VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1013/2022
Permit application no. 5/2021/561/1
	
CATCHWORDS	
Section 82 of Planning and Environment Act 1987; Neighbourhood Residential Zone – Schedule 3; Design and Development Overlay – Schedule 1; roof deck; lift shaft; storeys; exemption from the need for a permit under the DDO1.	
Applicants	Geoffrey Welsh, Suresh Chandra & Others	

Responsible Authority	Bayside City Council	
Respondent	JH New Homes Pty Ltd 	
SUBJECT LAND	1 Bay Street
BRIGHTON  VIC  3186	
hearing type	Preliminary Hearing	
date of hearing	28 June 2023	
DATE OF ORDER	1 December 2023	
citation	Welsh v Bayside CC [2023] VCAT 1327 	
Order
Hearing
1	This application is listed for a further hearing date as detailed below.
The hearing will be at 55 King Street, Melbourne. 
If there is any change to these details, the Tribunal will notify you.

Hearing:	
Date and time	5 March 2024
10.00 am – 4.30 pm	

Conduct	In person – 55 King Street, Melbourne	
Questions of law
2	The questions and answers are as follows:
Question 1:  Where a proposed development on land affected by the Bayside Planning Scheme Design and Development Overlay Schedule 1 (DDO1) requires a planning permit under the DDO1 because it exceeds a building height of two storeys and/or includes a roof deck, does the decision-maker have to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1?
Answer:  Where a proposed development on land affected by the DDO1 of the Scheme requires a planning permit under the DDO1 because it includes a roof deck, the decision-maker is only to have regard to the roof deck and assess this against the relevant decisions guidelines of the DDO and DDO1; the decision maker is not required to have regard to the whole of the building and works of the proposed development.
Where a proposed development on land affected by the DDO1 of the Scheme requires a planning permit under the DDO1 because it exceeds a building height of two storeys, the decision-maker is to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1.
Question 2:  If the relevant permit trigger is the roof deck under DDO1, is the Tribunal’s consideration of the application limited to the roof deck only?
Answer:  Yes.
Question 3:  Does a lift core constitute a storey? If it does, do the current list of exemptions found at the fifth dot point (i.e. stair cases etc) also exempt a lift core?
Answer:  No, the lift shaft does not constitute a storey of the proposed building. 
Question 4:  Does a lift (which includes the shaft and overrun) fall within the meaning of ‘storey’ for the purposes of the 5th bullet point in the ‘permit not required’ section of clause 2.0 of Schedule 1 to Clause 43.02 of the Bayside Planning Scheme?
Answer:  No, the lift shaft does not fall within the meaning of ‘storey’ for the purposes of the 5th exemption; the lift shaft is separate to the measurement of the height of a storey.
Question 5:  If the answer to the above questions is ‘yes’, does the lift depicted on plans TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP12A, TP13, TP14, TP15 and TP16 prepared by Arc Zero Pty Ltd dated 27 March 2023 (the Plans), if measured from floor level to ceiling, exceed 3.5 metres?
Answer:  Given my answer was ‘no’, I do not need to answer this question. 
Question 6:  If the answer to each of the above questions is ‘yes’, is a permit required to construct a building for the development shown on the Plans under Schedule 1 to Clause 43.02 of the Bayside Planning Scheme because of its inclusion of a lift?
Answer:  Given my answer was ‘no’, I do not need to answer this question. However, I have concluded that the proposed building, having a building height of not more than two storeys where the first storey is less than 3.5 metres measured from the floor level to the finished floor level of the floor above and the second storey is less than 3.5 metres measured from the floor level to the ceiling (excluding from the calculation of the second storey the roofed element above the staircase, atrium roof and associated landing/corridor area), does not require a permit for construction under the DDO1.
Question 7:  If the answer to each of the above questions is ‘yes’ what are the parameters of the relevant enquiry before a permit is determined – the impact of the lift or the impact of the building as a whole?
Answer:  Given my answer was ‘no’, I do not need to answer this question. 
Administrative mention
3	The proceeding is adjourned for administrative mention on 19 January 2024. By that date each party must advise the Tribunal in writing:
•	whether any issues have arisen as a consequence of amended plans having been circulated for substitution;
•	whether the matter is resolved or is proceeding to a hearing;
•	if that party is ready for a hearing;
•	that party’s estimate of the duration of the hearing; and
•	whether a further practice day hearing or mention is requested.
No attendance is necessary.

Susan Whitney 
Member

APPEARANCES:		
For Geoffrey Welsh, Suresh Chandra, Jennie Schoenfeld, Greville Edgerton, Alun Kenwood, Sabino Di Fillipo and Christina Longano	Mr Luke English, solicitor, of DSA Law	
For Bayside City Council	Mr Charlie Wurm, solicitor, of Maddocks	
For JH New Homes Pty Ltd	Ms Gabby McMillan, solicitor, of Terralogic Pty Ltd	

reasons
What is this proceeding about?
Previous preliminary hearing 
1	This preliminary hearing followed on from a previous preliminary hearing held on 25 January 2023 and the Tribunal’s order arising from that preliminary hearing, issued on 21 February 2023 (‘February Order’).
2	For convenience, the overview of the facts as described in the February Order are extracted from the February Order, as follows:
1	The permit applicant, JH New Homes Pty Ltd, sought permission from the Bayside City Council (‘Council’) to construct a dwelling on the land at 1 Bay Street, Brighton (‘Land’). The Council issued a Notice of Decision to Grant a Permit on 12 July 2022 (‘NOD’).
2	The Land is located in the Neighbourhood Residential Zone – Schedule 3 (‘NRZ3’) and is subject to the Design and Development Overlay – Schedule 1 (‘DDO1’) and the Development Contributions Plan Overlay – Schedule 1 (‘DCPO1’) of the Bayside Planning Scheme (‘Scheme’).
3	The Land adjoins the Bay Trail at its western end, has an area of 1,933m2 and contains an existing building.
4	The existing dwelling is partly two storey and partly three storey and is of 1920’s construction with a pitched roof reaching approximately 10.6 metres, which equates to RL 14.79.  The number of storeys of the existing dwelling was the subject of findings by the Tribunal in the previous case of Kolliner v Bayside CC (‘Kolliner’) where it was said, among other things:
We are unequivocal in forming the view that the existing dwelling has a three storey section.
5	The Land, the existing building and its context are shown below.

3	The extracts of the plans before the Tribunal in the February Order are extracted from the February Order, as follows:
7	The proposed development contains:
a.	a lower level containing car parking spaces and habitable areas;
b.	a ground floor containing a kitchen and dining area, lounge area and other living spaces and a large central atrium with dual staircase entered off four lobbies;
c.	the first floor containing six bedrooms surrounding the central atrium void; 
d.	a roof deck containing two pools and two spas and access structures as well as a roof over the central atrium void. 
8	Extracts of the advertised plans are below.

Lower level

Ground floor

First floor

Roof deck
9	The following elevations are taken from the updated version of the advertised plans that were provided to the Tribunal on 13 January 2023 and include, among other things, the RL 14.40 measurement that is to the top of the lift overrun for the building, as shown below.  

South elevation – Bay Street

West elevation – Bay Walking Trail
4	In the February Order, the Tribunal answered certain questions posed at that time. Those questions and answers were as follows:
a.	Does the development shown in plans TP01, TP05, TP06, TP07, TP08, TP09, TP10, TP11 and TP12 prepared by Arc Zero Pty Ltd dated 27 January 2022 comprise two dwellings?
No, the development comprises one dwelling.
b.	What are the relevant permit triggers for the development shown on plans TP01, TP05, TP06, TP07, TP08, TP09, TP10, TP11 and TP12 prepared by Arc Zero Pty Ltd dated 27 January 2022?
Construction of a roof deck pursuant to the DDO1; and
Construction of a building where each storey is not less than 3.5 metres from the floor level to the finished floor level of the floor above pursuant to the DDO1
c.	Is the maximum building height of the development prohibited by Clause 32.09-10 of the Neighbourhood Residential Zone in the Bayside Planning Scheme?
No, the maximum building height of the development is not prohibited by clause 32.09-10 of the NRZ3. 
I find that the proposed building height is both less than 10 metres and less than the building height of the existing building, meaning that the proposed development can rely on exemptions contained in clause 32.09-10 of the NRZ3 with respect to building height. 
I find that the proposed building will comprise two storeys plus a basement and a roof deck with covered elements. In any event, to the extent necessary, the proposed development can rely on the exemption contained in clause 32.09-10 of the NRZ3 that the proposed development can have the same number of storeys as the existing building, which is three.
Actions after the first preliminary hearing
5	Following the February Order, amended plans dated 27 March 2023 were prepared by the permit applicant and circulated to all parties. The amended plans were substituted by the Tribunal in its orders dated 31 May 2023.
6	The application was to then proceed to a merits hearing to be held on 26 May 2023.
7	Prior to the merits hearing, the Council and the applicants for review (‘applicants’) raised concerns about permit triggers following the substitution of the amended plans and the scope of the Tribunal’s consideration.
8	The merits hearing was adjourned and this second preliminary hearing was listed. In orders dated 31 May 2023, the Tribunal asked parties to submit any questions of law that they sought to have determined.
9	The parties circulated their questions of law on 5 June 2023. Submissions were then circulated prior to the second preliminary hearing.
Purpose of second preliminary hearing
10	The questions of law from each party that were posed at the second preliminary hearing are set out below.
11	From the applicants:
Where a proposed development on land affected by the Bayside Planning Scheme Design and Development Overlay Schedule 1 (DDO1) requires a planning permit under the DDO1 because it exceeds a building height of two storeys and/or includes a roof deck, does the decision-maker have to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1?
12	From the Council:
a)	Does a lift (which includes the shaft and overrun) fall within the meaning of ‘storey’ for the purposes of the 5th bullet point in the ‘permit not required’ section of clause 2.0 of Schedule 1 to Clause 43.02 of the Bayside Planning Scheme?
b)	If the answer to the above questions is ‘yes’, does the lift depicted on plans TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP12A, TP13, TP14, TP15 and TP16 prepared by Arc Zero Pty Ltd dated 27 March 2023 (the Plans), if measured from floor level to ceiling, exceed 3.5 metres?
c)	If the answer to each of the above questions is ‘yes’, is a permit required to construct a building for the development shown on the Plans under Schedule 1 to Clause 43.02 of the Bayside Planning Scheme because of its inclusion of a lift?
d)	If the answer to each of the above questions is ‘yes’ what are the parameters of the relevant enquiry before a permit is determined – the impact of the lift or the impact of the building as a whole?
13	From the permit applicant:
If the relevant permit trigger is the roof deck under DDO1, is the Tribunal’s consideration of the application limited to the roof deck only?
Does a lift core constitute a storey? If it does, do the current list of exemptions found at the fifth dot point (i.e. stair cases etc) also exempt a lift core?
14	The permit applicant has stated that it generally agrees with the Council’s framing of the questions of law and so has used those as a basis for its submissions.
Provisions of the scheme 
15	The February Order set out the provisions of the Scheme that were applicable to the questions then before the Tribunal.  
16	Given the focus of the present questions of law are on the DDO1, I only extract provisions of the head clause of the DDO and of Schedule 1 to the DDO in this decision.
17	Clause 43.02-2 of the DDO provides that a permit is required to construct a building unless a schedule specifically states that a permit is not required, as shown in the extract below:

18	Clause 2.0 to the DDO identifies when a permit is not required, as follows:

19	The reference in some of the questions of law to the 5th exemption / the 5th dot point (‘5th exemption’) is to the following exemption contained in clause 2.0 (set out above):
                
                …
                
20	Clause 2 of Schedule 1 to the DDO then sets out the permit requirements, as follows:

                       
Questions of law
21	The questions of law essentially deal with two aspects of the proposed development as they are regulated by the DDO1:
a.	the roof deck; and
b.	the lift shaft/lift core and associated lift overrun (‘lift shaft’).
22	In short, the questions of law ask:
a.	with respect to the roof deck, if the relevant permit trigger under the DDO1 is the roof deck only, is the Tribunal’s ambit of discretion confined to the roof deck or does it extend to consideration of the whole building?
b.	with respect to the lift shaft:
i.	does a lift shaft constitute a storey?
ii.	if so, do the current list of exemptions at the 5th dot point also exempt a lift shaft?
iii.	If a lift shaft constitutes a storey, does the lift shaft depicted on plans TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP12A, TP13, TP14, TP15 and TP16 prepared by Arc Zero Pty Ltd dated 27 March 2023, if measured from floor level to ceiling, exceed 3.5 metres?
iv.	If so, is a permit required to construct a building for the development shown on the plans under Schedule 1 to Clause 43.02 of the Scheme because of its inclusion of the lift shaft?
v.	If the answer to each of the above questions is ‘yes’, is the Tribunal’s ambit of discretion confined to the impact of the lift shaft or does it extend to consideration of the whole building?
23	I will address the questions in two sections, dealing first with the roof deck and then with the lift shaft.
Roof deck
Question 1:  Where a proposed development on land affected by the Bayside Planning Scheme Design and Development Overlay Schedule 1 (DDO1) requires a planning permit under the DDO1 because it exceeds a building height of two storeys and/or includes a roof deck, does the decision-maker have to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1?
Question 2:  If the relevant permit trigger is the roof deck under DDO1, is the Tribunal’s consideration of the application limited to the roof deck only?
Submissions
24	The applicants submit that it cannot be that a permit is only required for the roof deck because it is the DDO1 that states that ‘a permit is required to construct a roof deck above the second storey of a building’ and the applicants assert that the DDO1 cannot provide circumstances in which a permit is required; it cannot create a permit trigger. 
25	The applicants submit that if the DDO1 did create a new planning control, the words following the asterisk would have no work to do.
26	The applicants submit that a permit is not required for the roof deck but that a permit is required for the building because the building includes a roof deck above a second storey.
27	The applicants submit that the Tribunal must consider the whole of the building, as it is the whole of the building that requires a permit.
28	The applicants distinguish Wilson v Bayside CC & Ors on the basis that it appeared to be common ground between the parties that a planning permit was not required to construct the dwelling accompanying the roof deck application; here, it is not common ground between the parties.
29	The applicants rely on the Tribunal’s decision in Zumpano v Banyule CC (‘Zumpano 2002’), where the Tribunal found in relation to the Significant Landscape Overlay – Schedule 1 that once the specified height was exceeded, a permit was required for the whole of the building, not merely for the parts above the trigger heights. The Tribunal reasoned that such an approach gave the decision guidelines a role or meaning in the assessment of such an application.
30	The applicants referred to the decision of the Supreme Court of Victoria in the appeal of Zumpano 2002, being Zumpano v Banyule CC (‘Zumpano 2003’). In Zumpano 2003, the Court did not accept submissions that asserted that in the context of the relevant overlay, all that needed to be considered was the effect of the building in so far as it exceeded the trigger heights. Rather, the Court found that the particular overlay ‘draws a line, defined by the trigger heights… between a dwelling which requires a permit and a dwelling which does not require a permit; no more and no less’. 
31	The applicants also rely on the Tribunal decision in Olevski v Mornington Peninsula SC (‘Olevski’), a case dealing with an application for secondary consent where the Tribunal found that once a permit is required and a change is proposed under its terms, any changes to the proposal as a whole warrant assessment under the relevant objectives and decision guidelines of the Design and Development Overlay – Schedule 2.
32	The applicants contend that in this case the line is drawn at buildings which have roof decks above the second storey, and that at that point a permit is required to construct the building and the whole building must be considered against the relevant decision guidelines.
33	The Council submits that the DDO1 does not exceed the power conferred by clause 43.02 of the Scheme; rather, it sets out the circumstances where one is not required.
34	The Council refers to clause 43.02-2 of the Scheme stating that a permit is required to construct a building unless a schedule specifically states that one is not required, and then clause 2.0 of the DDO1 stating that a permit is not required to construct a building with a building height of not more than two storeys, so long as it meets the proviso that follows. The asterisk then provides that the 5th exemption does not include a roof deck located above the second storey of a building. As such, the Council submits that the DDO1 does not exceed the power conferred by clause 43.02 of the Scheme; rather, it sets out the circumstances where a permit is not required.
35	The Council submits that if the proposal meets the 5th exemption, a permit is not required to construct a building with a building height of two storeys. However a permit is required, by virtue of the asterisk, to construct a roof deck. If the only permit trigger is the roof deck, the ambit of the Tribunal’s consideration would be confined to the roof deck.
36	The permit applicant submits that a permit is only required for the roof deck under the DDO1. The permit applicant submits that the Tribunal’s consideration of the application is limited to the impact of the roof deck, as it is only the roof deck that triggers the need for a permit. 
37	The permit applicant submits that Schedule 1 does not state when a permit is required, rather it states that a permit is not required for a two storey building and then carves out a ‘clarification’, stating that a roof deck above two storeys would continue to require a permit. The permit applicant submits that this is a logical carve-out as a roof deck is not a storey or part of the building height, as defined in the Scheme, but the roof deck is still a building and so continues to be caught by the parent provision. Further, roof decks are a form of building and works that could offend the design objectives of the DDO1 and therefore need to be assessed.
38	The permit applicant refers to the particular wording of this control as distinguishing it from other Tribunal decisions in which the whole of a building needed to be considered. The permit applicant distinguished between the wording of the DDO1 and, for instance, the Significant Landscape Overlay – Schedule 1 considered in Zumpano 2002 and Zumpano 2003 or the Design and Development Overlay – Schedule 2 considered in Olevski.
Tribunal’s answer
39	The answer to these questions lies in the particular wording of the DDO1. For this reason, care is to be exercised when relying on what has been held in other cases, lest the wording of the provisions in issue be different.
40	Clause 43.02-2 of the head clause of the DDO states (relevantly) that:

41	The effect of clause 43.02-2 is that a permit is required under the DDO to construct a building or construct or carry out works however this requirement does not apply if a schedule specifically states that a permit is not required.
42	To understand whether Schedule 1 to the DDO specifically states that a permit is not required, we look to the wording of Schedule 1 to the DDO.
43	Clause 2.0 of Schedule 1 to the DDO states (relevantly) that a permit is not required in the following circumstance:
       
		…
        
		…
       
44	The effect of Schedule 1 to the DDO is that a permit is not required under the DDO1 to construct a building or construct or carry out works for:
a building with a building height of not more than 2 storeys* provided that each storey is less than 3.5m measured from the floor level to the finished floor level of the floor above or if there is no floor above, to the ceiling (excluding staircases, architectural voids and light wells),
however ‘these exemptions do not include a roof deck located above the second storey of a building’.
45	Schedule 1 to the DDO then goes on to deal with permit requirements (relevantly) as follows:

…

      
…
      
46	When clause 2.0 of Schedule 1 to the DDO is read in its entirety, along with the remainder of Schedule 1 and the head clause, a holistic interpretation leads to the conclusion that it is the roof deck that is not exempted from the need to obtain a planning permit under the DDO1, even though a two‑storey building is exempt (so long as the specified provisos are met). I say this because:
a.	the head clause of the DDO establishes that a permit is required under the DDO to construct a building or construct or carry out works but flags that this will not be the case if a schedule specifically states that a permit is not required;
b.	Schedule 1 to the DDO contains seven exemptions from the need to obtain a permit. The 5th exemption specifically states that a permit is not required to construct a two-storey building (so long as the specified provisos are met) however the asterisk refers to the fact that this exemption does not include ‘a roof deck located above the second storey of a building’. That is, the exemption from the need to obtain a planning permit that applies to the construction of a two-storey building (that meets the specified provisos) does not extend to or include the construction of a roof deck above the second storey of a building;
c.	Schedule 1 to the DDO then goes on to provide details about ‘permit requirements’:
i.	first specifying certain requirements for the construction of buildings and works;
ii.	then stating that ‘a permit is required to construct a roof deck above the second storey of a building’;
iii.	then stating the requirements for a roof deck;
iv.	then clarifying that ‘for the purposes of this schedule a ‘roof deck’ means an area designed and used as private open space that is located above the upper storey of a building’; 
v.	then specifying what is meant by an attic for the purposes of the schedule;
vi.	then specifying what is meant by a dormer window for the purposes of the schedule; and
vii.	lastly, stating that a permit cannot be granted to construct a building or construct or carry out works which are not in accordance with the above requirements except that a permit may be granted to replace a building or works existing before 24 February 2000 which does not meet the height requirements of this clause; and
d.	there are specific decision guidelines in clause 6.0 of Schedule 1 that ‘apply to an application to construct a roof deck’, which are in addition to the decision guidelines that ‘apply to an application for a permit under Clause 43.02’. These are as follows:

47	When these various parts of the DDO and the DDO1 are read together, it leads to the conclusion that the intention of the DDO1 was to exempt the construction of a two-storey building (that meets the specified provisos) from the need to obtain a planning permit but the intention was not to exempt the construction of a roof deck constructed above the second storey of a building from the need for a permit under the DDO1. Rather, the construction of a roof deck above the second storey of a building will require a planning permit under the DDO1, the assessment of which will need to take into account the specific decision guidelines that ‘apply to an application to construct a roof deck’.
48	This interpretation aligns with the design objectives of Schedule 1 to the DDO that go the effects of built form height on the foreshore area, including the desire to protect the amenity and privacy of residential properties. That is, the Scheme envisages that development of a certain height is acceptable and does not need assessment under the DDO1 however once a roof deck is to be added above the second storey of a building, this potentially adds to the impact of built form in the DDO1 area, including potential amenity and privacy impacts to other residential properties. Accordingly, at that point the DDO1 requires assessment of the roof deck proposal to ascertain whether it is an acceptable outcome under the DDO1.
49	So in summary:
a.	the head clause contains a permit requirement for the construction of a building but allows for the possibility of exemptions from the need for a permit being set out in a schedule;
b.	Schedule 1 contains exemptions from the need for a permit, one of which is the construction of a two-storey building so long as the specified provisos are met;
c.	Schedule 1 excludes from those exemptions the construction of a roof deck located above the second storey of a building, meaning that a permit is required for the construction of a roof deck located above the second storey of a building; and
d.	Schedule 1 reiterates that a permit is required to construct a roof deck above the second storey of a building, specifies details about the required design, construction and set back of such a roof deck and has particular decision guidelines that ‘apply to an application to construct a roof deck’.
50	When the operation of the head clause and Schedule 1 is stepped through in this way, it is not the case that Schedule 1 ‘rises above the source’ of the stream that is the head clause. Rather, it is clear that Schedule 1 is simply turning on and off the option made available that there might be exemptions from the need for a permit. That is, it is clear that the head clause contains the broad permit requirement for the construction of a building but envisages that there might be instances where a permit is not required for the construction of a building. Schedule 1 then takes up this option for exclusion by specifying seven exemptions from the need for a permit but in doing so excludes from those exemptions the construction of a roof deck located above the second storey of a building. Schedule 1 then goes on to specify the required design, construction and set back of such a roof deck, along with applicable decision guidelines.
51	As is clear from the 5th exemption, where a proposed two-storey building complies with the specified provisos in the DDO1, its construction is exempt from the need to obtain a planning permit under the DDO1, meaning that its construction is not assessed under the DDO1.
52	Where a two-storey building complies with the specified provisos in the DDO1, but a roof deck is proposed to be located above the second storey, it is only the construction of the roof deck that requires a planning permit; it is not the case that the whole of the two‑storey building along with the roof deck then requires a planning permit. 
53	I say this having regard to the specific wording in Schedule 1, as discussed above. 
54	I accept that there might be other controls where the wording of the provision in issue leads to the conclusion that where a permit is triggered for, for instance, a roof deck, the whole of the building then requires a planning permit. However, based on the wording of the DDO1 that is before me, that is not the case here.
55	The specific wording of the DDO1 in the present case can be contrasted with the wording of the relevant provision in Zumpano 2003 and for this reason I distinguish this case from what the Court was dealing with in Zumpano 2003.  
56	This situation can be contrasted with the secondary consent application that was before the Tribunal in Olevski and also the wording of the relevant provision in that case. For this reason, I distinguish what is before me from what was before the Tribunal in Olevski.
57	For the foregoing reasons, in circumstances where a permit is required for a roof deck pursuant to the DDO1, I find that the Tribunal’s consideration of the application is limited to the roof deck only, rather than the whole building.
58	Question 1 asks what is before a decision-maker where a permit is required under the DDO1 because a proposed development exceeds a building height of two storeys. Based on the applicants’ submissions, I did not understand this aspect of question 1 to overlap with the questions below dealing with the lift shaft.
59	My understanding based on the amended plans that have now been substituted for the application plans is that each storey now measures less than 3.5 metres from the floor level to the finished floor level of the floor above or, in the case of the second storey, to the ceiling. I understand that the building height now complies with the 5th exemption, such that the construction of the building in and of itself does not require a planning permit under the DDO1, notwithstanding that the roof deck does require a planning permit under the DDO1.
60	To this extent, it appear that question 1 is seeking an answer to a question that does not arise on the facts.
61	I also note that I previously addressed the question of the number of storeys of the development that was before me in the first preliminary hearing, in the February Order, concluding that the proposed building contains two storeys along with a basement and a roof deck with associated covered roof element.
62	Notwithstanding the above, putting aside the matter of the roof deck permission which I have already addressed, it is my view that the wording of the DDO and the DDO1 means that if a building exceeds two storeys or does not meet the specified provisos of the 5th exemption, then a permit is required for the building as a whole and assessment is to be undertaken of the building as a whole. This is different to the approach to be taken to assessment of the roof deck due to the different way in which the roof deck is dealt with in the wording of the DDO and the DDO1, as I have set out above.
63	In summary, the answers to these questions are as follows:
Question 1:  Where a proposed development on land affected by the Bayside Planning Scheme Design and Development Overlay Schedule 1 (DDO1) requires a planning permit under the DDO1 because it exceeds a building height of two storeys and/or includes a roof deck, does the decision-maker have to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1?
Answer: 
Where a proposed development on land affected by the DDO1 of the Scheme requires a planning permit under the DDO1 because it includes a roof deck, the decision-maker is only to have regard to the roof deck and assess this against the relevant decisions guidelines of the DDO and DDO1; the decision maker is not required to have regard to the whole of the building and works of the proposed development.
Where a proposed development on land affected by the DDO1 of the Scheme requires a planning permit under the DDO1 because it exceeds a building height of two storeys, the decision-maker is to have regard to the whole of the buildings and works and assess the whole of the building and works against the relevant decisions guidelines of the DDO and DDO1.
Question 2:  If the relevant permit trigger is the roof deck under DDO1, is the Tribunal’s consideration of the application limited to the roof deck only?
Answer:
Yes.
Lift shaft
Question 3:  Does a lift core constitute a storey? If it does, do the current list of exemptions found at the fifth dot point (i.e. stair cases etc) also exempt a lift core?
Question 4:  Does a lift (which includes the shaft and overrun) fall within the meaning of ‘storey’ for the purposes of the 5th bullet point in the ‘permit not required’ section of clause 2.0 of Schedule 1 to Clause 43.02 of the Bayside Planning Scheme?
Question 5:  If the answer to the above questions is ‘yes’, does the lift depicted on plans TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP12A, TP13, TP14, TP15 and TP16 prepared by Arc Zero Pty Ltd dated 27 March 2023 (the Plans), if measured from floor level to ceiling, exceed 3.5 metres?
Question 6:  If the answer to each of the above questions is ‘yes’, is a permit required to construct a building for the development shown on the Plans under Schedule 1 to Clause 43.02 of the Bayside Planning Scheme because of its inclusion of a lift?
Question 7:  If the answer to each of the above questions is ‘yes’ what are the parameters of the relevant enquiry before a permit is determined – the impact of the lift or the impact of the building as a whole?
Submissions
64	The applicants made no written submissions in relation to the questions posed by the Council. 
65	The applicants verbally submitted that the list of exclusions in the 5th exemption in clause 2.0 of Schedule 1 to the DDO is confined and does not invite consideration of other things, such as lift shafts.  
66	The Council submits that no party had asked the Tribunal in the first preliminary hearing whether the lift shaft constituted a storey for the purposes of the DDO1. 
67	The Council submits that the lift shaft has a floor and a ceiling.
68	The Council submits that the lift does not constitute a third storey. 
69	However, the Council submits that the lift shaft forms part of and shares the floor with a storey of the proposed dwelling and which exceeds the limit on the height of a storey, thus triggering a permit requirement.
70	The Council refers to the Tribunal decision in Park v Bayside CC (‘Park’) in support of the stair bulkhead (in that case) forming part of and sharing the floor with the first floor below, giving the first floor, in the area of the stairway, a ceiling height of greater than 3.5 metres.
71	The Council submits that in the present case, where the lift shaft is connected to the floors below, the floor to ceiling height of the storey exceeds 3.5 metres.
72	The Council submits that the lift shaft is not any of the referenced exemptions in clause 2.0, and that this is not an inclusive list. The Council submits that the 5th exemption should not be read to exclude lift shafts given the list of exemptions is a closed list and lift shafts, unlike ‘staircases, architectural voids and light wells’ are not expressly excluded from the provision.
73	The Council submits that the ambit of consideration is the building overall and it is a matter for the merits as to the weight to be given to other aspects of design other than the lift shaft. The Council states that it is the lift shaft that triggers the permit requirement under the DDO1, and that if there was no lift shaft present then the height of the storey would not exceed 3.5 metres.
74	The permit applicant submits that the lift shaft is not a storey. However, even if the Tribunal determined that the lift shaft is a storey (noting that the Tribunal has previously determined that the lift overrun is not a storey), the lift shaft would fall within the 5th exemption. 
75	The permit applicant bases these submissions on a purposive and practical approach to the interpretation of the DDO1 and the list of exclusions in the 5th exemption.
76	The permit applicant submits that the list of exclusions is not closed and could be expanded to include lift shafts. The permit applicant’s reasons for this include that an interpretation that exempts a lift shaft would be consistent with the purpose of the DDO1 which is to limit the height (or number of storeys) of buildings on the foreshore; to control the building height and bulk of buildings in the coastal area of Bayside. 
77	According to the permit applicant, it is not the purpose of the DDO1 to limit the height of service structures or purely functional parts of a building. The permit applicant submits that the permit triggers, permit exemptions, requirements and decision guidelines are all structured to give effect to the purpose of the DDO1.
78	The permit applicant reasons that whilst the 5th exemption provides that a two‑storey building is an acceptable design outcome so long as specified provisos are met, the DDO1 anticipates that there are other buildings or works, such as a roof deck, that could offend the design objectives but are not necessarily a storey or part of the building height.
79	The permit applicant acknowledges that the list of exclusions in the 5th exemption does not specifically refer to a lift shaft but submits that this might be because a lift shaft does not fit the definition of a storey.
80	The permit applicant submits that if the Tribunal finds that the lift shaft is not a storey, that because the amended plans show a two storey building and a roof deck, with each storey less than 3.5 metres when measured from the floor level to the finished floor level above, a planning permit would only be required under the DDO1 for the roof deck.
81	The permit applicant submits that if the Tribunal finds that the lift shaft is a storey, then the permit applicant says that the 5th exemption still applies, on the basis that the list of exclusions should include the lift shaft.
82	The permit applicant submits that its approach to interpretation would be consistent with the Tribunal’s interpretation of lift overrun structures in cases such as Park, and cases that referenced the findings in Park, such as Woodward v Kingston CC and Robertson Development Group Pty Ltd v Mornington Peninsula SC.
Tribunal’s answer
83	Again, the answer to these questions lies in the particular wording of the DDO1. 
84	To this end, I return to the wording of the 5th exemption:
       
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85	The questions ask whether the lift shaft constitutes a storey or should be taken into account in the measurement of the height of a storey.
86	Clause 73.01 defines ‘storey’ to mean:
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.
87	A lift shaft is a vertical shaft in a building through which a lift moves to different levels. A lift shaft commonly contains a lift overrun that protrudes above the line of what is otherwise the roof. In the present case, the lift shaft protrudes above the line of second storey ceiling as it provides access to the roof deck. Either way, having regard to the definition of storey, a lift shaft does not constitute a storey. 
88	I say this because whilst a lift shaft clearly forms part of a building, it is a service installation for movement around the building and does not, in its own right, constitute a storey of the building. This approach is consistent with conclusions I reached in the first preliminary hearing, albeit those comments were made in the context of the questions that were before me at that time.
89	For instance, in the February Order, in addressing the building height I stated that I would not include the lift overrun in the measurement of building height because I did not regard the two lift overruns as constituting an element of the building design that is of such a size or nature or type of construction that they should be treated as a roofed element in their own right. 
90	I then addressed the lift areas again in discussing the number of storeys, in the context of the broader area of the building in which the lift shaft area is located, which also contains the atrium roof area (over the void below), the lifts lobby area, the stairwells and their landing area and the corridors leading to the two sets of double doors out to the roof deck. I described this roofed area as comprising elements that do not constitute another storey of the dwelling and that it is not a habitable area; it is a combination of a conduit area and an atrium roof area over a void.
91	I measured the maximum building height as being to the roof of the atrium/stairwell/lobby element. I did so because I regarded the design, function and size this element of the building to constitute the ‘roof’ of that part of the building, observing that this was not simply an area containing the lobby for the lifts, it also comprised the central atrium roof for the building. I stated that to the extent that the atrium roof covers the void below, it forms part of the roof of the entire building and as such, the measurement of building height should be taken from the ground level to the top of this element, which happens to also contain the stairwell and lobby element.
92	Returning to the submissions before me in this second preliminary hearing, I do not agree with the submissions made by the Council that asserted that for the purposes of the 5th exemption, the lift shaft forms part of a lower storey and, by reference to its vertical extension, means that each storey is greater than 3.5 metres measured from the floor level to the finished floor level of the floor above or, if there is no floor above, to the ceiling. 
93	Having regard to the stated purposes of the head clause of the DDO and the design objectives of Schedule 1, the inclusion of a numerical height limit for each storey must be to control the overall height that can be constructed in the DDO1 without a planning permit needing to be obtained; beyond a certain total height, the development is to be assessed under the DDO1 through the planning permit application process.
94	Considered this way, the 3.5 metre measurement is simply a way of quantifying what the overall building height could be, as broken up into two storeys, before a planning permit is required under the DDO1. To include a lift shaft in the measurement of the storey height would be to distort the measurement of the storeys. That is, the storeys could be less than 3.5 metres, as required by the 5th exemption, but including the lift shaft in the measurement of the first storey would make it seem as if the first storey extended as far as the top of the lift shaft. This cannot be correct; having a lift shaft that overruns the roof of a building to a particular height is not equivalent to having the entire storey of the building constructed to that height.
95	On the facts before me and having regard to the wording of the DDO1, it cannot be that the lift shaft constitutes another storey of the proposed development, or, that the presence of the lift shaft increases the height of the first storey so that rather than being less than 3.5 metres it exceeds 3.5 metres by several metres.
96	On the facts before me, following the substitution of the amended plans, the proposed development contains two storeys where each storey measures less than 3.5 metres from the floor level to the finished floor level of the floor above or, in the case of the second storey, to the ceiling (excluding staircases, architectural voids and light wells).
97	On this basis, the construction of the building does not require a planning permit under the DDO1 due to the 5th exemption.
98	The questions posed include consideration of whether the lift shaft could be included in the list of exclusions referenced in the 5th dot point.
99	I regard the lift shaft as separate to building elements such as a staircase, architectural void or light well. As I broadly discussed in the February Order, these building elements form part of the ceiling of a building in a way in which a lift shaft does not. The reference to ‘staircases, light wells and architectural voids’ being an exclusion to the measurement of the storey is understandable when one considers that these aspects of a building form part of the ceiling of a building. 
100	I do not regard a lift shaft in the same way. 
101	This is notwithstanding that a lift itself obviously has a floor and a ceiling and a lift shaft, being the part of the building in which the lift operates, also has a floor and ceiling component. Instead, I regard a lift shaft to be a service installation within the building but not itself forming part of the ceiling in the same way as a staircase, architectural void or light well; the lift shaft is self-contained and the ceiling on it is to protect it from the elements whereas a staircase, architectural void or light well form part of the space within a building and are more integrated with the ceiling structure of a building.
102	Hence, there is no need for the words ‘excluding staircases, architectural voids and light wells’ to also refer to a lift shaft because a lift shaft would not normally be taken into account in the measurement of the height of a storey.
103	The exclusion of ‘staircases, architectural voids and light wells’ would encompass the height associated with glass atrium roof and the two staircases to the roof deck, meaning that the second storey would similarly measure less than 3.5 metres in height. Accordingly, the building has a building height of not more than 2 storeys.
104	Accordingly, as the proposed building has a building height of not more than two storeys, where the first storey is less than 3.5 metres measured from the floor level to the finished floor level of the floor above and the second storey is less than 3.5 metres measured from the floor level to the ceiling (excluding from the calculation of the second storey the roofed element above the staircase, atrium roof and associated landing/corridor area), a permit is not required for construction of the building under the DDO1. This is in contrast to the construction of the roof deck, which does require a permit under the DDO1 and has been addressed in the preceding section.
105	In summary, the answers to the questions regarding the lift shaft are as follows:
Question 3:  Does a lift core constitute a storey? If it does, do the current list of exemptions found at the fifth dot point (i.e. stair cases etc) also exempt a lift core?
Answer:
No, the lift shaft does not constitute a storey of the proposed building.
Question 4:  Does a lift (which includes the shaft and overrun) fall within the meaning of ‘storey’ for the purposes of the 5th bullet point in the ‘permit not required’ section of clause 2.0 of Schedule 1 to Clause 43.02 of the Bayside Planning Scheme?
Answer:
No, the lift shaft does not fall within the meaning of ‘storey’ for the purposes of the 5th exemption; the lift shaft is separate to the measurement of the height of a storey.
Question 5:  If the answer to the above questions is ‘yes’, does the lift depicted on plans TP05, TP06, TP07, TP08, TP09, TP10, TP11, TP12, TP12A, TP13, TP14, TP15 and TP16 prepared by Arc Zero Pty Ltd dated 27 March 2023 (the Plans), if measured from floor level to ceiling, exceed 3.5 metres?
Answer:
Given my answer was ‘no’, I do not need to answer this question. 
Question 6:  If the answer to each of the above questions is ‘yes’, is a permit required to construct a building for the development shown on the Plans under Schedule 1 to Clause 43.02 of the Bayside Planning Scheme because of its inclusion of a lift?
Answer:
Given my answer was ‘no’, I do not need to answer this question. However, I have concluded that the proposed building, having a building height of not more than two storeys where the first storey is less than 3.5 metres measured from the floor level to the finished floor level of the floor above and the second storey is less than 3.5 metres measured from the floor level to the ceiling (excluding from the calculation of the second storey the roofed element above the staircase, atrium roof and associated landing/corridor area), does not require a permit for construction under the DDO1.
Question 7:  If the answer to each of the above questions is ‘yes’ what are the parameters of the relevant enquiry before a permit is determined – the impact of the lift or the impact of the building as a whole?
Answer:
Given my answer was ‘no’, I do not need to answer this question. 
Conclusion
106	My answers to the questions are set out above.
107	I have scheduled an administrative mention with the intention that the parties might wish to raise any issues that arise as a consequence of this decision.
108	I have also set a rescheduled hearing date for the merits hearing.

Susan Whitney
Member