1. Before the development starts amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application, but amended to show:

1. Deletion of the roof top balustrade, upstand to swimming pool, and shade structure to reduce the maximum building height to 12 metres when measured midway along the domain Road frontage. 2. All meshed screens on the south elevation permanently fixed and not more than 25% transparent.

1. Deletion of the criss cross concrete frame on the western elevation.
2. Before the development starts a schedule and samples of all external materials, finishes and colours to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the schedule and samples will be endorsed and will then form part of the permit.
3. The development as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
4. Before the development starts the permit holder must provide evidence to the satisfaction of the Responsible Authority of the following:
   1. That substantial progress has been made towards obtaining the necessary building permits for development of the land generally in accordance with this permit.
   2. That the permit holder has entered into a bona fide contract for construction of the development authorised by this permit.
5. Architectural features and building services other than those shown on the endorsed plans must not be located above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority.
6. All external air conditioning units, other plant and mechanical equipment must be concealed from the view from level and be acoustically baffled to the satisfaction of the Responsible Authority.
7. All garbage and other waste material must be stored in an area set aside for this purpose to the satisfaction of the Responsible Authority.
8. Not more than one television aerial is to be erected per building without the consent of the Responsible Authority.
9. Satellite dishes must not be erected on the building without the prior permission of the Responsible Authority.
10. Before any of the dwellings are occupied mail boxes and newspaper receptacles must be provided to the satisfaction of the Responsible Authority.
11. Any requirement to temporarily relocate street lighting must be first be approved by the Responsible Authority - Council's Group Manager Engineering Services.
12. Before the development starts, a drainage plant to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plan must:
    1. Incorporate water sensitive urban design.
    2. Make provision to connect the system to the council stormwater drainage system.
13. The owner of the land must construct all necessary vehicle crossings and demolish all unnecessary vehicle crossings adjacent to the subject land in accordance with plans and specifications approved by the Responsible Authority.
14. The owner of the subject land must not alter the existing footpath levels in Domain Road and Millswyn Street to construct new vehicle or pedestrian entrances unless with the prior written approval of the Responsible Authority, council group manager - engineering services.
15. Any mechanical exhaust system for the car parking area must be sound attenuated to prevent noise nuisance to the occupants or the surrounding properties, to the satisfaction of the Responsible Authority.
16. This permit will expire if one of the following circumstances applies:
    1. The development is not started within two years of the date of this permit.
    2. The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

Mr C Canavan QC and Ms M Foley of counsel, instructed by Vincent Verduci and Associates, Solicitors. Mr Canavan and Ms Foley called the following expert witnesses:

• Mr A Willingham, consultant heritage architect
• Mr D Bick, consultant heritage architect
• Mr R Marsh, Consultant Architect for the proposal
• Professor A Hutson, Consultant Architect, and
• Mr J Govenlock, Consultant Planner

Ms N Brennan of counsel, by direct brief. Ms Brennan called the following expert witnesses:

• Ms R Hansen, consultant planner, of Hansen Partnership Pty Ltd
• Ms R Riddett, consultant heritage adviser, of Anthemion Consultancies Pty Ltd

1. This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") brought by the Permit Applicant for review of a decision of the Melbourne City Council ("the Responsible Authority") to refuse to grant a permit for demolition of the existing building at 137 Domain Road, South Yarra, and its replacement by a four level building, including a basement of eleven car spaces, with a roof top terrace and containing five apartments.

1. The subject land is on the south east corner of Domain Road and Millswyn Street, South Yarra. It has a frontage to Domain Road of 17.18 square metres and a depth along Millswyn Street of 30.46 square metres, and an area of 517 square metres. It is presently occupied by a three storey interwar block of flats with the main entrance(s) from Millswyn Street. It is setback 3 metres from Domain Road and 2.8 metres from Millswyn Street. There is no formal car parking provided but three cars can be parked at the rear.
2. There is a 3 metre wide right of way along the southern rear boundary which provides vehicle access to the adjoining site at 149 Domain Road.
3. The adjacent site at 149 Domain Road to the east contains a three storey art deco apartment building which is ungraded in the heritage places inventory. Further to the east at 153-155 Domain Road is an apartment building developed under permit TP-2002-672 that allows for use and development of the subject land for a five storey building exceeding 12 metres above ground level and demolition of the existing single storey buildings. This permit was issued with the direction of VC AT, the Tribunal comprising Senior Member Sharkey and Member Hadjigeorgiou. Schedule 15, Royal Botanic Gardens, to clause 43.02 Design and Development Overlay now provides that works must not exceed 12 metres in height and this cannot be varied with a permit.
4. The south of the right of the way at 124-126 Millswyn Street is a three storey brick building containing three apartments. This building is also ungraded in the heritage places inventory.
5. Lynch's restaurant is on the south west corner of Domain Road and Millswyn Street. It occupies a double storey Victorian era terrace with car parking at the rear accessed from Millswyn Street.
6. The Royal Botanic Gardens are on the north side of Domain Road directly opposite the subject land.
7. The existing building on the subject land was designed by a Stuart Hall in 1940 and built in 1941. It is a C graded heritage building in a Level 3 streetscape. Technically it is considered that the building style is not an "inter war" style but a "modern art deco" style.

1. The proposal is to demolish the existing building and replace it with a residential apartment building incorporating a semi recessed basement parking area for 11 cars at basement level with an additional three car spaces at the rear. There will be three moderately sized apartments between 103 and 128 square metres in area at ground level (actually a half level elevated). There will be a larger apartment approximately 260 square metres in area occupying approximately the front two thirds of the first floor plan. The remainder of this floor, approximately 103 square metres, will be bedrooms for apartment five which will occupy all of the second floor above, an area of 348 square metres, and that apartment will occupy at roof top level a trafficable terrace and swimming pool. Apartment 5, which occupies part of the first floor, the whole of the second floor, and the roof top terrace and swimming pool, will have an internal area of approximately 450 square metres.

1. The subject land is covered by the Melbourne Planning Scheme and is in a Residential 1 zone, which is the subject of clause 32.01. A permit is required for more than one dwelling on a lot. As four levels are proposed assessment against clause 55, two or more dwellings on a lot and residential buildings, is not required.
2. Schedule 6, South Yarra Precinct, covers subject land to clause 43.01, Heritage Overlay. The permit is required for demolition of the existing building and for the proposed buildings and works.
3. Schedule 15, Royal Botanic Gardens to Clause 43.02, Design and Development Overlay, covers the subject land. A permit is required for buildings and works, which must not exceed 12 metres, a requirement that cannot be varied with a permit.

The proposed demolition of the building would be contrary to the purpose of the Heritage Overlay (Clause 43.01) and Local Policy 'Heritage Places outside the Capital City Zone' (Clause 22.05) of the Melbourne Planning Scheme.

1. The ground of application for review is:
   • The proposal is appropriate having regard to the objectives of the Heritage Overlay (Clause 43.01) and Local Policy Heritage Places outside the Capital City Zone Clause 22.05 as well as other relevant policy objectives of the Melbourne Planning Scheme.

1. It was submitted that the original heritage study produced by Ms Gill in 1984 was flawed in that a mistake was made in regard to this building by incorrect naming of the architect, and it was submitted that this mistake lead to the existing building getting a C heritage grading and that if the study was to be re-evaluated the building will not receive such a rating.
2. Stuart Hall, the actual architect for the existing building, was not considered a significant architect and of two buildings that he designed at the time this was not the best example of the modern/art deco style of the two buildings.
3. Mr Willingham gave evidence that the existing building is an "eclectic pastiche" and basically not a good example of the modern/art deco style and was not worth retaining.
4. It was the evidence of Mr Bick that the subject building lacked the detailing and decoration of other modern buildings. It incorporates on the corner a curved metal projecting bay window, a curved fluted main entry, and horizontal slit windows, but otherwise would be considered rather plain, and when compared with other buildings of a similar age and style it would not be regarded as a good example.
5. It was the evidence of Ms Riddett that in comparison with other similar blocks of flats in nearby streets the subject building was worthy of a C grading and also met the definition of a C graded building.
6. Ms Brennan made reference to Clause 22.05, Heritage Places outside the Capital City Zone, and in relation to demolition the performance standard applies:

Demolishing or removing original parts of buildings, as well as complete buildings, will not normally be permitted in the case of "A" and B", the front part of "C" and many "D" graded buildings. The front part of a building is generally considered the front two rooms in depth.

Before deciding on an application for demolition of a graded building the Responsible Authority will consider as appropriate:

• The degree of its significance;
• The character and appearance of the building or works and its contribution to the architectural, social or historic character and appearance of the streetscape and the area;
• Whether the demolition or removal of any part of the building contributes to the long-term conservation of the significant fabric of that building;
• Whether the demolition or removal if justified for the development of land or the alteration of, or additional to, a building.

A demolition permit should not be granted until the proposed replacement building or works have been approved.

The starting point for the Tribunal must be the C grading of the building. It is not the role of the Tribunal to act as planning authority and seek to revisit the grading of the subject dwelling and effectively regard it identified in the planning controls. Graeme Gunn Architects v Melbourne City Council [2006] VCAT 348 at paragraph 59; "the Tribunal has to beware of "rewriting" an incorporated document by according it is a different grading": Reis v Port Phillip City Council (2000/23643) at paragraph 150. In this case, the C grading has been in place for over 20 years. Mr Willingham has sought to cast doubt on the reliability of the grading, but Ms Riddett's subsequent analysis confirms the appropriateness of the C grading and Mr Bick agrees that the building meets the criteria for a C grading.

1. Ms Brennan submitted with respect to retention of the front part of a C graded building:

All heritage witnesses agree that retention of front part of this building is nonsensical. Bearing in mind that the retention of the front part of the building is directed to achieving the policy of full or partial concealment of new additions, in these circumstances, the heritage policy must be read to discourage demolition of C graded buildings. The text of the policy is not qualified by the word "many", as it is for D grade buildings, the inference being that retention of all C grade building is the outcome policy seeks to achieve.

1. We have had regard to the submissions and evidence in this respect, but it is not for us to substitute a D grading for a C grading. We have nevertheless come to our conclusion that the building should be demolished having regard to all of the submission and evidence, the planning provisions and relevant planning policies, and our inspection.
2. Ms Brennan pointed out to us that clause 22.05 provides the demolition permit should not be granted until the proposed replacement building or works have been approved. We note and accept this.
3. Mr Canavan submitted that the proposed building will be "so exciting" as to warrant demolition of the existing building.
4. We consider that the existing building is no so important to suggest retention for its own sake. The main issue is whether the urban design character of heritage significance of the existing building warrants retention and this depends to a greater extent on whether we consider the demolition will detrimentally affect the heritage value of the area. We do not consider that it will.
5. The second issue for us, if we agree with the submission of Mr Canavan the design of the proposed replacement building warrants demolition of the exiting building, is whether the proposed design meets relevant design criteria including building height and character. We have some reservations.
6. We agree generally with the statements that support the argument that the existing building is not an exemplary example of inter war or modern/ art deo style, and we do not believe that demolition will cause significant distress or significantly affect the heritage of the area.
7. We have reservations about the geometric polished concrete structural screen on the Millswyn Street elevation. We agree with the evidence of Ms Hansen that the style of this screen, with no legitimate reference to anything else in the immediate surrounds, is inappropriate. It could be deleted altogether or the façade could be redesigned with a more sympathetic approach to the immediate streetscape. We do not consider that the style and character of the proposed replacement is particularly sensitive to the surroundings because of this screen. The scale of the proposed building is similar to the existing, but we do have concerns about the screen. It woud be appropriate that any permit be granted with a condition that the screen be deleted. It is a matter for the applicant for review/permit applicant to then decide if this outcome is acceptable or whether it desires to redesign.
8. We note that draft condition 4 suggested by the Responsible Authority provides that before demolition starts the permit holder must satisfy the Responsible Authority that substantial progress has been made towards obtaining necessary building permits and that a bona fide contract for construction of the proposed building has been entered into. We consider that such a condition is appropriate, although there could be some redrafting. This would ensure that our decision would not be frustrated by taking advantage of the permit to the extent that it allows demolition and then not proceeding with the building for which a permit has been granted.
9. The issue of building height was addressed. Design and Development Overlay 15 provides for a mandatory height control of 12 metres which cannot be varied with a permit. There are features proposed for the upper terrace level comprising a balustrade, shade structure and swimming pool. These would exceed the 12 metre height and the issue was whether the upper level balustrade, shade structure and swimming pool upstand are prohibited to the extent that they exceed the 12 metre height limit. These features are what we would call "functional architectural features", that are there not for practical or decorative reasons in the building design but because the proposed terrace is trafficable. A typical roof without these features would be considered "non trafficable" We consider that if these features are to be retained they should be built within the maximum height limit of 12 metres. Draft condition 1(a) provides for removal of the roof top balustrade and shade structure to reduce the maximum height to 12 metres. Mr Canavan opposed this condition for the applicant for review/ permit applicant, but we consider that this condition should be retained.
10. We consider that the modern architectural style of the building will be a suitable condition to the streetscape and the area. There is already a diversity of architectural styles in the area and this proposal will add to that diversity once respecting the character of the area. We consider that the proposal will respond positively to the context of the site and fit comfortably into its area respecting both the heritage element and the neighbourhood character.
11. We have therefore concluded that a permit subject to conditions should be granted, and we will so order.