VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P257/2020
Permit Application no. PA1943835	
CATCHWORDS	
Application under Section 77 of the Planning and Environment Act 1987; review of refusal to grant a permit; Hobsons Bay Planning Scheme; General Residential Zone; Heritage Overlay; part demolition and alterations and extensions to the existing dwelling; neighbourhood character; heritage values and amenity          	

APPLICANT	Hatem Elbodon	
responsible authority	Hobsons Bay City Council	
SUBJECT LAND	73 John Street, Williamstown	
WHERE HELD	Melbourne	
BEFORE	Christopher Harty, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	14 August 2020   	
DATE OF ORDER	21 September 2020	
CITATION	Elbodon v Hobsons Bay CC [2020] VCAT 1049	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal: 
Architectural plans prepared by:		BDN Projects	
Drawing number:	Cover Page  	
Revision:	A	
Dated:	03/07/20	
Drawing number:	00PA	
Revision:	A	
Dated:	22/05/19	
Drawing numbers:	01PC, 50PC and 53PC 	
Revision:	C	
Dated:	03/07/20	
Drawing numbers:	10PD, 11PD, 12PD, 13PD, 51PD, 52PD, 60PD, 61PD, 62PD and 63PD	
Revision:	D	
Dated:	03/07/20	
2	Pursuant to section 127 Victorian Civil and Administrative Tribunal Act 1998, Hobsons Bay City Council’s grounds of refusal are amended by deleting reference to the following grounds: 
•	Site coverage
•	Side and rear setbacks
•	Walls on boundaries
3	In application P257/2020 the decision of the responsible authority is set aside.
4	In planning permit application PA1943835 a permit is granted and directed to be issued for the land at 73 John Street, Williamstown in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Part demolition and construction of alterations, extensions and additions to the existing dwelling

Christopher Harty
Member			

Appearances
For Hatem Elbodon	Mr Hew Gerrard, Town Planner from Glossop Town Planning	
For Hobsons Bay City Council	Ms Louise Lunn, Town Planner from Louise Lunn Planning	

Information
Description of proposal	Part demolition and construction of alterations and double storey extensions and additions to the rear of the existing single storey Victorian era dwelling.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Hobsons Bay Planning Scheme	
Zone and overlays	General Residential Zone Schedule 2 – Altona, Seaholme, Part Williamstown and Part Newport Residential Areas (GRZ2)
Heritage Overlay – HO27 – Private Survey Heritage Precinct (HO27)	
Permit requirements	Clause 32.08-5 to construct or extend a dwelling on a lot less than 500 square metres
Clause 43.01-1 to demolish a building and to construct or carry out works	
Relevant scheme policies and provisions	Clauses 11, 15, 21.06, 22.01, 22.10, 32.08, 43.01, 54, 65, 71.02 and 72.04   	
Land description	The subject land at 73 John Street, Williamstown (site) is an irregular shaped lot located on the south side of the street.  It has a narrow frontage width of 5.83 metres and depth of 41.63 metres broadening out to a width across the rear boundary of 16.83 metres.  The site has an overall area of 443 square metres.  Vehicular access is available from the end of a rear laneway which has access from John Street.  The site is currently occupied by a single storey Victorian weatherboard dwelling with pitched roof and outbuildings.  The dwelling is listed as being contributory to the Private Survey Heritage Precinct (HO27).  The adjoining dwelling to the west at 75 John Street is also listed as contributory, whilst the dwelling to the east at 71 John Street is not.
The site is located within an established residential neighbourhood characterised by weatherboard dwellings, many with rear extensions that include both single and double storey-built form.  	

Reasons
What is this proceeding about?
1	Hatem Elbodon (applicant) seeks to partly demolish the rear and part of the back eastern façade of the existing single storey Victorian era weatherboard dwelling at 73 John Street, Williamstown (site) and construct alterations and double storey additions and extensions, including a small basement at the rear of the development (refer to Figures 1 to 4). 

Figure 1: Ground floor plan
2	Hobsons Bay City Council (Council) determined to refuse the application and the applicants seek a review of Council's decision by the Tribunal.
3	Council's grounds for refusing the application relate to:
•	The extent of demolition
•	The visual dominance and impact of the proposed works on the contributory dwelling and heritage precinct.
•	The proposed materials used for the development.
•	Non-compliance with Clause 54 provisions relating to neighbourhood character, overshadowing and detailed design.
4	

Figure 2: Upper floor plan 

Figure 3: East elevation
5	There were also statements of grounds received from four objectors who were not parties to the proceeding, which raised similar issues to that of Council and in addition, concerns regarding overlooking and lack of car parking.  I have had regard to these issues.
6	In contrast, the applicant contends the proposal is appropriately designed for its location.  The proposal seeks to improve the existing dilapidated condition of the existing dwelling and to modernise it for living purposes.  The extent of demolition is proposed at the rear of the dwelling, while the proposed additions are located to the rear and well recessed from the streetscape and contemporary in design.    

Figure 4: Streetscape view
7	The applicant contends that the proposal generally complies with the requirements of the Hobsons Bay Planning Scheme and achieves an acceptable outcome.
What are the key issues?
8	The issues raised within the context of this review relate generally to the proposal's response to policy and its design response to heritage and neighbourhood character and off-site amenity.
9	Having heard the submissions, the key issues arising from this proposal are:
•	Does the proposal appropriately respond to planning policy, heritage values and neighbourhood character?
•	Will there be any unacceptable impacts on amenity?
10	I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the Hobsons Bay Planning Scheme.  Net community benefit is central in reaching a conclusion.  Clause 71.02-3 - Integrated Decision Making of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.  
11	With this proposed development I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regards to the applicable policies and provisions of the Hobsons Bay Planning Scheme, I find the proposal represents an acceptable outcome. 
12	I have decided to set aside the decision of Council and direct that a permit be granted subject to conditions contained in Appendix A.  My reasons follow.
Does the proposal appropriately respond to planning policy, heritage values and neighbourhood character? 
13	The site is in the General Residential Zone Schedule 2 (GRZ2), which has the purpose of implementing planning policy, encouraging development to respect the neighbourhood character of the area and encouraging a diversity of housing types.  
14	The site is also affected by the Heritage Overlay and the Private Survey Heritage Precinct under HO27.
15	These two controls trigger permit requirements that raise my consideration of issues relating to heritage values associated with the precinct the site finds itself within and neighbourhood character.
Heritage values
16	Regarding heritage values, the site is in the HO27 - Private Survey Heritage Precinct and identified as contributory to the precinct.  
17	HO27 covers a large area north of Ferguson Street, Williamstown and reflects the early private subdivisional nature of how the area developed in contrast to the area south of Ferguson Street, which developed under Government survey and related to early port development in Williamstown.  The statement of significance from the Hobsons Bay Heritage Study Amended 2017 outlines that generally the private survey area was more closely aligned to growth that occurred in association with early development of the railways and manufacturing.  The significance relates to local historic, social and aesthetic significance to the City of Hobsons Bay.
18	The statement of significance generally identifies housing in John Street as predominantly comprising of single and double-fronted, detached, late-Victorian houses and a few Edwardian and later styles.  The houses are set back from the street boundary by a garden.  Fences are not original, but are low and sympathetic.  Integrity and cohesion is quite good as there are few post-war dwellings. 
19	Council is concerned the proposal is not appropriate given its response to heritage values of the HO27.  Ms Lunn submitted the proposal would dominate the intact heritage character of the streetscape in terms of height and scale and hence its visibility to the public realm.
20	Council’s position in this regard was supported by the response from its Heritage Advisor, who advised that the proposal displays bulk, mass, overwhelming form and a dominant negative impact on the original building, the streetscapes and heritage precinct.  
21	Council’s concerns related to both demolition and new development.
Proposed demolition
22	Regarding demolition, the proposal seeks to remove and replace the existing front verandah, front door and front window.  Although Council had concerns regarding this work, primarily from the viewpoint of lack of information, Ms Lunn conceded it is an issue that can be addressed via conditions.  Mr Gerrard agreed, and I accept the position of the parties in this regard.  Conditions can be imposed to address how works to the front façade are managed.
23	The more substantial concern of Council was with regards to the removal of part of the cladding and three small windows on the eastern elevation of the existing dwelling.  Ms Lunn submitted the removal of the three windows results in the loss of part of the primary structure of the dwelling and which provides an understanding to how the dwelling would have functioned.
24	In their place, it is proposed to create two large spaces within which French doors and sliding doors are to be located, which Council considers were never part of single fronted Victorian dwellings.  
25	Although located on the side elevation of the dwelling, Ms Lunn argued these windows are visible from oblique views and hence their removal represents loss of significant heritage fabric that affects the significance of the heritage place.
26	The proposal also includes removal of a rear lean-to section of the dwelling to which Council has no concerns.
27	Mr Gerrard submitted the side windows are difficult to see and their removal does not affect the primary façade of the dwelling.  He reiterated that the extent of demolition is to the rear with the original built form of two rooms in depth being retained.  Removal of the side windows will have minimal impact on how the dwelling is read or viewed from the street and will not undermine the integrity of the significance of the heritage place.
28	I agree with Mr Gerrard regarding the extent and nature of the demolition.  The site has a very narrow frontage of 5.83 metres and widens towards the rear to a width of 16.18 metres.  The eastern side boundary widens out at an angle (the western side boundary remains perpendicular to the street).  The effect of this irregular shape is that oblique views are limited and lineal in nature as can be seen in Figure 5.  The presence of the existing dwelling and the adjoining dwelling to the east at 71 John Street means there is little scope for what could be described as a significant oblique view of the windows.  

Figure 5: Oblique view of the existing dwelling looking along the eastern elevation with the adjoining dwelling to the left.
29	The streetscape view of the site with the front of the existing dwelling, together with its roof form and chimney will remain the dominant feature.  
30	In this regard I am satisfied the extent and nature of the proposed demolition works are acceptable.
Proposed additions 
31	Regarding additions, Council considered the double storey-built form of the design response would be visually dominant to the heritage precinct.  The effects of the proposal would be impacts to the heritage streetscape character of both John Street and College Street to the east.  
32	The main contributors to the impact include the visibility of the additions from oblique views between the site and adjoining dwelling to the east.  This is exacerbated by the proposal at ground floor for an ensuite that sits forward of the existing dwelling by approximately 1.2 metres.  The upper storey additions will also be visible from John Street and around the corner in College Street (with side views of the length of the additions).
33	Council also considers that not only will the proposal dominate the heritage streetscape of the area, but will also dominate the modest, single storey, single fronted weatherboard contributory dwelling on the site due to:
•	the double storey scale of the additions and minimal separation between the existing dwelling and the additions with no use of a link or built form that would clearly break or differentiate the additions from the existing dwelling;
•	the proposed flat roof form;
•	the angled and perpendicular walls and elevations of the upper storey where the additions extend out following the angled alignment of the eastern side boundary and extend towards the rear of the site with extensive built form across the length and breadth of the site; and
•	materials that include horizontal screening on the northern elevation of the upper storey, which is considered at odds with the weatherboard nature of the existing dwelling.   
34	Many of these features also have relevance to issues relating to neighbourhood character.
35	The applicant refutes Council’s position on the basis that:
•	the proposal will retain the existing dwelling as a single storey-built-form;
•	the double storey additions will be setback 17.3 metres from the street frontage and approximately 12 metres behind the front façade of the existing dwelling;
•	a sightline diagram shown in the amended plans demonstrates the proposed design is consistent with the requirements under the Guidelines for Alterations and Additions to Dwellings in Heritage Areas in Hobsons Bay 2006 (Heritage Guidelines).  The setback of the upper storey will not be visible from directly opposite the site on the northern side of John Street;
•	retention of the existing hipped roof form of the existing dwelling and setting the upper storey behind it provides appropriate visual separation between the additions and the existing dwelling;  
•	the northern face of the upper storey provides a contemporary and distinctive design response with horizontal screens proposed to ensure the first-floor windows are not visible from the street (Mr Gerrard suggested that a timber type screening material could better reflect the façade of the existing dwelling, which can be addressed by way of permit condition);
•	at ground level, those elements which would be visible within the streetscape (albeit significantly recessed) would also be clad and finished in complementary materials to the existing dwelling;
•	the proposed flat roof design is contemporary to differentiate the additions from the heritage values of the existing dwelling; and
•	the visibility of the proposed additions from College Street would have minimal material impact on this streetscape, particularly given narrow condition of College Street, the setbacks involved and the presence of contemporary development that occurs in this street.     
36	I find the arguments of the applicant convincing.  The proposal represents a development that appropriately responds to the heritage values of the locality and conditions of the site.  I acknowledge the proposed additions are significant in size and extent.  However, I consider they will read as a contemporary design that is recessed and separate from the existing Victorian dwelling.  
37	I find that the combination of setbacks and shape of the site together with the retention of the front portion of the existing dwelling, its roof form and chimney all contributes to a design response that is sympathetic and appropriate to the heritage values of this part of the HO27 precinct and streetscapes.
Neighbourhood character
38	With respect to neighbourhood character, policy seeks to generally encourage a built form design response that is respectful of dominant building styles, heritage buildings and streetscapes of the neighbourhood.
39	Issues relative to neighbourhood character considerations are similar to what I have considered with respect to heritage.  Council’s concerns relate to:
•	The scale of the proposed additions.
•	The lack of setback of the upper storey from the eastern elevation of existing dwelling.
•	The absence of a formal link between the existing dwelling and the proposed additions.
•	The location of the ground floor ensuite parallel with the rear eastern wall section of the existing dwelling.
•	The screening on the northern elevation which contributes to the sense of bulk given that surrounding dwellings are generally single storey and weatherboard.  
40	This part of Williamstown is experiencing change with many of the existing dwellings in the heritage precinct having undergone relatively large extensions and additions including double storey form.  It is noted, that in the main, the existing era dwellings are retained and improved to maintain the heritage values of the precinct’s streetscape. 
41	Regarding neighbourhood character and the policy objectives and design responses for Precinct 7 – Williamstown under Clause 22.10, the front setback and garden area will be retained.  New development will be contemporary and distinguishable from the existing dwelling.  The proposed additions are 6.73 metres in height, which I consider modest and respectful.  Setback requirements under Clause 54 are all satisfied and site coverage at 59% which is considered reasonable given the inner suburban setting found in the area.
42	Generally, I do not consider the development to be at odds with the neighbourhood character of the area.  
Will there be any unacceptable impacts on amenity?
43	Amenity impacts relate to off-site amenity issues associated with overshadowing to secluded private open space areas of adjoining dwellings.
44	Ms Lunn expressed the view that Council were not contesting this issue.  
45	Irrespective, it has been mentioned by non-parties.
46	I note that the secluded private open space of 29 College Street to the east has an area of 32 square metres (75% equates to 24 square metres).  Standard A14 in Clause 54.04-5 is not currently met.  The Standard states that no additional overshadowing should be cast onto these areas.
47	The applicant submitted that the proposal would cast 0.1 square metres of additional shadow over the secluded private open space of 29 College Street at 2.00 pm.  I do not consider this extent of non-compliance unreasonable as it will be imperceptible and have no significant impact on the amenity of the dwelling.
48	Regarding the secluded private open space to 75 John Street, it has an area of 75 square metres.  Standard A14 is currently met but would not be satisfied as a result of the proposal at 10.00 am.  The area of secluded private open space not overshadowed would be reduced by 8 square metres to 36 square metres at this time.  I find this level of impact acceptable in an inner suburban area where lots typically have narrow widths with development located in proximity and where the effects of additional shadow cast are of limited duration during the hours of 10.00am to 3.00pm.
49	Non-parties also raised issues with overlooking.  I note that the amended plans show screening of habitable room windows with 25% transparency.  This complies with the requirements of Standard A15 of Clause 54.04-6.  I find this an acceptable design response and outcome.
Other matters
50	Car parking issues were raised in the statement of grounds from no-parties.  The proposal intends to utilise the rear laneway access with a single car garage.  I have no concerns with this proposal.  The requirements of Clause 52.06 relating to car parking are not applicable to an application to extend one dwelling on a lot in the GRZ.  What is proposed makes use of the existing on-site parking and infrastructure available to the site.
Conditions
51	In considering the draft conditions circulated by Council and deciding the conditions to be included on the permit I have had regard to them on a "without prejudice" basis and the submissions of the parties.  
52	Conditions 7, 8 and 9 suggested by Council have been deleted as they relate to matters of site security, reparations to infrastructure assets damaged as part of construction or soil retention and management that are matters usually addressed under the building approval process.
Conclusion
53	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Christopher Harty
Member			

Appendix A – Permit Conditions
Permit Application No	PA1943835	
Land	73 John Street, Williamstown	

What the permit allowS	
In accordance with the endorsed plans:
•	Part demolition and construction of alterations, extensions and additions to the existing dwelling	

Conditions
1	Before the development starts, three copies of revised plans drawn to scale and dimensioned, 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 substantially in accordance with the advertised plans, but modified to show to the satisfaction of the responsible authority:
(a)	A re-establishment survey plan of the subject land prepared by a licensed land surveyor showing the location of existing boundary fences and any other relevant land features in relation to the title boundaries.  Any discrepancies between the plans submitted for endorsement and the survey plan must be rectified to the satisfaction of the responsible authority.
(b)	A schedule of all external materials and finishes. The schedule shall show the materials, colour (including two sets of colour samples) and finish of all external walls, roof, fascias, window frames, fences and paving.
(c)	The use of a horizontal timber type form of screening with appropriate colour and profile on the northern face of the upper floor addition to replace the horizontal screening of windows and reflect the façade of the existing dwelling.
(d)	All wall cladding noted as 'weatherboard' on the endorsed plans must be timber weatherboards or an alternative material with a profile consistent with timber weatherboard cladding.
(e)	The positioning of all plant and equipment (including air conditioning units, heating units, hot water systems, etc.) which is proposed to be located externally.  Such plant and equipment must be positioned to prevent unreasonable noise and visual impact.
(f)	A written notation on the plans confirming that the door for the garage is to be remote opening.
(g)	The site layout and landscape plans must show the location for the storage of four bins, comprising three 120 litre bins and one 240 litre bin.  If bin storage is provided in a garage, the size of the garage must be increased to accommodate for this.
(h)	A notation on the site layout and elevation plans that all structures, wall and roof cladding, chimneys, fascias, window frames, fences, paving, and the like must be retained unless notated otherwise.
(i)	Fully-dimensioned detailed drawings at a scale of 1:20 of the verandah, front door and front window to be reinstated. 
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority.
3	Once the development has started, it must be continued and completed to the satisfaction of the responsible authority.
4	Except as otherwise specified in another condition of this permit, boundary fences must be replaced to the satisfaction of the responsible authority at no less than 1.8 metres and no more than 2.0 metres in height and at the cost of the owner unless otherwise agreed to in writing by the responsible authority.  
5	All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the responsible authority.
6	The garage must at all times be kept available for primary purpose of parking motor vehicles and must not be used for any other purpose.  The garage authorised under this permit must have either a panel lift door or a roller door and be remote opening to the satisfaction of the responsible authority. 
7	If the nature strip is damaged during construction of the development approved or during the construction of any services, it must be reinstated and made good, at the cost of the owner to the satisfaction of the responsible authority.  
8	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.
– End of conditions –