1. 1. Is there a valid and affective restrictive covenant that would be contravened by the proposal for which planning permissions are being sought? This issue was argued as a preliminary matter.
   1. Should permission be given for the demolition of the existing building?
   2. Should permission be given for the proposed buildings and works including three new dwellings?
2. I am not presently concerned with subdivision, reduction in parking or removal of restrictive covenant if an effective one is found to exist.

Is the land affected by a valid restrictive covenant?

1. Section 61(4) PE Act provides that a permit cannot be granted that would authorise anything that would result in the breach of a registered restrictive covenant unless a permit has been issued or a decision to grant a permit to allow removal or variation of the covenant.
2. A restrictive covenant imposes a constraint upon identified land. However, to be effective, it must also identify other land having the benefit of the covenant. A restrictive covenant does not benefit the world at large, but only the identified land (or lands) having the benefit of the restriction.
3. Lawyers call the land bearing the burden of the covenant the subservient tenement and the land or lands having the benefit is referred to as the dominant tenement or tenements.
4. If there is no identified dominant tenement there is no restrictive covenant in the sense of a constraint that runs with the subservient tenement to constrain subsequent owners and where for the benefit of subsequent owners of the dominant tenement or tenements.
5. The dominant tenement must be identified. This might be by giving its title particulars such as its lot number on an identified plan of subdivision or by other means such as a sufficient address or description. Land having the benefit of a restrictive covenant may be identified by inference although it needs to be a necessary inference, not merely guess work. It is not sufficient that land could be benefitting where it might just as well be that it is not.
6. A covenant is a promise. Usually a promise or mutual promises are made between one person and another. An ordinary contract will normally contain mutual promises or covenants such as a promise to pay the price of something being sold on the one hand and a promise, on the other, to deliver that thing. Such promises, and such contracts, are personal to the original contracting parties.
7. Restrictive covenants, where they are created, arise from a contract for the sale of land. Such a promise, restricting future use or development of land, is personal to the parties of the original contract unless a valid restrictive covenant is created whereby the burden and the benefit are said to 'run with the land', in other words, the burden and the benefit respectively passes to subsequent owners. In the case of a personal covenant the obligation does not 'run with the land' to bind future owners of the subservient tenement or to benefit subsequent owners of the dominant tenement.
8. If no dominant tenement, or in other words land with the benefit of the covenant, can be determined because it is not identified expressly or by necessary implication, then the covenant is merely personal, does not run with the land, and does not amount to what is generally referred in real property terms[1] to as a restrictive covenant.
9. It is submitted on behalf of the applicant in the present case that land benefiting must be identified and on that account reference is made to a series of cases where, it is submitted, the Tribunal has so held. The cases mentioned are Hellier McFarland v City of Melbourne[2]; Basile v Moreland CC[3]; Arifoglou v Stonnington CC[4]; Timms v Yarra Ranges SC[5] and Costa v Glen Eira CC[6]. That last is a decision of mine where I gave some explanation of restrictive covenants, how they are created and how they are to be distinguished from personal covenants that do not 'run with the land'. I referred to some other cases and to passages in Planning and Environment Victoria, a looseleaf work on planning law and practice published by Lexis Nexis Butterworths of which I am a co-author. I referred to passages at [2.50.50], [9560.80] and [9565.25].
10. In the submissions on behalf of the applicant reference is also made to a case of Kotefski v Boroondara CC[7] which, it is suggested, is contrary to the line of cases just mentioned. It is not easy to determine with certainty whether that is so. Not all the facts in relation to that case are recorded in the reasons and even the terms of the covenant are wanting.
11. There are two main means by which land having the benefit of a covenant is to be identified. One is if the land with the burden of the covenant is part of a so called 'building scheme', sometimes known as a 'scheme of development' whereby all the lots in a plan of subdivision are burdened and benefitted with the same restrictive covenant in respect of each of the other lots in the subdivision. That has no application in the present case as there is no uniformity as between lots in the relevant subdivision or Part C thereof whereby separate title to 65 The Grove was created. Approximately half of the lots in Part C had no restrictive covenant and those that do have restrictive covenants have them in terms that are not uniform but which have varying terms. That does not mean that the restrictive covenants are necessarily invalid but only that they could not be part of a building scheme where identical restrictive covenants are required.
12. The building scheme concept had no application in Kotefski's case either.
13. The alternative way of identifying land with the benefit is specific identification although this can be by means of a formula in the restrictive covenant whereby the land benefitting can be identified. For example, in a subdivision of 20 lots where 10 have already been sold into other ownership the contract for the sale of the eleventh might contain a restrictive covenant specifying that the benefit will be for the remaining lots still owned by the vendor and yet to be sold out of the subdivision.
14. In Kotefski's case identification of land benefitting was by inference although there is no mention in the reasons of there having been a plan of subdivision. It is sufficient, for present purposes, that the Tribunal in that case found, on the facts of that case, that there were sufficient facts and that a necessary inference could be drawn identifying land with the benefit of a covenant.
15. I do not think that I need take discussion of that case past that finding. I nevertheless consider that identification of land having the benefit of a covenant is an essential.
16. In relation to 65 The Grove, the words that are suggested might amount to a restrictive covenant are found in a written instrument namely a Transfer of Land dated 17 August 1911. This is a handwritten document and there have been alterations and markings on it so that, at some points, its terms are not easy to discern.
17. However, it is a Transfer whereby an entity known as Australian Widows Fund Life Assurance Society Limited conveyed two lots of land it had sold to Arthur William Godfree for £180 10s. The transfer recites the lot numbers and identity of the two allotments being sold one of which is 65 The Grove.
18. The terms of the covenant are as follows:

And I the said Arthur William Godfree do hereby for myself and my Transferees covenant with the said The Australian Widows Fund Life Assurance Society Limited and its successors that I and my transferees will not build upon either of the said lots without first obtaining the approval in writing of the said Australian Widows Fund Life Assurance Society Limited or its successors of the plans and specifications of the proposed building or buildings such building or buildings to consist of one dwelling house on each lot of the value of not less than four hundred pounds each and to be used as dwellings only.

1. In that formulation the word successors, where first appearing, appears to have been struck out in pencil and the word transferees written in in pencil although it is not possible to be sure from the photograph copy of the Transfer of Land provided.
2. Where the word successors secondly appears it is struck out in red and the word transferees has been written in. There are multiple notations in red ink in the margin in various hands some of which might be initials intended to apply to such amendments.
3. I do not think it is necessary, for present purposes, to distinguish between transferees and successors although something is made of that distinction in some cases. It has been noted that such formulations have to be interpreted in their context and that small variations in words used, the order in which they are used or in different contexts can make significant differences to their meanings.
4. The central point here is that there is no identification here of land to have the benefit of the restrictions. There are no dominant tenements nominated nor is there a formulation to the effect that the benefit will be in favour of such lands in the plan of subdivision remaining in the ownership of the vendor at the time of the contract for the sale of land.
5. There may have been an intention to create some such distinction but if so, it may have been intended to be in favour of some but not all of whatever land was then remaining unsold in the plan of subdivision. That would be a valid point if it stood alone, but, if anything, it is enhanced by the evidence that half the lots in section C of the subdivision do not have restrictive covenants or purported restrictive covenants at all, and that those that do have such covenants or purported covenants that vary considerably in their terms.
6. The responsible authority had little to bring forward in relation to the legal arguments as to restrictive covenants. It has dealt with another case where there was reference to having plans for buildings approved by the Australian Widows Fund Life Assurance Society Limited. It was a case where new buildings were proposed but for only one dwelling. That company no longer exists but apparently its successor is the National Australia Bank. The responsible authority was content with approval of plans by that body. As there was no question of more than one dwelling it was only the approval of the plans that arose in that case.
7. The responsible authority did not enter upon the issue as to whether there is here a valid restrictive covenant 'running with the land', or only a personal covenant. I have concluded that the applicant is correct in submitting that it is the latter and that there is no valid restrictive covenant burdening the land because of the lack of identified or identifiable land with the benefit of the covenant. In those circumstances, there is no need for it to seek removal of the alleged restrictive covenant.
8. In the present case there may have been an attempt to create a restrictive covenant but, in the submission of the applicant, it fails because no benefitting land has been identified. In the circumstances then there is no occasion for the applicant to proceed with its application for removal or modification of a restrictive covenant.

1. This site is covered by a heritage overlay and is located in a heritage place amounting to precinct that is of some importance in the Coburg context.
2. The Grove is a pleasant tree lined street but it is also quite unusual if not unique in Coburg.
3. The original subdivision and development in this area dates back to the 1880s. The review site, along with some others, is an unusually large residential allotment having an area of 974 sq m.
4. The 1880s was a land boom period in Melbourne and it was followed by a fairly severe depression in the early 1990s. Residential development went on in this area over those decades and into the Edwardian period.
5. There are a number of references in the Local Planning Policy Framework of the Moreland Planning Scheme to the Moreland City Council Statement of Heritage Significance. The relevant portion of that document was tendered[8]. It deals with The Grove. It notes The Grove - Sydney Road precinct as being of local architectural significance with many individually significant buildings and many good examples of Edwardian houses. Amongst those referred to in that category is the review site at 65 The Grove.
6. That site and its existing building must be regarded as a contributory building and, I think, one of some contributory significance. The loss of the house would be a loss to the streetscape, the immediate locality and the wider precinct.
7. Clause 22 of the Moreland Planning Scheme contains its local planning policies. Clause 22.06 has such policies relating to heritage. The policy basis in Clause 22.06-1 reads:

Moreland's heritage assets range from buildings of state significance to substantial Victorian mansions, humble workers cottages and historic parkland.

The protection and management of these significant heritage assets helps our understanding of the past, enriches the present and will be of value to future generations.

1. Clause 22.06-2 contains policy objectives in the following terms:

• To encourage the conservation and enhancement of all heritage places.
• To protect Moreland's heritage places from inappropriate demolition, development of subdivision.
• To ensure that buildings and works respect the significance of the heritage place as identified in the Statement of Significance.

1. Clause 22.06-3.1 in relation to the Statement of Significance states that it is policy to:
   • Consider the Statement of Significance for a heritage place or precinct as contained in the Victorian Heritage Database (Hermes) when assessing any application in a heritage place.
   • Assess an application based on the significance or contributory fabric of the heritage place where identified in the Statement of Significance, rather than any non-contributory or atypical fabric that may exist within the heritage place.
2. Clause 22.06-3.1 contains local policy in relation to heritage demolition. That clause, as relevant, reads:

• Encourage retention of contributory or significant heritage fabric required to maintain the original streetscape appearance.[9]
• Discourage total demolition of a contributory or significant heritage place unless it can be demonstrated that:
  • The building is structurally unsound and that the contributory or significant heritage fabric has deteriorated beyond reasonable repair and would require reconstruction of the whole[10]; and
  • Any proposed replacement building makes a positive contribution to the heritage significance of the place.
• Not accept poor condition or low integrity of a heritage place as sufficient justification for total demolition.

• Discourage total reconstruction of a heritage place as an alternative to retention.

1. These provisions appear as wise and appropriate policy. Experience in relation to heritage buildings over some decades indicates that some owners of land wish to free themselves from the encumbrances and restraints that the presence of buildings of individual or contributory heritage significance can impose on land where a clear site and unrestricted opportunity for development is preferred. There have been cases where apparently deliberate destruction has been undertaken.
2. More passive actions or inactions include simple neglect while buildings gradually become ruinous and/or by leaving them vacant where the entry and occupation by unauthorised so called 'squatters' and/or simple vandalism can result in significant damage or destruction.
3. In this case the applicant seeks to rely on the structural unsoundness and deterioration beyond reasonable repair exceptions to the policy discouraging demolition of contributory buildings. Accordingly such circumstances need to be demonstrated by evidence and I would think it incumbent on an applicant to make out such a case, rather than to merely assume that structural unsoundness and deterioration can be presumed or will be accepted.
4. Such a case might, according to circumstances, include evidence of the history of buildings on the site including, not only whether they are structurally unsound and/or deteriorated, but when and how they became so. Evidence might be called from those with knowledge of the history of the site and perhaps from heritage consultants or architects and, perhaps more particularly, people with expertise in structural engineering.
5. In this case no such evidence was called. That meant that there was no opportunity for other parties, or the Tribunal, to test and assess the reliability of evidence; to clarify aspects not understood and to ascertain the situation in relation to relevant matters not covered in whatever information might have been brought forward.
6. The existing house on the site is a sorry sight. In photographs and on inspection its appearance from the street comes as something as a shock because the front verandah has collapsed and is hanging off the front of the house and because there is a significant sag in the main transverse roof ridgeline.
7. It is obvious that something is amiss. The matter of the verandah may or may not be serious. Its front edge was originally supported on verandah posts resting on masonry plinths. The posts, or some of them, have been knocked off their supporting plinths so that they no longer support the outer edge of the verandah causing it to sag.
8. Whether or not this situation could be readily remedied, and whether it would be reasonable to do so, is more than I can say on a mere observation and of photographs. This may be an aspect susceptible of reasonable remedy or it may not.
9. The sagging ridgeline is indicative, even to a lay person's eye, of structural problems in relation to the roof. How serious they might be and whether they might be susceptible of reasonable repair and reconstruction is again, more than I can say. The policy, and the sensible principle behind it of seeking to conserve contributory heritage buildings, means that a responsible authority or Tribunal should not be left to guess at these things.
10. A photograph has been tendered showing the interior of a rear room which is certainly very disorderly but, without more, does not take the matter any distance at all.
11. The walls are described as rendered brickwork. Having regard to the period of the building I would suppose this to be a brick house rather than a brick veneer and that it would include load bearing brick walls. That is a guess rather than something of which I have evidence. Furthermore, I do not have evidence of the structural condition of the walls, or the fabric condition of the bricks constituting it. They may be sound or they may be defective, and if defective they may be susceptible of repair or strengthening.
12. Although no structural engineer was called I do have a very brief document dated 5 June 2014 of Harry Liden, structural engineer of Simply Structural Pty Ltd. It is a four page document with half of it occupied with photographs and only one page of evidence.
13. Mr Liden was not called and his report was not tendered although I have access to it as being attached to a document on the Tribunal file, and its contents were referred to in the course of the hearing. It is headed as an addendum to a building distress report stating that the applicant has 'further' commissioned Simply Structural Pty Ltd to investigate the structural integrity of the existing building. I do not have the original report and have no knowledge of its contents.
14. It refers to a further inspection with a further loss of structural integrity throughout the building over a three month period claiming 'the building deterioration has increased dramatically, to a critical level'.
15. It says, without any details as to how and why beyond asserting that the roof is demonstrated, by photographs to be structurally unstable with a potential to collapse at any minute. It also asserts that the verandah support structure has also been vandalised to the extent of collapse and that, due to the drop in the ridge beam and verandah roof, the horizontal spread through the building has further increased the side sway.
16. I am aware that a tendency for lateral spread of brick walls in old buildings is commonly countered by the installation of metal rod ties to prevent such spreading.

1. The brief report concludes with an opinion that the building has deteriorated beyond acceptable limits within the building industry (whatever that might mean) and is considered unsafe to enter and to be currently unstable. It further says that the structural integrity has been severely compromised with a high possibility of future collapse and failure which is apparently inevitable if left untreated. However these generalised comments do not say with any particularity what is wrong and what is not wrong with the building, what would be needed to restore it or what restoration would cost in terms of time, trouble, materials and expense so that an assessment might be made as to whether restoration is in fact reasonable in the circumstance. It is not so much a matter of what is or is not beyond the limitations of acceptability within the building industry, as what might be beyond acceptability having regard to the heritage value of the building and its heritage contribution to its locality and precinct. Such questions cannot be properly assessed or answered without more information than this.
2. A sentence in the conclusion reads:

The lack of building footings, deteriorated and distorted roof framing and general stability failure is a major concern.

1. I am puzzled by the suggestion that the building lacks footings. Is it seriously being suggested that this building, which has apparently stood for approximately a hundred years, has no footings resting on its foundations? Such an assertion calls for more explanation than is provided. There is reference to neglect and vandalism, but I would need to have it explained to me as to what, if anything, is wrong with the footings and foundations, and for that matter other structural elements whilst recognising that structural members supporting the main roof appear as significantly compromised in their present condition.
2. As to heritage fabric, more information is called for. It may be that significant portions of the original fabric of the building are still present and might be maintained in position or might be reused in repairs. This could apply to bricks and roof tiles and possibly to other materials although internal supporting timbers might be renewed without significant loss of heritage value.
3. I note that if surviving fabric in terms of bricks, roof tiles and the like is insufficient for restoration it would be good practice to use surviving fabric at the front and in views exposed from the street, including the front slope of the roof, and that any necessary supplement might be appropriately utilised on rear walls or back slope of roof. Preservation of bricks in relation to rendered finishes may be less critical than for face brickwork.
4. Both the applicant and the responsible authority have sought advice from heritage consultants although neither was called. Without formal tendering, access was available to a 'memorandum of heritage advice of Mr Bryce Raworth on behalf of the applicant and referral responses from the council's heritage adviser of 17 December 2015 in relation to the original proposal and 14 April 2016 in relation to the amended plans. These documents were tendered as exhibit A9.
5. It was pointed out that Mr Raworth's report was subject to a qualifying footnote at its end which reads:

This advice is provided on a preliminary basis only, having regard to a site inspection and review of the current design documentation. The author has not had the benefit of an exhaustive briefing or of extensive research into the site or any related matter. This memorandum is provided for use by the client group only, and is not suitable for consideration by Council or any third party entity or individual.

1. The Raworth report makes it clear that demolition cannot be justified on heritage grounds but must depend wholly on structural instability. He says:

Ordinarily, the demolition of an intact structure located in a relatively intact streetscape would not be considered.

1. That is after recognition of the significance of the building and before going on to say:

It is recognised that the building is of at least local contributory significance and is largely intact. Prior to falling into poor condition it was a very good example of its period and typology. There does not seem to me to be any strong argument for demolition on the basis of heritage considerations such as low significance, lack of integrity, poor condition or the like.

In this instance, the case for demolition of the building rests entirely with the issues raised by the structural condition of the building and the need for remediation of that condition. While our office does not have expertise in relation to such structural matters, structural advice has been obtained from Harry Liden of Simply Structural Pty Ltd (22 March 2014)[11] that confirms the poor structural condition of the building.

1. Having disavowed knowledge, expertise and experience sufficient to qualify him to give evidence on structural matters he concludes with some speculation upon which I am not prepared to place any weight.
2. The heritage consultant to the responsible authority is similarly non-committal and speculative. As to demolition the following appears:

The structural condition of the building is such that a substantial works would be required to make it safe. It has been considered that the extent of remediation works required would essentially result in a reconstruction of the original house.

Under these circumstances it is considered that full demolition of the existing building appears to be unavoidable.

1. Something similar is said in relation to demolition in the second response of this consultant saying:

As previously advised, the full demolition of this building appears to be unavoidable.

1. Nevertheless, on careful reading, it is clear that this consultant is not taking responsibility for saying that demolition is unavoidable for structural reasons. No evidence or opinions on structure are offered and the repeated phrase about what is 'considered' does not make it clear as to who has formed this consideration; not, it appears, the heritage consultant. That consultant does not claim or demonstrate qualification of the relevant sort.
2. There is an unusual history in relation to this building. It is claimed by the applicant that he acquired it 14 years ago and that it was not, at that stage, in a habitable condition. I have no details as to its condition at that stage, or why it was not habitable.
3. The unusual part of the history is that, for the subsequent 14 years, it has not been occupied, repaired, made habitable or used notwithstanding that it is clearly a valuable property that must have cost a considerable amount of money. Why has it not been used? Why has it been left vacant?
4. It is said that the vandalising of the property has occurred in the last two years. The opportunity of redeeming the property apparently remained substantially unaltered for 12 years during the applicants initial period of ownership. I have no details of its condition immediately before and after vandalisation, quite apart from its condition at the commencement of ownership and why it was in an allegedly uninhabitable state at that time.
5. As can be seen I have taken the policy in relation to demolition quite seriously. I would think it an appropriate approach, even in the absence of a written policy in those terms
6. It was said, on behalf of the applicant, that the existence of such a policy, or such an approach, does not necessarily mean that demolition has to be refused. That is true. There may be circumstances that would justify demolition, including the exceptions spelt out in the policy statement. Nevertheless, I would have thought that prima facie the starting position and presumption would be not demolition, which should only be sanctioned where a sufficient case for it has been made out.
7. I cannot say on the basis of the evidence, factual evidence and expert opinion evidence, as to whether demolition is really justified in this case. I am not satisfied that it is, and accordingly I decline to grant permission for demolition.
8. In so saying I am not finding that demolition could not be approved on the basis of sufficient evidence and a sufficient case; only that such evidence and such a case has not been made out at this stage.

1. In view of the decision that I have made in relation to demolition an assessment of the proposed redevelopment at this stage is not essential to determine this case. Nevertheless, it may be helpful if I say something on this topic.
2. This substantial rectangular allotment fronts the northern side of The Grove. Its alignment is only 30 seconds off true north to south. Accordingly, the noonday sun comes over its rear boundary so as to be convenient in terms of penetrating rear open space areas and north facing habitable room windows.
3. The proposal is for three notably large townhouses to be constructed over a common basement providing two car parking spaces, a laundry, a substantial rumpus room and a separate stairway giving access to the dwellings above for each of the three dwellings. There would also be a substantial storage area. A 3.6m wide vehicle ramp from a crossing at the western end of the frontage to The Grove would give vehicle access to this basement. The southern edge of the basement area would be set back at 5.62m from The Grove frontage. The side setbacks of the basement appear to be 0.87m with the rear setback of the basement being 4.66m.
4. However, it is, of course, the construction above the ground that is of more concern in relation to neighbourhood character, streetscape and heritage context.
5. The proposal is for there to be three large family houses on the allotment. Dwellings 1 and 2 would be in duplex form, side-by-side and fronting The Grove at a setback of 9m. All but 5.62m of that setback would be above the basement car park. There would be a paved apron immediately in front of these dwellings with an opportunity for trees with deeper roots closer to the front street.
6. Each front dwelling would have a separate entry from a common path to the paved area. Internally each entry would lead past a study (also labelled as Room 5 in anticipation of it being possibly used as a fifth bedroom, there being a wardrobe in each of them) back to an open plan kitchen lounge and dining area. There would then be access through sliding windows to a secluded open space area in each case running back to Dwelling 3 across the rear or northern end of the land. There would be open space between the building containing Dwellings 1 and 2 to the front and that containing Dwelling 3 to the rear but this space would be above the car park and would be paved. The southern perhaps third of the rear secluded open space for Dwellings 1 and 2 would be devoted to 'ALFRESCO' with barbeque facilities at one end, building or walls on three sides and a roof over.

1. Dwelling 3, to the north and rear of the space between the two buildings, would have a similar open plan kitchen dining and lounge area at ground floor opening onto a rear secluded open space area of 68.79 sq m with the building set back, for the most part, at 4.66m from the rear boundary. In the north-western corner, joined to the open plan dining and kitchen area would be another 'ALFRESCO' area. It would be walled on all four sides except for a gap of 3.2m opening to the rear private open space. This alfresco area depicts tables, chairs depicted and barbeque facilities. This might appear as substantial open space with good solar access but it is roofed.
2. The question arises, how is there to be pedestrian access (other than via the basement car park) to the third dwelling? The answer is via a central walkway between Dwellings 1 and 2 leading back between their private open spaces to the front door of Dwelling 3. How is that then to be achieved when Dwellings 1 and 2 have been described as duplex and joined together? The answer to this is that they are joined together at first floor level only. To reach the front door of Dwelling 3 one would come in from the street on the common walkway to the front paved area ignoring the front entries to Dwellings 1 and 2 and then passing between them with open sky above for a distance in the order of 6m before passing through a tunnel between Dwellings 1 and 2 with them meeting overhead and then continuing on between the separated off rear open space areas for Dwellings 1 and 2 to reach the front door of Dwelling 3. A notably poor sense of address as far as Dwelling 3 is concerned.
3. Obtaining suitable access and sense of address for rear dwellings in multiple dwelling medium density development is often a challenge. A common solution is a driveway cum walkway down one side boundary. While another approaches to work around the idea of having the two dwellings at the rear and one in front. Either should be able to achieve a better access and better sense of address for rear dwellings than this long walkway and tunnel arrangement which I do not look upon with much favour.
4. At first floor level Dwellings 1 and 2 would have four bedrooms with bathrooms, walk-in wardrobes, ensuite for master bedrooms which also have rear facing narrow balconies looking over their respective private space areas. Accordingly, each of the front dwellings is designed to have five bedrooms each with built in wardrobe space whilst Dwelling 3 at the rear would have three bedrooms at first floor level and one below.
5. It was explained that all this is planned on behalf of the applicant on the basis that he and his wife would live in the rear dwelling and their children with their families would occupy Dwellings 1 and 2 respectively.
6. Whilst I will not go into all the detail, and there is some articulation with side and other setbacks at first floor level a little greater than at ground floor level. The front building would be well setback from the street frontage. There would be an appearance of structure from boundary to boundary. The presentation to the street, in the context of this street, would be high, wide, bulky and, I consider, too dominant and too prone to attract attention away from the generally single storey contributory buildings on either side and along the street.
7. The proposal is for flat roofs and square appearance.
8. The immediately adjoining houses are both more modest and more in keeping with the values of the heritage precinct. To the west, at 63 The Grove there is a single storey brick dwelling with a pitched tiled roof. At 67 The Grove, adjoining to the east, there is a similar dwelling with a transverse roof ridge and gables at either end but also with a minor forward looking gable above a dormer window betraying the presence of an attic.
9. Both these dwellings, as I have said, are more in keeping with the streetscape, the neighbourhood character and the heritage values of the area. They appear as houses set upon their host blocks with space around rather than apparently almost fully occupying it. The setback of the front wall on one side is a little over 9m whilst the other is at 13.5m.
10. I have been referring to the amended plans. The original plans had the front wall set back of the proposed development at 8m for the ground floor.
11. I have mentioned that the proposal was referred for comment to a heritage consultant on behalf of the responsible authority. That response was to suggest that the proposal is too high, wide and bulky and insufficiently set back at 8 or 9m. In assessing the original proposal the consultant suggested that the proposal needed to be redesigned with a set back at 13.5m with the single dwelling to the front, appearing as a single dwelling, and two dwellings to the rear. A less favoured alternative was a suggestion for two at the front but designed to appear as one. The consultant also favoured a ridged roof rather than a flat roof as being more in keeping with the neighbourhood and its heritage values.
12. The response of the applicant has not been to redesign the proposal, or to engage somebody to make a serious reconsideration and rearrangement of the proposal, but rather to make some minimal alterations, principally to the front façade.
13. This is a false façade, set 1m in front of the main ground floor walls with a flat parapet on either shoulder and a central broad gable shape and the peak of its triangle immediately above the walkway leading to the tunnel giving access to Dwelling 3.
14. The response of the heritage consultant of the responsible authority to the revised version is to maintain the principal criticisms of the original proposal, but to relent to the extent of the setback or a significant portion thereof to be at 11.5 rather than as originally indicated as being a compromise between the existing front wall setbacks of the neighbouring properties on either side. The consultant regrets the failure to take up a suggestion of one dwelling at the front and two to the rear or, at any rate, two to the front but designed to look like one. I might say that there would need to be care taken, if that second option was to be adopted, to ensure that the structure appearing as one was not too dominant in the situation.
15. I note that the heritage consultant is critical of the flat roofs and would like a pitched roof. I think that should depend on the style of a redesign development. Just to stick some form of pitched roof on the present structure would be quite out of place, inappropriate and would appear as a clumsy add-on in the circumstances.
16. It is important that an infill development in a streetscape, and particularly one where heritage values have to be taken into consideration, that the development should be respectful. But how many times has the observation been made that respectful does not necessarily mean copying? It is often argued that something, though not a replica, will be respectful if some features of the surrounding area are incorporated in the new development. Window shapes and sizes and roof forms are often favoured in this connection. I do not say that this can never be appropriate but architectural features from the past can be quite incongruous if stuck onto a new building of distinctly contemporary style.
17. I consider that the better view that respectful does not necessarily mean replica but it also does not necessarily mean incorporating past features or shapes. Respectful means not to over dominate or incongruous but something that fits in suitably in the context, perhaps modestly so as not to attract all attention away from the remaining contributory or individually significant buildings in the locality. A respectful building might be quite modern and have features in terms of windows, shapes, roof forms and so on suitable to its contemporary self and not reflecting or copying features roundabout. It may need to be respectful in its height, scale, setback and design, including colours and materials. The question is one of judgement rather than the application of a preconceived formula or rule of thumb.
18. In the revised plans there is this false façade with its triangular flattened gable shape. The shape is, apparently, intended to reflect gable shapes including flattened gables on nearby contributory houses.
19. In my opinion this attempted 'respect' is a sad failure. It produces a most peculiar looking development that is neither one thing nor the other, is confused and confusing, is not respectful and is unsuccessful. It would, in my judgment, produce a result as unsatisfactory as the original plans, so far as the front elevation to The Grove is concerned and would be jarring and jangling rather than harmonious or respectful.
20. It would also have an 'added on' appearance and appear as an unsuccessful contrivance.
21. This street, including its streetscape, neighbourhood character and heritage context, is quite an important one as well as quite an attractive and interesting one, at least on a local scale. It calls for a more respectful and better thought out redevelopment of the review site, should the project ultimately overcome the initial question of demolition of the existing house. I would anticipate with some confidence, at least in the hands of a skilled architect a suitable design could be achieved. This one, in its original and modified version, is not suitable
22. Accordingly, even if I was granting permission for demolition at this stage, I would not approve this redevelopment.

1. For the above reasons, the decision of the responsible authority that it would refuse to grant a permit is affirmed.

[1] Real property meaning land as opposed to personal property like goods and chattels.

[2] (1995) 15 AATR 11.

[3] [2002] VCAT 1027 at [40] to [51].

[4] [2003] VCAT 1461.

[5] [2007] VCAT 1037.

[6] [2013] VCAT 563.

[7] [2006] VCAT 1835

[9] I note that the concern here is not just with a particular site but rather the wider concept of streetscape and a particular site's interrelationship with its neighbouring and nearby properties forming part of such a streetscape.

[10] I note the employment of the word 'and' where first appearing means that the exception, where the policy might countenance demolition of a contributory heritage place specifies both structural unsoundness and deterioration of significant heritage fabric beyond reasonable repair, not just one or the other.

[11] Not the report I have had access to.