Mr Ian Pitt SC, solicitor of Best Hooper. He called expert evidence from:

• Ms Amanda Ring, town planner,
• Mr Mark Sheppard, urban designer,
• Mr Bryce Raworth, heritage architect,
• Mr Graham Burrows, architect,
• Prof Phillip Goad, architect and
• Mr John Kiriakidis, traffic engineer.

Mr John Rantino, solicitor of Maddocks. He called expert evidence from:

• Mr Bruce Trethowan, heritage architect
• Mr Justin Kelly, urban designer

For Grace Park Residents Association Inc., Malcolm Hiscock & Elizabeth Keenan, Andrew Duncan, Neil Hudson and Andrew Cookesley.

Mr Nick Crawford, solicitor of TP Legal. He called expert evidence from:

Five shops on the ground floor and part of the first floor of 833 square metres. Two offices of 331 square metres on the first floor with access obtained via a lobby fronting Chrystobel Crescent. Twenty dwellings (comprising 6 one bedroom and 14 two bedroom) on the 3rd, 4th and 5th floors.

Two car lifts accessing two levels of basement car parking for 40 vehicles and 50 bicycle storage spaces.

The proposed building is to be built to the Glenferrie Road and Chrystobel Crescent alignments, the street wall height extending 11.3m to Glenferrie Road with the top 2 floors set back 6.5m from Glenferrie Road. The proposed building is 7.4m high to Chrystobel Crescent at the western end, rising to 11m at the intersection with Glenferrie Road. It is setback 2.3m from the western boundary at the ground floor, increasing to 8.385m at the top floor.

Application under Section 77 of the Planning and Environment Act 1987.

Business 1 Zone, Heritage Overlay 491 (Interim under Am. C125). Glenferrie Road is Road Zone, Category 1. Abuts Grace Park Heritage precinct HO152 and individually listed dwelling HO238 at 51 Chrystobel Crescent, both to the west in a Residential 1 zone. Council adopted the Glenferrie Structure Plan on 16 August 2010. The Structure Plan, intended to be the subject of a future planning scheme amendment, seeks to inform future development within the activity centre.

Clauses 34.01-1 & 34.01-4 (Business 1 Zone use and develop the land for an office).

Clause 43.01-1 (Heritage Overlay demolish a building and construct a building).

Clause 52.06 (reduce the number of on-site car spaces required for a dwelling, a shop and an office).

Clause 52.06 applies as the proposed building is more than four (4) storeys.

Clause 52.07 waive on-site loading requirements associated with a shop.

18.28m frontage to Glenferrie Road and depth of 46.63m to Chrystobel Crescent giving 852 square metres land area.

21 September 2011 and 24 October 2011 unaccompanied by representatives of the parties.

Innominata Pty Ltd v Port Phillip CC [2008] VCAT 1085 (11 June 2008); The University of Melbourne v Minister for Planning [2011] VCAT 469 (22 March 2011); Goodrich & Anor v Port Phillip CC [1999] VCAT 936 (31 May 1999); Doug Wade Consultants Pty Ltd v Melbourne City Council & Ors (1984) 2 PABR 221

1. This case concerns the demolition of a contributory building in a heritage precinct and its replacement with a five-storey mixed use building housing five shops[1], two offices and twenty one-and-two-bedroom flats. Toolangi, described as a handsome, mostly intact building in Queen Anne revival style, was purpose built in 1903 as a doctor's residence and surgery. Located within a Business 1 Zone in the Glenferrie Road major activity centre, its use as medical rooms continues.
2. The Applicant seeks a review of Council's refusal to permit demolition of the existing building and its mixed use replacement. A number of local residents support Council's refusal.
3. The Council's initial grounds of refusal raise the question whether the proposed demolition of this contributory or significant building[2] will have a detrimental impact on the significance of the heritage place[2] and broader heritage areas[3]. After it had issued its Notice of Refusal, the Council added another eleven[4] grounds of refusal. These include that the built form of replacement development diminishes the heritage significance of the place and fails to comply with aspects of the Glenferrie Structure Plan, inadequate parking, poor access to bicycle parking spaces and failure to provide a loading bay.
4. The Applicant argued that demolition is acceptable because the proposal would make an equal or greater contribution to the heritage place and achieve other Scheme objectives. It submitted a permit should be granted.
5. The Tribunal must make the decision as to whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Boroondara Planning Scheme, we have decided that no permit should issue.
6. Our reasons follow.

1. The review site is within a Business 1 Zone and a heritage overlay. The purpose of the B1Z is to implement State Planning Policy and to 'encourage intense development of business centres for retailing and other complementary commercial, entertainment and community uses'.
2. There are many policies under the Boroondara Planning Scheme which are relevant to this application. These are generally not in dispute between the parties and consequently we only summarise some of the key themes in this proceeding.
3. Ms Ring succinctly described[4] the relevant policies in the State Planning Policy Framework as aiming to:
   • Consolidate commercial facilities in existing (or planned) activity centres (Clauses 11 and 17);
   • Maintain and expand housing choices consistent with the changing face of Melbourne's households and the demands of a rapidly growing population (Clause 16);
   • Increasing housing yield in activity centres suited to forms of higher density housing (Clauses 11 and 16);
   • Locate housing in areas that are well suited with community infrastructure (Clause 16);
   • Deliver more affordable housing closer to jobs, transport and services (Clause 16);
   • Produce high quality architectural and urban design outcomes that are respectful of neighbourhood character and cultural identity (Clause 15);and
   • Promote water and energy efficiencies through good design (Clause 15)
4. The Local Planning Policy Framework has complementary policies relating to heritage, residential land use and commercial areas which are again not in dispute. With respect to activity centres they include:
   • Clause 21.08 that identifies the site as being within the Glenferrie primary retail centre. Objectives relate to the vibrancy of the centre, to encourage office and commercial development, to ensure commercial development is compatible with the commercial precinct within which it is located and is sensitive to nearby residential areas, to reinforce the retail function, and integrate housing uses.
   • Clause 22.08 and 22.10 that address commercial development and retail centres.
   • Clause 22.10 notes that Glenferrie Road is a primary retail centre that has an important role in the local economy. The aim is to consolidate the role of the activity centre referring to a 1992 Structure Plan (referred to below). Office and residential uses are, among others, encouraged that enhance the vitality of the centre.
5. With respect to heritage, the local policies include:
   • Clause 21.05 which foreshadows the threat to Boroondara's distinctive heritage from new developments. Policy seeks to protect from demolition buildings and places of cultural heritage, and to promote development that is well designed.[5]
   • Clause 21.07 which proposes strategies to protect Boroondara's high quality and sought after residential neighbourhoods whilst providing for a range of new housing needed in the municipality. Any new development must be balanced against preservation of heritage. When it does occur, it must complement that heritage.
   • Clause 22.05 (local heritage policy) and any Structure Plans must be applied in exercising discretion.
   • Clause 22.05-3 then addresses policy pertaining to planning permit applications under a heritage overlay in a detailed manner.
6. There are additional policies that are relevant to a decision, such as car parking at Clause 22.03, to which we have had regard, as well as all relevant decision guidelines under the applicable Clauses 34.01, provisions such as Clauses 52.06, 52.07, 52.34, 52.35 as well as the general decision guidelines at Clause 65.

1. While the Scheme refers to a 1992 Structure Plan, the Council has adopted a new Structure Plan.[6] It is the subject of a forthcoming planning scheme amendment[7]. All parties relied upon the Structure Plan as part of their analysis of the new building. The plan seeks to guide the development of this activity centre. It envisages Glenferrie Road 10 years from now as a thriving retail and commercial centre. Streetscapes will maintain their character and vibrancy by blending older buildings with cutting edge architecture. Relevant guiding principles which underpin the Structure Plan[8] in this part of Glenferrie Road are to:
   • Consolidate the different roles of Glenferrie as a local shopping centre, a Major Activity Centre as defined in Melbourne 2030 and as a regionally significant education location.
   • Enhance the ongoing economic viability of Glenferrie by expanding the retail floor space and smaller office and retail services role of the centre.
   • Encourage more opportunities for mixed use development.
   • Provide additional housing opportunities within the centre.
   • Encourage a high standard of architecture and urban design throughout the centre to strengthen its local character and community identity.
   • Ensure that the character and amenity of residential areas surrounding the centre is maintained.
2. Challenges noted in the Structure Plan include the retention of built form through innovative uses and maintaining small business and retail mixes as a key feature of Glenferrie Road.
3. In the Structure Plan, the site is located at the northern end of the retail core (Area 1). Strategies for this area are to locate core retail areas at ground floor level, encourage office, residential or retail at upper levels and to maintain the fine grain pattern of development.[9] The scale and 'grain' of buildings is identified as an important characteristic of the commercial areas, with, in the area of the review site, relatively low scale buildings set to the street edge. The site is within Commercial Area B which, at the time of preparation of the Structure Plan, was also a designated heritage investigation area[1].
4. In the location of the review site, the Structure Plan stipulates that new built form should be scaled to respect its character and potential heritage significance. Objectives include achieving a high standard of architectural and urban design, respecting and enhancing heritage buildings, providing high quality residential development and ensuring that new buildings address sensitive interfaces. This area comprises the oldest part of the centre and the many buildings that date from the Victorian to the Interwar eras give the centre its distinct character. According to the Structure Plan, the application of a heritage overlay in the future will be an important consideration in determining future built form parameters.

1. Specific requirements for Commercial Area B are:
   • Retain the existing pattern of Victorian era double storey parapet height by requiring new development to achieve a street wall height of up to 11 metres, which could include two or three storeys.
   • The appropriate street wall height of a new building must respond to the parapet height of adjoining older buildings by either adopting the existing parapet height/s or assuming an average height between two different parapet heights on either side of the site.
   • An additional one to two levels may be constructed above this height, up to an overall height of five storeys (18 metres), provided that levels over 11 metres are set back from the street wall by a minimum of 5 metres, or greater distance that maybe required by Council's Heritage Policy.
   • Maintain the pattern of buildings that are set up to the street edge, except for streets within the Swinburne Campus.
   • ResCode setback provisions should be applied to determine the rear setback of a building where it abuts an existing residential area. Laneways which separate a commercial and residential property should be considered part of the setback area.

Are the proposed uses and development acceptable under the B1Z Zone?

1. In the above planning context, the proposed uses of the site for ground level retailing, offices and multiple dwellings is acceptable in principle (noting that only the office use requires permission). The concept of a mixed use development that adds to the vibrancy and population of the centre is consistent with the directions of state and local policy. This is not in dispute between the parties. The Zone requires us to consider built form; submissions and evidence focused on this in a heritage and wider design context. Consequently, the main issues argued in the proceeding are whether demolition of Toolangi is acceptable, whether the replacement building is acceptable, and whether the outcome is one where the balance is in favour of the new development. We will now focus on those matters that are central to the cases presented to us.

Does demolition achieve an acceptable outcome with respect to Heritage Overlay HO491?

1. The review site is within HO491 Glenferrie Road Precinct Hawthorn[10]. It adjoins the Grace Park Precinct (HO152) and also abuts an individually listed dwelling Ensignton (HO238), at 51 Chrystobel Crescent within HO152. To the north of the site is a former garage, listed as 'significant' to HO491. Clause 43.01 is the basis for considering the demolition and the replacement building in heritage terms.

What is the basis for the heritage assessment of Toolangi?

1. Glenferrie Road has been the subject of a number of heritage studies:

• In the Hawthorn Commercial Area Conservation Study[11] Toolangi was identified as a contributory building in an area consisting dominantly of 19th and early 20th century buildings.
  • In 1993, Meredith Gould's Hawthorn Heritage Study graded the building C2. C graded buildings were assessed as making an architectural, historic, scientific or social contribution that is important within the local area. Glenferrie Road was assessed as having a streetscape level 2.
  • The Lovell Chen review of the Heritage Overlay citations in 2006 did not assess the Glenferrie Road Precinct as it had not been identified as a precinct at that time.

1. In 2008, Context was commissioned by Boroondara City Council to undertake the detailed and comprehensive Hawthorn Heritage Precincts Study ('The Context Study').[12] Within this study, Context reviewed 245 properties in the area covered by the Glenferrie Structure Plan, another piece of strategic work being undertaken by Council at this time. The properties which were studied were those not already covered by a heritage overlay. Building assessments were undertaken using the former Register of National Estate criteria, and designated as significant[1] or contributory[1] as set out in the 2006 study by Lovell Chen[1]. The Context Study recommended a heritage overlay be applied to the Glenferrie Road Precinct, prompting interim Am C125 and Am C99. A number of shops and civic buildings are specifically identified within the precinct. Toolangi appears in the Schedule of Contributory Buildings[13], graded 'contributory'. 2. The statement of significance of HO491[14] under 'Why is it significant?' reads:

Glenferrie Road is of historic significance as the centre of Hawthorn since the establishment of the Town Hall in 1861. It demonstrates the influence firstly of the railway in encouraging the development of commercial centres around railway stations, and secondly of the tramway in supporting the growth of the commercial area northwards. The construction of the Don department store indicates the importance of Glenferrie Road as a regional shopping centre. Glenferrie Road is significant as the major shopping centre in Hawthorn and as one of several commercial centres in Boroondara. (RNE Criteria A.4. D.2)

Glenferrie Road is of aesthetic significance as a commercial precinct containing examples of buildings by a number of prominent architects including a number of buildings from 1889 by architect John Beswicke and from 1889-1891 by Augustus Fritsch. The key buildings are set in a context of Victorian, Edwardian and Inter-war buildings that contribute to the architectural character of the precinct. (RNE Criterion E.l)

Glenferrie Road Hawthorn is of social significance as a centre for municipal, professional, retail and entertainment functions since the 1860s. (RNE Criterion G.1).

1. Following the sale of Toolangi to the permit applicant in 2010, Council was asked by members of the public to reassess its grading[15]. On 22 October 2010, Context reassessed its grading to 'individually significant to the Glenferrie Road precinct'[16]

24 The 2010 Statement of Significance for Toolangi[17]. reads:

Historically, Toolangi is individually significant for serving as a doctor's surgery and residence from the time it was built until 2010. Its shared business and residential function provided an elegant transition between the suburban streets of Grace Park and the commercial function of Glenferrie Road. Among the many physicians who lived and worked at Toolangi, Dr Jacob Jona was particularly notable. Jona owned Toolangi from 1924 until his death in 1961 and he lived and worked here. Jona was a prominent member of the Hawthorn community and served as the city's medical officer for many years. He was also closely linked with the nearby Hawthorn Football Club. He was the club's medical officer for 30 years and is remembered for treating injured players at Toolangi free of charge after games. He founded the under 15's team that was to become the Hawthorn Rovers, and was president of the HFC from 1932 to 1949, Upon his appointment he became the first Jewish president of a VFL/AFL club.

Architecturally, Toolangi is one of the distinctively designed Federation residential-type buildings which characterise the neighbouring Grace Park Heritage Precinct, but it is one of just three residential-type buildings in the Glenferrie Road Heritage Precinct. Its height and prominent corner position lend the building landmark quality, which is enhanced by the skilful diagonal design addressing the corner and making an elegant transition from the two-storey character of Glenferrie Road to the low-rise Chystobel Crescent. This diagonal emphasis is continued by the ornate corner lych-gate, along with a picket fence. These two elements are unique within the Glenferrie Road Precinct and are rare within Stonnington [sic].

What heritage evidence was presented at the hearing?

1. Council called Mr Trethowan and the objectors called Mr John Briggs to give evidence.
2. Mr Trethowan concluded that Toolangi is a good example of a mid-scale Queen Anne style building in good physical condition. He considered that it 'makes a significant contribution to the history and fabric of the local area.'
3. Mr Briggs considered Toolangi as a definitively contributory building to two heritage places, HO491 Glenferrie Road and HO152 Grace Park. His opinion is that the two storey Queen Anne form of Toolangi sutures the Glenferrie Road precinct to the Grace Park precinct. Its demolition will therefore affect the cultural heritage significance of Chrystobel Crescent. He said that the fact that the building was built as, and continues to be used as, medical rooms is also part of its heritage significance. The building demonstrates a variety of both built form and professional use within the 'High Street model' of the period in which Glenferrie Road developed.
4. In contrast, Messrs Raworth and Goad both consider that Toolangi's form and function is not so unusual for its period; the lych-gate might be unusual in commercial Glenferrie Road but it is common in the suburb; house designers of the period often took advantage of corner sites to exploit the dual street frontages and create buildings which emphasise the diagonal with corner turrets, bay windows or verandahs; and the building itself does not tell the story of Dr Jacob Jona's association with and presidency of the Hawthorn Football Club or his service to the municipality.
5. While admitting that Toolangi's atypical form and function can be seen to add to its interest to the Glenferrie Road precinct as much as detract from it, after taking into consideration the statement of significance for the precinct and the background heritage reports and research, Mr Raworth's evidence concluded:
   • Toolangi is of contributory value within the Precinct, although it is not an exceptional building in itself.
   • The proposed demolition of this building will result in a loss of fabric of contributory value in a general sense, but, due to the atypical character of the building, will not fundamentally[18] undermine the identified character and significance of the Glenferrie Road Precinct.
   • In a purely heritage context, demolition hinges on the question of whether the replacement building embodies design excellence complementary in form to the elements of primary significance.
6. Professor Goad's evidence was that:

This seemingly odd domestic presence (ie. in terms of a detached house and garden) in the shopping street is heightened by the presence on the south side of Chrystobel Crescent, ie. on the other corner, of a double storey shop-dwelling that sits hard on both streets, with a wall-like presence (rather than garden aspect) to Chrystobel Crescent. Immediately to the north of the subject site, is another Federation 'urban' structure, 'The Garage' (1912) at 735 Glenferrie Road, a very early motor garage by notable Melbourne architect Christopher Cowper, which also sits hard on the street. Its sidewalls extend westward for the full length of the site.

While today this site condition might seem oddly inconsistent with ideas of what urbanism might mean, at the time it was not unknown, especially as theories of garden cities were widely being expounded at the time. In Federation urban architecture, widely influenced by the English Arts and Crafts Movement, elements of residential architecture frequently became part of an urban architectural language. This house and its garden, however, while being of local historical interest and having been identified as being of contributory significance, in the opinion of this author, is not of outstanding significance to justify its retention. Certainly, the presence of a 'house and garden' offers some historical interest to a Federation streetscape. But, again in the opinion of this author, it is not as significant as[19] the larger quantities of Federation shop-dwellings and other commercial premises flanking the subject site, which in their extent and integrity deserve greater attention.

1. Clause 22.05[20] encourages the retention and conservation of all 'significant' or 'contributory' heritage places in the Heritage Overlay. It is policy to retain significant or contributory heritage places and not normally allow their total demolition. If demolition is allowed, the Clause seeks to promote architectural design which clearly supports and respects the ongoing cultural heritage significance of the heritage place[21]. As occurs here, an application for a new building must accompany a demolition application[22].
2. The 'heritage place' is 'Glenferrie Road Precinct Hawthorn'. In making our decision, we must consider the cultural heritage significance described in the statement of significance for the heritage place, the contribution made by Toolangi to the significance of the place and whether the demolition of Toolangi will adversely affect the cultural heritage significance of the place.[23]
3. In our view, the discussion about whether Toolangi is contributory or significant to the precinct is somewhat of a distraction. The Tribunal has to reach a decision amidst conflicting evidence in relation to heritage. We do not consider that it is our role to make a decision as to the level of significance of the building itself. It is enough that all parties agree that the building is contributory to the heritage place. We observe that it appears that no new or previously unrecognised evidence has been identified in the new statement of heightened significance. Notwithstanding, Clause 22.05-3 draws no distinction between contributory and significant buildings. Neither should 'normally' be demolished.
4. HO491 is a large precinct; in Glenferrie Road alone there are, by our reckoning, 147 citations[24], 18 are classified as significant,12 are non-contributory, and the remaining 117 (including Toolangi) are listed as contributory. In this northern part of the precinct, important civic buildings are not present and the contribution to the heritage precinct is largely made by the two storey terraced shop fronts built hard to the street frontage. It is the sheer number of these Victorian, Edwardian and inter-war shopfronts which characterises the precinct. These buildings work together to contribute to the cultural heritage of this heritage place.
5. We think that this may be a case where the difference in building typology of Toolangi, and its location on a relatively large corner site combine to make it an attractive redevelopment proposition. But as Mr Briggs asks rhetorically: what are the thresholds for demolition of a contributory building? At what point do we start to demolish contributory buildings? At what point do we start trading away heritage issues for other considerations? If we knock down this building because it is a residence, and not adaptable for use as a shop, where will it end? Why not knock down other contributory buildings?
6. This matter has been addressed by the Tribunal on a number of occasions. As long ago as 1999, in Goodrich & Anor v Port Phillip CC[25] the Tribunal observed:

Urban conservation is not primarily for the purist but is to provide a general public of today and the future with a three dimensioned representation of what buildings and streets of buildings were like in given periods of our history[26].

If, over a period of time, dwellings within an intact streetscape are "picked off" one by one [as the inevitable decay caused by age first manifests itself] then the whole objective of heritage controls will ultimately be defeated....It is the role it plays in the streetscape, and within the surrounding built environment, rather than the individual merit of the building, which provides the critical element in assessing the matter of demolition in this case.

In a sense, the questions that this particular proposal raises cut to the very heart of heritage philosophy- they serve to underscore the idea that innovative contemporary architecture has the potential to shape the cultural landscape of the future. Of course, were such an argument to be used without discretion, then the damaging effect this would have upon Victoria's built heritage hardly bears imagining[27].

1. It seems to us that Mr Raworth is somewhat equivocal about the demolition of Toolangi. His evidence is that the identified character and significance of the Glenferrie Road precinct will not be fundamentally undermined by its demolition. This is somewhat at odds with his earlier opinion that the building may have been a design of Christopher Cowper[28] (noting that research to establish authorship would be needed) and that this would strengthen the argument for the building's retention.[29]
2. Professor Goad's opinion is that the building is not of outstanding significance, and again not as significant as the large number of Federation shop dwellings nearby. Neither the Context Study, nor the planning scheme, indicate that contributory buildings of a-typical character are to be assessed any differently from those buildings which reflect the predominant typology. Buildings which are noted as contributing to the heritage place are not required to be 'outstanding' or 'as significant as the large number of shop-dwellings and other premises flanking the subject site'. The scheme describes contributory buildings as playing an integral role in demonstrating the cultural heritage significance of a precinct.
3. Does Toolangi play such a role?
4. We think that, on balance, the expert evidence from the four heritage witnesses, together with the various heritage studies undertaken by Council, suggest that it does. We note that the schedule of gradings has recently been reviewed. We note also that the objectors, through summoned material, produced evidence that neither Ms Riddett nor Lovell Chen, both respected heritage consultants well familiar with the area, were prepared to support demolition of the building. Whilst acknowledging that the building is a-typical in the Glenferrie Road streetscape, Lovell Chen described it as "a robust building which is of interest and contributes to the presentation and significance of the wider streetscape".
5. Whilst there is a high level of coherence within the built form along this section of Glenferrie Road, importantly, the statement of significance does not identify uniformity as a defining characteristic of the precinct. The single storey garage next door at 735 Glenferrie Road and the group of single storey Edwardian shops near the site to the south are quite different in form from the consistent rows of two storey shops. They nevertheless contribute to the diversity that makes up the precinct. It is not 'consistency' on which the Statement of Significance focuses, rather it is the development of the retail function of Glenferrie Road and its associated built form reflects this typology of commerce with dwellings.
6. The statement of significance for the precinct does not distinguish between different types of built form, and therefore should not in our view be interpreted to mean that only the two storey shop/dwellings contribute to the cultural heritage significance of the precinct, to the exclusion of other building types. Indeed, even if some buildings were not originally constructed as shops, they have been adapted to this function. Toolangi was designed and built as professional rooms with an attached dwelling and has remained as professional rooms to this day- a use specifically identified in the statement of significance. We think that this contribution to the place remains that which it has always been.
7. Whilst acknowledging that Toolangi is a contributory building to the precinct, and that its demolition would be a loss, the Applicant sought to persuade us that the building formed a hole or gap in the Glenferrie Road streetscape that required repair, as this would serve to promote an urban design which clearly and positively supports the ongoing significance of the heritage place.[30] We note that the subdivision pattern itself has contributed to frequent 'gaps' along the Glenferrie Road spine, with the frequent side streets to the residential areas to east and west providing opportunities for shops to also face the side streets. These interruptions to the built form are a condition which has always existed as part of the precinct. We note that when driving north along Glenferrie Road, this particular gap is not easily observed, despite the single storey garage (another a-typical building) being next to it. We conclude that the a-typical nature of Toolangi is not a characteristic supporting demolition.
8. We accept that any 'story' about those who lived and worked here over the past century is also not apparent to the passer-by. That is the case for many historic buildings and structures. However, the precinct is noted as aesthetically significant as a commercial precinct, with key buildings set in the context of the period buildings. Toolangi is clearly one of the buildings which provide a context to more significant structures elsewhere in Glenferrie Road.
9. We conclude that Toolangi's contribution to the significance of the heritage place is such that its entire demolition is contrary to the purpose of Clause 43.01 and local policy at Clause 22.05. It is one of the original buildings in the area and its continuing use as professional rooms adds to this significance.

1. The acceptability of the proposed built form with respect to heritage and wider urban design considerations are different but related matters. We deal with them together for convenience. All parties emphasised the important role of the Structure Plan in considering this question. We also highlight Clause 43.01 that requires consideration of the proposed building in regard to:
   • 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 and appearance of the heritage place.
2. Clause 22.05 requires that buildings take account of the statement of significance of the heritage precinct, that they take account of the existing scale, massing, form and siting of adjacent significant or contributory buildings, the immediate streetscape and the heritage precinct as a whole. Good quality contemporary design is to be encouraged.
3. In addition, Business 1 Zone, and state and local policies, address built form and streetscape including applicable guidelines referred to in Clause 15.
4. In its amended grounds of refusal, Council argued that the Glenferrie Road façade is too high and that the building is insensitive to its heritage interfaces. The Council's submission was that the building has been designed by modulating the maximum volume achievable on the site and that this has resulted in a building that is insufficiently respectful of both The Garage to the north and Ensignton to the west. It said that the design does not demonstrate maintenance of the 'valued character' of the Glenferrie Road precinct. Mr Kelly gave evidence with respect to these matters. His evidence was that there needed to be further modification to the design to achieve a better transition in urban design terms to both these buildings. Council considers an eleven metre high wall next to the single storey garage as too high. It described the junction to the north as 'strident' and submitted that the design of the north wall could not be said to have been derived from the design principles espoused by the scheme. Mr Trethowan declined to comment given his opinion that the building should not be demolished.
5. Mr Burrows provided the Tribunal with a peer review of the proposed building in the context of the Structure Plan and its heritage neighbours. He saw the corner site as presenting an opportunity to introduce active street frontages along Chrystobel Crescent as well as Glenferrie Road. In his opinion, the architects, by the selection of materials and configuration of the external skin of the building had responded successfully to both the corner site and proposed height via a dynamic and sculptural response. The asymmetrical massing also responds to the compositional techniques of the properties along Chrystobel Crescent. The south elevation has been treated on the upper levels as a plane that has been sliced and folded back to comply with the setback guidelines. Mr Burrows said this diminishes the bulk of the building towards the residential area behind.
6. Professor Goad and Mr Sheppard also supported the design of the proposed building. Their evidence was that the building deferred to its context in the modulation of the elevations. They supported the turning of the shop fronts into Crystobel Crescent, the treatment of the entrances to the building and the materials selection.
7. We agree with both Mr Burrows and Mr Kelly that if the heights envisaged in the Structure Plan are to be fully exploited, careful management of building form is required. This is all the more so in a heritage precinct.
8. In terms of scale, the building sits within that envisaged by the Structure Plan. In addition it is located in a section of Glenferrie Road where there are other large contemporary infill buildings. Whilst we agree with Mr Sheppard that the street wall heights are in line with those proposed in the structure plan, we also agree with the evidence of Mr Kelly that the interface with The Garage is poorly resolved. We were shown some preliminary plans relating to a redevelopment of The Garage, which did not in any way provide us with reassurance about the successful design of this interface. That is not to say it could not be resolved, simply that it is unacceptable as proposed.
9. We have no such reservations about the west (rear) interface. We consider that this is a well resolved and appropriate and respectful response to Ensignton and Chrystobel Crescent generally where the change in character from commercial to residential is already clearly defined by traffic calming street works and planting to the west of the laneway.
10. We do, however, wish to comment on the suggestion made (by Council) that the insertion of marquees, heaters, chairs and tables and the like within the front setback of Toolangi is an attempt to 'stitch' it into the streetscape of Glenferrie Road. We think that this would be more likely to have the opposite effect as can be seen, for example, at The Willows in St Kilda Road. Our observation is that the strong vertical plane of the existing Glenferrie Road façade already reflects those of nearby contemporaneous buildings built hard to the street frontage, despite having a deeper setback. We also can envisage commercial uses to which the building would be well suited.
11. We have concluded that the proposed building is a generally well designed contemporary solution to a mixed use development on this site. However, this is not to say that a redevelopment of the site which included the existing building, comprising retail premises, offices and housing could not be successfully accomplished. We note that the area available for this option, suggested by Council and other parties, could involve around half the site. We acknowledge that a development comprising apartments attached to its rear of Toolangi would require a sophisticated design solution so as not to isolate the front section of the house or sever its link with Chrystobel Crescent and its visual connection to the Grace Park Estate. There is no doubt that devising a successful contemporary solution would be challenging. Happily, Melbourne is a city which is fortunate in having many excellent architects. We do not think that the fear of a suboptimal design outcome in the future is a determinative reason to support demolition of the existing building. There could equally be an outcome which by its design enhanced both the building and the precinct.

1. In its amended grounds of refusal, Council argued that the building has shortcomings in car parking, access to bicycle parking, fails to provide a loading bay, and has internal amenity deficiencies. These matters were addressed by parties at the hearing including through evidence as well as submissions opposing the proposal because of amenity impacts on neighbouring residential lots. We summarise our views about these matters as follows:
   • Visual bulk and perceptions of overlooking to neighbours would not be a reason to refuse the proposal.
   • Materials and finishes could be refined if necessary.
   • Car parking supply is generally acceptable with respect to the relevant matters in Clause 52.06.
   • No on-site loading bay would be required to serve five small shop fronts.
   • Internal amenity issues could have been resolved through design modifications.
2. Given our final conclusion, we do not address them in detail. They are matters, however, that have been considered in our balancing of all relevant considerations.

1. Clause 10 of the Boroondara Planning Scheme requires us to balance relevant policies in the interests of net community benefit and sustainable development for the benefit of present and future generations. Clause 10 incorporates the objectives expressed in the Planning and Environment Act (Vic) 1987, s.4. In this case, the objectives to be balanced are:
   • the provision of fair, orderly, economic and sustainable use, and development of land, and
   • conservation and enhancement of those buildings which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value.
2. It is the weight which we give to competing policies within the scheme, variously described as in 'inherent conflict' or 'creating tension', which will determine our decision. The tension in this case lies in the apparent conflict between the purpose of Business 1 zoning of the site and giving effect to the full range of state and local policies. In the Boroondara Planning Scheme there is strong support for the retention of heritage buildings.
3. We have found that the proposal fails Clause 43.01 and policy with respect to the building's demolition. However, the new building is generally acceptable given Scheme and adopted policies supporting contemporary design, provision of retail premises, offices and diverse housing stock within activity centres such as Glenferrie Road. Clause 43.01 does not require the demolition decision to be made only on the basis of heritage, divorced from a consideration of a broader range of factors. Instead, along with a number of heritage considerations, it requires a decision to be made within a framework that includes Clause 65 of the Scheme.
4. We find this is a case where a conservative, cautious approach should be taken in making a decision to demolish Toolangi. We conclude that Toolangi's contribution to the significance of the precinct

is sufficient grounds for its retention. It is one of the original buildings in the area and its continuing use as professional rooms adds to this significance. On balance, despite the strength of the opposing argument, we are not convinced that the demolition of the building is supported by the provisions of the Boroondara planning scheme.

1. In reaching our conclusion, we have considered the Applicant's submissions about the Tribunal's decision in the Ampol House case[31]. There, Deputy President Gibson and Member Read observed that policy has a legitimate role in guiding discretion, but should not proscribe the exercise of discretion. The Tribunal in that case decided that the grant of a permit would result in a significant net community benefit to present and future generations, not just locally but indeed public health benefits of global significance.
2. In our rather different situation, there is strong policy support for the retention of buildings which contribute to a heritage place. Equally, there is strong policy support for increased housing diversity in activity centres, and the provision of offices and retail premises to support the Glenferrie Road shopping strip. In assessing the application for this site, we must decide whether the proposal will produce "acceptable" (not optimum) outcomes in terms of the decision guidelines set out in Clause 65. The proposed provision of medium density housing supports policy behind Melbourne 2030, facilitates protection of the heritage residential hinterland and provides smaller more affordable accommodation for those wishing to remain in this location. However, we consider that there are other opportunities within the activity centre for this to occur (for example on non-contributory sites and in the designated Burwood Road corridor) so these factors do not change our decision that the balance required of us favours the retention of the heritage building.
3. The purpose of the replacement building before us at 733 Glenferrie Road is not to provide specialist facilities in which to undertake internationally important activities requiring a particular location to optimise their effectiveness. The heritage building to be demolished in that case was described as "representative of its style, located in an isolated context, disassociated from other office buildings".[32] In Toolangi we have a purpose built commercial/residential building constructed in the period when the Glenferrie Road strip was developing. From the beginning it has been integral to the precinct. We have concluded that the demolition of Toolangi would adversely affect the cultural heritage significance of the Glenferrie Road heritage precinct, and would not contribute to the long term conservation of the heritage place.
4. We were also referred to the Innominata case[33] in St Kilda. This involved the demolition of five small buildings all graded as significant. An important difference from this case was the application of a design and development overlay to the site in addition to a heritage overlay and Business 1 Zone. The Tribunal found that, on balance, the replacement building, which was of very high design quality, would deliver an outcome in which the positive outweighed the negative. Indeed, it would form another "icon" in a location where there are already a series of icons and it would have other positive urban design benefits consistent with DDO aspirations. This permit application for 733 Glenferrie Road requires different considerations to be balanced.

1. Planning is a dynamic process, seeking to balance a range of needs. There is the need to preserve and the need to develop. There is the need for progress and the need to manage change. There is the need to support business and provide more housing. That is the balance we have to exercise. The contribution of Toolangi is such that we conclude its demolition is not acceptable. However, the outcomes that the Scheme is seeking in this location could still be realised, in a different way from the current approach, retaining the building.
2. The decision of the responsible authority will be affirmed.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

[1] Three shops fronting Glenferrie Road are double storey.

3 Together with its fence and lych gate: &#8[2]Toolangi' has been consistently described as 'contributory' in Council's heritage studies, with the exception of one report describing it as 'significant to the Glenferrie Road Precinct' after it was sold late last year.

[3] Grace Park Precinct HO 152 and Ensignton HO152.

6 Overlooking and lack of corner splay were deleted during the hearing by Mr Rantino for the Responsible Authority.

[6] Glenferrie: Heart of Hawthorn Part 14 July 2011. Authorisation has been sought to prepare Am C 139.

[7] Pursuant to Section 84B of the Planning and Environment Act 1987, a document adopted by Council, even though not approved by the Minister, may be taken into account in reaching a decision.

[1]3 The subject of a Panel hearing for AmC99. The Context Hawthorn Heritage Precincts Study 2009 has found that this area is of heritage significance and warrants protection within a Heritage Overlay.

1. [10] Interim heritage overlay Am C125 which expires after 29 February 2012 was gazetted pending consideration of the permanent heritage overlay Am C99 by a Planning Panel later this year.

[12] Over a two year period from 16 July 2008 to 14 July 2010.

[1]7 Significant' heritage places are individually important places of State, municipal or local cultural heritage significance. They can be listed individually in the Schedule to the Heritage Overlay. They can also be places that, when combined within a precinct, form an important part of the cultural heritage significance of the precinct. They may be both individually significant and significant in the context of the heritage precinct.

1. [1]'Contributory' heritage places are places that contribute to the cultural heritage significance of a precinct. They are not considered to be individually important places of State, municipal or local cultural heritage significance, however when combined with other 'significant' and/or 'contributory' heritage places, they play an integral role in demonstrating the cultural heritage significance of a precinct.

[1]9 Review of Heritage Overlay Precinct Citations (June 2006) and Schedule of Gradings in Heritage Precincts Lovell Chen (2006) incorporated into the Planning Scheme by Amendment C66.

[14] Set out in Context's Hawthorn Heritage Precincts Study Volume 2 Precinct Citations Final Report July 2011.

[15] Letter dated 18 February 2011 from Council to the vendor of Toolangi.

[16] On 18 July 2011, council adopts context's upgrading from contributory to significant.

[17] Review of Significance of Toolangi Context 22 October 2010.

[23] Where more than one statement of significance exists in relation to a heritage place, only the more recent statement of significance should be considered. See cl. 22.05-3.

[25] [1999] VCAT 936 (31 May 1999) per Ian Marsden.

[26] Doug Wade Consultants Pty Ltd v Melbourne City Council & Ors (1984) 2 PABR 221 at 234.

[28] An important local architect responsible for houses in Grace Park.

[29] Emailed advice 12 September 2011(summoned document).

[32] [2011]VCAT 469 (27 March 2011) paras. 48-50

[33] [2008] VCAT 1085.