BEFORE : Russell Byard, Acting Deputy President

MEDIUM NEUTRAL CITATION: [2002] VCAT 1320

1. Leave is granted for the withdrawal of application for review P2479/2002 and that proceeding is withdrawn pursuant to such leave.

2. Application for review P2710/2002 is fixed for hearing to commence at the Tribunal's premises at 55 King Street, Melbourne at 10.00am on Monday, 3 February 2003 when three (3) days have been allocated for the hearing.

Ms Julie Davis, barrister, appeared on the instructions of the Corporate Solicitor of the City of Melbourne for the Responsible Authority.

Mr J Gobbo, QC, barrister, appeared on the instructions of his client for the Applicant Company.

Mr Roz Wilson, solicitor and planner, appeared for the Respondent/Objectors D Scott, D J Scott and L Scott.

Applications under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure to grant a permit within the prescribed time.

Demolition of existing buildings and the construction and use of a five storey residential apartment block.

Business 1 Zone and subject to a Heritage Overlay (HO 6 - South Yarra Precinct) under the Melbourne Planning Scheme.

1. The first of these two proceedings is an application by 155 Domain Road Pty Ltd (the Company) for a review of the alleged failure of the Responsible Authority to grant a permit within the prescribed time. The Responsible Authority denies that the prescribed period of 60 days had elapsed at the time the application for review was made. Certainly 60 days had passed on the calendar, but the Responsible Authority maintains that only 31 days of the prescribed period had passed having regard to days that are not to be counted for this purpose because of a request by the Responsible Authority for further information and/or because of time that is not counted during the period of giving notice pursuant to s. 52 PE Act.

2. The preliminary hearing fixed for the 18 October 2002 was appointed to consider the question of whether the application for review is, in fact, premature and invalid.

3. Apparently as a precaution, the planners acting on behalf of the permit applicant subsequently made a new application for review of a failure, in this case clearly after the prescribed period had expired. This second application for review bears the Tribunal number P2710/2002. Its purpose was to forestall delays in the event that I decided that the original application for review is premature and invalid.

4. That new application for review having been lodged and registered with the Tribunal by the time of the preliminary hearing, there appeared to be little purpose in the parties contesting the issue as to whether the first application for review is valid or not. It is convenient to simply proceed with the second application for review, there being no doubt that it was commenced after the prescribed period.

5. On this basis Mr Gobbo, who appeared for the company, suggested that the initial application for review might be struck out with no determination on its merits. The other parties were agreeable to such a course. In fact, I think it is suitable to grant leave for that proceeding to be withdrawn.

6. The Responsible Authority has considered and decided the permit application giving rise to both these applications for review. It has made a decision to refuse the application and formulated its grounds for such a decision. However, with the first of the applications for review on foot, it did not issue a Notice of Refusal in accordance with the Act, as it would have done, if the application for review had not been started.

7. It appears that the Responsible Authority was in some doubt as to how it should deal with the matter where it had determined upon a refusal, but there was already an application for review on foot before the Tribunal. The Responsible Authority was, of course, of the view that such application for review was invalid. In those circumstances I do not think that the Responsible Authority would be open to criticism if it had assumed that it was right in this respect (it having good grounds for such a view) and proceeded to issue its Notice of Determination.

8. The Responsible Authority has responded to Practice Note Planning and Environment List No. 2 and provided to the Tribunal the material and information required under that Practice Note. That response is in relation to the first review. However, exactly the same material is appropriate in relation to the second review.

9. The material includes a copy of an officer's report in relation to the permit application. This report concludes with the recommendation that the application should be refused on five grounds. It is convenient that these grounds should be known, whatever form of review application the company wants the Tribunal to consider. For that reason I set them out here. The following is those grounds as they appear in the officer's report, except that I have changed the numbers from Arabic to Roman numerals so that the numbering of the grounds will not be confused with the numbering of the paragraphs in these remarks. They read as follows:-

(i) The height, bulk and scale of the proposal will be detrimental to the streetscape.

(ii) The proposal is contrary to the provisions of the Design and Development Overlay - Schedule 15, of the Melbourne Planning Scheme in that the development is not compatible with the scale and character of the South Yarra area and the height and scale of the proposal will have a negative effect on the local amenity including the visual catchment of the Royal Botanic Gardens and its surrounding parklands.

(iii) The proposed development is contrary to the purpose and decision guidelines of the Heritage Overlay in the Melbourne Planning Scheme and the objectives of the local policy "Heritage Places Outside the Capital City Zone" of the Scheme.

(iv) The proposed development would be contrary to the aims and objectives of the Municipal Strategic Statement of the Melbourne Planning Scheme.

(v) The height and length of the new walls along the east and western boundaries will be visually intrusive and excessive resulting in the loss of residential amenity of the adjoining properties to the east and west of the subject site.

10. The second application for review of failure survives and is to proceed. In fact it is effectively ready to be set down for hearing. A direction needs to be given for its service, but the Practice Note Planning and Environment List No. 2 information is already to hand. It is simply a matter of attaching that information to the second, rather than to first file.

11. It should be appreciated that the matter proceeds in this way for convenience and expedition. The circumstance of there being an application for review of failure, even if it succeeds, does not imply (in the particular circumstances of this case) that the Responsible Authority has been remiss in its handling of the permit application. It does not admit that it failed to grant a permit within the prescribed period, so far as the first application for review is concerned. It did determine the matter. It only refrained from giving notice of refusal, which would have evidenced that decision, because of the commencement of the first application for review.

12. The Responsible Authority may call two witnesses in relation to this case. Mr Gobbo indicated that his client anticipates calling a town planner and an expert witness in relation to traffic engineering and parking. He may also call an expert witness in relation to urban design. Ms Wilson is not able to indicate whether her clients will call evidence, save to say that if they do there will be one witness "at most".

13. I have arranged for a hearing date to be allocated for this case as indicated above. The parties realise that such date will have to be in the New Year and I have arranged to avoid school holidays as requested. This allows ample time for service of the new review application. If that matter is not attended to promptly, it could become necessary to vacate the hearing. However, I anticipate that there will be no problem of that sort.