* Conversion of bedroom 3 to a bathroom and toilet.

* Construction of an open plan kitchen, living and dining area with separate laundry with a floor area of 115 square metres. A verandah is proposed to the rear.

* The addition would be set back 1.2 metres from both side boundaries. 13.2 metres from the rear boundary and 21.27 metres from Wellington Street.

* Construction of a master bedroom with ensuite, robes and dressing area.

* The ensuite and dressing area would encroach into the existing roofline with a setback of 19 metres from Wellington Street.

* The east wall would be set back 1.4 metres, whilst the west wall is set back 1.25 metres from side boundaries. The rear setback is the same as the ground floor.

* Construction of a study and deck with glazed folding doors.

* The east wall of the study would be set back 4.1 metres and the west wall of the study 4 metres from side boundaries. The rear setback is maintained, creating a 9.2 metre wall at the rear.

* The deck would be set back 21.7 metres from Wellington Street and 2.25 metres from the eat boundary.

* The stair has an angled roof form, specifically designed to meet the ten degree sightline policy. It is setback 21.7 metres from Wellington Street, 5.3 metre from the west boundary and 6 metres from the east boundary.

8 Mr O'Loghlen also provided the following description of the review site and its immediate environs which, having inspected the area, I find to be accurate;

The site is located on the south side of Wellington Street, St Kilda, between Crimea Street and Marlton Crescent. The site contains a single storey dwelling and has an area of approximately 674m2. The site is regular in shape with a small access way from Crimea Street. It has a frontage to Wellington Street of approximately 13.5 metres and a depth of 44.5 metres. The access way from Crimea Street has a frontage of 3.5 metres to Crimea Street and a depth of 15 metres. Victorian single storey dwellings are located to the east and west of the property and a row of two storey units are located to the south. The area at the rear of the property to the west (at 82 Wellington Street) is unfenced to Crimea Street allowing views to the subject site. Surrounding land uses are residential with business zoning (B2Z) on the north side of Wellington Street.

9 I note that a large, interwar apartment building is located to the east of the review site at 88 Wellington Street. Along both sides of Wellington Street and in the residential area to the south of Wellington Street, the streetscape is characterised by the juxtaposition of heritage buildings with more contemporary development.

10 The review site is zoned Residential 1 under the Port Phillip Planning Scheme. A dwelling is a section 1, permit not required use in the zone. No permit is required to construct or extend a dwelling on a lot greater than 500 m2 in area.

11 The review site is also affected by a Heritage Overlay (HO6). The purpose of the overlay is as follows;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

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 specifically identified 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.

12 A permit is required to demolish a building, construct a building and to construct or carry out works. Relevant decision guidelines under clause 43.01-5 of the overlay require consideration of;

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

Any applicable 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 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.

13 The Heritage Place defined in the schedule to the overlay is an;

Area generally bound by Wellington Rd and Dandenong Rd to the north, varying degrees of Alma Rd to the south, St Kilda Rd to the east and Orrong Rd to the west

14 The Port Phillip Heritage Review classifies the existing building on the review site as a contributory heritage place. At clause 22.04-2 a contributory heritage place is defined as including;

.............buildings and surrounds that are representative heritage places of local significance which contribute to the significance of the Heritage Overlay area. They may have been considerably altered but have the potential to be conserved.

15 Clause 54 of the planning scheme applies to an application to construct a building or construct or carry out works associated with one dwelling on a lot under the provisions of a Heritage Overlay. The purpose of clause 54 is;

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To achieve residential development that respects the existing neighbourhood character or which contributes to a preferred neighbourhood character.

To encourage residential development that provides reasonable standards of amenity for existing and new residents.

To encourage residential development that is responsive to the site and the neighbourhood.

16 A development must meet all of the objectives of clause 54 and should meet all of the standards of clause 54.

17 I was presented with the detailed summary of the applicable policy framework by Mr O'Loghlen in his submission, and it is not necessary for me to repeat that material here. I think it is necessary however to refer to the policy at 22.04 Heritage because this policy contains the detailed provisions against which this proposal must be assessed. In broad terms this policy encourages a contextual design approach for alterations and additions to a heritage place. Such an approach may include contemporary architecture and innovative design, and accurate reproduction. Specific policies for additions and alterations to heritage places relate to building siting scale and massing ,door and window openings and materials, surface finishes and fences. The policy encourages designs which incorporate the following characteristics;

* do not change the original principal facade(s) or roof.

* are distinguishable from the original parts of the heritage place to be conserved if a contemporary architectural approach is used.

* are based on research that can identify the elements, detailing and finishes originally employed.

* do not obscure or alter an element that contributes to the significance of the heritage place.

* maintain an existing vista or viewlines to the principal facade(s) of a heritage place.

* An upper storey addition is sited and massed behind the principal facade so that it preferably is not visible, particularly in intact or consistent streetscapes (See performance measure 1).

* If visible, the roof form of any addition is related to that of the heritage place.

* Where the property is located on a corner site the upper storey addition is sited and massed so it is visually recessive from the building's main frontage so that the scale of the heritage place is the dominant element in either streetscape.

18 The policy then contains a number of performance measures and performance measure 1 (PM1) relates specifically to upper storey additions and states that the building, siting and massing section of the policy maybe met if the following 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 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, 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 facade and extending to the rear of the heritage place, 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.

19 I will return to an assessment of this application against the policy later in this decision.

20 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.

21 Mr Jones called Mr John Briggs, architect and conservation consultant, and Mr J Coomes, town planner, to give evidence. Both witnesses were made available for cross examination.

22 Mr O'Loghlen called Mr T Westmore, urban design and heritage conservation consultant to give evidence. Mr Westmore was made available for cross examination.

23 I inspected the subject site and its locality unaccompanied by the parties.

24 The demolition of the rear section of the building raises no heritage issues and was not contested by any of the parties. The issues in dispute therefore are confined to a consideration of the acceptability of the proposed three storey extension from a heritage perspective and in terms of its compliance with the objectives and standards of clause 54.

25 With respect to heritage issues it was the Council's submission that the proposal does not conform to the policy objectives of the planning scheme and would have an adverse impact on the significance of the heritage place. The Council relied on the evidence of Mr Westmore in support of its submission. It was Mr Westmore's evidence that;

In heritage terms the relevant impacts of the proposal are essentially its visibility from the public domain. The significance of the existing fabric of the dwelling itself is not notably altered.

However, the addition would certainly be very visible from both Wellington and Crimea Streets. It is this obtrusive visibility and its obvious inconsistency with the character of the area that is of concern. The notable visibility is firstly to do with height and bulk but the nature of the design would further exaggerate its prominence as an intrusive element in the historic and aesthetic context

26 Mr Westmore provide a summary of the applicable heritage policy provisions of the planning scheme and concluded that;

The general intent of all these clauses clearly seeks to conserve and enhance the heritage place in heritage terms, rather than to facilitate different patterns of development. The proposal seeks to produce a distinctly different scale of building for its location on the site and a distinctly different typology of built form, materials and detail that would, because of its visibility, stand out and distract from, if not dominate, the immediate context to the detriment of the heritage values that the overlay seeks to conserve.

27 It was Mr Westmore's evidence that because the third floor element does not meet the 10 degree sight line criteria contained in PM1 (it has been calculated at 12 degrees) the proposal will be visible from the public domain and as a consequence, the non contextual design response will make the development discordant in this heritage place. Similarly Mr Westmore did not consider the review site as being located in a diverse streetscape which would qualify the proposal for consideration under the exceptional circumstances clause of PM 1, notwithstanding the fact that a three storey apartment building is located to the east of the review site and a contemporary medium density housing development in Crimea Street abuts the review site's southern boundary. Mr Westmore was content to disregard the existence of these (and presumably the many other non heritage buildings in the immediate vicinity of the site and within the HO6 area generally) on the basis of that provision of clause 22.04-4 which allows the impact of buildings that are "....obviously atypical to the character of the streetscape......., to be disregarded when determining the appropriate mass and scale for new buildings or extensions or upper storey additions in a Heritage Overlay.

28 It appears to me therefore, that if Mr Westmore cannot assess this streetscape as being diverse, and therefore qualifying this application for consideration under the exceptional circumstances clause of PM1, this clause is unlikely ever to be activated.

29 Mr Briggs provided what I regard as a balanced assessment of the context of this site and of the heritage significance of this locality. It was Mr Brigg's evidence that;

The wider area of the East St Kilda Heritage Precinct, beyond the locality of the subject house, comprises a mix of Victorian residencies and public buildings interspersed with latter development particularly in the form of apartments from the interwar period and beyond. The area is significant for its demonstration of both the nineteenth century and interwar apartment development and for comparative demonstration of development on the higher and lower ground.

In the immediate locality of the subject house, both in Wellington and Crimea Street, the heritage character cannot be considered to be 'intact'. The group of four villas along Wellington Street is surrounded on all sides by apartment blocks which are dominating elements in the streetscapes, and isolate the subject site from the wider area. Whilst the wider area exhibits diversity of period and of form within periods, and whilst the post war apartment blocks in the area are less intrusive because they follow from the interwar development, these blocks prevent consideration of the subject locality as either consistent or intact in heritage terms.

30 A strong element of Mr Westmore's evidence focussed on the degree to which the proposed extension will be visible from the public domain. It was his evidence that there would be oblique views of the extension from Wellington Street and from the side street, Crimea Street, and that this level of visibility contributes to a foreign and obtrusive element in the heritage context.

31 In my view, Mr Westmore's evidence places an over reliance on the need for a strict compliance with the criteria of PM1 in terms of determining an acceptable degree of visibility for the proposed extension. Having regard to the context of this site, I think that scope exists to accept at least some degree of variance from that criteria. The extent to which this extension will be visible in the Wellington Street streetscape, when viewed from that location in the street from which PM1 requires an assessment to be made (directly in front of the site) will be minimal and will only be obtained from a distance of approximately 30 metres. I do not regard this as either prominent or obtrusive.

32 Oblique views of the extension will be available in Wellington Street and from Crimea Street, primarily via the exposed rear yard of the property on the corner of Crimea and Wellington Streets (82 Wellington Street).

33 In terms of the oblique views, the extension will be partially visible only, viewed from a distance and in the context of the surrounding and nearby modern development in Wellington Street. Nor do I regard this level of visibility as either prominent or obtrusive.

34 I also agree with Mr Briggs who stated that the extension will be viewed from Crimea Street in the context ".....of the apartments to the south, the disrupted form of the Crimea Street frontage to 82 Wellington Street, and the prominence of the apartments at 88 Wellington Street as a backdrop to the Crimea Street view to the site....."

35 The additions are also contemporary in form and satisfy those elements of the policy which seek to ensure that additions are distinguishable from the original parts of the heritage place to be conserved.

36 Having regard to the above, I am satisfied that the location, bulk, form and appearance of the proposed building will not adversely affect the significance of the heritage place.

37 With respect to relevant matters for consideration under clause 54, the Council's concerns were limited to issues of overlooking, which Mr O'Loghlen conceded could be addressed by way of permit condition, and the 9.2 metre height of the addition which, it was submitted, did not achieve a graduation in building scale from adjoining properties.

38 The proposal does not raise any neighbourhood character issues which haven't already been dealt with as part of my assessment of the proposal's response to the heritage place.

39 I agree with Mr O'Loghlen's submission with respect to overlooking to the extent that there appears to be discrepancies between the floor plans and the elevations, and a lack of detail with respect to the proposed window treatments. While I note that the windows are setback some nine metres from the southern boundary, and the opportunity exists to require landscaping of that boundary, screening to a height of 1.7 metres ought to be required of the south facing master bedroom window, and the south facing second floor windows and deck. I do not think that these are fatal flaws in the application and they can be addressed by way of permit conditions. I have included a condition requiring the submission of amended plans detailing the screening methods to be employed, which the Council will need to approve.

40 Ms Brown raised concerns about the impact of the proposal on the amenity of the town houses in Crimea Street, which abut the review site to the south. I have dealt with the overlooking issue above and I also note that the proposal meets the relevant standards of clause 54 with respect to matters such as overshadowing, daylight to existing windows, and building setbacks from the southern boundary. In this context, I am satisfied that the amenity impacts of the proposal are contained within acceptable limits.

41 It follows from the above that the decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached Order.