Victorian Civil and Administrative Tribunal|2025-08-12

The applicant acknowledges that the proposal does not create additional new dwellings, or increased housing supply on the land. At most, it creates the opportunity for this to occur through a wider driveway on the western side of the land. The applicant says this new driveway location may also benefit the adjoining land at 94 Willesden Road, by providing a potential central driveway between the two properties.
I cannot assume that the new building placement will lead to additional housing or that it may be utilised by the adjoining landowner in the future for development of the adjoining land. The only application before me is to establish a new building on the land, in a new location and setting.
The two heritage experts concur that, consistent with the Burra Charter, conservation requires the retention of an appropriate setting and that new construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate.[13]
Mr Stephenson's evidence is that new building will not adversely affect the significance of the heritage place as constructing a new building in a historic style is not discouraged in policy. His evidence is also that the significance of the heritage place will generally be retained as the proposal only results in the loss of the building, not the location or the lot size. In his written evidence he comments:

Mr Briggs disagrees with this view. His evidence is that the significance of the place is primarily derived from the building and its setting. Mr Stephenson acknowledged in questions put to him that of the three elements he refers to; setting, lot size and building, building is the most important. I agree as it is evident from heritage policy and provisions that in considering if a permit should be granted to demolish and replace a building, it is the loss of the significance of the building elements that is key.
The new building results in the loss of the existing heritage building with acknowledged contributory significance. It also alters the setting of this building on the land. I find retaining the setting of the house to the eastern side of the land to be less important to retaining the house itself, but it is still part of the heritage setting and there is a rhythm and spacing to contributory dwellings adjacent to the west of the land that will be lost because of the new dwelling.
What is put forward as the key benefits of the proposal are, a raised floor level, and a new access location that provides an 'opportunity' for future development of the land. The existing access is just under 2.7 metres wide. As such it can provide access, although not ideal, particularly if it was providing access to multiple dwellings. The proposal before me, however, is not for a larger scale development, simply a new house in a different location, that in turn alters the heritage setting as well as losing the main heritage significance, being the building itself.
I find this is insufficient justification to demolish the existing building that is a loss in heritage significance to the heritage place of HO95.
I therefore also find this proposal is not comparable to Burke Rd, or other similar developments where there were clear and definable benefits that were balanced against the loss of the heritage significance. In the case before no such clear benefit exists.
I therefore do not support the demolition alone, or as part of a proposal that provides a benefit of a new driveway location and a raised floor level. I therefore find the decision of the council to refuse to grant a permit for demolition and buildings and works under the heritage overlay is affirmed.

For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[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] The current dwellings at 98 Willesden Road appear in an aerial image tabled from 1961, but not from images from 1945 and earlier.

[4] Article 22.1 and 22.2, including explanatory notes.

[8] This includes letter of Fares Daneshgari of Found Consultant Engineers, 20 March 2024, Austrabuild Constructions 22 July 2024, Resispect 8 June 2024 and Engarc Consulting 10 July 2025

[9] There is internal cracking of walls around the chimney where the house has moved around the chimney.

[12] 1045 Burke Road Pty Ltd & Ors v Boroondara CC [2015] VSCA 27 [121], footnotes removed.

[14] Stephenson evidence statement [72].

Environment Act 1987

Urban Equity Pty Ltd v Monash CC [2025] VCAT 712 (12 August 2025)

Urban Equity Pty Ltd v Monash CC [2025] VCAT 712

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (1)

Cases Cited (1)

Urban Equity Pty Ltd v Monash CC [2025] VCAT 712 (12 August 2025)