VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P181/2024
Permit Application no. P/PDPL/00448/2023 	
CATCHWORDS	
Buildings and works to partially demolish and extend a dwelling; Neighbourhood Character Overlay Schedule 5; applicability of Clause 54 to permission sought under Neighbourhood Character Overlay Schedule 5; reinforcement of neighbourhood character and Neighbourhood Character Objectives; Beacon Cove Neighbourhood Character Guidelines 2010.	

APPLICANT	Heidi Rodgers & Paul John Rodgers	
Responsible Authority	Port Phillip City Council	
RESPONDENT	Daniel Crawley & Yvette Crawley	
SUBJECT LAND	18 Hobsons Bay Parade
PORT MELBOURNE VIC 3207	
HEARING TYPE	Hearing	
DATE OF HEARING	6 March 2025	
DATE OF ORDER	6 May 2025	
CITATION	Rodgers v Port Phillip CC [2025] VCAT 385	
Order
Permit granted
1	In application P181/2024 the decision of the responsible authority is affirmed. 
2	In planning permit application P/PDPL/00448/2023 a permit is granted and directed to be issued for the land at 18 Hobsons Bay Parade, Port Melbourne VIC 3207 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 43.05-2	To demolish and remove a building 
To construct a building or carry out works in a Neighbourhood Character Overlay 	

Dalia Cook
Presiding Member		Jane Tait
Member	

Appearances
For Rodgers	H Rodgers in person and on behalf of P Rodgers	
For responsible authority	M England, town planner	
For Crawleys	N Sutton, solicitor, Norton Rose Fulbright (Australia) in respect of legal matters with D Song, town planner, Song Bowden in respect of planning matters	

Information
Description of proposal	Partial demolition, alterations and additions to a double storey townhouse	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 (Vic) – to review the decision to grant a permit	
Planning scheme	Port Phillip Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone (Schedule 1)
Design and Development Overlay (Schedule 19)
Neighbourhood Character Overlay (Schedule 5)	
Permit requirement	Clause 43.05-2 (Neighbourhood Character Overlay) – to demolish or remove a building and to construct or carry out works 	
Relevant scheme policies and provisions	Clauses 02.01, 02.02, 02.03, 11, 15, 16, 32.09, 43.02, 43.05, 54, 65.01, 71.02, 72.04 and 72.08 	
Land description	The subject land is a ‘battle-axe’ lot on the north side of Hobsons Bay Parade that has a total site area of 312 square metres.  It is occupied by a double storey dwelling that is typically characteristic of development in the Beacon Cove Residential Precinct as it includes a rendered masonry façade, garage (with flat roof) and hipped tiled roofing.  The dwelling faces Garden City Reserve, which abuts the north boundary.
The site has access from a shared carriageway easement along the eastern boundary.  The dwelling has secluded open space in the western and southern setback and a first floor balcony facing Garden City Reserve.
Abutting development includes a double storey dwelling to the south that has secluded private open space in the north-west corner abutting the driveway.
Immediately east is a three storey dwelling that includes a tower element facing the driveway and double storey dwelling to the west of a similar style and materials to the subject dwelling.	
Tribunal inspection	We inspected the subject land and surrounds on an unaccompanied basis following the hearing.   	

  Reasons
What is this proceeding about?
1	The respondent (‘the Crawleys’) applied for a planning permit for partial demolition and alterations and additions to their dwelling.  
2	The applicant (‘the Rodgers’) own a neighbouring dwelling to the south, connected via an attached garage at ground level.  They were concerned that the extensions to the Crawleys’ dwelling would not meet planning scheme objectives pertaining to neighbourhood character or amenity.  
3	The only requirement for a planning permit for the works arises under the Neighbourhood Character Overlay Schedule 5 (‘NCO5’).  
4	Permission is no longer required under the current provisions of the Neighbourhood Residential Zone post Amendment VC243 to the Port Phillip Planning Scheme, since the subject land is over 300 square metres in area.  
5	Port Phillip City Council (‘Council’) assessed the application, including giving consideration to the Rodgers’ objection.  It determined to grant a permit subject to conditions. 
6	The Rodgers sought review of this decision, principally based on concerns that the proposal would not reinforce neighbourhood character, was inconsistent with the Beacon Cove Precinct Neighbourhood Character Guidelines 2010 (‘the Guidelines’), would reduce valued and consistent rear setbacks and would impact on the outlook to and from public open space. 
7	A hearing initially commenced before Member Tait.  However, the Rodgers identified questions they sought to have determined in the proceeding that resulted in an adjournment and reconstitution of the Tribunal to include Member Cook, a qualified legal practitioner.  
8	The hearing commenced afresh before the two-Member Tribunal and all issues were canvassed. 
What are the key issues?
9	The key issue is whether the proposed partial demolition and the alterations and additions to the Crawleys’ dwelling would result in an acceptable outcome, having regard to the provisions of NCO5 applied in their physical and policy setting.  
10	The Rodgers proposed two questions to inform the Tribunal’s application of the planning controls when evaluating this development application. 
11	The first question was articulated as follows:
Does the Neighbourhood Character Overlay (‘NCO’) at Clause 43.05-3 of the Victorian Planning Scheme (‘VPS’) require the decision maker to broadly consider Clause 54 of the VPS? 
12	The second question was:
What is the legal meaning of ‘reinforce’ in the context of the Port Phillip Planning Scheme NCO? 
13	This issue was raised in the context of the use of this term in the objectives of the schedule to the NCO.  
14	To the extent that the questions identified by the Rodgers raise questions of mixed law and fact, they are determined by Member Cook, a qualified legal practitioner.  
15	The remaining aspects of this decision are determined by Members Cook and Tait jointly, in line with established Tribunal practice. 
16	To the extent the Rodgers allege errors in Council’s assessment of the permit application, the Tribunal is now required to substitute its own independent decision on the basis of all relevant information before it.  
summary of decision
17	The only requirement for a permit for this proposal arises under NCO5.  Clause 54 is an assessment tool to be used to the extent relevant to the purposes and decision guidelines of NCO5.  
18	A purposive assessment of the wording of NCO5 in its context suggests that the preferable view is that the only applicable standards of Clause 54 are those modified by Schedule 5 to the NCO, and those which are not modified but directly pertain to neighbourhood character.  
19	The remaining standards within Clause 54 are not applicable to the discretion to be exercised under the NCO and the decision maker is not required to consider them.  
20	However, on the facts of this proceeding, the question raised by the Rodgers as to the breadth of considerations under NCO5 is not determinative of the ultimate outcome.  
21	Irrespective of whether all provisions in Clause 54 apply under the proper operation of NCO5 (contrary to principal findings below), we agree with Council’s assessment and the Crawleys’ submissions that the proposal would suitably meet all Clause 54 objectives, and that it is acceptable in its policy and built form context.  
22	The term ‘reinforce’, when used in reference to existing neighbourhood character, denotes a strengthening or bolstering of character.  
23	However, parties should not lose sight of the context in which this term is used – being one of several objectives of the relevant overlay.  Such objectives should be balanced to achieve acceptable outcomes having regard to the purpose of the control. 
questions raised by the Rodgers
Are all objectives and standards of Clause 54 applicable?
Relevant planning scheme provisions
24	As mentioned, a permit requirement is required for the development under the NCO.  
25	The purpose of the NCO is stated as follows: 
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To identify areas of existing or preferred neighbourhood character.
To ensure that development respects the neighbourhood character.
To prevent, where necessary, the removal of buildings and vegetation before the neighbourhood character features of the site and the new development have been evaluated.
26	Clause 43.05-3 relevantly provides:
Modification to Clause 54 and Clause 55 standards
A schedule to this overlay may modify:
•	The requirements of any standard of Clause 54, including any requirements specified in the schedule to the Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Mixed Use Zone or Township Zone. This does not apply to Standards A1, A9, A9.1, A12, A13, A14 and A16 of Clause 54.
27	By virtue of Clause 43.05-4, a schedule to the overlay may specify additional requirements not specified in clauses 54 and 55.  This particular schedule does not specify additional requirements.  
28	Decision guidelines are provided in Clause 43.05-6 in the following terms: 
Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The statement of the key features of the neighbourhood character and the neighbourhood character objectives contained in a schedule to this overlay.
•	Whether the location, layout and form of the proposed development respects the neighbourhood character.
•	The contribution that the existing building makes to the neighbourhood character.
•	Whether the site is to remain vacant or is to be developed for another purpose.
•	The contribution that the tree makes to the neighbourhood character.
•	The health of the tree.
•	Any proposed landscape improvements.
•	Any matter specified in a schedule to this overlay.
29	Schedule 5 of the NCO pertains to Beacon Cove Residential Precinct E. The statement of neighbourhood character is contained in Clause 1.0 and will be explored when considering the merits of the permit application.  It also contains three identified design elements. 
30	Neighbourhood character objectives are contained in Clause 2.0. 
31	Clause 4.0 of Schedule 5 relates to Clause 54 and 55 standards and is extracted below in full. 

32	Other requirements are prescribed in Clause 5.0 – in this instance, limited to Design Detail. 
33	Clause 6.0 establishes a series of decision guidelines in the following terms:
The following decision guidelines apply to an application for a permit under Clause 43.05 in addition to those specified in Clause 43.05 and elsewhere in the scheme which must be considered, as appropriate, by the responsible authority:
•	The impact that new buildings or works will have on the character of the precinct, in particular, whether new buildings or works are visible from the street or public open space.
•	The extent to which any building to be extended or otherwise modified, contributes to the preferred neighbourhood character of the precinct in terms of building form.
•	Whether the new building or extension to an existing building or works respects the predominant heights and roof forms existing in the precinct.
•	Whether an increase in height of any building or a building on an adjoining lot impacts on the visibility of taller elements such as a tower forms on street corners or the role of the tower as a dominant element within that streetscape
•	Whether the new building or extension to an existing building or works respects the prevailing setbacks within the streetscape.
•	Whether the new building or extension to an existing building or works respects the prevailing character of the precinct in colours, finishes and materials.
•	The guidelines and statement of neighbourhood character for the precinct contained in the background document Beacon Cove Neighbourhood Guidelines 2010 (SJB Urban, 2010).
34	Clause 54 forms part of a suite of Particular Provisions pertaining to ‘One dwelling on a lot [or a small second dwelling on a lot]’.  
35	Its purpose is notably broader than the NCO in the sense that it includes encouraging residential development that ‘provides reasonable standards of amenity for existing and new residents’.  
36	Clause 54 provides:
Application
The provisions of this clause apply to an application to:
•	Construct a building or construct or carry out works associated with:
- One dwelling on a lot,
- A small second dwelling;
•	Construct a building or construct or carry out works associated with one dwelling on a lot under the provisions of a Neighbourhood Character Overlay;
in a Neighbourhood Residential Zone, General Residential Zone, Residential Growth Zone, Housing Choice and Transport Zone, Mixed Use Zone or Township Zone.
The provisions of this clause apply to an application specified above, in the manner set out in the following table.
Application type	Applicable clauses	
To construct or extend one dwelling on a lot.	All of Clause 54 except Clauses 54.03-7 and 54.03-8.	
To construct or extend one dwelling on a lot and a small second dwelling.	All of Clause 54 except Clauses 54.02-2, 54.05-3 and 54.06-2.	
37	The clause contains operational provisions that establish objectives, standards and decision guidelines.  
38	It also provides requirements and deeming provisions that will be applied below.  Notably, under ‘requirements’ it provides:
If the land is included in a Neighbourhood Character Overlay and a permit is required under the overlay, or a schedule to the overlay specifies a requirement of a standard different from a requirement set out in this clause or a requirement in the zone or a schedule to the zone, the requirement in the schedule to the overlay applies. 
[Tribunal emphasis].
Party submissions
Statutory interpretation
39	The Rodgers’ submissions include the following analysis: 
The general principles of statutory interpretation are well settled. They are usefully summarised by the Tribunal in Melbourne CC v Minister for Planning:
(a) 	The relevant starting point is the words of the legislative text. 
(b) 	The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. 
(c) 	It should be noted that the context (including the mischief which the statute was intended to remedy) is to be considered at the first instance – not only in cases of ambiguity. 
(d) 	The duty of a court is to give words of a statutory provision the meaning that the legislature is taken to have intended them to have. 
(e) 	The application of rules of statutory interpretation will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something that exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction. 
(f) 	A construction that would promote the purpose or object underlying the Act or subordinate instrument shall be preferred to a construction that would not promote that purpose or object.
(g)	In relation to the interpretation of subordinate instruments, including planning schemes, there is an additional principle, namely that they are to be interpreted bearing in mind their use by practical people skilled in a particular industry. Therefore they ought be construed in light of practical considerations. An interpretation which leads to a reasonably practical result is to be preferred.
40	Essentially, as explained by Ms Rodgers, ‘context is king’.  
41	However, Ms Rodgers emphasised that the Tribunal should also take into account the additional emphasis on a broader reference to context, including extraneous documents where appropriate, as referred to in Commissioner of Taxation v Bendel.
42	I accept this approach.  
Proper operation of the relevant controls
43	Ms Rodgers submitted that the NCO is a ‘unique and special’ provision, which is used judiciously in planning schemes across Victoria.  
44	She also emphasised what she regarded as the difference in meaning between the term ‘modify’ as used in Clause 43.05-3 – whereby there is a change to something already established; thereby incorporating that underlying provision – as opposed to the term ‘specify’ which is used elsewhere in the planning scheme.  
45	The parties referred to two decisions of the Tribunal which take a different approach to the scope of matters relevant under the NCO – Adams v Glen Eira CC (‘Adams’, a decision of Member Martin, as he then was) and Gian v Glen Eira CC (‘Gian’, a decision of Member Deidun). 
46	Member Martin held:
My first finding here is that Council erred in concluding that the underlined text above from Clause 54 enable it to assessed a development proposal on land affected by a NCO against all of the Clause 54 Standards. I see nothing in the words in the underlined text pointing to this rather self - serving conclusion. Taking the view that a permit trigger under a NCO triggers the need to consider all of the ResCode Standards also seems (as a matter of ‘orderly planning’) to ‘go against the grain’ of overlay controls dealing with more confined/discrete planning issues.
Rather, my conclusion is that the underlined words from Clause 54 provide nothing more or less than the following. Where any provisions in the NCO vary any of the Standards of ResCode, the planning decision maker (where any inconsistency arises) must apply the varied position for those Standards specifically mentioned in the NCO. For example, Schedule 4 to the NCO in question here varies the following Standards at pages 2-3 of that Schedule – A3 & B6, A11 & B18, A19 & B31 and A20 & B32.
In summary, my view is that so far as Clause 54 is concerned, Council should have assessed the proposed extension within the confines of the position I have set out above.
47	Council submitted that the approach taken in Adams was correct, being consistent with a purposive and contextual approach. 
48	It explained that the NCO and its schedule do not direct an assessment of the entirety of Clause 54.  
49	It noted this was in clear contrast to the decision guidelines and operative provisions of the Neighbourhood Residential Zone and suggested that the relevant directive and decision guideline to consider the provisions of Clause 54 was explicitly omitted from the NCO and its schedule.  
50	Council submitted that ‘it follows that the sole permit trigger for the NCO does not invoke a full Clause 54 assessment – it is only the NRZ that can do this’.  
51	For completeness, Council provided a complete assessment of the proposal having regard to all aspects of Clause 54 in Appendix A to its supplementary submission.  It concluded that the proposal would have a ‘strong level of compliance’ with that provision, including amenity standards which are disputed by the Rodgers.  
52	Therefore, it confirmed that it would still have resolved to approve the application, even if a complete Clause 54 assessment was required by the planning controls. 
53	By contrast, the Tribunal in Gian concluded that all provisions of Clause 54 were applicable, notwithstanding permission only being required under the NCO, since:
There are two situations where the provisions of Clause 54 will apply: where a planning permit is required under the zone provisions; and where a permit is required under the Neighbourhood Character Overlay. There is no limitation in this part of Clause 54 which restricts the application of Clause 54 provisions in either situation. I find that this means that all of the provisions of Clause 54 apply in either situation where a permit is required under a zone or the Neighbourhood Character Overlay…
The words under the heading ‘Requirements’ do not seek to limit or restrict the application of Clause 54. Instead, those words firstly clarify that all of the standards and objectives apply, and then provide for an ability under either the Schedule to a zone, or a Schedule to the Neighbourhood Character Overlay, to vary one or more particular standards. I note that it is the standard Tribunal approach to apply all of the Clause 54/55 standards to applications under a zone, where the schedule to the zone varies some of the standards. I do not understand the words in the Victorian Planning Provisions as achieving a different outcome in terms of the residential zones and the relationship between varied and non-varied standards, as compared with the Neighbourhood Character Overlay.
54	In Gian, the Tribunal explained why due emphasis should be given to the ‘application’ provisions in answering this question, instead of the ‘requirements’ provisions.  It explained:
In the decision of Adams v Glen Eira CC [2016] VCAT 1353 the Tribunal identified the starting point as being whether the words under the heading ‘Requirements’ activated consideration of all Clause 54 standards and objectives. In contrast, I consider that it is the words under the heading ‘Application’ which activate consideration of all of the standards where a permit is required under the Neighbourhood Character Overlay. As such, to achieve an outcome where only particular standards apply, words would need to appear that specifically seek to limit the operation or application of Clause 54.
55	The Rodgers accepted that either approach could potentially be sustained but observed that the Gian approach was probably a more literal one, whereas the Adams approach was a more purposive one.  
56	The Crawleys observed that:
As opposed to the NRZ4 for example, the NCO5 provides no specification that an application must meet the requirements of Clause 54, nor does any decision guideline reference Clause 54. It produces a somewhat incongruous result if an application that is triggered solely under the NCO5, is then assessed under all provisions of Clause 54 except clauses 54.03-7 and 54.03-8, particularly in circumstances where such an assessment is not required by the NRZ4.
57	They pointed out that requiring an assessment of all objectives and standards within Clause 54 would potentially deviate beyond the discretion conferred, since it would extend NCO5 to matters which are inconsistent with the purpose of that control. 
58	In any event, they submitted that the proposal would comply with all provisions of Clause 54, whether assessed against the modified standards in Clause 4.0 of Schedule 4 to the NCO, or the balance of potentially applicable requirements.  
Tribunal assessment
How is the task to be approached?
59	While the Rodgers have identified the correct approach to answering the first question – being an exercise in statutory interpretation – I am not persuaded that their submissions have in practice applied these principles comprehensively to the provisions before me.  
60	They have focused on analysing the wording of both NCO5 and Clause 54.  However, the way this analysis has been undertaken appears to be akin to these provisions essentially standing alone.  
61	In my opinion, what is missing is an analysis of how the meaning of the words advocated for would be consistent with the purpose of the enabling/permissive control, NCO5 or the context of the planning scheme as a whole; in terms of the proper interaction between the overlay control and this particular control.  
62	When I asked Ms Rodgers about these matters at the hearing, she was unable to provide a satisfactory answer.  
63	An essential tenet of administrative law is that in exercising a discretion conferred by a provision of subordinate legislation (including a planning scheme control), a decision maker is confined to considerations relevant to the purpose of the particular provision, referred to as the ‘National Trust principle’.  
64	It is significant that, in this case, the only planning permit requirement for the proposed buildings and works arises under the NCO.  There is no requirement for a permit under the zone control.   
65	This substantially dispenses with submissions for the Rodgers that Clause 71.04 may expand the scope of relevant considerations for the Tribunal in the current proceeding. 
66	To the extent that Clause 71.04 confirms that where land is within an overlay, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of the scheme, this is still prefaced on the zone controls being the source of discretion for any given application, and the other provisions of the scheme to be applied as relevant to the discretion to be exercised.  
67	An analysis must start with an assessment of the provision of the planning scheme that triggers the requirement for planning permission.  The answer is clear – it is the NCO alone.  
68	The starting point is therefore the wording of the NCO.  
Wording of the NCO understood by reference to its purpose and context
69	There is no wording in the NCO and Schedule 5 of the overlay that expressly provides that all objectives and standards of Clause 54 (in this instance) should be applied to decision making under that control.  
70	Having regard to the context of the planning scheme as a whole, this is in direct contrast to the Neighbourhood Residential Zone, for example, which specifies in Clause 32.09-6 that ‘a development must meet the requirements of Clause 54’.  
71	There is also no reference to Clause 54 in the decision guidelines of either the NCO or its schedule, in direct comparison to the decision guidelines to the Neighbourhood Residential Zone which expressly include:
For the construction and extension of one dwelling on a lot and a small second dwelling, the applicable objectives, standards and decision guidelines of Clause 54.
72	Instead, the only mention of Clause 54 in the parent control in Clause 43.05-3 is that a schedule to the overlay may modify the requirements i.e. standards of Clause 54 (excluding certain nominated standards). 
73	Schedule 5 takes up this invitation and modifies standards relating to building setbacks, building height, side and rear setbacks and design detail.
74	As to the effect of the provision that enables modification of Clause 54 standards under the schedule to the NCO, the Tribunal in Gian reasoned that:
…this provision is not written in a way that means that the standards that aren’t varied then don’t apply in the assessment of a planning permit application. The only effect of this provision is to nominate standards that can’t be varied in a Schedule to the Neighbourhood Character Overlay.
75	I take a different view in respect of the second part of this analysis.  While a component of this provision is restrictive, in that it indicates which standards cannot be varied via a schedule to the NCO, I consider that a key purpose of Clause 43.05-3 is to facilitate relevant standards within Clause 54 being modified to apply within the bespoke schedule.   
76	The relevant context of the NCO is that it is inherently a built form control with a limited focus, especially in so far as relevant character elements are identified in the applicable schedule. 
77	It differs notably from a zone control in that it does not control the proposed use of land.  
78	It was not disputed in this proceeding that the stated purpose of the NCO is to identify particular character areas and to ensure that future development respects the character of these areas.  
79	In so far as Schedule 5 to the NCO is concerned, neighbourhood character objectives for the Beacon Cove Residential Precinct E seek to ensure that new development suitably addresses key features of the precinct which have been identified as central to its character.  
80	The decision guidelines in the schedule seek to guide an analysis of proposed built form impacts on preferred and existing character.   
81	There is no mention in either the parent provision or the relevant schedule to purposes or decision guidelines that go to matters other than neighbourhood character.  It has a singular focus.  
82	More specifically, it does not include purposes or decision guidelines that pertain to matters such as the ‘operational’ interface and amenity between residential properties, energy efficiency and the like, as are the subject of various other objectives and standards in Clause 54.  
83	The only reference to Clause 54 provisions in Schedule 5 to the NCO is in the table in Clause 4.0 which contains modified standards.  
84	It is significant that in the absence of this provision, there would be no reference to Clause 54 in the overlay provision itself.  
85	The next element of the analysis is to consider what the particular provision of Clause 54 provides for on its face, and how this is to be reconciled with the discretion to be exercised under the overlay control in this particular case.  
Wording and role of Clause 54
86	I accept that on a literal reading, the ‘application’ provision of Clause 54 would suggest that all standards (other than those in 54.03-7 and 54.03-8) appear to apply to where permission is sought for buildings and works to a single dwelling on a lot within the NCO. 
87	Likewise, it would appear that the only deviation from this is in the ‘requirements’ section of Clause 54 which explains that a schedule to the NCO may modify requirements contained within standards (but does not provide the ability to modify stated objectives).  
88	However, in my view, this approach – to consider the wording of the particular provision standing alone – is not consistent with the principles of statutory construction.  
89	It does not give due regard to the structure of the planning scheme and the way this particular control (Clause 54) interfaces with the overlay controls.  
90	Neither does it give due regard to the need for a purposive and contextual analysis of the provisions of NCO5 in line with principles of modern statutory interpretation. 
91	Significantly, it is not possible to reconcile a literal interpretation of the two provisions namely, NCO5 and Clause 54, harmoniously.  
92	As explained above, if the full range of standards and objectives of Clause 54 were imported into the operation of NCO5, this would be inconsistent with the scope of the discretion and the purpose of the control. 
93	It would expressly open up broader matters for consideration, such as amenity impacts, on-site facilities, safety, energy efficiency and the like, which are outside the purpose of the control.  If reliance was placed on these considerations, the resultant decision could be made for an improper purpose.  
94	Likewise, it would be inconsistent with my understanding of the context and structure of the planning scheme. 
95	I regard Clause 54 as a particular control pertaining to residential development which operates as an assessment tool; brought into play by the operation of other provisions of the planning scheme.  
96	Clause 54 is not a provision which requires the need for a planning permit of itself.  
97	I distinguish this from other provisions in Clause 52 which require, enable or exempt a planning permit. 
98	I refer to the NCO as the ‘enabling’ or ‘primary’ provision for this reason.  
Planning scheme to be read harmoniously  
99	Is there warrant to read the provisions in NCO5 broadly (to include all Clause 54 standards) or narrowly (to include only modified standards) or in some other hybrid way?  
100	In my opinion, the answer to this question needs to be determined through an assessment of the wording in light of the scope and lens (i.e. purpose) of the applicable control, NCO5.  
101	For this reason, I have determined that only select aspects of Clause 54 are applicable to NCO5.  
102	In my view, the preferable application of this provision is that standards that have been modified, and their corresponding objectives, are to be considered when assessing proposals under NCO5.
103	This is the key method by which the NCO has determined which considerations in Clause 54 are applicable; tailored to its bespoke purpose. 
104	It is arguable that these are the only provisions of Clause 54 that should apply to applications under NCO5.  
105	However, I prefer the view that other standards within Clause 54 that squarely fall within the ambit of the purposes of NCO5 should also be considered, as relevant.  
106	By this I mean standards such as Standard A1 that directly go to matters of neighbourhood character. In reality, these may have little ‘work to do’ because the NCO and its schedule are more tailored in respect of neighbourhood character objectives and standards than the broader provisions of Clause 54 on this topic.  
107	The reason I prefer the view that other objectives of Clause 54 could be considered if specifically relevant to the purpose of NCO5 is to ‘do as little harm’ to the application provisions of Clause 54 as stated, while maintaining its lawful scope of operation in applications under NCO5.  
108	By contrast, it is not necessary or appropriate to consider other remaining objectives and standards of Clause 54 when evaluating a proposal under NCO5 where those standards have not been enlivened under the overlay – either by way of modification or by demonstrated relevance to its purpose.  
109	This is consistent with a purposive reading of the NCO as a bespoke overlay control that focuses on neighbourhood character.   
110	Notably, in my view, it would be inconsistent with the purpose of the control to seek to expand the scope of NCO5 to include the full range of objectives and standards provided in Clause 54.  
111	It would then either invite or require a decision maker to consider matters other than neighbourhood character, which would be beyond the stated purpose of the control and its decision guidelines.     
Further commentary on submissions 
112	In introductory submissions, the Rodgers conceded that it has been the longstanding practice of decision makers (such as in respect of the Heritage Overlay) to not undertake a broader assessment of Clause 54/55 when the permit ‘trigger’ is an overlay control, thereby limiting the decision to issues specified within the relevant overlay.  
113	They accepted that ‘for the reasons explained below, it is most likely that this remains the correct approach for Planning Permits granted under most VPS Overlays’. 
114	However, they sought to distinguish the NCO from other overlays within the planning scheme.  They identified Clause 43.05-3 as an ‘important and unique difference’ in this regard. 
115	The fact that the NCO is a customised overlay that may be ‘unique and special’ as emphasised by Ms Rodgers does not expand the scope of the control.  Its application needs to be determined by its provisions, applied in the context of its stated purpose. 
116	The NCO could have elected to replicate the provision in some zones, that a development requiring a permit must meet the requirements of Clause 54, but it did not. 
117	Instead, its schedule contains particular standards which have been modified as required to align with the identified purpose of the NCO and its relevant schedule.  The modified standards are to be given effect to by operation of the overlay control.  
118	It is of no assistance to rely on Clause 71.05 (Operation of Particular Provisions) to broaden the operation of the NCO.  That clause provides: 
The requirements of particular provisions apply to the specified categories of use and development and other matters in addition to any provisions which apply due to any other provision of this planning scheme.
119	There is no doubt that Clause 54 is a relevant document to this permit application.  
120	The real question is which of its provisions are invoked or ‘applicable’ to the discretion to be exercised under NCO5, which I have answered above. 
121	Likewise, it is of no assistance to seek to employ Clause 65 to apply the full range of Clause 54 considerations under the overlay control. The Tribunal and Supreme Court have confirmed that the extent to which matters in Clause 65 will be ‘appropriate’ to any given application will depend on whether those matters are relevant to the particular discretion to be exercised under the primary control. 
Approaches taken in cases referred to
122	Reflecting on the decisions referred to by the parties, they represent two different approaches to statutory interpretation taken by the Tribunal. 
123	In Adams, the Tribunal took a purpose-driven interpretation of Clause 54 in light of the NCO as the control under which permission was required. 
124	In Gian, the Tribunal answered the question primarily by reference to the content of Clause 54 itself and noted there was no express direction in the NCO to exclude certain standards of Clause 54.  
125	Having regard to the legal scope of the discretion to be exercised in this case, I prefer the outcome adopted by the Tribunal in Adams, since the starting point for interpreting the planning scheme as subordinate legislation is a consideration of the words of the NCO and Schedule 5 in their context; since this control is the source of the permit requirement for this proposal.  
126	For this reason, I find it is not appropriate to start with an analysis of the wording of the provisions in Clause 54, standing alone.  
127	Clause 54 is only brought into play by the NCO in this instance and its operation is governed by the extent of the primary enabling control.  In this instance, matters other than neighbourhood character are excluded.  
128	I accept that this conclusion would likely result in a case-by-case analysis of which standards (and objectives) of Clause 54 should apply in addition to the modified provisions within the schedule where the only permission is under the NCO.  
129	This would detract from the more recent state government approach to planning scheme amendments to seek to provide greater certainty to applicable standards and objectives. 
130	In subsequent planning scheme amendments, it may be desirable for the provisions of the NCO or relevant schedules to be clarified as to which any other provisions of Clause 54 apply (if any), in addition to those which are expressly modified.  In the absence of this, it will fall to the discretion of the individual decision maker in each case to identify which provisions are relevant to the purpose of the NCO and its applicable schedule.  
Amendment VC243
131	The Rodgers made various submissions about the potential for a full application of Clause 54 to affect the application of state-wide Amendment VC243. 
132	While the Rodgers may have preferred that the proposal required planning permission under the Neighbourhood Residential Zone in addition to the NCO, this is not the case.  
133	They suggested that post-Amendment VC243 the issue of whether all or only modified provisions of Clause 54 are to be applied has assumed increased importance. 
134	VC243 involved a policy decision that it was appropriate to relinquish the need for permission required for buildings and works within the zone control in respect of lots greater than 300 square metres.  
135	Just because the Rodgers see a resultant deficiency, presumably that they cannot accrue review rights that directly call into consideration the effect of a proposal on their amenity, does not elevate this issue to one of ‘greater importance’.  
136	In particular, it does not provide any legitimate imperative to broaden the scope of the remaining permission required in an attempt to ‘fill the gap’.  The remaining control (in this instance, the overlay control) needs to be assessed according to their terms, having regard to their context and purpose as explained above.  
137	Likewise, I cannot see how the operation of a particular control could affect the operation of Amendment VC243 in any relevant way in this proceeding.  The notion that the NCO can somehow ‘take priority over’ Amendment VC243 is simply misconceived.  
138	To the extent that this Amendment was gazetted and effected change to the provisions of the Neighbourhood Residential Zone (amongst others), there is no capacity for Clause 54 to have any bearing on this.  
139	The fact remains that as at the date of our decision, there is no requirement for a planning permit under the provisions of the Neighbourhood Residential Zone having regard to the size of the subject land.  
140	There is consequently no opportunity to invoke an assessment of relevant purposes or decision guidelines under that zone in the decision under review.  
141	In practice however, there is still scope to consider matters relevant to amenity in the subsequent building permit process, as confirmed by the Rodgers. 
What is the meaning of ‘reinforce’ in the schedule to the NCO?
Party submissions
142	Ms Rodgers expressed concern that the proposed alterations and additions would not ‘reinforce’ the existing neighbourhood character of this particular precinct, as per one of the neighbourhood character objectives in Clause 2.0 of Schedule 5 – ‘to ensure the form of new development reinforces the existing character’.  
143	She considered this was a ‘stand-alone requirement’ that needed to be evaluated in order to comply with Clause 71.02, an operational control pertaining to planning policy and integrated decision making under the planning scheme. 
144	Ms Rodgers pointed to a number of features of the proposal that she considered differed from existing building forms and would therefore not ‘reinforce’ the existing character. 
145	Ms Rodgers submitted that the term ‘reinforce’ connotes a level above ‘respect for’ existing character; a term used more commonly in purposes and decision guidelines in the planning scheme.  She relied on the reasoning of the Tribunal in Abiwood Capital Pty Ltd v Port Phillip CC and referred me to the decision in McLucas & Ors, Gri & Ors & Vidjon & Ors v Council of the City of Gold Coast & Marquee Flora Pty Ltdwhere the Court held:
…reinforcement requires more than just an absence of undue impact.  It connotes a strengthening. 
146	Parties also referred me to dictionary definitions of this term in their submissions.  
Tribunal consideration
147	The term ‘reinforce’ is not defined in the planning scheme.  It is therefore to be given its ordinary meaning, to be applied in the context of Schedule 5 to the NCO.  
148	I find that the ordinary meaning of ‘reinforce’ is to strengthen, bolster or support something.  
149	In the context of the schedule to the NCO, the relevant objective is for the form of new development to strengthen, bolster or support existing character.  
150	There are a number of ways this could be achieved, and we consider the extent to which this particular proposal would satisfy this objective. 
151	However, the fact that a proposed development may not neatly satisfy a relevant objective within the schedule to the overlay is not necessarily fatal to the Tribunal finding that the proposal overall is acceptable in its physical and policy setting.  
152	Planning decisions involve a balanced assessment of relevant planning controls and policies.  
153	There is no prescription in the planning scheme that each objective within an overlay must be satisfied in order for a permit to be granted, neither is there an indication in the provisions of the overlay that each objective is to be weighted equally.  
154	These are matters for the Tribunal’s synthesised decision, in the proper exercise of its discretion on review.  
Assessment of planning merits
155	As previously noted, the key issue is whether the proposed partial demolition and the alterations and additions to the Crawleys’ dwelling will result in an acceptable outcome, having regard to the provisions of NCO5 applied in their physical and policy setting, using relevant assessment tools.
156	The physical context of this area is seen through the prism of the statement of neighbourhood character contained in Clause 1.0 of NCO5.  It states:
Beacon Cove is a planned residential community in Port Melbourne. It displays a consistency in building forms which create a unique and clearly identifiable neighbourhood character, further defined by streetscapes with no or low front fences, key boulevards, views and vistas, and a relationship to the waterfront and piers of Port Melbourne. 
Beacon Cove is a primarily residential estate consisting of a mix of single, two and three storey dwellings and townhouses; and five high rise apartment buildings on top of podium development along the waterfront. Its development, between 1996 and 2006, progressed west from Princes Street in stages. 
157	This statement also contains three identified design principles which have guided its development and contributed to the character of the estate.  They include a clear movement and street hierarchy that includes a narrow road network creating a pedestrian and bicycle friendly environment and the location of garages and shared driveways which have little visual impact on streetscapes.  
158	There was no dispute that this proposal would have no discernible impact on the first principle, relating to a clear movement and street hierarchy.  
159	The second design principle is consistent built form that is defined by:
•	Contemporary housing consisting of single, two and three storey dwellings; townhouses and apartment buildings; 
•	High quality building design and finishes; 
•	Clearly defined urban edges with a consistent building line to the street optimising space and privacy, and maximising solar access to each dwelling; 
•	A distinct pattern of front and side setbacks; 
•	Individual building setbacks that vary between adjoining buildings creating “staggered” frontages to streets; 
•	Minimal or no side setbacks between buildings; and
•	Balconies and pergolas that create streetscape interest and variation as well as passive surveillance of streets and parks. 
160	The Rodgers raised concerns about a potential inconsistency with this principle.  
161	The third design principle is an open space network integrated into the design of the estate that incorporates viewing corridors along key streets, minimal use of fencing, housing orientated towards open space and reduced driveways and hard paving.
162	We address what we regard as the limited effect of this proposal on the adjacent public reserve below.
163	The overlay recognises that the character of each precinct has subtle variations, and the specific elements of Precinct E include:
•	Compact residential development of single and two storey attached and semi-detached, houses with distinctive tower forms. 
•	Incorporation of balconies and pergolas to create streetscape interest and variation as well as passive surveillance of streets and parks. 
•	Large first floor balconies on houses facing Howe Parade. 
•	Landscaped setback areas of a limited depth from street frontages to create an intimate relationship between houses and the public realm. 
•	Minimal use of front fences. 
•	External finishes that include a diverse range of materials and finishes including rendered surfaces, exposed soldier course brickwork, weather board cladding, tiled roofs.
164	Ms Rodgers submitted that this precinct is a highly planned estate, characterised by consistent side and rear setbacks that creates a spine of ‘backyard-scapes’ which provide light and air flow between houses.  She emphasised that the prevalent compact side setbacks allow for numerous lengthy views to the sky, backyards, trees and similar for those walking around the estate.  She considered this character should be reinforced.
165	Ms Rodgers submitted the additions would erode the strong existing character given the extent of visibility from Garden City Reserve and Hobsons Bay Parade.  She says this is contrary to the neighbourhood character objectives to reinforce the existing neighbourhood character.
166	She regarded the choice of materials and design of the roof/wall as contrary to the decision guidelines of NCO5, including the Guidelines, a background document in the planning scheme. 
167	These Guidelines relate to building siting and setbacks, building form, height and roof design, building style, materials and colours and the public realm.  
168	Conversely, Council and the Crawleys submitted that the proposal is an acceptable response to the immediate site context and built form character in this part of Beacon Cove.  They considered the additions would respect and reinforce the existing character and perform well when assessed against the requirements of the overlay.  
Do the additions respond acceptably to the objectives and guidelines of the NCO5?
169	The proposal includes the following additions:
•	Ground floor extension to Bedroom 3;

Figure 1 – Ground Floor Plan

•	First floor western extension to kitchen/living room; and
•	First floor rumpus room over the garage.
Figure 2 – First Floor Plan

170	There was no dispute about the extent of partial demolition having any real effect on neighbourhood character.  We regard this aspect of the proposal as acceptable and consistent with the provisions of NCO5.   
171	Our findings regarding the suitability of the additions in relation to the modifications to the Clause 54 standards in NCO5 and decision guidelines of the overlay, including the Guidelines, are discussed below by reference to each of the proposed additions, and globally.
Ground floor extension to Bedroom 3
172	The ground floor addition to Bedroom 3 will increase the floor area by 7.7 square metres.  The addition will match the height and finishes of the existing dwelling and abut the east boundary with an average wall height of 3.2 metres.
Figure 3 – 3D view of Ground Floor addition to Bedroom 3 from Garden City Reserve

173	The decision guidelines of the NCO5 require consideration of whether the new buildings and works are visible from public open space. 
174	We accept that there will be some visibility of this addition from Garden City Reserve given the dwelling faces the parkland and there is no fencing along this interface.  Notwithstanding, we find the addition will not impact on views to open spaces from the public or private realm and it will reinforce the existing neighbourhood character as:
•	it is setback 2.74 metres and from Garden City Reserve and sits behind the line of the existing house.  The addition will be a recessive element in the façade, allowing the existing built form to be appreciated from the reserve;
•	views of this confined addition from Hobsons Bay Parade along the shared driveway are indirect given the large setback from the street;
•	the design will match the ground floor building height; and
•	the addition would generally mirror the western presentation of the dwelling to the reserve and materials (render) would match the existing dwelling.
175	We also note the addition comfortably complies with the modified requirement of Standard A4 (Building Height) that specifies a maximum height of 10 metres and would have extremely limited visibility from Hobsons Bay Road.  This is a ‘deemed to comply’ provision by virtue of Amendment VC257 to the planning scheme. 
176	Whilst the addition includes a flat roof (instead of a hipped roof as is recommended by the Guidelines), this is acceptable as it reinforces the recessive element of the design and is consistent with the roof over the ground floor main bedroom on the western elevation. 
First floor western extension to kitchen/living room
177	The addition will provide additional cupboard space in the kitchen and has a depth of 0.675 metres and floor area of 4 square metres.  The addition is proposed to be set back 1.96 metres from the west boundary.
178	Guideline 1.8 in Precinct E of the Guidelines states that two storey additions should be confined to the rear of properties to have limited visibility from streets or parks.
179	Standard A4 has a modified requirement that states additional storeys should have limited visibility from streets and should not diminish the visual effect of buildings that incorporate towers. 
180	The addition will be visible from Garden City Reserve in some viewlines, as shown on the Figure 4 photograph.
Figure 4 – Existing conditions west elevation

181	As previously noted, the decision guidelines of the NCO5 require consideration of the impact of the additions from the street or public open space.  
182	We consider this addition will not detract from the appearance of the dwelling when viewed from Garden City Reserve given its relatively small size, location under the eaves of the existing dwelling, and use of materials and finishes to match the existing dwelling.  
183	The addition is also on the west side of the dwelling and will not be visible from the dwelling at 16 Hobsons Bay Parade, which contains a tower element facing the reserve.  
184	The proposal satisfies the decision guidelines of Standard A4 as it is consistent with height of the adjoining and nearby dwellings.
185	The reduction of the side setback by 0.675 metres meets the requirements of modified Standard A10 in NCO5 which is to minimise side setbacks to support continuous streetscape frontages and compact development patterns of the precinct.  This setback is consistent with the first floor side setbacks of additions to dwellings nearby, including 16 Hobsons Bay Parade.  This will also reinforce the existing neighbourhood character. 
186	To the extent it may be relevant, the proposal would meet the decision guidelines of Standard A10, including in respect of the potential impact on the amenity of any habitable room windows and secluded open space of existing dwellings.  
187	Whilst the addition faces the secluded open space of 2 Narooma Place, it is set back 1.96 metres from the common boundary.  The addition is also stepped back from the ground floor of the existing dwelling by approximately 740mm and therefore will not fully enclose this open space. There is no potential for overlooking and the shadow diagrams for 22 September between 9.00am and 3.00pm would satisfy the requirements of Standard A14 (Overshadowing).
188	Likewise, we do not accept that this confined addition would meaningfully alter the outlook from the Rodgers’ unit to the reserve.  
First floor rumpus room over the garage
189	When questioned, Ms Rodgers confirmed that she was primarily concerned about this component of the application, as the addition would face her first floor north elevation windows.  
190	The rumpus room would be constructed above the existing garage and have an area of 28 square metres.  It is proposed to be partially cantilevered over the driveway and includes a sloping Colorbond roof/wall, as shown in the 3D view in Figure 5 and isometric view in Figure 6.

Figure 5 – 3D view of rumpus room

Figure 6 – Isometric view of rumpus room

191	Standard A19 has a modified requirement that requires the design of buildings to respect the neighbourhood character and the style should complement the existing dwelling so as not to appear as an addition.  
192	Guideline 2 in Precinct E of the Guidelines recommends that buildings should be rectilinear, the building height should be typically two storeys, and dwellings should have pitched or hipped roofs with roof tiles.  Guideline 3 recommends the external walls include rendered masonry and match the existing dwelling.
193	Ms Rodgers submitted the style, materials, roof, setbacks and design of the addition do not directly match the existing dwelling, which is contrary to the requirements of the Guidelines.  She argued this fails to reinforce the existing character of the precinct.
194	We acknowledge the height, materials and design of the rumpus room extension does not exactly match the existing and nearby dwellings.  However, we are satisfied the addition will sit comfortably within the physical and policy context, including the Guidelines for Precinct E for the following reasons:
•	there will be limited visibility of the addition from Hobsons Bay Parade as it is set back over 18 metres from the frontage and is partially obscured by the Rodgers’ two-storey dwelling; 
•	the addition is set back over 11 metres from Garden City Reserve and will also be largely screened by the existing dwelling and proposed extension to the first floor kitchen; and
•	the building height (6.55 metres) respects the predominant height of dwellings nearby, including the Rodgers’ dwelling, and does not visually dominate the dwelling to the north which incorporates a tower (three storey) feature. 
195	We acknowledge that the ‘pop-up’ standing seam Colorbond lantern roof/wall is not hipped or pitched nor is it constructed in terracotta, as recommended in the Guidelines and modified requirement of Standard A19.  
196	However, we find the raked walls in the south and west elevation of the addition and lantern roof acceptable and in accordance with the decision guidelines of the NCO5 as it is lower than the height of the existing dwelling and the sloping roof/wall respects the pitched roof forms nearby, including the Rodgers’ garage which is clearly visible on the approach to the dwelling on the subject land down the driveway.  
197	Whilst the modified requirement of Standard A19 states that rendered masonry should be used at ground and upper levels, the use of standing seam Colorbond is acceptable given the limited visibility of the addition from the public realm and consequently limited capacity to impact neighbourhood character.  
198	We note Council has included a condition for a full materials and colours schedule that will ensure the colour of the materials will complement the existing dwelling and neighbouring properties.  We consider this condition will reinforce the existing neighbourhood character.
199	We have considered the decision guidelines of Standard A19 that includes consideration of the effect on the visual bulk of the building and whether it is acceptable in the neighbourhood setting.  We are satisfied that the raked walls and materials can complement the materials and forms of existing dwellings subject to an appropriate colour scheme endorsed by Council.  This will ensure the additions are not visually obtrusive for abutting and nearby dwellings.
200	We consider the proposal is an innovative design of good architectural quality that has responded to the constraints placed on it by the requirements of the NCO5 and location of the adjoining dwellings.  
201	Ms Rodgers argued the addition will have a significant impact on the consistent setbacks between the dwellings.  She said the additions would cause loss of outlook to the parkland and impact the solar access and energy efficiency properties of her dwelling that currently benefit from spaciousness of the backyard realm.  She submitted the proposal would result in her property being the only dwelling without any rear setback and buffer to her primary habitable room windows.
202	We note the addition is not located in the backyard and is proposed to be constructed above the garage.  Therefore, we have difficulty in understanding how the addition will affect the ‘backyardscape’ issue raised by Ms Rodgers.  
203	Whilst there will be reduction in the width of the gap in the centre of the site (that corresponds with the location of the existing garage), we fail to see how construction of a modest addition that is set back over 4 metres from the western boundary and is largely concealed by the existing dwelling will have a detrimental impact on the prevailing neighbourhood character. 
204	We observed that there will be some visibility of the cantilevered addition, at an oblique angle, along the shared driveway, from Hobsons Bay Parade.  We find this extent of visibility acceptable given the narrow angle of view between dwellings and large setback from the street.
205	The addition will be directly visible from Ms Rodgers’ first floor north elevation bedroom windows.  However, the rumpus room raked wall is proposed to be set back a minimum of 2.1 metres from her dwelling at a height of 3.6 metres and this setback increases to approximately 2.8 metres at a height of 5.54 metres.  Ms Rodgers’ windows are also set back 2.5 metres from the bottom of the pop-up roof and 3.8 metres from the top of the pop-up roof, at a height of 6.5 metres. 
206	Given the above setbacks to the existing windows, adoption of the sloping wall design and setback of 3.7 metres from the west (side) boundary, the Rodgers will maintain oblique views through to Garden City Reserve from her first floor north elevation windows.
207	We consider the addition would meet the modified requirement of Standard A10 as it maintains the compact development patterns of the precinct.  This setback will still allow for the maintenance of some separation/spacing that is found in this area in the centre of sites for dwellings fronting the reserve.
208	We have also reviewed the Clause 54 assessments conducted by Council and the Crawleys. They indicate a strong level of compliance with the amenity standards in Clause 54, such as:
•	Standard A7 (Building Height) - The additions propose a maximum height of 6.55 metres which is well below the maximum height of 10 metres.
•	Standard A11 (Walls on Boundaries) - The new wall on the east boundary meets the requirements of the standard as it has an average height of 3.2 metres and length of 4.49 metres.
•	Standard A12 (Daylight to existing windows) - The location of the rumpus room addition will ensure that there is a light court of at least 3 metres with a minimum dimension of 1 metre clear to the sky from the Rodgers’ first floor north elevation windows.
•	Standard A13 (North facing windows) - The rumpus room would be setback 2.15 metres from the north facing windows at the top of the raked wall, 2.44 metres at the bottom of the pop-up roof and 2.8 metres to the top of the pop-up roof.  These setbacks meet the requirements of the standard to ensure that there is adequate solar access to these windows.
•	Standard A14 (Overshadowing) - Shadow diagrams for 22 September show there will be no additional shadows cast over the Rodgers’ secluded private open space between 9.00am and 3.00pm.
•	Standard A15 (Overlooking) - All the first floor windows will have a sill height of at least 1.7 metres above finished floor level to limit views into adjoining secluded private open space   
209	There were some standards not met, such as Standard A5 (Site Coverage).  The additions increased the site coverage by 3.8% to 63.8% for the extension of ground floor Bedroom 3.  We see this as a minor variation that is generally consistent with the site coverage and compact subdivision of adjoining properties.  The location of the ground floor bedroom addition will not affect existing views to open spaces or result in amenity impacts on adjoining property at 16 Hobsons Bay Parade.  To this extent, the applicable objective would be met.
210	The proposal also fails to meet Standard A6 (Permeability) as it proposed 12.4% permeable area instead of a minimum of 20%.  A majority of the site is already covered by hard surfaces as it is occupied by the dwelling and shared driveway.  Given that the addition to Bedroom 3 is 9 square metres, it is unlikely to significantly impact the ability of the site to absorb stormwater runoff or increase flows into the stormwater drainage system.  Once again, the relevant objective is satisfied. 
211	If we were considering the proposal against all of the standards in Clause 54, it would not have altered our decision to support this application.  These assessments indicate the proposal met the objectives and decision guidelines of Clause 54.
Conclusion
212	We consider the proposal as a whole displays an acceptable level of compliance with the neighbourhood character objectives and decision guidelines to NCO5.  
213	Whilst there are some departures from standards within Clause 54 and the Guidelines as a background document, it is significant that we consider that all the neighbourhood character objectives of NCO5 and objectives of Clause 54 are suitably met.  
214	Overall, we are of the view that the proposal will not adversely affect the unique and clearly identifiable character of this precinct that contains two-storey attached and detached houses within a landscaped setting that has interfaces with Garden City Reserve. 
215	More specifically, we consider the additions will reinforce the existing neighbourhood character and maintain existing views from the public and private realm that contribute to the character of the precinct.  
216	We find the proposal meets the neighbourhood character objectives of the NCO5 as the additions will respect the predominant materials, heights and roof forms found in this area and they will maintain the consistency of the contemporary housing and setbacks that create the unique character of Beacon Cove.
What conditions are appropriate?
217	We have reviewed the conditions contained in the Notice of Decision to Grant a Permit issued by Council.  We consider these conditions suitably address the requirements of the overlay and do not require any further modification.
Conclusion
218	For the reasons above, the decision of the responsible authority is affirmed.  A permit is granted subject to conditions.

Dalia Cook
Presiding Member		Jane Tait
Member	

Appendix A – PERMIT DESCRIPTION AND CONDITIONS
Permit No	P/PDPL/00448/2023	
planning scheme	Port Phillip Planning Scheme	
responsible authority	Port Phillip City Council	
address of the land	18 Hobsons Bay Parade
PORT MELBOURNE VIC 3207	
the permit allows:
Planning scheme clause	Matter for which the permit has been granted	

Clause 43.05-2	To demolish and remove a building 
To construct a building or carry out works in a Neighbourhood Character Overlay 	
Conditions to apply to the permit:
Amended Plans Required
1	Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and an electronic copy must be provided. The plans must be generally in accordance with the plans submitted with the application (identified as TP01-TP05 as prepared by ‘concept 2 completion’ with date on plan being 25 October) but modified to show:
(a)	A full materials and colour schedule.
(b)	South facing first floor skylights to rumpus room to be double glazed.
(c)	South facing first floor wall to rumpus room to have an insulated wall panel.
Endorsement of Plans
2	Prior to the endorsement of plans under condition 1 of this permit, the permit applicant/landowner must either lodge a certified plan pursuant to section 23 of the Subdivision Act 1988 to activate changes to the restrictive covenant PS406497C in accordance with the schedule to Clause 52.02 of the Port Phillip Planning Scheme and provide evidence of such to the satisfaction of the responsible authority or the permit applicant/landowner submit the written consent from Mirvac or its nominee for the permitted development to the satisfaction of the responsible authority.
No Alterations
3	The layout of the site and the size, levels, design and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the Responsible Authority.
Satisfactory Continuation and Completion
4	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Walls on or Facing the Boundary
5	Prior to occupation of the development approved by this permit all new or extended walls on or facing the boundary of adjoining properties and/or a laneway must be cleaned and finished to a uniform standard to the satisfaction of the Responsible Authority. Unpainted or unrendered masonry walls must have all excess mortar removed from the joints and face and all joints must be tooled or pointed also to the satisfaction of the Responsible Authority. Painted or rendered or bagged walls must be finished to a uniform standard to the satisfaction of the Responsible Authority.
No Equipment or Services
6	Any plant, equipment or domestic services visible from the primary street (other than a lane) or public park must be located and visually screened to the satisfaction of the Responsible Authority.
Time for Starting and Completion
7	This permit will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the date of this permit.
(b)	The development is not completed within four (4) years of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing:
•	before or within 6 months after the permit expiry date, where the use or development allowed by the permit has not yet started; and
•	within 12 months after the permit expiry date, where the development allowed by the permit has lawfully started before the permit expires.
- End of conditions -