VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P672/2024
Permit Application no.0891/22 	
CATCHWORDS	
Section 77 of the Planning and Environment Act 1987 (Vic); Stonnington Planning Scheme; Refusal to grant planning permit; Determination of question about maximum building height; Natural ground level; Pre-development ground level; General Residential Zone, Schedule 10.     	

Applicant	Coda One Pty Ltd	

Responsible Authority	Stonnington City Council	
Respondent	Nicholas Plummer, Elisabeth Guinness & Others	

SUBJECT LAND	71 Mathoura Road
TOORAK VIC 3142	

HEARING TYPE	Hearing	

DATE OF HEARING	3 October 2024	

DATE OF ORDER	24 October 2024	

CITATION	Coda One Pty Ltd v Stonnington CC [2024] VCAT 1022	
Order
Under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the submissions of the respondent, dated 25 September 2024, are amended by deletion of paragraphs [10-14] and appendix I.
determination of question
The height of the development shown on TP-001 Rev D, TP-011 Rev C, TP-012 Rev C, TP-013 Rev C, TP-014 Rev C, TP-015 Rev C, TP-016 Rev A, TP-101 Rev D, TP-102 Rev D, TP-103 Rev D, TP-104 Rev E, TP-105 Rev D, TP-201 Rev D, TP-202 Rev E, TP-203 Rev E, TP-204 Rev E, TP-301 Rev D, TP-302 Rev D, TP-303 Rev D, TP-304 Rev D, TP-305 Rev B, TP-701 Rev D, TP-702 Rev D, TP-703 Rev D, TP-704 Rev D, TP-705 Rev D, TP-706 Rev C, TP-707 Rev C, TP-901 Rev C, TP-902 Rev C, TP-903 Rev C and TP-904 Rev C, all dated 22 March 2024 and drawing TP-351, dated 8 March 2024 (all Project No. 22054, prepared by Carr Architecture Pty Ltd) (‘decision plans’) does not exceed the mandatory height limit at cl 4 of schedule 10 to cl 32.08 of the Stonnington Planning Scheme.

Teresa Bisucci
Deputy President		Seuna Byrne
Member	

Appearances
For applicant	Rory O’Connor, lawyer, Hall & Wilcox Evidence was called from:
•	Andrew Smith, Licensed Surveyor, Terrain Consulting	
For responsible authority	Tristan Huliganga, town planner	
For respondent	Gareth Gale, town planner, Gareth Gale Consulting Pty Ltd	

Information
Description of proposal	Demolition of the existing two-storey building and construction of a three-storey apartment building comprising five dwellings, above basement car parking 	
Nature of proceeding	Determination of question by preliminary hearing 	
Planning scheme	Stonnington Planning Scheme	
Zone and overlays	General Residential Zone, Schedule 10 (Garden River and Garden Suburban Precincts)
Special Building Overlay, Schedule 1 (Drainage system – Melbourne Water)
Development Plan Contributions Overlay, Schedule 1 	
Land description	The land comprises an irregularly shaped allotment located on the south-west corner of the intersection of Mathoura Road and Gordon Street, Toorak. The land has a frontage to Mathoura Road of approximately 9.65 metres and a frontage to Gordon Street of approximately 47.17 metres, yielding a total site area of approximately 830 square metres. 
The land is developed with a two-storey, flat-roofed apartment building comprising 10 dwellings, constructed in the 1960s. 
A 3.96 metre wide concrete laneway runs along the length of the western boundary, providing access to a concrete apron at the rear, used for at-grade car parking.
The land in its existing condition displays a fall from its south-east corner to its north-west corner of approximately 1.25 metres.	

Reasons
What is this preliminary hearing about?
1	This application is commenced under s 77 of the Planning and Environment Act 1987 (Vic) (‘PE Act’) by Coda One Pty Ltd (‘applicant’) and seeks review of the decision of the Stonnington City Council (‘council’) to refuse to grant a permit for the construction of a multi dwelling development (‘proposal’) on land at 71 Mathoura Road, Toorak (‘land’).
2	Following a compulsory conference, the proceeding was listed for a preliminary hearing to determine the following question:
a.	Whether the proposed development exceeds the mandatory height limit as set out at Clause 32.08-11 of the Stonnington Planning Scheme, in circumstances where:
i.	The land is in a Special Building Overlay, and therefore has a minimum floor level set by Melbourne Water; and,
ii.	There is a dispute as to whether any part of the land has a fall of more than 2.5 degrees over an 8 metre cross section of the site.
3	The parties filed written submissions to assist us in the determination of the question.
4	The applicant also relies on the evidence of Andrew Smith, Licensed Surveyor.
5	In summary, the respondent says the maximum height of the proposal exceeds the maximum building height allowed under the Stonnington Planning Scheme (‘scheme’).
6	Having considered the submissions of the parties and the applicant’s evidence we find the proposal does not exceed the maximum building height allowed under the scheme.
What is the proposal?
7	The application plans upon which the council’s decision is based comprise drawings TP-001 Rev D, TP-011 Rev C, TP-012 Rev C, TP-013 Rev C, TP-014 Rev C, TP-015 Rev C, TP-016 Rev A, TP-101 Rev D, TP-102 Rev D, TP-103 Rev D, TP-104 Rev E, TP-105 Rev D, TP-201 Rev D, TP-202 Rev E, TP-203 Rev E, TP-204 Rev E, TP-301 Rev D, TP-302 Rev D, TP-303 Rev D, TP-304 Rev D, TP-305 Rev B, TP-701 Rev D, TP-702 Rev D, TP-703 Rev D, TP-704 Rev D, TP-705 Rev D, TP-706 Rev C, TP-707 Rev C, TP-901 Rev C, TP-902 Rev C, TP-903 Rev C and TP-904 Rev C, all dated 22 March 2024 and drawing TP-351, dated 8 March 2024 (all Project No. 22054, prepared by Carr Architecture Pty Ltd) (‘decision plans’).
8	It is proposed to demolish the existing building (no planning permit required) and construct a three-storey apartment building comprising five dwellings, above basement car parking.
9	The finished floor level (‘FFL’) of the ground floor is stepped. The western portion of the ground floor, generally comprising apartment G.02 and part of apartment G.01, has a FFL of 17.73 metres to Australian Height Datum (‘AHD’). The eastern portion of the ground floor, comprising the communal entry lobby and part of apartment G.01, has a FFL of 18.18 metres to AHD.

Figure 1: Extract of the Ground Floor plan from the decision plans. Those parts of the Ground Floor with a FFL of 17.73m to AHD are coloured blue. The balance of the Ground Floor, coloured white, has a FFL of 18.18m to AHD.
10	Section CC in the decision plans shows the proposal has a maximum building height of 10.0 metres (not including plant and lift overrun) when measured from the lower of the ground floor FFLs to the roof.

Figure 2: Extract of Section CC from the decision plans, with the Tribunal’s yellow highlight of the minimum proposed FFL (17.73m to AHD) and the proposed roof level (27.73m to AHD).
What is the relevant planning framework? 
11	The land is within the General Residential Zone, Schedule 10 (‘GRZ10’) of the scheme and is subject to the following overlays:
•	Development Contributions Plan Overlay (‘DCPO’); and
•	Special Building Overlay, Schedule 1 (‘SBO’).
GRZ10
12	A planning permit is required under cl 32.08-7 for the construction of two or more dwellings on a lot in the GRZ10.
13	Relevantly, cl 32.08-11 of the scheme provides:
Maximum building height requirement for a dwelling, small second dwelling or residential building
A building must not be constructed for use as a dwelling, small second dwelling or a residential building that:
•	exceeds the maximum building height specified in a schedule to this zone; or
•	contains more than the maximum number of storeys specified in a schedule to this zone.
If no maximum building height or maximum number of storeys is specified in a schedule to this zone:
•	the building height must not exceed 11 metres; and
•	the building must contain no more than 3 storeys at any point.
…
14	There is a schedule that applies in this instance and that is cl 4.0 of GRZ10 which states:
Maximum building height requirement for a dwelling, small second dwelling or residential building
A building used as a dwelling, small second dwelling or a residential building must not exceed 9 metres unless the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, in which case the height of the building must not exceed 10 metres. This does not apply to:
•	An extension of an existing building or the construction of a new building that exceeds the specified building height which does not exceed the height of immediately adjacent buildings facing the same street.
•	The rebuilding of a lawful building or works which have been damaged or destroyed.
A lift overrun may exceed the abovementioned mandatory height requirements by no more than 1.2 metres. 
In areas subject to the Special Building Overlay or the Land Subject to Inundation Overlay, the maximum building height may be exceeded by no more than the minimum additional building height required by the overlay provisions.
SBO
15	The SBO is contained at cl 44.05 of the scheme and requires a permit to construct a building or to construct or carry out works. 
16	Under cl 44.05-5, an application under the SBO is exempt from the notice and review requirements of the PE Act.
17	An application must be referred to the relevant floodplain management authority under s 55 of the PE Act. Clause 66.03 of the scheme identifies Melbourne Water Corporation (‘Melbourne Water’) as a determining referral authority for an application under the SBO within the waterway management district of Melbourne Water. 
Melbourne Water referral advice – 15 May 2024
18	The application was referred to Melbourne Water who require several conditions be included in any permit should one be issued, including the following:
Unless otherwise agreed in writing by Melbourne Water:
a)	ground level floor finished floor levels must be constructed no lower than shown on Architectural Plans: Project No. 22054; Revision D; 22.03.2024. This is no lower than 300 mm above the applicable flood level.
b)	the building-boundary setbacks must not be reduced.
(Emphasis in bold added by the Tribunal)
19	The letter from Melbourne Water also includes the following advice in relation to the applicable flood level for the land:
Advice
The property is subject to overland flooding from Melbourne Water’s Prahran Main Drain. The 1% AEP flood level grades from 17.88m AHD at eastern boundary, down to 16.65m AHD at western boundary.
Melbourne Water referral advice – 23 August 2024
20	On 21 August 2024, the applicant sought confirmation from Melbourne Water of the minimum floor level it required. The following advice was received:
Advice
In response to the letter from Urbis Pty Ltd. On behalf of the applicant Coda One Pty Ltd. Dated 21 August 2024, Melbourne Water provides the following comments:
•	Pursuant to Clause 32.08-11, “If the land is in a Special Building Overlay, Land Subject to Inundation Overlay or is land liable to the maximum building height specified in the zone or schedule to the zone is the vertical distance from the minimum floor level determined by the relevant drainage authority or floodplain management authority to the roof or parapet at any point.”
•	The property is subject to overland flooding from Melbourne Water’s Prahran Main Drain. The 1% AEP flood level grades from 17.88m AHD at eastern boundary, down to 16.65m AHD at western boundary.
•	Melbourne Water determined the minimum applicable 1% AEP Flood Level for the building envelope is 17.43 m to AHD. Therefore, the residential building should have ground floor finished floor levels set no lower than 17.73 m to AHD.
•	The site grades down from south east to north west therefore the finished floor levels as shown on Architectural Plans: Prepared by Carr; Project No. 22054; Revision D; Dated 22.03.2024 are considered appropriate to meet the requirements of the Guidelines.
•	It is noted that the eastern portion of the building set at 18.18 m to AHD must remain at this level to meet the Guidelines requirements.
•	All conditions provided in the Melbourne Water response dated 15 May 2024, are still applicable.

21	The Revision D Ground Floor Plan, which forms part of the decision plans, proposes a minimum finished floor level of 17.73 metres to AHD.
22	Thus, on the basis that the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, the maximum building height to the roof or parapet at any point on the land is 27.73 metres to AHD, being 10 metres from the minimum floor level of 17.73 metres to AHD, as determined by Melbourne Water.
natural ground level and the scheme
23	Clause 73.01 of the scheme defines ‘building height’ as:

24	However, the phrase ‘natural ground level’ is not defined, instead cl 73.01 defines ‘ground level’ as:

25	For the purposes of determining the question before us and having regard to cl 4 of GRZ10, we accept the definition of ‘ground level’ means the same as ‘natural ground level’.
What do the decisions say about natural ground level? 
26	The parties highlight the differing approaches in the determination of what constitutes natural ground level by the Tribunal.  
27	The first approach relies upon ground level immediately prior to the application for planning permit (‘existing ground level’).
28	The second approach relies upon ground level before development of any kind (‘pre-development ground level’).
29	The respondent highlights another approach including an assessment of whether the land has been fully modified.  In which case, one should rely upon those parts of land that have not been modified or disturbed and exclude those parts of land that have been modified or disturbed.  Realistically, this position relies upon and adopts the second approach.
First approach – existing ground level
30	In Shire of Gisborne v King and Anor (King), the Supreme Court of Victoria (‘SCV’) was considering the meaning of the phrase ‘include any alteration to the natural conditions or topography of the land’.  The respondent had transposed a large quantity of earth across his land and had felled hundreds if not thousands of trees from his land without the requisite planning permission.  The applications before the SCV were seeking permanent and interlocutory injunctions restraining the respondent from contravening enforcement orders made by the Administrative Appeals Tribunal.
31	Importantly, in King, the land in question was not pristine, and it had been mined for gold and slate and there was an old charcoal works on site.  The definition of ‘works’ that required a planning permit at the relevant time was ‘… include any alteration to the natural conditions or topography of the land’.  The SCV held at page 370:
An issue arises in this case as to the meaning of the term “alteration to the natural conditions or the topography”. Does the topography mean the configuration of the land prior to European settlement? And what of the effect or alterations to that natural configuration brought about by mining, or other forms of industry which might have changed the shape of the land? In this case much of the ground surface has been altered by industrial intervention to which I have already referred. Much of the sub-soil was brought to the surface by shaft goldmining and then stored in mullock heaps, some of which appears to have spread over the ground surface in a form of slurry in the intervening century. Other segments of the land have been cut by deep clefts as a result of slate mining and yet other portions have been altered by tracks presumably constructed and used to extract timber and provide access to the various mines. The question is of relevance because King contends that he was doing nothing more than either renovating or rehabilitating existing tracks or levelling pre-existing mullock heaps. In one part of the borrow area (ibid) he contended he removed overburden from previous mining activity in order to display the “natural” surface of the land, that is, that level which pre-dated European intervention. To my mind the term “alteration to the natural conditions or topography” means that the surface or topography which must not be disturbed is that which immediately pre-dates the making of the application. That is, the configuration of the land, whether disturbed or otherwise as a result of prior European industrial, pastoral or mining activities, but being that which exists at the time an application is made. This conclusion bears the merit of commonsense. There will be many applications to rectify the results of extractive industries or neglect, so as to either restore the land to its pre-European shape or render it productive in some other way.
32	In Lampard v Bayside CC (Lampard) the Tribunal was considering the interpretation of wall heights within an agreement under s 173 of the PE Act.  In Lampard, the Tribunal referred to King in addition to Tribunal decisions. Ultimately, in determining wall heights the Tribunal had regard to the intent of the parties to the s 173 agreement because it was not interpreting legislation or any planning scheme.
33	In Mrocki v Bayside CC (Mrocki), the Tribunal was considering three applications.  The first sought declaratory relief, the second sought an enforcement order and the third sought review of the decision of the Bayside City Council to amend a planning permit.  In Mrocki, the Tribunal was required to make various findings including about relevant ground level.  The proceeding involved evidence from three surveyors.  The Tribunal said as follows: 
44 	The term ‘natural ground level’ is specifically used in several definitions within the planning scheme.  Natural ground level is not separately defined.  We consider that there is no difference in meaning between the terms ‘ground level’ and ‘natural ground level’ and that the definition of ‘ground level’ in effect means natural ground level.
…
47	In the present case, the intention of the parties is not relevant because we are considering the use of this term in the context of a planning scheme. We therefore consider that when interpreting what is meant by ‘natural ground level’ we should be guided by what the Supreme Court said in Shire of Gisborne v King. In that case, the expression ‘alteration to the natural conditions or the topography’ was held to mean the surface or topography which immediately predated the making of the application in that case. Other cases have adopted a similar interpretation in finding that what is or was the natural ground level is the level of the land before it was disturbed by development for the particular proposal in question.
48	Following this approach, we find common sense would indicate that, in this case, the ‘natural ground level’ is that which existed at the time of subdivision in 1999 of the larger land holding into the two lots comprising 27 and 29 St Ninians Road. It is the level of the land which immediately predated the development of the house built by Mr Miles on number 29 with its protruding basement and elevated ground floor level and before any fill was imported onto the land. We acknowledge that this can in no way be described as ‘undisturbed natural ground’. However, it represents the ground level which existed prior to the construction of both the house acquired by Mr Cushen and the two dwellings constructed by the Mrockis. 
49	Whilst we don’t have actual surveyed levels for number 29 in 1999, we have levels for number 27 in 2006. The levels of number 27 had not changed since it was subdivided in 1999. Following demolition of the older dwelling and subdivision in 1999, both lots were vacant and fenced as shown on the aerial photo of 16 March 2000. A subsequent aerial photo dated 18 November 2000 shows a dwelling on number 29, which is the dwelling constructed by Mr Miles. Based on the aerial photos and Mr Parsons’ evidence, which is based on his examination of the photos and his conclusion that the levels of the two properties at numbers 27 and 29 were approximately the same at the time of the photos, we can conclude that the ground level of number 29 immediately before construction of the dwelling by Mr Miles and importation of fill was approximately the same as the surveyed ground level of number 27 in 2006.
50	We therefore find that the natural ground level at this time immediately preceding construction of the dwelling by Mr Miles in 2000 represents ‘natural ground level’…
(footnotes omitted) 
34	Notably, in Mrocki the Tribunal considered natural ground level to be that as it existed in 1999 prior to construction of a dwelling in late 2000.  And, further, the Tribunal acknowledged this did not represent ‘undisturbed natural ground’ level. 
Second approach – pre-development ground level 
35	In Faversham Mews Pty Ltd v Boroondara CC (Faversham), the Tribunal was considering the following question of law:
Does the height of the proposed building comply with the maximum building height under clause 3.0 of schedule 1 to the General Residential Zone in the Boroondara Planning Scheme?
36	The Tribunal’s answer to the question of law was No.  
37	In Faversham, the Tribunal did not adopt the approach that existing ground level was natural ground level for the following reasons:
18	First, it equates natural level with, in effect, the existing level.  If the draftsperson had intended the latter at a specified time (eg when the permit application was made), he or she could have included that meaning instead of ‘natural’.
19	Second, the facts and the provision in which the expression NGL arose are different in the cases on which Mr Rantino and Mr Nickas relied.  None are ‘on all fours’ with this proceeding being the construction of a proposed building subject to a GRZ building height control in the circumstances of land with longstanding existing buildings.  Care needs to be taken in applying principles or findings borne out of different circumstances.
20	Third, it overlooks potentially significant disturbances to surface levels when constructing existing or former buildings.  This difficulty was acknowledged in Mrocki in which the Tribunal preferred, on grounds of common sense, to find NGL to be the level that existed when the relevant land was created by a two-lot subdivision in 1999 and before the existing dwelling was demolished and construction of a new dwelling started.
21	Fourth, it could result in manipulation.  A person could raise the level of land by fill before making a permit application to propose a higher building than otherwise permitted under the GRZ height control.
(footnotes omitted)
38	Further in Faversham, in finding that natural ground level is the level before land is disturbed that is, pre-development ground level, the Tribunal added two qualifications as follows:
23	The first qualification is an evidentiary one.
24	Much, but obviously not all, excavation, levelling or filling for development is caused by the construction of buildings.  Many new buildings are proposed to be built in existing urban areas and on land previously disturbed by the construction of existing or former buildings.  Archaeology in old cities such as Rome and London shows that surface levels of land in older times are below those of current times.  Urban development in Victoria is obviously much more recent, but there is some evidence of layered development over the years in central Melbourne.
25	So, for some land, it may be difficult to establish the earliest excavation, levelling or filling and the levels before that disturbance.  In areas of substantial disturbance over many years, the fact-finder may need to rely on incomplete evidence and on inferences, interpolations or extrapolations.
26	The second qualification is the need to have regard to the purpose of the relevant provision that relies on NGL.
27	In interpreting a provision of a scheme, I must prefer a construction that promotes its purpose.  The GRZ height control provision in clause 3.0 derives from clause 32.08-7.  The purpose of the latter clause is the same as, in the context of this application, clause 55.03-2 of the scheme.  I make this finding because clause 32.08-7 applies the building height standard in clause 55.03-2 if no height is specified in the schedule.
28	The purpose of clause 55.03-2 is:
To ensure that the height of buildings respects the existing or preferred neighbourhood character.
29	In finding NGL in a particular case, it is necessary to consider this purpose.  It may mean that some disturbance to the surface of land should form part of NGL if to do so accords with the purpose of the provision.  To illustrate this qualification, consider the hypothetical example of land that has been excavated for a quarry and the land in the former quarry having been subdivided into a number of lots.  An owner of a lot could claim the NGL is the pre-quarry surface level and seek to construct a building having regard to that level and not the current quarry floor level.  The purpose of the relevant provision may make it clear that the relevant level is the current quarry floor.
30	This second qualification is relevant in this proceeding for reasons that I will come to.
39	In Faversham, the Tribunal heard evidence from three land surveyors to reach its ultimate conclusion. 
40	This second approach was followed in SB&G – 40 Upper Heidelberg Road (Ivanhoe) Pty Ltd v Banyule CC (SB&G) noting the relevant land in that case was a former petrol station where it was common ground that it had been subject to extensive ground disturbance and concluded:
23	… As a result, we are persuaded by the submissions of the Applicant that in this case it would not make sense to apply the mandatory height limit above the current existing ground levels, as to do so would create an absurd and artificial outcome.  
24	To this end we adopt the approach set out in the Tribunal decision of Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 where the Tribunal addressed the different approaches that can be taken to establish natural ground level, on a site that has been subject to significant past earthworks.
…
25	We face a situation here in this proceeding as described in the decision of Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954 where it is difficult to establish the natural ground levels prior to earthworks for development of the review site.  As such, we agree that:
… the fact-finder may need to rely on incomplete evidence and on inferences, interpolations or extrapolations.
26	The Applicant relies on the evidence of Mr Smith to establish the natural ground levels on the site, prior to the extensive ground works that are evident on site today.  We are persuaded that the work of Mr Smith is well grounded, based on an appropriate methodology, and sufficiently informed and detailed to ascertain whether the proposed building complies with the mandatory height limit.  We are also persuaded that Mr Smith’s evidence as to the natural ground levels is consistent with the approach outlined in the Tribunal decision of Faversham Mews Pty Ltd v Boroondara CC [2016] VCAT 1954.  We make these findings having regard to the survey work relied upon, as well as the fall of the land generally across the surrounding land, including that on the opposite side of the railway cutting.  We also make this finding having regard to the extent to which the evidence and methodology of Mr Smith was tested by the other parties through cross examination.
(footnotes omitted)
41	Lastly, in Degenhardt v Mornington Peninsula SC (Degenhardt) the Tribunal considered:
49	…	whether NGL in this proceeding is the surface level of the relevant part of the land on the date Mr Larsson lodged the permit application with the Council.
42	In Degenhardt, the Tribunal concluded:
62	I am not persuaded to decline to follow the second line of authority that I followed in the second proceeding, for the following main reasons:
(a)	The existing surface level of land when an application is lodged does not respond to the ordinary meaning of a ‘natural’ level.
(b)	Not all Tribunal decisions after the second proceeding have followed the first line of authority.  There remains divergent authority.
(c)	To the extent that the Council’s preference and the later Tribunal decisions have both relied on the Supreme Court’s decision in Shire of Gisborne v King, I adopt my reasons in Faversham Mews about why Shire of Gisborne v King is not binding authority for present purposes.
63	‘Burden’ alone is insufficient reason to follow the first line of authority.  
64	The Council is the author of the requirement and it can therefore be inferred that the Council preferred a mandatory provision.  I remain of the view that the first line of authority leaves open the possibility of pre-application manipulation of surface levels, especially by filling.  If the Council considered the ‘burden’ was such that it was very difficult to administer the planning scheme, the Council has the opportunity to prepare an amendment to the requirement.
65	I acknowledge the Tribunal in the first proceeding said there is a discretion to construe any pre-application filling of the land as forming part of the subject application and therefore maintaining the ‘status quo’ of NGL.  In this proceeding, the Council agreed there was this discretion.
66	I am not attracted to accepting there is this discretion, mainly because:
(a)	Permission may not be required for earthworks to fill relevant land so I do not understand how pre-application filling of the land could form part of an application.
(b)	Instead of providing certainty about the relevant level, it adds uncertainty if the filling was potentially undertaken many years before the making of the application.
43	Notably, in Degenhardt the Tribunal had the benefit of three witnesses regarding ground level in considering whether the extension to the existing dwelling exceeded the mandatory maximum building height and was thus, prohibited.
44	The Tribunal concluded the extension to the existing dwelling did not exceed the mandatory maximum building height. 
What do the parties’ say? 
Respondent
45	The respondent contends that we should not use existing ground levels as representing natural or pre-development ground levels to calculate the slope of the land.  It relies upon the second approach as articulated in Faversham.
46	The respondent highlights that Andrew Smith’s evidence is that site levels along the southern boundary have been excavated below pre-development ground level of the adjoining property.  Accordingly, this area on the land does not represent pre-development ground level.
47	The respondent provides a history of the land and its surrounds and contends that:
•	the Hawksburn Creek ran along the approximate alignment of Gordon Street;
•	given the Hawksburn Creek was a watercourse, land would likely fall toward it suggesting that the land sloped down to the north.  This is said to be confirmed in the Prahran Contour Plan extracted below;

Figure 3: Extract of Prahran Contour Plan pre-1898
•	in 1885 the land formed part of a large parcel of land and there was a ‘brook’ that traversed the area.  The following plan shows the subdivision of the area around 1885:

Figure 4: Extract of 1885 subdivision plan
•	the area was known for its swampy nature and was described by a local resident as follows:

•	the area surrounding the Hawksburn Creek is described as:

•	by 1898: 
o	the land was developed with a dwelling to the south, a garden to its north;
o	the brook had been replaced with an underground drain;
o	the laneway to the west of the land was constructed in bluestone and its northern end was lower than its southern end where it meets the southern boundary of the land;
o	a plan of subdivision in 1932 depicts a drainage easement along Gordon Street to the west of the land:

Figure 5: Extract of 1932 plan of subdivision.
•	this 1932 subdivision plan is said to show a drain located in the laneway that was higher than the levels in Gordon Street;
•	the drain in the laneway is now lower than Gordon Street and thus it is said that the laneway was remodelled. Support for the excavation of the laneway is said to be found in the retaining walls located on the western side of the laneway;
•	to provide access to the land from the laneway, there needed to be some excavation and thus, the existing ground level on the concrete apron does not represent pre-development ground level;
•	there is little change in the grade of the land between the concrete apron and the existing building;
•	the rear of the land has been ‘scooped out’ and is not a natural or pre-development land form; and
•	the rear of the land sits lower at the boundary with 69 Mathoura Road.
48	Having regard to the above, the respondent contends that existing ground level does not represent natural ground level because it is not pre-development ground level.
49	In written submission, the respondent raised four issues with the written statement of Andrew Smith.  The four issues are:
a	the level of the laneway relating to pre-development ground level;
b	mapping of pre-development ground does not show a natural fall in the topography that could have been expected in this locality;
c	the LASSI plot map cannot be determinative as it was prepared after the construction of the existing building; and
d	the 1898 and 1899 MMBW plans do not contain any levels in the location of the drain.
50	These issues were all put to Andrew Smith in cross-examination and we will deal with each of these issues later in our reasons. 

51	The respondent also highlights that there is no evidence that the northern or eastern boundary of the land has been modified.  And, further when sections are cast along certain boundaries there is no slope that approaches 2.5 degrees as depicted in the image below:

Figure 6: Extract of respondent’s annotated sections
52	The respondent submits that if we accept existing levels as representing pre-development ground level, the slope of the land at the site of the building over a distance of at least 8 metres exceeds 2.5 degrees.
Council
53	Council submits that the FFL set by Melbourne Water is to be taken as a fact.  Further, council says that if the slope of the natural ground level at any cross section wider than 8 metres of the site of the building is 2.5 degrees or more, the overall height of the proposal must not exceed 10 metres above the minimum FFL.
54	Council accepts the evidence of Andrew Smith in respect of the existing levels and pre-development ground levels.  Council accepts that the evidence shows that a 2.5 slope existed across an 8 metre distance in the pre-development ground level scenario. 
Applicant
55	The applicant relies upon the evidence of Andrew Smith and highlights that it is the only evidence before us with respect to existing and natural or pre-development ground level.  On that basis, the applicant says that following either the first or second approach in this case, yields the same outcome.
56	The applicant notes the matters relied upon by Andrew Smith in the preparation of the witness statements before us which include:
a	the early construction of roads and laneways were generally at grade to minimise excavation and therefore generally related closely to pre-development ground level;
b	an examination of properties either side of the laneway opposite the western boundary indicates that the laneway was likely constructed at or close to the grade of pre-development ground;
c	the concrete paved surface within the land appears to have been excavated generally below the pre-development ground level of 69 Mathoura Road;
d	at the eastern end of the boundary between 69 Mathoura Road and the land, the ground levels within the land appear to reflect more closely pre-development ground level and the surface within 69 Mathoura Road appears to have been built-up slightly to lessen the cross slope of its front yard; and
e	at the western end of this boundary, it appears the floor of the carport at 69 Mathoura Road has been built up slightly to ensure a reasonably level floor for the carport, with the southern end of the floor for the carport practically at the same level as the concrete laneway.
57	The applicant relies on the observations and evidence of Andrew Smith about the levels along the laneway heading south from Gordon Street representing pre-development ground level on each side of the formed concrete laneway.
What is the evidence before us?
58	The applicant relies upon the witness statements of Andrew Smith who was instructed to provide his expert opinion about the slope of the natural ground level based on existing ground levels and pre-development ground levels.  
59	Andrew Smith has considered several documents in the proceeding and has further reviewed the following:
•	Plot of contours from the LASSI website;
•	MMBW 1:2500 scale map showing contours throughout the municipality dated April 1978;
•	MMBW Detail Plan No. 972 dated May 1899; and
•	MMBW Detail Plan No. 981 dated March 1898. 
Evidence about existing site levels
60	An Existing Levels Survey Plan dated 11 September 2024, Version No. 1 is appended to Andrew Smith’s witness statement.  The Existing Levels Survey Plan depicts:
i	contours based on observed levels located between the existing building and the southern boundary; and
ii	indicative contours through the existing building.
61	The Existing Levels Survey Plan depicts a slope of more than 2.5 degree slope across a minimum distance of eight metres in three locations, shown below as Section A – B, Section A – C and Section A – D: 

Figure 7: Extract of the Existing Levels Survey Plan
Evidence about natural or pre-development ground level
62	Andrew Smith’s witness statement also contains a Natural Ground Levels Survey Plan dated 11 September 2024, Version No. 1 prepared using the documents set out earlier, observations of the land and surrounding properties.  Andrew Smith also says that the early construction of roads and laneways were generally at grade to minimise excavation and therefore, generally relate closely to pre-development ground level.
63	On average, the observed levels (to AHD) are 0.07 metres (7 centimetres) higher than the levels calculated from the MMBW Detail Plans.  
64	Having regard to that information, Andrew Smith’s evidence is that the levels and resultant contours shown on the Natural Ground Levels Survey Plan reflect pre-development ground levels in the vicinity of the land prior to any improvements or excavation and represent pre-development ground levels.
65	In addition, Appendix K of Andrew Smith’s witness statement provides a Natural Ground Levels Survey Plan that contains relevant details for the land and depicts a slope of greater than 2.5 degrees at Section X – X, Section Y – Y and Section Z – Z as follows:

Figure 8: Extract of the Natural Ground Levels Survey Plan.
Supplementary witness statement
Pre-development ground level
66	Andrew Smith prepared a supplementary witness statement in response to submissions from the respondent about pre-development ground level of the laneway to the west of the land.  Andrew Smith particularly considered that the laneway fell towards Gordon Street and would have a low point where one presently exists.
67	Andrew Smith says that the following documents support his evidence that the laneway contained a low point originally:
a	the historical swampy nature of the Hawksburn Creek indicates low lying land adjacent to the watercourse;
b	the letter from a resident in 1889 describing the ‘stagnant pools of water’ along the laneway that needed to be drained; and
c	the existence of a grated pit in 1898 as shown on the MMBW Detail Plan No. 981.
68	Notwithstanding the evidence above, Andrew Smith prepared a new surface contour model for the land, assuming there was no low point in the laneway.  The outcome is a ‘flattening of the contours’ over the north-west section of the land but no change to the south-east portion of the land.  
69	Using the new surface contour model for the land results in contours of greater than 2.5 degrees over a minimum distance of 8 metres.  Below is an extract of Appendix L of the supplementary witness statement.

Figure 9: Extract of Appendix L in the supplementary evidence statement of Andrew Smith. 
Cross–examination 
70	During cross-examination Andrew Smith accepted the following propositions:
a	there is little slope along the frontage of the land to Mathoura Road;
b	there is very little slope along Gordon Street but a 1.2 metre fall along the frontage;
c	Gordon Street was formally a creek;
d	there is likely to be a ‘gentle’ grade for a creek;
e	levels at the northern street frontage and Mathoura Street frontage are reliable for pre-development levels;
f	the rear of the land has been excavated along the southern part to accommodate the exiting car park;
g	some level of excavation occurred for the construction of the existing building;
h	the laneway is likely to have been excavated but not to a ‘large extent’;
i	the laneway drains to the north towards the site of the former Hawksburn Creek;
j	waterways generally provide the low point of land;
k	grated pits are designed at low points or to water that is travelling across land;
l	there is a ‘spoon drain’ formed in the concrete of the car park to the rear of the land; 
m	by removing consideration of the low point in the laneway, the slope along the western boundary of the land to the laneway would be less than 2.5 degree; and
n	the 1978 LASSI Plan is of no relevance, but it was used to indicate a general pattern regarding the topography of the area.
71	Andrew Smith had not considered all the material available to the respondent but explained that he had limited time to prepare the witness statement.  In addition, the respondent was critical of Andrew Smith’s failure to review material including Stonnington Thematic Environmental History.  
72	Andrew Smith did not consider the Prahran Contour Plan depicted a ‘gentle’ slope because the contours shown on that plan are at 3 metre intervals and do not provide sufficient detail regarding the slope on the land nor did the Prahran Contour Plan depict any localised depressions.
73	Andrew Smith maintains his evidence that pre-development ground level is reflected on either side of the laneway and that the dotted line in the MMBW Plan is more likely to be a drainage line and not a channel.  And the drainage line may have been representative of underground drainage.  Further, Andrew Smith says that the laneway was likely to have been an ‘earthen’ laneway prior to the concrete laneway now in existence because it is surprising that a bluestone laneway would have been replaced by concrete.
74	Andrew Smith does not accept that the 1932 Ellerslie Subdivision Plan (‘1932 Plan’) relied upon by the respondent depicts a drain in the laneway at higher level than Gordon Street.  Rather, Andrew Smith says there is no easy way to understand what the levels on the 1932 Plan are said to relate. 
75	The respondent was critical of the fact that Andrew Smith had not attended adjoining properties to aid in the preparation of the evidence.  After being shown photographs of the rear of 67 Mathoura Road, Andrew Smith’s evidence is that the rear of the property meets the level of the laneway, and the rear yard has been built or terraced up.  Andrew Smith accepted that had he had more time he might have obtained information regarding the properties adjoining the land. 
76	The Natural Ground Levels Survey Plans prepared by Andrew Smith are based on an assessment of the land conditions including that the level of the laneway is at pre-development levels or close to it and levels at the perimeter of the land.  These plans are not based on any level observed within the site including levels of car park. 
77	The questions of the respondent highlighted that there was no way of knowing the following things:
•	whether the properties to the west of the laneway were terraced or if the laneway was excavated;
•	pre-development ground level in the middle of the land; and
•	the alignment of the contours for or pre-development ground level.
78	Andrew Smith explained that the modelling of the contours for pre-development levels occurred from levels around the perimeter of the land and not from observed levels within the land.  Further, Andrew Smith says that he has prepared the plan depicting pre-development level using his skill and the best information available.  Thus, Andrew Smith’s evidence is that the plan depicting pre-development level is the most likely situation.  However, Andrew Smith accepts that he cannot say so with complete certainty.  
Findings on evidence
79	We do not criticise Andrew Smith for not relying on the information provided by the respondent.  Experts appearing before the Tribunal are often under time pressures.  Further, and in any event, when the information was reviewed by Andrew Smith and put to him in cross-examination, his evidence did not change. 
80	We disagree with the assertion of the respondent that natural slope can be readily gleaned from the land and its surrounds. If that was the case the need for information and evidence, interpolations and the like would not be required.  It is also worth noting that a slope of 2.5 degrees across a distance of 8 metres is a ‘gentle slope’.  In fact, it is a rise of 0.3492 metres across the 8 metres, which is much less than the gradient for wheelchair access. 
81	On the material before us we cannot make findings about the standard of construction of the laneway prior to the concrete that presently exists.  The respondent says it was likely to be a bluestone laneway which is a bare assertion.  Whilst Andrew Smith says it was likely to be an earthen laneway which is also a bare assertion.  There is no evidence to conclude one way or another.  
82	Further, we do not accept assertions made about the levels at 69 Mathoura Road, there is no evidence before us to make any proper findings about such levels.  Andrew Smith was criticised by the respondent for not attending adjoining properties.  We note that in merits review, no party bears an onus of proof. However, arguably, where a party has raised an issue, particularly a threshold issue, that party should provide the material necessary including by way of evidence, to satisfy the Tribunal of its position.
83	Whilst we understand the calculations provided by the respondent extracted earlier in these reasons, we do not accept that is the only way to calculate the slope of the land in this proceeding.
84	We do not accept the submission of the respondent about the 1932 subdivision plan.  That plan is difficult to read and we cannot conclude even on the balance of probabilities that the laneway was at a higher level than Gordon Street.  Thus, we reject the assertion that there is evidence that the laneway was excavated to change levels.
85	We asked Andrew Smith about the topographical appearance of land described as ‘swampy’. We accept his evidence that localised variations of ground level are ‘a common occurrence’ throughout land described as swampy. For this reason, we prefer his survey plans, with contours at intervals of 0.2 metres, rather than the Prahran Contour Plan relied on by the respondent, which has contours at intervals of 3 metres.
86	On the evidence and material before us, we find on the balance of probabilities that:
i	a watercourse ran along the approximate location of Gordon Street;
ii	the area would have sloped down to the watercourse;
iii	the surrounding area would have been swampy prior to any construction of drainage infrastructure;
iv	the dotted line on the 1898 and 1899 MMBW Plans, is more likely than not to be a drainage line rather than a channel particularly in circumstances where there is no evidence the laneway was constructed to any extent let alone of bluestone;
v	the existence of a grate in the laneway shown on the 1898 MMBW Plan suggests a low point in the laneway; 
vi	the northern end of the laneway would have been lower than the level of the laneway as it headed south;
vii	the level of the laneway on either side of the concrete represents pre-development ground levels because it is reasonable to infer that the early construction of roads and accessways including laneways were generally at grade to minimise excavation.  This is notwithstanding the level change between the properties to the west of the laneway.  It is plausible to infer in the absence of any evidence that the properties to the west of the laneway may have been raised at some earlier point in time;
viii	the difference between the existing ground level and the pre-development levels is minimal;
ix	the pre-development ground level as modelled shows a slope of more than 2.5 degrees across a minimum distance of 8 metres in four locations;
x	the existing ground levels at the perimeter of the land and in particular along the north and east boundary closely align to pre-development levels;
xi	the results of the modelling via the Natural Ground Levels Survey Plans by Andrew Smith were reasonable because they used perimeter levels of the land and did not rely on any observed levels within the land in addition to the reasonable assumption about the pre-development levels of the laneway; and
xii	there is no evidence of any manipulation to obtain a development advantage or any absurd or artificial outcome.  Further, it is noted that the existing building has been in existence since the late 1960’s and the land, and the ground level has formed part of the neighbourhood for almost six decades.
What do we conclude?
87	Having regard to the above findings, we conclude that the existing ground levels in this case represent pre-development development levels or natural ground level of the land.  Thus, the slope of the natural ground level of the land at various cross sections wider than 8 metres is 2.5 degrees or more. Accordingly, the proposal as shown on the decision plans does not exceed the mandatory height limit contained in cl 4 of schedule 10 to cl 32.08 of the scheme.
88	We disagree that there are two approaches in the decisions of the Tribunal with respect to natural ground level.  In reviewing the decisions of the Tribunal relied upon by the parties, we conclude that each case turned on its facts, circumstances and the evidence before the Tribunal.  
89	Importantly, we agree that in considering the facts and circumstances of each case, matters such as manipulation of the land, previous land use and development and absurd or artificial outcomes are all relevant in the determination of natural ground level. 
90	We also agree that as the ‘fact finder’ we may have to rely upon incomplete evidence, or interpolations or inferences.  However, it is also important to acknowledge that the focus must be on evidence and what can be reasonably inferred or interpolated from that rather than supposition or bare assertions.  
91	Further, in considering the evidence or material before the Tribunal, we must be satisfied on the balance of probabilities and not some higher standard set by parties.

Teresa Bisucci
Deputy President		Seuna Byrne
Member