VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
planning and environment LIST	vcat reference No. P1680/2018
Permit Application no. 2018/39	
CATCHWORDS	
Section 79 of the Planning & Environment Act 1987; Queenscliffe Planning Scheme; Neighbourhood Residential Zone Schedule 1;Design and Development Overlay Schedule 1Heritage Overlay Schedule 9 Heritage Overlay Schedule 39; Subdivision of land into two lots; planning policy; impacts on heritage values of site and surrounds; impacts on neighbourhood character.  	

APPLICANT	Steven and Katalin Blond	
responsible authority	Borough of Queenscliffe	
Referral Authority	VicRoads    	
RESPONDENTS	David Kenwood, Queenscliffe Community Association, David and Debra Connoley	
SUBJECT LAND	34-38 King Street, Queenscliff	
WHERE HELD	Melbourne	
BEFORE	Katherine Paterson, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	5 and 20 March 2019   	
DATE OF ORDER	23 April 2019	
CITATION	Blond v Borough of Queenscliffe [2019] VCAT 577   	

Order
1	In application P1680/2018 the decision of the responsible authority is set aside.
2	In planning permit application 2018/39 a permit is granted and directed to be issued for the land at 34-38 King Street, Queenscliff in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	The subdivision of land into two lots; 
•	The construction and carry out of works; 
•	Construction of a boundary fence between Lots 1 and 2; and
•	The creation and alteration of access to a road in the road zone category 1.  

Katherine Paterson
Member			

Appearances
For applicant	Mr David King, Solicitor, Kings Lawyers.  He called the following expert witness:
•	Mr Bryce Raworth, Heritage Consultant, Bryce Raworth Pty Ltd	
For responsible authority	Ms Dinah O’Brien, Town Planner, Borough of Queenscliffe	
For referral authority	No appearance	
For David Kenwood	Mr David Kenwood, in person	
For Queenscliffe Community Association and David and Debra Connoley	Mr David Connoley, in person	

Information
Description of proposal	Subdivision of land into two lots.  Lot one will have an area of 706 square metres and is proposed to have a restriction on the plan of subdivision requiring buildings to be constructed with a minimum front setback of 5.5 metres and a maximum height of new buildings to 17.3m AHD for the next 10.5 metres.  Vehicle access to the lot is proposed via the existing driveway.  Lot 2 is proposed to have an area of 1358 square metres and will contain the existing historic hotel.  It is proposed to create a new driveway from King Street to access the hotel from King Street.  The plans also show the addition of six car spaces on the hotel site, including four spaces in a tandem arrangement at the Mercer Street frontage of the site.  	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Queenscliffe Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1, Design and Development Overlay Schedule 1, Heritage Overlay Schedule 9 and Heritage Overlay Schedule 39.  King Street (Bellarine Highway) is included within a Road Zone Category 1.  	
Permit requirements	Clause 32.09-3 – To subdivide land;
Clause 32.09-9 – Construction of works associated with a section 2 use (new driveway and car spaces for hotel)
Clause 43.01-1 – To subdivide land, construction of works and a fence in the heritage overlay
Clause 43.02-2 – The construction of works in the design and development overlay
Clause 43.02-3 – To subdivide land in the design and development overlay;
Clause 52.29-1 – To subdivide land on land adjacent to a road in the road zone category 1;
Clause 52.29-1 – Create or alter access to the Road in a Road Zone category 1.  	
Land description	The subject site has an area of 2064 and is currently occupied by Hotel Q.  Vehicle access to the site is currently provided via a double crossover to King Street.  The land to the rear of the hotel contains a mature garden consisting primarily of exotic plants.  	
Tribunal inspection	12 March 2019   	

Reasons
What is this proceeding about?
1	In 1854 William and Andrew Leithy constructed a hotel on land at 34-38 King Street Queenscliff.  In 1881 the hotel building was destroyed by fire and subsequently replaced with the building that now exists on the land in 1882.  
2	The hotel has gone under several names over its life, including Queenscliff Hotel, Leithy’s Hotel, The Royal and more recently Hotel Q.  For the purposes of this application I have referred to it as “the hotel”.  

3	The current owners of the land, Steven and Katalin Blond, have been restoring the building and now wish to subdivide the garden area located to the west of the building off the site.  Following the Borough of Queenscliffe’s decision to refuse to grant a permit they have requested that the Tribunal review this matter.  
4	The Borough refused this application on several grounds but are primarily concerned that the subdivision is inconsistent with planning policy, the neighbourhood character of the area and will have an adverse impact on the heritage values of the site and the precinct as a whole.  The Queenscliffe Community Association, David Kenwood and David and Debra Connoley share the Borough’s concerns particularly with respect on the impact of the proposed development on the heritage significance of the hotel.  
What are the key issues?
5	Having considered all the submissions and evidence and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are:
•	Is the subdivision of land consistent with planning policy?
•	Is the proposal respectful of the neighbourhood character?
•	Will the proposal adversely affect the heritage values of the site and the heritage precinct?
Summary of findings
6	I have decided to grant a permit for the following reasons:
•	The subdivision of this site into two allotments is an acceptable response to planning policy;
•	With the changes I have made, I am satisfied that the proposal is an acceptable response to the neighbourhood character of the area;
•	Based on the evidence, I am satisfied that the proposed subdivision will not have an adverse impact on the heritage values of the site and the precinct.  
My reasons follow.  
Is the subdivision of land consistent with planning policy?
Planning Policy Framework
7	Clause 11.01-1S directs housing growth towards existing settlements within Victoria, and planning policy specifically promotes infill development as a way of limiting urban sprawl within settlements.  Each settlement should be planned in accordance with the relevant regional growth area plan, in this case the Geelong G21 Regional Growth Area Plan, where Queenscliff is identified as a settlement.  
8	The G21 Regional Growth Plan includes Queenscliff within a list of district towns of between 2,000 and 10,000 people, and states that in 2011 the population was 3,306 people for the Borough.  Whilst the population of the G21 region is expected to grow to 500,000 people, the regional growth plan has not planned for additional population within Queenscliff.  For the townships where growth is not expected, the regional plan states:
The region’s other rural and coastal settlements will continue to experience modest growth and play an important tourism and agricultural role to surrounding areas. Growth will be limited to identified structure plan settlement boundaries.
9	Clause 11.03-4S states that where no settlement boundary is identified the extent of a settlement is defined by the extent of existing urban zoned land.  As this site is included within a Neighbourhood Residential Zone Schedule 1 for the purposes of the policy, the subject site is included within the settlement boundary of Queenscliff.  
10	The Bellarine Peninsula is identified as a distinctive area and landscape for Victoria at Clause 11.03-5 of the scheme, which also requires consideration of the Bellarine Peninsula Localised Planning Statement.  This document emphasises the heritage and tourism values of the township and reiterates that the township is not expected to accommodate an increase in population.  An objective of the statement is:
To protect, preserve and enhance built heritage, cultural and urban character values and preserve the individual identity and role of the townships.  
11	In contrast, Clause 16.01-2S states that new housing should be provided in designated locations that offer good access to jobs, services and transport.  Clause 16.01-2R encourages infill development around activity centres in district towns, such as Queenscliff.  

12	The main activity centre for Queenscliff is centred on Hesse Street, approximately 500 metres (a six-minute walk) from the subject site.  There is a small general store approximately 100 metres to the west of the site on King Street.  The nearest public transport is a bus service that operates along King Street which connects the site with Geelong Railway Station as well as the Queenscliff to Sorrento Ferry.  Whilst the site is not within the activity centre, I find that it is in a site that is within convenient walking distance to the centre as well as other services. 
13	Clause 21.01-1 of the scheme states that the Borough’s population is expected to grow marginally from 3,058 to 3,360 by 2031.  The Borough is experiencing changing population demographics created by an aging population, decreasing household sizes, substantial numbers of temporary residents and the limited opportunities for housing growth.  Clause 21.01-3 identifies that the key issue for the Borough is managing the demand for variety in housing choice for existing and future households created by these population changes. Another key issue is maintaining a permanent population to sustain the current level of infrastructure and community services.  One strategy to address this problem is to encourage innovative housing solutions and designs that accommodate smaller households, whilst respecting the established urban and heritage character.  Another is to provide for sensitive redevelopment and infill development that responds to Queenscliff’s urban and heritage characteristics.
14	Whilst the planning policy framework is anticipating limited growth within Queenscliff, some limited infill development is still expected to be established within the township, particularly on sites that are around the activity centre.  I find that the subdivision of this site to create one additional residential lot is generally consistent with these policy directions.  However, care needs to be taken to ensure that the lot is consistent with the neighbourhood character and heritage values of the area.
Is the proposal respectful of the neighbourhood character?
15	Council and the parties submitted that the proposed subdivision was inconsistent with the character of the area due to the width and overall size of the proposed residential lot.  I disagree.

16	As can been seen from the above aerial image, lots on the northern side of King Street are almost exclusively rectangular shaped allotments with varying frontages, ranging between 12-29 metres, with the corner allotments having greater frontages to King Street.  The application proposes a rectangular shaped allotment with an approximately 18 metre frontage.  I find that the proposed lot is entirely consistent with the existing lot pattern within King Street and therefore the neighbourhood character of the area.  
Will the proposal adversely affect the heritage values of the site and the heritage precinct?
17	The primary concern with this proposal was that the proposed subdivision and resulting development would adversely affect the heritage significance of the hotel and the heritage precinct.  
18	Clause 22.02 states that subdivision of heritage sites will not usually be supported unless:
…it can be demonstrated that the subdivision or development which may result from the subdivision will have no adverse impact upon the significance or understanding of heritage places included in the Heritage Overlay, including through:
•	the effects on the consistent rhythm and pattern of buildings;
•	the effects on the visual appearance of heritage places through the development of boundary;
•	fences and buildings;
•	the effects on significant view lines to and from heritage places;
•	the effects on historically important views and interrelationship of groups of buildings; and – 
•	the effects on the maintenance of an appropriate visual setting for heritage places.
19	Heritage evidence was provided to the Tribunal by Mr Bryce Raworth, and the Tribunal has also had the benefit of the Borough’s heritage advisor report as well as a number of documents and photographs which outline the significance of the hotel.  The statement of significance for the hotel as provided in the Queenscliff Heritage Study 2009 is:
The Royal Hotel is of local historical and aesthetic/architectural significance. The building is of historical significance as one of a group of substantial resort hotels erected in Queenscliff during the mid to late Victoria era, signifying the development of the township as one of Victoria's premier seaside resorts. The Royal Hotel site has been occupied by a hotel since 1854, with the earlier building being a key meeting place for the township in its early years, including a meeting place for the Borough of Queenscliffe. The Royal Hotel is of aesthetic (architectural) significance as a representative and highly externally intact example of a towered Victorian Italianate hotel of the 1880s, with additional interest deriving from its Italianate Renaissance references. The building is also of significance as a major landmark on the approach to the centre of Queenscliff. While not assessed in detail, as for all such public places, it is likely to be of social significance for locals and visitors to Queenscliff.
20	The subject site is also included within the Botanic Garden’s precinct, the following are the most relevant passages from the statement of significance for the precinct:
The Botanic Gardens precinct dates from the early development of Queenscliff in the 1850s with the park apparently established around ten years later. The garden retains a series of mature specimen trees, while King and Mercer Streets contain a number of significant residences which date from the early development of Queenscliff. In addition the precinct includes the Royal Hotel, a late nineteenth century building which demonstrates the importance of the town during the nineteenth and early twentieth centuries as a fashionable holiday resort.
…The Botanic Gardens Precinct is of local historical significance as a group of early residences in Queenscliff, all sited to face onto the Botanic Gardens which was laid out and planted from the 1860s. Several of these residences are associated with persons of both local and state historic significance. The Royal Hotel on the corner of King and Mercer Streets of 1881-2, while later, was also sited and designed to look over the Gardens and towards the sea and there is also a strong historical and visual link between the hotel and the Gardens.
…The Botanic Gardens precinct is of local aesthetic significance for its combination of nineteenth century buildings and garden setting with mature specimen trees. The buildings in King Street and Mercer Street are specifically oriented to face the garden, and the two streets are linked by the prominent Royal Hotel as the key corner building. The precinct contains individual buildings of aesthetic (architectural) interest and significance, including a series of relatively modest and austere mid-Victorian residences, contrasting with the more architecturally flamboyant Royal Hotel. The street layout of this part of Mercer Street is unusual in Queenscliff being a gentle crescent shape which is followed by the setback of the buildings along this street.
21	I find that the proposed subdivision in terms of lot size and orientation matches the form of other residential lots in King Street and is therefore consistent with the historic lot pattern of the street.  
22	However, there are two remaining concerns with the subdivision, one is the loss of the garden to the west of the hotel and the second is the potential impact any future built form will have on the significance of the hotel.  I will consider each in turn.
Garden
23	Concern was expressed that the proposed subdivision would result in the loss of the garden setting in which the Hotel currently sits, thereby diminishing the building’s historic significance.  I disagree.  
24	Historic photographs tendered at the hearing indicate that the area now used as a garden has been used for many purposes over the long history of the hotel.  Early photographs indicate that the area was used for clotheslines, and possibly for stabling as an early advertisement advised future guests that the hotel had “excellent stabling”.  
25	By 1956 the area now occupied by the garden was enclosed with a solid ‘Melbourne Bitter’ sign which seemed to be in place until the 1980s, when it was replaced with the fence that currently encloses the garden.  It is likely that the garden was established during this period.  
26	Whilst I had submissions that the garden has hosted weddings for the community, I am satisfied that it terms of the overall history of the hotel, the garden has been a relatively recent development, the western side of the site has more traditionally been a service area for the hotel, which is reflected in the built form, with the western elevation being more utilitarian than the significantly more ornate front facade and entry to the hotel.  
27	The statement of significance for the hotel makes no reference to the garden, instead focuses on the attributes of the built form.  Whilst the statement for the precinct makes reference to the ‘garden setting’ of buildings, I consider that this is a reference is to the botanic gardens, which are located diagonally opposite the site.  As the proposed development will result in a lot that ‘faces’ the gardens, I find that this is consistent with the significance of the precinct.  
28	It was Mr Raworth’s evidence that the proposed subdivision will not only be a ‘good fit’ with the subdivision grain and character of the area he was also satisfied that it would provide enough curtilage for the hotel itself, and aside from the development of Lot 1 the circumstances will not be substantially different from what is seen at present.  I agree with this assessment.  The proposed subdivision will provide a lot that is generally consistent with others within the streetscape and provides sufficient separation between the new lot and the existing Hotel which will clearly define the two sites and not detract from the heritage building.  
Built form
29	At present the garden does enable views of the western façade to be seen from Bethune Street as travellers from Melbourne enter the Township.  Any development of the proposed Lot 1 will alter this view.  
30	To limit this impact, Mr Raworth recommended that a building envelope be placed on the title of Lot 1 which restricted the height of built form so that the built form is lower than the sill height of the first floor windows for the first 16 metres.  The envelope also imposes a 5.5 metre setback but allows for encroachments by structures like porches and pergolas.  Mr Raworth’s evidence was that all structures should be setback 5.5 metres to ensure that views are maintained to the main façade of the building and I agree.  I have required this as a condition of permit.  As the proposed front setback is greater than the setback desired by Clause 22.02 for this site I find that it is an acceptable response to the objectives of the policy.  
31	The proposed envelope will allow for buildings greater than one storey in height, which is discouraged by the Clause 22.02 for new buildings within the Botanic Gardens precinct.  However, the policy needs to be read in conjunction with the Design and Development Overlay that applies to the site which has a mandatory height control which restricts buildings to 8.5 metres in height or two storeys.  When this control is coupled with the maximum height provided within the envelope of 6.38 metres for the first 10.5 metres beyond the front setback I find that the envelope will provide a built form that is subservient in height to the hotel.  
32	The plans do not provide details as to the proposed boundary fence between Lots 1 and 2, although during the hearing I was advised that this was likely to be a standard paling fence.  It was Mr Raworth’s evidence that a simple paling fence would be acceptable, although I consider that the boundary fence could take many forms and remain acceptable, particularly given the variety of fencing styles that have existed on the site over the years.  Clause 22.02 states that the fences should not exceed a height a 1.4m within ten metres of King Street and given the potential for the fence to affect views to the western approach to the hotel, I have required the plans to show the fence to be constructed to 1.4 metres for the first 10 metres.  Beyond that I have allowed up to the standard paling fence height of 1.8 metres.  
33	The planning scheme controls are such that any new buildings on the site are likely require a planning permit.  These controls should ensure that any development of Lot 1 will not detract from the heritage values of the hotel.  The envelope, as I have required, is a ‘belts and braces’ approach to ensure that the hotel building will be clearly read in the streetscape as a person travels from the west along King Street.  With this building envelope in in place, I am satisfied that the future built form on Lot 1 will not detract from the heritage values of the hotel.  
34	One aspect of the proposal is of concern.  The application plans show the provision of six on site parking spaces for the hotel, two of which will be accessed via a new crossover to King Street.  These spaces are generally consistent with the existing driveway arrangement, and as VicRoads has no objection to the introduction of the additional crossover, I am satisfied that this arrangement is acceptable.  What is of concern are the four car spaces located at the Mercer Street frontage of the site.  The plans do not show the access arrangements to the spaces, and it appears that they have been added for a future, as yet unknown, use of the hotel.  I consider that these spaces are premature, unrelated to the proposal before me and I have required these spaces to be deleted from the plan of subdivision.  
Are there any other issues?
35	There was some concern that the resulting built form on Lot 1 will adversely affect the amenity of the adjoining residential properties through visual bulk.  Again, I note that any redevelopment of the site will be subject to further approval when the amenity of the adjoining properties may be more fully considered.  At this stage it is generally unknown what the final building on the site will be, although with the building envelope and the planning controls that are in place, it is likely to be a one to two storey development.  
36	Other concerns were raised about the future use of the hotel for apartments, as some other hotels in Queenscliff have recently been converted to be purely residential in use.  If this is the intention of the owner, this will be subject to a future application and the ramifications for the such a development may be considered at that time.  What is before me is simply a two-lot subdivision of the land.  
What conditions are appropriate?
37	Draft conditions were discussed at the hearing and any changes to those conditions reflect those discussions as well as further consideration by the Tribunal.  
38	Prior to the hearing, VicRoads wrote to the Council and requested a condition stating:
Vehicles from the western lot (the vacant lot, referred to the subdivision as Lot 1) must enter King Street in a forward direction as [sic] all times.  
39	I have included this requirement on the building envelope plan to alert future owners, however access to Lot 1 will more properly be considered in a future development application.   
40	For completeness, I have added the Tribunal’s standard expiry conditions.  
Conclusion
41	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Katherine Paterson
Member			

Appendix A – Permit Conditions

Permit Application No	2018/39	
Land	34-38 King Street Queenscliff	

What the permit allowS	
In accordance with the endorsed plans:
•	The subdivision of land into two lots; 
•	Construction and carry out works; 
•	Construction of a boundary fence between proposed Lots 1 and 2; and
•	The creation and alteration of access to a road in the road zone category 1.  	

Conditions
Amended Plans
1	Before the plan of subdivision is certified under the Subdivision Act 1988, 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 then form part of the permit.  The plans must be drawn to scale with dimensions the three copies must be provided. The plans must be generally in accordance with the plans prepared by St Quentin dated 18 March 2019 and 1 March 2018 (building envelope plan) and but modified to show:
a)	The building envelope amended to state that except with the consent of the responsible authority, all buildings, including structures such as porches, pergolas and verandahs, must be setback at least 5.5 metres from the front boundary.
b)	The building envelope amended to state that except with the written consent of the Responsible Authority, vehicles from Lot 1 must enter King Street in a forward direction.  
c)	The plans amended to show the boundary fence between Lots 1 and 2 not exceeding 1.4 metres in height within 10 metres of King Street with the boundary fence tapering from a point 5.5 metres north of the south boundary to the existing front fence.  Beyond 10 metres from King Street, the boundary fence must not exceed 1.8 metres in height.  
d)	Deletion of the four spaces located in the north east corner of the site near Mercer Street;
e)	The new and existing crossover to King Street;
f)	A new box culvert in the existing kerb and channel which must be joined to the existing adjacent box culvert; and,
g)	A smooth transition between the road pavement and the culverts.
Endorsed Plans
2	The subdivision as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.  
Engineering
3	The lots must be drained to the satisfaction of the Responsible Authority and no stormwater, sullage, sewerage or polluted runoff may drain or discharge from the land to adjoining properties. 
4	Before Statement of Compliance for the plan of subdivision under the Subdivision Act 1988, the applicant must provide all weather access to each lot from the King Street road reserve to the satisfaction of the responsible authority.
Completion of Development 
5	Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.
Vicroads
6	Prior to the commencement of the use or the occupation of the buildings or works on the land, access crossovers and associated driveways off King Street must be provided and available for use to the satisfaction of the Responsible Authority (RA) and at no cost to the RA or the Roads Corporation (VicRoads).  The access crossovers shall be formed to such levels and drained so that they can be used in accordance with the plan.
Mandatory Conditions
7	The owner of the land must enter into any agreement with:
a)	A telecommunications network or service provider for the provision of telecommunication services to each lot shown on the endorsed plan in accordance with the provider’s requirements and relevant legislation at the time; and
b)	A suitably qualified person for the provision of fibre ready telecommunication facilities to each lot shown on the endorsed plan in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
8	Before the issue of a Statement of Compliance for any stage of the subdivision under the Subdivision Act 1988, the owner of the land must provide written confirmation from:
a)	A telecommunications network or service provider that all lots are connected to or are ready for connection to telecommunications services in accordance with the provider’s requirements and relevant legislation at the time; and
b)	A suitably qualified person that fibre ready telecommunication facilities have been provided in accordance with any industry specifications or any standards set by the Australian Communications and Media Authority, unless the applicant can demonstrate that the land is in an area where the National Broadband Network will not be provided by optical fibre.
9	The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity and gas services to each lot shown on the endorsed plan in accordance with the authority’s requirements and relevant legislation at the time.
10	All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
11	The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to the relevant authority in accordance with Section 8 of that Act.
Permit Expiry
Expiry of permit for development
12	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within two (2) years of the issue date of this permit.
(b)	The development is not completed within four (4) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
Expiry of permit for subdivision
13	This permit as it relates to development (subdivision) will expire if one of the following circumstances applies:
(a)	The plan of subdivision has not been certified within two (2) years of the issue date of this permit.
(b)	A statement of compliance is not issued within five (5) years of the date of certification.
In accordance with section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.
– End of conditions –