VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P1834/2019
Permit Application no. PLN19/0189	

CATCHWORDS	
Section 82 of the Planning and Environment Act 1987;  Yarra Planning Scheme:  Neighbourhood Residential Zone;  Heritage Overlay;  Partial demolition and extension to dwelling;  Heritage Policy;  Neighbourhood character;  ResCode	

APPLICANT	Stuart Smith	
responsible authority	Yarra City Council	
RESPONDENT	Peter Schreiber	
SUBJECT LAND	31 Council Street, Clifton Hill	
WHERE HELD	Melbourne	
BEFORE	Geoffrey Code, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	15 September 2020  	
DATE OF ORDER	12 October 2020	
CITATION	Smith v Yarra CC [2020] VCAT 1140	

Order
Permit application amended
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by changing the name of the permit applicant to:
Peter Schreiber
Name of respondent amended
2	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the respondent’s statement of grounds is amended by changing the name of the respondent to:
Peter Schreiber
Decision affirmed
3	The decision of the responsible authority is affirmed. 
Permit granted
4	In planning permit application PLN19/0189 a permit is granted and directed to be issued for the land at 31 Council Street, Clifton Hill in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Part demolition and construction of a ground floor and first floor extension to the existing dwelling

Geoffrey Code
Senior Member			

Appearances
By video conference
For Stuart Smith	In person	
For Yarra City Council	Mr Robert Galpin, Senior Statutory Planner, Yarra City Council	
For Peter Schreiber	Ms Felicity Slattery, architect, Studio Esteta	

Information
Brief description of proposal	Partial demolition and construction of a ground floor and first floor extension to a dwelling	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit 	
Planning scheme	Yarra Planning Scheme	
Zone and overlays	Neighbourhood Residential Zone Schedule 1 (NRZ1) (Yarra Residential Areas)
Heritage Overlay Schedule 317 (HO317) (Clifton Hill Western Precinct)	
Permit requirements	Clause 32.09-5 (construction and extension of one dwelling on a lot in NRZ)
Clause 43.01-1 (partial demolition of a building and construction of buildings and works in a HO)	
Relevant scheme policies and provisions	Clauses 15, 16, 18, 21.04, 21.05, 21.07, 21.08, 22.02, 22.07, 22.16, 32.09, 43.01, 54, 65 & 71.02	
Incorporated documents	City of Yarra, Review of Heritage Overlay Areas (2007, revised 2019)	
Land description	The land is on the south-west corner of Council Street and Hilton Street.  It is rectangular in shape with a frontage of 7.62 metres, a depth of 24.23 metres (west side boundary) and an area of about 184 m2.  It adjoins a lane to the rear.  The land contains a single-storey dwelling built to the whole of Council Street and to part of Hilton Street.  The building has a 1.3 metres wide corner splay which was the entry to a former shop.  The land falls about 1.8 metres from its north-west corner on Council Street to the its south-east corner on the rear lane.  There are no relevant constraints relating to easements, covenants or significant vegetation.	
Tribunal inspection	On 11 October 2020, I viewed the subject land, 15 Hilton Street and the neighbourhood, all from the public realm	

Reasons
What is this proceeding about?
1	Mr Schreiber wants to extend and upgrade his home on the subject land.
2	The subject land is in a heritage precinct under the Yarra Planning Scheme (the Scheme) known as the Clifton Hill Western Precinct (the precinct).
3	Mr Schreiber applied to Yarra City Council (the Council) for a permit under the Scheme to demolish the rear of the dwelling and to construct a two-storey extension (the proposal).
4	Mr Smith owns and occupies a dwelling at 15 Hilton Street which adjoins the subject land to the south on the south side of a 3 metres wide lane which separates his dwelling from Mr Schreiber’s dwelling.  Mr Smith objected to the Council against the grant of a permit.
5	The Council decided to grant a permit subject to conditions.  Mr Smith has applied to review that decision.  Mr Smith’s main concern is the bulk and mass of the proposal in Hilton Street. 
6	Under the Scheme, permission is required under both its heritage provisions and its provisions for extending a dwelling, principally provisions known as ResCode.  Under both provisions, relevant policy must also be considered.  
7	My task is to determine what is the correct and preferable decision based on the submissions in this proceeding and based on the relevant considerations under the Scheme.  I must find if the proposal is an acceptable planning outcome after balancing any conflicting policy objectives in favour of net community benefit and sustainable development.
8	For the following reasons, I find the proposal is an acceptable planning outcome and a permit should be granted.
heritage
9	Permission is required to demolish the rear of the dwelling and construct the two-storey extension.
10	The dwelling on the subject land is graded ‘contributory’.  Adjoining buildings are also graded contributory.  The heritage place is the precinct.  The contributory elements in the precinct are, in summary, the detached and attached mainly one-storey houses built in the Victorian and Edwardian eras, together with some twentieth century commercial and industrial buildings.  The subject land is near the southern end of the precinct.  It ends about 35 metres further south in Hilton Street, when the contributory elements give way to ungraded, larger, those more contemporary commercial and industrial buildings.
11	The demolition of the building’s non-original fabric is not in dispute and is acceptable.  The reconstruction and restoration of existing fabric (for example, replacement of window detailing) is also not in dispute and I agree with the Council’s heritage adviser, in her report to the Council’s planning staff, that such works are acceptable.
12	It is not in dispute that the extension will not adversely affect the significance, character and appearance of the dwelling.  It is a contemporary addition that is sufficiently separated from the original contributory fabric.  The addition is set back 11 metres from Council Street and will sit below the parapet of the contributory fabric when viewed from across Council Street, in accordance with policy.
13	What is in dispute is the interface of the addition to Hilton Street and the rear lane.  Mr Smith’s main objection on heritage grounds is that the zero setback of the two-storey extension to both Hilton Street and the lane, with a 7.6 metres wall height to the lane, is an unacceptable response to, and will adversely affect, the significance, character and appearance of the heritage place.
Hilton Street interface
14	I find the two-storey zero setback to Hilton Street results in a highly visible form in Hilton Street but is acceptable, for the following reasons.
15	First, Mr Smith seeks to apply the general policy for additions as if the addition was to a building in a mid-block location.  Development guidelines in general policy ‘encourage setbacks from the principal street frontage to be similar to those of adjoining contributory buildings’ and ‘encourage similar façade heights to the adjoining contributory elements in the street’.  
16	Mr Smith points to the lower façade at 15 Hilton Street, which has a façade height at the gabled roof ridge of RL 30.61 metres, as opposed to the addition’s façade height of RL 33.05 metres.  He also points to the setback of the front room next to the lane at 15 Hilton Street of about 2 metres.
17	Mr Smith errs in this submission because this general policy must give way to more specific policy for corner lots to which I will shortly refer.  He also errs because I do not find Hilton Street to be the dwelling’s primary street frontage.  Mr Smith correctly identifies the building as an original shop building with a secondary residential entry at the side in Hilton Street.
18	However, Mr Smith maintains this entry (which still exists) is a primary street frontage or at least a relevant street frontage because, based on advice he obtained by the Council’s valuation staff, the dwelling should have a Hilton Street address.
19	For heritage purposes, the lot and the building faces Council Street.  It was constructed and used as a shop with an entrance off Council Street right at the intersection.  The side residential entry was secondary.  This is confirmed by a 1901 Melbourne and Metropolitan Board of Works plan of existing buildings tendered by the Council.  An address that might be relevant for valuation or other purposes is not relevant for heritage purposes.
20	Second, I agree with the Council that Hilton Street south of Council Street is not a highly sensitive heritage context.  As I have mentioned, only a few buildings in this part of Hilton Street are included in the precinct.  To the south of the precinct, the larger, more contemporary, one and two storey commercial and industrial forms influence the character of this part of Hilton Street.
21	Third, the zero setback responds to more specific heritage policy for corner sites by reflecting the setbacks of buildings that occupy other corners of the intersection.  I will explain this in the following paragraphs.
22	The rear addition of the dwelling on the south-east corner at 33 Council Street is a two-storey addition with a part zero setback and part modest setback to Hilton Street and a part upper level that overhangs the footpath in Hilton Street.  Its two-storey roof form steps up immediately behind the existing single storey form and then steps down further to the rear as the rest of the addition is lowered along with the fall in the land to the south.  It also has a modest setback to the rear lane.
23	Mr Smith submitted the proposal did not reflect this addition because the addition did not wholly have a zero setback to Hilton Street and because it did not extend the full length of its lot.
24	Mr Smith relies on an interpretation of ‘reflect’ that is, in effect, close to ‘copies’ or ‘mimics’.  In my opinion, Mr Smith errs in his implied interpretation.  In context, ‘reflects’ connotes a more general comparison.  The step down in the roof form of that addition results from the direct or flush connection between the two-storey addition to the existing single storey building.
25	On the other hand, the proposal includes a single-storey connection with a lower roof form between the existing single storey form and the two-storey addition.  This creates a prominent visual gap between the existing building and the addition, which is more responsive to current policy.  I would not apply ‘reflect’ in a way that resulted in removal of the gap and consequential inconsistency with current policy, as in the addition at 33 Council Street.
26	The proposal also reflects the setbacks on the other two corners of the intersection.  On the north-west corner at 46 Council Street, there is a zero setback to Hilton Street for the original building along the full length of the lot.  On the north-east corner at 48 Council Street, the Council has issued permission to construct a two-storey addition that has a zero setback to Hilton Street to the two-storey form.
27	Fourth, the setbacks of buildings facing Hilton Street are inconsistent but modest, including the 2 metres minimum street setback from the façade at 15 Hilton Street.
28	Fifth, the proposal incorporates design features which lessen the visual impact to Hilton Street.
29	These include a lower ceiling height (2.6 metres, compared to 3.4 metres in the retained dwelling) in the single storey connection between the dwelling and the addition. They also include a 860 mm lower ground floor (than the dwelling floor) in the main section of the addition.  This ensures an overall building height to Hilton Street of 7.6 metres, rather than at least 8.4 metres.  
30	The other design feature to mention is the subdued materials and colours in the addition, comprising a soft brown brick (at ground level) and timber battens at the upper level.  The subdued appearance will help focus attention on the restored contributory fabric.
31	Sixth, I am unable to give significant weight to Mr Smith’s ‘photoshopped’ images of the proposal in the street, partly because they are not independently and professionally prepared in accordance with the Tribunal’s requirements for such images and partly because the images are presented in solid black form and do not show the subdued materiality.
Lane interface
32	The addition is 4 metres wide and has a two-storey zero setback to the rear lane.  As it is only 4 metres wide, there is space for a 3.6 metres wide courtyard to the west of the addition located behind an existing brick wall about 3.5 metres high on the lane.  The lane facade of the proposal includes similar materiality to the Hilton Street façade and includes a wider than average pedestrian entry to a store room.
33	Mr Smith submits the proposal has an unreasonable character impact, contrary to policy for development abutting a lane.  Mr Smith relies on the setback of the addition at 33 Council Street from its abutting lane in support of his submission.
34	I find the lane interface also results in a highly visible form in the lane but is acceptable, for the following reasons.
35	It is respectful and does not adversely affect the appearance or significance of the contributory building at 15 Hilton Street because the lane creates a 3 metres wide separation.  In fact, the addition is opposite a separation of 3.6 metres because the dwelling at 15 Hilton Street is set back 600 mm from the lane boundary opposite the addition.  Any ‘matching’ of façade heights in lanes is not encouraged by policy.
36	A zero setback of single storey walls or buildings are commonplace in the precinct.  However, in this precinct, there are sufficient examples of two-storey walls built to a lane for the proposal to be respectful of existing character.  The Council included images of such walls.
37	As well, the addition is only 4 metres wide and does not occupy the whole lane interface of the lot.
38	In planning decision making, it is sometime necessary to balance conflicting policies.  To the extent that heritage policy may conflict with ResCode, the proposal represents more consistency with ResCode in relation to the lane interface because, if the addition was either full lot width or relocated to the west side of the lot, the amenity outcome under ResCode would have been significantly poorer.
39	This is because the addition would be opposite a habitable room window at 15 Hilton Street (and thus removing its favourable northern outlook) and would overshadow the abutting secluded private open space at the rear of 29 Council Street.
rescode
40	Mr Smith contends the proposal fails to meet various ResCode objectives or standards.
41	Mr Smith contends the proposal fails to meet neighbourhood character objectives, having regard to the addition’s interfaces to Hilton Street and the lane.  I agree with the Council that, in a heritage overlay, the applicable neighbourhood character is generally drawn from the precinct’s heritage character.  I have already given my findings about that character.
42	However, in a ResCode context, it is relevant to consider the character of Hilton Street outside the precinct because the area outside the precinct is so close.  In this area to the south in Hilton Street, there are (as I have stated) single and double storey commercial and industrial buildings, often wholly or partly built with a zero street setback.  The proposal responds to this character.  Accordingly, the character objective is met.
43	Mr Smith contends the street setback standard and objective is not met because the setback to Hilton Street is not 2 metres.  The standard is met because the 2 metres minimum would be the standard only if 15 Hilton Street was an abutting lot facing Hilton Street.  15 Hilton Street does not abut the subject land because of the intervening lane.  It adjoins but it does not abut.  Mr Smith errs in his application of the standard.
44	Mr Smith contends the building height standard is not met.  I disagree.  The standard is for a maximum height of 9 metres or two storeys at any point, which is clearly met for the addition.
45	The standard is provides that ‘[c]hanges of building height between existing buildings and new buildings should be graduated’.  Mr Smith claimed the difference in height between the single storey dwelling at 15 Hilton Street and the two-storey addition is not graduated.  A one storey difference is commonly accepted as a graduation.  In addition, there is only about 2.5 metres between the maximum height of the addition and 15 Hilton Street and I consider this a sufficient graduation.
46	Mr Smith contends the rear and side building setbacks standard is not met.  This standard does not apply because there is zero setback to Hilton Street and the lane.  The standard applies to the buildings not on or within 200 mm of those boundaries.  The relevant standard is the wall on boundary standard.
47	The walls on boundary standard is met in relation to the length of the walls facing Hilton Street and the lane, but is not met in relation to height above 3.6 metres.  The relevant decision guidelines require consideration of the design response and extent to which walls on boundaries are part of the neighbourhood character and whether the boundary abuts a lane, among a range of matters.
48	Having regard to my findings on heritage matters, the proposal satisfactorily responds to these guidelines and I therefore find the relevant objective of respect for existing character and limiting amenity impacts on existing dwellings is met.
49	In conclusion, the proposal is a satisfactory response to ResCode requirements.
other issues
50	I now deal briefly with other grounds relied on by Mr Smith.
Misrepresentations
51	Mr Smith relied on claimed misrepresentations by Mr Schreiber about the state of disrepair of the dwelling on the subject land and about the condition of the lane.
52	Misrepresentations, if any, by a permit applicant are not relevant to a merits review of a subsequent decision.  As I told Mr Smith, I must make a fresh decision based on the relevant considerations and the submissions and evidence in this proceeding.  In any event, whether the dwelling or parts of it are in some form of disrepair and whether or how the lane is constructed are not relevant, on the facts and circumstances in this proceeding.
Graffiti, noise and hypocrisy
53	Mr Smith also relied on grounds relating to the extension being a magnet for graffiti, to the entry off the lane resulting in unreasonable vehicle noise associated with store room use associated with Mr Schreiber’s occupation (carried on elsewhere) and to Mr Schreiber’s alleged hypocrisy in objecting to a development proposed on other land in Hilton Street on heritage grounds.  As I told Mr Smith at the hearing, none of these grounds are relevant and I give no weight to them.
Different design response
54	Mr Smith submits a preferred design response is one which locates the addition on the west side of the lot, generally in accordance with the existing footprint.  It is well established that my task is to decide the proposal before me and not to consider if a different proposal might be preferred.  In any event, I have already pointed to the poorer amenity outcomes with a design response with Mr Smith’s preferred footprint.
Other decisions
55	At the hearing, Mr Smith relied on what he described as ‘precedents’, being the Council’s 2011 decision and delegate report to refuse development at 37 Council Street and three Tribunal decisions.  He told me he did not rely on the similarity of the relevant facts in all those decisions, but he did rely on how the decision makers applied the relevant heritage and ResCode principles.
56	I am not bound by precedent.  I must determine this proceeding based on the facts and circumstances in this proceeding.  Application of principles in other decisions may be, at its highest, a guide.  However, the application of principles is in a specific factual and legal context.  The legal context of those decisions is also different to that in this proceeding, such as a different planning scheme or a different heritage overlay.  I have considered Mr Smith’s ‘precedents’ but I do not find them helpful in this proceeding.
What conditions are appropriate?
57	The conditions in the Council’s notice of decision are acceptable and no variation is required.
Conclusion
58	For the above reasons, I will affirm the Council’s decision.  I will grant a permit subject to conditions.

Geoffrey Code
Senior Member			

Appendix A

Permit Application Number	PLN19/0189	
Land	31 Council Street, Clifton Hill	

What the permit allowS	
In accordance with the endorsed plans:
•	Part demolition and construction of a ground floor and first floor extension to the existing dwelling	

Conditions
1	Before the development commences, 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 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 decision plans but modified to show:
(a)	The title boundaries clearly shown on the Ground Floor Plan, First Floor Plan and Site/Roof Plan, demonstrating that all new buildings and works will be contained entirely within the title boundaries;
(b)	Full details of the new arched windows comprising double-hung timber windows with Victorian-era detailing, including window horns;
(c)	The location of the permeable rain gardens as detailed in the submitted STORM rating report;
(d)	The western elevation clearly showing natural ground level, with overall building height dimensioned;
(e)	The western balustrade of the first-floor deck screened to comply with the objective of Clause 54.04-6 (Overlooking objective) of the Yarra Planning Scheme;
(f)	A plan notation stating that the southern tilt panel door will be designed so that it opens entirely within title boundaries;
(g)	The schedule of colours and finishes amended to provide a new galvanized corrugated steel sheeting finish (Unpainted Heritage Grade Z600) to the original roof form.
2	The development as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
3	Before the building is occupied, 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.
4	Before the development is occupied, or by such later date as approved in writing by the Responsible Authority, all screening and other measures to prevent overlooking as shown on the endorsed plans must be installed to the satisfaction of the Responsible Authority. Once installed the screening and other measures must be maintained to the satisfaction of the Responsible Authority.
5	Within 2 months of the completion of the development, or by such later date as approved in writing by the Responsible Authority, the redundant vehicular crossing along Hilton Street must be demolished and re-instated as standard footpath and kerb and channel:
(a)	at the permit holder's cost; and
(b)	to the satisfaction of the Responsible Authority.
6	Before the building is occupied, 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.
7	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 am or after 6 pm;
(b)	Saturdays and public holidays (other than ANZAC Day, Christmas Day and Good Friday) before 9 am or after 3 pm; or
(c)	Sundays, ANZAC Day, Christmas Day and Good Friday at any time.
8	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 –