The decision of the Responsible Authority is set aside. In permit

application 366/2007 a permit is granted and directed to be issued for the land at 25 Beach Avenue, Elwood. The permit allows demolition and building and works associated with a dwelling renovation and extension in accordance with the endorsed plans and subject to the conditions set out in Appendix A.:

1. This is an application to review the decision of the responsible authority to refuse permission for demolition and building and works associated with a dwelling renovation and extension at 25 Beach Avenue, Elwood. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

The Council's grounds of refusal is that "the proposal fails to meet an adequate number of the objectives of the Heritage Overlay."

1. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject land and its locality.

1. The subject land is a regular lot located mid-block on the east side of Beach Avenue in Elwood. To the rear of the land is a wide laneway running between Ormond Esplanade to the south and Ormond Road to the north.
2. The land has a frontage of approximately 18.3 metres and an area of approximately 758 square metres. The site is developed with a modified single storey Victorian villa with a double bay window frontage.
3. Beach Avenue is an attractive residential neighbourhood and tree lined streetscape with a mix of single storey and double storey dwellings and some three storey apartment blocks.

1. The original proposal and the amended proposal both involve the following elements:
   • Demolition of the family room, bedrooms 3 & 4, laundry and bathroom to the rear of the existing dwelling;
   • Construction of a basement comprising two store rooms.
   • Construction of ground floor addition comprising new open plan dining, family and kitchen rooms at the rear and attached double garage accessed from the rear laneway.
   • First floor comprising a bedroom, walk in robe, ensuite bathroom and terrace.
   • Construction of an in-ground swimming pool and terrace with pergola above on the north side of the lot at the rear.
   • Demolition of the existing brick front fence and replacement with a rendered brick and wrought iron fence.

The amended plans proposed a series of minor changes to reduce the overall mass of the extension.

1. The subject land is in the Residential 1 Zone. As the proposal is for buildings and works to extend a single dwelling on land greater than 500 square metres in area there is no permit requirement pursuant to the Zone.
2. The site is within a Heritage Overlay (HO8 - Elwood: Glenhuntly and Ormond Roads). The proposal requires a planning permit for demolition and for buildings and works pursuant to the Overlay.
3. The subject land, the adjoining properties at 23 and 27 Beach Avenue and three properties opposite are all graded "significant".

1. The proposal is for a significant extension to the rear of what is in its local context a relatively large dwelling. The net result of the proposed extension is a 25% increase in the habitable floor space within the dwelling.
2. In this case the council refused to grant a permit for the proposed extension notwithstanding the recommendation of its town planner, or the advice of its heritage adviser. In this context it is important to recognise at the outset that in the absence of the heritage control the proposed extension would be entirely as of right under the planning scheme provisions.
3. It follows from these observations that the arguments put to me in respect of "backyard scapes" and "lane scapes" can only be relevant if they relate to the impact of the proposal on the significance of the heritage place, whatever the merits of such arguments in relation to other considerations such as neighbourhood character, or the amenity of adjoining properties.

1. Ms Susan Hunt is a heritage consultant called as a witness on behalf of respondent objectors. I think that a discussion of her essential propositions is a useful device for a discussion of the issues raised in the context of this application generally.
2. Ms Hunt argued that the existing dwelling was a representative of the first phase of development in St Kilda and Elwood, the dwelling being described as a maritime villa. In this context the dwelling is considered by her to be of particular heritage significance in the context of the heritage place[1]. Ms Hunt regards the rear section of the dwelling as being an original or very early element of the building's fabric which contributes to its significance and should be if possible preserved, i.e:

As set out previously above, it is my view that the significance of no. 25 Beach Ave includes its intactness and its capacity to demonstrate well the form and detailing of its type and of its own original design, as a single storey Victorian villa. This flows to streetscape value but it is not limited to it.

1. Ms Hunt then went on to submit that if the rear section of the dwelling could not be preserved a much less desirable outcome from a heritage perspective would be its demolition and replacement with a more modest, even less visible, extension than that proposed, i.e:

To a lesser outcome, with demolition of the rear section, a 2-storey replacement could be used which reiterates the original form and orientation, but is set back from the main section allowing direct north light entry on the long side, and reducing visibility from street. It would rely on setting the ground floor ceiling height at about 3m maximum, lower than proposed, and a maximum wall height in order of 2100 or lower to the upper floor, with extra ceiling height gained in the pitched roof space.

1. I think that this approach to heritage significance, in an precinct based heritage overlay in respect of rear portions of a dwelling which can at best be glimpsed from the public realm is flawed. This approach disregards:
   • planning policy and guidelines which recognise that dwellings will be extended and altered to the rear,
   • the reality that it is commonplace for dwellings within heritage overlay areas to be significantly altered to the rear, and
   • the fact that as a matter of public policy it is desirable to preserve community acceptance of heritage overlay controls.
2. Heritage overlays are our device for protecting local significance and within Melbourne there are very large areas of the inner and middle ring suburbs affected by heritage overlay controls. The primary land use purposes of these areas is in the main unchanged and in the context of residential areas it is to provide dwellings for the accommodation of the population in a way which reasonably respects their needs and aspirations.
3. In similar contexts, in other applications, I have made the following observations:

Taylor v Port Phillip CC [2000] VCAT 1526 Para 4

Heritage areas such as this are not merely museums of the past, they continue to be lively residential environments, and some adaptation of these dwellings to the needs of their modern occupants is appropriate. In striking this balance in this case I am of the view that the proposed adaptation of the dwelling is reasonable.

P51214 2001Jeanette Daicos v Port Phillip CC Para 7 (unreported)

The adaptation of heritage buildings for continued use in the modern world is not only appropriate but it is important. It is important not only because continued use provides an economic basis for the preservation of the building, but also because it can and in this case does continue the cultural significance of the building.

1. And in relation to the community's acceptance of the costs and limitations imposed by heritage overlay controls I have said:

Peter Thompson Architects v Yarra CC [2007] VCAT 812 Para 17

Victoria has very extensive protection of buildings of local significance through the heritage overlay system within planning schemes. Notwithstanding the controversy which surrounds heritage control elsewhere, there is broad community acceptance of heritage overlays and heritage controls within Victoria. In part this acceptance arises from the responsive implementation of the controls themselves. Even if a permit applicant does not really wish to keep their Victorian terrace or their Californian bungalow, the system is sufficiently flexible to allow them to adapt such buildings to their needs without unreasonable penalty in respect of:

• The aesthetic enjoyment of the dwelling, or
• The functional enjoyment of the dwelling.

1. Even if these factors were not considered to be of importance, I think that the idea that the essentially invisible rear elements of the building are of such significance to its heritage character implies a level of significance for the subject building which I do not think can reasonably be sustained. The existing dwelling is a rare example of the early phase of development within the heritage overlay area. However, the building was very substantially modified in the early 20th century. In my opinion this building lacks the intactness necessary to have the significance implied by Ms Hunt's primary contention.
2. Mr Trethowan on the other hand submitted that the history of change in the area made evident by the series of changes to the subject building itself went to the heart of its significance. In Mr Trethowan's opinion:
   • the loss of the buildings curtilage by subdivision;
   • the consequential changes to the building's verandah, and;
   • the substantial "modernisation" of the building in the early 20th century involving the extensive replacement of windows, and the rendering of the façade;

make the building emblematic of the history of change which is evident within Elwood and the heritage overlay area.

1. It was Mr Trethowan's conclusion that this important contribution of the dwelling to the significance of the heritage place was fundamentally appreciated from within Beach Avenue and he was satisfied that the proposed demolition, and the proposed extension, did not in any way detract from the significance of the building and its contribution to the heritage place.
2. I agree, the contribution of the existing dwelling to the significance of the heritage place relates to its contribution to the Beach Avenue streetscape. It follows from this that the replacement of the rear parts of the building with a new extension is an acceptable approach to the adaptation of the building for modern use. It also follows that arguments in relation to "backyard scape" and "lane scape" are not relevant to my decision.[2]

1. There remains the question of whether or not the proposed extension is acceptably "invisible" from the public realm within Beach Avenue. The heritage policy under the Port Phillip Planning Scheme adopts an essentially conservative approach to notions of invisibility. The policy doesn't require absolute invisibility, but it does call for an extremely recessive approach to design.
2. In the past I have made the following observations in relation to invisibility:

Grope v Boroondara CC [2000] VCAT 1544

1. In my view it is entirely reasonable to allow the extension and adaptation of existing dwellings within Heritage Overlay areas. Moreover, I am of the view that it is acceptable for such extensions and adaptations to be visible from the public realm, provided they do not diminish or unreasonably detract from the existing built form which contributes to the heritage values of the area. Where a new building is visible from the public realm, it should be identifiable as being new, and not confused with the existing fabric of the heritage building.

1. I agree with Mr Westmore's opinion that in relation to new buildings in a heritage area, one's aim should be to reduce the scale and impact of the extension, to the maximum extent that is possible. In this case, while I am of the opinion that the extension proposed is acceptable from a heritage perspective, I have looked at options for further reducing the impact of the extension from the public realm, in particular by reducing the floor to ceiling heights at first floor level. However, given my conclusion that the extension is basically acceptable, such modifications should not compromise the reasonable expectations of the permit applicants. In this case, I accept that the permit applicants should not be required to lower the ceiling in their existing dining room at ground floor level, nor should they have floor to ceiling heights in any of their first floor bedrooms which preclude the use of a ceiling fan. In this context no further modifications are possible.
2. I think it is important when considering the issue of "invisibility" in cases such as this to consider practicality and reasonableness. In this context at the conclusion of the hearing I asked the applicant to produce cross sections through the building, so that I could better understand floor to ceiling heights and the relationship of the extension to the existing building, in a context where there had been a number of suggestions that the scale of the proposed extension could be moderated by changing for example floor to ceiling heights.
3. The extension proposes to continue the 4 metre floor to ceiling height of the existing dwelling through into the ground floor level of the proposed extension. At first floor level there is a bedroom, walk in wardrobe and en suite[3] which adopts a much lesser floor to ceiling height utilising a cathedral ceiling springing from a wall height of 2.4 metres.
4. It is undoubtedly the case that there is scope to reduce the height and scale of the proposed extension by reducing the ground floor, floor to ceiling height. However, the proposed extension is set well behind the front façade of the dwelling. The proposed extension complies with or nearly complies with the very conservative performance measure embodied in council's heritage policy, and council's heritage advisers considered the proposal to be an acceptable outcome. In this context I do not think it reasonable to require the applicants to compromise the applicants' aspiration to replicate the floor to ceiling height of the existing dwelling in the proposed extension.

1. The applicants propose an elaborate neo Victorian palisade metal fence across the frontage of the site. An earlier photograph[4] of the house revealed that at an early stage the house had a timber picket fence. It is argued that the proposed fence is inappropriate, not so much because it detracts from the contribution the existing dwelling makes to the significance of the place but rather because it may mislead an observer into thinking that this was an original element.
2. My preference would be for a simpler, more obviously modern fence but is there any real basis under the heritage overlay for the imposition of this preference on the applicant. On balance I consider that it is highly unlikely that the proposed fence will be read as anything other than as a modern addition[5] and as such it is just part of the rich layering of change which is so characteristic of this heritage overlay area. Therefore, I can see no basis for denying the applicant their preferred outcome in respect of the proposed fence.

1. It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be set aside and a permit granted.
2. In deciding the conditions to be included on the permit the Tribunal has had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from these reasons.

The permit allows demolition and building and works associated with a dwelling renovation and extension in accordance with the endorsed plans and subject to the following conditions:

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 1, 2 and 3 dated Sept 2006 and plans 4A, 5A and 6A dated May 2007 but modified to show:
   • (a) A full schedule of materials, finishes and paint colours, including colour samples (colour samples in a form that is able to be endorsed and held on file), must be submitted to and approved by the Responsible Authority.
   • (b) The extent of the walls and roofs to be demolished clearly marked on existing elevation, layout and roof plans in red hatching.
   • (c) The new front fence and pier structure on the south west elevation (adjacent to No. 27 Beach Avenue) relocated to lie within the existing boundaries of the subject site.
   • (d) The deletion of the proposed widening of the crossover and driveway entrance gates.
   • (e) The deletion of the proposed widened concrete area between the driveway, pedestrian gate and dwelling.

All of the details required above are to be to the satisfaction of the Responsible Authority.

1. Prior to the commencement of the works permitted by this permit including any demolition works a fully detailed 'demolition method statement' must be submitted to and approved by the responsible authority. When approved, the statement will be endorsed and will then form part of the permit. The 'demolition method statement' describe the construction methods to be used to ensure that the building fabric shown to be retained on the endorsed plans will be safeguarded during and after the demolition process has occurred. The demolition method statement may need to include reference to staging of demolitions on site in some instances. The statement must detail the necessary protection works required to retain individual walls, chimneys, roofs, etc during demolition.
2. The development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. Any new walls on or facing the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.
4. This permit will expire if one of the following circumstances applies:
   • (a) The development is not started within two (2) years of the date of this permit.
   • (b) The development is not completed within two (2) years of the date of commencement of works.

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.

[1] Heritage Overlay (HO8 - Elwood: Glenhuntly and Ormond Roads).

[2] In relation to the laneway, my inspection revealed it to be a quite utilitarian space with high fences and trellises, garages interspersed with the open car parks of post war flat developments. The laneways of this area relate to the heritage significance of the place, because they are an essential element of the process of subdivision which lead to the creation of modern Elwood but for the most part the development which abuts the laneway and is visible from within the laneway makes little or no contribution to the significance of the place.

[3] albeit a very generous bedroom walk in wardrobe and en suite

[4] Predating the early 20th century modifications to the dwelling.