VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11090/2021
Permit Application no.5/2020/298/1 	

Applicants	Victor Bateman and Julia Young	

Responsible Authority	Bayside City Council	

SUBJECT LAND	29 Bamfield Street
SANDRINGHAM VIC 3191	

HEARING TYPE	Hearing	

DATE OF HEARING	14 February 2022	

DATE OF ORDER	8 April 2022	

CITATION	Bateman v Bayside CC [2022] VCAT 386	

Order
Permit granted
1	In application P11090/2021 the decision of the responsible authority is set aside.
2	In planning permit application 5/2020/298/1 a permit is granted and directed to be issued for the land at 29 Bamfield Street SANDRINGHAM VIC 3191 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	Demolition of the existing dwelling and associated outbuildings and construction of a new dwelling with associated buildings and works on a lot in a Heritage Overlay, Schedule 24.

Peter Gaschk
Member			

Appearances
For applicants	Tania Cincotta, Solicitor of Best Hooper Lawyers.

Evidence was called from the following witnesses:
•	Bryce Raworth, architectural historian, and heritage consultant
•	Anita Brady, heritage consultant
 Victor Bateman and Julia Young in person	
For responsible authority	David Song, Town Planner with SongBowden Planning Pty Ltd
Anna Fajgman, Town Planner	

Information
Description of proposal	Demolition of the existing dwelling and associated outbuildings and construction of a new dwelling on a lot in a Heritage Overlay, Schedule 24.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Bayside Planning Scheme (the Scheme)	
Zone and overlays	Neighbourhood Residential Zone, Schedule 3 (NRZ3)
Heritage Overlay, Schedule 24 - 29 Bamfield Street, Sandringham – Kerami (HO24)
Design and Development Overlay, Schedule 3 (DDO3)	
Permit requirements	Clause 43.01-1: To demolish or remove a building and construct a building or construct or carry out works.	
Key scheme policies and provisions	Clauses 11, 15, 15.01, 15.03, 15.03-1S, 15.03-1L, 16, 32.09, 43.01, 43.02, 65 and 71.02	
Land description	The subject land is located on the northern side of Bamfield Street, on the corner of Francis Street.  The site is generally rectangular with a 23.6m frontage to Bamfield Street, 30.4m sideage to Francis Street and approximate site area of 720sqm. The site is relatively flat and does not contain any significant vegetation.  
The property contains an existing single storey, weatherboard, detached dwelling (Victorian - Edwardian period, built c.1904).  The dwelling includes a prominent carport on the site’s eastern side (built c.2001), large extension to the west and fernery attached to the dwelling on the west side (built c.1998).  The dwelling is set back approximately 8.7m from Bamfield Street, with an existing 1.3m high picket fence across the site’s frontage.
The dwelling retains some original heritage features of its period including roof form and chimneys.   It is included in a site-specific Heritage Overlay (HO24) under the Scheme.  
The review site forms part of the Gipsy Village subdivision which is an established residential area, comprising a diverse character and range of housing styles, including heritage and non-heritage listed buildings.  The Gipsy Village subdivision occurred in the 1880s and included 280 individual lots, centred around Queens Square.  The area is not designated under a wider heritage precinct overlay, with individual properties placed under site-specific overlays. 
Nearby properties with specific Heritage Overlays include 54-56 Bamfield Street (HO417) being immediately opposite, to the west 23 Bamfield Street (HO23) and to the east 31 Bamfield Street, the Sandringham Primary School (HO25).	
Tribunal inspection	Undertaken on 2 March 2022.	

  Reasons
What is this proceeding about?
1	This is an application for review by Victor Bateman and Julia Young (applicants), under s.77 of the Planning and Environment Act 1987 (Act), against the Bayside City Council (council) Notice of Decision to Refuse to Grant a Permit to Planning Permit Application 5/2020/298/1 (the permit application), 
2	The permit application seeks permission for demolition of the existing heritage dwelling and outbuildings and construction of a new two storey dwelling, garage, and swimming pool on land at 29 Bamfield Street, Sandringham (review site).
3	Council refused the permit application on the following grounds:
1. The proposal fails to comply with the objectives of Clause 22.05 of the Bayside Planning Scheme by:
a) Failing to retain a significant heritage building.
b) Failing to retain original fabric.
c) Failing to satisfactorily demonstrate that the heritage building is structurally unsound.
d) Failing to propose a replacement building that displays design excellence.
2. The proposal fails to comply with the objectives of Clause 43.01 of the Bayside Planning Scheme by:
a) Failing to ensure that development does not adversely affect the significance of the heritage place.
Amendment C180
4	Amendment C180 (AmC180) was gazetted on 18 June 2021.  AmC180 replaced the Local Planning Policy Framework (PPF) of the Scheme with a new Municipal Planning Strategy at Clause 02, a modified Planning Policy Framework at Clauses 11-19, and a selected number of local schedules to overlays and operational provisions.  It also deleted clause 22.05 that formed part of the council’s grounds of refusal to the permit application.
5	Nevertheless, council submitted AmC180 did not change the intent of council's planning policy and considered the amendment was 'policy neutral'.  It submitted AmC180 had no material implications to council's refusal, that included reference to former clause 22.05 and considers its concerns continued to be relvant through clauses 15.03-1S and 15.03-1L and 43.01 of the Scheme.
6	This was not contested by the applicants who had prepared their submission based on the new Scheme provisions.
Council Submission
7	Council submits:
•	The proposal is an unacceptable heritage outcome and demolition of the existing significant heritage building was not supported by the heritage overlay and relevant heritage policy.
•	The subject property, known as Falston, constructed c.1904 is identified as a significant heritage building.
•	Heritage advice from two of its external heritage advisors did not support demolition of the dwelling.
8	Council says the issue of full demolition is a threshold issue.  It says if the Tribunal accepts that demolition should not be permitted, then the application must be refused.  It submits demolition of a building which has an individual, site-specific Heritage Overlay is unusual and the convention would be that such action should not be supported.  
9	Council also referred to written advice provided by its heritage advisers (Mr David Helms and Mr Trevor Westmore) who do not support the full demolition of the subject dwelling and recommend that restoration and reconstruction works be undertaken.  The council did not call either of the advisers to give evidence, a fact highlighted in the applicant’s submission.  Nevertheless, I have considered the two heritage advisers’ written advice as part of my assessment.
10	In respect to the proposed replacement building and associated works, council submits the new dwelling is not an example of design excellence and says:
The replacement dwelling, by virtue of it replacing the heritage house, will adversely affect the heritage place, HO24.
11	I also note a further submission was received from a non-party to this proceeding raising similar heritage related concerns to the council.  I have considered this in my assessment of this matter.
Applicants’ Submission
12	The applicants submit demolition of the existing building and outbuildings on the review site is an acceptable outcome given:
•	The level of heritage values of the property does not warrant heritage protection and retention;
•	The lack of intactness of the significant heritage fabric due to the numerous and substantial changes made over time;
•	The extent of structural damage to the existing dwelling, namely that the main structural elements of the house, such as roof beams, timber stumps and stud walls have been assessed as not having sufficient strength to be safely habitable;
•	The extent of repair, restoration and replacement of material that is required to reconstruct the lost significant heritage fabric, and which would not constitute heritage fabric;
•	The disproportionate cost of this work having regard to the heritage significance of the building; and
•	The fact that the heritage significance of the building with the reconstructed verandah and other elements will be significantly diminished.
13	The applicants also rely on Mr Raworth’s and Ms Brady’s evidence in respect to these matters.  Both experts provided detailed written and oral evidence at the hearing and were cross-examined by council.  Both experts agree the 1989 citation upon which the application of HO24 was based are significantly out of date and materially inaccurate.  They also agree upon the extent to which the heritage fabric of the subject dwelling has been altered and degraded over the past 30 years and say this is a relevant consideration.
14	The applicants submit the proposed replacement dwelling is supported by its heritage experts and will provide an excellent level of accommodation for future occupants, without undermining the integrity of other heritage listed buildings in the immediate area.
What are the key issues?
15	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 policies and provisions in the Scheme.  
16	Clause 71.02-3 requires the decision-maker (in this case the Tribunal) 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.
17	I accept submissions from the applicants and council the sole permit trigger for this proposal is limited to the Heritage Overlay.  This is not contested between the parties.  I also accept the council’s contention that the demolition of the existing heritage dwelling is a threshold issue for my determination.
18	Having regard to the relevant matters under the Heritage Overlay and associated policy provisions, including submissions, supporting material, documents, evidence put to me by the parties and my inspection of the site and surrounds, I consider the key issues in this matter are:
•	Is the proposed demolition an acceptable heritage outcome?
•	Are the replacement dwelling and other buildings and works acceptable?
19	In summary, I find the proposed demolition is an acceptable heritage outcome in this instance.  I set out my reasons for this finding below.  
20	I am also satisfied the proposed replacement dwelling and associated buildings and works are acceptable under clauses 15.03-1S and 15.03-1L and 43.01 of the Scheme.
strategic planning context
Planning Policy Framework
21	I agree with council that clause 15.03-1L in the PPF is relevant to this matter.  Both parties referenced this clause in written submissions, as have the respective experts for the applicants.  
22	Relevant demolition strategies are set out below:
Discourage the demolition of significant and contributory heritage buildings unless it can be demonstrated that:
•	The building is structurally unsound.
•	The original fabric of the building has deteriorated to such an extent that a substantial reconstruction would be required to make the building habitable.
•	The replacement building displays design excellence.
•	If located in a heritage precinct, the replacement building clearly and positively supports the ongoing heritage significance of the precinct.
Allow the partial demolition of significant and contributory heritage buildings where the fabric to be demolished is of no significance or where the demolition helps to reveal the original fabric of the building.
Allow the partial demolition of significant and contributory heritage buildings for the purpose of additions, only if the additions will not affect the heritage significance of the building and the proposed addition is sympathetic to its scale and form.
23	In respect to the first dot point above, council says the building is not structurally unsound.  The applicants do not contest this matter.  
24	In respect to the third dot point, council submits the new replacement dwelling does not display design excellence.  The applicant does not agree with this assessment of the proposed replacement dwelling.
25	I deal with these matters under the Key Issue headings below.
26	Clause 15.03-1L also includes the following restoration strategies that are relevant to this matter:
Conserve the external features of significant and contributory heritage buildings.
Encourage the restoration and reconstruction of the original or early appearance of contributory fabric, particularly when seen from the street.
Retain original fabric.
Discourage the painting of unpainted surfaces.
Undertake the restoration of contributory fabric using the same materials as the original.
The following strategies for new buildings in residential precincts are also of relevance:
Use interpretive design based on historical characteristics while avoiding the replication of historic detail in buildings.
Support buildings designed in a contemporary style provided they adopt an understated character and do not visually dominate adjacent contributory buildings or the heritage precinct in terms of size, height, or bulk.
Design buildings to relate to and use as reference points the materials, colour and details of adjacent buildings and the surrounding precinct.
Support the use of new materials where they are complementary to the significance of the heritage place.
Design buildings so that they are not taller than adjacent contributory buildings unless located in a heritage precinct where a pronounced variation in building height already exists.
Orient buildings to relate positively to contributory buildings, period features, open space, and subdivision patterns throughout the heritage place.
Provide side setbacks of buildings that are consistent with the rhythm of the streetscape or precinct.
Design buildings to not obscure views to contributory buildings or their features.
Design individual architectural elements such as roof forms and fenestration to complement existing styles without reproducing them.
27	Clause 15.03-1S is also relevant to this matter and provides strategies that relate to the conservation of heritage places.  Relevant strategies include:
•	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.
Relevant Scheme provisions
28	As stated, the sole permit trigger is HO24.  This is not contested between the parties.  HO24 and surrounding heritage overlays are shown in the following map.

Figure 1: Overlay Map – Source - Applicant Submission
29	Key purposes under the Heritage Overlay at clause 43.01 include:
•	To conserve and enhance heritage places of natural or cultural significance.
•	To conserve and enhance those elements which contribute to the significance of heritage places.
•	To ensure that development does not adversely affect the significance of heritage places.
30	Key decision guidelines include:
•	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.
31	The applicants advised the introduction of HO24 was based on a Heritage Citation prepared in 1989 and was the subject of an interim Heritage Overlay introduced into the Scheme on 24 February 2000.  The interim control was later altered to a permanent Heritage Overlay by Amendment C005, gazetted on 4 May 2001.  The applicants also informed me they were unable to locate a panel report for this later amendment.  Council was also unable to provide any further information on this.
32	I also note the following background information provided by Mr Helms to the council that confirms the construction and heritage citation details referred to by the applicant: 
The house is described by the 1989 heritage study as:
A comparatively substantial Victorian style timber villa with ashlar boarding, bracketed eaves, symmetrical front elevation and roofline and chimney stacks consistent with Edwardian practice.
The house was constructed c.1904 on an allotment within the ‘Gipsy Village’ estate, which was subdivided as early as 1852, but where little development occurred until the 1880s.
Today, this house is one of twelve in the ‘Gipsy Village’ dating from prior to World War I included as individual places within the HO.
33	The applicants also noted the 1989 Citation incorrectly identifies the dwelling as Kerami.  The applicant understands this name relates to a similar house in Heath Street, Sandringham.  It says the name should be Falston, noting this name is supported by its experts.  Council does not contest this.
Statement of Significance
34	The Statement of Significance for the subject dwelling on the review site arose from the former City of Sandringham Heritage and Conservation Study undertaken by Andrew C Ward Associates, (the 1989 Study).  The 1989 Study is a Reference Document under clause 15.03-1L.  
35	The relevant heritage citation from the 1989 Study is provided below:
 
Figure 2: Statement of Significance
36	I now move into detailed discussion and consideration of the Key Issues below.
key issues
Is the proposed demolition an acceptable heritage outcome?
Overview of Submissions 
37	The existing heritage building on the review site is shown in the following photograph included in the council’s submission.  The applicants and their experts included similar photos in their written submission and respective evidence statements.

Figure 3: Existing dwelling c.2022 – Source – Council Submission
38	Council submits that demolition of a building which has an individual, site-specific Heritage Overlay is unusual.  It says convention would be that such action should not be supported.  Council submits the demolition of the subject dwelling would be at odds with the policy directions sought under clause 15.03-1L.  
39	I agree the thrust of heritage policy at 15.03-1L seeks to discourage the demolition of an individually listed heritage building.  It also seeks the conservation of elements that contribute to the significance of that heritage place.  
40	Equally however, I accept submissions from the applicant that demolition of the existing dwelling and outbuildings of an individually listed significant building in the HO24 is not prohibited under the Scheme.  It is therefore necessary to weigh and balance the relevant policy settings that apply and consider net community benefit.  
41	Council further submits complete demolition of the subject building on the review site should be treated with caution and its conservation is best served by keeping the dwelling in situ.  It says if demolition is permitted, the impact caused by the removal of the dwelling will be a negative one upon the heritage value of Bamfield Street and the wider heritage values of the municipality.  It says demolition of this dwelling is outweighed by the net community benefits of keeping it through appropriate restoration and repair.  This is a view supported by its Heritage Advisers.
42	The applicants submit the subject dwelling on the review site has a vastly different appearance to the dwelling that was assessed at the time of the 1989 Heritage Citation prepared by Andrew Ward and Associates.  This is a view strongly supported by both of its heritage experts.  It is their evidence this is a relevant matter to the question of demolition of the subject dwelling on the review site. 
43	The applicants also submit a later heritage study of the municipality completed by Allom Lovell and Associates, titled City of Bayside Heritage Review 1999 (the 1999 Study) is of relevance to this question of demolition.  
44	I note the 1999 Study re-assessed all existing heritage listed sites within the municipality at that time.  This study also included a complete review of heritage sites identified in the Andrew Ward 1989 Study.  The 1999 Study is included as a Reference Document under clause 15.03-1L.  
45	The applicants say it is highly relevant the 1999 Study did not recommend heritage protection of the subject dwelling on the review site.  Under the 1999 Study, while the C graded buildings were still considered of local importance within the municipality, they were not considered to be of sufficient heritage significance as to warrant individual planning scheme protection.
46	Given the findings in the 1999 Study, neither the applicant nor council were able to provide further information on why the individual site-specific Heritage Overlay (HO24) and 1989 citation has remained unaltered over the subject dwelling on the review site.  
47	The applicants say this is relevant, being the council’s most recent heritage review, did not recommend heritage protection of the subject property.  Noting only buildings assessed with an A or B grading were recommended for Heritage Overlay protection.  The subject dwelling had a C grading.  I agree this is a relevant matter before me and given this weight in my findings.  
48	The applicants also referred me to an earlier memorandum from Mr Westmore who provided pre-application advice on the permit application dated 23 October 2019.  In that advice, while supporting the restoration and conservation of the existing heritage dwelling on the review site, Mr Westmore also noted:
It (HO24 – Tribunal insert) is an isolated heritage overlay and does not have strong contextual relationships with a heritage precinct or other identified places, except maybe the school opposite.
Its historic and visual connections to the development of the Gypsy [sic] Village precinct are obscured by the amount of recent development that breaks its visual continuity.
It is itself significantly compromised by inappropriate additions.
The architectural detail of its original verandah is uncertain.
The applicant has a negative report from a heritage consultant who is usually accepted as credible at VCAT.
There is also an engineering report noting structural deficiencies, though this is of a low and unacceptable standard.
The 1989 Citation is old, is not of high quality and defines the style of the building poorly. Its unique characteristics are not described.
Major changes at both sides of the facade have occurred since the 1989 citation.
The place was not seen as of sufficient interest to warrant a new citation in the 1999 Review.
(Tribunal emphasis added)
49	I acknowledge Mr Westmore provided further advice on this matter on 10 November 2020, where he reiterated his recommendations that the subject dwelling should not be demolished, and restoration/conservation was his preferred heritage outcome. 
50	However, I consider Mr Westmore’s earlier comments telling.  They acknowledge major alterations have been undertaken to the subject dwelling.  They note the dwelling’s historic and visual connections to the development of the Gipsy Village precinct have been obscured by the amount of recent development.  Significantly, they acknowledge the age of the 1989 Citation and the heritage place was not seen as of sufficient interest to warrant a new citation arising from the 1999 Study review.
51	I agree with the applicants it is unfortunate council has not sought to specifically re-assess the heritage significance of the subject property following the 1999 Study.  As with all policy settings and directions in the Scheme, it is important that these remain current and reliable when used to assess a planning application.  I consider this lack of currency of the HO24 Heritage Citation to be a significant shortcoming in the council’s submission.  Particularly given the number of alterations undertaken to the dwelling that have been identified by the applicant’s heritage experts and are conceded by the council and its heritage advisers.
52	Nevertheless, council submits that as the subject dwelling remains under the unaltered HO24, and there is some original heritage fabric on the building, full demolition of the dwelling should not be supported.  Mr Raworth and Ms Brady do not agree with this view.  
53	The applicants submit that in the context of the alterations made to the heritage dwelling on the review site, a lack of currency with the 1989 Heritage Citation, and important loss of symmetrical appearance and form of the building, the heritage significance of the dwelling has been compromised.
What does the evidence say?
54	It is the evidence of the experts called by the applicants that the restoration of the subject dwelling on the review site is problematic.  Both agree the dwelling maintains some original fabric, including:
•	Roof form, albeit original roof sheeting has been replaced.
•	Chimneys (x3)
•	Western bay window
55	However, it is their evidence that other original fabric such as the ashlar boarding to the façade of the dwelling and loss of symmetrical form to the roof, is at best, generic in character and form and is compromised by the scale and location of alterations to the dwelling.  They accept the chimneys continue to present as original fabric.  
56	At paragraph 66 of his evidence statement Mr Raworth provides a useful commentary table on the original fabric noted in the 1989 Study Citation.  I include this table below with my highlights in yellow:

Figure 4: Heritage Citation Comparison Table – Source Raworth Evidence Statement
57	Mr Raworth also notes that council’s heritage advisers identified both the front door side and highlights and western bay as original fabric.  Mr Raworth considers these elements are contributory to the overall building, rather than being significant of themselves.
58	It is also significant in my findings that Mr Raworth undertook a current HERCON assessment of the existing dwelling.  
59	Based on this assessment it was Mr Raworth’s opinion that:
….. having regard for assessment against the HERCON criteria, the subject building as found today cannot be seen to satisfy any of the criteria in a meaningful manner that would reach a threshold of local significance sufficient to warrant or justify the Heritage Overlay that is in place. This observation is in keeping with the Bayside Heritage Review assessment (Allom Lovell & Associates 1999) that identified the property as a C grade place ‘… considered to still be of importance within the municipality and should be retained, but they were not considered to be of sufficient significance as to warrant planning scheme protection’. That is to say, the building as found today is not of sufficient significance to warrant an individual Heritage Overlay. Further, it is appropriate having regard for the relevant decision guidelines under the Heritage Overlay that demolition be permitted.   
60	Ms Brady also provided a detailed assessment of the current dwelling and supported Mr Raworth’s view.  Further noting the building was in fact far from being an intact or individually significant heritage building.
61	Council also contended there was sufficient area on the site to undertake a partial demolition and restoration of the existing dwelling on the review site.  Together with a new addition that would address the future residential needs of the occupants.  This was a view that is supported by council’s heritage advisers.
62	Both Ms Brady and Mr Raworth do not agree.
63	It was Ms Brady’s evidence there was insufficient information and accurate records to appropriately identify and restore/replace key building elements that gave the subject dwelling its heritage significance.  This included identified elements in the 1989 Heritage Citation such as the wrap around front verandah to the existing dwelling.  She noted the verandah form appeared to have been deleted prior to the 1989 Study as it was noted in the Citation prepared for the heritage place.  
64	She further opined that under the Burra Charter, one could not pursue the restoration and conservation of a heritage building if insufficient records existed to direct where those key building elements and features should be placed on the building and what the building features ultimately should look like.  
65	Mr Raworth supported this conclusion.  He was also concerned if restoration and conservation was to occur, (such as for the existing roof form and original chimneys) it may present significant engineering challenges and compromise the location and scale of the new additions to the dwelling that had limited backyard space.
My Findings
66	Various Tribunals have determined that in considering a demolition application, even an application for demolition in a site-specific Heritage Overlay such as the case here, it is appropriate to consider how significant a building is in heritage terms.  I find it is open for me to exercise discretion in respect to demolition in this permit application, balancing relevant policy settings with submissions and evidence provided by the parties. 
67	I have not been persuaded by the council’s submissions regarding the existing level of heritage significance of the subject dwelling on the review site.  I am also not persuaded by submissions from the council’s heritage advisers, that partial demolition and restoration of the existing dwelling could be achieved to satisfy relevant Burra Charter objectives, while still retaining original fabric.  In this regard I am concerned that the restoration of the dwelling will mimic or replicate building features of the period, rather than achieving a level of original fabric and context for the dwelling on the site.
68	I was not presented with any material that would enable the applicant to restore both the roof and verandah form to ensure the symmetrical setting of the building on the site was achieved.  I find that insufficient research and consideration has been given by council and its heritage advisers as to the state of the existing heritage building on the review site, including the capacity to accurately address the accurate restoration/conservation of the subject building to Burra Charter standards.  
69	Both Ms Brady and Mr Raworth were extensively cross-examined on this matter.  While acknowledging that full demolition of an individually heritage listed building was unusual, they say a reduced level of heritage significance of the dwelling on the site has resulted through the progression of major built form changes.  Both experts agree these alterations are not cosmetic, nor in their opinion, easily rectified.
70	I find the opinions of Mr Raworth and Ms Brady are clear on the proposed demolition of the existing dwelling on the review site.  They both agree the level of heritage significance of the subject dwelling has been overstated since its first assessment in 1989.  In the absence of any tested expert evidence from council, I prefer their evidence over statements of the council’s heritage advisers.  I also note both heritage advisers accepted and acknowledged the subject building had experienced significant alterations since the 1989 Study Citation was prepared.  Noting this had impacted the integrity of the subject dwelling.
71	I therefore agree with the applicants that the existing heritage citation is outdated given the number of significant alterations that have occurred to the existing dwelling since the 1989 heritage assessment and HO24 was applied.  I make this finding given the Allom Lovell 1999 Study, concluded the dwelling on the review site did not meet the threshold for individual significance and did not recommend any further heritage protection under the Scheme.  It is also significant the council was unable to provide any further information on why the HO24 remained without any change or further review arising from the 1999 Study.  This 1999 Study is also a policy document in the Scheme.  I give it weight in my assessment and finding above.  
72	Mr Raworth and Ms Brady also agreed the level of heritage significance of the existing dwelling on the review site is now overstated.  
73	Mr Raworth says the heritage fabric is ad hoc and piece meal of the remnant fabric.  He opines these elements are contributory at best and not significant.
74	Ms Brady also pointed to other period dwellings she observed in the subdivision, that in her opinion had a level of heritage interest similar to the subject dwelling on the review site.  However, she noted these were not listed either in a heritage precinct or individual Heritage Overlay.  In this physical setting, she opined the demolition of the subject building would have little or no consequence on the existing heritage fabric and heritage context of the area more generally.  I noted these buildings during my inspection of the area.
75	Additionally, both Mr Raworth and Ms Brady say conservation and restoration of the existing dwelling is neither practical nor feasible - particularly given the lack of information available for accurate conservation works of the remaining heritage fabric.  In their opinion, this lack of detail would result in restoration works that would further reduce the heritage significance of the dwelling.  
76	Given these assessments are also consistent with the Allom Lovell 1999 Study, I accept the analysis and conclusions reached by both Mr Raworth and Ms Brady.  Having inspected the dwelling on the review site, I find the current HO24 Heritage Citation is not an accurate reflection of the level of significance of the existing dwelling in the context of the Statement of Significance.  
77	I accept submissions from both council and the applicant’s experts the existing built form of the subject dwelling is not in an unsound condition that would warrant its demolition.  I do not consider this is in strong contention between the parties. Rather, it is the amount of restoration work required, coupled with the lack of detail around what the restoration should include, that is questioned by the applicant.  For the reasons I have outlined above, I agree with the applicants’ submission on this point.  
78	I find there is an unacceptable level of uncertainty and lack of clear direction surrounding the reconstruction and restoration work that would be required to bring the existing altered dwelling to the level of significance identified in the 1989 Citation accompanying HO24.  In my view, this uncertainty would result in diminishing its heritage value.  The reconstructed dwelling would present as a replica, rather than presenting original heritage form of this dwelling.  
79	I also make this finding noting there is a distinct lack of information and research data available around key heritage elements of the subject dwelling, such as the front verandah and roof form.  The applicants’ say recommendations from the council heritage advisers to restore and conserve the subject dwelling cannot be undertaken with any confidence to ensure an appropriate level of heritage integrity is achieved by the restored built form.  I agree with this submission and find the restoration and conservation of the subject dwelling would result in a replica version of the subject dwelling.
80	Given my findings above, I am satisfied the proposed demolition of the subject dwelling and associated outbuildings on the review site is an acceptable heritage outcome under the relevant provisions of clauses 15.03-1L, 15.03-1S and 43.01 of the Scheme.  Based on the applicants’ submission and supporting expert evidence, I find the heritage significance of the existing dwelling is overstated in the context of the 1989 Heritage Citation that applies under the HO24.  
81	Council also submitted the net community benefit for present and future generations would be to keep and restore the subject dwelling, not demolish it.  Having considered the detailed and tested evidence on this matter, I have not been persuaded by council’s submission.  Simply put, the HO24 and Heritage Citation do not justify retention of the existing dwelling on the review site and its demolition would not represent an unacceptable planning outcome.
Are the replacement dwelling and other buildings and works acceptable?
82	A photograph of the proposed replacement dwelling (front façade only) was included with the council’s written submission and is shown below.

Figure 5: Source - Council Written Submission
83	A corresponding floor layout plan (ground and first floor) is also provided below:

Figure 6: Drawing TP05 Ground Floor Plan

Figure 7: Drawing TP06 First Floor Plan
84	Council says the loss of the heritage building automatically means the HO24 is adversely impacted.  It also says the replacement dwelling is not of design excellence that is sought by policy under clause 15.03-1L.  When I sought an explanation of what the council understood was design excellence in respect to this replacement building, the council was unable to pinpoint where the design was lacking in this regard.
85	Mr Raworth’s evidence is that in the event the existing dwelling is demolished, HO24 effectively falls away.  He opines it is not appropriate to assess the replacement proposed dwelling against the Heritage Overlay or associated heritage policy.  Ms Brady agrees with this position.  Mr Westmore, in his original advice at pre application stage, also agreed with this general proposition.  It was his view that if the building is permitted to be demolished, applying HO24 to the new building was of limited use and the proposal should be assessed under relevant provisions that apply to non-heritage overlay sites.  I agree with the submissions on this point.
86	The applicants also drew attention to the Tribunal’s decision in Montezuma Developments Pty Ltd v Port Phillip CC [2016] VCAT 876.  The Tribunal commented at paragraph 56 of its reasons:
Decisions of the Tribunal have stated that in order for a proposal to be ‘excellent’ it should make a positive contribution and must not have unreasonable adverse impacts despite the fact that it will bring change.
87	It is appropriate in the context of this matter that I apply a similar approach to my assessment of the replacement building. 
88	In this regard, I find the replacement building is well designed and oriented to appropriately address the corner location, in a similar fashion to the existing dwelling.  I also note from my inspection there are no direct heritage interfaces that need to be addressed by the new development.  
89	I accept the proposed dwelling introduces a first floor into the review site setting.  However, I find this upper level is modest in form and height and suitably recessed from the ground floor, with the ground floor envelope providing appropriate setbacks to both front, side, and rear interfaces.
90	I find the new building will make a positive contribution to the public realm and provides an appropriate response to its immediate surrounds.  The overall height, use of contemporary materials, form and scale of the replacement building ensures it is an appropriate fit into the site. 
What conditions are appropriate?
91	A draft set of conditions were circulated prior to the hearing.  Both parties made verbal submissions to these conditions.  I have considered these in my assessment and finalisation of the proposed conditions included in Appendix A to this decision.
Conclusion
92	For the reasons given above, the decision of the responsible authority is set aside.  A permit is granted subject to conditions.

Peter Gaschk
Member			

Appendix A – Permit Conditions
Permit Application No	5/2020/298/1	
Land	29 Bamfield Street
SANDRINGHAM  VIC  3191 	
What the permit allowS	
In accordance with the endorsed plans:
•	Demolition of the existing dwelling and associated outbuildings and construction of a new dwelling with associated buildings and works on a lot in a Heritage Overlay, Schedule 24.	
Conditions
1	The plans to be endorsed and which will then form part of the permit are the plans identified as those prepared by Latitude 37, Drawing Numbers TP01 – TP11 inclusive, all Revision C, dated 19/6/2020.
2	The layout of the site and the size, levels, design, and location of buildings and works shown on the endorsed plans must not be modified for any reason without the prior written consent of the responsible authority.
3	Before the dwelling is occupied or by such later date as is approved in writing by the responsible authority, all buildings and works must be carried out and completed to the satisfaction of the responsible authority.
4	No plant, equipment, services, or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the written consent of the responsible authority.
5	All pipes (excluding downpipes), fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
Permit Expiry
6	This permit will expire if one of the following circumstances applies:
a)	The development is not started within two years of the date of this permit.
b)	The development is not completed within four years of the date of this permit. 
In accordance with Section 69 of the Planning and Environment Act 1987, a request may be submitted to the responsible authority within the prescribed timeframes for an extension of the periods referred to in this condition.  
– End of conditions –