VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P733/2021
Permit Application no.D/420/2020 	

Applicant	Peter DiCiero	

Responsible Authority	Darebin City Council	
RespondentS	Grant Andrew Madden	
	John Martyn	
	Laura Toye and Jonathan Toye	
	Sam Spadafora	
	Tony Feneziani	

SUBJECT LAND	38 Oakhill Avenue
RESERVOIR VIC 3073	

HEARING TYPE	Hearing	

DATE OF HEARING	25 October 2021	

DATE OF ORDER	21 Februay 2022	

CITATION	DiCiero v Darebin CC [2022] VCAT 192   	

Order
Permit granted
1	In application P733/2021 the decision of the responsible authority is set aside.
2	In planning permit application D/420/2020 a permit is granted and directed to be issued for the land at 38 Oakhill Avenue RESERVOIR VIC 3073  in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Partial demolition and construction of buildings and works for an extension to an existing dwelling and a new detached garage on a lot in a Heritage Overlay, Schedule 172.
3	The responsible authority is directed to issue a modified planning permit in accordance with this order. 

Peter Gaschk
Member			

Appearances
For applicant	Peter English, Town Planner, with Peter English and Associates	
For responsible authority	Louise Lunn, Town Planner, with Louise Lunn Planning	
For respondents:
Grant Andrew Madden
John Martyn
Laura Toye and Jonathan Toye
Sam Spadafora
Tony Feneziani
	
In person

In person
In person

In person
In person	

Information
Description of proposal	The partial demolition and construction of buildings and works for an extension to an existing dwelling and a new detached garage.
A summary of the proposal is:
•	Partial demolition to the rear of the existing heritage dwelling.
•	Construction of a single storey addition incorporating a larger kitchen, living, and dining area.
•	Construction of a new detached garage, with upper level living room and two bedrooms. This building will be situated to the rear and accessed from Xavier Grove.
•	Provision of an additional vehicle access point and car parking area via Oakhill Road.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Darebin Planning Scheme (the Scheme)	
Zone and overlays	General Residential Zone, Schedule 2 (GRZ2)
Heritage Overlay, Schedule 172 (HO172)
Development Contributions Plan Overlay (DCPO)	
Permit requirements	Clause 43.01-1: To demolish a building and construct or carry out works on a lot.	
Relevant scheme policies and provisions	Clauses 11.01-1S, 11.01-1R, 11.02-1S, 15, 15.03-1S, 16, 21.02-4, 21.03-2, 21.03-4, 32.08, 65 and 71.02 	
Land description	The review site is regular in shape (with corner splay) having a maximum depth of 42.6m (northern boundary) and minimum depth of 40.5m, maximum width of 15.5m and an overall area of approximately 684sqm.
The land is located on the eastern side of Oakhill Avenue, on a corner at the intersection with Xavier Grove and opposite King William Street.
The site is developed with a single storey, brick and render heritage dwelling with a pitched tiled roof and prominent chimney.  A single garage is provided to the dwelling, accessed by a crossover to Xavier Grove.
40 Oakhill Avenue, to the north, is developed with a detached, single storey dwelling.  A driveway runs along the common boundary with the review site.
16, 18 and 20 Xavier Grove, to the east, are each developed with a detached single storey weatherboard Californian bungalow.  These dwellings display a consistency in setbacks, mass, and form.
12 and 14 Xavier Grove are each detached, weatherboard Californian Bungalows with upper storey additions.  The single storey scale then continues along the northern side of Xavier Grove for dwellings numbers 2 to 8.
The south side of Xavier Grove is generally developed with single storey detached dwellings of the Californian and Interwar Period, except for upper storey additions to number 1 Xavier Grove, located on the intersection with Xavier Grove and Capp Street.
Oakhill Avenue provides a diverse array of architectural styles with some dwellings providing upper storey additions and front car parking areas, including open carport structures.	
Tribunal inspection	Undertaken unaccompanied 11 February 2022.	

  Reasons
What is this proceeding about?
1	This is an application for review by Peter DiCiero (the applicant) under Section 77 of the Planning and Environment Act 1987 (the Act) against council’s Notice of Refusal to grant planning permit D/420/2020 (the permit application) for the partial demolition and construction of buildings and works for an extension to an existing dwelling and a new detached garage (the proposal), located on land at 38 Oakhill Avenue, Reservoir (the review site). 
2	Council refused the application on the following grounds:
1. The proposal does not meet the objectives of Clause 43.01 (Heritage Overlay) and the City of Darebin Heritage Review (2000) in particular:
a) The location, bulk, and appearance of the two-storey garage/living space is not in keeping with the character and appearance of adjacent buildings.
b) The two storey garage/living space will dominate the streetscape of Xavier Grove.
c) The proposal will adversely affect the significance, character and appearance of the heritage place and the existing single storey dwelling.
d) The proposed crossover and car parking space off Oakhill Avenue will adversely affect the heritage place.
3	The respondents support council’s refusal.  Their key concerns are summarised below:
•	Size and scale of the proposed double storey addition to the garage.
•	Precedent for similar developments within the heritage precinct.
•	Garage is considered a second dwelling/or will be converted to be one after development.
•	The site will be subdivided after development is completed.
•	Development will result in devaluation of surrounding dwellings.
•	Overlooking/privacy impacts from the double storey garage and balcony.
•	Overshadowing impacts to neighbouring dwellings.
•	Traffic impacts to the surrounding street network.
•	Insufficient first floor setback to balcony of garage.
•	Additional single crossover to Oakhill Avenue.
•	Removal of trees.
•	Proposed materials/colours for extension and garage.
4	The applicant submits the proposed partial demolition of the heritage building, including new addition to the heritage building and garage and vehicle crossover/parking to Oakhill Avenue, are appropriate under the sole planning permit trigger, the heritage overlay and relevant heritage policy and provisions under the Scheme.
the proposal
5	The proposal is described in the council’s submission as follows:
•	Partial demolition of the existing single storey dwelling as detailed in the demolition plan. Elements of the building to be demolished include bedroom 3, laundry and external staircase.
•	Construction of a single storey addition that provides for kitchen/dining and living with decking to the south and east with an overall height of 5 metres.
•	The addition will be constructed along the northern boundary for a length of 11.7 metres at a height ranging from 3.2m to 3.6m.
•	A 10-degree pitch skillion roof on the addition.
•	Materials include brick and extensive glazing.
•	Construction of a 6.6m x of 9.5m garage to the east of the dwelling constructed along the northern boundary for a length of 6.4m.
•	The upper storey of the garage provides for two bedrooms, bathroom facilities and a 1.5m deep verandah located on its southern elevation.
•	The upper storey and balcony cantilever over the lower level by a total of 2.0m.
•	The garage balcony will be setback from Xavier Grove 4.0m.
•	The garage will be set off the eastern boundary 1.8m.
•	The garage will be accessed from a 5.5m wide vehicle crossover located on the eastern boundary.
•	A single width concrete paving with proposed vehicle crossover on the north west corner of the site (Oakhill Avenue).
6	I note the final decision plans evolved from the plans lodged with the application, through to the final version that were supported by the council’s heritage adviser, as shown in the plan diagrams below:

Figure 1
7	The applicant describes the key design outcomes of the revised proposal in its submission as follows:
….. the proposal maintains the existing principal façade and building form as it addresses Oakhill Avenue and also as it wraps around the corner to Xavier Grove.  No modifications to the principal façades to either the west or south are proposed.  The only change along Oakhill Avenue would be the addition of a single visitor space which is discussed below.  While a new building is proposed to face Xavier Grove, this is the secondary frontage of the site, while the new building will have no impact on the integrity of the existing dwelling given it is a fully detached form.
What are the key issues?
8	In determining the key issues arising from this proposal, I must decide whether to grant a permit and, if so, what conditions should apply to a permit.  I must address whether the permit application will produce an acceptable outcome having regard to the relevant heritage policies and supporting provisions in the Scheme.  
9	Clause 71.02-3 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.
10	I accept submissions from the applicant and council that the sole permit trigger for this proposal is limited to the heritage overlay.  This is not a matter contested between the parties.
11	At the hearing it became clear that council’s key concerns, and those raised by respondents, related primarily to the proposed double storey form (loft area) of the garage building and additional vehicle crossover proposed to Oakhill Avenue, as opposed to the rear addition to the heritage dwelling, or issues relating to demolition.
12	Having regard to the relevant matters under the heritage overlay and associated policy provisions, including submissions, supporting material and documents put to me by all the parties, I consider the key issues for determination are:
•	Is the proposed demolition an acceptable heritage outcome?
•	Are the proposed alterations and additions to the heritage dwelling and other buildings and works acceptable?
13	In summary and subject to an additional condition restricting single storey building form to the proposed garage, I find the proposal will provide an acceptable response and design outcome to the heritage controls and objectives sought in HO172 provisions and associated provisions and objectives included in the Scheme.
PLANNING CONTROLS AND POLICY FRAMEWORK
Zoning
14	The review site is located within the General Residential Zone – Schedule 2 - (GRZ2) under clause 32.08 of the Scheme.  As I note above, no planning permit is triggered for this proposal under the GRZ of the DCPO.  My consideration of this matter is therefore confined to the HO172 and related policy provisions under the Scheme.   
15	At State Policy level clause 15.03-1S (Heritage conservation) is relevant to this matter.  A key objective of this clause is to ensure the conservation of places of heritage significance.  This is to be achieved by the following relevant strategies:
•	Provide for the conservation and enhancement of those places that are of aesthetic, archaeological, architectural, cultural, scientific, or social significance.
•	Encourage appropriate development that respects places with identified heritage values.
•	Retain those elements that contribute to the importance of the heritage place.
•	Encourage the conservation and restoration of contributory elements of a heritage place.
•	Ensure an appropriate setting and context for heritage places is maintained or enhanced.
16	At local policy level the following objectives at clause at 21.02-4 (Heritage) are relevant:
To ensure that places and areas of cultural and natural heritage significance are conserved and enhanced.
To promote sympathetic infill and redevelopment of heritage places and areas.
17	At clause 43.01, the purposes of HO172 are relevant:
•	To conserve and enhance heritage places of natural or cultural significance.
•	To conserve and enhance those elements which contribute to the significance of the heritage places.
•	To ensure that development does not adversely affect the significance of heritage places.
18	At sub clause 43.01-8 (Decision Guidelines) the decision maker is to consider amongst other matters:
•	The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
•	Any applicable statement of significance (whether or not specified in the schedule to this overlay), heritage study and any applicable conservation policy.
•	Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.
•	Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.
•	Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
•	Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
(Tribunal emphasis added)
19	The review site is in the Preston – Oakhill Heritage Precinct (the Precinct) as described in the Darebin Heritage Review 2000 (the Heritage Review).  The review site is identified as significant to that Precinct.  The Heritage Review is a reference document in the Scheme.
20	Part 2.13.1 of the Heritage Review describes the Precinct as follows:
The Area is distinguished by its Garden Suburb character established not only the characteristic low front and side fences and narrow strips but also by the diversity of housing styles characteristic of the late 1920s and the following decade.  Whilst the numbers of Californian bungalows continue to be high, the new styles of these years are emerging.  They include English Cottage houses, Modernist and Colonial Revival houses.
21	The relevant Statement of Significance for the Precinct states:
The Preston – Oakhill Avenue Area has Oakhill Avenue as its north-south spine and is located to the north-west of the Plenty Road/ Tyler Street intersection where the higher ground commences its descent to the Darebin Creek.  Whilst Alexander Brock’s house “Oakhill” had been built there by the 1890s the suburbanisation of the Area took place took place between 1920 and the Second World War. It is aesthetically significant.
The Area is aesthetically significant (Criterion E) as a cohesive middle class Inter-War garden suburb populated by a diverse range of houses representative of the period including many Californian Bungalows and also English Cottage, Spanish Mission, Modernist and Colonial Revival villas.  The front gardens are spacious and there are low fences separating them from the public environment which is softened by narrow nature strips.  The housing stock is generally single storey and the tiled roofs hipped and gabled.  Whilst the houses are not remarkably different to others in the nearby streets, it is evident that the natural attractions of the Oakhill Avenue ridge generated a concentration of predominately brick houses of the Inter-War years that remains clearly evident today.
22	In the absence of any policy guidance in the form of a local policy at clause 22, the following policy recommendations in the citation are relevant:
•	Proposals to carry out works should be assessed in terms of their impacts on the cultural heritage values of the Area as they have been summarized in the Statement of Significance.
•	The following contributory elements of the houses should be conserved and enhanced:
•	their facades
•	their roof forms
•	their building envelopes to the extent that they contribute to the cohesive streetscape character
•	absence of garages at the façade line.
•	The following significant elements of the front fences should be conserved:
•	surviving early fences and gates
•	the low heights of fences between the façade line of the street and the front property alignments
•	corner splays and corner gateways.
•	The stylistic diversity of the Area should be conserved.
•	New buildings within the Area should interpret the Inter-War character of the streets in which they are situated and should avoid the use of materials, forms, colours and envelopes that contrast with the periods of significance of the Area.
•	New structures should not be erected in the frontage setbacks which establish the garden character of the Area but should be set back from the existing façade lines by not less than 500mm.
•	New garages and carports should be recessive and not dominate the composition of new building designs as seen from the street.
•	The contribution made by the existing single storeyed dwellings to the cultural values of the Area should be conserved by avoiding the construction of additions which impact on this aspect of the significance of the place.
(Tribunal emphasis added)
Key Issues
Is the proposed demolition an acceptable heritage outcome?
23	As I have noted above, the key issues in this matter centre around the heritage related controls and objectives of the Scheme.  While I acknowledge that respondents have raised issues in relation to aspects of amenity such as overlooking, overshadowing and visual bulk from neighbouring backyards, tree removal and traffic concerns, the sole permit trigger relates to the HO172.  Accordingly, issues relating to neighbouring amenity, tree removal and traffic are not matters in front of the Tribunal.
24	As submitted by the council and applicant, the extent of demolition, roof form, building envelope and materials were essentially guided by the council’s heritage adviser.  The applicant highlighted the following design changes that were considered resulting in discussions with the heritage adviser:
•	Retain a greater proportion of the eastern ridge of the existing dwelling.
•	Increase the upper-level setback to the garage building.
•	Reduce the size of the balcony and preferably provide a smaller centralised balcony to a depth of 1.2 metres and supported by square timber posts. The balustrade should be simple painted timber.
•	Provide a hipped or gabled roof to the garage building.
•	The ground floor of the garage should have the same envelope as the upper level to eliminate the cantilever. The east and west walls of the garage should come forward to align with the walls above. 
•	Increase the setback of the addition to the existing dwelling further away from Xavier Grove.
•	Provide a simple flat or hipped roof form to the addition to the existing dwelling.
•	The brickwork should be traditional pressed red brick.
25	I note that council’s heritage adviser concluded that:
There is minimal direct impact on the house itself, the new extension is very recessive and neutral so as not to compete with, or confuse the public view of it.
26	Having reviewed the plans and the impacts arising from the overall design response to the key elements and citation features of the heritage precinct, I am satisfied the proposed demolition provides an acceptable response to the heritage features of the place and surrounds.  This considers that the review site is located on a corner that will result in some new building form being visible.  However, I consider these views are limited when viewed from the public realm.  I make further comment on these views along Xavier Street under the following Key Issue heading. 
27	Respondents also noted that consistent views along the streetscape was a key heritage feature of the area, attributed to the rising slope and grade of Xavier Grove.  Having walked the length of this street during my inspection I agree with the respondents this is an important visual setting and heritage character of the area.
28	In this physical setting, I note the following positive design and heritage outcomes have been achieved:
•	The principal roof form on the eastern side of the dwelling, including the prominent chimney form, has been retained.  
•	The south eastern corner of the heritage building fabric is also entirely retained.
•	The demolition of the existing garage to Xavier Grove, given its appearance and siting to this street, is also a positive aspect of the design response.
•	The new built form replacing the demolished form is maintained to the rear along the Xavier Grove sideage. 
29	I am satisfied the demolition has been sensitively considered and any addition on this portion of the site, does not interfere with the legibility or integrity of the existing heritage built form.
Are the proposed alterations and additions to the heritage dwelling and other buildings and works acceptable?
30	In its submission the council noted:
Xavier Grove has a total of twenty properties that present to that street of which twelve are classified as being ‘significant’, six are listed as contributory and two have no classification.
The above classifications indicate a high level of integrity within the streetscape.
Minimal change has occurred within Xavier Grove and as such those classifications remain valid.
31	At the hearing, this view of the heritage precinct was strongly echoed by the respondents.  The heritage character, feel and visual presence to the street is clearly an important and valued setting to residents in the area.
32	It was also clear from the verbal submissions of the council and respondents provided at the hearing, that key concerns centred on the new additions to the property associated with the proposed two storey garage.
33	I am satisfied the single storey addition to the rear of the retained dwelling will be visually appropriate to the streetscape along Xavier Grove.  Its proposed treatment of flat roof form has also considered the natural fall of the review site and will ensure the new form does not dominate the retained heritage fabric and appearance of the site.  I note this view is also supported by the council’s heritage adviser.
34	The applicant submits the corner location of the review site should be considered when assessing the merits of the proposed double storey garage.  He says there are other examples of garages, carports and second dwellings placed on corner sites in the area.
35	I accept the materials to be used on the garage, combining face brick and render are suitable from a heritage setting.  I am less convinced in respect to the use of the balcony form at upper level which I did not observe was a strong or visual heritage feature in the area.  I am not persuaded this design element is one that is encouraged in the heritage setting expressed in the precinct citation. 
36	However, I am more concerned with the impact of the double storey form on the visual setting and context of the heritage dwelling, when viewed from the south east, towards Oakhill Avenue.
37	The applicant notes the existing dwelling has a side setback of 3.3m to Xavier Grove.  This setback steps back to a 5.5m setback to the proposed garage.  I accept this outcome would be generally consistent with ResCode setback provisions.  
38	However, it is the double storey form of this new building that causes me greatest concern.  I consider the overall height and pitch roof form up to 6.3m in height, will create visual dominance along the south east view line I have discussed above.  This dominant view will be further exacerbated by the slope of the land that exists along Xavier Grove.  
39	I find the double storey form of the garage will detract from the key heritage features of the retained dwelling, including the visually prominent roof and chimney form seen along this streetscape view.  I consider this is an important view of existing heritage fabric of the subject dwelling.
40	However, I do not find this is fatal to the approval of the overall proposal.  
41	When I put this concern to the applicant during the hearing, he indicated that a condition could be included on any permit to issue that would restrict the proposed garage to single storey form.  I agree this would address the concerns I have highlighted above as I am satisfied the proposed setbacks to the garage are appropriate.  I will include this outcome as a condition 1 requirement and modify related draft conditions.
42	The council is also concerned the proposed vehicle crossover and parking space will adversely affect the heritage setting of the review site.  I was not persuaded by the council on this matter.
43	In my assessment of this matter, it is significant the proposed vehicle space and crossover does not contain any structure that would visually impact or detract from the heritage setting of the dwelling to Oakhill Avenue.  I also noted there were large areas of paving and parking spaces in front of existing dwellings in this area.  
44	The crossover also does not impact on any significant vegetation on site.  I agree with the applicant’s submission that its inclusion in the proposal will be a relatively indiscernible and reversible element of this proposal.
45	With the restriction in height of the proposed garage as outlined above, I am satisfied the proposed alterations and additions to the heritage dwelling and other buildings and works are an acceptable response to the heritage provisions expressed under HO172 and associated provisions I have described above.
What conditions are appropriate?
46	Draft conditions were circulated by the council and discussed with the parties at the conclusion of the hearing.  I have considered the submissions made by the parties in my assessment of the conditions included in Appendix A below.  In summary I have amended the draft conditions as follows:
•	Draft conditions 1(a) and (e) and 3 are deleted for the reasons I have discussed above.
•	A new condition 1(a) that deletes the upper level of the proposed garage with the garage to be restricted to single storey form.
•	Modification to draft condition 1(b) to provide for more flexibility in designing and locating the crossover to Xavier Grove.
47	I find the remaining draft conditions are satisfactory and have been retained in the permit to issue, including some minor editing that does not change the intent and requirements of those conditions and renumbering accordingly.
Conclusion
48	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions set out in Appendix A to this decision.

Peter Gaschk
Member			

Appendix A – Permit Conditions

Permit Application No	D/420/2020	
Land	38 Oakhill Avenue
RESERVOIR  VIC  3073	

What the permit allowS	
In accordance with the endorsed plans:
•	Partial demolition and construction of buildings and works for an extension to an existing dwelling and a new detached garage on a lot in a Heritage Overlay, Schedule 172.	

Conditions
1	Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to, and approved by, the responsible authority. When approved, the plans will be endorsed and will then form part of this permit. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as TP.01 – TP.08, dated July 2020, and prepared by Northstar Homes) but modified to show: 
(a)	The proposed upper level form including balcony to the proposed garage deleted and the building form of this garage restricted to single storey form only. 
(b)	Provision of a vehicle crossover to Xavier Grove to the requirements and satisfaction of the responsible authority. 
(c)	Detailed fencing elevation plans for the Xavier Grove boundary fence, including detail of the proposed sliding gate design and a detailed colours and materials schedule for the fence/sliding gate. 
(d)	A comprehensive schedule of construction materials, external finishes, and colours (including colour samples) and material boards, including samples of the proposed materials. 
When approved, the plans will be endorsed and form part of this Permit. 
2	The development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority. 
3	The land must be drained to the satisfaction of the responsible authority. 
4	At the completion of the constructed ground floor level(s), and before the starting of the building frame or walls, a report prepared by a licensed land surveyor to the satisfaction of the responsible authority must be submitted to the responsible authority, confirming the ground floor level(s). The report must be submitted to the responsible authority no later than 7 days from the date of the inspection. The development must not be occupied until a report prepared by a licensed land surveyor to the satisfaction of the responsible authority is submitted to the responsible authority, confirming the floor level(s). 
5	The walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the responsible authority. 
6	All guttering, rainheads, pipes including downpipes, fixtures, fittings, and vents servicing any building on the site including those associated with a balcony must be:
(a)	concealed in service ducts or otherwise hidden from view; or
(b)	located and designed to integrate with the development
to the satisfaction of the responsible authority. 
7	No plant, equipment, services, or structures other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the responsible authority 
8	No buildings or works are to be constructed over any easement or other restriction on the land or any sewers, drains, pipes, wires, or cables under the control of a public authority or the responsible authority without the prior written consent of the responsible authority and/or any relevant authority with vested interest in the easement. 
9	This Permit will expire if either: 
(a)	The development does not start within three (3) years from the date of this Permit; or 
(b)	The development is not completed, within five (5) years of the date of this Permit.
As relevant, the responsible authority may extend the times referred to if a request is made in writing: 
(a)	Before this Permit expires; 
(b)	Within six (6) months after the expiry date; or 
(c)	Within twelve (12) months after the expiry date if the request relates to the completion of the development or a stage of the development.

– End of conditions –