I Proctor, M & P Huang, P & M McKay, A & T Ongarello, D Charles & A Davine, D & S Van Gerrevink, S Graham & V Q Phung, A McCormack, S Ferguson, B Hartwig & S Grehl, M & R Holmes, M & S Winter, L Ciro,

Xionfeng Development Pty Ltd v Boroondara CC [2014] VCAT 622

1. The decision of the Responsible Authority is affirmed.
2. In permit application PP13/00547 no permit is granted.

Mr C Canavan QC & Ms E Peppler, instructed by Mr P Little of Planning & Property Partners

Mr Canavan & Ms Peppler called the following expert witnesses:

• Mr S McGurn, town planner
• Mr M Sheppard, urban designer
• Mr B Raworth, heritage architect
• Ms C Dunstan, traffic engineer
• Mr J Patrick, landscape architect

• Mr C Czarny, urban designer
• Mr R Beeston, heritage architect

Mr D Vorchheimer of HWL Ebsworth appeared for M & P Huang, A & T Ongarello, D Charles & A Davine, D & S Van Gerrevink, S Graham & V Q Phung, A McCormack, S Ferguson, B Hartwig & S Grehl, M & S Winter

• Mr J Briggs, heritage architect
• Mr R Milner, town planner

Demolition of an existing building and construction of a part three and part four storey building containing 42 dwellings.

Application under Section 79 of the Planning and Environment Act 1987

The site abuts Barkers Road which is a Road Zone Category 1.

Clause 32.01-4: A permit is required to construct two or more dwellings on a lot. A development must meet the requirements of Clause 55.

Clause 43.01-4: A permit is required to demolish or remove a building, construct a building or construct or carry out works.

Clause 52.29: A permit is required to alter access to a road in a Road Zone, Category 1. The views of the relevant road authority are required to be considered before deciding on an application.

The site is located on the south west corner of Barkers Road and Xavier Avenue, Hawthorn. The site comprises two adjoining lots (208 Barkers Road & 2 Xavier Avenue). The site has an area of 1,925m2, with a frontage to Barkers Road of 31.94m, and to Xavier Avenue of 44.30m. Two single storey dwellings and a tennis court occupy the site.

The site is located within a residential context, with dwellings abutting to the west and south, and to the east on the opposite side of Xavier Avenue, and the north, across Barkers Road. A right of way (3.0 m wide) abuts the site along its western boundary.

The Glenferrie Road Major Activity Centre is located to the east at the intersection of Glenferrie Road and Barkers Road.

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in respect of a permit application for the demolition of a dwelling and the construction of an apartment building at 208 Barkers Road & 2 Xavier Avenue, Hawthorn. The Responsible Authority ultimately decided that had it not been for the application for review it would have refused permission for the following reasons:
   1. The demolition of the contributory graded dwelling of 208 Barkers Road is contrary to policy of Clause 22.05 and Clause 43.01 and will affect the heritage significance of the Grace Park and hawthorn Grove Heritage Precinct;
   2. The proposed replacement building will not be respectful to the surrounding heritage fabric and the heritage place;
   3. The proposed building mass and height in combination with insufficient front setbacks to Bakers [sic] Road and Xavier Avenue fails to respond to the character of this location;
   4. The proposal [sic] architectural expression, including the use of mansard roof form, solidness of the ground and first floors is inconsistent with the surrounding neighbourhood character;

5. The proposal provides a lack of landscaping opportunities.

6. The proposal does not adequately address visitor parking.

1. The proposal will unreasonably impact on the existing street tree in Xavier Avenue as a result of the modifications sort [sic] to the existing crossover.

2. Prior to the hearing the applicant circulated amended plans which, in general terms, removed one floor from the original application plans, increased the southern setback of the second floor, and made a number of other consequential and detailed amendments. The amended plans removed six dwellings and three car parking spaces from the original application plans and included three visitor car parking spaces.
3. There was no objection to the substitution of the amended plans and we substituted them at the commencement of the hearing.
4. The substitution of the amended plans did not result in the withdrawal of any objections to the application, and the Council pursued each of its grounds of refusal outlined above.
5. The issues in this case can be categorised as follows:
   • Is demolition of the dwelling at 208 Barkers Road an acceptable outcome?
   • Is the proposed building acceptable having regard to the site's strategic and physical context?
6. In this case, there is a range of policy and contextual considerations that have influenced our decision about the acceptability of this proposal. The review site is affected by a heritage overlay. The proposed demolition of the building and the form and scale of the proposed replacement building and its affect on the significance of the heritage place is the subject of conflicting evidence from three expert heritage witnesses. The site is located at the entrance to a short, residential street that is not affected by a heritage overlay but the proposal's impact on the character of that street is a relevant consideration. The site also has sensitive residential interfaces, and the proposal will have an affect on the amenity of those dwellings. We must decide whether those impacts are acceptable. Notwithstanding these considerations, the site exhibits characteristics that make it suitable for a development incorporating increased densities. In this respect the site is relatively large and has a frontage to a main road, and is proximate to the Glenferrie Road Major Activity Centre [MAC]. State and local policy encourages increased housing densities and housing diversity in an around activity centres, although it is noted that under local policy the site is not identified as a preferred location for higher density development. Local policy encourages development to respect the existing character of the neighbourhood.
7. We are also aware that as part of the introduction of new residential zones across the state of Victoria, the Council has proposed to include the review site in a Neighbourhood Residential Zone, the affect of which would be to limit any development of the site to two dwellings per lot[1].
8. Having considered the evidence and the submissions, and having inspected the site, the surrounding neighbourhood and the neighbouring properties, we have concluded that the demolition of the building is acceptable. We are also satisfied that the development of the site that includes increased residential densities is acceptable having regard to the applicable policy framework and the site's physical context. We are not satisfied however, that the form, scale and bulk of the building is acceptable. Our concerns in this respect relate primarily to the proposal's interface treatment to its neighbours to the south and the west. The impact of the proposal in its present form on the secluded private open spaces of those neighbouring dwellings is unacceptable and the design of the building is not sufficiently responsive to the sensitivity of those spaces. We have concluded that the integration of the relevant planning scheme policies and provisions, the site's physical context and the sensitivity of the site's residential interfaces, calls for a design that incorporates less height, scale and bulk to the rear of the site where the sensitivity of the interfaces is most pronounced.
9. We have considered the possibility of providing the applicant with the opportunity to prepare amended plans to address our concerns. We are not however in a position to provide clear and precise direction as to how the proposal might be reconfigured, to bring it to an acceptable form. Similarly, we are unable to anticipate possible consequential amendments that may be necessary following a redesign of the proposal. Consequently, we have concluded that the appropriate course of action is to affirm the Council's decision[2] and direct that no permit issue.
10. Our reasons are set out below.

Is demolition of the dwelling at 208 Barkers Road an acceptable outcome?

1. Heritage Overlay 152 (HO152) covers the northern two thirds of the review site. In the Schedule to Clause 43.01, the heritage place comprising HO152 is described as 'Grace Park and Hawthorn Grove Precincts, Hawthorn'. No external paint controls, internal alteration controls or tree controls apply.
2. HO152 covers an extensive area of land that is generally bounded by Barkers Road (to the north), the rear of Glenferrie Road commercial properties (to the east), the Belgrave railway line (to the south) and Power Street (to the west). The Grace Park Precinct comprises the curved streets in the southern part of HO152, whereas the Hawthorn Grove Precinct is the northern part. The review site is near the north east corner of the latter. It is curious that 220 & 222 Barkers Road (the two properties to the east of Xavier Avenue) are included in HO152, given they do not have graded heritage buildings. The northern part of 2 Xavier Avenue, which mostly comprises the tennis court, is also included in HO152. All of the other properties in Xavier Avenue are outside the overlay. The land on the northern side of Barkers Road is covered by a different heritage overlay - HO150 (Glenferrie Road Precinct, Kew).

1. Relevant to an application for demolition, the decision guidelines in Clause 43.01-4 include:
   • The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

• Any applicable statement of significance, heritage study and any applicable conservation policy.

1. The relevant heritage study is the Hawthorn Heritage Study 1993 [the Heritage Study],[3] which is a reference document in Clause 22.05-7. It identifies 208 Barkers Road as having a grading of 'E3' (an E place within a Level 3 Streetscape) and 2 Xavier Avenue is not separately identified.[4]
2. In the Heritage Study, places graded E are those that:

...have generally been substantially altered and no longer provide a clear illustration of the theme of development of an area. Because of this they are not considered to make an essential contribution to the historic character of the area, although retention and restoration may still be beneficial.[5]

1. Level 3 Streetscapes are defined as all streetscapes other than those graded Level 1 (State significance) and Level 2 (Metropolitan or Local significance).
2. Demolition of D and E buildings in a Level 3 streetscape is deemed to be 'discretionary'. In contrast, the demolition of D and E buildings is deemed to be 'discretionary and discouraged' where they are in a Level I or 2 Streetscape.
3. Following a review of heritage gradings in 2006, a simplified three tier grading system was adopted. All properties in heritage precincts are shown on the Boroondara Schedule of Gradings Map as significant, contributory or non-contributory. The Map is a reference document to Clause 22.05. It depicts 208 Barkers Road as contributory and that part of 2 Xavier Avenue that is in HO152 as non-contributory. The properties to the west along Barkers Road are either contributory (for example, Nos 204, 194, 190 & 180) or significant (for example, Nos 200, 198, 188, & 178).
4. Statements of significance for heritage precincts are now included in Clause 22.05-5. Of relevance to the issues before us, the reasons why the two precincts included in HO152 are significant include:
   • The place is a concentrated and relatively intact precinct of generally high quality residential buildings of the later Victorian and Federation periods.
   • The northern section - Kinkora Road and Hawthorn Grove - has a large concentration of 1880s housing in tighter patterns that are similarly characteristic of that earlier era, and is relatively intact.
   • The Barkers Road section is more heterogeneous, but does incorporate several notable Federation and Bungalow designs.

1. State and local planning policies call for the conservation of places of heritage significance. An objective of the local Heritage Policy, in clause 22.05-2, is to encourage the retention and conservation of all 'significant' or 'contributory' heritage places. The policy regarding demolition includes:
   • Retain 'significant' or 'contributory' heritage places and not normally allow their total demolition.
   • Consider the following, as appropriate, before determining an application for demolition of 'significant' or 'contributory' heritage places or parts of 'significant' or 'contributory' heritage places:
     • The cultural heritage significance of the heritage place...;
     • Whether the demolition or removal of the entire heritage place or any part of the place will adversely affect cultural heritage significance;
     • Whether the demolition or removal contributes to the long-term conservation of the heritage place; and
     • Whether the heritage place is structurally unsound. The poor condition of the heritage place should not in itself, be a reason for permitting demolition of 'significant' or 'contributory' heritage places. [6]

1. The three heritage experts agree that the dwelling was constructed by 1869, making it a very early house in Boroondara. Although Mr Raworth's contextual history is not as detailed as the history provided by Mr Beeston, they are generally consistent. Amongst other things, they rely on the detailed research of the local historian, Gwen McWilliam.
2. The experts also agree that the dwelling is not a building of the identified periods of significance for the Grace Park and Hawthorn Grove precincts. It pre-dates the late 19th and early 20th century.
3. There is also agreement that the dwelling has been substantially modified. In particular, the interior has been largely altered, the verandah has been removed, the base of the verandah has been replaced with concrete paving, the roof has been reclad with modern tiles with a skylight on the northern slope and the front windows have been altered.
4. The major divergence between the experts is the precise nature of the modifications and, critically, the extent to which they have compromised the heritage significance.
5. In some respects, the differences are minor. For instance, Mr Raworth notes that while the front door may be old, it is perhaps an importation with a 'pseudo heritage look'. Mr Beeston thinks the door is possibly original and is confident that at least its architrave is original. Mr Beeston also thinks that the outline of the front windows may be original. He also suggests that the timber beading to the front façade below the verandah roof 'may be original or based on the original type'.
6. More fundamentally, the experts have divergent views about whether the roof frame, and thus the roof form, is original. Mr Briggs and Mr Beeston conclude that it is likely to be the original hardwood frame, largely because they observed primitive regular circular saw marks. Mr Raworth's evidence is that the roof appears to have been entirely rebuilt to a different form, with the timber roof members dating from the 20th century. He considers that a steeper pitched hipped roof, with a broader transverse, would be more typical of the mid to late 19th century. He notes that it is not uncommon for a roof to be remodelled, especially when the frame is warped due to unseasoned timber.
7. There is also disagreement about the age of the weatherboards. Mr Beeston and Mr Briggs consider that all or most of the boards are likely to be original, although both acknowledge that there is no 'shadow' of the original verandah attachment on the front façade. In contrast, Mr Raworth's evidence is that all weatherboards appear to be non-original. He sees them as too consistent and undamaged. He notes that if they were original boards, one would expect to see signs of the battens that attached asbestos sheeting from 1929 until the late 1960s.
8. Mr Beeston's evidence is that despite the modifications and loss of original fabric, the dwelling is 'instantly recognisable' as a mid-19th century type of Indian bungalow. He describes it as similar to examples on the Victorian Heritage Register[7] and extremely rare in Victoria. He highlights that most of the early houses in Boroondara are grander buildings and suggests that this is a rare example of an early house of the vernacular. Mr Beeston considers that insufficient investigation has occurred and more work needs to be done to clarify the status of the dwelling. Nevertheless, he is 'pretty confident' that the importance of the building has not been fully acknowledged. He argues that there would have been a higher grading in the 1993 Heritage Study if the authors had the benefit of the current knowledge about the dwelling. He is of the view that it is worthy of being graded 'significant' in the precinct, but 'probably' warrants its own heritage overlay.
9. Mr Briggs evidence is that while the dwelling is 'certainly compromised', it contributes to the heritage significance of the area. He describes the building as a colonial form, and rejects the idea of it being an Indian bungalow. He argues that a proper comparative analysis would likely confirm that the dwelling was not properly graded 'E'. In any event, he argues that its status was 'elevated' or 'escalated to contributory' in the new grading system. He acknowledges that it is an anomaly, in that it is not from the periods of primary significance, but argues that that does not mean it is dispensable. On the contrary, it is a very early dwelling and 'the anomalous nature...amplifies its significance rather than diminishing its contributory value or individual significance'. He thinks there is a case for saying that the dwelling is individually significant at the local level, on the basis of its rarity and that it is representative of the vernacular. He argues that the dwelling is also contributory, in that with its neighbours it tells the story of the phases of development.
10. Mr Raworth advances an entirely different view. His evidence is that the building is 'so altered as to be essentially unrecognisable from the original': it is 'so worked over that changes are in ascendancy rather than historic fabric'. Furthermore, he sees the changes as unsympathetic. He commented on the 'edge condition' and the 'peripheral building'. He contends that age is not necessarily determinative of the level of significance. He notes that Hawthorn is quite rich in terms of early buildings, and thinks that there are many other buildings with more architectural interest and integrity. He argues that it has not been established that this building is rare in Boroondara and, if what it looked like is unknown, it cannot be representative of a common type. He concludes that it is of negligible value, making the lowest level of contribution.

1. As the Tribunal is not the planning authority, we would be very reluctant to find that the building has no heritage significance. However, in exercising our discretion with respect to demolition, we can determine how significant the building is. Indeed, the Tribunal has described that task as:

...not only necessary in terms of the structure and provisions of the Scheme but an exercise which we should embark upon as a matter of common sense.[8]

1. In undertaking that exercise, we have the benefit of the expert evidence from three highly experienced heritage professionals. However, the starting point is how the building is identified in the relevant reference documents.
2. Clause 22.05-6 makes it clear that the 'E' grading of the building in the Heritage Study has been superseded by a 'contributory' designation. However, we do not agree with Mr Beeston that the current scheme 'leaves the E grading behind'. The Heritage Study is still a reference document. Neither do we agree with Mr Briggs that the grading of the building as 'contributory' represents an elevation or escalation of its status. We understand that while some properties were reassessed, essentially the new gradings arose from a desktop exercise of translation that was value neutral. As spelt out in clause 22.05-6, 'contributory' heritage places are C, D & E graded places in the Heritage Study. The original 'E' designation, which is the lowest grading that became a 'contributory' place, and how such places were defined, still informs an understanding of the current grading. On the other hand, we agree with all of the experts that the idea of the retention of 'E' graded places as being very much 'discretionary' (that is, demolition is not specifically discouraged) has lapsed with the new gradings and Clause 22.05. There is now a clear policy to retain 'contributory' heritage places and not normally allow their total demolition.
3. The Council and the respondents represented by Mr Vorchheimer essentially seek to upgrade the building, on the basis that its significance has not been fully appreciated. Alternatively, they submit that further investigation of the building is needed and that the onus is on the permit applicant to demonstrate that it does not have a higher significance.
4. Those arguments reflect the view of the Council's Heritage Advisor, who commented that the building 'is interesting and warrants further historical investigation to ascertain if it is worthy of retention' and 'it is believed the house possesses earlier value [than the period of significance of HO152] that has been missed or not investigated fully'.[9]
5. In heritage places that comprise large precincts, there is always the prospect that the values of some properties may not be fully appreciated. The issue is whether that is the case with the building at 208 Barkers Road, in that it was graded 'E' and is not referred to in the Statement of significance.[10]
6. It is not evident that the authors of the Heritage Study undervalued or failed to fully appreciate the significance of the building. They clearly knew of Ms McWilliam's research[11] and contrary to Mr Beeston's suggestion, there is no material to indicate they thought further investigation was necessary and that the building had a potentially higher grading. As Mr Canavan observes, the information available now is the same as available or observable in 1993. Only Mr Beeston advances the idea that the dwelling is a rare Indian bungalow. In the absence of consensus on that, we agree with Mr Raworth that that idea is a red herring.
7. We agree with Mr Canavan that the building is isolated and an outlier, which is neither visually nor functionally linked to the prized values of the precincts comprising HO152. We accept that it is properly identified as contributing to the heritage significance of the precincts, but are not convinced that it should be regarded as individually significant.
8. We do not consider that it is it is necessary to further investigate the dwelling or that the permit applicant has an onus in that regard. The permit applicant does not have any responsibility to investigate whether the dwelling is more important than is currently understood (pursuant to the grading in the reference documents). Rather, the onus is on the Council or respondents to challenge the identified significance. Furthermore, the time to carry out any further investigation has now passed. The experts preparing reports for this hearing have come up with nothing conclusive to challenge the value of the building. It is unacceptable, and not particularly helpful, to simply say that further investigation is needed and that a permit should not issue until that investigation is concluded.
9. In any event, it is unclear what further investigation could be usefully carried out. Mr Briggs refers to the need for a comprehensive comparative analysis. Mr Beeston mentions an investigation of the details of the original building, so that it can be restored. On the other hand, Mr Raworth sees no real point of a detailed comparison, noting that the three experts know about early timber buildings. He also suggests that documentary research is unlikely to yield more information. Mr Raworth acknowledges that further physical inspections would be possible (including under floor inspection, removal of boards and paint scraping), but argues that further investigation of concealed fabric is not highly relevant to the Heritage Overlay values.
10. Reflecting the Heritage Study's definition of 'E' graded places, the dwelling has been 'substantially altered'. The three heritage experts have different opinions about the details of the alterations, particularly the roof form and the age of the weatherboards. In relation to the roof form, we note that Mr Raworth did not inspect the internal roof space (although his assistant did), but only because he was told by Mr Briggs that there was no point in doing so. It is also curious that Mr Beeston and Mr Briggs do not mention their views about the original roof framing, saw marks and the like, in their written statements. There is uncertainty about the roof framing, but we tend to agree with Mr Raworth that the saw marks commented on by Mr Beeston and Mr Briggs are not definitive of age. As Mr Raworth highlights, the saw marks could be associated with timber dressed anytime between 1850 and 1950. As there are no internal controls, it is not the fabric of the framing that is important, but its manifestation in the roof form. As to whether the roof form is original, we are not convinced one way or the other. In relation to the weatherboards, after our inspection of the dwelling we advised the parties that we consider it is unlikely they are original.
11. If the original weatherboards have indeed been replaced, Mr Raworth highlights that there is then no visible original fabric, except the chimney (with a non-original metal flue), an original window on the eastern wall and perhaps the beading under the gutter. While the framing of the façade is likely to be in the location of the original building, it is unlikely that its cladding is original. Furthermore, even if the roof form has been retained, its original cladding is unknown. It could have been slate, iron, tiles, shingles, or some other material.
12. We acknowledge that the building is old, but consider that its loss of integrity fundamentally diminishes the significance. The totality of the building is so altered that its heritage value is very low.
13. The heritage experts agree that they do not know what the original building looked like. Accordingly, we do not agree with the Councils' Heritage Advisor that it 'could be sympathetically restored without too much effort' or Mr Beeston's claim that it is 'eminently restorable'. Any restoration would be based on conjecture, especially regarding the roof form and its cladding, the verandah and the windows.
14. The policy in Clause 22.05-3 is strongly worded against the demolition of contributory buildings, but a policy cannot be a proscription that determines an outcome.[12] The policy exists to guide the exercise of discretion. Arising from the policy, the relevant considerations are the contribution of the building to the significance of the precinct (or in this case, the two precincts of HO152) and whether its demolition will adversely affect cultural heritage significance. As we have formed the view that the building is substantially altered and makes little meaningful contribution to HO152, our finding is that any adverse affect will not be significant. It has not been necessary therefore for us to balance the competing objectives of the planning scheme in arriving at our conclusion that the demolition of the building is an acceptable outcome. Consequently, this is not a case in which justification for the demolition of the building is found outside the heritage overlay and associated heritage policies. In this respect, our findings on demolition can be distinguished from those cases in which support for demolition is dependant on the application of broader policy objectives.[13]

Is the proposed building acceptable having regard to the site's strategic and physical context?

1. Clause 10 of the 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.
2. The weight given to the various competing policies within the scheme will inevitably vary depending on the circumstances applying in each case. In this case, the tensions created by the competing policies and objectives, derive from, on one hand, the site's suitability for increased residential density (these include the site's main road frontage and proximity to a MAC[14]), and alternatively, those factors that act to constrain the site's development capacity (including its residential interfaces, the existence of the heritage overlay, the Council's local policies that encourage developments to respect the existing character of the neighbourhood[15]).
3. An acceptable development outcome for the site that responds to both its strategic and physical context will incorporate a form that is less intrusive in terms of its impact on the amenity of the site's immediate residential neighbours.
4. Recognising the site's potential to contribute to the achievement of policy supporting increased densities close to activity centres, we provide below our findings about the detailed aspects of the proposal. While the proposal has failed in this instance because of the unacceptable residential interface treatment, we record our findings on other aspects of the proposal in the hope that they maybe useful to all parties in the event of a subsequent application.

1. A purpose of the Heritage Overlay is 'To ensure that development does not adversely affect the significance of heritage places'. Relevant decision guidelines include State and local policies, and whether the location, bulk, form or appearance of the proposed building 'will adversely affect the significance of the heritage place' or 'is in keeping with the character and appearance of adjacent buildings and the heritage place'.
2. The local Heritage Policy in Clause 22.05 contains provisions relating to new buildings. A key policy is:

Ensure proposals are respectful of the context of adjacent 'significant' or 'contributory' places, the immediate streetscape and the heritage place as a whole.

1. The review site is not particularly sensitive in a heritage sense. For a number if reasons, the 'context' that the proposal must be respectful of is limited. Only the northern two thirds of the review site is covered by HO152. There is a different heritage overlay on the opposite side of Barkers Road. The two properties to the east of Xavier Avenue, though in HO152, are identified as non-contributory places. The Xavier Avenue streetscape is not particularly sensitive from a heritage point of view. The replacement of the tennis court, on land that is covered by HO152, is not controversial in heritage terms. There is now a high wall and no integration with the street. The main issue is how the proposal will be seen in the context of 204 Barkers Road and, to a lesser extent, the properties further to the west.
2. Mr Beeston and Mr Briggs consider that the proposal fails to accord with the policy guidelines for new buildings in Clause 22.05-3 and will dominate adjoining significant and contributory buildings and the streetscape more broadly. They are particularly concerned about the scale, noting that the overall height would be about 2.6m above the apex of the neighbouring dwelling and the width would be approximately twice that of the neighbouring dwellings to the west. While accepting the front setback of the section of the building closest to 204 Barkers Road, they do not endorse the eastern section that extends closer to the frontage. Mr Beeston is generally supportive of the proposed window proportions and the use of masonry, but sees the use of glazed bricks as out of keeping with standard materials in the precinct. Mr Briggs considers that the architectural detailing would 'exacerbate the monolithic and monumentality of the architectural expression'.
3. Mr Raworth's evidence is that the proposed building responds effectively to the adjoining sites on Barkers Road. In that regard, he considers that the staggered setbacks are responsive to the setbacks of the building to the west, the façade height is respectful and the material of the recessive top floor will make it look like a roof.
4. We do not agree with Mr Beeston and Mr Briggs that the front and side setbacks are too small to allow landscaping consistent with the heritage values of HO152. There is sufficient space for landscaping treatments consistent with the garden character of this section of the precinct. The landscaping would improve on the existing situation and would be superior to the landscaping at 204 Barkers Road. While the Canary Palm is not significant in heritage terms, its retention would be valuable in terms of neighbourhood character.
5. Our finding is that the proposed building would not adversely affect the significance of the heritage place (being HO152) and is suitably respectful of the heritage context, especially 204 Barkers Road. The contributory building at 204 Barkers Road and the significant building at 200 Barkers Road are strong heritage forms that will 'hold their own' and continue to be appreciated for their heritage significance. The laneway will contribute to the sense of visual and physical separation from the heritage buildings to the west. We agree with Mr Raworth that in terms of scale, composition and materials, a building of the type proposed might be out of character in the more intact and consistent parts of HO152, but will sit comfortably in this particular section of HO152, where the context is diverse and the heritage character of the streetscape is weak.

1. The Council and the objectors submit that the proposal adopts an unacceptably dominant and discordant form in its presentation to Xavier Avenue. They submit that the character of Xavier Avenue is strongly influenced by the short length of the street, the generally low scale of dwellings, the established gardens and the street trees. The introduction of a three storey building with a (largely) continuous built form presentation to the side street extending to within 3.0m of the rear boundary at ground and first floor level, is excessive and not respectful of the Xavier Avenue character.
2. With respect to Xavier Avenue, the Council and the objectors rely on the evidence of Mr Milner and Mr Czarny respectively. It is Mr Czarny's evidence that the proposed apartment building typology is inappropriate in this context and that a two storey terrace or townhouse development would be an acceptably respectful infill in terms of its location within Xavier Avenue. Mr Milner's evidence is that the proposed height and bulk of the building diminishes the sense of the garden suburban heritage character. Mr Milner suggests that the proposal would benefit from a side street setback at the front of the site, in the order of 6.0m, rather than the proposed predominant 3.0m setback.
3. The Council and the objectors also submit that the building's height and setbacks to Barkers Road will create a discordant element in that streetscape.
4. We acknowledge that the three storey height, and the general scale of the building given its apartment building typology, would assume a degree of visual prominence and is not typical of the prevailing built form within the immediate neighbourhood. There is however an important strategic context to be considered when assessing a proposal's respect for existing neighbourhood character. As we have commented previously, the site has a main road frontage and it is proximate to the MAC, features that lend support to the site's suitability for a development incorporating increased residential density. In recognition of this, we are satisfied that, with respect to the proposal's presentation to Barkers Road the proposal is acceptable from a neighbourhood character perspective. We have reached this conclusion having regard to the generally diverse built form character of Barkers Road. Our findings are also influenced by our earlier conclusions about the proposal's acceptable response to its heritage context.
5. With respect to the proposal's 'fit' within Xavier Avenue, we are also satisfied that in its current form, it is acceptable. We have reached this conclusion having regard to the following:
   • The site is located on a corner and, as we have concluded above, the site's strategic context supports a development of the site that incorporates increased residential densities and therefore makes a contribution to the achievement of the planning scheme's settlement and housing policies. The site's area and configuration is also relevant. A built form on this site that to some degree exceeds the prevailing scale of development in Xavier Avenue is acceptable and is to be reasonably expected.
   • A double storey medium density housing development currently occupies the south east corner of Barkers Road and Xavier Avenue which also has a side street presentation to Xavier Avenue. We acknowledge that the review site extends deeper into the side street than that existing medium density development.
   • The proposal's presentation to Xavier Avenue includes varied setbacks at ground floor level ranging from 3.0m with insets of about 5.5m, and at the southern end increasing to 6.9m over a distance of about 15.0m. The setbacks at the first floor generally replicate the ground floor setbacks and the second floor is recessed with setbacks ranging from 4.8m to 8.8m.
   • The varied setbacks provide a level of articulation, complemented by the use of balconies, windows and other openings, and materials.
   • Opportunity is available for landscaping along the Xavier Avenue frontage that complements the existing street trees.

1. Our primary concern with the proposal relates to the building's presentation to its two immediate residential neighbours. We have concluded that the impact of the proposal in terms of its height, scale and bulk, is unacceptable because it will assume an overbearing presence on the secluded private open spaces of those two dwellings.
2. With respect to other amenity impacts including overlooking, overshadowing and daylight, these aspects of the proposal are either acceptable or are capable of being made acceptable by minor alterations to the plans, required by permit condition.
3. To the west, a 3.0m right of way separates the review site from its neighbour (204 Barkers Road). The dwelling on the neighbouring site is a single storey, contributory heritage dwelling. The site has a depth that is equivalent to that of the review site. The dwelling on the neighbouring site is set back from Barkers Road about 16.0m and the building footprint of the dwelling is truncated at a point about half way down the length of the site. The balance of the site comprises the dwelling's secluded private open space and includes a swimming pool and deck. The secluded private open space is visually exposed to the review site across the right of way to the east.
4. The proposal's design response to the western interface comprises at the ground floor a building extending to within 1.5m of the rear boundary (including the relocated substation) setback 3.0m from the side boundary. About 50% of that setback comprises terraces for the abutting apartments, leaving about 1.5m within which landscaping is proposed. At the first floor the setback increases to 6.0m to the face of the building. Balconies extend to within 3.0m of the side boundary. At the second floor the setback increases to between 7.8m and 8.4m, with balconies extending into that setback. It is significant that the second floor is setback 8.4m from the rear (southern) boundary which we acknowledge is beneficial in terms of its interface to the west.
5. With respect to the southern interface, we acknowledge that the dwelling at 4 Xavier Avenue presents a side boundary to the review site's rear boundary. The neighbouring dwelling has a footprint that broadly aligns with the first and second floor footprint of the proposal. The secluded private open space of that dwelling is located to the rear, with a swimming pool in the rear, north west corner of the site, directly abutting the review site. The proposal presents to that interface with a setback ranging between 1.5m and 3.0m from the rear boundary at ground level, increasing to 3.5m at first floor and at the second floor the setback is 8.4m.
6. Mr McGurn and Mr Sheppard are content that the proposal will not have unacceptable visual bulk impacts when viewed from either the west or the south. Mr McGurn relies on the combination of the proposal's compliance with standard B17 of Clause 55, the additional separation provided by the right of way, and the opportunity for landscaping along the western and southern boundaries as a means of filtering views of the building. Both Mr McGurn and Mr Sheppard also rely on the site's strategic context and on the level of articulation in the building's façade, to support their evidence that the proposal is acceptable.
7. Mr Milner on the other hand, concludes that the continuous and substantial building bulk extending to the rear of the site, creates a development that has significant bulk impacts on both its immediate neighbours, an impact that is inconsistent with the heritage context and character of both Barkers Road and Xavier Avenue.
8. It is Mr Milner's evidence that when experienced from the secluded private open spaces of both dwellings to the south and west, the proposal is substantial and detrimental.
9. The impact of visual bulk on neighbouring properties is a factor that occupies much of the Tribunal's time in cases where an infill development is proposed, and especially where the development has an interface with its neighbour's secluded private open space.
10. Standards and objectives of Clause 55 that relate directly to visual bulk are in effect limited to Clause 55.04-1 Side and rear setbacks (standard B17) and in some cases, Clause 55.04-2 Walls on boundaries (standard B18). This proposal does not incorporate walls on the western boundary. The objective of Clause 55.04-1 is:

To ensure that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.

1. The applicable standard sets quantifiable setbacks from boundaries, but the consideration of a proposal's bulk impact is as much a contextual and qualitative matter as it is quantitative[16]. The decision guidelines of Clause 55.04-1[17] require consideration of, among other things, a site's context and a proposal's design response to that context. In other words, the consideration of bulk impacts is not reduced to a formula and compliance with standard B17 does not always lead to acceptable bulk impacts.
2. We are not persuaded that the relevant objective is met. The building will assume a dominating visual presence when viewed from the secluded private open spaces to the south and the west. In this neighbourhood context, where three storey buildings extending down the length of the lot adjacent to secluded private open spaces is not a predominant feature, the visual bulk impacts are unacceptable. On this point, we therefore agree with Mr Milner's evidence. As we have described above, the proposal will constitute a significant visual presence when viewed from the neighbouring properties, and we are not persuaded that the area available for landscaping along either of the site's boundaries is sufficient in terms of providing meaningful, filtering of views of the building.
3. Our conclusion that the impacts we have described above are not acceptable is made notwithstanding the site's attributes that make it a suitable site for medium density housing. We acknowledge that because of the site's main road location and its proximity to the MAC, there is policy support for this site to make a contribution to the achievement of settlement and housing affordability policies. However, these form only part of the totality of the applicable policy framework relevant to our consideration. We have concluded that the integration of the relevant planning scheme policies, in particular the fact that the local policies encourage development to respect existing character, and the sensitivity of the site's residential interfaces, calls for a design that incorporates less height, scale and bulk to the rear of the site where the sensitivity of the interfaces is most pronounced.

1. A range of other matters were raised during the hearing. These include matters relating to the impact of the proposal on the existing street trees, the provision of car parking, the impact of increased vehicle movements in Xavier Avenue and at the intersection with Barkers Road, and waste management.
2. We are satisfied that the proposal is acceptable with respect to each of these matters, or could be made acceptable through the inclusion of conditions on a permit to address them. In particular, we agree with Ms Dunstan that waste management is most appropriately conducted on site and given that this can be achieved, a permit condition to give effect to that outcome would have been imposed had we directed that a permit issue. Similarly, conditions about the location of the vehicle cross over and protection of the abutting street tree would have been sufficient to persuade us that the tree would be unlikely to be adversely affected. The proposed provision of car parking, incorporating three visitor parking spaces, is acceptable. The additional vehicle volumes generated by the proposal can be accommodated within the existing street network without any significant adverse affects on the functioning of that network or the amenity of Xavier Avenue[18].

1. It follows from the above reasons that it is our conclusion that the decision of the Responsible Authority should be affirmed and no permit issued.

[1] We were advised that a planning scheme amendment to give effect to the new zones has been submitted to the Minister for Planning for approval under S.20 (4) of the Planning and Environment Act. A related planning scheme amendment intended to identify further areas in which increased residential densities are to be encouraged, has been exhibited. There remains a level of uncertainty about the future progress of these amendments and their application to the review site. Consequently we have not accorded any weight to these amendments in our consideration of this application.

[2] In accordance with S4(2) of the Victorian Civil and Administrative Tribunal Act 1998, a failure to make a decision is deemed to be a decision to refuse the application.

[3] Prepared by a team led by Meredith Gould

[4] Hawthorn Heritage Study 1993, Volume 1B, Appendix B - Schedule A (List of Significant Places)

[7] Such as 'Pontville' (City of Manningham) and 'Habbies Howe Homestead' (Shire of Mitchell)

[8] Harding v Port Phillip CC [2002] VCAT 416 at [26]

[9] Advice of Mark Stephenson, dated 2 September 2013

[10] Only Mr Beeston thinks that the reference in the Statement of significance to 'notable...Bungalow designs' along Barkers Road might be referring to this building. He concedes that the statement should be more specific if it intends to refer to this building.

[11] A number of her publications are cited throughout the study and listed in the Bibliography as secondary sources

[12] SMA Projects v Port Phillip CC [1999] VCAT 1312

[13] Boroondara City Council v 1054 Burke Road Pty Ltd [2014] VCS 127, where the Supreme Court confirmed that the Tribunal is not restricted to considering only policy objectives relevant to heritage

[15] Refer to Clauses 15, 22.05 and 22.07

[16] Lamaro v Hume CC & Anor (Red Dot) [2013] VCAT 957 (13 June 2013) and Pintar v Bayside CC [2013] VCAT 2151

Before deciding on an application, the responsible authority must consider:

 Any relevant neighbourhood character objective, policy or statement set out in this scheme.

 The impact on the amenity of the habitable room windows and secluded private open

 Whether the wall is opposite an existing or simultaneously constructed wall built to the

[18] At the conclusion of the hearing we directed that the application be referred to VicRoads because the application involved the closure of an existing crossover on Barkers Road, which is a road in a Road Zone Category 1. VicRoads did not raise objections to the application subject to the inclusion of conditions on any permit issued.