Figure 1: Extract of plans northern street elevation Source: Council submission

IS THE BUILT FORM OF THE PROPOSAL ACCEPTABLE HAVING REGARD TO HERITAGE AND NEIGHBOURHOOD CHARACTER CONSIDERATIONS?

1. Based on the amended plans council no longer has any heritage concerns with the proposal. The council is satisfied that the amended plans have achieved an acceptable heritage response to Hotham Street. It says that the siting, design detail and architecture now generally accord with Council's heritage policy for infill design. More broadly, the Council is also satisfied that the amended plans produce an acceptable response in respect to streetscape and neighbourhood character and design detail.
2. In contrast, the respondents continue to maintain concerns about how the proposal responds to its heritage context, both with respect to the broader heritage place as well as the relationship with the abutting significant heritage building, being Hotham House.
3. The respondents say that the design would sit uncomfortably in the streetscape, being so out of character with the existing neighbourhood character and overwhelming the generally modest presentation of buildings to the street.
4. Mr Romney, the owner of Hotham House, relies on the evidence of Dr Day. In summary, Dr Day says the proposed development is too bulky and the height and closeness of the building's siting close to the boundary with Hotham House is an unacceptable design response. He says the proposal has a bland rectangular façade that owes more to a mid-century suburban block of flats than the delicacy and nuanced streetscape of Hotham Street. He says it fails on levels of bulk and mass, fenestration and structural organisation.
5. The applicant relies on the heritage evidence of Mr Raworth and the town planning evidence of Ms Ring.
6. With respect to neighbourhood character, Ms Ring says (in summary):
   • The development is not of remarkable height, being below the mandatory maximum permissible height in the GRZ and not remarkably higher or lower than neighbouring buildings. There is evidence of similar differentials in height at adjacent buildings throughout the neighbourhood and also in the GRZ.
   • While the proposal has a façade height that is higher than the façade of 175 Hotham Street, it is generally consistent with the prevailing heights in the street, avoiding heights that are significantly lower.
   • The width of the development in the streetscape is also not remarkable. While many lots in the neighbourhood are narrower, there are many examples of wider lots where buildings use much of the lot width, but which are mostly (but not always) set back from side boundaries. This is the approach taken in this instance.
   • The proposal has legitimately adopted an asymmetrical approach in order to transition comfortably between its immediate Hotham Street neighbours.
   • Buildings in the neighbourhood are typically characterised by masonry construction. Face brick, or painted brick is common throughout the neighbourhood and so too the use of rendered finishes and stonework. The proposed development is planned for masonry construction with a stone clad finish in neutral tones. These finishes will complement the range of external finishes and colour expressed in the neighbourhood's diverse building stock.
   • The building includes verandahs. Single and double height verandahs are found throughout the neighbourhood mostly at the front of developments but also to the side or rear of dwellings.
   • Many developments in the neighbourhood include some type of ornamental detail variously expressed in balustrades, verandahs, decorative mouldings, corbelling and quoining to list only a few. The development includes façade articulation and finer detail draws on these details and reflects them in a manner that is complementary of the building's contemporary design and styling.
   • The site will be landscaped. The landscape plan includes a variety of trees, shrubs and ground covers and when complete will be of a standard commensurate with the high quality of the development and at least comparable with many of the neighbourhood's garden settings.
7. With respect to heritage considerations, Mr Raworth says (in summary):

The site is not graded as either contributory or significant and is not within a 'significant' streetscape. It comprises part of a mixed streetscape to the south side of Hotham Street that includes several significant and contributory buildings.

The amended proposal for the site represents a carefully considered and reasonable response to heritage policy and is an appropriate response to the neighbouring buildings and associated streetscape. While contemporary in character, the new building is designed to interpret the character of neighbouring buildings through its trabeated combination of balconies and fenestration and its materiality and articulation. Its three-storey scale is compatible with the two-storey scale of its immediately adjoining neighbours and the broader streetscape.

The proposal will not have an inappropriate or unacceptable impact on the character, appearance or significance of the associated streetscape, neighbouring heritage buildings, or the broader heritage place.

The proposal is appropriate in relation to the policies and guidelines of Clause 43.01 Heritage Overlay and Clause 15.03-1L Heritage, and is supported on this basis.

1. We refer below to some relevant provisions of the planning scheme, having considered the full suite of scheme provisions referred to by the parties in reaching our decision.
2. Clause 11.03-6L-04 (East Melbourne and Jolimont) seeks to, amongst other matters, ensure that:
   • development in residential areas is sensitively designed so that it maintains the generally low scale nature of heritage streetscapes and buildings.
   • development respect the scale of the surrounding residential area, and heritage buildings.
   • there is sympathetic infill development in low rise areas that complements the architecture, scale and character of the area.
3. Key heritage-related policies in the Municipal Planning Strategy and the Planning Policy Framework include clauses 15.03-1S and 15.03-1L-02 'Heritage'.
4. Clause 15.03-1S seeks to ensure the conservation of places of heritage significance. Relevant strategies include to encourage appropriate development that respects places with identified heritage values, retain those elements that contribute to the importance of the heritage place and ensure an appropriate setting and context for heritage places is maintained or enhanced.
5. Clause 15.03-1L-2 applies to places within a Heritage Overlay and for properties categorised 'significant', 'contributory' or 'non-contributory' in an incorporated document to this scheme[3]. Objectives of this policy include to encourage high quality contextual design for new development that avoids replication of historic forms and details.
6. Demolition strategies include to preserve fences and outbuildings that contribute to the significance of the heritage place. The application seeks to demolish the existing front and rear fences, and no party opposed the extent of demolition proposed. We are satisfied that the demolition of this fencing will not impact upon the significance of the heritage place as it makes minimal contribution to the heritage value of the heritage place.
7. New building strategies at clause 15.03-1L-2 include to ensure that new buildings:

Are in keeping with 'key attributes' of the heritage precinct as identified in the precinct Statement of Significance.

Are in keeping with key attributes of the heritage precinct such as:

• Building height, massing and form.
• Style and architectural expression.
• Details.
• Materials.
• Front and side setbacks.
• Orientation.
• Fencing.
• Prevailing streetscape height and scale.

Do not obscure views from the street and public parks of the front or principal part of adjoining significant or contributory places or buildings.

Do not visually dominate or visually disrupt the appreciation of the heritage place.

Maintain a façade height that is consistent with that of adjoining significant or contributory buildings, whichever is the lesser.

Set back higher building components so as not to dominate or reduce the prominence of an adjoining significant or contributory place or building.

Adopt a façade height that is generally consistent with the prevailing heights in the street, avoiding heights that are significantly lower.

Are neither positioned forward of the façade of adjoining significant or contributory heritage places or buildings, or set back significantly behind the prevailing building line in the street.

Do not build over or extend into the air space directly above the front or principal part of an adjoining significant or contributory building or heritage place.

Where abutting a lane, are respectful of the scale and form of historic fabric of heritage places abutting the lane.

Do not impact adversely on Aboriginal cultural heritage values.

Adopt high quality and respectful contextual design.

Adopt an interpretive design approach to other details such as verandahs, fences and shopfronts.

1. Vehicle accommodation and access strategies include to:

Discourage new on-site car parking, garages, carports, and vehicle crossovers unless:

• Car parking is located to the rear of the property, where this is an established characteristic.
• Any garage or carport is placed behind the principal or front part of the building (excluding verandahs, porches, bay windows or similar projecting features), and:
  • It will be visually recessive.
  • It will not conceal an original contributory element of the building (other than a plain side wall).
  • The form, details and materials will be respectful of, but not replicate details of the building.
• Ramps to basement or sub-basement car parking are located to the rear of the property, or to a side street or side lane boundary, where they would not visually disrupt the setting of the significant or contributory building, or impact on the streetscape character.

Ensure for new fences or gates there is an appropriate contextual design response; the style, details and materials are interpretive and consistent with the architectural period of the heritage place and established street characteristics and:

• It does not conceal views of the building or heritage place.
• Is a maximum height of 1.5 metres.
• Is more than 50 per cent transparent.

1. Decision guidelines in the Heritage Overlay (at clause 43.01-8) include:

The Municipal Planning Strategy and the Planning Policy Framework.

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

Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.

Any applicable heritage design guideline specified in the schedule to this overlay.

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

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

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

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

1. Schedule 2 of the HO applies to the land and the broader East Melbourne and Jolimont precinct. The Statement of significance[4] notes:

What is significant?

East Melbourne and Jolimont Precinct is associated with some of Melbourne's earliest surveys and subdivisions, beginning in the late 1830s. It is predominantly residential in character, and renowned for its high quality historic dwellings, and proximity to some of Melbourne's most significant public institutions, sporting facilities, and parks and gardens. Significant and contributory development dates from the 1850s through to the interwar period, although Victorian development predominates. Some places of heritage value may also be outside this date range. The small squares, and mature street plantings and rows, are also part of the significant development of the precinct...

How is it significant?

East Melbourne and Jolimont Precinct is of historical, aesthetic/architectural and social and significance to the State of Victoria [sic].

Why is it significant?

East Melbourne and Jolimont Precinct is of historical significance. East Melbourne was one of the earliest Melbourne suburbs surveyed by Robert Hoddle in 1837. His plan included the Government and Police Magistrates paddocks, in the future Yarra Park, where two significant early public figures, Superintendent of the Port Phillip District, Charles La Trobe and Police Magistrate Captain, William Lonsdale, took up residence in the late 1830s. The presence of these early administrators, coupled with the substantial Mounted Police Barracks in Yarra Park, emphasises the importance of East Melbourne in terms of nascent colonial administration and law enforcement in Port Phillip. Aboriginal scar trees also survive in the park, reminders of its importance as an Aboriginal ceremonial gathering and camping place, and the source of rich natural resources. Hoddle also prepared a grid plan for residential subdivision of East Melbourne in 1842, which was revised in 1848 to accommodate the future Fitzroy Gardens. Bishopscourt, the Episcopal residence of Anglican Bishop Perry, was the first dwelling in the subdivision, constructed in 1853. It helped to establish East Melbourne as a highly prestigious residential area which subsequently attracted the professional and business classes, and many prominent figures in government, politics, law, medicine, architecture and the arts. The suburb was associated with Eastern Hill, the focus of civic, ecclesiastical, educational and institutional development from the 1840s, and the future site of St Patrick's Cathedral. It was also on the fringe of the developing Parliamentary and Treasury precincts, the seat of government in Victoria. Jolimont was mostly developed later, but notably included the 1850s subdivision of La Trobe's earlier Jolimont Estate (in the former Government Paddock). Major roads and boulevards border or traverse the precinct, several of which were historically important thoroughfares heading east out of the city. Wellington Parade, Hoddle Street and Victoria Parade were envisioned by Robert Hoddle as major routes out of Melbourne, their status confirmed in the Roads Act of 1853. The precinct is also significant for its historic parks and gardens, with Yarra Park and Fitzroy Gardens two of the ring of parks reserved by La Trobe, in a visionary action which resulted in a series of much valued open spaces surrounding inner Melbourne. The first game of Australian Rules football was played in Yarra Park in 1858; Melbourne Cricket Club also established a cricket ground in the park, which evolved into the internationally renowned stadium, the Melbourne Cricket Ground (MCG). The MCG was also home to the Melbourne Football Club which was established in 1859 and is one of the oldest football clubs, of any code, in the world. The stadium hosted the 1956 Olympic Games. Richmond Cricket Club also developed its own ground in Yarra Park, the Punt Road Oval, which in turn was home to the Richmond Football Club established in 1885.

East Melbourne and Jolimont Precinct is of social significance, and highly regarded in Melbourne for its historic streetscapes and buildings. Both Fitzroy Gardens and Yarra Park are also highly valued, with the former a popular place for passive recreation in proximity to Melbourne's CBD. The latter gains significance from being the setting for the MCG; the association of Yarra Park with the development of Australian Rules football is also of social significance.

The aesthetic/architectural significance of the East Melbourne and Jolimont Precinct largely rests in its Victorian-era development. The precinct is renowned for its high quality historic dwellings, including some of Melbourne's finest and earliest large houses of the 1850s and 1860s, complemented by later development including grand terraces in pairs and rows and substantial free-standing villas from the 1870s and after. There are also Edwardian dwellings and interwar duplexes and flat blocks. Within the precinct there are an unusually high number of individual properties included in the Victorian Heritage Register; and little replacement of first or original dwellings has occurred. East Melbourne's streets are mostly wide, straight and tree-lined, interspersed with parks and squares, following the highly regular gridded pattern of the 1840s subdivision. The major roads and boulevards historically attracted grander development. Clarendon Street was an early prestigious residential street, with several of Melbourne's most significant early residences constructed there, beginning with Bishopscourt in 1853. Jolimont also has significant historic residences. Lanes throughout the precinct are demonstrably of nineteenth century origin and function. Historic parks and gardens further enhance the aesthetic significance, including Fitzroy Gardens, the smaller squares of Powlett and Simpson reserves, and the extensive Yarra Park. These variously retain elements of their original or early landscape design, including specimen trees, mature tree avenues, perimeter and garden bed borders; and some remnant indigenous vegetation, including in Yarra Park. There are views into and out from the parks and gardens to the bordering residential areas. Yarra Park is dominated by the MCG and also hosts the Punt Road Oval. Fitzroy Gardens is an outstanding early public park in Melbourne, with an important collection of plants, some of which date to the nineteenth century. It also retains significant historic buildings and structures.

1. The review site itself is not included in the Heritage Places Inventory March 2022 (Amended July 2025)[5] as a significant or contributory place. It is therefore a non-contributory place in the precinct. The southern side of Hotham Street between Clarendon Street and Powlett Street is also not a 'Significant Streetscape' although the northern side of Hotham Street is.
2. Nearby significant places include that abutting at 175 Hotham Street (Hotham House), and 188 George Street (the McKeon property) as well as others (including significant and contributory places) are shown in Figure 2.

1. There is overlap in this case between heritage and other design and character policies given the values are intertwined.
2. However, whether the proposal represents an acceptable heritage outcome is a key issue in the assessment and determination of this application. Under the provisions of the Heritage Overlay (at Clause 43.03-8), we must determine:
   • Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
   • Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
   • Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
3. In combination, the zone and overlay require a proposal:
   • not affect the significance of the place through its location, bulk, form or appearance.
   • be in keeping with the character and appearance of adjacent buildings and the heritage place.
   • be responsive to the neighbourhood character of the area.
4. A number of Standards of then clause 55 provide neighbourhood character objectives, including Standard B17 at then clause 55.04-1 (Side and rear setbacks objective), which seeks:

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings.

1. It is common ground that Standard B17 is not met. Where the Standard is not met, the objective must be met. The relevant decision guidelines for this standard are as follows:

Before deciding on an application, the responsible authority must consider:

• Any relevant neighbourhood character objective, policy or statement set out in this scheme.
• The design response.
• The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings or small second dwellings.
• Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.
• Whether the wall abuts a side or rear lane.

1. In our view, the proposal is contrary to these decision guidelines and clause 5.03-1L-02 (Heritage) as the design is not in keeping with the key attributes of the precinct due to:
   • The building massing and form.
   • The architectural expression with the heavy forward projecting balcony and lack of upper level recession. The proposal does not set back higher building components so as not to dominate or reduce the prominence of the adjoining significant building.
   • The front upper level setback obscuring views from the street of the front or principal part of the adjoining significant building.
   • Adopting a design response that does not maintain a façade height that is consistent with that of the adjoining significant building.
2. The adjoining significant heritage building Hotham House, and more particularly its façade, is an important starting point. The applicant says the proposal responds to the overall height of the roof ridge line of Hotham House, while Ms Ring says the proposal is generally consistent with building heights in the street. We agree that the overall building height proposed is consistent with buildings in the immediate context.
3. However, we say this is not what heritage policy seeks, i.e. to 'Maintain a façade height that is consistent with that of adjoining significant or contributory buildings, whichever is the lesser'.
4. In this case the proposed façade height is somewhere in the order of 1.7 to 1.9 metres higher than the façade height of Hotham House (based on scaling of the architectural drawings). We say this is an unacceptable exceedance and the façade design response in this setting and context would unreasonably impact the significance of, and visually dominate, the appreciation of Hotham House, which forms part of the broader heritage place.
5. When viewed from the streetscape, the lack of recession at the upper level, heavy verandah treatment and overall height above the parapet height of Hotham House is contrary to policy. The upper level massing of the form will reduce the visibility of the side return of Hotham House.
6. While the building is similar in overall height to Hotham House, Hotham House has a steeply pitched roof rising away from the street, so its overall height is achieved at a greater setback from the site frontage, well behind the leading edge of the proposed building on the review site.
7. Coupled with the bulk, form and scale of the proposed building, particularly the consistent width of the building across all levels as faces the street, we find that it would adversely affect the significance of Hotham House and be out of keeping with the character and appearance of adjacent buildings.
8. We accept that the overall height of the building may be acceptable (as the height is allowable under the zone). However, we consider further refinements of the façade design need to occur. In our view a more recessed upper third level would be more consistent with heritage policy as it would maintain the appreciation of the façade of Hotham House.
9. The proposed Level 2 (third storey) is not set back sufficiently from the boundary to 175 Hotham Street or the front boundary so as to continue to expose a portion of the side elevation of the adjacent significant heritage building (Hotham House). This composition of the building form does not ensure that the visual prominence of Hotham House is maintained from oblique angles within the Hotham Street streetscape.
10. The view to the secondary unornamented elevation of the western side of Hotham House will be diminished and will detract from the appreciation of its heritage significance. This design composition fails to provide an appropriate and respectful response to this adjacent significant heritage building, and the heritage streetscape of Hotham Street and will result in a development that will dominate the surrounding buildings and broader streetscape.

Figure 3: North/ Front façade of proposed and adjoining buildings

1. Further, the proposal is contrary to the objectives of Clause 15.01-1L-05 (Urban Design outside of the Capital City Zone) as it does not provide a building massing that complements the adjoining built form. The building's form and surface treatment does not moderate its apparent bulk. There is no break-up of a building's overall volume into a number of sub-volumes to modify its perceived size.
2. Despite Mr Raworth's view to the contrary, this proposal, far from respecting its relationship with Hotham House, threatens to dominate it. Based on the architectural composition we find that the building will visually dominate or visually disrupt the appreciation of Hotham House and more broadly this part of the heritage place.

WILL THERE BE ANY UNREASONABLE OFF-SITE AMENITY IMPACTS?

1. While we have ultimately determined that the proposal is not acceptable from a heritage and character perspective, we provide some commentary regarding other issues raised by the parties. We provide this because of the degree of inter-relationship between the built form proposed and the impacts that then arise to the adjoining properties. Because of the building composition and the setbacks proposed, the proposal will result in overshadowing and visual bulk impacts, most keenly appreciated from the respondents' properties at 171, 173 and 175 Hotham Street.
2. While other off-site amenity impacts were raised, including noise, waste collection and overlooking, we are generally satisfied that had we determined that a permit should issue, that these issues could be addressed by permit conditions. We address the issue of the use of the laneway later in our decision.
3. Visual bulk is a term that is often used to describe a negative impression a building can make upon its surrounds. There is no one standard in clause 55 that directly considers visual bulk, or the way in which the acceptability of visual bulk is to be considered. Rather, it is a range of factors such as the features of the site and surrounds, the site coverage, the length of walls on boundaries, the heights of walls located on and set back from boundaries, the articulation of the building form, the materials, finishes, architectural expression and the landscaping opportunities that can assist to filter views of the building. All of these factors can have a role to play in determining whether a new built form creates an acceptable level of visual bulk.
4. The proposal does not comply with Standard B17 on either its eastern or western interface. No party disputes this.
5. The council says the non-compliant side setback to the eastern interface produces unreasonable visual bulk to the abutting properties. It says that a more tempered response to the eastern interface is necessary.
6. The Romneys (at 175 Hotham Street) say that the proposal's failure to comply with Standard B17 results in an unreasonable impact on the amenity of their existing dwelling through visual bulk when viewed from their private open space, and a loss of sunlight to their private open space.
7. The Chen and Lenaghan/Singh's (at 173 and 171 Hotham Street) share these concerns.
8. Further, Council believes the overshadowing impacts caused upon the secluded private open spaces ('SPOS') of the dwellings at 175, 173 and 171 Hotham Street to be unacceptable. It submits that these three SPOS areas do not currently receive sunlight in accordance with Standard B21 of then Clause 55, and consequently the standard says that sunlight to these spaces should not be further reduced. The Council says that the proposed development further reduces sunlight to these spaces in the afternoon periods, and the extent of this additional overshadowing to these three SPOS areas is unreasonable.
9. The Romneys (at 175 Hotham Street) submit that their west-facing SPOS will be significantly and detrimentally affected by the overshadowing caused by the proposed development. They say that the proposal's failure to comply with Standard B17 exacerbates the shadow impact on their SPOS. They say that the extent of this overshadowing unreasonably reduces the amenity, habitability and enjoyment of their SPOS and does not satisfy the objective of Standard B21.
10. The Romneys say that the overshadowing is both substantial and avoidable and impacts the most intensively used part of their SPOS to the west of their dwelling, an area where the family routinely gathers in the afternoon to eat meals (including barbecues), read, exercise and engage in recreational activities.
11. They say that the loss of sunlight significantly diminishes the area's amenity, usability and liveability, that the objective of then Standard B21 is not met because the overshadowing is unreasonable in extent, as it extends well beyond the acceptable thresholds for overshadowing at critical usage times. They say that the impacts are avoidable by an improved design, as modest reductions in building mass, articulation of the eastern façade, or increased side setbacks would achieve substantial mitigation without undermining the development's viability.
12. The Chen and Lenaghan/Singh properties all have their small areas of SPOS to the west of their dwellings. This will be affected by greater overshadowing primarily in the later afternoon period. They say that the non-compliance with Standards B17 and B21 along this elevation significantly impacts the amenity of their habitable rooms and SPOS areas, by exacerbating the impact of overshadowing, and creating visual bulk at close range. They say that the orientation of their properties transversely to face the west calls for more careful consideration of the amenity impacts of the reduced side setback on their existing dwellings.
13. The applicant, in reliance upon the evidence of Ms Ring says that the overshadowing open space objective is met in respect of neighbouring dwellings to the east and west, and that the proposed development does not significantly overshadow existing SPOS.
14. With respect to Standard B17, Ms Ring's evidence is that the proposed building will result in a substantially changed outlook for residents of these dwellings, principally because the review site is currently vacant. The future outlook will be to a new building of a type and height that the planning scheme contemplates. In recognition of it being in the outlook of these predominantly west facing dwellings, the elevation is articulated to moderate its visual presence in the following ways:
    • The walls of the southern section of the building are expressed in different vertical planes and each is of different length. They will be stone clad to a fine grain pattern.
    • A small variation from the standard is proposed for the top part of the first floor wall and the variation is of an order which is regularly varied in inner-city neighbourhoods.
    • A greater variation from Standard B17 is proposed at the second floor however the setback is within the range expressed throughout the neighbourhood and one that is effectively compliant in terms of separation from the rear boundary of 171 Hotham Street because of the intervening walkway forming part of 173 Hotham Street.
    • A small part of this non-compliant wall passes the SPOS of 173 Hotham Street, but most of the SPOS is opposite the building's centrally positioned lobby which is set back 4.87 metres and requires a small variation from the standard to the extent of the parapet at the second floor.
    • Direct views of this non-compliant elevation are more limited from the dwelling at 175 Hotham Street, noting that the western elevation of that building has few habitable room windows facing the site. This section of the building will have visibility from the SPOS at the side of the dwelling at 175 Hotham Street, with the non-compliance being a minor intrusion at the second floor wall (top edge of parapet) and the upper floor. This is acceptable as the height and setback of these walls are respectful in a neighbourhood with side setbacks of this order, the section of non-compliant wall as faces 175 Hotham Street is of length comparable with the western wall of the dwelling at 175 Hotham Street, the elevation is detailed with cladding applied in a fine grain pattern and there are windows in the first and second floor walls that provide further visual interest.

1. There is no doubt that any development on the review site of some scale will result in views to the proposed development from both the ground floor open space, and the first floor windows of the properties to the east. Visibility of higher built form is to be expected in this strategic setting. The fact that the new development will be visible from sensitive locations on these adjoining properties, does not of itself indicate that an unreasonable form of development is proposed for the review site.
2. Assessing visual bulk is a balancing exercise. Matters that need to be balanced include the reasonable built form expectations (arising from the zone/overlay and planning policy expectations), as well as the overall impact of the proposed development, and whether it has been designed to balance the reasonable built form expectations with potential impacts on adjoining properties.
3. Having reviewed the nature of the interfaces, with regard to the proposed setbacks, and articulation of the elevations and to the existing and proposed landscaping, we consider that the development will present unacceptable visual bulk when viewed from 171, 173 and 173 Hotham Street. As a general consideration of the building's length, form, materials and articulation we are not satisfied that this interface is acceptable. This is due to the extent of third level form presenting deep into the lot, the general absence of room for landscaping along the rear part of the lot, and the lack of appreciable upper level recession.
4. The parties all agree that the proposal does not satisfy Standard B17 (Side and Rear Setbacks) with respect to both the eastern and western elevations[6]. The objective to this Standard is:
   • To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings or small second dwellings
5. The objective has two parts to it; one is to respect neighbourhood character and the other to limit the impact upon existing amenity. The standard is not met for both eastern and western elevations due to the overall height of the building and its setback from those side boundaries.
6. The decision guidelines associated with the standard require that before deciding on an application, the responsible authority must consider:

Any relevant neighbourhood character objective, policy or statement set out in this scheme.

The design response.

The impact on the amenity of the habitable room windows and secluded private open space of existing dwellings or small second dwellings.

Whether the wall is opposite an existing or simultaneously constructed wall built to the boundary.

Whether the wall abuts a side or rear lane.

1. The neighbours at 171, 173 and 175 Hotham Street have their dwelling's ground level habitable room windows and SPOS oriented towards the review site. Their outlook is towards this site. We are not persuaded the proposed design responds in an acceptable manner to this context.
2. We do not say that there should be no change to the outlook of the adjoining properties. We also agree that a proposal is not required to maintain or enhance the existing amenity of residents. Clause 55 seeks new development to limit amenity impacts, rather than maintain or enhance existing amenity standards.
3. We agree with the applicant that built form extending deep into the lot is a characteristic of this neighbourhood. We also agree that building close to the side boundaries is also a characteristic of the area. However, we do not agree that three storey form, built close to side boundaries and without a break in form along the depth of the lot is characteristic of the area.
4. Whilst there are buildings across the length of some surrounding properties, they contain a mix of single and double storey forms as well as articulation, setbacks and secluded private open space areas that contain landscaping. All of which contribute to some softening of the views of the buildings.
5. We are not persuaded this proposal achieves a similar outcome. In our view, the proposed building will extend into the rear of this site with a form, height and mass that is greater than surrounding development.
6. We note from the package of substituted plans the following site massing diagram:

Figure 4: Source: Extract of Plan TP03.04 Substituted plans

1. The architectural plans do not adopt this massing profile. ie. the building is not split into two separate elements surrounded by landscaping. In actuality, the single building extends deep into the site across the entire three levels. While we rely on the architectural plans in reaching our decision, in our view this massing diagram is informative of an alternative building composition that may address our visual bulk concerns for abutting properties.
2. The east elevation extends almost the entire depth of the site with a set back from the rear boundary by about five metres. Aerial photos show there are many buildings in the immediate and nearby environs that also have large built form on generous sites. In this proposal, we do not take exception to the extent of site coverage, but the execution of the east façade. While the plans show a recess in built form about midway in the development on this façade, the architectural expression is of a monotonous three storey form without much relief.
3. The proposed built form has substantive sections along the side boundaries that are lacking in meaningful articulation and modulation, and are not softened by any meaningful landscaping. It is a harsh design response to its sensitive interfaces, with no acceptable modulation of these impacts.
4. In our view, the building is not sufficiently articulated to break up its scale, and this breaking up is necessary because of the extent of B17 non-compliance along this sensitive elevation. We find that the building composition along this elevation will read as an oversized object out of character with the scale of the residential context. The absence of meaningful breaks or articulation along this elevation exacerbates the visual dominance and massing of the proposal as it relates to the immediately abutting properties to the east.
5. The combination of building scale and the diminished top level setback amplifies the perceived bulk of the proposal. Whilst mere visibility is not a determiner of acceptability, the setback of the top floor is discordant and too visually dominant when viewed from the adjacent properties to the east.
6. While we accept that a building of this height is acceptable, an increase in the upper level setback along this elevation will assist in reducing that visual impact. Setting back the upper levels will create a sense of separation, may assist in minimising overshadowing, reduce the building's bulk, and ensure the development does not visually dominate the adjoining residential sites.

1. The proposal will give rise to additional overshadowing of the properties at 171, 173 and 175 Hotham Street. While there is dispute about the extent and impact of this additional overshadowing on the SPOS of these properties, the necessary amenity objective to be achieved is expressed in then Standard B21, which is to ensure that buildings do not significantly overshadow existing secluded private open space.
2. In considering an application that does not satisfy this standard, the responsible authority (and upon review, the Tribunal) must consider:
   • The design response.
   • The impact on the amenity of existing dwellings or small second dwellings.
   • Existing sunlight penetration to the secluded private open space of the existing dwelling or small second dwelling.
   • The time of day that sunlight will be available to the secluded private open space of the existing dwelling or small second dwelling.
   • The effect of a reduction in sunlight on the existing use of the existing secluded private open space.
3. We agree with the applicant that on a north-south aligned allotment, any development on an abutting site is likely to have overshadowing impacts on its neighbours. And we also agree that in inner-city locations, small lots will often not receive the full benefit of the overshadowing standards that the Planning Scheme supports. We generally accept that the development has attempted to minimise the additional overshadowing impacts to the properties to the east. Where additional overshadowing will occur, this is principally after 2.00pm.
4. On overshadowing grounds alone, we would not have refused a permit.

1. Amberley Lane is a Council managed laneway that extends in a northerly direction from George Street for approximately 45 metres before turning to the east and terminating at 182 George Street. The north-south section of the lane has a width of approximately 3.6 metres and the east-west section a width of approximately 4.5 metres. There is a property splay as the lane turns from south to east.
2. There are six properties that have an abuttal to the lane.
3. Vehicle access is proposed into the site via the 2.97 metre wide existing access via Amberley Lane at the site's south-eastern rear boundary. The access leads to a passing area within the site, before entering basement level 1 via a single width access ramp.
4. Parking is provided in a two level basement with provision for 12 car spaces. This includes four double garages within basement level 1 and four standard car spaces within basement level 2.
5. Vehicle access between basement level 1 and basement level 2 is facilitated by an internal ramp. Pedestrian access to the site is provided via a dedicated pathway from Hotham Street, located along the site's eastern boundary.

1. Council's traffic engineers have no objection to the proposed access arrangements or car parking design. Council is satisfied the proposal has provided sufficient vehicle parking required under the Scheme and agrees the design of the basement parking layout is satisfactory, and access to such parking via Amberley Lane to the rear is acceptable.
2. A number of respondents oppose the traffic impacts of the proposed development, based on the fact that the access into the site measures 2.97 metres wide, less than the 3 metres under Design Standard 1 at clause 52.06-9. They are concerned that vehicles entering the site will 'cross into' the airspace or physical space of their adjacent site due to the narrowness of the accessway. They also oppose the use of a visually permeable fence along their shared boundary, which the applicant has proposed (we understand at the suggestion of Council) to enable visibility for vehicles exiting the site into Amberley Lane.
3. The applicant relies on the traffic evidence of Mr Walsh in respect to traffic movements associated with the proposal[7].
4. The surveys demonstrate a daily volume of six vehicle movements, including a single vehicle movement in the AM peak and two vehicle movements in the PM peak. At that time this represents a traffic generation of one movement per dwelling per day, inclusive of a peak hour volume of 0.33 vehicle movements per dwelling.
5. His evidence is that at these volumes it is very unlikely that vehicles travelling in opposing directions will meet. On the rare occasion that they do, a motorist departing the site can see directly along the laneway and can wait in the site until the north bound vehicle accesses its garage or if it is accessing the site, there is a passing area in the site.
6. Mr Walsh is satisfied that the basement parking layout and vehicle access arrangements are designed to comply with the requirements of the Scheme (AS2890.1:2004 - as relevant). He also notes that the provision of bicycle parking exceeds the minimum requirements sought under clause 52.34 of the Scheme.
7. Mr Walsh is also satisfied that loading and unloading and waste management associated with the proposal can be accommodated without adversely impacting the existing road network.

1. We find that the design provides an appropriate response to the car parking and traffic demands created by the proposed development, and the surrounding traffic and road environment. We are satisfied that vehicle access to and from Amberley Lane is acceptable, and the traffic impacts will not be detrimental to the operation of Amberley Lane. Further to this, the overall amenity of Amberley Lane will not be impacted as a result of the daily traffic increase that will arise from the proposal.
2. A number of respondents that enjoy access from Amberley Lane raise the width of the accessway entry into the site as a concern to them because the width does not comply with Clause 52.06-9 of the Scheme.
3. To provide context, Clause 52.06-8 of the Scheme provides the following:

Requirement for a car parking plan

Plans must be prepared to the satisfaction of the responsible authority before any of the following occurs:

a new use commences; or

the floor area or site area of an existing use is increased; or

an existing use is increased by the measure specified in Column C of Table 1 in Clause 52.06-5 for that use.

The plans must show, as appropriate:

...

Access lanes, driveways and associated works.

...

1. Plans must be provided to the responsible authority under Clause 52.06-8 wherever Clause 52.06 applies, whether or not a permit application is being made under Clause 52.06-3 or any other provision of the Scheme.
2. Clause 52.06-9 sets out a number of Design Standards for car parking. Plans prepared in accordance with Clause 52.06-8 must meet the design standards of Clause 52.06-9, unless the responsible authority agrees otherwise.
3. Design standard 1 applies to Accessways. Accessways must be at least 3 metres wide. Relevantly, no planning permit is required to vary the car parking design standards. Clauses 52.06-8 and 52.06-9 of the Scheme provide that a plan is to be to the satisfaction of the responsible authority. If a variation is sought to a design standard, that variation must be agreed by the responsible authority.
4. The council takes no issue with the minor variation from Design Standard 1. Its grounds of refusal do not relate to the access from the laneway. In fact, they support access from the rear as heritage policy does not support vehicle access from a heritage street.
5. We are satisfied that the proposed accessway width into the site of 2.97 metres (as opposed to the 3 metres sought in the Design Standard) is so minor as to be immaterial. While the access width into the site is slightly less than the 3.0 metre standard, the proposal does not contribute to that narrow width, and careful access by vehicles into the site will continue to be available, as is presently the case. Users will become accustomed to this manoeuvre with regular use.
6. Design Standard 1 also provides that accessways must have a corner splay or area at least 50 per cent clear of visual obstructions extending at least 2 metres along the frontage road from the edge of an exit lane and 2.5 metres along the exit lane from the frontage, to provide a clear view of pedestrians on the footpath of the frontage road.
7. Based on the subdivision layout, this is problematic as it would require permeable fencing between the review site and the site to the east. While the substituted plans detail this, the respondents either oppose this (as it is a shared fenceline with their property) or say that this does not achieve the outcome sought as vehicles may park on the adjacent site and consequently block views.
8. We are satisfied that appropriate methods exist to provide an acceptable level of visibility for vehicles exiting the site into the laneway. We do not agree that there will be unacceptable safety risks for either pedestrians or cars using the laneway.
9. Vehicles will be able to exit the site from the basement carpark in a forwards direction. This is a positive outcome and an improvement on the access arrangements of other sites relying on Amberley Lane which reverse out into the lane.
10. The access into the site will be controlled via a mechanised gate. Its opening will act as a signal to any pedestrians using the laneway that cars are likely to be exiting the site into the laneway. The use of a convex mirror at the entry onto the site will provide appropriate surveillance of the laneway for vehicles exiting the site.
11. Mr Walsh's analysis persuades us that the variations to the Design Standards are acceptable based on:
    • the function of the laneway access, which accommodates a small number of vehicles operating in a lower speed setting.
    • swept path diagrams which show that with careful and deliberate motions B99 vehicles are able to access the site safely without transgressing onto the adjoining property.
    • the vehicle access providing access to resident parking, meaning the access point will be regularly used by the same people who will become familiar with the required access manoeuvres.
    • the combination of a convex mirror with a controlled gate entry/access is an acceptable alternative to providing an open corner splay.
12. We accept the detailed traffic assessment conducted by Mr Walsh and agree that the level of traffic associated with the amended proposal accessing the site from Amberley Lane would be manageable and safe. We note that the site is in an area well serviced with options for public transport use, with fixed public transport nearby in comfortable walking distance.
13. We are not persuaded that the proposed development will result in a dangerous pedestrian environment along the laneway. If pedestrians choose to use the laneway, we consider that vehicles along this laneway would travel at a very slow speed, which will give sufficient warning to both pedestrians and drivers to enable them to avoid any potential conflict.
14. Further, the laneway serves only a limited number of properties, which together have a very low number of vehicles that utilise this laneway.
15. The low trip generation rate of the five dwellings means that the likelihood of two vehicles seeking to utilise the laneway at the same time is very low.
16. Finally, we are persuaded by the evidence of Mr Walsh that the encroachment into the laneway by spouting etc can be accommodated via driver experience as occurs for vehicles currently using the laneway.
17. For these reasons we find that the proposed development will appropriately provide for car parking and traffic movements.

1. We considered whether the design could be modified through imposing permit conditions or issuing an interim order allowing an opportunity to redesign the development. However, greater side setbacks generally and/or modifying the extent of the top floor across the site will impact upon the remaining spaces. A redesign is necessary.
2. The decision of the responsible authority is affirmed. No permit is to issue.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[3] Definitions are located in the Heritage Places Inventory March 2022 incorporated into the Scheme

[4] Derived from the Heritage Precincts Statements of Significance, which is an Incorporated Document listed at the Schedule to Clause 72.04 of the Planning Scheme

[5] Being an Incorporated Document under Clause 72.04.

[6] Noting that as the application was lodged prior to the gazettal of Amendments VC267 that the then clause 55 applies to the consideration of this application

[7] Noting that the proposal provides parking at a rate exceeding the planning scheme standard