1. The proposed deck is to be accessed via a hatch. The hatch has been described in the application material as sitting flat or flush with the deck's floor level. Ms Konstantinidis questioned the trafficability of the hatch in her objection to the Council, as acknowledged in the officer's report.[3] Her concern is that the useable roof deck would be larger if the hatch is trafficable which in turn would increase overlooking to her property.
2. I sought further details about the hatch during the hearing, to which the applicant responded on Day 1. In response, Mr Barber tendered a technical data sheet for a hatch. The hatch would not be flush with the finished floor level of the deck. It would have a five degree slope with a glass lid. It would be operated by a hydraulic system, although Ms Konstantinidis has challenged this based on her enquiry to the manufacturer. The hatch would be hinged along the eastern long edge, as shown on the plans and would be able to extend to approximately 250mm - 490mm above the height of the proposed balustrade.
3. To avoid the hatch being trafficable, at the hearing Mr Barbers said a gate could be added to ensure the hatch is not used by as part of the deck area. The gate would align with the northern edge of the deck, although some variations to this were referred to in the hearing, such as the addition of side returns if the gate was located at the southern end of the hatch. Mr Barber has explained that the hatch would be closed when people are using the deck and closed again once they leave.
4. During the hearing, Mr Barber suggested a 250mm upstand to a 1.2 metre wide section of the northern balustrade, east of the hatch, to limit overlooking including to the upper portions of the approved first floor windows in the dwelling extension at No. 40 Herbert Place (a bathroom and bedroom). This was suggested even though the ensuite is not a habitable room but that the room has clear glazing above 1.7 metres.
5. Later in the hearing, however, Mr Barber said the height would need to be increased, potentially to 1.7 metres, if screening is to be required by the Tribunal. This submission arose from section lines, diagrams and related material tendered by Ms Paul. Otherwise, there are no screens proposed to the east or north sides of the roof deck.
6. The multiple changes advanced in the expert evidence and over the hearing have a degree of uncertainty, including in terms of detailing. They have not been documented through amended plans to facilitate their consideration by all parties and the Tribunal. There have, however, been submissions by the parties about what potential impacts, if any, the changes might give rise to.

1. In deleting the roof deck, plans that were endorsed by the Council show 'roof space', as seen in the west elevation, below.

Figure 3 - Extract of endorsed plan, western elevation.

1. This is a matter of contention with respondents. Ms Paul states that the change to 'roof storage' has only become apparent now that construction is occurring and that a copy of the endorsed plans has been supplied. She says the change was not advertised, and it is contrary to Permit conditions, the officer's report and heritage advice. Ms Konstantinidis also criticises the process by which the proposed roof deck has been pursued.
2. The applicant emphasises that plans have been approved and endorsed.
3. I agree with the applicant that this is not a proceeding that gives scope to challenging the legality of the Council's endorsement of plans.

1. No. 40 Herbert Place is a very small lot, of 97 square metres, and a width of 4.2 metres. It contains a single storey weatherboard dwelling.
2. Since Permit 571/2020 was granted, planning permit 265/2021 was issued by the Council. That permit was issued on 17 March 2022 allowing partial demolition; alterations and additions and double storey extension to the rear of the existing dwelling at No. 40 Herbert Place. This includes a first-floor addition with a bedroom, ensuite, and stairwell. The bedroom room window is screened to 1.7 metres in height, the ensuite has window frosted glass to 1.7 metres and the staircase window is to a void.

1. The parties agree on the relevant clauses, provisions and policies in the scheme that form the basis of assessment. I do not recite them in full, but all have been considered in reaching my decision.
2. Briefly, the subject land is located within the NRZ1, HO444, and SBO2.
3. The purpose of the zone, as detailed in clause 32.09, includes:
   • To implement the Municipal Planning Strategy and the Planning Policy Framework.
   • To recognise areas of predominantly single and double storey residential development.
   • To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristic.
4. The neighbourhood character objective in clause 1.0 of NRZ1 is:

To maintain the fine grain character of the area including smaller lot sizes with small front setbacks.

1. NRZ1 does not vary any clause 54 standards and does not contain decision guidelines at clause 7.0. Mandatory height limits apply, with which the proposed permit amendment complies.
2. Heritage Overlay HO444 and surrounding properties as part of a larger precinct. The building on the subject land is 'significant'. Both abutting properties have the same classification on the Heritage Policy Map.
3. The purpose of clause 43.01 relevantly includes:
   • 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.
4. The decision guidelines which must be considered, as appropriate before deciding on an application are detailed at clause 43.01-5 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.
   • 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.
5. The statement of significance for this precinct is set out in Mr Briggs' evidence.[4]
6. Clause 15.03-1S provides policy in respect of Heritage Conservation. Its objective is to ensure the conservation of places of heritage significance. Related strategies relevant to this matter include:
   • Encourage appropriate development that respects places with identified heritage values.
   • Retain those elements that contribute to the importance of the heritage place.
   • Ensure an appropriate setting and context for heritage places is maintained or enhanced.
7. Clause 15.01-5S provides policy in respect of Neighbourhood Character. Its objective is to recognise, support and protect neighbourhood character, cultural identity and sense of place. A related strategy includes supporting development that respects the existing neighbourhood character and contributes to a preferred neighbourhood character.
8. Clause 21.05-1 - Heritage, identifies a key issue, being that new development within heritage areas needs to be sympathetically integrated with existing buildings so that it makes a positive contribution to the heritage value of the municipality.
9. Objectives and strategies for built environment and heritage are provided at clause 21.05-1:
   • With respect to heritage an objective is to protect, conserve and enhance all identified significant and contributory places, including buildings, trees and streetscapes. Related strategies include:
     • Encourage high quality design that positively contributes to identified heritage values.
     • Ensure that new development respects and enhances the scale, form and setbacks of nearby heritage buildings.
   • With respect to urban structure and character, objectives include to protect streetscape characteristics of the established residential areas; to ensure that the height and scale of new development is appropriate to the identified preferred character of an area; and to ensure new development minimises any detrimental impacts on neighbouring properties. Related strategies include:
     • Require new development to respect the character of the local area, having regard to the neighbourhood character descriptions in the Design Manual, or preferred character statements....
     • Ensure that the scale, massing and bulk of new development respects the scale and form of nearby buildings in areas where the existing built form character is to be retained.
     • Encourage roof forms, which may include roof pitch, materials, scale and height, to respond to the streetscape character:
       • In a streetscape with consistent roof forms, new residential development generally incorporates a similar roof form if visible from the front (principal) street
     • Ensure new development does not unreasonably affect the amenity of adjoining properties by way of overshadowing, privacy, or visual bulk.
10. Clause 21.06-3 addresses Middle Park and Albert Park. Strategies include encouraging development to respond to the character elements of the historic, low rise Victorian and Edwardian areas, and the small size of most residential lots in the neighbourhood
11. Clause 22.04 applies to all land within a Heritage Overlay. Among the relevant objectives are:
    • To ensure all new development and redevelopment of significant and contributory places to be respectfully and harmoniously integrated with the surrounding character.
    • To promote design excellence (in terms of building siting, scale, massing, articulation and materials) which clearly and positively supports the heritage significance of all Heritage Overlay areas.
    • To ensure that new development and any publicly visible additions and/or alterations in or to a heritage place maintain the significance of the heritage place and employ a contextual design approach.
12. Clause 22.04 contains general policies as well as policies that address alterations and additions to heritage places. It is policy that 'An upper storey addition is sited and massed behind the principal façade so that it preferably is not visible, particularly in intact or consistent streetscapes (see Performance Measure 1).'
13. Performance Measure 1 states that upper storey additions may meet the above policy for siting and massing if the following measures, as appropriate, are achieved:
    • They are sited within an "envelope" created by projecting a sight line from 1.6 metres above ground level (this being the eye level of an adult person of average height) to the front parapet or gutter on the main façade and taken from a point where the footpath meets the property line directly opposite the site, where the property has a frontage to a narrow street (5 metres or less) or laneway (illustration 1), or
    • They are sited within an "envelope" created by projecting a line of 10 degrees from the height of the base of the front parapet or gutter line on the main façade and extending to the rear of the heritage place (illustration 2 or 3), or
    • In exceptional cases where the heritage place is located in a diverse streetscape and the design of the proposed addition is considered to be an appropriate contextual response, they are sited within an "envelope" created by projecting a line of up to 18 degrees from the height of the base of the front parapet or gutter line on the main facade of the heritage place.
14. Illustrations 2 and 3 are below:

Figure 5 - Illustrations 2 and 3 in Performance Measure 1 in clause 22.04.

1. The first dot point is not relevant, as the main façade is to Herbert Street which is wider than 5 metres. This is agreed between the parties.
2. The policy for alterations and additions continues with further policies including:
   • If visible from the front (principal) street, the roof of any addition is related to that of the heritage place in terms of form, pitch and materials.
   • Where the property is located on a corner site, the upper storey addition is sited and massed so it is visually recessive from the front of the building, so that the scale of the heritage place is the dominant element in the front (principal) streetscape.
   • Walls, windows, roofs and fences are complementary to the heritage place in terms of materials, finishes, textures and paint colours and are appropriate to its architectural style.
3. The following are incorporated documents:
   • The Port Phillip Heritage Review - Volumes 1-6 (Adoption Version Amendment C161port Part 2, December 2021) (includes the City of Port Phillip Heritage Policy Map (Adoption Version Amendment C161port Part 2, December 2021).
   • The City of Port Phillip Neighbourhood Character Policy Map (Adoption Version Amendment C161port Part 2, December 2021).

1. I next address the matters in dispute that focus on heritage, character and amenity impacts. The only matters before me relate to the requested amendments to the Permit.

1. The applicant relies on Mr Briggs' evidence in support of its submission that the proposed development is an acceptable response to clause 43.01 and policy at clause 22.04. It submits the proposal will have no adverse or damaging impact upon the appreciation of the host house or heritage character of the streetscape.
2. Mr Briggs erected a post at the south-west corner of the location of the south verandah to a height of one metre above the proposed roof deck floor level to assist in visualising the presence of the proposed balustrade. I accept Mr Briggs' has measured and sited the post to assist his assessment. I note there is no survey or verification of the accuracy of the location and height. This point was made by Ms Paul but there are no submissions, in turn, demonstrating or alleging inaccuracies.
3. The statement of evidence includes two photographs, marked-up by Mr Briggs, showing the extent of the proposed balustrade. Extracts are included in Figures 6 and 7 below. These are no sightlines, sections or photomontages in relation to these views.[5]

Figure 6 - Extract of front cover of the statement of evidence, with Mr Briggs' mark-up identified by the Tribunal with an arrow.

Figure 7 - Extract of Figure 1 in the statement of evidence, with Mr Briggs' mark-up identified by the Tribunal with an arrow.

1. For the purposes of applying clause 22.04, Mr Briggs' evidence is that the subject land is in a diverse streetscape. While acknowledging the level of intactness and integrity that exists, Mr Briggs emphasised the heterogeneity, and the lack of consistency and homogeneity.
2. Based on this opinion, Mr Briggs' evidence is that a building envelope for an addition may occupy a sightline up to 18 degrees. The top of the balustrade would fit within approximately a 17 degree sightline.[6] Not addressed in his written evidence, at the hearing Mr Briggs refers to the phrase 'In exceptional cases', saying that such circumstances apply in this case because of the small lot size and the small area of private open space.
3. Mr Briggs disagrees with potential arguments that the balustrade will identify that there is a habitable roof terrace, and such terraces are themselves a foreign, atypical form in the heritage area. He states the approved additions are evident and distinct from the host heritage house, and 'such a distinctive new presence can be accommodated within the wider heritage place whilst sharing none of the heritage character'. Mr Briggs acknowledges that the use of the roof terrace may draw attention to the existence of the terrace, but the terrace itself will be hidden from view. The introduction of 'indication of a place for human engagement' can be seen as 'interpretive of the wealth of decorative detail from the range of valued period development in this heritage precinct'.
4. Further, Mr Briggs' evidence includes that the proposed 'cresting' can be expected to enhance the visual interest of the additions. He states rejection of the balustrading in this instance is more about a principle than a likely experience of the heritage place that might be perceived as disruptive or intrusive upon appreciation of the heritage significance.
5. Mr Briggs states his recommended modifications to the roof deck would further assist in integrating the structure within the heritage context. The steel is a material used in fences in the area and 'can be seen as interpretive of decorative detail of the full range of development periods represented in this locality and wider heritage precinct'. Similar balustrading is located at No. 40 Young Street. The applicant accepts the recommended modification, should the Tribunal find this is to be an appropriate change.
6. The Council and respondents disagree that the proposal satisfies clauses 43.01 and 22.04. They disagree that the streetscape can be described as diverse given its intactness and integrity. They challenge the evidence that any exceptional circumstances exist, and that the proposal is a suitable contextual response. In addition to referring to limited changes from the previously refused roof deck, they comment on the 17 degree sightline which is excessive and adds to the visual bulk of the already large addition. The development provides a level of additional bulk that is generally not found within the relatively intact heritage streetscape. The roof terrace will further detract from the existing roof forms, architecture, and design detailing of adjoining and surrounding heritage dwellings.
7. The heritage streetscape is generally low scale with only a small number of double storey additions scattered through the precinct. The Council and respondents submit the proposal will negatively impact the heritage value of the existing site and surrounding streetscape. The deck will appear as an incongruent element in the heritage streetscapes of Herbert Street and Herbert Place. The scale, form and appearance of the proposed roof deck are inconsistent with the low scale nature of surrounding dwellings and detract from the typical forms.
8. Respondents distinguish the position and visibility of the proposed deck with examples of roof decks presented by the applicant. The proposed deck will be highly visible from both the Herbert Street and Herbert Place streetscapes. They say that a roof deck is not a common element in these streetscapes, particularly given the extent of period dwellings with pitched roofs. Where roof top decks are provided, they appear to be sited behind the ridge of an existing roof, to conceal the space from public view, or at the rear of a property, again concealed by the higher roof structure presenting to the street.

1. I have set out the relevant scheme provisions and policies earlier with respect to heritage considerations.
2. HO444 is a large precinct of historical and aesthetic significance to the City of Port Phillip.
3. The statement of significance ('statement') describes HO444. It includes that the 'precinct retains a strong Victorian and Edwardian character through cohesive and closely-grained streetscapes of individual dwellings on relatively narrow allotments: predominantly single or double storey in scale, and variously freestanding, paired or in rows'.
4. The statement explains what is significant and why it is significant. The precinct is cited as remaining strongly characterised by a broad range of late Victorian and Edwardian housing stock.[7] The statement includes:

Irrespective of their style and era, the pre-war buildings within the precinct exhibit notable cohesion through their broadly consistent scale (mostly one and two storey) and materials, their closely grained siting and relatively narrow setbacks. Many of the streetscapes are enhanced by their settings, ...

1. The subject land is located in a short section of Herbert Street between Kerferd Road and Herbert Place. It is a corner lot, with the main façade presenting to Herbert Street. As evident in the Heritage Policy Map in Figure 8 below, the subject land is one of three lots in this short section, only two of which have their principal façade to Herbert Street, and all of which are 'significant'. Nos. 1 and 3 Herbert Street are a mirrored pair. There is a level of consistency in the heritage context in this confined regard.

Figure 8 - Heritage Policy Map extract extracted from Ms Paul's submission with the subject land identified.

1. The side of the double storey Victorian balconied terrace at No. 61 Kerferd Street presents to Herbert Street with a rear two-level extension in dark metal cladding and brick, as shown in Figure 9 below.

Figure 9 - Street view image from Google Earth, prior to works on the subject land. The subject land is marked with an arrow.

1. The wide and leafy Herbert Street separates the subject land from single storey dwellings, as shown in Figure 10 below. The street trees are deciduous.

Figure 10 - Extract of photo included in Ms Paul's submission showing opposite side of Herbert Street.

1. Extending along Herbert Street, on the north-east side of the road, are two single storey non-contributory buildings, then three single storey dwellings (two 'significant' and one 'contributory'), and then the side of No. 40 Young Street ('contributory'). Like No. 61 Kerferd Road, the rear addition to No. 40 Young Street is partly dark metal clad. Figures 6 and 8 in Mr Briggs' evidence show glimpses of the steel balustrade to which he refers.
2. The contemporary additions have a strong presence, as has an aberrant three level modified dwelling at No. 24 Herbert Street.
3. Herbert Place is a narrower street to which mostly small cottages front. They are predominantly single level. No. 38 Herbert Place contains a second storey addition, most visible from a side lane. The approval for No. 40 Herbert Place allow a first floor addition set back over 9 metres from the street. Some two storey rear additions and dwellings are positioned further from the subject land (toward Young Street).

Figure 11 - Extract of photo included in Ms Paul's submission showing Herbert Place.

1. The subject land and its environs exhibit the historic development for which HO444 is significant in historical and aesthetic terms. Looking broadly, some parts of Albert Park have a quite uniform heritage character with dwellings developed in a single architectural period whereas others are varied and demonstrate the evolution described in the statement. Built form can vary, such as from grand two storey terraces in Kerferd Road compared with more diminutive cottages in narrower streets.
2. When viewed in the context of its immediate neighbour, No. 1 Herbert Street, there is an evident intactness and consistency.
3. The visibility of the side of the host building, and approved and proposed works on the subject land, is increased by the spacing between this pair. The public realm experience of the subject land is also influenced by the land's position on a street corner, and the wide viewing corridor given the width of Herbert Street.
4. Herbert Street displays a high degree of integrity and intactness in architecture linked to its period. There is an appreciable scale and general form. There is not diversity in scale. However, there is not uniformity in built form given the various architectural periods that are represented reflecting the area's significance. For example varied roof styles (gable v hipped); varied materials (brick v weatherboard); varied side setbacks or often no side setbacks; and varied frontage rhythm. The prevailing character is of single storey dwellings from several eras with some two storey additions notably but not exclusively on corner lots. There is limited infill dwelling development.
5. Lot sizes and shapes vary, although there are multiple small consistent groupings where rows of homogeneous period dwellings can be seen.
6. Having regard to the above, variation from 10 degrees in Performance Measure 1 has been found by the Council to be acceptable, demonstrated by the Permit's issue. However, in considering the applicability of the third dot point in Performance Measure 1:
   • I do not accept that the 'exceptional circumstances' referred to in evidence justify a conclusion that 18 degrees is appropriate and for this figure to potentially be regarded as a benchmark of acceptability in this case. The subject land is not particularly small in the context of its environs, although it is small when contrasted with larger lots such as along Canterbury Road that extend to Canterbury Place. But it is not exceptional. The small size of the rear open space is a function of the approved footprint.
   • I am not persuaded that the design of the proposed addition can be considered to be an appropriate contextual response as these reasons explain.
7. It is agreed by the parties that the proposal will introduce a new visible building element, and will result in the maximum sightline projection increasing from 14 degrees to 16-17 degrees. There is some uncertainty about the final form of the modified balustrade treatment, the hatch, the gate and the upstand/screen as none are documented in the application plans or any amended plans to demonstrate changes referred to in evidence and oral submissions at the hearing. However, it seems unlikely that the sightline projection for the purpose of the Performance Measure would change or materially change.
8. The applicant's case has focused on the impact of the additional balustrade. On its face, the development may seem to be relatively minor. However, the site's context is important in assessing any impact and determining acceptability.
9. The heritage context to which I have referred is central in a design response and in assessing acceptability. Incremental additions can make a difference.
10. The proposed development would be visible within Herbert Street and Herbert Place and, in my assessment, would detract from the heritage context. It does not meet the purpose of clause 43.01 for a combination of reasons.
11. The proposed deck with glazed or steel balustrading would be exposed behind the host dwelling (given the separation with No. 1 Herbert Street). I accept the applicant's submission that it would be backdropped in some views and from some angles by metal cladding approved under the endorsed plans. This will not always be the case, however. Further screening (where required) and a gate/open hatch may potentially be seen, dependent on its location and form and taking account of the revised balustrade treatment from glazed panels to open steel. Open steel may expose public views to structures and items on the deck.
12. The deck with balustrade and bench would be set back 1.325 metres from the lower level abutting Herbert Place. From Herbert Place, the additional upstand at 250mm, or up to 1.7 metres as has also been flagged by the applicant, would be seen over the sloped roof eastern section of the approved addition and adjacent to the single storey adjacent dwelling. Even if the upstand/screen did not return along the east side of the deck, it would be around 5.2 metres from the street. The impact of the additional built form is not negligible as seen in the Herbert Street streetscape, across the intersection of Herbert Place and Herbert Street and in Herbert Place.
13. The examples of roof decks do not persuade me to vary from the above conclusions. I accept that some decks are seen. They can be distinguished in various ways from the proposal, least of which are that many are often mostly obscured from the public realm and relate to buildings with different roof forms and side setbacks/side boundary walls. Some arguably demonstrate why care is required in assessing these proposals and why (good and bad) precedents cannot be relied on - contextual circumstances are not identical.
14. Having regard to other aspects of the clause 22.04 policy, I accept submissions that the design cannot be regarded as 'design excellence that clearly and positively supports the heritage significance of the area'.
15. The variations to the proposal such as with respect to screening, the hatch/gate and changing the materials and form of the balustrade are not part of any application to amend plans or otherwise fully documented. While a roof deck may be argued by some as minor in the context of the approved development, the details and form need to be the subject of the permit application to enable an assessment to be made under the scheme. Further, I have concerns about these changes in multiple respects, as evident in my findings below. Singularly and collectively, they have the potential to exacerbate the heritage impacts to which I have referred above.
16. The use of the deck would also draw attention to it separate to the structure itself although this is not the reason why the Permit amendment is unacceptable.
17. For the above reasons, I am not persuaded that the proposed development achieves an acceptable outcome under clause 43.01 and applicable policies.

1. Heritage is a valued component of the neighbourhood character. Neighbourhood character is, however, a different concept with a wider scope. In the current case, many of the same arguments have been raised by the parties as were advanced in relation to heritage. I do not recite them all.

1. The applicant submits the neighbourhood character will continue to evolve, in a respectful and carefully managed way. Roof decks/terraces are found in this neighbourhood. They differ in forms and positions, with varying degrees of visibility from the street. This includes in front, from the street, and on oblique angles.
2. The applicant states that decks and terraces provide amenity and supplement other open space on small lots. It says the proposed roof deck will sit at a height no greater than the approved maximum height. The deck does not introduce any additional building envelope given the area is currently approved to be used as a storage area within the roof cavity. The proposed built form would appear to be largely similar to the current approval as viewed from the public realm and neighbouring properties. The roof deck will be subservient to the overall form of the ground and first floor additions, rather than a dominating feature.
3. The Council and respondents disagree that the proposal is acceptable. They submit the proposal does not respect the existing neighbourhood character of the area, adds visual bulk and visible presence, and is not appropriate. The size and scale of the proposed roof terrace is not characteristic of this streetscape, is not typical of the area, and is an overdevelopment of the land. Dwellings with additions generally do not have largely visible unique features.
4. Ms Konstantinidis further submits the deck and its occupants, and potentially future adornments such as canopies, lighting, and umbrellas (whether temporary or permanent) would be seen in a wide area down Herbert Place and from Kerferd Road.

1. I have set out the relevant scheme provisions and policies earlier.
2. As a consequence of the corner location, the dwelling on the subject land has an obvious presence. This presence is further influenced by its interfaces with the low narrow single storey structure at No. 40 Herbert Place and the side separation with the building at No. 1 Herbert Street.
3. The roof deck would be a readily appreciable element and unacceptable additional element of built form in character terms, for similar reasons as given above that I do not repeat. I do not accept the applicant's submissions as to the minimal or benign nature of the works; I consider the submissions underplay the impact that arises in the site's circumstances.
4. For similar reasons as given above, the examples of other roof decks that have been relied on do not persuade me to vary from the above conclusions.
5. I find the proposed development does not achieve an acceptable outcome when assessed under clause 32.09 including clause 54.02-1. The design response is not appropriate to the neighbourhood and the site. The proposed design does not respect the existing or preferred neighbourhood character and does not respond appropriately to the features of the site.

1. I have referred to relevant scheme provisions and policies earlier with respect to off-site amenity considerations.
2. Clause 54 is relevant to the assessment, mindful of the context of broader policies such as in clause 15.01-1S to minimise the detrimental impact of development on neighbouring properties.
3. The applicant refers to standards A10, A12 and A13 as being met. These standards have not been identified in objections as reasons why the development is opposed.
4. The focus of objections has been potential overlooking, a loss of privacy and noise.
5. Much of the detailed material with respect to amenity impacts that has been addressed through the hearing has been prepared on behalf of Mr Sinclair, through the architect for his approved development. This material includes sections that are sought to demonstrate level differences, angles and viewing potential between the proposed development and existing and approved forms of development at No. 40 Herbert Place. This material offers some assistance with respect to No. 1 Herbert Street as well. All parties have had an opportunity to respond to the plans and diagrams.
6. The material contrasts with a more limited information in the plans and in the applicant's submission particularly with respect to No. 40 Herbert Place's existing and approved forms.
7. As a consequence of the material tendered on behalf of the respondent, the applicant suggests screening could be provided to limit or even prevent overlooking, albeit not to the extent or form sought by the respondents. I have referred to the possibilities cited by the applicant earlier in these reasons.
8. The Council and respondents say that the overlooking potential has not been convincingly identified, demonstrated, or resolved. Further, Ms Konstantinidis maintains that the hatch could be used when closed, can be seen through, and a proposed 250mm high upstand is inadequate to protect the privacy of the secluded open space at No. 1 Herbert Street.

1. The objective of clause 54.04-6 is 'To limit views into existing secluded private open space and habitable room windows'. The parties do not agree that Standard A15 is met.
2. Decision guidelines in clause 54.04-6 are:

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

• The design response.
• The impact on the amenity of the secluded private open space or habitable room window.
• The existing extent of overlooking into the secluded private open space and habitable room windows of existing dwellings.
• The internal daylight to and amenity of the proposed dwelling.

1. The potential for overlooking from the roof deck has been raised with respect to the two adjoining properties:
   • To existing dwellings at Nos. 1 Herbert Street and No. 40 Herbert Place; and
   • To the approved development at No. 40 Herbert Place.

1. First, I refer to the existing conditions of this property.
2. The applicant submits the roof deck would be opposite a single storey wall. The secluded private open space of No. 40 Herbert Place is located in excess of 9 metres from the north-east edge of the deck, demonstrating there to be no capacity for views from the deck into sensitive areas as set out under Standard A15, in the applicant's submission.
3. A viewing arc is shown on the plans, noting the section of roof terrace abutting the east side of the hatch would afford some views predominantly beyond 9 metres, although this is not confirmed on a section in the plans.
4. Ms Paul tendered several diagrams seeking to demonstrate that overlooking would occur and why the neighbour is concerned about inter-viewing based on existing conditions.
5. I have not been satisfied on the information provided that no screening is required to address this matter based on a 9 metre benchmark, although this might be the outcome should sightlines and sections document the specific conditions. If screening is required, such as to the east side of the hatch using an upstand or higher screen as Mr Barber refers to,[8] the details of such screening treatment have been canvassed in oral submissions but are not fully resolved. There are limitations in determining such details by permit conditions because there may be consequential impacts from a structure above the deck balustrade in character and heritage terms that have not been fully assessed.
6. Second, I refer to the approved development.
7. Ms Paul provided a section and diagrams to demonstrate that the deck is positioned at a higher level than the approved extension to the dwelling at No. 40 Herbert Place. There are opportunities to look down into the approved first floor ensuite, bedroom and stair windows of No. 40 Herbert Place. The screening to the bedroom and ensuite windows are shown on endorsed plans in planning permit 265/2021. The upper portions of these windows are not screened.
8. Relevantly in applying Standard A15, the ensuite and stair void are not habitable spaces whereas the master bedroom is.
9. I have not been satisfied on the information provided that no screening is required to address potential overlooking to the upper portion of the approved master bedroom window. I accept screening could be added, such as along the east side of the hatch to 250mm or to 1.7 metres as Mr Barber has cited, and potentially to return around a short section of the deck's edge. However, the details of proposed screening treatment and its required height are not, in my view, resolved based on the submissions. There are limitations in determining this by permit conditions. Dependent on the material, height and location, there may be consequential impacts from a structure above the deck balustrade in character and heritage terms that have not been fully assessed.

1. The Council's submission is that Standard A15 is not met with respect to this property, as a wide range of views will be possible from the roof deck.
2. Ms Konstantinidis is concerned about the need to protect the neighbours' privacy as well as the privacy of the occupants of the dwelling on the subject land. She is concerned that there will be viewing from the deck (including through the glassed lid of the closed hatch) and between properties. She feels that screening discussed through the hearing will not be sufficient. Ms Konstantinidis also refers to the extent to which people would be seen, whether or not within 9 metres.
3. Further, Ms Konstantinidis refers to the screen in the playroom (Condition 1e) in the Permit) that she submits will not limit views to the secluded private open space in two instances - descending the stairs from the deck and from the proposed roof terrace when seated and the hatch is open.
4. The applicant challenges submissions that Standard A15 is not met. The trafficable area of the proposed deck (northern boundary) is to be set back 7.12 metres from the shared boundary with No. 1 Herbert Street. This separation, combined with the approved buildings and works at first floor level, assist in preventing downward views into the secluded private open space of No. 1 Herbert Street, as detailed in Section A on Drawing A401. Similar submissions have been advanced in relation to Drawing A402 Section B, as well as the space between Sections B and C that was the subject of my questions at the hearing.
5. I am not satisfied that the application plans sufficiently address the potential for overlooking to the private open space of No. 1 Herbert Street within 9 metres from the deck. I accept that built form would intercept views in some locations such as shown in Section A. The outcome is less clear with respect to the eastern side of the deck, adjacent to the hatch as referred to earlier. A screen could be added but its final form, including height and materials, has not been fully defined. As already indicated, there are limitations in resolving this by permit conditions because there may be consequential impacts in character and heritage terms that have not been fully assessed.
6. The applicant has described expectations as to when the hatch would be open and closed. Having said that, there are practical difficulties in managing and regulating the opening and closing of the hatch. I note outstanding concerns with respect to the potential for people to walk on, sit on or otherwise use the closed hatch, and a gate (with side returns) would potentially resolve this.

1. Ms Konstantinidis refers to the increased visual bulk from the roof terrace, and additional screening that is being suggested, which will compound the impacts from the approved additions currently under construction.
2. The applicant submits these concerns are addressed through the design and specifically setbacks to the deck. While acknowledging that 'glimpses of the roof deck may be visible from the secluded private open space of No. 1 Herbert Street (likely beyond 9m)', it is unlikely they would be possible from the internal areas of No. 1 Herbert Street (including dining room facing window towards the site) given the rear additions at the subject site will act to conceal views towards the roof deck. The applicant submits that there are no sheer-built form elements associated with the roof deck to the levels below such as a stair riser structure or roof/ pergola structure which could otherwise express itself as a strong visual element above the roof profile.
3. As I have already stated, a key issue with respect to potential visual bulk focuses on the potential need for additional screening which is uncertain in its form and finish based on the submissions. This is not a matter that can be readily resolved by permit conditions in the circumstances.

1. Acoustic disturbance is an issue for neighbours. Ms Konstantinidis illustrates her concern by noise from builders currently on the subject land. She also regards this as a problem for the wider area, to which the falling of the leaves from the deciduous trees will only exacerbate. Ms Konstantinidis seeks acoustic screening if the application is approved.
2. Ms Paul also refers to the potential for noise from the deck to the main bedroom in the approved addition to No. 40 Herbert Place, noting the elevated deck location.
3. There is no clause 54 standard that addresses noise.[9] Broader scheme policies seek to minimise detriment to neighbours.
4. I agree with the applicant's submission that noise associated with one dwelling on the subject land is not typically regarded as unacceptable nor sought to be controlled by planning permit conditions. Noise generated on the deck would be consistent with that of normal domestic noise, noting any service equipment would be required to operate within Environment Protection Authority regulations. The deck may not be used as frequently as the respondents fear. Any external mechanical equipment associated with the operation of the hatch, if required, would need to be considered and potentially screened.
5. I note that leaves associated with the street trees will not provide acoustic protection and any noise to which pedestrians or others are exposed is not a reason to refuse a permit.
6. The Permit amendment is not refused because of potential noise impacts.

1. Ms Konstantinidis expresses concerns about the ability of children to climb over balustrades and also the extent to which the public would be exposed to surveillance.
2. These are not matters which cause me to refuse the application. Safety in the terms described is the province of other legislation, while passive surveillance of the public realm is generally regarded as desirable to support perceptions of safety.[10]

1. For the reasons given above, the decision of the responsible authority is affirmed. An amended permit is not granted.

[1] The land is off-set from north. Directional references are simplified for ease. The presentation to Herbert Street is 'west', the presentation to Herbert Place is 'south'; the interface with No. 1 Herbert Street is 'north' and the interface with No. 40 Herbert Place is 'east'.

[2] Submissions and evidence of the parties, and statements of grounds, have all been considered in determining the proceeding. In accordance with the Tribunal's practice, not all of this material will be cited or referred to in these reasons.

[3] Section 9 of the delegate's report signed by the delegate on 12 August 2022.

[5] Plan A503 does not provide a complete sightline and shows a 14 degree sightline associated with the approved development rather than a modified sightline relating to the proposed works.

[6] In oral evidence, Mr Briggs referred to the sightline as possibly closer to 16 degrees. Mr Barber commented in this as well, saying the sightline is 16-17 degrees. The endorsed plans show a 14 degree sightline for the approved development.

[7] The statement also refers to other components of what is significant, such as contemporaneous commercial and community oriented buildings.

[8] This is particularly to deal with No. 40 Herbert Place but could also benefit No. 1 Herbert Street, in the applicant's submission.

[9] I note clauses 55 and 58 do have some provisions in relation to noise.