• Demolish or remove a building.
• Construct a building or construct or carry out works, including:
  • A fence.
  • A deck, including a deck to a dwelling with a finished floor level not more than 800mm above ground level.
  • Solar panels.
• Externally alter a building by structural work, rendering, sandblasting or in any other way

The Subject Site is located on the corner of Studley Avenue and Stawell Street. The total site area is approximately 1135 square metres. The site is occupied by a red brick, Federation/Edwardian dwelling with a terracotta tiled roof. The dwelling was constructed in 1907 by notable architect Christopher Cowper and is largely intact and in good condition. The Queen Anne architectural style of the dwelling includes a corner turret at the corner of Stawell Street and Studley Avenue. The subject site is covered within 'Barry Street' Heritage Overlay (HO143). The City of Boroondara Schedule of Gradings Map identifies the subject site as being 'Significant' to the heritage overlay

1. Steven McDonald ('applicant') wishes to extend the existing dwelling at 14 Studley Avenue in Kew. Following the decision of Boroondara City Council ('Council') to refuse this matter, he has requested that the Tribunal review this matter.
2. The Council refused the application on a number of grounds, which were altered after the Tribunal substituted amended plans for the application in its orders of the 23 August 2024. The Council submit that the amended application should be refused on the following grounds:
   1. The proposed extent of demolition to the significant graded dwelling does not comply with Council's Heritage Policy and the relevant standard pursuant to Clause 15.03-1L of the Boroondara Planning Scheme and would result in an unreasonable loss of original heritage fabric which will impact the cultural heritage significance of the place.
   2. The siting, bulk, form and massing of the proposed addition does not comply with Council's Heritage Policy and the relevant objectives pursuant to Clause 15.03-1L of the Boroondara Planning Scheme and would result in an unreasonable impact on the cultural heritage significance of the place and precinct more broadly.
3. George Vrakas ('respondent') also opposes the granting of a planning permit for the proposed extension. Following the substitution of the amended plans at the practice day hearing, he amended his statement of grounds to be as follows:
   1. The proposed extent of demolition will unreasonably affect the heritage significance of the building and the Barry Street Precinct.
   2. The proposed works will unreasonably affect the heritage significance of the building and the Barry Street Precinct.
4. The respondent relies on the evidence of Nigel Lewis. The applicant relies on the evidence of Kate Grey and Bryce Raworth. All three witnesses are heritage consultants, who each have a considerable amount of experience and expertise.

1. Having considered all the submissions and evidence and inspected the subject land and its locality I find that the key questions to be answered by the Tribunal in this proceeding are:
   • What is the significance of the heritage place?
   • Is the extent of demolition acceptable having regard to Clause 15.03-1L, and the Heritage Overlay?
   • Are the proposed buildings and works acceptable having regard to Clause 15.03-1L, and the Heritage Overlay?

WHAT IS THE SIGNIFICANCE OF THE HERITAGE PLACE?

1. The subject site has been included within the Heritage Overlay 143 (Barry Street Precinct). The purposes of the overlay are:
   • To implement the Municipal Planning Strategy and the Planning Policy Framework.
   • To conserve and enhance heritage places of natural or cultural significance.
   • To conserve and enhance those elements which contribute to the significance of heritage places.
   • To ensure that development does not adversely affect the significance of heritage places.
   • To conserve specified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.
2. The overlay requires consideration of a number of decision guidelines when assessing an application , which 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.
3. Clause 15.03-1L applies to land included within a heritage overlay and requires consideration of a number of heritage studies and similar documents, which include the Boroondara Schedule of Gradings Map and the City of Kew Urban Conservation Study (City of Kew, 1988 'UCS'). The UCS graded the existing dwelling at 14 Studley Avenue as Grade A. Grade A places are described by the study as:

Places that are of individual cultural significance within the locality, the State of Victoria, or Australia as a whole. These are on, or recommended for inclusion on, at least one of the Historic Buildings Register, the Government Buildings Register, or the Register of the National Estate.

1. The citation provided within the UCS provides the following significance of the dwelling on the subject site:

14 Studley Avenue is of significance as a fine and substantially intact example of Christopher Cowper's architecture. It is integral to the concentration of Edwardian houses in this area of Kew.

1. The UCS recommended that the dwelling be included on the then Register of the National Estate, but this does not appear to have occurred.
2. The UCS recommended the creation of Urban Conservation Area No 1, which contained six areas including which would become the Barry Street Precinct. The document provides the following justification for the creation of the Urban Conservation area:

This area contains 5 buildings that have been designated Grade A in the study; all mansions of the nineteenth and early twentieth century. Their collective impact on the character of Studley Park Road, Nolan Street and Walmer Street is considerable, and the concentration of Victorian and Edwardian Grade B buildings along Walmer Street adds to this character. In recent years the buildings themselves have been quite well maintained, however some of the institutions that now occupy the area have been responsible for insensitive infill buildings that detract quite severely from the earlier structures. The recommendation of this area as an Urban Conservation Area No. I is in the main to protect the buildings as a domestic group and to preserve/reinstate, the sensitive interface between the streetscapes and the parks onto which they face

1. In 2013 Lovell Chen prepared an Assessment of Heritage Places in Kew ('The assessment'). The assessment notes the former grading system had been replaced by a new system which identifies buildings as being 'significant' contributory and non-contributory. As a general rule a significant grading was applied to those buildings formally graded as A or B.
2. The assessment recommended that properties be added to the Barry Street precinct and that the statement of significance for the Barry Street heritage precinct be modified to state:

Barry Street Precinct, Kew, is an area of heritage significance for the following reasons:

• The place has an unusual concentration of highly graded buildings, many of which were designed by prominent Melbourne architects.
• The area is one of Melbourne's best concentrations of large late Victorian and Federation house designs, in varied materials and often ably utilising the topography of the area. The precinct also has a number of distinctive designs of the interwar period.
• The eastern area of the precinct has some more modest dwellings on smaller blocks, including substantially intact development from the late nineteenth and early twentieth centuries.
• Many of the streets are marked by original basalt kerbing and grading, and the area features mature gardens and street trees.

1. The assessment did not appear to review the grading of the dwelling at 14 Studley Avenue.
2. The Heritage Policy - Statements of significance reference document dated January 2018 updated the statement of significance for the precinct to now read:[2]

HO143 Barry Street Precinct, Kew Barry Street Precinct, Kew, is an area of heritage significance for the following reasons:

• The place has an unusual concentration of highly graded buildings, many of which were designed by prominent Melbourne architects.
• The area is one of Melbourne's best concentrations of large late Victorian and Federation house designs, in varied materials and often ably utilising the topography of the area. The precinct also has a number of distinctive designs of the interwar period. The eastern area of the precinct has some more modest dwellings on smaller blocks, including substantially intact development from the late nineteenth and early twentieth centuries.
• Many of the streets are marked by original basalt kerbing and grading, and the area features mature gardens and street trees.

1. In 2020 the Kew Heritage Gap Study was completed by Context which also recommended that the additional properties be added to the Barry Street precinct but does not appear to have reviewed the grading for the dwelling at 14 Studley Avenue.
2. It follows from this review of the heritage studies, that the the Boroondara Schedule of Gradings Map identifies the dwelling at 14 Studley Avenue as significant to the precinct.
3. The Tribunal was provided with heritage evidence from three experts, Nigel Lewis who was called by Mr Vrakas and Kate Grey and Bryce Raworth who were called by the permit applicant.
4. Mr Vrakas advised that Mr Lewis was unable to appear on the first day of hearing, which in part resulted in the matter being adjourned. Mr Lewis has prepared three witness statements for the Tribunal.
5. In his first statement dated 2 April 2024 he summarised the significance of the dwelling as follows:

The subject house was designed by Christopher A. Cowper and built in 1907. Cowper was one of a small number of leading domestic architects who were responsible for the Federation era - Melbourne Queen Anne style. He designed this house at 14 Studley Avenue for James Wood just before embarking on the design and construction of 33 houses in the Grace Park Estate in Hawthorn, a widely acclaimed precinct for this style. The subject house may have served as a prototype for a number of design idioms later demonstrated in Cowper's later renowned work in the Melbourne Queen Anne style.

14 Studley Avenue is a landmark building in this section of the precinct due to its flamboyant design and prominent location.

1. Mr Lewis outlined the subdivision history of the area, and noted that due to the topography of the land the house prior to the development of the land to the west in the post war period, the land would have had access to remarkable views:

The prestigious houses built in this section of Studley Avenue would have had remarkable elevated views to the west over across farmland towards the Yarra River. The subject house on the corner of Stawell Street 14 Studley Avenue, had a particularly prominent position, serving as a bookend to this row, and as a landmark from views along Stawell Street and Studley Avenue. This has been diminished in recent years by the heavy tree cover.

1. In his second addendum to his statement, Mr Lewis provided the Tribunal with a historic photo of this aspect:

Figure 1 - Photograph provided in the evidence of Mr Lewis

1. Mr Lewis considers that the design of the dwelling at 14 Stawell Avenue represents a turning point in the career of Christopher Cowper, as it was prior to the construction of 33 houses which were designed and built by Christopher Cowper within the Grace Park Estate in Hawthorn.
2. Mr Lewis goes on to describe the house as follows:

...It was designed to be appreciated in three dimensions from both street frontages, including from the south-east. While the west elevation provides a strong streetscape presentation, heavy vegetation now obscures the views from the south-west in summer months. As outlined above, the picturesque roof form, with terra cotta tiles and a corner turret, represents some of the most important aspects of the Melbourne Queen Anne style residential buildings of Christopher Cowper. There is a clear view of the lower rear wing from Stawell Street.

The house is remarkably intact externally as seen from the public domain. It was subject to a major upgrade, apparently in the 1980s. The main works were the new double red brick garage with a hipped terra cotta tiled roof as well as the red brick and timber fencing. The low front fence is of a modern design as is the rear high section with matching brick piers with timber panels. Both sections of fencing use the same modern pressed red bricks. The garage and fence are sympathetic to the host building however, and retain views of the rear wall and wing of the house, despite being partially concealed from some views. The original fencing would have been likely to have been a decorative picket fence for the front section, with a high timber paling fence adjoining the rear yard.

1. The history of the dwelling and precinct outlined in Ms Grey's statement is generally consistent with that provided to the tribunal by Mr Lewis. She describes the dwelling as follows:

14 Studley Avenue is a single-story red-brick residence in the Federation Queen Anne Revival style. The house is located on the north-east corner of Studley Avenue and Stawell Street, and addresses the corner in typical Federation style, but with its primary elevation to the west to Studley Avenue. The land slopes from east to west and as a consequence, the west elevation of the house with its generous return verandah and prominent central projecting gable end is raised above ground and is a powerful presence in the street. Notable features of the house include the complex roof form with intersecting hipped and gabled forms finished in Marseilles pattern terracotta tiles and ridge capping and tall brick chimneys, the projecting front gable with wall hung shingles, a decorative frieze, and paired posts, a return verandah featuring brick piers and timber Tuscan columns, and an octagonal turret with a 'candle snuffer' roof at the south-west corner of the house. A five-sided projecting bay window with multipane glazing and leaded toplights and a pyramidal roof is located on the southern elevation, unusually positioned beneath another projecting gable

1. Her evidence included the following photographs of the dwelling:

Figure 2 - Photographs provided in the evidence statement of Ms Grey dated April 2024.

1. Ms Grey described the rear (eastern) portions of the house as being far simpler in their elevations, reflecting its utilitarian function. Her evidence included an historic property service plan which shows the drainage and water connections at the property were at the rear of the dwelling and to a washhouse located in the rear of the site, which has been demolished. In the 1980s the dwelling was modified to include the French doors on the northern side of the dwelling which leads out onto the poolside area. The existing layout of the east wing which includes a kitchen, dining room, laundry and bathroom were created at the same time.[3] Ms Grey's evidence statement includes the following photograph of this section of the dwelling:

Figure 3 - Photograph provided in the evidence statement of Ms Grey dated April 2024

1. In her addendum statement dated June 2024 she notes that a 1945 aerial image provided in Mr Lewis' statement indicates that a chimney has also been removed from the eastern/rear wing of the dwelling at some point in its history.
2. Mr Raworth noted that in addition to the French doors two additional windows were added to this façade to replace an existing door. Whilst these were designed to replicate the original windows in the dwelling, Mr Raworth noted that the:

The brick detailing to the header arch of these windows, and the detailing of the windows themselves, indicate they are modern additions. The original bluestone doorstep remains in place below the left hand window.

1. It was his view that these elements indicate that these windows are a modern insertion into the fabric of the east wing.
2. Based on the evidence before the Tribunal, I find that the existing dwelling is of significance to the precinct, and was designed to have its primary frontage to Studley Avenue, with its secondary frontage to Stawell Street. The best view of both facades would have been at one time from the south west corner of the intersection. This view point is now obscured by vegetation as shown in the mage provided by Ms Grey below:

Figure 4 - Photograph provided in the evidence statement of Ms Grey dated April 2024

1. The best view of the dwelling from the street is now possible from Studley Avenue:

Figure 5 - Photograph provided in the evidence statement of Ms Grey dated April 2024

1. From Stawell Street the building now presents as follows

Figure 6 - Photographs provided in the evidence statement of M r Raworth dated March 2024

1. Towards the rear of the site the modern garage is clearly present, as is a high fence located towards the rear of the site. The garage and high fence partially obscures the rear/eastern wing of the property from the street.

IS THE EXTENT OF DEMOLITION ACCEPTABLE HAVING REGARD TO CLAUSE 15.03-1L, AND THE HERITAGE OVERLAY?

1. The application proposes the demolition of the eastern wing of the dwelling, the garage, swimming pool, part of the existing fence and paving as shown in the extract from the demolition plan below:

Figure 7 - Extract from plan prepared by Neil Architecture, TP08 Rev B dated 18 July 2024

1. The decision guidelines of the Heritage Overlay, at Clause 43.01-8 require the decision maker to consider:

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

1. The objectives of council's local heritage policy at Clause 15.03-1L include:

To preserve 'significant' heritage places, protecting all significant heritage fabric including elements that cannot be seen from the public realm.

To facilitate sympathetic new buildings which extend the life of 'significant' heritage places.

1. The policy contains strategies specific to significant heritage places which include:

Retain significant built fabric and not normally allow demolition.

Permit partial demolition of significant built fabric for the purpose of additions and alterations only if the partial demolition, additions and alterations will not adversely affect the cultural heritage significance of the place and will assist the long term conservation of the building.

Support the demolition of non-original and non-contributory additions.

Ensure development does not alter fabric that contributes to the cultural heritage significance of any part of a 'significant' heritage place including elements that cannot be seen from the public realm.

1. Council submit that the demolition of the eastern wing is not consistent with heritage policy as it is an integral part of the original fabric of the building that was designed by Christopher Cowper and clearly visible from the street. They submit:

As viewed from the street, the eastern wing is unaltered and in an original state. It is highly visible to Stawell Street by virtue of the elevated position on the site. As shown in the photograph below, the entire wing, including the door, design details and roof form is highly visible and appreciable from Stawell Street. Demolition of this original fabric diminishes and reduces the heritage value of the place that is sought to be protected under the Heritage Overlay.

1. The respondent generally agrees with Council's position regarding demolition and relies on the evidence of Mr Lewis, which states:

This proposal will have an extreme and adverse impact on the heritage values of this prominent dwelling. It was designed to be appreciated in the round from both street frontages. The view from the south-east is an important view of the house, and shows it in the context of the roofs of houses in Studley Avenue to the north, as well as the house to the east that faces Sir William Street. As outlined above, the roof form with terra cotta tiles were some of the most important aspects of the Melbourne Queen Anne style residential buildings of Christopher Cowper.

1. The applicant relies on the evidence of Ms Grey and Mr Raworth.
2. In her evidence Ms Grey notes that the east wing is original fabric and therefore demolition should be approached with caution. In her view the primary question in determining whether the demolition is acceptable is its impact on the significance of the heritage place, being the building and the overall precinct. She considers that the rear portion of the dwelling is of secondary importance to the dwelling:

...Befitting their service function, they are more utilitarian, as signified by the adoption of a simple gabled form for the east wing and the general lack of ornament or complex detailing. The rear elements proposed for demolition exist and are partly visible from the street but they contribute little to an appreciation of the architectural design of the house, which is the basis for its listing. The only rear element with related detailing is the comparatively modest casement window in the east wall, which is to be retained in the amended plans.

On this basis, while original, the fabric proposed to be demolished plays a secondary role. Its removal would not impact on an appreciation of the overall composition of the design, nor would it affect the key valued characteristics (beyond the continued use of red brick and roof tiling). 104. As importantly, the overall architectural composition would still be legible; as viewed from Studley Avenue and from Stawell Street the house would not be read as 'incomplete' or truncated nor would its presentation be diminished. 105. On this basis, the demolition would impact on the intactness of the building and the extent of original fabric but would have minimal impact on significance.

1. Mr Raworth noted the changes to the original fabric that were undertaken in the 1980s and the fact that a chimney has been removed from the east wing at some point in its history. His assessment of the demolition works were acceptable as:

While the wing that is proposed to be demolished comprises a part of the original footprint, it has been subject to alteration, with windows and doors having previously been altered and replaced. It now presents as a hybrid design. The wing would originally have had a typical low key service wing character, but now has windows and a prominent pair of broad French doors opening onto a swimming pool that are commensurate with its modern role as a living space with direct access into the garden. While the wing is visible from Stawell Street, it is set back from the southern property boundary by approximately 13 metres, which makes it recessive in views from along Stawell Street. It is not visible at all from Studley Avenue.

The statement of significance for the property in the Kew Conservation Study references that the dwelling 'is integral to the concentration of Edwardian houses in this area of Kew'. Most of this early 20th century dwelling is being retained; thus, the three dimensional form and Edwardian character of the place will remain intact, and its contribution to the concentration of Edwardian houses in the area will not be diminished. The demolition of the altered rear wing will not have an unacceptable adverse impact upon the identified significance of the place; as such, it is broadly consistent with Council heritage policy and is supported.

1. As discussed above, based on the evidence of Mr Lewis and Ms Grey I find that the most significant parts of the dwelling are those elements which have been designed to front the intersection of Studley Avenue and Stawell Street. This is reflected in the ornate design of these elements of the building. I agree with the evidence of Ms Grey and Mr Raworth that the eastern wing of the building has had a utilitarian role, which is reflected in the less ornate treatment of the roof. Whilst it is visible from Stawell Street, it is clearly a rear, secondary element to the primary facades of the building which fronts Studley Street and the section which has been orientated towards the intersection of Studley and Stawell Street. It has also been modified overtime, albeit in a sensitive manner which is not apparent from the streetscape.
2. The other elements proposed to be demolished which include the existing garage and paving to the entrance of the dwelling were not controversial and not addressed in detail by the experts.
3. I find that the demolition of the rear wing of the building is an acceptable response to policy as the fabric has a secondary role and does not make a significant contribution to the overall significance of the heritage building and precinct overall. I am satisfied that the demolition as shown will not adversely affect the overall significance of the building and will assist in the long term conservation of the building. I will now consider whether the additions and alterations will adversely affect the heritage significance of the place.

ARE THE PROPOSED BUILDINGS AND WORKS ACCEPTABLE HAVING REGARD TO CLAUSE 15.03-1L, AND THE HERITAGE OVERLAY?

Figure 8 - Extract from plan prepared by Neil Architecture, TP01 Rev B dated 18 July 2024

1. As seen in the illustration above the application proposes to construct a two storey addition to the building, which will be read from Stawell Street as a new building, due to the separation which has been provided between the original dwelling and the proposed garage and living room as seen in the extract of the ground floor plan provided below"

Figure 9 - Extract from plan prepared by Neil Architecture, TP012 Rev B dated 18 July 2024

1. The Heritage Overlay requires the decision maker to consider:
   • 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.
2. Council submits that the proposed addition is not sympathetic to the heritage place as it is taller than the existing dwelling and will project closer to the street. They consider that the angular roof form of the addition will compete with the roof forms of the existing dwelling. They also consider that the proposal fails to comply with the oblique view diagrams as provided within Clause 15.03-1L.
3. The respondent generally shares the views of Council and again relies on the evidence of Mr Lewis. He is particularly concerned with the bulk of the proposed form, particularly when viewed in relation to the property at 22 Stawell Street. The submissions on behalf of respondent included the following photograph taken from the property at 22 Stawell Street which shows the existing eastern elevation of the property:

Figure 10 - Extract from submissions prepared by Alex Gelber on behalf of the respondent

1. The proposed eastern elevation is proposed to read as follows:

Figure 11 - Extract from plan prepared by Neil Architecture, TP016 Rev B dated 18 July 2024

1. Both Council and Mr Lewis rely on the sight line diagrams provided within the policy at Clause 15.03-1L. I note that these do not apply to significant buildings, only to contributory or non-contributory buildings. Whilst it could be argued that at a minimum an addition to a significant building should meet these requirements, there is nothing in the scheme to this effect. Instead, the policy requires consideration of the 'Significant heritage places strategies'. These include:

Ensure alterations, including restoration or reconstruction works, maintain the significance and integrity of the heritage place.

Ensure that materials and restoration techniques consistent with the historic period of the heritage place are used.

Ensure development does not obscure fabric that contributes to the cultural heritage significance of any part of a 'significant' heritage place that addresses the public realm.

Use materials and surface finishes that are complementary to the fabric of the heritage place.

Encourage the reuse of previously demolished building materials from the heritage place in the design and construction of new additions to buildings.

Incorporate design details that complement the design of the heritage place (including the type and form of windows, doors, architectural features and verandahs), that are:

• Interpretive, that honestly admit their modernity while relating to the heritage character of their surroundings, or are a replication of historic forms and detailing.
• Located and massed in a manner that does not detract from or dominate significant fabric of the heritage place (through siting and massing). This should be achieved utilising a combination of setbacks, heights and physical separation as appropriate. This does not apply to commercial buildings.
• Located to the rear of the heritage place, where possible.
• Sympathetic with heritage fabric of the place rather than any 'non-contributory' elements of the place.

1. Ms Grey concluded that due to the separation from the original fabric the additional will read as an infill building in the streetscape, and will not affect the appreciation of the heritage building, particularly its complex roofs and tall brick chimneys. She considers that the proposed angled roof form to be an appropriate means to control the height and mass of the addition.
2. Mr Raworth's evidence included the following statements:

The addition, as shown in the amended scheme, is appropriately sited to the rear of the retained dwelling. Accepting the substantial setbacks of the first floor relative to the front of the house, the setbacks to Stawell Street are sufficient to ensure the addition will be a visually recessive element. While visible along Stawell Street, it will be seen in the context of the substantial built form of the house to the immediate east and will not be out of place. The overall height of the addition is similar to the height of the apex of the roof of the subject house. The addition will have only the most limited visibility from Studley Avenue, with the retained dwelling to remain the visually dominant element on the property.

Heritage policy encourages additions to be 'located to the rear of a heritage please, where possible' and that additions should be '...massed in a manner that does not detract from or dominate significant fabric of the heritage place'. Policy does not however contain specific or prescriptive guidance for every siting, building or architectural style. The addition is set to the rear of the heritage place, and it is sited in a manner that will not detract from or dominate the heritage place. Setting the addition further back from Stawell Street, to ensure it sits behind the alignment or setback of the bay window, is not needed in this circumstance to achieve a visually recessive outcome, particularly in the context of the physical separation between old and new fabric that has been achieved in the amended scheme.

1. Whilst I generally agree with the evidence of Ms Grey that the addition will read as an infill building within the streetscape, I share the concerns of Council. The respondent and Mr Lewis that the proposed addition will dominate the heritage fabric of the existing dwelling, particularly when viewed from the vantage point of the intersection of Studley Avenue and Stawell Street, as seen from the oblique view provided on the plans:

Figure 12 - Extract from plan prepared by Neil Architecture, TP019 Rev B dated 18 July 2024

1. The key element that is troubling for the Tribunal is the first floor element that extends beyond the projecting bay window. Due to the choice of colours and materials, which were chosen to remove doubt that the addition met the requirements of a covenant that applies to the land, this element "blends in" with the existing roof form, and I am concerned that it will confuse the two elements.
2. In response to questions from the Tribunal the applicant indicated that the first floor additional could be setback to be in line with the bay window, which could be accommodated with a simple reconfiguration of the first floor and would not result in the loss of any rooms.
3. I find that this setback would not be sufficient to resolve the Tribunal's concerns. I have therefore required the first floor addition to be setback 6 metres from the Stawell Street frontage of the property, which will ensure that it is setback behind the projecting bay window. This change will require a reconfiguration of this first floor, including possibly the loss of a room, however as this is a very large dwelling I am satisfied that this change can be accommodated without significantly compromising the internal amenity of the dwelling. I have required this change as a condition of permit.
4. With this change in place I am satisfied that the proposed addition will not have a detrimental impact on the significance of both the heritage place and the wider heritage precinct.
5. Whilst the respondent was seeking a greater level of change through conditions, including greater setbacks to the ground and first floor, an overall lower building height, and a greater separation between the existing dwelling and the addition, I do not consider that these are necessary to achieve an acceptable outcome.
6. During the hearing it was discussed whether the building could be redesigned to be setback further, which would likely result in the loss of a large mature tree which is protected under Council's local laws. I find that this change goes beyond what can be considered by a simple permit condition, and if the applicant wishes to explore this option in the future to retain overall floor area, this would need to be achieved via a separate process.

1. Draft conditions were discussed at the hearing and any changes to the conditions reflect those discussions as well as further consideration by the Tribunal. The Tribunal has included a condition requiring a photographic record to be made of the building prior to the demolition works commencing on site.

1. This has been a protracted dispute with a number of costs applications received from both the applicant and the respondent. Given the nature of the costs claimed, the Tribunal considers it appropriate that the parties a provided an opportunity to make final submissions regarding costs, which will be determined on the papers.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

• Demolish or remove a building.
• Construct a building or construct or carry out works, including:
  • A fence.
  • A deck, including a deck to a dwelling with a finished floor level not more than 800mm above ground level.
    • Solar panels.
• Externally alter a building by structural work, rendering, sandblasting or in any other way.

Compliance with documents approved under this permit

1. At all times what the permit allows must be carried out in accordance with the requirements of any document approved under this permit to the satisfaction of the responsible authority.

1. Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and three (3) copies provided. When the plans are endorsed they will then form part of the permit. The plans must be substantially in accordance with Drawing Nos. TP02 - TP24, All Revision B, all dated 18 July 2024 prepared by Neil Architecture but modified to include:

(a) The setback of the first floor addition to Stawell Street increased to be a minimum of 6 metres.

1. The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.

1. The site must be drained to the satisfaction of the Responsible Authority.

1. Prior to any demolition works commencing on the site, a photographic record of the heritage fabric to be demolished or altered to the satisfaction of the responsible authority must be submitted to and approved by the Responsible Authority. The study must include:

(a) Views of each elevation of the building;

(b) Two diagonally opposed views of each internal space in the building; and

(c) Architectural design detailing of the building.

Photographic record must be of a high standard and taken with appropriate photographic equipment to the satisfaction of the Responsible Authority.

1. This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:

(a) The development is not started within two (2) years of the issued date of this permit.

(b) The development is not completed within four (4) years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition

[1] 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.

[2] Except provided in the evidence statements of Bryce Raworh, Nigel Lewis and Kate Grey

[3] The evidence statement of Bryce Raworth includes the existing and proposed floor plan from this period, which shows these changes.