VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11657/2021
Permit Application no. 0709/14-4	
CATCHWORDS	
Stonnington Planning Scheme; Section 79 of the Planning and Environment Act 1987; proposed amendments to existing approved four storey residential building; some changes uncontentious but others disputed; key single change being the increase in the height of the western lift shaft by an additional 2.35 metres; Tribunal hearing and site inspection during the hearing; part-oral decision given at the end of the hearing, so just the residual legal issues where the Tribunal decision part-reserved.  	

Applicant	Susan Giagnorio	

Responsible Authority	Stonnington City Council	
respondent	Dao Cheng Song	
SUBJECT LAND	279 Domain Road SOUTH YARRA VIC 31	
HEARING TYPE	Hearing	
DATE OF HEARING	29-30 March 2022	
DATE OF ORDER	2 May 2022	
CITATION	Giagnorio v Stonnington CC [2022] VCAT 392	
Order
1	The decision of the Responsible Authority is set aside.
2	Planning permit No. 0709/14 first issued on 12 September 2016 (Permit) must contain its permit conditions as most recently amended, but with the following modifications:
(a)	The conditions of the Permit are revised to be as shown in the Appendix to this decision.
3	The Responsible Authority is directed to issue an updated permit in accordance with this order.      
4	The applicant has made a costs claim against the Responsible Authority (RA) for the applicant’s relevant VCAT fees, pursuant to Sections 115B and 115CA of the Victorian Civil and Administrative Tribunal Act 1998.  Assuming it is contesting same, the RA must within 14 days of the date of this order lodge with the Tribunal and serve on the applicant its written submissions in response to this costs claim.  Unless the Tribunal sees further Directions as necessary, it anticipates then issuing its ‘costs decision’ on the papers.   

Philip Martin
Senior Member			
Appearances
For applicant	Mr M. Townsend of Counsel, instructed by Planning and Property Partners.  He called expert design evidence from Ms A. Roberts.  There was a consensus that the ‘photomontage’ evidence of Mr C. Goss could be ‘taken as read’. 	
For responsible authority	Ms T. Orrlov (consultant planner)	
For the Respondent	Mr N. Robins (consultant planner)	

reasons
[summary of part oral decision and final finding]

Context and VCAT hearing
1	A planning permit No. 0709/14 (Permit) already exists in relation to the corner site at 279 Domain Road in South Yarra, allowing “the construction of a multi storey development in a General Residential Zone and Design and Development Overlay and a reduction in the car parking requirement”.  The permit was issued on 12 September 2016, has been suitably extended and has already experienced what I understand to be some minor non-contentious permit amendments.
2	The subject land has an area of 801 sqm, is currently vacant and its primary zoning is General Residential Zone Schedule 9 (GRZ9).  This is a very sloping established residential area of South Yarra.
3	In practice, the Permit provides for a four storey building as follows - two lower level dwellings (one level per dwelling), plus a double level upper penthouse. The penthouse alone has access to a roof-top area which as currently approved features a swimming pool, BBQ area and spa, plus ordinary building services including the lift overrun.
4	The permit holder Ms Giagnorio (owner) has sought fresh planning permission for certain changes to the Permit – see the discussion at Section 4 of the Council written submission.  Some of the proposed changes are of a ‘house-keeping’ type nature and uncontentious.  However what has attracted dispute is certain proposed changes to the roof structure.  
5	Notably, it is proposed that the lift-shaft on the western edge/facade of the building be increased in height by 2.35 metres.  The practical attraction of this change for the owner is that rather than the roof only being accessible by a ladder, anyone in the ‘penthouse’ part of the building can access this rooftop area via the lift.  In other words, someone with ‘mobility issues’ who would struggle to cope with going up and down stairs can instead simply use the lift.
6	Otherwise it is proposed that there be a new ‘vergola’ on the roof and a covered weather protection area.  This covered area would extend to 2.7 metres above the rooftop finished floor level in total height.  It would cover both the stairs leading up to the roof and a ‘lobby’ area of about 4-5 horizontal sqm. 
7	As no decision was made by Council in the requisite period, this dispute has come to the Tribunal as a ‘failure appeal’.  The Major Cases List hearing came before me on 29-30 March and I heard submissions from the advocates listed above, plus the expert urban design evidence of Ms Roberts.  As a window of spare time opened up late on the first hearing day, I used that time to do a site inspection.
8	After we completed the ordinary hearing process, after a break, I returned and gave a part-oral decision as follows.
9	I initially summarised the context of the dispute, including the contentious proposed changes and the nature of the site and locality.  I noted that whilst there were no height limits in place when the Permit was issued, the site is now affected by a 11-12 metre height limit pursuant to the GRZ9 that now affects it.  The site is also affected by a Design and Development Overlay Schedule 1, but all parties agreed this is of no practical consequence for this proceeding (and I agree).
Preliminary points
10	I made certain preliminary points which can be summarised as follows:
(a)	We all need to keep in mind the guidance from Knox City Council v Tulcany Pty Ltd [2004] VSC 384 that the ultimate criteria here is whether or not the proposal is ‘acceptable’, as opposed to ‘optimal’ or ‘ideal’;
(b)	It was common ground that the new 11-12 metre height limit under the GRZ does not in itself bar the owner from seeking greater height under the Permit, since the GRZ only came into effect for this site after the Permit was issued.  Hence the site enjoys ‘accrued planning rights’, pursuant to the case law discussed further below and Section 28(2)(e) of the Interpretation of Legislation Act 1984.
(c)	A site inspection was critical here, to help me properly appreciate the incredibly eclectic and robust (some might say brutal) local built form character that already exists in this location.  There is already a strong pattern in this location of relatively tall buildings close together, many of which are from the 1960s-1970s and have minimal articulation or visual softening as you would expect from a taller building of a modern standard of design.  At least a couple of these nearby buildings extend to five storeys.
(d)	With the basic design of the new building as approved earlier, I find it to be of a high architectural standard.
(e)	There is a significant slope to this location, which plays a role in itself.
(f)	I support the idea discussed during the hearing (which all parties were open to) of converting the vergola into a conventional open pergola, with horizontal wires along its top, for a creeper to potentially grow along.
(g)	Whilst it is merely one of many factors in play, there is a net community benefit in making buildings more accessible to people with mobility challenges, which also makes it easier to ‘age in place’.  This is in fact one of the various state policy objectives set out in Clause 15.01 of the Planning Scheme. 
Summary of oral merits findings
11	I then indicated that I would be reserving my decision on the contentious legal points, but orally dealing with the ‘planning merits’ of the remaining contentious roof-top aspects of the proposal.  In this regard, I noted that the ‘vergola’ aspect was no longer in dispute, as I was now instead treating this feature as an open pergola with wire along the top (which no party disputed).  I also indicated that, as was discussed during the hearing, I would by condition require that the pergola be set-in from the northern edge of the roof, to match the setback already provided for with the pergola’s western edge.
12	In relation to the planning merits of the proposed weather protection area, I confirmed  that I considered same acceptable where it is such a small area above the stairs and about 4-5 sqm horizontally for the ‘lobby’ area, that would be barely visible (if at all) from the public realm.
13	This just left the planning merits of the proposed 2.35 extra height of the lift shaft on the western façade of the building.  My finding here in summary was that this aspect of the proposal in this particular location is a reasonable neighbourhood character outcome and acceptable in all the circumstances, relying on the following positive factors:
•	Most fundamentally, I rely upon the relatively tall (for this location) existing built form around the site and its extremely robust and ‘in your face’ nature, which in turn creates a greater level of flexibility for the potential introduction of some extent of taller built form such as this.  If there was any hope that there will be in this location a nice harmonious and/or tempered built form character, it is clear that ‘the horse has bolted’. 
•	The fact that there is essentially only one (rather than up to four) main viewline where there will be an open view of the western building façade i.e. when looking obliquely across from the north-western side of the intersection which the subject land faces on to.  The view from the south will be mainly screened by the relevant canopy trees and the view from the east is avoided by the natural slope of the land and the rest of the building.  Because Murphy Street comes up from the south and terminates at Domain Road, there is no extended view from further to the north.
•	It is not a half or whole new storey proposed – simply 2.35 metres greater height of a lift shaft, where the western end of the building is its shorter end (compared to its eastern elevation, where the site slopes downwards).  
•	The high quality of the basic architectural design of the new building, which makes it somewhat easier to then justify a higher element of it.  Also the lift shaft in question utilises what I regard as an attractive muted grey colour use of stone, with its materiality.
•	The screening role played/to be played by the existing Murphy St canopy trees and the proposed new landscaping.
•	The urban design evidence of Ms Roberts in my view being thoughtful, credible and enhanced by her sensible response to questions put to her. 
14	I acknowledged the policy preference in the current Planning Scheme for more tempered height and scale for new development in this area, together with the current GRZ9 setting the 11/12 metre height limit.  Also this site is outside of the Forrest Hill PAC which lies to the east.  However I indicated that I saw the various positive factors set out above as outweighing same, on the particular facts and in the particular location here.
Findings on legal issues
15	I now turn to the final outstanding legal issues.  I will first discuss the key cases, then make my findings.
16	We return here to the question of ‘accrued rights’, with the key case to start with being Aitken Properties Pty Ltd v Hobsons Bay CC [2016] 1484 authored by DP Dwyer.   At a simple level, Aitken is important in standing for the proposition that a permit holder is able to amend a planning permit, provided that such an amendment does not exceed the extent of any accrued rights.  
17	With the existing building here approved by the Permit, it authorises a residential building up to a FFL rooftop height of 38.7 metres AHD, a parapet height of 39.3 m AHD, plus a lift overrun height of 40.5 metres AHD i.e. that is the current ‘accrued rights’.  This overrides the 12 metre height limit provided for in the GRZ introduced after the Permit was granted.
18	The following paragraphs 14-17 from the Aitken decision provide useful guidance for us:
14.	….although a building (as defined) includes any rooftop service installations, the height of the building is calculated from ground level to the roof or parapet, and the height calculation thus excludes service installations or other elements above the roof or parapet.
15.	As a matter of general principle, this outcome is also one of practicality and common sense, and accords with common planning practice.  The height of a building, particularly for planning assessment purposes, is essentially concerned with the primary built structure.  It would be impracticable and incongruous for building height to be determined, for example, by reference to a television antenna sited on the rooftop.  I agree with the permit applicant that building heights are simply not measured on such a basis.  The definition of ‘building height’ is clearly intended to avoid such an anomalous outcome, and references the upper measurement point as being the roof or parapet, rather than the antenna that sits above the roofline.
16. 	I consider that the same applies to other common service installations such as a lift overrun, water tanks, heating or cooling units, or solar panels.  Although some of these service installations are perhaps a little larger in size, there is no difference in principle.  The definition of ‘building height’ still references the upper measurement point of the building as being the roof or parapet, rather than the service installation above.
17.	However the situation may be different for a structural element above the main roofline that contains its own roof, such as a canopy over a rooftop terrace, or an enclosed and roofed stairwell structure providing access to the roof, or a large plant room within which other service elements are housed.  The definition of ‘building height’ references the vertical distance to ‘the roof…at any point’, and may therefore include the highest point of any material roofed element.  This is perhaps a contextual issue that I do not need to finally resolve here.    
19	Paragraph 41 from the written submission of Mr Robins usefully discusses a similar decision by DP Dwyer in Prahran Orrong Park Developments Pty Ltd v Stonnington CC [2017] VCAT 1021.  Whilst I am not sure this decision brings forward anything particularly new compared to the Aitken decision, it is still helpful in reinforcing the concepts that:
•	Although a ‘building’ as defined includes any rooftop service installations, ‘building height’ as defined is calculated from the ground level to the roof or parapet.  Hence ‘building height’ excludes rooftop service installations.
•	Service installations or elements such as lift overruns, water tanks, screening and solar panels will ordinarily not form part of the calculation of the relevant ‘building height’, where such height is in dispute.
•	Rather, the focus needs to be on the ‘highest point of any material roofed element’.
•	At [52] DP Dwyer states that “…despite the above, it may be the case that a particular element is of such a size or nature or type of construction, or housed in such a way, that it should be treated as a roofed element in its own right, such that the definition of ‘building height’ should be referenced to the vertical distance to the roof of that element”.
20	In terms of the submissions of Mr Robins, relying on these various quotes from the Aitken and the Orrong Park decisions, he urged the Tribunal to take a ‘contextual approach’ to considering the covered area and the extra 2.35 metres of proposed height of the lift shaft.  Following his line of thinking, both of these features should be treated as a ‘roofed area’ for the purposes of measuring ‘building height’, because they are both abnormal, more visually prominent and cannot be properly regarded as coming within the legitimate scope of being ‘service installations’.  
21	In other words, the Robins view is that the covered area and/or the 2.35 metres of extra lift shaft height in practice mean that the ‘building height’ of the proposed revised rooftop does not stop at the parapet, but extends considerably higher.  On this basis, either or both of these extra features are not protected by the principle of ‘accrued rights’, but rather are unlawful.  
22	In essence, the reverse was argued by Mr Townsend on behalf of the owner.
23	I can indicate straight away that I support the notion of using a ‘contextual approach’ here.  The tricky thing seems applying such an approach in practice to the disputed elements here.
24	I will first deal with my findings in relation to the lift shaft, then the covered area.
25	Utilising this ‘contextual approach’, I find that the extra 2.35 metres of height of the western lift shaft does not result in it needing to be treated as part of the ‘height’ of the building as approved by the Permit.  The following aspects point to this conclusion:
•	A lift shaft does not have a conventional roof, with an open area underneath that can become usable space for the occupants of the building.  Rather, the top of the lift shaft is simply closed in for common sense reasons, to protect the specialist lift equipment inside.  Accordingly, from a functional perspective, it seems less obvious to call the top of the extended lift shaft a ‘roof area’.
•	Similarly, in [16] of the Aitken decision as I have quoted above, there is an express reference to a ‘lift overrun’ as an example of a ‘service installation’ that falls outside of the calculation of ‘building height’.  Much of the top of the lift shaft that was focused on in this hearing takes the form of its ‘overrun’ feature.    
•	The horizontal extent of the lift shaft represents a relatively minor proportion of the total horizontal area of the whole rooftop area.
•	Where in [17] of the Aitken decision DP Dwyer talks about possible offending items that should be treated as part of the ‘building height’, he more focuses on ‘roofed areas’ of some significance that contain usable/liveable space underneath e.g. a large plant room with other services inside.  By contrast, here we simply have the one use involved of the lift, with the top of the lift inevitably needing to be closed in from the elements.  
26	To be clear, my findings above should not be read as supporting an ‘open slather’ approach to how high above the main roof area a lift shaft can extend, particularly where the existing built form around the site is more low key/fine grain.  There are practical limits involved and each of these debates turnings on its own facts.  
27	I turn now to the validity of the weather protection covered area, being the covering of the stairs leading up to the roof and the ‘lobby’ area of about 4-5 sqm horizontally.
28	For the following reasons, I consider that this aspect of the proposal does not constitute a ‘roof area’, for the purposes of measuring ‘building height’; 
•	I agree with Mr Townsend that the previous decision of Robertson Development Group Pty Ltd v Mornington Peninsula SC [2016] VCAT 1640 is on point on this issue and favourable for the applicant.
•	The extent of the weather protection of these areas is quite petite in association with the stairs and the entry area for the lift.  In my view, it cannot be said that these areas are indulgent in nature or areas where someone is likely to sit underneath with say a glass of wine and take in the views/read a book.   
•	Taking a contextual approach, this small weather protection structure  will be barely visible from the street, if it all.
•	Likewise the horizontal extent of the covering of the stairs and of the ‘lobby’ area are in my view relatively confined vis-à-vis the whole rooftop area in question here.
•	Both with the covering of the stairwell and the small lobby area, these are confined covered areas which you would expect different people to be moving through from time to time, on their way to some other part of the available usable space on the roof or below.  The very fact that these will be higher-movement transitional areas will presumably count against any one person in theory being tempted to stop and linger in these areas i.e. give these areas a more ‘service’ type of character.   
29	In making these favourable legal findings for the applicant, I also note in passing:
•	That I was assisted by the very detailed and helpful written submission of Mr Townsend, which also included various useful photos and images from the application plans.
•	That during the hearing Council confirmed that it had obtained legal advice on the validity of the proposed changes to the Permit, with that advice being that these changes are lawful.
•	The somewhat curious situation where the respondent (represented before me by a planning consultant) was running legal arguments challenging the validity of the proposal, but conceded that it had not itself sought any legal advice on these points prior to the hearing.
Conclusion
30	In conclusion then, with this final issue where I reserved my finding, I conclude that there is no legal issue/problem with the fact that the proposal includes the 2.35 metres extra height of the western left shaft and also the weather protection covering of the top of the stairwell and the ‘lobby area’.  In other words, these areas should not be treated as part of the ‘roof’ for height measurement purposes.  I note that by the end of the hearing, Mr Robins sensibly conceded that he had no real case to argue, as to whether these features might constitute a ‘fifth storey’. 
31	Whilst the question of the legal status of the ‘vergola’ ended up falling away, I can informally indicate my preliminary view as follows.  Given its significant horizontal area and the practical likelihood that the vergola would be in its closed position for some of the year, I would have struggled to avoid treating it as part of the ‘roof’ area.  I also agree with Council that ‘policing’ whether the vergola should mostly stay ‘open’ seems quite problematic in practice.
32	It follows that my overall finding is that the proposal should be approved, subject to the updated version of the permit conditions.  As discussed with the parties at the end of the hearing, I have made an order allowing Council to respond to the applicant’s ‘failure appeal’ request for reimbursement of its relevant VCAT fees.

Philip Martin
Senior Member			

Appendix A – Permit Conditions

Permit Application No:	0709/14-4	
Land:	279 Domain Road South Yarra VIC 3141	

What the permit allows	
In accordance with the endorsed plans:
•	Construction of a multi-dwelling development in a General Residential Zone and Design and Development Overlay and a reduction in the car parking requirement in accordance with the endorsed plans and subject to the following conditions.

Conditions:
1	Before the commencement of the development, one (1) electronic copy of plans drawn to scale and fully dimensioned, must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the application plans (prepared by Method Construction Pty Ltd, drawing numbers TP1-02, TP1-03, TP1-04, TP1-05, TP1-06, TP1-07, TP1-08, TP1-09, TP1-10, TP1-11, TP1-12, TP1-13 and TP1-14, all Revision C, dated 14-05-2021) but modified to show:
(a)	The ‘vergola’ feature on the rooftop instead functionally taking the form of a conventional open pergola, including suitable metal wires/cables to enable a vine/creeper to over time grow up to and spread across the top of the pergola.  This pergola must have the same horizontal setback from the northern edge of the accessible rooftop area, so as to match the existing such western setback provided for.  It must also structurally utilise wood or a light/muted colour if the structure is made of metal/colourbond.
(b)	The deletion of any notation on the architectural plans referring to the roof area as having a ‘hatch’ feature.
2	The development must be in accordance with the endorsed plans unless otherwise agreed in writing by the Responsible Authority. 
3	Concurrent with the endorsement of plans, a Waste Management Plan must be submitted to and approved by the Responsible Authority. The Waste Management Plan must be generally in accordance with the Waste Management Plan prepared by Leigh Design Pty Ltd and dated 26 September 2014 updated to correspond to the final plans.
4	Concurrent with the endorsement of any plans, a consolidated set of revised ESD Reports (to form a Sustainable Management Plan (SMP)) must be submitted to and approved by the Responsible Authority. Upon approval the SMP will be endorsed as part of the planning permit and the development must incorporate the sustainable design initiatives outlined in the SMP to the satisfaction of the Responsible Authority. The report must be generally in accordance with the ESD Reports which formed Section 8.3 of the advertised Town Planning but modified as follows: 
(a)	To include updated information that refers to, and demonstrates compliance with, the current energy rating requirements of the BCA.
(b)	To identify an energy efficient lift system.
(c)	To provide consistency between the submitted reports and the application plans.
(d)	To include water treatment mechanisms where water is collected from trafficable surfaces.
(e)	To include a commitment to develop a Building User Guide. 
(f)	To include a construction phase stormwater pollution reduction strategy.
(g)	To include a specific construction and demolition phase waste minimisation target.
5	All works must be undertaken in accordance with the endorsed Sustainability Management Plan to the satisfaction of the Responsible Authority. No alterations to the Sustainable Management Plan may occur without written consent of the Responsible Authority. 
6	Before the development starts, a landscape plan to be prepared by a landscape architect or suitably qualified or experienced landscape designer must be submitted to and approved by the Responsible Authority.  When approved, the landscape plan will be endorsed and will then form part of the permit.  The landscape plan must be drawn to scale with dimensions and three copies must be provided. The landscape plan must be generally in accordance with the advertised landscape plan but modified to show:
(a)	A paving extent which matches the extent shown on the architectural plans submitted on 30 November 2015.
(b)	Additional canopy tree planting within both street frontages including with space south of the pedestrian entry from Murphy Street.
(c)	Additional landscaping (volume and extent) within all setbacks to the satisfaction of the Responsible Authority.
(d)	Landscaping proposed to be in situ notated. 
(e)	Soil volumes.
(f)	Consistency with the architectural plans. 
(g)	Details to be provided on number of plants to be installed and size at installation. 
7	Before the occupation of the development, the landscaping works as shown on the endorsed plans must be carried out and completed to the satisfaction of the Responsible Authority.  Landscaping must then be maintained to the satisfaction of the Responsible Authority, including that any dead, diseased or damaged plants are to be replaced.
8	Any poles, services pits and other structures / features on the footpath required to be relocated to facilitate the development must be done so at the cost of the applicant and subject to the relevant authority’s consent.
9	Prior to the occupation of the building, fixed privacy screens (not adhesive film) designed to limit overlooking as required by the relevant Standard B22 of Clause 55 in accordance with the endorsed plans must be installed to the satisfaction of the Responsible Authority and maintained to the satisfaction of the Responsible Authority thereafter for the life of the building.
10	All plant and equipment (including air condition units) must be located or screened so as to not be visible from any of the surrounding footpaths and must be baffled so as to minimise the emission of unreasonable noise to the environment in accordance with the relevant regulations to the satisfaction of the Responsible Authority. 
11	All utility services to the subject land and buildings approved as part of this permit must be provided underground to the satisfaction of the Responsible Authority by completion of the development.
12	The level of the footpath adjoining the site must not be lowered or altered in any way to facilitate access to the site or for any other reason.
13	Before the development starts, a report for the legal point of discharge must be obtained from Council. A drainage design for the development must be prepared by a suitably qualified Engineer in accordance with the report prior to a building permit being issued.
14	Prior to occupation of the building or commencement of use, the existing vehicular crossing made redundant by the building and works hereby permitted must be broken out and re-instated as standard footpath and kerb and channel at the permit holders cost to the approval and satisfaction of the Responsible Authority.
15	Prior to the occupation of the building, the walls on the boundary of the adjoining properties must be cleaned and finished to the satisfaction of the responsible authority.
16	The crossover must be constructed to Council’s Standard Vehicle Crossover Guidelines unless otherwise approved by the Responsible Authority.
17	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.