Webb Management v Port Phillip CC [2002] VCAT 1568

* Mr James Holdsworth, an Architect employed by the City of Port Phillip;

* Mr Trevor Westmore, Architect, urban design and heritage advisor to the City of Port Phillip.

Mrs Gaye McKenzie, Planning Consultant, appeared for the Applicant for Review/Applicant for Permit. Mr Simon Webb was present and clarified some matters with respect to the design of the proposal.

The written submissions of the parties, the reports of Mr Holdsworth and Mr Westmore, together with numerous photographs, policy documents and other material tendered at the hearing, have been retained on the Tribunal's file.

1. This is an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the City of Port Phillip to refuse to grant a permit (in Application No 187/2002) allowing the incorporation of windows along the front of an existing first floor verandah, used for restaurant dining, at 1 Fitzroy Street, St Kilda.

2. The subject site is located on the corner of Fitzroy Street and The Esplanade. It is developed with a two storey building with a balcony that extends over the footpath. There is a large promotional sky sign mounted on the roof of the building.

3. The use has operated since around 1996 as a bar and restaurant known as "One Fitzroy Street"'. There is some kerbside seating under umbrellas. No

4. An original roof covers approximately half the curved balcony. Above it there is stretched and tensioned sail cloth "ceiling". There are glass screens at the ends. Sun blinds are available for use along the front of the balcony.

5. The subject site operates under a planning permit (2020/001/P21) issued for alterations and additions to the existing building for the purposes of a restaurant and bar and dispensation of car parking requirements. The permit allows 178 internal seats and 60 seats on the balcony. The conditions of the permit relating to car parking were amended by consent of the Tribunal on 7 August 2001.

6. Condition 15(a) requires not less than 31 car spaces to be provided through an arrangement satisfactory to the Responsible Authority (pursuant to Condition 16). Mr Scally advised that early this year Condition 16 of the permit had been satisfied by the execution of a Deed of Covenant between the Council and the occupier regarding cash in lieu payments for car parking.

No weather shields or the like shall be used on the balcony area without the further written approval of the Responsible Authority. Should this be proposed, the carparking obligation of this outdoor seating will be reassessed by the Responsible Authority based on its anticipated usage and its impact on carparking in the vicinity.

8. In order to provide weather protection to diners (particularly on days of high winds off the Bay) it is proposed to construct an aluminium frame between the existing columns to support clear glazing along the edge of the first floor balcony. The lower and upper thirds would be safety glass. The middle section of glazing would be sliding, sashless windows (that is, they would able to be opened)

9. Under the Port Phillip Planning Scheme the subject site is zoned Business 1. Pursuant to Clause 34.01-2 a permit is required for buildings and works.

10. Decision guidelines are at Clause 34.01-4. They include:

* The streetscape, including the conservation of buildings, the design of verandahs, access from the street front, protecting active frontages to pedestrian access, the treatment of the fronts and backs of buildings and their appurtenances, illumination of buildings or their immediate spaces and the landscaping of land abutting a road.

11. The proposed buildings and works are to extend over part of the footpath which is a Road Zone 1. Pursuant to Clause 36.04-2 a permit is required for buildings and works associated with a Section 2 use in Clause 36.04-1.

12. The subject site and the footpath are located within Heritage Precinct 5 (St Kilda Hill). The purpose of the Heritage Overlay includes:

* 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.

13. Pursuant to Clause 43.01-1 a permit is required to construct or carry out works. Decision guidelines are at Clause 43.01-5

14. There was discussion at the hearing about whether the site is covered by a Design and Development Overlay (DDO). The Planning Officer's report on the application had assumed it was. However, Mr Scally advised that the DDO only covers private properties, not streets. It appears that only the area where buildings and works are proposed within the title boundary are covered by the DDO. Pursuant to Clause 43.02-2 a permit is required for buildings and works as the relevant schedule (in this case, Schedule 6) does not specifically state that a permit is not required. Decision guidelines are at Clause 43.02-5. Under Schedule 6 (Fitzroy Street, The Esplanade and Acland Street) there are Design objectives at Clause 1.0. They include:

* To protect and enhance the environment of the St Kilda foreshore as an important natural, recreational and tourism asset of metropolitan Melbourne by ensuring that development along The Esplanade and the western end of Fitzroy Street does not overpower and dominate the foreshore.

* To protect and enhance the promenade character of The Esplanade and the boulevard character of Fitzroy Street.

* To encourage retention of those features that enhance the appearance of the St Kilda foreshore and adjacent areas and that give these areas their character and identity.

* To encourage high quality, well-designed new buildings, works, renovations and additions which are compatible with the existing architectural and streetscape character of St Kilda and reinforce its distinct built form.

* To ensure that new development on sites containing or adjacent to a heritage place is of form and scale which is respectful of these heritage places.

15. Clause 65.01 of the Planning Scheme directs the Responsible Authority, and this Tribunal, to consider certain matters, including the matters set out at Section 60 of the Planning and Environment Act 1987, the State and Local Planning Policy Frameworks, the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

16. The purpose of the Business 1 Zone, stated at Clause 34.01-4, is:

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

* To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

17. Relevant sections of the State Planning Policy Framework include Clause 14.02 (Metropolitan development), Clause 15.11 (Heritage), Clause 17.02 (Business), Clause 17.04 (tourism) and Clause 19.03 (Design and built form).

18. Council's Municipal Strategic Statement ("MSS") is at Clause 21. The following provisions were highlighted in submissions and expert reports - Clause 21.05-2 (Foreshore), Clause 21.05-3 (Neighbourhood Character), Clause 21.05-4 (Urban Design) and Clause 21.05-5 (Heritage Conservation), Clause 21.05-6 (Tourism) and Clause 21.05-10 (Retail Land Use).

19. At Clause 22.06 there is an Urban Design Policy for Non-Residential Development and Multi-Unit Residential Development. It includes objectives to encourage new development to :

* Be responsive to the site and its neighbourhood context.

* Integrate with the prevailing neighbourhood character and contribute to the amenity and vitality of the area.

20. The Application for Permit was lodged on 18 February 2002. Following the giving of notice of the application no objections were received.

21. The application was referred internally to the Council's Heritage Advisor, Mr Westmore. He provided the following comments:

The subject building has no heritage values, thus only area values are relevant. In a heritage context of two storey commercial buildings, deck verandahs are a standard feature. They are either built with the building or are retrofits. Thus the concept of a deck verandah is appropriate, but only as a verandah, not as an enclosed built form. The No 1 verandah as it stands is a modern equivalent, although it is approaching enclosure by stealth. Its occupation needs to be limited to fair weather and the degree of enclosure should reflect this criterion. Thus it is already excessive. To enclose it as a whole goes far beyond the traditional acceptance of partial occupation of public space to a complete occupation - an extension of commercial floor area over someone else's land at minimal cost. Thereby it steps outside the limits and potentially becomes a precedent for further examples along the street and elsewhere. This would be intolerable.

It is also problematical in relation to my policy that no verandahs/terraces should be enclosed, whatever the circumstances, even though this example has no heritage or aesthetic impacts.

22. The application was also referred to the Council's Landlord Committee. No response had been received when the Planning Officer reported on the application.

23. As the works are proposed over the footpath, controlled by the Department of Natural Resources and Environment (DNRE), the application was referred to that department. No comment had been received by the time the Planning Officer wrote a report on the application. However, by letter dated 17 June 2002 DNRE advised that it had no objection to the proposal.

24. The application was referred to VicRoads. No response had been received when the Council's delegate considered the application.

25. The planning officer's recommendation that the application be refused was adopted by the Council's delegate. A Notice of Refusal to Grant a Permit was issued on 21 June 2002, with the following grounds:

1. The proposal would have an adverse impact on the heritage character of the streetscape.

2. The proposal would conflict with attributes of the streetscape that contribute to the neighbourhood character.

3. The proposal would encourage an undesirable precedent with respect to enclosure of balconies along Fitzroy Street.

4. The proposal would have an adverse impact on car parking in the vicinity of the subject site.

5. The proposal is contrary to the State and Local Planning Policy framework of the Port Phillip Planning Scheme.

26. The application for review, lodged on 7 August 2002, stated the following grounds:

1. We believe that the proposal will have no adverse impact on the heritage character of the streetscape. The existing building is contemporary in style and other buildings in the street are an eclectic mixture of styles. The proposed alterations are well designed and will contribute in a positive manner to the existing streetscape. The visual integrity of the existing building will be maintained and the proposed windows will add interest and detail to the existing façade. The windows are clear glazed and will maintain a sense of transparency.

2. We do not believe that the proposal will conflict with attributes of the streetscape that contribute to the neighbourhood character. St Kilda is a suburb that accommodates a diversity of building types and styles and we believe this diversity contributes to the vibrancy of the suburb.

3. We do not believe that the proposal would encourage an undesirable precedent as this project should be evaluated in relation to the specific requirements of its site. The existing building and associated balcony is in a very weather exposed location and we believe this warrants the provision to provide appropriate weather protection to the patrons and staff of the restaurant. We also note that there are existing examples of verandahs being enclosed in Fitzroy Street, in other locations within the suburb and in other suburbs along the bay, where adverse weather has an impact.

4. There will be no adverse impact on car parking in the vicinity as the proposal does not seek to increase floor area or table numbers. This was clearly stated in the original town planning application.

5. The proposal is considered to be in conformity with State & Local Planning Policy.

27. Mr Scally advised that at its meeting on 3 July 2002 the Landlord Committee resolved that it did not support the proposal. He also noted that by letter dated 1 July 2002 VicRoads advised that it did not object to the proposed installation of wind protection windows to the existing balcony restaurant.

28. It is convenient to summarise the submissions and evidence and structure my findings based on headings derived from the four grounds of refusal, although in a different order.

29. Before doing that I note that the proposal is not about the use of the balcony. The use (60 seats) has been approved by an earlier permit. As highlighted by Mrs McKenzie, in theory those seats can be occupied at any time and some patrons chose to sit on the balcony despite adverse weather conditions.

30. Although the use of the balcony on the subject site was approved by an earlier permit Mr Holdsworth expressed the view that the Council no longer supports private structures occupying public air space over footpaths or roads. It was his evidence that since Council approved the existing verandah and its dining area "it has become apparent that the idea of 'verandah-top' dining has several undesirable consequences". These include the need to obtain the consent of DNRE, the possibility that the use of the building will change (to a non-food use) and lead to a structure that is "unwanted and even disowned by the property owner or lessee", Council's potential liability for any injury or death, noise and other intrusion affecting the amenity of occupants of first floor rooms of adjacent properties, the undesirable visual impact on the streetscape and architectural character of a commercial area and possible damage and injury from the impact of motor vehicles on the support posts. Mr Holdsworth advised that the existing verandah at the subject site "has become an example that is now cited to illustrate the potentials of these undesirable impacts, and Council now rejects overtures to erect such structures in other locations". Mr Holdsworth was of the view that support of the proposal would have been to endorse these concerns.

31. Mr Scally referred me to the decision of the Tribunal (constituted by Judge Strong and Member Terrill) in Gardner Group Pty Ltd v City of Port Phillip [2001] VCAT 608. In that case the Tribunal was considering whether to retrospectively approve the erection of a balustrade and use the existing canopy for outdoor seating over the street in Acland Street. The Council's refusal was affirmed. The Tribunal concluded:

The Tribunal substantially accepts the opinions expressed by Mr Holdsworth and the submissions made on behalf of the Responsible Authority. We are persuaded that the proposed development cannot be reconciled with controls spelt out in the Planning Scheme. The proposal is out of character with the area and is seen by the Tribunal as an unnecessary intrusion into this unique precinct.

32. The decision in Gardner Group Pty Ltd would appear to support the current position of the Council on above verandah dining. The Council is also entitled to take a "policy position" on such dining on the basis of perceived "undesirable consequences". However, I accept Mrs McKenzie's submission that the reasons put forward by Mr Holdsworth are largely irrelevant to the matters needing to be considered in this application for review. As the use is already approved most of the "undesirable consequences" cited by Mr Holdsworth are not relevant. The basic structure supporting the verandah already exists. DNRE have not objected to the proposal. I also note Mrs McKenzie's submission that the enclosure of the verandah is likely to reduce the prospect of injury as a result of objects or people falling. That was conceded by Mr Holdsworth when cross-examined by Mrs McKenzie.

33. The central issue in this application is whether the structural works (the glazing), rather than the existing and continued use for verandah-top dining, is acceptable in terms of various issues. In that respect Mr Holdsworth's reference to the general visual impact on the streetscape and architectural character of a commercial area is highly relevant to an assessment of the proposed works in this case. It is to that matter I now turn.

34. Mr Scally submitted that Fitzroy Street is characterised by open balconies and verandahs which enhance the street's character as a seaside boulevard. He noted that on this issue the Council relies on the evidence of Mr Holdworth which he summarised as follows:

* The existing balcony is now considered by Council to be undesirable and proposed verandahs in other locations are discouraged by Council.

* The proposal will have adverse impacts on the character and urban form of Fitzroy Street as defined by the road, footpaths and building facades.

* The proposal is inconsistent with the inherent open-air purpose for which balconies are constructed and denies patrons the pleasure of true outdoor dining.

* The proposal would result in the undesirable privatisation of public space and would make restitution of the building to within its title boundary more difficult.

35. In elaborating on those views at the hearing Mr Holdworth stated that he considers that the proposal represents a shift from a lightweight open structure to an enclosed one in structure and appearance. He noted that only one third of the glazed surface would be capable of being opened and suggested that when the weather is not conducive the windows would not be opened. As the building faces west he predicted a high heat load which is likely to require blinds. He also suggested that approval of the proposed glazing may eventually lead to a request for a more permanent roof to allow effective cooling and heating. It was Mr Holdworth's evidence that glass acts as a reflective surface and that at some times it will "read as a solid" surface. Photographs showing the effect of the glass on the ends of the balcony were tendered in this regard. Essentially, Mr Holdsworth was of the view that outdoor dining should be outdoor.

36. Mr Scally submitted that the enclosure of the verandah would end the interaction with the street and public realm. He argued that this would be contrary to the following strategies at Clause 22.05-4 (Urban Design):

* Encourage opportunity for social interaction at interfaces between the public and private realms...

* Encourage active street frontages and outdoor dining areas within the retail centres and mixed use areas which enable social interaction, add vibrant atmosphere and appeal to those places, as well as introduce new contemporary forms and artistic, playful, innovative elements into these streetscapes.

37. Mr Scally submitted that although the Tribunal in Gardner Group Pty Ltd was considering the erection of a balcony (rather than the enclosure of a balcony) its comments are equally applicable to the current application. He argued that the tradition of open verandahs in Fitzroy Street and The Esplanade "has become a hallmark of the foreshore architecture and overall character of St Kilda". He submitted that enclosure of the balcony "would compromise the 'open air' atmosphere of the street and the existing character of the area".

38. In response Mrs McKenzie submitted that the proposed glazing would not detract from the streetscape. She suggested that the vertical elements would match the existing balustrade - essentially, it would be the same as now but just have new components. Mrs McKenzie submitted that the introduction of weather protection would increase the vitality associated with the use of the balcony.

39. Mrs McKenzie submitted that there is a layering of different building styles in St Kilda. She referred me to a beautiful book concerning the history of "The George Hotel" to stress how the area has evolved. Mrs McKenzie submitted that the area owes its character to different styles over time and that the character has evolved largely without planning or heritage controls. She suggested that St Kilda would be a very different place if it had retained Victorian architecture as the dominant style. Mrs McKenzie submitted that balconies, windows and projections add to the diversity. She argued that the enclosure of balconies is just part of the diversity and character; changing over time.

40. With respect to the proposal Mrs McKenzie submitted that the there would still be a "semi-outdoor balcony area" with sail cloth roof and decking floor. She highlighted that existing sunblinds partly obscure the façade and submitted that the extended glazing would not mean any substantial change in the appearance of the site. Mrs McKenzie also submitted that enclosure of the balcony would enhance external views (back from the foreshore and Fitzroy Street) of a well-patronised facility. The occupation of tables would allow "people watching", instead of a view of empty tables and chairs. She submitted that this will contribute to the atmosphere for visitors to the area and result in a net community benefit.

41. Although Mr Holdsworth suggested that the proposed glazing would "deny patrons the pleasure of true outdoor dining" I am not convinced that is a valid reason for rejecting the proposal. I accept Mrs McKenzie's submission that there is a real problem with wind on the balcony. The proprietor has obviously consciously decided that weather protection is more important for the overall "pleasure" of patrons than the existing situation. I also accept Mrs McKenzie's submission that the increased use of the balcony (filled rather than empty tables and chairs) would contribute to the general atmosphere - the sense of activity - at the end of Fitzroy Street.

42. However, those benefits (patron comfort and increased use of the balcony) need to be balanced against other considerations arising from the enclosure of balcony. On balance I consider that the proposed glazing is inappropriate in terms of its impact on the streetscape and opportunities for social interaction.

43. I accept Mr Holdsworth's evidence that it is the current openness of the balcony which leads to a sense of liveliness. The proposed enclosure would be contrary to the Clause 22.95-4 urban design strategies stated earlier. The glazing would reduce the opportunity for "social interaction at interfaces between the public and private realms". It does not represent an encouragement of "active street frontages and outdoor dining areas...which enable social interaction [and] add to the vibrant atmosphere". In contrast to the artworks above verandahs in Acland Street (which Mrs McKenzie alerted me to) the proposal cannot be categorised as a type of "new contemporary forms and artistic, playful, innovative elements" which are to be encouraged. I do not accept Mrs McKenzie's submission that the balcony would maintain the appearance of a "semi-outdoor balcony area". It would essentially have the appearance of a private room, especially when the windows were shut.

44. The extent to which the proposal represents the privatisation or appropriation of public space is more problematic. On that matter I note that Mr Westmore suggested that "there is a clear tradition of the external open verandah deck being the limit of liminal space" (that is, the transitional space at the threshold of the public and private realms). Mr Holdsworth was also of the view that the privatisation of public space should be limited. In this respect he cited the Council's "Practice Note" which defines the limits for balconies of residential buildings. Mr Holdsworth suggested that private operators should not substantially benefit from the occupation of public space. He argued that there is a "principle that dining outdoors in the public street is a feature of good weather and a bonus for traders, not a critical component of the restaurant's viability".

45. On that matter Mrs McKenzie submitted that whether or not the applicant is deriving a benefit from the occupancy of air rights over public land is a private matter (and not a planning matter) that the Council should not be concerning itself with. She highlighted that the Crown (represented by DNRE) has no objection to the occupation of public space in this instance. Mrs McKenzie pointed to the number of private businesses operating along the foreshore, including restaurants, kiosks and yacht clubs. She also questioned whether the issue of what the operator "pays" for the use of public land is relevant as legally the balcony can already be used all year.

46. Mrs McKenzie questioned Mr Holdsworth on his view that outdoor dining should be restricted to times when the weather conditions are appropriate. He responded that Council "at its pleasure" allows the use of the pubic realm "to add to life and vitality". While acknowledging that the Council accepts outdoor dining on footpaths, in plazas and in other public spaces he suggested that it "has to stop somewhere". He cited the prospect of outdoor heaters, screens and other forms of enclosure to maximise use throughout the year and argued that there is a need to "draw the line" concerning the use of public space. Mr Holdsworth saw use where weather conditions are appropriate as such a "line".

47. I think there is merit in Mr Holdsworth's argument. I accept that there needs to be a limit to the use of the public realm (especially footpaths) for private purposes. An appropriate criterion (although perhaps not the only one) for allowing the use of the public realm is where it adds to life and vitality, as suggested by Mr Holdsworth. I have already indicated my findings that the proposed glazing would reduce the opportunities for social interaction at the public/private interface and would not represent outdoor dining which adds to the vibrant atmosphere of the street. To that extent I believe that the proposal is beyond the appropriate limit (or "line") to the private use of public space.

48. I appreciate that all that is being sought now is the glazing of the front of the verandah. Mrs McKenzie advised that there is no current intention to further enclose the space. Nevertheless, I am not convinced that the current proposal is the likely end to the operator's desire to improve the dining experience of patrons. At a minimum it seems logical to have a solid, all-weather roof. I note that Mr Westmore indicated he would not object to such a structure on heritage grounds. Ultimately, protection against rain, sun and cold - as well as winds - could be sought.

49. Mrs McKenzie suggested that I could approve the current proposal and indicate that I considered that the protection from winds represented the acceptable limit of enclosure or protection from the elements. I do not propose to adopt that course. For the reasons stated earlier I consider that the extent of enclosure now proposed is excessive.

50. That finding essentially determines the application for review. However, for the sake of completeness I intend to make some comments on the other matters raised during the hearing.

51. On this matter the Council relied on the evidence of Mr Westmore. In his written submission Mr Scally summarised Mr Westmore's opinions as follows:

* The proposal is contrary to the purposes of the Heritage Overlay 5 in that it will result in adverse impacts on the significance of the precinct by introducing a dominant foreign element of design in the context.

* The proposed works would have a negative impact on the adjacent heritage buildings at 3-27 Fitzroy Street.

* The proposed works would create an undesirable precedent for more widespread adverse change in the precinct and diminish the heritage values in the area.

52. In elaborating on that evidence Mr Westmore conceded that the existing building is "pretty ordinary". Indeed, he considered that the existing verandah appropriately "screens" it. He also indicated less concern than Mr Holdsworth about the use of the balcony. He noted that such a use is an historic or traditional one in the area. His concerns related principally to the design of the proposal. It was his evidence that it would be contrary to local tradition to enclose the verandah. He contrasted the situation in North Queensland where the glazing of the verandahs of historic buildings is traditional.

53. Mr Westmore also cited the "potential for loss of depth". He argued that glazing will affect the layering of the building. From oblique angle there would be a loss of internal visibility. Mr Westmore's referred to the inevitable reflectivity of glass and tendered photos of this effect at a number of residential buildings.

54. It was also Mr Westmore's evidence that there will be significant vantage points from which the glazing will be in front of the view of the neighbouring heritage buildings. On that matter he noted that according to the Heritage Policy Map and definitions at Clause 22.04-2 the subject site is one of the "Non-contributory properties" but buildings at Nos 3-5, 7, 9 & 17-27 Fitzroy Street are "Significant heritage places" and the buildings at Nos 11-15 are "Contributory heritage places".

55. Mr Scally referred me to the recent decision of the Tribunal (constituted by Member Gilfillan) in King v City of Port Phillip (unreported, Application for Review P1068/2002) which concerned the proposed enclosure of the verandah of a dwelling subject to a Heritage Overlay No 6. He noted that the Tribunal accepted the evidence of Mr Westmore and found that the proposed alterations, to a significant heritage place, were (inter alia) not sympathetic and respectful to the heritage place.

56. Mrs McKenzie emphasised that Mr Westmore's original comments on the application included the concluding remark that "even though this example has no heritage or aesthetic impacts". Curiously, that concluding remark had been left off when Mr Westmore's advice was reported to the Council's delegate. Mrs McKenzie submitted that a reading of the full comments of Mr Westmore indicated that he had "formed the view that the use would not have an impact on this heritage area".

57. In the light of Mr Westmore's evidence at the hearing that is apparently not the correct interpretation of his initial assessment. It is certainly not the view he put to the Tribunal, as summarised above. I understand that Mr Westmore's concluding remark derived from the lack of heritage status of the subject site. However, he remains convinced that the proposal will have a detrimental impact on the broader area which is part of the heritage overlay and, in particular, the nearby significant and contributory heritage places.

58. As the subject site has no heritage significance itself I do not consider that the decision in King (which concerned a significant heritage building) is of any direct relevance.

59. On this matter, however, I accept the evidence of Mr Westmore that the proposed structure would not be in keeping with the heritage tradition. An enclosed verandah form is not traditional. To the extent that it would introduce a "dominant foreign element" it would have an adverse impact on the heritage significance of the precinct.

60. Approval of the proposal would not represent a precedent in the strict legal sense. As noted by Mrs McKenzie any applications for similar works at other sites would need to be considered on their merits. It is rare that a permit would be issued simply because of a "precedent". I also note Mrs McKenzie's observation that there may not be any other balconies which need to be protected from winds to the extent that applies in the current case.

61. Nevertheless, I agree with Mr Scally that this is a "landmark site". Approval of an enclosed balcony is likely to at least raise the expectation of other land owners or business proprietors that similar proposals would be approved.

62. On that matter I note that the Tribunal in Gardner Group Pty Ltd concluded:

We are particularly concerned about the precedent which would be set. If 'above the footpath' open air dining was thought to be acceptable in this instance, there are likely to be further applications; it is a relatively inexpensive way to add to restaurant floor space. Future applicants would rely heavily on the grant of this permit - if it were to be granted. If there were to be a proliferation of such 'above the footpath' dining areas in Acland Street, it would quite radically change and adversely alter the character of the street.

63. I accept Mr Scally's submission that although a different proposal was being considered in Gardner Group Pty Ltd the Tribunal's comments are equally applicable to this application.

64. In his evidence Mr Westmore also commented on the potential identified by the Tribunal in Gardner Group Pty Ltd. He considered that gaining additional floor space at a small cost would be "irresistible" to other business operators. He suggested that there could be a "tide of change". While acknowledging that enclosed balconies may be the style of the future Mr Westmore was of the view that until they are part of the design clearly encouraged by local policies they should not be allowed on a one-off or ad-hoc basis.

65. The potential to create a "precedent" is not the determinative factor in this case. However, given my finding that the proposed enclosure of the verandah is inappropriate for streetscape and heritage reasons I am of the view that approval of the current application could create a "precedent" for inappropriate works.

66. Mr Scally submitted that the enclosure of the balcony allows it to be used by patrons all year round and this intensification of the use will potentially increase the amount of car parking demand for the existing restaurant. He argued that Condition 22 of the original permit was included to prohibit the erection of weather shields without the written permission of the Responsible Authority and allowed the Council to revise its car parking requirement if it approved weather shields.

67. Mr Scally highlighted that the application does not include a proposal to cater for the increased car parking demand - by providing additional car parking, increasing the cash in lieu payments or reducing the number of internal seats. He submitted that car parking in the vicinity is already used to capacity and that the enclosure of the balcony will result in further detriment to the existing car parking problem. Mr Scally concluded that if a permit was to issue there would need to be a change to the car parking contribution. He acknowledged that this would be difficult to assess.

68. On this matter Mrs McKenzie highlighted that 60 seats on the balcony are permitted and in theory there use is not restricted. She also noted that no change of floor area is proposed and that that is the link with parking required under the Planning Scheme. Mrs McKenzie conceded that the permit conditions regarding parking are badly worded. The Council should have set a more specific condition. She argued that the requirement cannot and should not be reassessed now.

69. In any event Mrs McKenzie raised questions about the actual impact of the proposal on parking in the area. She noted that parking is less problematic when the weather is not fine and that that is the time when the balcony is likely to be further used. I note, however, that she also highlighted the need to protect the balcony from winds on hot days - when parking in the area would be at a premium.

70. It is apparent that the conditions on the permit under which the use now operates were intended to allow for a reassessment of required car parking if weather shields (and thus more extensive use of the balcony) was to be approved. However, prima facie there is merit in Mrs McKenzie's interpretation of the permit conditions.

71. Had I been of a mind to direct the issue of a permit I would have first sought further submissions from the parties on the power to vary the parking permit conditions and, if so, the appropriateness of doing so in this instance.

72. In summary I have found that the proposed works are inappropriate. While the proposed glazing would add to patron comfort it would be contrary to the design objectives sought to be achieved for this streetscape. The proposed structure would also have an adverse impact on the heritage significance of the area.

73. Accordingly I disallow the Application for Review and make the appropriate order.