VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment division	
planning and environment LIST	vcat reference Nos. P1677/2019 & P1891/2019
Permit Application no. PLN18/0829	
CATCHWORDS	
Sections 80 and 82 Planning and Environment Act 1987; Yarra Planning Scheme; Neighbourhood Residential Zone; Heritage Overlay; Heritage; Neighbourhood character; Amenity.	

APPLICANTs (P1677/2019)
Applicant (P1891/2019)	D Carroll and others
K Loxley	
responsible authority	Yarra City Council	
RESPONDENT (P1677/2019)
Respondents (P1891/2019)	K Loxley
D Carroll and others	
SUBJECT LAND	26 Grant Street, Fitzroy North	
WHERE HELD	Melbourne	
BEFORE	Bill Sibonis, Senior Member	
HEARING TYPE	Hearing	
DATEs OF HEARING	26 and 27 February, 2020	
DATE OF interim ORDER	17 April, 2020	
date of order	13 August, 2020	
CITATION	Carroll v Yarra CC [2020] VCAT 778	
Order
1	In applications P1677/2019 and P1891/2019 the decision of the responsible authority is varied.
2	In planning permit application PLN18/0829 a permit is granted and directed to be issued for the land at 26 Grant Street, Fitzroy North in accordance with the conditions set out in the Appendix.  The permit allows:
•	Demolition of the existing dwelling; and
•	the construction of a two-storey dwelling
in accordance with the endorsed plans.
•	A reduction of the car parking requirement.

Bill Sibonis
Senior Member			

Appearances
For K Loxley	Mr N Crawford, Solicitor of TP Legal.  Evidence was called from:
•	Mr D Iles, Town Planner of Hansen Partnership Pty Ltd
•	Mr R Beeston, Architect and Conservation Consultant of RBA Architects and Conservation Consultants	
For Yarra City Council	Ms K Thomas, Town Planner	
For D Carroll and others	Mr D Epstein of Counsel, by direct brief.  Evidence was called from Mr N Lewis, Conservation Architect of Nigel Lewis Pty Ltd
Ms D Carroll, Mr T Nott and Mr M Georgeff also made submissions.	

Reasons
1	This application concerns a proposal to demolish the existing dwelling on the review site and construct a new two-storey dwelling.  The Tribunal’s order of 17 April, 2020 sets out the background and details of the proposal.  The order also details the reasons for my conclusion that, subject to modifications, the proposal could represent an acceptable planning outcome.
2	The order provided the opportunity for the permit applicant to prepare amended plans showing the following changes to the proposed development:
•	The 1.9 metre high solid brick fence along the Alfred Crescent side boundary extended to approximately align with the north-eastern wall of the kitchen/meals area, then continue as the ‘hit-and-miss’ brick wall rising to a height not exceeding 6.675 metres (being the maximum height nominated on the plans).  The top of the wall must be either rectilinear or be slightly angled.
•	The study roof replaced with a continuation of the verandah roof, or with a lower, more modest roof form than what is shown on the plans.  The design of the roof may be similar to what is proposed, or a different design may be adopted.
•	A reduction in the height of the chimney by 1.0 metre.
3	The permit applicant prepared amended plans showing these modifications.
4	In accordance with the Tribunal’s orders the permit applicant provided a copy of the amended plans to the parties.  Submissions addressing the amended plans were received from all parties.  The permit applicant provided a submission responding to the submissions of the other parties.  In deciding to grant a permit subject to conditions, I have considered all submissions, in addition to the submissions and evidence presented at the hearing held on 26 and 27 February, 2020.
‘Hit-and-miss brick wall’
5	The permit applicant presented two options for the ‘hit-and-miss’ brick wall, and submitted that both options achieve the following:
•	the 1.9 metre high solid brick fence along Alfred Crescent is extended to align approximately with the north-eastern wall of the kitchen/meals area
•	the top of the wall is slightly angled to mirror the building behind it
•	the wall is reflective of, but does not mimic, the two-storey side boundary wall at 27 Grant Street
•	the wall is located on the boundary
•	a more rectilinear profile of the wall is achieved
•	the wall provides amenity benefits in respect of thermal shielding and screening of the glazing from the public realm.
6	The permit applicant’s submission described the difference between the two options in the following way:
13	The only respect in which the plans differ is that in Set 1 the wall rises on a slight angle to a height of 5.93m, whereas in Set 2 the wall rises vertically to a height of 5.84m, (with the top of each wall rising very slightly to a maximum height in each instance of 6.6m in accordance with the Order).  The angular profile which the Tribunal found unsympathetic has been modified in both proposals.  While the proposal in Set 1 contains a modest angle, it is an angle that is confined in length and one that aligns directly with the rest of the building behind (ie, the mansard roof/wall profile of the building).  In Set 2 the form of the wall is completely rectilinear save for a very modest angle on the top of the wall.
7	While submitting that both options represent an acceptable heritage outcome, the permit applicant’s position is that a permit should issue on the basis of the Set 1 plans for the following reasons:
•	it gives best effect to the Tribunal’s finding that this element is characterised as a wall rather than a fence.  The wall reflects the profile of that part of the dwelling behind it, like what occurs at 27 Grant Street
•	the angle of the wall is much more restrained, and ‘more rectilinear’ than the original proposal, with a subtle angle to mirror the form of the building behind it
•	accordingly, it achieves a sympathetic heritage response and one that successfully integrates into its context.
8	The submission includes the following extract from Mr Beeston’s assessment of the Set 1 plans by Mr Beeston:
The gently angled profile of the wall in Set 1 directly relates to the form of the building behind, in keeping with traditional side boundary wall construction generally evident in the North Fitzroy Precinct (HO327) and also opposite at 27 Grant Street (the key relevant reference).
Furthermore, the diminution of the wall towards the rear is interpretive of traditional building formats in the North Fitzroy Precinct where it is common for the rear parts to step down slightly, thereby maintaining the focus on the front of the building – two proximate corner examples include 14 Grant Street and 61 McKean Street.
9	The Council remains concerned that the wall in both Set 1 and Set 2 does not sit comfortably in the streetscape and submitted that it should be more restrained in scale.  That said, Council adopted the position of its Heritage Adviser that Set 2 is to be preferred as it is considered to be more reflective of a traditional side wall.  The following is an extract of the Heritage Adviser’s comments:
It has been suggested in the VCAT decision that the proposed ‘hit and miss’ brick wall will be a ‘modern interpretation of a traditional side wall’ 4 (para 32) [sic].  The member confirms that there is “scope to incorporate an element which reflects boundary wall construction” (para 35).
In Para 36, the member states that “the proposal needs to be more restrained in order to integrate successfully into its context”.  It is clear from the decision, that it is the angled profile of the proposed wall that were found to be unacceptable.
Given these findings, it is considered that the form of the wall shown in Set 2 more closely represents a modern interpretation of a traditional side wall than Set 1. The slight angle at the top of Set 2 is representative of traditional skillion roofs. The angle of the wall in Set 1, where it changes height is not reflective of a traditional side wall. If the proposed side wall were plain, without any form of articulation or detailing, then perhaps the angled wall could have been considered a subtle form of contemporary design detailing. In this case, the hit-and-miss detailing is already a distinctive variation on a traditional appearance of a side wall without the need for further departure from the traditional profile of a side wall to a building.
10	The residents submitted that, while the changes to the ‘hit-and-miss’ brick wall are a significant improvement on the original version, they consider the wall to be an unsympathetic addition to the heritage streetscape.  In their submission, the wall in both Set 1 and Set 2 does not integrate into the Alfred Crescent streetscape and has not met the requirement of being more restrained in scale.  The Set 1 proposal is not acceptable to the residents as the angled wall does not reflect the purely rectilinear wall of 27 Grant Street.  While they state that the Set 2 proposal is preferable, their position is that the wall still needs to be more restrained.
11	In response to the submissions of the Council and the residents, the permit applicant submitted:
•	Set 1 functions more effectively as a side wall.  As Set 2 does not align with the mansard roof/wall profile in section, it does not as effectively reflect the boundary wall construction as provided by Set 1
•	Set 2 may be seen as appearing more as a separate screen element than a structure which truly forms part of, and is coherent with, the dwelling
•	with regard to the residents’ reference to the ‘purely rectilinear wall of 27 Grant Street’ the Set 1 modification represents a substantial shift away from the original proposal to one that pays due regard to the Tribunal’s finding about the original wall’s angularity
•	the Set 1 plans are an acceptable response to the Tribunals findings (changing the angular profile, incorporating an element of boundary wall construction, achieving a more rectilinear profile, referencing 27 Grant Street, while presenting as a piece of contemporary architecture that is suitably sympathetic to the heritage character of the surrounding area)
•	there was no requirement in the Tribunal’s order that the wall be more restrained in scale.  The wall has been reduced in length and no longer transitions between wall and fence.  There is now a clear demarcation between the wall and the fence, whereby the wall now only aligns with the dwelling proper.
12	Having reviewed the plans and considered the submissions of the parties, including the comments of the respective heritage experts, I am persuaded that the more rectilinear form of the ‘hit-and-miss’ wall shown in Set 2 represents the appropriate response to the site’s heritage context.  It reflects the two-storey boundary wall of 27 Grant Street, being the nearest referrable example, and is a more sympathetic response than the angular wall proposed in the original plans.  I agree with the comments of the Council’s Heritage Adviser that the wall more closely represents the modern interpretation of the traditional side wall, with the slight angle at the top reflecting skillion roof forms.  I further agree that the ‘hit-and-miss’ brickwork is a sufficiently distinctive variation on the traditional appearance of a side wall without the need for a departure from the traditional profile of a side wall, as shown in the more angular form of Set 1.
Study roof
13	The order provided the permit applicant with the option of replacing the study roof with a continuation of the verandah roof or incorporating a new roof at a lower height than that shown on the plans.  According to the permit applicant’s submission, the ‘hit-and-miss’ brick wing wall to the west is retained to provide a transition from the single-storey element to the two-storey section in Alfred Crescent and to retain the ‘bookend’ to the terrace row.  In addition, the permit applicant submitted that the wing wall has been tapered at first floor to assist in providing a ‘textural connection of components’ and the function of allowing daylight and air to the first-floor bathroom.  It was further submitted that the design defines the study space from the wing wall and from the connection with the verandah roof through ‘subtle recessed glazed shadow-lines’.
14	The permit-applicant’s submission includes the following comments from Mr Beeston in respect of the modification to the study roof:
The forward edge of the gently cantered planes of the parapet-like first floor wall in conjunction with the width of the verandah, assists in proportionally relating to the lower southern part of the façade with the adjoining graded Grant Street houses.  The continuation of the wing wall’s ‘hit and miss’ brickwork provides some appropriate articulation of the first-floor wall and integrates the building as a whole.
15	The Council advised that it considers the study roof element has been satisfactorily addressed in the amended plans.
16	The residents oppose the triangular wing wall adjacent to the study.  They consider that, when the wall is viewed from the Edinburgh Gardens, it presents an angular profile that is not reflective of the two-storey rectilinear boundary wall at 27 Grant Street.  In their opinion, the wall will present to the streetscape the same as the angular form noted as “an unsympathetic response” in the Tribunal’s order.  It was further submitted that the height of the wall, at over 8.2 metres, is problematic.
17	The residents do not agree that the wing wall will act as a ‘bookend’ to the terrace row, submitting that the wing walls of the terraces rise to no more than 30 centimetres above the verandah height.  It was also noted that the northern wall of the study is now angled, rather than perpendicular to the façade as shown on the original plans.  Lastly, the residents questioned the profile of the extended verandah roof over the study, submitting that the roof should remain horizontal across the full length, consistent with the other verandah roofs in the terrace row.
18	In response to the residents’ concerns, the applicant submitted:
•	the wing wall is not a new element.  It was part of the original design element as a ‘hit-and-miss’ wall to the side of the study, pitching up to a two-storey height
•	the retention of the wall is important in ensuring the updated design is coherent and responsive.  It ties the single storey and double storey elements together and forms a bookend to Grant Street
•	the wing wall is a key element that allows the building to mediate between the two-storey streetscape of Alfred Crescent and the single-storey streetscape of Grant Street
•	the wall is an integrating and mediating element the connects the single-storey and two-storey components of the building
•	the retained wing wall has been rotated very slightly to align with the apex of the upper roof, adding cohesion and avoiding a staggered elevation
•	the pitch angle of the verandah roof remains consistent and does not change or vary in the area around the wing wall.  While, due to the slight angle of the upstairs bathroom wall, the verandah roof intersects with the base of the wall at a slightly higher point than the section adjoining the rest of the upstairs bathroom and bedroom, it is a subtle design feature and does not introduce an unsympathetic element.
19	The replacement of the study roof with an extension of the verandah roof is acceptable.  However, I do not consider the angled wing wall to the north of the study to represent an acceptable heritage outcome.  It is reminiscent of the angled wall along Alfred Crescent that I found to be an unsympathetic response.  It is a highly visible element that will detract from the more rectilinear forms which characterise this heritage precinct.
20	I accept the desirability of having a wing wall adjacent to the study.  That said, I am not persuaded that the wall needs to extend to the first-floor level.  Whilst acknowledging the permit applicant’s submission that wall will be a mediating element between the ground-floor and first-floor levels, I am unconvinced that this is necessary.  I was not referred to any examples in the heritage precinct where such a response is evident.  Notwithstanding, I am not persuaded that a mediating element is required in order to achieve an acceptable outcome.  It is not a common response in a heritage context, where the transition between upper and lower levels tends to be more ‘abrupt’.  I will require the wall to be lowered in height to be similar to the wing walls of the adjoining terrace row.
21	Neither the slightly angled study wall nor the slight rise in the verandah roof are problematic from a heritage perspective.  They are relatively subtle elements and will not be discordant or obtrusive in the overall contemporary form and design of the dwelling.
Chimney
22	The chimney has been lowered by 1.0 metre.  This places it below the ridge height of the neighbouring two-storey dwelling at 24 Grant Street, and is acceptable.
Conclusion
23	Subject to the ‘hit-and-miss’ wall to Alfred Crescent adopting a rectilinear profile as shown in the Set 2 plans, a reduction in the height of the wing wall adjoining the study to be similar to that displayed by the abutting terrace row and a reduction in the height of the chimney, I consider the development will represent an acceptable outcome.
24	Accordingly, I will vary the Council’s decision and grant a permit, subject to conditions.

Bill Sibonis
Senior Member			

Appendix – Permit Conditions

Permit Application No	PLN18/0829	
Land	26 Grant Street, Fitzroy North	

What the permit allowS	
•	Demolition of the existing dwelling; and
•	the construction of a two-storey dwelling
in accordance with the endorsed plans.
•	A reduction of the car parking requirement.	

Conditions
1	Before the development commences, amended plans to the satisfaction of the responsible authority must be submitted to, and be approved by, the responsible authority.  When approved, the plans will be endorsed and will then form part of this permit.  The plans must be drawn to scale with dimensions, and three copies must be provided.  The plans must be generally in accordance with the plans identified as A-000 Rev A, dated 12.12.18; A-101 dated 26.10.18; A-102 dated 26.10.18; A-103 dated 26.10.18; A-104 Rev A, dated 12.12.18; A-105 Rev A, dated 12.12.18; A-106 dated 26.10.18; A-201 Rev A, dated 12.12.18; A-202 Rev A, dated 12.12.18, A-301 Rev A, dated 12.12.18; A-703 Rev A, dated 12.12.18, prepared by Matt Gibson a + d Pty Ltd but modified to show:
(a)	a modification to the brick fence and the ‘hit-and-miss’ brick wall along Alfred Crescent in accordance with the plans identified as A-201, Proposed Elevations Set 2, Proj. 1706, Revision B, dated 21.05.20, VCAT Issue, prepared by Matt Gibson a + d Pty Ltd
(b)	replacement of the study roof with an extension of verandah roof, generally in accordance with the plans identified as A-106 Proposed Roof Plan Set 2 and A-201 Proposed Elevations Set 2, Proj. 1706, Revision B, dated 21.05.20, VCAT Issue, prepared by Matt Gibson a + d Pty Ltd.  The ‘hit-and-miss’ wing wall abutting the study must be reduced to be of a similar height to the wing walls of the neighbouring single-storey terrace row at 14-24 Grant Street
(c)	the chimney reduced in height by 1.0 metre
(d)	the front fence extended to entire frontage of Grant Street
(e)	the pool and decking levels on relevant elevations.  Compliance with the clause 54.04-6 (overlooking objective) of the Yarra Planning Scheme in respect of views from the deck must be demonstrated
(f)	the first floor Bedroom 3 screened in compliance with clause 54.04-6 (overlooking objective) of the Yarra Planning Scheme
(g)		the proposed ground level on-boundary wall shown on south-east elevation, separate to the internal south-east elevation
(h)		the B85 vehicle turning template in the lane, adjacent to the entry of the garage
(i)	all windows facing into the proposed courtyard of the new dwelling screened in accordance with standard A15 at clause 54.04-6 of the Yarra Planning Scheme with the details submitted (including a 1:50 cross section and sightlines) to demonstrate compliance
(j)	graffiti proof finishes applied to boundary fences and walls facing public property
(k)	a schedule of construction materials, external finishes and colours.
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
3	Within two months of the works being completed, or by such later date as approved in writing by the responsible authority, any damage to Council infrastructure resulting from the development must be reinstated:
(a)	at the permit holder’s cost; and  
(b)	to the satisfaction of the responsible authority. 
4	Within two months of the works being completed, or by such later date as approved in writing by the responsible authority, all new on-boundary walls must be cleaned and finished to the satisfaction of the responsible authority.
5	Except with the prior written consent of the responsible authority, demolition or construction works must not be carried out:
(a)		Monday-Friday (excluding public holidays) before 7.00 am or after 6.00 pm; 
(b)		Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9.00 am or after 3.00 pm; or
(c)		Sundays, ANZAC Day, Christmas Day and Good Friday at any time. 
6	This permit will expire if:
(a)		the development is not commenced within two years of the date of this permit; or 
(b)		the development is not completed within four years of the date of this permit.
The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards for commencement or within twelve months afterwards for completion. 
– End of conditions –