and ensuring that development does not adversely affect the significance of the heritage place, neither of which deals with the general character of an area_._ The decision guidelines set out in Clause 43.01-5 include a reference to "character" in the case of an application for a permit for a building. Insofar as buildings which are not also within the Heritage Overlay may form the context in which the proposed building is to be assessed, the decision guideline extends no further than whether "the location, bulk, form or appearance of the proposed buildings is in keeping with the character and appearance" of adjacent buildings. It is a matter of interpretation whether the adjacent buildings must also for this purpose form part of the heritage place.

109. The Purpose of the Heritage Overlay makes it plain that the objective of this decision guideline is not preservation of the general character of the area (which is amply dealt with through other parts of the Planning Scheme), but preservation of the significance of the heritage place. In my view, it is not enough to show consistency with the character of adjacent buildings without consistency with the character of the heritage place. If the adjacent buildings are not consistent with such aspects of the heritage place as contribute to its significance, it would follow that they can be disregarded. This is consistent with Clause 42.01.

110. Clause 22.04-2 sets out a number of design guidelines as part of policy for Conservation of a Heritage Place. Some aspects of these also appear to be directed to "character of the area" rather than to the significance of the heritage place. The context in which these passages appears, however, is that of making decisions about heritage places. They are not about maintaining a general neighbourhood character any more than the decision guidelines in Clause 43.01-5 are, and the text must be understood in that context.

111. When the design guidelines are related to areas in the case of a heritage place like HO8, that covers a wide area containing numerous streets and many buildings, the character of the streetscape obviously refers to a streetscape which has some significance as part of the heritage place. I will refer in particular to two of the design guidelines, which appear to set out more detailed statements of well understood design principles already embodied in broad terms in the purpose and decision guidelines of the Heritage Overlay:

* Disregard the impact of buildings that are obviously atypical to the character of the streetscape when determining the appropriate mass and scale for new buildings or extensions or upper storey additions in a Heritage Overlay.

* Encourage a contextual design approach for additions and/or alterations to a heritage place or for new development. A contextual approach is where the alterations, addition or new development incorporates an interpretive design approach (derived through comprehensive research and analysis). New development should sit comfortably and harmoniously integrate with the site and within the streetscape and not diminish, detract from or compete with the significance of the heritage place, or streetscape character of adjoining or nearby buildings.

* Contemporary architecture and innovative design which is an important part of the contextual approach because it adds to the existing diversity and layering of styles through time. This layering is a defining feature in a number of areas and is therefore an important component of Port Phillip's heritage....

112. Policy for new development is to encourage buildings that incorporate certain identified characteristics in such matters as setback, building siting, scale and massing. The "Setback" guidelines are:

* Where new development is adjacent to a heritage place, it maintains and enhances an existing vista to the principal façade(s) of the heritage place. (Refer performance measure no.2).

* Has side setbacks which reflect those of the adjacent dwellings and the streetscape, where this is an important element in the streetscape.

113. In the case of demolition of a significant or contributory building, it is policy to:

* Not support the demolition of a significant building unless and only to the extent that:

* The building is structurally unsound or cannot be feasibly reused.

* The replacement building and/or works displays design excellence which clearly and positively supports to the ongoing heritage significance of the area.

* Not support the demolition of a contributory building unless and only to the extent that:

* The building is structurally unsound or cannot be feasibly reused, and either

* The replacement building and/or works displays design excellence which clearly and positively supports to the ongoing heritage significance of the area, or

* In exceptional circumstances the streetscape is not considered intact or consistent in heritage terms.

114. The local policy on demolition of a building in a heritage place thus expressly ties the approval for demolition to the quality of the replacement building. The terms in which this has been done appear to me to be consistent with the State heritage policy and the Heritage Overlay purpose.

115. The principle was accepted in PDG Corporation Pty Ltd v Port Phillip & Brett Young & Ors (Application for Review no. 1999/96651, the decision date of which had been omitted from the copy made available) where the Tribunal stated:

"The principle that a replacement building would make an equal or greater contribution to the significance of the heritage area is reflected in Clause 19 of the Planning Scheme that refers to new development in a heritage context creating a worthy legacy for future generations. The development would add to the recognised diversity of HO3. However......there is nothing before the Tribunal from submissions, or in the Tribunal's review, to indicate that it stands out as setting a new standard or benchmark in urban residential development. It does not represent an outstanding solution that may give some basis for the Tribunal to give weight to a contribution it might make in leading the way in urban consolidation outcomes or the adaptation of historic building fabric. It cannot be considered by the Tribunal as a development that warrants an exception on this basis."

116. Identification of the relevant controls, policies, and incorporated documents, and also documents referred to in relevant policies, and then going through the relevant portions of all the documents to which regard must or may be had in making a decision, took most of the first day of this hearing.

117. Little of this material was contentious in terms of what is was and why it was relevant. The introduction to the relevant local policies and the elements which did not form part of the approved Planning Scheme, being the "Policy Reference" documents, such as the Port Phillip Heritage Review (1998) and the Port Phillip Urban Character Study (1997), tended to take up most of the time spent on establishing the relevant policy content of the Planning Scheme because of the necessity to deal with small portions taken from large documents, but still ensure that the context was sufficiently explained and included to present a fair picture of the relevant documents. The large quantity of policy and reference material, however, proved useful when the final version of Amendment C5 was approved. I am able to feel confident, after considering the extensive policy component of the Council's case and the amendments to the Local Planning Policy Framework that the new strategic statements and policies do not alter the general thrust of the local policies, but have generally speaking improved consistency between the Heritage Overlay, State policy and local policy.

118. Nor does the change effected by Amendment C5 alter the fact that the strategies and policies are just that. They do not replace the State-wide provisions of the VPP Heritage Overlay clause. Their role is to form part of the body of material identified in the Planning Scheme which guides the exercise of discretions created in the regulatory part of the Scheme.

119. Policy, however strongly expressed, does not remove from the Planning Scheme the discretion to grant a permit which provides the very context within which the policy is to be applied. Mr Cicero referred to PDG Corporation Pty Ltd v Port Phillip & Brett Young & Ors (ibid), a case which gave what I regard as the appropriate treatment and emphasis to the heritage policies, both State and local (although it was not dealing with the current local policy).

120. In that case, the existing building had a "B" grading, and it was common ground that this was appropriate, although one witness threw doubt on it in relation to the loss of parts of the original structure. The Tribunal (comprised by Deputy President Horsfall and Ms Baird) stated (at p.17):

"The Tribunal considers that there is discretion to make a determination that would allow the partial or whole demolition of a `significant' building. Indeed, the Design Manual contemplates this approach in stating that an applicant may seek to justify demolition on the basis that `a well-designed replacement building would make an equal or greater contribution to the significance of the heritage area and that all relevant planning provisions can be satisfied'.

It is the Tribunal's view that the focus of current planning policy is that there must be strong justification to agree to demolition...."

121. Although I have considered the differences between the two sets of local policies, I do not consider that changes in the local policies have the same effect as changes in the regulatory provisions of a Planning Scheme in terms of which provisions to apply at the date of the decision. My intention was principally to ascertain whether there were any relevant changes of substance between the two versions of local policies. In my view it is appropriate to treat this application as having "transitional status" as regards changes in the policy aspects of the Planning Scheme since the hearing.

122. The regulatory provisions which create the need for the permit have not altered in any relevant way, and I consider that it would be unfair and unjustified to apply meticulously the details of the "design characteristics" which have been incorporated into the new Heritage section of the LPPF since the hearing to the decisions under the Heritage Overlay. In the absence of a major difference in a relevant policy, I have not considered it necessary to reconvene the hearing to allow the parties to make further submissions on the effect of Amendment C5. Nor has either party made application seeking leave for an opportunity to do so.

123. The first issue to be determined is the demolition of the existing house, as the application for a permit for new dwellings is futile without demolition.

124. The core of the Council's case was the question posed by Mr Cicero as "whether the clearly stated heritage policy of the responsible authority in respect of this dwelling ought to be upheld or whether the countervailing policies applying to the site, relating to urban consolidation, ought to apply". He submitted that the heritage policy ought to be given more weight in this instance.

125. Mr Cicero readily agreed that a policy cannot be more than a guideline in the exercise of a discretion. His statement of the central issue in this case does not seek to promote the heritage policy to a sort of de facto prescriptive control. To attempt to do so would be to fly in the face of Section 7(4) of the Act, by making a policy statement prevail over the specific control that creates a discretion. The policy cannot replace the discretion which the Heritage Overlay gives to the responsible authority (and to this Tribunal). However, in the absence of a hierarchy of policy set out in the Planning Scheme itself, Mr Cicero submitted that greater emphasis should be placed on the heritage policy as the subject land is located within a Heritage Overlay specifically, whereas the urban consolidation policy objectives (for instance) apply across the State to all land, whether it is affected by a Heritage Overlay or not.

126. Mr Canavan did not rely principally on the State urban consolidation policy, but on the Council's own local policy of encouraging high quality, sympathetically designed residential development suitable for families. He submitted that neither the heritage policy nor the family housing policy had primacy.

127. Both counsel cited SMA Projects v Port Phillip City Council & Brieska (1999) 2 VPR 270 (a decision of Mr Liston, Member). In that determination, the Tribunal adopted the following principles (omitting a principle specific to interim policies):

* Policy can never be more than a guideline; it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.

* Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.

* Policy should not be applied in a way that leads to a result which is inconsistent with a proper analysis of the evidence.

* The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes. Policy should not constrain a decision maker into accepting something less than the best decision in each case."

128. The Tribunal went on to say that although in the VPP system, planning decisions are meant to be heavily influenced by policy -

"...... policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of the land while at the same time avoiding unfortunate outcomes in individual permit applications."

129. This decision was quoted with approval in Icon Developments Pty Ltd v Port Phillip (ibid). Perhaps it would be as well, however, to clarify it by adding that "all the policies relevant to a proposal" means such of the policies in the Planning Scheme as are relevant to the decision that must be made.

130. The urban consolidation policy is in my view irrelevant to consideration of an application for a permit required under the Heritage Overlay. A general policy of consolidating development within existing urban areas and designated growth areas (see Clauses 14.01-2 and 14.02-2) is not directed to the purpose of the heritage controls. With respect to the application to build the proposed new dwellings, the urban consolidation policy must be considered alongside the heritage decision guidelines, because a permit is required under the Zone provisions as well as under the Heritage Overlay, and a decision made as to which must be given greater weight. But with respect to the application for a permit to demolish the existing building, the only permit requirement is the one in the Heritage Overlay, and the urban consolidation policy is irrelevant.

131. With respect to the application for a permit to build, the substance of what is proposed is the replacement of one large dwelling with two large dwellings. I regard the dwellings, although not fully detached, as being "family sized', and designed to accommodate families, although without the traditional informal yard space or garden areas. The MSS states that about 76% of households in the municipality are comprised of two persons or less, while only 17% of the total dwelling stock consists of detached houses and 24% of attached houses. The local policy for this area expresses concern to ensure a stock of family-sized dwellings in order to ensure diversity.

132. But there is also local policy guidance as to where residential development should go, and it is not directed into heritage places. Moreover, I do not consider that a net gain of one family sized dwelling is sufficient to justify giving greater weight to the urban consolidation policy than the heritage policy, should there be a conflict between them. The benefit in terms of additional housing would be negligible. In more general terms, it is difficult to justify giving greater weight to a generalised State wide policy that applies in all urban areas, and particularly residential areas, than to the heritage policy which applies for a very special purpose to a relatively few carefully selected areas of recognised significance.

133. Mr Cicero also submitted that the Council's local heritage policy raises a subsidiary question: Can a policy document establish the significance of a building for the purpose of the Heritage Overlay, or is the significance of the building a matter of fact to be established on the evidence by the Tribunal?

134. Mr Canavan submitted that no policy can compel the Tribunal to accept without independent consideration the level of significance of any building. Where the evidence conflicts, I accept that the Tribunal has to resolve the issue of significance; but as a general statement this may be too wide.

135. Mr Cicero submitted that the subject land was a "significant heritage place" identified in the Heritage Review, and it was policy that it should be conserved unless one of the limited exceptions could be shown to apply. Moreover, he submitted that the designation in the Heritage Review of the building as being a "significant building" must be accepted as policy, and it was not open to the Tribunal to find that the building ought properly be rated as a "contributory building". Mr Cicero further submitted that the Tribunal had been in error in reaching its own decision about the grading of a building in Kaystead Pty Ltd v Port Phillip (Application for Review no.1998/90776, decided 29 April 1999 by Mrs Osborn, Member).

136. An examination of what the Tribunal did in that case shows that the Tribunal did not accept that the subject building had "significance" as meant in the Purpose of the Heritage Overlay, but concluded that the Council had applied a "local" significance to a large number of buildings that were of less than local significance individually. In that context, the Tribunal found that the building did not justify the higher grading given to it in the Heritage Review, but a specified lower grade. Further, retention of the building was essential only if the proposal was unable to meet the requirements of the Heritage Overlay with respect to the replacement building. This indicates a judgment about the way in which the policy (including its grading formula) should be applied to the facts of the case. It was clearly a case where the Tribunal did not consider that a rigid application of the policy was justified, in part because the policy relied on a grading in which the criteria had been applied incorrectly: see pp. 23, 25-6.

137. The role of policy in the context of the heritage provisions of the VPP model Planning Schemes, and the Port Phillip Planning Scheme in particular, has been considered by the Tribunal in a number of other previous cases. Mr Canavan referred to 52 Fitzroy Street Pty Ltd v Port Phillip City Council, Nettlebeck & Ors (No. 1998/95366) and Lawonnue Pty Ltd v Port Phillip City Council (No.1998/14394) as well as Kaystead and two of the other cases mentioned below.

138. In Lawonnue Pty Ltd v Port Phillip City Council, the Tribunal considered a submission concerning the retention of a building named "Duart", under the previous form of area conservation control. The submission was that -

".........a building with the significance of Duart should be removed only if any replacement building made an equal or greater contribution to the Urban Conservation Character of the Precinct.

Appended to Mr Pitt's submission was a decision by the former Administrative Appeals Tribunal, comprised of Mr Russell Barton then Deputy President and Mr Gerard Sharkey, in Royal United Group v City of St Kilda Appeal No 1993/73854 (unreported). This was an appeal against the decision to refuse a permit to demolish 82 Queens Road, an 1880's villa......... In that case Mr Pitt also represented the Responsible Authority and he called Mr Trethowan to give expert evidence. In Trethowan's opinion - as set out in his study of 20th century buildings of St Kilda - under which study the building had been Graded A despite not being a 20th century - "where a graded building was proposed to be demolished any new development should contribute to an equal or greater extent to the urban character of the precinct or streetscape in which it was located."

We accept Mr Pitt's submission. We do not regard the proposed building - particularly as manifested in Wing A - to contribute a worthy architectural substitute to Duart."

139. In that case, the Tribunal also considered an extract from the Report of the independent panel which considered the Victoria Planning provisions (VPP) format Port Phillip Planning Scheme. The Report considered the way in which the Scheme dealt with maintaining the heritage character of an area where this has been recognised in statutory controls, and the maintenance of urban character in a more general sense. The following relevant extracts are from pages 34 and 35 of the Report:-

"The difficulty is that the quest to maintain a range of choice (in dwelling types and sizes throughout the municipality) is being confused with the issue of maintaining urban character and the issue of urban character is being confused further by frequently acquainting it with heritage character....

Maintaining urban character is not synonymous with maintaining existing building stock. Maintaining urban character pre supposes change, but change which respects the characteristics and elements which produce the evident character of the place.

Maintaining heritage character pre supposes that change will be minimal_. Most frequently it is the existing building stock which contributes to the heritage character of an area. Buildings, either individually or collectively, will have a heritage significance which should be conserved and enhanced. For this reason, there are controls over heritage places in respect of demolition alterations or additions to buildings to ensure that the heritage significance of heritage places (be they individual buildings or precincts) is not adversely affected. This is not to say that new buildings cannot be constructed in heritage places, but greater respect and restraint will usually be required than in other locations."_

140. The decision in 52 Fitzroy Street Pty Ltd v Port Phillip City Council, Nettlebeck & Ors occurred after those in Lawonnue and Kaystead. The Tribunal found an important distinction between the two cases. This distinction relates to the nature of the `heritage place' protected by the Heritage Overlay in the VPP format Scheme, which had come into effect by the time this case was decided. The Tribunal stated:

"In the Heritage Overlay Control, clause 43.01 of the Planning Scheme, the clause applies to the heritage places specified in the schedule to the overlay. In the Lawonnue case, the building Duart, was itself, in its own right, a scheduled heritage place. In the Kaystead_, as in this case, the heritage place to be enhanced and conserved etc, is not the individual building under consideration, but the area specified in the schedule._

In the case of individual buildings which are themselves heritage places in the schedule to the Overlay Control, the heritage significance of the building has largely been determined by the planning scheme amendment processes, and while there can remain debate about the particular significance of the building in an application before the Tribunal, the Tribunal would need to be cautious about finding that the particular building is of no significance, given that it is not the planning authority. This is not to say that there will be never a case in which the Tribunal could decide that notwithstanding the significance of the individually scheduled premises, the balance of planning policy would suggest that its demolition could be supported. This would depend on the balance to be struck between competing planning policy.

In the case of a proposal to demolish a building within a heritage place which is an area, an issue to be determined in each case is the contribution of the particular building under discussion to the significance of the heritage place, that is, the area. This is a decision which is clearly to be informed by the State and Local Planning Policy framework, and where appropriate the relevant incorporated or referenced documents."

141. Mr Canavan added to his argument the fact that the Panel which reviewed Amendment C5 had expressed a fundamental concern with some aspects of the study on which it was based, namely Mr Ward's Heritage Review (1998). A copy of the relevant extract from the Panel Report was appended to Mr Collie's statement. Its recommendation was that the Council should review its Heritage Study again before it was incorporated into the Planning Scheme.

? The Heritage Overlay was proposed to affect 60% of properties within the municipality, but had not been subjected to a rigorous analysis as an overall policy document, nor subjected to peer review.

? Those submittors who argued against inclusion of their properties had almost all been able to make out a good case, casting doubts on the strategic basis of the study.

(Note: It was not suggested that this was the case with respect to the subject land).

? The classification of buildings A to D as significant places made no distinction in the level of protection afforded to them between those buildings which were of State significance and those whose significance was merely local. `D' buildings were given the same protection as `A' buildings, although they may be merely representative of an era, without even local significance under this system.

? The Panel, looking at the breadth of the places graded D, E or F, questioned whether their inclusion was being used to preserve existing urban character, rather than heritage significance. It recommended further review of how the Council had defined heritage.

143. It should be noted that despite these general criticisms, the Panel considered area HO8 had historical value, and generally supported its inclusion in the Heritage Overlay.

144. Mr Cicero argued that the approach of the Tribunal in Halliday v Port Phillip & Swansson & Ors (Application for Review no.1999/93320, decided 29 February 2000 by Ms Baird, Member) was to be preferred to that of Kaystead. This also dealt with a building that had been given a "D" grading. The Tribunal accepted that the grading had been appropriate. The evidence before it included a concession from the permit applicant's heritage witness that the building met the definition for that grading because it was "representative of an era". The building was therefore "significant" by definition, and there was no conflict in the evidence (see p.9). Where the parties differed was in the permit applicant's argument (based on the evidence of his heritage witness) that certain buildings of the same grade represented the most important values, and should be the ones to be protected from demolition, while other buildings did not merit this level of protection. The Tribunal found that the building, or at least the façade, was substantially intact and made a contribution to the heritage values of the area, and that no matters had been raised against the feasibility of retaining the building. It was considered that this was a clear case where the policy against demolition should be applied.

145. This building had been given the lowest degree of significance that attracted a "significant" grading, being the one to which the Panel had drawn attention. But the Tribunal also accepted (at p.13) that:

"The removal of a relatively lowly graded building in a heritage area can cause a greater impact than may be suggested by its individual grading....[T]he gradual erosion of buildings that have been identified as making a contribution to the cultural and historic values, and diversity, of this area will weaken those values. This is also contrary to the purpose of the Heritage Overlay."

146. This principle was applied by the Tribunal in Goodrich v Port Phillip (Application for Review 1998/88481, decided 7 May 1999 by Mr Marsden, Member, a copy of which was tendered by Mr Cicero). In that case, the Tribunal stated the second part of the proposition somewhat differently. In my view, the above statement is to be preferred in the context of the present Planning Scheme. I also accept that the responsible authority, and Tribunal, must guard against "gradual erosion" of the significance of a heritage place in the manner described.

147. In SMA Projects v Port Phillip City Council & Brieska (ibid) Mr Moles added, in relation to the demolition aspect of the application:

"......the approach by Ms Riddett to elements of cultural significance results in an approach whereby any loss of building style which meets the identified characteristics would be assessed as detrimentally impacting on the heritage significance of the area. This surely is the correct approach to the retention of cultural significance of an area."

148. As regards the identification of the degree of significance of the existing building at the subject land and its surrounds for the purpose of applying the policies, I had the benefit of evidence from three expert witnesses. Although the Planning Scheme now includes a new edition of the Heritage Review which identifies significant and contributory buildings as an "incorporated document", I am of the opinion that it is more appropriate to consider the evidence as presented to the Tribunal than to go to a further document in order to establish the significance of the buildings that were referred to in evidence.

149. If there is no conflicting evidence, the relevant Heritage Review would be the only evidentiary material before the Tribunal, and could be a firm basis for a finding that the subject building had the significance stated in it. But even then, it may be possible to show that the statement contained in the review about a particular site had omitted some relevant consideration, or that some relevant change had occurred since the review was carried out. A classic instance would be where the citation made it clear that the property described had been given the wrong address, and the subject building was quite different to the one described in the Heritage Review.

150. If there is conflicting evidence, as here, the fact that there is a statement of significance in an incorporated document does no appear to me to be necessarily definitive, or even necessarily to carry the greatest weight, although if the document grades the building is a certain way, the Tribunal has to beware of "rewriting" an incorporated document by according it a different grading. But the value and significance of a heritage building is a matter of fact, like the area of the lot and the colour of the paintwork. If heritage value has been ascribed to a building in a local policy, the procedure for amending the Planning Scheme should have ensured that this has been verified. The Heritage Review is one form of supporting document that would be accepted as verification. The value has therefore been supported by the opinion of at least one expert, although the subject matter being what it is, it is to some extent subjective. However well supported, however, policy cannot make facts other than they are, although it can affect the weight to be given to various criteria relevant to the exercise of discretions.

151. Mr Canavan further submitted that it was significant that the Council had not included the subject land in the schedule to the Heritage Overlay as a "significant heritage building". He submitted that the listing of Duart as a B graded building in the South Melbourne Urban Conservation Study of 1987 in the Lawonnue case had given it an increased heritage significance. A `B' grading may be more significant than a `D' grading, depending on the type of grading system used. In the case of Duart, although its individual grading in the Conservation Study was noted, I cannot discover in the Lawonnue decision, any distinction in the relevant controls between Duart as an individual building and its significance as part of the urban conservation area in which it was situated. Only one conservation control was cited, and that was the urban conservation control for an area including but not confined to Duart, and which was referred to as a "precinct". I conclude that the significance of Duart was a matter affecting the exercise of the Tribunal's discretion.

152. Some earlier decisions of the Tribunal draw a distinction between a building that is "individually listed" in the heritage control and one that is part of an area, in terms of the degree of significance to be afforded to a particular building which is subject to a Heritage Overlay. It is necessary to be careful not to confuse the fact that there is a Heritage Overlay affecting a site with the content of the Overlay control. The same statutory instrument is made, under the VPP format Planning Scheme, to do the work of both an "area" control and a control over individual sites.

153. The present Heritage Overlay may be compared to the provisions of Clause 14-12 of the Regional Section of Metropolitan Planning Schemes, which is gradually being replaced by the VPP format Planning Scheme, and which makes reference to Melbourne's many significant l9th and early 20th century buildings, continuing:

"Conservation of these valuable assets is essential to retain and enhance the image of the metropolis and to provide a focus for economic and cultural growth in Victoria.

· The character and appearance of nominated areas of aesthetic, architectural or historic interest or of special cultural value are to be conserved and enhanced.

· Nominated individual buildings with historic associations, unique or unusual features, or a particular architectural or building style, which are considered to be a valuable part of Victoria's cultural heritage should be conserved and enhanced."

154. This policy statement was reflected in a distinction between "area" controls and "individual buildings" controls which has been eliminated in the VPP format Planning Scheme. In the VPP format, a statement of the significance of both an area as a heritage area and of a particular site is expected to be found in the relevant heritage or conservation study, which must be considered pursuant to the decision guidelines in Clause 43.01-5. The purposes and the decision guidelines set out in Clause 43.01 distinguish between individual sites and areas, and the relevant parts of the purpose and relevant guidelines have to be selected for the circumstances of the particular application.

155. The fact that a building or site has not been singled out from its surrounds and given a separate Heritage Overlay does not mean that it is not significant; it only means that it shares the same kind of value with other land included in the same control. The Practice Notes contained in the Manual for the Victoria Planning Provisions, issued by the Department of Infrastructure as a guide to the preparation of the new format Planning Schemes, explained the drafting of a Heritage Overlay schedule for a "heritage place" as follows:

"It is envisaged that a heritage place could include a site, area, building, group of buildings, structure, archaeological site, tree, garden, geological formation, fossil site, habitat, or other place of natural or cultural significance and its associated land."

156. Under the heading "How do I treat individual buildings, trees or properties of significance located within significant areas?" in the Manual, the instructions direct a Planning Authority (at p.59) as follows:

"As the controls applying to individual buildings and structures are the same as the controls applying to areas, there is no need to separately schedule and map a significant building, feature or property located within a significant area.

The Heritage Overlay map, like all Overlay maps, is intended to show which places are subject to a control. The Heritage Overlay map is not intended to indicate those buildings, structures, trees or other features that are considered to be important within a significant area.

The only instance where an individual property within a significant area should be scheduled and mapped is in instances where it is proposed to trigger a variation to the control.... In such situations where a variation in the control is proposed, the individual property or tree should be both scheduled and mapped.

If it is considered important to identify the significant buildings or structures within a significant precinct, this can be achieved through a local policy."

157. The nature of the heritage place with which the Tribunal is concerned in this case is that of an "area". No distinction is drawn between the controls that apply within some parts of the area and other parts, whether the buildings within it are graded relatively high or relatively low. No-one has suggested that the existing building is of higher than local status - it is not, for instance, a candidate for the Heritage Register. Its treatment follows the guideline, and its individual significance is neither increased nor decreased by fact that it has not been identified as a separate heritage place.

158. Although the existing building was universally described as a house or dwelling, for many years it functioned as reception rooms. It was not suggested that it is unsuitable for permanent use as a dwelling.

159. The area has been subject to two studies, which were referred to by witnesses for both parties.

160. The most recent of the studies was the Port Phillip Heritage Review (1998) by Andrew Ward, architectural historian, who gave evidence on behalf of the Council. This assessed the subject building as a `significant heritage place'. All `places' given a preliminary grading of A, B, C or D within a Heritage Overlay were taken to be significant.

161. The nature of this study was explained as a review of earlier heritage studies undertaken in the municipality. The earlier study in this area was The City of St. Kilda Twentieth Century Architectural Study (1992) by Robert Peck von Hartel Trethowan and Henshall Hansen Associates.

162. Mr Ward stated that although he had visited the area and house on several occasions, he had not inspected the interior. His report to the Council which formed the basis of his evidence identified the building as "a large Arts and Crafts influenced bungalow", which he had recommended for inclusion in the Heritage Overlay in the Heritage Review. The entry for the subject building in the Heritage Review added nothing to the entry in The City of St. Kilda Twentieth Century Architectural Study (1992).

163. Mr Ward assessed the importance of the subject building in conjunction with Yarramundi, on the opposite corner. Together, he considered, they dominate the point of entry to Normandy Street, which is also included in the Heritage Overlay. His evidence was:

"Whilst the building includes several delightful details expressive of the Arts and Crafts mode, its importance at this location rests also on the manner in which it addresses the sea front with a shady terrace, window bays and verandah to the principal elevation."

164. Mr Ward summarised his position on the case for retention of the building as:

* The fact that it has already been documented twice and considered to have importance.

* It is situated within a Heritage Overlay area.

* It occupies a prominent corner site, together with "Yarramundi" marking the point of entry to Normandy Road.

* Its architecture is highly expressive of its seafront location.

165. Relevant extracts from The City of St. Kilda Twentieth Century Architectural Study were tendered by Mr Cicero. This Study opens with an explanation that although a number of 19th century buildings had been noted and classified, there had been a lack of investigation into what constituted the majority of St Kilda's building stock, which was comprised primarily of 20th century architectural styles. The study was to start with evaluating and documenting 20th century buildings, areas and other places of aesthetic, architectural or historic interest in St Kilda, which was then a separate municipality but now forms part of Port Phillip. Its scope was very wide - "all sites that significantly contribute to the physical "character" of St Kilda".

166. The grading system that was adopted in this study was not the same as the grading system in the Heritage Review. All buildings of any significance, from National to local, were graded "A". Level "B" buildings in some way made a positive contribution to the character of their street or precinct. The only other grade was "ungraded" sites, which made little or no contribution to the character of their street or area, ranging from "ordinary quality buildings which disrupt a streetscape's coherent character" to vacant sites and carparks. "A" graded sites, or significant portions or aspects of them, were strongly recommended for retention: see p.112.

167. The criteria used in the Twentieth Century Architectural Study, individually or collectively, to justify an `A' grading were (summarising from p.113):

All sites listed A, B or C in the St Kilda Urban Conservation Studies.

A building was considered to be of architectural significance if:

1. it is a representative or extraordinary example of a particular style.

2. it is influential in the development of architectural style, building technology and construction techniques...

3. it is influential in the development of aesthetic theories and architectural design philosophy in a particular period.

4. it is a transient or permanent influence upon the development of local architecture and building traditions.

5. it is a representative or extraordinary example of an architect's work.

A site with buildings that are representative or extraordinary examples of a building type, including hybrid types such as conversions of earlier structures.

Particularly unusual or outstanding individual feature, such as an architectural element, decorative scheme, construction method, building material, garden, landscape element or fence.

Sites with elements that have a dominant or special presence on the street or precinct.

168. In addition to the above, which form part of an extract from the Study which was tendered by Mr Cicero, Mr Beeston added a further criterion:

"where the building exhibits an association with an extraordinary way of life, custom, process, function or historical development which have a strong association with an important figure, cultural group or event."

169. I assume that the extract made available by Mr Cicero was cut off a page too soon. However, the statement of significance of the subject building does not indicate that the authors of the Study considered this criterion to be relevant to it.

170. The Twentieth Century Architectural Study contains, as well as a statement of significance of the subject land, a photograph of its frontage from the street that appears (in a black and white photocopy) to look very like its present appearance. It describes the building as a one-story residence, dated 1928, Californian in style, and gives it an A grading. It had no recorded heritage listing or recommendation for listing. No architect was named; its builder was G Seddon; and its original owner was J Lang. It was noted that a permit was issued in 1956 for alterations in association with the Reception Rooms use.

"A low slung 1920s villa notable for its excellent pergolas and port cochere. Their powerful masonry piers and heavy timber work are picked up in the original front fence. For many years from the 1950s it was run as the Fontainbleau Reception Rooms."

172. The recommendation was "Retain as existing".

173. Comparing this statement to the criteria set out above, it would seem that the `A' grading was attributed to the building because of its "excellent pergolas and port cochere", which seem to have been treated as "outstanding individual features". Nothing else relevant to the criteria is indicated for the site. I note in particular the absence of any suggestion that the subject building and Yarramundi together represent an "entry" feature to Normandy Road.

174. By contrast, the statement of significance for "Yarramundi", at 27 Ormond Esplanade, which is identified as "Arts and Crafts" style, is:

"A large, complex, intact attic villa featuring a spectacular first floor balcony overlooking the Bay. Its exuberant design is the essence of Melbourne's inter-war bayside architecture, and the best in the Ormond Esplanade. It is the most prominent of a number of important and idiosyncratic works by the designer/builder, M Sherlock."

175. In his evidence, Mr Ward resisted giving a grading other than "significant" or "contributory" to the existing building. He took the view that "if the building is significant it is significant". Heritage significance is certainly the key concept in the Heritage Overlay. However, this is not an Overlay related to a single building, but to quite a wide area. The Tribunal is required to consider whether demolition of this building will adversely affect the significance of the heritage place. By confining his assessment to whether the building is significant, and not venturing into the question of how relatively significant it is, Mr Ward limited the assistance he was able to provide on the primary issue of whether demolition would adversely affect the significance of the HO8 area.

176. During the adjournment following the first hearing day, the Council secured Mr Ward's file notes for the Heritage Review, taken in 1997. They were produced when his evidence resumed. These represented preliminary assessments at the time of survey. The subject building was identified as an inter-war house of local importance (`D'). Yarramundi was given a `C' grading. The only other `C' grade building north of Normanby Road was one of the Inter-war "flats", of which six were identified out of 11 properties. The key to the status of the buildings was State importance - A, Regional importance -B, Local importance - C and D, Local interest - F, Not important - N.

177. Further references in the Heritage Review (1998) to the southern part of the area comprising HO8 include (at p.130):

"Considerable post-war development has also taken place, the number of new buildings helping to define the boundaries of the Area. The Ormond Esplanade is made up principally of inter-war apartment blocks with new complexes under construction at the time of survey."

178. The final general description of the area was:

"Whilst the early buildings of Elwood were houses, intense growth during the 1920s and 19302 saw a dramatic increase in the number of blocks of flats being built...... It marked the final phase in the development of the Area and has since been overlaid with post war reconstruction especially concentrated near the shore line where pressures for change have most recently been the greatest."

179. During cross-examination, Mr Ward identified a number of inaccuracies in the statement of significance. He explained that he had relied on the work of Mr Trewthowan in The City of St. Kilda Twentieth Century Architectural Study, and his own "windscreen study", with a closer look at places identified as being significant in a previous study, including the subject land. The description of the review method (at p.6) of the Heritage Review, acknowledged that a quick visual inspection of the exterior of a building could not be said to constitute a thorough appraisal. He had not looked at the permit granted for the alterations to the subject building. While his recommendation was based on the Twentieth Century Architectural Study, he made the distinction that he did not adopt the Study. He commented that the statement of significance was not the sort of thing that would be relied on these days; at that time, urban character and heritage value were blurred in a way that would not be acceptable now.

180. As Mr Ward relied on the earlier Twentieth Century Architectural Study, and added little research of his own, I do not consider that the fact the subject land has been graded in the Heritage Review as well as the Twentieth Century Architectural Study adds to its significance.

181. If Mr Ward had been grading the subject land now, he stated that he would give it a `C' grade, based on its aspect over the sea and relationship to Yarramundi on the opposite corner. The two houses had been built at the same time, and faced each other, both with frontages to the corner so as to avoid ugly side fences. He added that it was right in the centre of the protected frontage along Ormond Esplanade, which was an almost intact row of interwar houses, the interwar period being the major period in this area. The photographic evidence, confirmed on my inspection, indicates, however, that the row of houses is not very long. The interwar flats take up a considerable proportion of the overall frontage in this part of the Esplanade. The mix of houses and flats is part of the historic development referred to in the Heritage Review.

182. Mr Canavan followed up in cross-examination a number of aspects of the statement of significance of the HO8 heritage place set out in the Heritage Review (1998). The statement is:

"The Elwood/Glenhuntly and Ormond Roads Area has historical value (Criterion A) for its capacity to demonstrate the attraction of the Port Phillip Bay coast line as a location for marine villas during the mid-late Victorian period. In this respect it compares with nearby St. Kilda, Brighton and Sandringham which sustains similar coastal development from an earlier date. It is important also as an Area founded on the first of the Victorian Railways, two "electric street railways" promoted by the premier and Minister of Railways Thomas (later Sir Thomas) Bent. The Area has aesthetic value for the diversity of its villas and interwar apartments often evoking romantic images of the period. Its tree lined streets are also a distinctive characteristic. ...... The Ormond Road centre assists to underscore the Area's distinctive interwar character, the former " Broadway theatre" recalling the importance of the suburban picture theatre prior to the advent of television in 1956."

183. The "electric street railways" are of course trams. Mr Canavan put to Mr Ward that the tramway was opened in 1906, and the spur line completed in 1916, while the subject building was not built until 1928. Mr Ward agreed that the link between this building and the development following the tramlines (being the historic element of the statement) was tenuous.

184. With respect to the architectural element, Mr Ward found a "romantic image" in the shady verandahs overlooking the water. This was not a design, in his view, that would have been built away from the beachfront. It presented an image of a leisurely lifestyle, where residents could sit out on the front verandah enjoying the bay view. He was referred to a photograph taken by Mr Collie that showed a pavilion on the foreshore in the direct view line, although its construction date is unknown. Mr Collie's photographs taken from the foreshore looking towards the subject land also indicate that the view between the subject land and the water is reliant on a gap being maintained in the vegetation along the foreshore reserve. Mr Ward was describing the image rather than the present reality, although the view may have been different in the late 1920s.

185. It is difficult to assess such a vague, subjective description as "romantic image" into an assessment of heritage significance. After studying the evidence and the photographs, I concluded that this should be taken to mean the rather fanciful design of many of the dwellings, which are generally large in this part of the Esplanade, with deep porches and wide balconies, the long, wide verandahs of the subject building, bow windows, a high degree of articulation (with lots of gables and curved features) and generous architectural features and detailing; also that so many of the dwellings in a limited stretch of frontage have this quality. The element of diversity referred to in the statement of significance is certainly to be found in the buildings close to the subject land on the Esplanade frontage.

186. However, most of the buildings facing towards the bay in this part of the Esplanade are of two or more storeys, so that it would appear that a second storey was generally seen as the best way to obtain the bay view. The photographs from the foreshore demonstrate this very clearly, with the large windows and balconies of upper storeys visible above the vegetation line looking out towards the bay.

187. When challenged on his description of the subject building as "dominating the point of entry", Mr Ward agreed that it was indeed "low slung", as the statement described it. But he considered that it had a presence that other houses did not have, because of its two street elevations. He considered that its strong inter-war character was part of the area's character.

188. Mr Canavan also put to Mr Ward that 50% of the buildings in the heritage place had been assessed as contributory, and that this was not enough to justify an opinion that the area was "intact". Mr Ward did not agree that 80% was more appropriate. I do not consider that the boundaries of the heritage place are a matter that I should consider open to review. They have been fixed by the Schedule to the Heritage Overlay. The degree of intactness of the elements that give the area its heritage value is, in my view, only relevant to this hearing for the purpose of assessing the effect of the proposed demolition and redevelopment on the significance of the heritage place.

189. Mr Bick, a consultant architectural historian and conservation architect, gave evidence on behalf of the Applicants. He stated that he had carried out a heritage study of the area in 1984, but had not identified the subject land at all. He referred to its A grading in The City of St. Kilda Twentieth Century Architectural Study (1992).

190. The evidence of Mr Bick was that the existing building at the subject land was -

"A largish single storey house that is very largely devoid of features and decoration apart from the verandahs and their tall masonry piers, squat timber columns and shaped verandah rafter ends. The porte-cochere is apparently a later addition, as it does not repeat all of the verandah detailing (and could well have been added in the 1950s for the reception rooms use).

Behind the verandah the rest of the building is surprisingly plain for its time, both externally and internally - the original owner spent money on the size of the building and the verandah, and was parsimonious with the remainder.

The end result is not a significant or important dwelling of its time.

Much of Elwood was constructed during the 1910s, 1920s and 1930s, so there are a large number of 1920s residential buildings in this location, ranging from residences and houses to blocks of flats."

191. Mr Bick's "verandahs" are the "pergolas" described in The City of St. Kilda Twentieth Century Architectural Study. He noted that there had been a pergola over the front gate originally, but it was long gone.

192. Mr Bick compared the house at the subject land unfavourably with the dwelling on the opposite corner, and the nearby 39 Ormond Esplanade. He drew attention to the number of two and three storey buildings in the immediate vicinity. His assessment of the buildings from 13 - 37 Ormond Esplanade and 4 -20 and 7 -33 Normandy Road illustrated his contention that "not every component is significant". He expressed the view that a number (but not all) of the graded buildings had been given an overstated significance, and were not of a significance to justify preservation. In some cases this was a result of inappropriate alterations; in some, the buildings had never in his view had much heritage value.

193. Mr Bick expressed the view that the subject building lacks the qualities that justify requiring its preservation on heritage grounds. He regarded it as basic, of the same general period as the other buildings, noted the roof was not original, and considered that it made only a small contribution to the area. Its shaped verandah rafter ends and main beams, and the squat pillars, are typical features of 1920s and 1930s buildings, as are its other features such as curved bay windows and lead lights. Mr Beeston's evidence points to further internal features of interest. Mr Bick distinguished the 1920s residences in Ormond Esplanade and Normandy Road from other residences in Port Phillip by their larger than normal size. Apart from that, he considered that most of them were typical of their time.

194. With respect to the "heritage place", Mr Bick stated that the area was a mix, and it was necessary to identify which are the buildings that contribute to its significance for the purposes of the Heritage Overlay. The significance of the area is the basis of the control. Everything in it must be tested against that. In the case of such a wide area, there needed to be a way to distinguish significant elements from other elements. He considered it wrong in principle to afford buildings of `D' significance the same degree of protection as `A' graded buildings.

195. Mr Bick picked out the passage in the statement of significance of the HO8 heritage place "The Area has aesthetic value for the diversity of its villas and interwar apartments often evoking romantic images of the period" as being the "only reference to dwellings in the area". That is so with respect to "aesthetic value". The historic value recognised in this statement for dwellings is limited to "marine villas" at an earlier time that the period of the subject building.

196. The statement of aesthetic value gives recognition to the apartments that are a striking feature of this part of Ormond Esplanade. Indeed, as Mr Bick noted, the subject building is one of few single storey buildings, and single dwellings, along this part of the Esplanade. Mr Bick considered that its single storey scale meant that the subject building does not have a significant role to play in the Esplanade.

197. Mr Bick stated that he understood that the subject building had been given a `D' grading in the study, although these gradings were not used in the Review, indicating that it was merely representative of its era. He pointed to the fact that both the abutting properties were `contributory' rather than `significant'.

198. Mr O'Brien called Mr Roger Beeston to give evidence on behalf of the Applicants. Mr Beeston is a conservation architect, and principal of the firm of Roger Beeston Architects Pty Ltd. Mr Beeston's main area of expertise is in buildings of National and State significance.

199. Mr Beeston's evidence was directed to the cultural significance of the subject building. He had written his report for submission to the Council before the Heritage Review (1998) was published, so had concentrated on the Twentieth Century Architectural Study. He had stated that the subject building should be given no more than a `B' grading, meaning contributory status under that Study.

200. As well as referring to the two studies already mentioned and their recommendations, Mr Beeston referred to a heritage assessment of the subject building carried out by Graeme Butler in 1995 for the Port Phillip City Council. He stated that the level of significance given to the building by the Twentieth Century Architectural Study was challenged in that report on the basis of a lack of distinctive original detailing and the subsequent loss of some of the original detailing. Although that report may be part of the history of assessment of this building, it was not produced, and its author was not called to give evidence. The evidence of the witnesses who gave evidence which was tested by cross-examination is to be preferred. I place no weight on the material drawn from this report.

201. Although Mr Beeston considered that it exhibited architectural features common to many other contemporary houses across Melbourne, he gave the subject building credit for "distinctive remnant features":

* The verandah with its tapered masonry support columns;

202. The fact that the building appeared to have been builder-designed, without the involvement of an architect, was itself a common feature of the inter-war "bungalow" type of dwelling. It was thought that this led to a very free use of a wide variety of building style "palettes".

203. Mr Beeston described modifications done to the subject building, based on a physical survey and his research at the Council's Building Office. Interior changes included removal of some internal walls and construction of others; various new door and window openings and sealing of original door and window openings; removal of a fireplace in the main bedroom, removal of almost all the original bathroom and kitchen services and fittings; replacement of some floors; replacement of the fire place surrounds; removal of some of the lead light to doors and windows; and loss or overpainting of all the original decorative schemes.

204. The Twentieth Century Architectural Study makes no reference to interiors, and Mr Ward stated that he had not been inside the building. As neither the Twentieth Century Architectural Study, nor the Heritage Review based on it, made any reference to the internal features of the building, it can be safely assumed that these modifications had nothing to do with the features that had been identified as significant for the purposes of the Heritage Overlay. Mr Beeston explained that he had applied the Burra Charter criteria to his examination, and an internal examination was a requirement for a Heritage Council investigation. The quality of the interior may, however, be relevant in the exercise of discretion, even if it is not a factor in the statement of significance.

205. Mr Beeston went on to review the exterior. He also raised the possibility that the porte cochere might not be original. He stated that it was not shown on what was believed to be the original working drawing, while the garage is shown. But if it was not original, he agreed that it was an early addition. Further changes were:

* Replacement of original roof tiles with later concrete tiles;

206. Mr Beeston had also looked at the condition of the building. He found that the support timber to the verandah roof structure had rotted and would need repairs within 1-2 years to prevent the potential for partial collapse, and that there was some evidence of roof framing deformation. Most of the original double hung sash windows needed refurbishment.

207. The remaining decorative plaster ceilings had been neglected and would require significant repair if they were to be retained. He considered that the decorative plaster ceilings and the lead lighting were probably the most significant original features. As already pointed out, this cannot have influenced the architectural and heritage status selected in either study.

* The house is of local significance within the district of St Kilda/Elwood only. It is not of individual cultural heritage significance. It should be regarded as contributory.

* The house, while unique, is of a genre where uniqueness is not unusual. In many respects, it is of a standard and unexceptional design.

* While broadly intact, the house has been significantly modified from the original design.

* The existing `significant heritage place' listing cannot be substantiated.

209. Mr Beeston also made recommendations. These were:

* Modify listing to `contributory heritage place'.

? That the existing building is subject to a thorough archival quality recording of existing conditions, consistent with standard Heritage Victoria requirement (measure drawings, black and white photographs and video);

? That any replacement design is appropriate within the requirements of the Port Phillip Planning Scheme, including the crucial relationship such a new structure would have to the significant Yarramundi, at 27 Ormond Esplanade.

210. As well as the possibility that the porte cochere is an addition, Mr Beeston referred to the loss of the original front gate. He considered that both the addition and the loss have lessened the integrity of the original design, and ability to read it as it was - hence, its original significance.

211. The fact that the porte cochere may not have been part of the original structure does not appear to me to jeopardise the status of the building under the criteria used in the Twentieth Century Architectural Study. Mr Beeston accepted that if it was an addition, it was an early one, and "hybrid buildings" were considered acceptable as building types so long as they displayed the qualities that merit the `A' grading. The infilling between the pillars of the porte cochere, does seem to be later than the pillars, and is a heavy, solid structure quite inconsistent with the verandah design; but that could be removed. I do not consider that the significance of the building is jeopardised by this or by the loss of its original front gate structure.

212. Mr Beeston had not been asked to report on the subject building's contribution to the HO8 area, and did not do so. He had, however, had regard to the character of the street and precinct as part of the grading system of the Twentieth Century Architectural Study. While the Study decreed that Level A significance must be architectural, `B' grades were "essentially based on a general analysis of a particular street and the character of that street". He had regard to the character of streets in the area, although admitting that it was a "complex discussion" whether heritage character and urban character are different. He emphasised that the Heritage Review must be understood on the basis that it uncritically accepted the statements of significance based on the character statements in the Twentieth Century Architectural Study, translating them for heritage purposes.

213. In terms of the statement of significance for HO8, the subject building in Mr Beeston's opinion does not validate that rationale. It is low slung, single storey rather than double-storeyed to take advantage of the beach views. It is too late to be part of the spurt of development following the tramway. It is an insignificant marker, compared to Yarramundi.

214. On the issue of whether it was sufficiently significant to be preserved, Mr Beeston added that the justification "does not stack up". There is a merging of heritage as "a document of our past" and street character. Other such "documents" in the immediate vicinity are in his view far better.

215. Mr Beeston had also followed up a suggestion that there may have been an association of the house with famous people, and found there to be none. The builder, Seldon, was not a famous or outstanding builder, and there are other examples of his work. In terms of the style generally, he stated that he could point to a similar house; but you would not find an identical house. He indicated that this followed from the eclectic nature of the style.

216. Although the building might have relatively few distinctive features other than its verandahs, all three heritage witnesses recognised that it does have a number of typical features. In addition the wide verandahs on both frontages are both unusual among the dwellings of the period in this part of the HO8 area, and illustrative of a lifestyle suited to the location. In assessing Mr Bick's evidence against the statement of significance, I find that the verandahs are a large element, and give the dwelling a good deal of its character as seen from the abutting roads. I do not think that they can be dismissed by saying "apart from them" the dwelling is largely devoid of features. They are a major feature in terms of their scale and contribution to the design of the building, although not dominating in an overwhelming sense because of their quite graceful design. The features and decoration are what distinguish this dwelling, and other dwellings round it, from the plain bungalow form of which (as Mr Bick stated) there are many examples in the area.

217. I consider that Mr Beeston's assessment of the subject building as "of local significance within the district of St Kilda/Elwood only, and not of individual cultural heritage significance, is too strict. When considered in the light of his comment that "the house, while unique, is of a genre where uniqueness is not unusual", the house is a reflection of the style and period forming part of the cultural significance of the area. It may not be a particularly striking example; but it contributes an additional variation on the "romantic image" theme recognised in the statement of significance of the area as a heritage place, and its details are not replicated among the other examples referred to.

218. Although I do not see the subject building as dominating the entry to Normandy Road, I accept that Mr Ward has made a valid point in drawing a relationship between the subject building and Yarramundi on opposite sides of the intersection. The subject building shares a number of qualities with Yarramundi, although on a less extravagant scale (in design terms). But rather than "dominating" the point of entry to the street, the subject building is a foil for Yarramundi, which has an undisputedly higher heritage value than the subject building, allowing Yarramundi to dominate the intersection. The relationship between the two dwellings enhances the significance of both of them. I also consider that there is some importance, as Mr Ward stated, to the retention of dwellings of a period which is significant to the heritage value of the area on each corner of this intersection. Not only does it preserve the higher proportion of buildings identified as significant in Normandy Road, but this intersection is central to the segment of the HO8 area fronting the Esplanade of which the subject land is part. I agree with Mr Ward that this relationship should be preserved.

219. I am not persuaded that the subject building is of less that "significant" quality. I accept Mr Ward's assessment of its architecture as being "highly expressive of its seafront location", even though it does not make use of a second storey to exploit the bay view. I further accept that the design expressed relaxed outdoor living, with a close relationship to the beach. At the time of construction, the distance between the verandahs at the subject land and the beach would not have been interrupted by today's heavy traffic along the Esplanade. But even if I were convinced that the building was merely contributory (as Mr Beeston contended), I consider that the building and the context are such that its removal would weaken the values of the heritage place which are sought to be protected by the Heritage Overlay, which would be contrary to its purpose.

220. It is not the Tribunal's role to rewrite the studies and redefine the gradings. If before the Tribunal, it appears that detailed evidence about the specific property in question does not coincide with the necessarily less detailed consideration given to the property for the purpose of a general study of a wide area, the Tribunal is not bound by the grading assigned by the study. The Tribunal has to look at the decision guidelines in Clause 43.01-5, which require it to consider both the local policy and the relevant heritage study. But is must also consider "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", and "whether the demolition, removal or external alteration will adversely affect the significance of the heritage place". These are findings of fact which are not conclusively determined by the content of either the policy or the study.

221. In this case, however, I consider that the evidence supports the retention of the existing dwelling, with its associated fencing. I find that the significance of the heritage place would be adversely affected by the demolition of the existing building even though it does not have a high degree of individual significance. Its value lies in to some extent in its own features, but principally in the multiplication of examples of the individualised style of dwelling along Ormond Esplanade from the same period, the support it gives to Yarramundi, and the preservation of a limited number of largely intact dwellings in this central location within the protected part of the Esplanade facing towards the bay.

222. Mr Scally, who conducted this part of the Council's case, submitted that the Applicants had not asserted that the existing building was "structurally unsound or beyond repair". This is a reference to the superseded Design Manual demolition guidelines. The new test in the Port Phillip Heritage Policy is first that the building is "structurally unsound or cannot feasibly be reused", and secondly that the replacement building is of design excellence, or that the streetscape is not intact or consistent in heritage terms.

223. A Proposed Demolition Inspection Report by Boswell Shaw Giazi Marshall Pty Ltd, Consulting Building Surveyors, was tendered on behalf of the Council. This report referred to an inspection conducted on 12 December 1999, described as "a walkthrough visual inspection predominantly from outside". The result was summarised as "From the outside the dwelling appears to be in a solid state with no major structural deficiencies".

224. Mr Beeston's evidence does not suggest that the existing building cannot be repaired. The difficulty with this element of the controls is that a building of the relatively low grade of significance (whether D or E) afforded to the subject building is not eligible for inclusion in the Heritage Register, which contains the list of buildings which can be required to be actively preserved by their owners: see Section 160 of the Heritage Act 1995. This building is protected only by the need for permits. Decisions can be made that it is not to be demolished; but in the absence of a proposal for a use or development that needs a permit, there is nothing in the Planning Scheme that will compel the owner to preserve it from neglect and decay.

225. The building is not said to be in imminent danger of collapse or fatal damage, although the photographs show elements of decay in the verandah roof lining and so on, as well as the structural threats identified by Mr Beeston. But if it is simply left there without maintenance and repair, on the basis of Mr Beeston's evidence, eventually it will be. On the basis of the evidence before me, however, I do not consider that a permit for demolition on the basis that the building is structurally unsound is justified at this point.

226. Even if the subject building was merely contributory, its demolition could only be prevented from adversely affecting the heritage significance of the heritage place if the proposed replacement was itself of design excellence which clearly and positively supports the ongoing heritage significance of the Heritage Overlay (which, although somewhat differently expressed, is the burden of both the interim and final local policies). Meeting the demolition policies by the design excellence of the replacement building is also an acceptable option as an "enhancement" of the heritage place under the purposes of the Heritage Overlay and State policy.

227. Mr Scally submitted that the replacement buildings were pedestrian, rather than outstanding. While it was common ground that Ormond Esplanade is on the whole a mixed road, Normandy Road is more intact, with a recognisable consistency in design elements. The mixed streetscape allows innovative design to be accepted, while the intact streetscape does not. Mr Scally submitted that the two roads each required a different design response, which was not provided in the proposal. The references to "mixed", "identifiable design elements" and "intact" streetscapes is derived from the Port Phillip Design Manual guidelines for designing new houses in the neighbourhood and urban character areas, rather than being relevant to the Heritage Overlay. As I am considering the proposed new dwellings under Clause 43.01 in this context, rather than under all three relevant permit requirements, I will not go into further detail.

228. Mr Collie, in his evidence on behalf of the Applicants, referred to the different boundaries drawn for the "character areas" under controls other than the Heritage Overlay. Normandy Road was not in the same character area as Ormond Esplanade, and he considered that the proposed new development should relate to the Ormond Esplanade style. He did, however, consider that it related to the Normandy Road roof style and form, building height, setback etc (a reference to the design criteria) and was generally sympathetic to the abutting area.

229. Mr Bick drew attention to the prevalence of two-storey dwellings, and the mix of dwelling styles, including attached dwellings and blocks of flats, as common characteristics of the HO8 area, and Elwood generally. He stated that the proposed buildings reflected the broad design, details and materials found in the Heritage Overlay area, and were simple, rather than startlingly modern, buildings.

230. The evidence regarding the replacement buildings was principally directed to their technical compliance with the policies and design standards relevant to the three different permit requirements governing new construction. Mr Scally noted such matters as the setbacks breaking the rhythm of the setbacks on Ormond Esplanade, and a lack of articulation in the design.

231. Mr Collie's evidence was directed to the proposed new buildings. He did not deal with the heritage merits of the existing building. Mr Collie stated that the proposal would fit well with the character of the area, would not lead to any diminution of appearance of the foreshore or loss of character or identity in the area; and with its greater focus on the foreshore, should add positively to the character and identity of the area.

232. Although the proposed dwellings would no doubt provide comfortable homes for families who were not interested in private garden space, and I am satisfied on the basis of Mr Collie's evidence and the Council's submissions that a high degree of compliance with relevant building design guidelines has been achieved, I am not satisfied that the proposed dwellings provide a standard of design excellence that will clearly and positively support the ongoing heritage significance of the Heritage Overlay.

233. Although some effort has been made to include verandahs in the design of the new dwellings, the impression created by verandahs of some 2 to 2.5 metres' width, with pitched roofs, around the ground floor level of a two-storey dwelling is very different from the impression created by the wide, flat roofed verandahs of the existing single storey house. There are two chimney walls incorporated into the front façade, limiting the views to the bay and piercing the roof close to its southern edge, an unfortunate use of the façade with the bay views and an undesirably prominent break in the line of the roof. The appearance is cluttered rather than decorative. Taken with the reduced setbacks, the impression of spaciousness is gone. The central design feature in the Esplanade façade is a shallow, recessed balcony, rather than a prominent balcony stretching towards the bay view, which is more common and better expresses the relationship between the Esplanade two-storey designs and the beachfront location. The rear dwelling is undistinguished, with similar verandahs to the front dwelling, but no other articulation.

234. In comparing the proposed replacement with the existing dwelling, I am not suggesting that it is necessary or even desirable to incorporate features of a demolished heritage building into its replacement. I merely intend to contrast the quality of the features of the existing building with the quality of the proposed replacement. The evidence does not justify a finding that the proposed replacement buildings are of such a standard of design excellence that they would provide "a worthy legacy for future generations", justifying demolition of the subject building.

235. After considering the matters relevant to the heritage contribution of the existing building, its structural condition, and the design quality of the proposed replacement, I have concluded that the proposal is contrary to the purposes and decision guidelines of the Heritage Overlay.

236. That being the case, it is unnecessary to consider any further the policies and guidelines relevant to the Zone provisions and the Design and Development Overlay.

237. For the reasons set out, I will affirm the Council's decision, and direct pursuant to Section 85(1)(a) of the Act that a permit must not be granted.