1. The Tribunal made an interim order requiring the applicant to file and serve on the parties additional information on the plans of the proposal showing more information regarding the natural ground level lines shown on the plans, and the highest point of the building above the natural ground level lines shown on the plans. The Council and the respondents were given the opportunity to provide further written submissions in this regard.
2. I have considered the material filed on behalf of those parties who responded to the interim orders in reaching my conclusions in this matter.

1. The key features of the proposal, as described in the application plans are as follows:

1. The basement level contains a double garage accessed from a double crossover, front porch and entry, living and kitchen area, toilet/powder room, separate storage area and stairs to access the ground floor above; 2. The ground floor contains two bedrooms (each with an ensuite), a separate toilet/powder room and a laundry;

1. The first floor contains the main living area with access to a deck and swimming pool, dining area, kitchen and a toilet/powder room; and

1. The second floor contains two bedrooms (each with an ensuite) and rumpus room with access to a terrace.
2. The proposed dwelling will have a maximum height of 8.37 metres above the natural ground level line shown on the plans and sections and a maximum overall height of approximately 12.3 metres. Due to the slope of the land and the excavation proposed, the dwelling will present as a four storey building when seen from Hillside Crescent, and a single storey building when viewed from the rear yard. It has a contemporary appearance with a flat roof form. External materials and finishes include rendered masonry walls, aluminium fascia and glazed balustrades and a colorbond roof. An extract from the plans, showing the proposed dwelling in the streetscape context is set out in Figure 1 below.

1. The land is located about 50 metres west of the Maribyrnong River (across Van Ness Avenue). The topography of the land slopes down towards the Maribyrnong River. Existing dwellings surrounding the land are oriented to maximise views towards the river.
2. Surrounding dwellings on the north-western side of Hillside Crescent are mostly double and triple storey brick or rendered dwellings with a mix of pitched and flat roof forms. Some front gardens in the vicinity of the land are planted with lawns, shrubs and mature canopy trees, whilst others have very little vegetation. Front fences are generally low. The building styles and design are varied, contributing to an eclectic streetscape character.
3. The land has abuttals to the following properties:

1. To the north-west, at No. 7 Hillside Crescent is a three-storey rendered brick dwelling with what appears to be a rooftop deck; 2. To the south-east, at 1/3 Hillside Crescent is one of six double storey units; and

1. To the south-west are Nos. 7/4 and 8/4 Belvedere Close which are part of a multi dwelling development located to the rear of the land.
2. Properties to the rear of the land are located on higher ground and are oriented to towards the river.
3. The zone map showing the land and surrounding lot pattern is shown in Figure 2 below.

1. Design outcomes that contribute positively to the local context and enhance the public realm, and the recognition, support and protection of neighbourhood character are supported in policies within the Planning Policy Framework (PPF) in the Scheme.[3] Policies in the PPF also contain objectives which seek to protect and enhance river corridors. Relevant strategies seek to protect the Yarra, Maribyrnong and Murray River corridors as significant economic, environmental and cultural assets.[4] Policies to be considered (as relevant) include the Maribyrnong River Valley Design Guidelines.[5]
2. These policies are supported by the Local Planning Policy Framework (LPPF) which relevantly contains objectives and policies which (amongst other things) seek to enhance the landscape character along the Maribyrnong River and Stony Creek.[6]
3. Under the GRZ1, a permit is not required to construct the proposed dwelling, because the land exceeds 300 square metres.[7] A permit is not required to use the land as a dwelling because a dwelling is a 'Section 1-permit not required' use in the GRZ1.[8]
4. Relevantly, unless the proposal falls within certain exemptions (none of which are relevant here), clause 32.08-10 requires the proposed building not to:
   1. Exceed a specified maximum building height, which is 12 metres in this case due to the slope of the land; and
   2. Contain no more than three storeys at any point (not including a basement).
5. Under the Design and Development Overlay a permit is required to construct a building or construct or carry out works, unless a schedule to the overlay specifically states that a permit is not required.[9] It further provides that a building must be constructed in accordance with any requirements in a schedule to the overlay.
6. In this case, a permit is required to construct the proposed dwelling under Schedule 1 to the Design and Development Overlay, because the land is in a residential zone, and the height of the dwelling exceeds 6 metres above ground level. I will return to the Design and Development Overlay later in these reasons.
7. In light of the submissions of the parties, my reasons will focus on the key issues in dispute regarding whether the height of the building complies with the requirements of the GRZ1, and whether the deletion of a storey from the dwelling is required to achieve an acceptable planning outcome.

DOES THE PROPOSAL COMPLY WITH THE MANDATORY BUILDING HEIGHT REQUIREMENTS IN THE GRZ1?

1. A permit is not required for the use or development of the dwelling under the GRZ1. Nonetheless, all parties addressed the issue of whether the dwelling complies with the mandatory building height requirement in the GRZ1 and I have proceeded to address this question on that basis.
2. In support of its position that a storey in the building should be deleted, the Council submits that the development is prohibited under the GRZ1 because it contains more than three storeys. The Council relies on past Tribunal decisions in support of its position, which is that:
   1. the building has four storeys because the lowest level of the building is a storey (not a basement); and
   2. the proposed dwelling presents to the street as a four storey building by virtue of the garage, porch and entry door, and because the lowest level of the building contains habitable rooms.[10]
3. Council also submits that the construction of a building of four storeys in height would be highly uncharacteristic in the neighbourhood and it would not respect the neighbourhood character of the area.
4. Amongst other things, Ms Balderas submits that the proposal does not conform with the mandatory maximum building height of 11 metres with a maximum three storey height limit within the GRZ1. They say that the basement level is not below ground level when viewed from the street, and it is debatable as to whether it is greater than 1.2 metres above ground level.
5. The remaining respondents also submit that a storey must be deleted from the building because it is a four storey building which is prohibited under the GRZ1. In support of this submission their position (in essence) is that:

1. Based on the natural ground levels prior to the permit application, the plans do not reflect the correct levels as are presently on the land and an investigation and extrapolation are required; 2. The natural ground level of 5.704 where the excavation for the garage is located exposes the full face of the basement and accordingly cannot be characterised as a 'basement' under the Scheme because at least where the garage was located, the basement is at least 3 metres above natural ground level; and

1. The southern elevation is more than 1.2 metres above natural ground level and accordingly, cannot be characterised as a basement and is therefore a storey.
2. In support of these submissions, reference was made to past decisions which have considered the height of a building which is described in the relevant planning control in terms of 'storeys'.[11]
3. Reference was also made to past decisions which have considered the preferred meaning of 'natural ground level', including a decision which adopted the site levels predating the application (Shire of Gisbourne v King & Anor)[12] and a decision adopting the level of the land before it was disturbed by any excavation, levelling or filling for development, including the construction of buildings and works (subject to certain qualifications) (Faversham Mews Pty Ltd v Boroondara CC).[13] That decision was made in circumstances where surveyors were called as witnesses to give evidence regarding site levels. It was a case which turned on its own particular facts, which are distinguishable from those before me.

1. I will deal with the number of storeys in the dwelling first because the submissions of the Council and the respondents focussed on this issue.
2. I have considered the previous Tribunal decisions to which the respondents referred regarding building height controls, including Design and Development Overlay expressed in terms of the number of 'storeys'. When considering the maximum building height requirement for a dwelling in the GRZ1, there is a need to consider the specific words used in the GRZ1. Previous decisions of the Tribunal about the meaning of building height controls expressed in terms of a number of 'storeys' in Design and Development Overlays in different schemes cannot necessarily be relied upon when interpreting the building height requirement in the GRZ1, as some of them are differently worded to the GRZ1.
3. The GRZ1 states that that the dwelling must contain no more than three storeys (excluding a 'basement').The relevant definitions at clause 73.01 of the Scheme are as follows:

Storey That part of a building between floor levels. If there is no floor above, it is the part between the floor level and ceiling. It may include an attic, basement, built over car parking area, and mezzanine.

Basement A storey below ground level, or that projects no more than 1.2 metres above ground level.

Ground level The natural level of a site at any point.

1. One of the main issues raised here is whether the basement level falls within the definition of a 'basement' at clause 73.01 of the Scheme which is below ground level (or projects no more than 1.2 metres above ground level). If the basement is below ground level (or does not project more than 1.2 metres above ground level) it will fall within the definition of a 'basement' in the Scheme and it will be excluded from calculating the number of storeys in the dwelling.
2. If the basement projects more than 1.2 metres above ground level, it will not be a 'basement' as defined in the Scheme and it will not be a storey that is excluded from calculating the number of storeys in the dwelling.
3. 'Ground level' is referred to in the definition of 'basement' in the Scheme, and it is defined at clause 73.01 of the Scheme as 'the natural level of a site at any point'. Previously the Tribunal has said that there is no difference in meaning between 'ground level' and 'natural ground level' and that 'ground level' effectively means natural ground level.[14]
4. It is Mr Sherwell's submission that the requirement is to consider the natural ground levels prior to the permit application (he relied on King's case in this regard). Based on the facts and circumstances of this case, I am of the view that the natural ground level of the land is that which existed immediately before the permit application was made.[15] This is the natural ground level depicted on the plans associated with the permit application and which is shown on the sections submitted in response to the Tribunal's interim orders (the sections).
5. Unlike other provisions in other Schemes,[16] the GRZ1 does not specify the front footpath as the point from which the height of the building is to be assessed. Based on the facts and circumstances of this case, it is my view that the assessment of the relationship between the basement level and the natural ground level line should be based on the natural ground level line within the basement footprint itself, rather than the natural ground level line at some other point on the land outside the basement footprint, such as the location of the existing garage adjoining the front boundary.
6. The sections show that the ceiling of the basement level does not project above the natural ground level line shown at any point within the footprint of the basement (nor does the floor level of the ground floor above for that matter). A section extracted from the plans showing the relationship between the (existing) natural ground level line (shown in pink) and the basement level at that section line is set out in Figure 3 below.

1. If the height of the basement is measured from the natural ground level in the area of the existing garage (as suggested by Mr Sherwell) then the basement would project about 3 metres above the natural ground level shown on the plans in the area of the existing garage.
2. However, the basement will not be constructed in the same location as the existing garage, nor will it be constructed at the front boundary. Due to the slope of the land, the ground level where the land has been excavated to construct the existing garage[17] referred to by Mr Sherwell is much lower than the natural ground level line shown on the sections in the location of the footprint of the new basement.
3. The northern face of the basement will be constructed about 3 metres behind the location of the existing garage, where the natural ground level line (shown in Figure 3 above) is between approximately 3 to 4 metres higher than the floor level of the existing garage.
4. Based on the facts and circumstances of this case, I find that the basement level is below the natural ground level line shown on the sections and the plans within the footprint of the basement, and that the basement level is a 'basement' within the meaning of that term at clause 73.01 of the Scheme.
5. The definition of 'basement' in the Scheme places no restrictions on whether it can be a habitable space, or whether it has an external doorway entry point. Based on the facts and circumstances of this case, I conclude that it does not matter whether the basement is habitable or not; whether the basement is visible from the street or not, or whether it has an external doorway entry on one elevation or not.
6. Based on the facts and circumstances of this case, I conclude that the basement level meets the requirements of the definition of 'basement' at clause 73.01 of the Scheme. It follows that it will be excluded from calculating the number of storeys in the dwelling, and the building does not contain more than three storeys.

1. Although the submissions of the respondents did not focus on the 'building height' element of the restriction, I have addressed it for the sake of completeness. The GRZ1 uses 'building height' in terms of metres as a unit of measurement, as well as a 'storey' as a unit of measurement.
2. The planning controls in a number of the Tribunal decisions to which the parties referred appear to use only 'storeys' (and not metres) as a unit of measurement.[18] Whilst these cases are similar to the height control in the GRZ1, the height control in the GRZ1 is not the same, and so these cases cannot necessarily be relied upon in relation to the GRZ1.
3. 'Building height' is defined at clause 73.01 of the Scheme as 'the vertical distance from natural ground level to the roof or parapet at any point'.
4. When the distance between the (existing) natural ground level line shown on the sections and plans and the roof of the dwelling immediately above that point is measured, it shows that the vertical distance from the natural ground level line to the roof above extends to a maximum building height of approximately 8.37 metres. This measurement is the vertical distance from the natural ground level line where the dwelling will be constructed to the top of the roof above, rather than the vertical distance from the natural ground level line outside the footprint of the dwelling such as where the existing garage is located, or at the front boundary.
5. Based on the facts and circumstances of this case, I find that the 'building height' of the dwelling does not exceed 12 metres and the building contains no more than three storeys at any point (excluding the 'basement'). It follows that the proposed dwelling does not exceed the maximum building height requirement or the maximum number of storeys requirement in the GRZ1.
6. Having addressed the issue raised regarding the building height requirement in the GRZ1, an assessment of the appropriateness of the permit condition under review needs to be undertaken in light of the relevant provisions of the Scheme and the PE Act. I now turn to that assessment.

IS THE DELETION OF A STOREY REQUIRED TO ACHIEVE AN ACCEPTABLE BUILT FORM OUTCOME?

1. At the hearing, the Council submitted that overall, the proposed dwelling achieves the design objectives of DDO1.
2. Amongst other things, the respondents submit as follows:
   1. The construction of a four storey structure that is in excess of six metres in height will set a precedent for future developments of the same height and bulk thereby making the local area 'crowded and unaesthetic'; and
   2. Climate/temperature control systems are not shown on the plans and if they are installed on the roof, then the building could be 7 to 8 metres which will be even more unsightly.
3. The land is affected by Schedule 1, Skyline areas of the Design and Development Overlay (DDO1). The design objectives of DDO1 are:

To protect areas along the Maribyrnong River from visual intrusion caused by the inappropriate siting or appearance of buildings and works.

To encourage development in keeping with the character and appearance of the area.

To protect and enhance the skyline when viewed from the River and its banks.

To encourage development consistent with the objectives of the Lower Maribyrnong River Concept Plan 1984.

To protect and enhance remnant vegetation and sites of biological significance.

1. A permit is required to construct a building or carry out works in a residential zone if their height exceeds 6 metres above ground level. A permit is required because parts of the second floor exceed 6 metres above the natural ground level line shown on the plans. The decision guidelines in DDO1 require consideration of the objectives of the Lower Maribyrnong River Concept Plan 1984[19] and ensuring that the character of the valley is not impaired by unsightly buildings and other structures.
2. It appears to me that there is no part of the basement, ground or first floors which would exceed 6 metres above the natural ground level line shown on the plans and sections (within the building footprint). I am not persuaded that it is possible to impose a permit condition requiring the deletion of any of the basement, ground or first floor levels of the dwelling where they do not exceed 6 metres above natural ground level within the building footprint. This is because the DDO1 controls buildings and works which are above 6 metres above natural ground level.
3. Whilst parts of the second floor are higher than 6 metres above the natural ground level line shown on the plans (within the building footprint), not all of the second floor is higher than 6 metres above this natural ground level line. Arguably, no permit is required for the parts of the second floor that do not exceed 6 metres above the natural ground level.
4. Even if I am wrong about this, given the design and scale of the dwelling and its relationship to other dwellings in the streetscape and the river, I consider that the proposal is acceptable without the deletion of a storey for the reasons discussed below.
5. The land is located some 40 metres from the river and its banks. My inspection of the land confirms what is shown on the photographs tendered at the hearing, being that the dwellings on the south-western side of Hillside Crescent (including those on the corner of Hillside Crescent and Van Ness Avenue) are highly exposed to Hillside Crescent and to some areas near the river. These dwellings are elevated, and mostly present as two to three storey in scale. Some dwellings, such as Nos. 7 and 13 Hillside Crescent are particularly prominent. Whilst there is vegetation present in the front yards of some of these dwellings, it does not typically screen the appearance of the dwellings.
6. The slope of the land and the excavation proposed is such that the roof of the proposed dwelling would not be higher than the height of the ridge of the roof of the existing dwelling on the land. The roof of the proposed dwelling will be lower than that of the adjoining multi storey dwelling at No. 7 Hillside Crescent. The proposed dwelling generally respects the existing front setback pattern on the western side of Hillside Crescent. When viewed from areas along the river, it will present as another multi-level building similar to other buildings in the streetscape such as Nos. 7 and 13 Hillside Crescent.
7. The siting and appearance of the proposed dwelling does not result in an unreasonable intrusion into areas along the river in the context of the appearance of the surrounding streetscape. I consider that in this built form context, the deletion of one storey is not necessary to protect areas along the river from visual intrusion from the appearance of the dwelling. The uppermost level of the building is in keeping with the siting and appearance of other dwellings in the area, where robust multi storey built form exists, including at Nos 7 and 13 Hillside Crescent. This includes the flat roof form which is proposed (at No. 7 Hillside Crescent).
8. The character on the south-western side of Hillside Crescent (and on the south-western side of the intersection of Hillside Crescent with Van Ness Avenue) is one of highly visible, multi-level dwellings presenting quite strongly to the street. The older double storey dwellings are being replaced by dwellings which are which are oriented to take advantage of views across the river. These dwellings are larger in scale, and up to three storeys. This scale of development can be seen at Nos. 7 and 13 Hillside Crescent. In addition, multi-unit development has replaced older dwellings in other parts of Hillside Crescent.
9. The scale, building mass, location and appearance of the proposed dwelling will be consistent with this character. The proposed dwelling will present as a multi-level dwelling, similar to other dwellings on the same side of the street, such as No. 7 Hillside Crescent. As proposed, the dwelling will sit respectfully within the established pattern of development within the streetscape, and it is in keeping with the appearance of the area. It will not appear as a discordant or jarring element in the streetscape or in the area. I see no basis to require the deletion of a level when lower buildings of a smaller scale are not characteristic of buildings on the same side of Hillside Crescent as the land.
10. In my view, the visibility of the dwelling from the river and its banks is in keeping with the existing dwellings on the western side of Hillside Crescent, which are up the three storeys and which take advantage of the sloping topography to maximise views across the river. The proposed dwelling is single storey when viewed from the rear, and it is lower in height than the adjoining dwelling at No. 7 Hillside Crescent, and so would not assume a visual dominance in the skyline.
11. I consider that the proposed dwelling achieves an acceptable outcome in terms of the character of the river valley and the relevant objectives of the Lower Maribyrnong Rover Concept Plan 1984 and other relevant policies because its visibility from areas along the river will be in keeping with many of the existing dwellings in the area, including in Hillside Crescent and Van Ness Avenue. The front setback can accommodate canopy tree planting. The proposed landscaping plans shows four trees (up to 10 metres in height at maturity) within this setback, and trees to be planted along the side setbacks. This planting will enhance the appearance of the dwelling, which will not in my view impair the character of the valley. The permit condition which requires the preparation of a landscaping plan does not refer to the proposed landscaping plan and I will require modification of this condition so that it refers to that plan.
12. I will delete condition 1(a) from the permit.
13. I consider that heating and cooling systems should not be installed on the roof of the dwelling, without the consent of the responsible authority to ensure that the installation of such systems (if any) is in keeping with the appearance of the area. I will require a condition to this effect.

1. For the reasons given above, the decision of the responsible authority is varied. Condition 1(a) is deleted, and new conditions are included on the permit.

[1] The submissions 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] Whilst I have taken into consideration the statement of grounds filed with the Tribunal by Mr Pollard, he stated that he did not intend to participate in the hearing and so he is not a party to the proceeding pursuant to clause 56(6) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

[3] See clauses 15.01-2S (Building design) and 15.01-5S (Neighbourhood character).

[5] Department of Planning and Community Development, 2010.

[6] Noting that the Scheme refers to the character of the Maribyrnong section of the Maribyrnong River as 'a suburban river' at clause 21.05-1 (Landscape values).

[7] Refer to clause 32.08-5 of the Scheme.

[8] Refer to clause 32.08-2 of the Scheme.

[9] Refer to clause 43.02-2 of the Scheme.

[10] The past Tribunal decisions are Poci Bros Pty Ltd v Bayside CC [2003] VCAT 1884, Hill-Murray v Hobsons Bay CC [2007] VCAT 1764, Eastwood v Hobsons Bay CC [2016] VCAT 662, and Benbow v Kingston CC [2016] VCAT 984.

[11] Including Hill-Murray v Hobsons Bay City Council [2007] VCAT 1764 and Poci Bros Pty Ltd v Bayside City Council [2003] VCAT 1884.

[12] [1994] VicRp 23; [1994] 1 VR 364.

[13] [2016] VCAT 1954.

[14] Mrocki v Bayside CC (includes Summary)(Red Dot) [2015] VCAT 1731 at [44] and Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 at [14].

[15] Refer to Benedetti v Moonee Valley CC [2005] at [34] in this regard (noting that the level in that case was found to be 'the level which immediately pre-existed commencement of the subject development').

[16] Such as the Design and Development Overlay referred to in John Hill-Murray v Hobsons Bay City Council [2007] VCAT 1764 and Eastwood v Hobsons Bay CC [2016] VCAT 662

[17] Shown in 'Section 5' on TP14 Rev C dated February 2018 at 5.704.

[18] Including Hill-Murray v Hobsons Bay City Council [2007] VCAT 1764 and Poci Bros Pty Ltd v Bayside City Council [2003] VCAT 1884 and Eastwood v Hobsons Bay CC [2016] VCAT 662.

[19] Referred to at clause 6.0 of Schedule 1 to the DDO.