1. Before the use 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 the permit. The plans must be provided. The plans must be generally in accordance with plans by Synaman Justin & Bialet, Architects (Drawings Nos SK07 Rev D, SK08 Rev D, SK09 Rev B, SK10 Rev A, SK11 Rev A, SK12 Rev B, SK13 Rev B, SK14 Rev B, SK15 Rev B) but modified to show:

(a) a schedule of colours, materials, finishes and textures;

(b) provision for only one 80 seat 200 sq. metre restaurant, including any consequent change to the number and location of dwellings at ground floor level.

(c) no part of the building, within 27 metres of Fitzroy Street, being closer than 0.5 metres of the north-eastern side boundary;

(d) the redevelopment of the frontage setback area (to Fitzroy Street) to incorporate a low front fence, with openings for pedestrian access;

(e) the redesign of the ground level facade to Fitzroy Street to incorporate store solid elements;

(f) a landscaping plan, generally in accordance with the Landscape Plan (Drawing L51) by Vernon Landscape Architect Pty Ltd, but modified to reflect the changes made in accordance with (d) above.

2. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3. This permit will expire if one of the following circumstances applies:

(a) The development not started within 2 years of the date of this permit.

(b) The development is not completed within 2 years of the date of commencement of works.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

4. The Applicant/Owner shall do the following things to the satisfaction of the Responsible Authority.

(a) Ensure that any excavation and construction in close proximity to any trees to be retained on the site, or trees on the adjoining sites is undertaken in accordance with the recommendation of, and under the supervision of, a suitably qualified arborist.

(b) Pay the costs of all alterations/reinstatement of Council and Public Authority assets necessary and required by such Authorities for development;

(c) Obtain the prior written approval of the Council or other relevant Authority for such alterations/reinstatements;

(d) Comply with conditions (if any) required by the Council or other relevant Authorities in respect of reinstatement.

5. The amenity of the area must not be detrimentally affected by the use or development through the:

(a) Transport of materials, goods or commodities to or from the land;

(b) Appearance of any building, works or materials;

(c) Emission of noise, artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil;

6. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

7. The development and use of the site shall not cause nuisance or be detrimental to the amenity of the neighbourhood by the emission of noise. In this regard the emission of noise shall comply with the provisions of the Environment Protection Authority.

8. Provision shall be made for the storage and disposal of garbage to the satisfaction of the Responsible Authority. All garbage storage areas must be screened from public view.

9. Prior to the occupation of the premises for the new use, areas set aside for parked vehicles, loading bays and access lanes as shown on the endorsed plans and approved engineering plans must be:

* Constructed to the satisfaction of the Responsible Authority.

* Properly formed to such levels that they may be used in accordance with the plans.

* Surfaced with an all weather seal coat to the satisfaction of the Responsible Authority.

* Drained and maintained to the satisfaction of Responsible Authority.

* Line marked to indicate each car space, loading bay and all access lanes in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

10. Landscaping in accordance with this endorsed plan shall be completed before the building is occupied.

11. This permit relates only to the use and/or development of the land and does not comprise an approval for the erection of any advertising signs. The location and details of any advertising signs to be erected on the land shall be the subject of a separate application.

12. All new piping and ducting shall be concealed.

13. No equipment, services and architectural features other than those shown on the endorsed plan shall be permitted above the roof level of the building unless otherwise agreed to in writing by the Responsible Authority. No more than two television antennae shall be erected within the perimeter of the site.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Richard Schuster, Town Planner, appeared on behalf of the Responsible Authority, Port Phillip City Council.

The following Respondent/Objectors appeared on their own behalf, and in some cases, on behalf of their families:

Mr John Manetta, Solicitor, appeared on behalf of Ms Bridget Nettlebeck, Respondent/Objector. Mr Manetta called Mr Alan Willingham, Conservation Architect, as a witness in support of his submissions.

Mr Robert Osborn Q C with Mr Christopher Townshend, Barrister, appeared on behalf of 52 Fitzroy Street Pty Ltd, the Applicant for Review and Permit Applicant. Mr Osborn and Mr Townshend called the following witnesses in support of their submissions:

The parties and the witnesses in the appeal made both written and verbal submissions and a number of plans, photographs and other documents were tendered to the Tribunal. We inspected the appeal site and its locality.

In addition to the matters raised at the hearing, we had regard to further written submissions made at the direction of the Tribunal. At the conclusion of the hearing we advised the parties that we wish to give the parties an opportunity to respond to the implications of the decision of another division of the Tribunal in Application for Review No 1998/14394, Lawonnue Pty Ltd v Port Phillip City Council. This decision is another recent decision of the Tribunal dealing with a redevelopment proposal which requires the demolition of a building affected by a Heritage Overlay. Mr Osborn and Mr Townsend responded on behalf of the Permit Applicant, and Mr Manetta responded on behalf of Ms Nettlebeck, with written submissions being received on 31st May 1999 and 3rd June 1999 respectively.

The proposal is described in some detail in the following extract from Mr Schuster's submission:

"It is proposed to demolish the existing building and to develop and use the site as follows:

* Upper basement car park with 22 spaces (total 49 spaces). Note that the basement car park is at street level at West Beach Road due to the fall of the land by 2.7m over the length of the site and thus access to the car park from West Beach Road is achieved at this level. The "studio" and entrance to Apartments 1 and 3 are also located on this level facing West Beach Road.

* Ground level: Two restaurants of 200m2 each and a 77m2 convenience shop. 3 residential apartments (62m2, 46m2 & 64m2) facing West Beach Road.

* 1st and 2nd floor: 9 residential units ranging in size from 40m2 to 59m2.

* 3rd floor: 7 residential units ranging in size from 40m2 to 67m2."

The following extract from Mr Borelli's submission provides a good brief description of the land and its locality, it should be noted that for the sake of simplicity Mr Borelli adopted a convention of describing the subject site of Fitzroy Street as being the north side, when in fact it is in reality the north-west side because of the offset character of the street pattern in this locality.

"The land which is the subject of this Application for Review is located on the northern side of Fitzroy Street, to the west of the intersection with Canterbury Road. The site is regular in shape with a frontage to Fitzroy Street of 19.9 metres and a depth of 50.6 metres. It has a secondary frontage to West Beach Road which runs parallel and to the north of Fitzroy Street.

The locational context of the property is shown in Figure 1. The land is occupied by a double-storey brick building which was used as an office and is now vacant. In recent times the building has been occupied by squatters and in the process has been substantially damaged. There is a wide garden setback to Fitzroy Street and a concrete yard and outbuildings at the rear with a vehicle access point from West Beach Road.

To the west of the site is a double storey Victorian villa that has been converted into flats. At the rear of this building is a 1960's two-storey addition which also contains flats and runs to the rear of the site. Car parking is provided within the limited setback from West Beach Road.

To the east are two separate properties. The first is located on the corner of Fitzroy Street and Canterbury Road and is occupied by a large two storey Victorian commercial building know as "The Atlantic", a restaurant and bar. The second property contains a three to four storey apartment building located on the corner of Canterbury Road and West Beach Road.

Housing on the north side of West Beach Road comprises a mix of single storey houses and two and three storey multi-dwelling developments."

The land is located within a Business 5 Zone pursuant to the Port Phillip Planning Scheme. The objectives of the zone are:

"To implement the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and local planning policies; and

To encourage the development of offices or multi-dwelling units with common access from the street."

Under the zone provisions, the residential use is a permitted, Section 1 use, and the restaurants and convenience shop are permissible Section 2 uses.

The land is also affected by the Design and Development Overlay (Area 6-A3), Fitzroy Street, The Esplanade and Acland Street. The objectives of this control include:

* To protect and enhance the promenade character of The Esplanade and the boulevard character of Fitzroy Street

* To protect sunlight access to public places and open space areas such as the foreshore reserve ...

* To protect the established street trees and other landscape elements which contribute to the identity and image of the area as an attractive seaside residential, entertainment and leisure area

* To encourage high quality, well designed buildings ... which are compatible with the existing architectural and streetscape character of St. Kilda and reinforce its distinctive built form

* To encourage retention of those features that enhance the appearance of the St Kilda foreshore and adjacent areas and that give these areas their character and sense of identity

* To ensure that new development on sites containing or adjacent to a heritage place is of a form and scale which is respectful of these heritage places

* To encourage physical improvements to the area which enhance its character and form and provide a safe and comfortable environment for outdoor eating and promenading

Within the DDO area, 10 metres (excluding architectural features) is the preferred maximum building height and 3 metres is the preferred building setback to West Beach Road.

The review site is also affected by the Heritage Overlay (Area HO3). Under this control, buildings and works, including demolition but excluding tree removal and internal alterations require planning approval. Neither the building on the site, nor any building adjacent to it, is individually identified as a Heritage Place under the Planning Scheme.

The overlay provisions of the Planning Scheme were approved on an interim basis without exhibition (Amendment C7) and expire on 31 December 1999.

There are numerous aspects of the State and Local Planning Policy Frameworks which are relevant to this Application for Review. The Planning Policy Framework was dealt with at great length by the parties, and it is not intended to attempt to summarise the provisions of these strategies and policies here. Those aspects of the planning policy framework which are particularly contentious are dealt with below under the basis of decision.

1. Demolition of the existing building is opposed and unjustified.

2. The proposal fails to provide adequate parking on site.

3. The proposal will adversely affect the amenity of the locality by the loss of vegetation and impact on vegetation on abutting sites; and parking and traffic generation.

4. The proposed uses are inappropriate in view of the purpose of the zone and the strategic development of the Fitzroy Street precinct and with reference to Council's exhibited Amendment C5.

5. The height of the building is excessive and prohibited by the Scheme.

6. The replacement building is inconsistent with the objectives of the Scheme.

7. The proposal fails to fully comply with the Good Design Guide.

This Application for Review was originally set down for hearing on the 17th March 1999. Prior to that hearing the Applicant had caused amended plans to be circulated, and foreshadowed the intention to seek an order for the Tribunal amending the permit application by the substitution of the amending plans. At the commencement of the hearing it became apparent that there was an error in the plans depicting the front elevation of the building and that that area could have been misleading. In this context the Tribunal adjourned the hearing so that the amending plans could be corrected, including the correction of a number of other more minor defects identified by the Responsible Authority, and so that new notice could be given to persons whose interests might be affected.

By letter dated 26th March 1999, S J B Planning Pty Ltd acting on behalf of the permit applicant foreshadowed some further amendments to the plans, primarily of a minor nature. Mr Osborn applied to amend the permit application at the recommencement of the hearing, no party opposed the amendment at this stage, and we ordered the amendment of the permit application by the substitution of the amending plans for the plans which originally accompanied the permit application.

We consider that the significant issues in this Application for Review can be properly dealt with under the broad headings of heritage, car parking, urban design and orderly planning. This last topic is in effect the process of striking a balance between the competing planning strategies and policies relevant to a consideration of the re-development of this land.

In this case, as is often the case, there are widely divergent opinions in relation to the heritage significance of the building to be demolished to make way for this proposed re-development of the land. These divergent opinions are encapsulated in the evidence of Mr Willingham and Mr Raworth.

"Having considered the above evidence and made a survey and inspection of a number of works by Beaver and Purnell over many years, it is my conclusion that the former residence and surgery of Dr R L Morton at 521 Fitzroy Street, St Kilda, is a place of cultural heritage significance to metropolitan Melbourne, to the municipality of Port Phillip, to the suburb of St Kilda and to the immediate locality of Fitzroy Street, the building satisfies a number of the above assessment criteria, even in its currently damaged and neglected state, and retention and preservation on cultural heritage grounds can be justified.

Having considered the grading definitions advances in the `Port Phillip Heritage Review' (1998), it is my opinion that the subject property is more properly graded as a place of `B' level significance, meaning that I believe there is clear evidence to confirm that the building is an `individually important building of significance within the City of Port Phillip and beyond'.

It is my view that the residence is of aesthetic importance as a fine example of Arts and Crafts style architecture in Melbourne, it is a notable design by the distinguished architectural firm of Beaver and Purnell, a firm otherwise noted for its oriental style work, it is of historical and social significance because of its indelible association with Dr Reginald Lonsdale (`Doc') Morton, a leading figure in the administration and control of cricket in Australia, Victoria and at St Kilda.

It is also of significance as a rare surviving illustration of residential development on the north side of Fitzroy Street, St Kilda.

It is my considered opinion that the subject property should be retained in the Port Phillip Planning Scheme as a significant place and demolition should be refused on impelling cultural hereitage grounds_."_

"On balance, the demolition of the extant building on the site is acceptable given the relatively low architectural and historical interest of the building and the heterogeneous character of the street. The building is neither of individual architectural significance sufficient to warrant retention, nor a key visual element within a streetscape of consistent period, character or form. Indeed, the building makes a low contribution to its streetscape and heritage overlay area in terms of both significance, or that it does not belong to the rather extended period of development exhibited by the buildings within its streetscape, it can be argued that it is very limited in its ability to contribute to that area in terms of visibility, and does not conform to the range of setbacks and formal character seen in the other buildings. This would remain the case even were the building to be retained and restored. Given its general domestic character, its derelict state, and the nature of the uses which have evolved in the neighbourhood, it does not seem a likely candidate for restoration and re-use in its present form.

The proposed redevelopment seems broadly appropriate for its context in terms of scale, form and materials. That is not to say that it replicates the exact materials found in the existing or adjacent buildings, for it seeks to extend the range of materials and architectural expression in its area, reinforcing the heterogeneity which is the dominant aspect of the streetscape within which it is located."

We sought further submissions in relation to the Application for Review 1998/14394, Lawonnue Pty Ltd v Port Phillip City Council, because in that case the Tribunal found that the weight of planning policy expressed in the Planning Scheme was such that they should not permit the demolition of a heritage place, the dwelling known as Duart. This decision at first glance seemed to be at odds with the decision of another division of the Tribunal in the Application for Review 1998/90776, Kaystead Pty Ltd v Port Phillip City Council, We were interested in considering whether or not these decisions could be distinguished.

We are satisfied on the basis of the further written submissions, and our own consideration of these cases, that there is an important distinction between the Lawonnue case and the Kaystead case. This distinction relates to the nature of the heritage place being protected by the Heritage Overlay Controls.

In the Heritage Overlay Control, clause 43.01 of the Planning Scheme, the clause applies to the heritage places specified in the schedule to the overlay. In the Lawonnue case, the building Duart, was itself, in its own right, a scheduled heritage place. In the Kaystead, as in this case, the heritage place to be enhanced and conserved etc, is not the individual building under consideration, but the area specified in the schedule.

In the case of individual buildings which are themselves heritage places in the schedule to the Overlay Control, the heritage significance of the building has largely been determined by the planning scheme amendment processes, and while there can remain debate about the particular significance of the building in an application before the Tribunal, the Tribunal would need to be cautious about finding that the particular building is of no significance, given that it is not the planning authority. This is not to say that there will be never a case in which the Tribunal could decide that notwithstanding the significance of the individually scheduled premises, the balance of planning policy would suggest that its demolition could be supported. This would depend on the balance to be struck between competing planning policy.

In the case of a proposal to demolish a building within a heritage place which is an area, an issue to be determined in each case is the contribution of the particular building under discussion to the significance of the heritage place, that is the area. This is a decision which is clearly to be informed by the State and Local Planning Policy framework, and where appropriate the relevant incorporated or referenced documents.

In the Lawonnue case the Tribunal emphasised the importance of planning policy in the new VPP based planning system:

The discretion to grant a permit still exists but the context for exercising that discretion is very different. For example there is now Clause 41 which sets out the matters to have regard to when applying a control under the Heritage Overlay or for that matter any overlay. This Clause was introduced following the recommendations of the Advisory Committee appointed to consider the Victoria Planning Provisions. That Committee's August 1997 report, which Mr Pitt directed us towards, is essential reading, in particular Chapter 2, dealing with policy. It illustrates the very great changes in emphasis between the controls of the past, which were often ends in themselves and the controls of the format Planning Scheme, which are a means to an end, the end being the realisation of the State and local level policy framework.

"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any other decision guidelines in Clause 65."

The discretion exists but that does not mean it will or must be exercised. The issue now is to decide whether the demolition of Duart will produce acceptable outcomes in terms of the policy framework etc.

The presiding member of this division of the Tribunal in Application for Review No1999/13852_, SMA Projects v Port Phillip City Council_, discussed the proper application of this local planning policy, in a context not dissimilar from that found in this application. In that case the Tribunal said:

However, this raises the question of how to properly apply the local policy set out in clause 22.05-2 of the Planning Scheme. For the purposes of this policy a significant heritage place includes not only those places identified in the Schedule to the Overlay, but also those places identified in the Port Phillip Heritage Review 1998. In this later document this site is one of more than10,300 sites coloured red on the map associated with the Heritage Review and the Tribunal is advised that this denotes that it is a significant heritage place for the purposes of the policy. The local policy states:

a) Any Significant Heritage Place identified in the Port Phillip Heritage Review (1998) and included in the Heritage Overlay (Clause 43.01) should be conserved."

In the new VPP based planning system decisions in the exercise of discretion should be heavily influenced by the strategic and planning policy framework set out in the planning scheme. What then is to be done in this case in the face of this quite clearly stated policy that any significant heritage place should be conserved. Mr Wright set out a number of arguments or statements on what he regards as the correct approach to the application of policy in planning schemes, I hope I correctly paraphrase his submissions as follows:

* Policy can never be more than a guideline, it should not be applied as if it is a mandatory limitation on the exercise of discretion provided for by the scheme.

* Policy must be considered in a framework which includes all the policies relevant to a proposal in the scheme.

* This policy is an interim policy, and it is yet to be properly tested through the complete planning scheme amendment process.

* Policy should not be applied in a way which leads to a result which is inconsistent with a proper analysis of the evidence.

* The planning reform process was intended to result in a system that was capable of producing good or preferred outcomes, policy should not constrain a decision maker into accepting something less than the best decision in each case.

Mr Wright in making these submissions relied on the decisions of the Tribunal in, Application for Review No 1998/45799 Alan Power Pty Ltd v City of Port Phillip, and Application for Review No 1998/90776, Casey Pty Ltd v City of Port Phillip.

I accept Mr Wright's submissions and the conclusions of the other divisions of the Tribunal in the two applications for review referred to above. In the new planning system planning decisions are meant to be heavily influenced by policy, and in particular the consistent application of policy can avoid the adverse effects of incremental change which can occur through an ad hoc site by site decision making process. Nevertheless, policy must be applied in an intelligent and flexible way having regard to the entire strategic and policy framework affecting the future use of land while at the same time avoiding unfortunate outcomes in individual permit applications. I consider that it would be an unfortunate outcome in this application for review if the conservation of this dwelling on this land prevented its proper redevelopment.

It is interesting to note that these matters were taken up in the "Final Report, New Format Planning Schemes, compiled by Helen Gibson, Senior Panel Member, Planning Panels Victoria". This report devotes quite some space on the issue of planning policy, the following extracts are relevant to the issue discussed above and gives some feel for the conclusions of the report:

The municipal strategic statement is intended to provide the broad brush strategic direction of planning schemes and justify the application of zones and overlays. Local policies are important in providing guidance to Councils and applicants in day to day decision making. With the broad discretions provided by zones, local policies provide a means of refinement to achieve identified objectives in the MSS to address key issues and to avoid inconsistency in decision-making. The critical issue will be to what extent they can legitimately constrain the exercise of discretion.

Panels believe that unless policies are carefully monitored, they have the potential to undermine the intent of the planning reform program by becoming de facto zone controls. The emphasis will shift from what is permitted in the VPP zone to what is permitted under the local policy. They will be used as a prescriptive measure rather than as a means to establish a performance base. There will be the temptation to rely on local policies as proscribing the exercise of discretion, in the interests of `certainty', rather than always measuring a proposal against objectives. Alternatively, there will be the temptation to couch objectives themselves as prescriptions.

On the other hand, unless local policies are ascribed a legitimate role in guiding the exercise of discretion over use or development, there is little point in having them. Establishing the appropriate balance will be of critical importance during the initial stages of operating the new format planning schemes.

9.3.2 Constraints on the Exercise of Discretion

Possibly the greatest challenge in managing the new format planning schemes in the future will be to strike a suitable balance in the degree to which local policies can inhibit land uses otherwise allowed or subject to permit.

The panels do not consider that the problem is solved simply by insisting on use of the word "encourage" as opposed to "discourage". If a use is to be encouraged, it will be easy to argue that this means other uses are to be discouraged. At least, that is certainly the way in which many councils will apply the logic to achieve the outcomes they wish.

The panels see the solution in concentrating on the objectives of the policy, rather than on the words of the policy that "encourage" or "discourage" certain uses. If it is these provisions that are concentrated on, then local policies will act as de facto zones and the flexibility that the planning reforms have introduced by way of the new zones will be lost. Instead, it must constantly be asked, irrespective of whether it is stated that a use is "encouraged" or discouraged", what will the outcome be? Will it further objectives of the policy or will it be contrary to them? If it will do neither (in other words, it is policy neutral), then it must be asked, why not allow the use? There may be other policy or amenity reasons why it should not be allowed. But if there are not, the intent of the reforms is to allow it to proceed, notwithstanding the policy may specifically provide that it is a use to be "discouraged"."

I think that it is quite appropriate for local policies to be expressed in direct language, as in this case, so that all users have a clear statement of the policies intend. Local policies should not merely be a restatement of the more generally expressed strategies or State level policies. However, there is a risk that State authorities will resist directly expressed local policies if responsible authorities fail to recognise the distinction between mandatory controls and the application of policy provisions.

In some respects this debate about the role of planning policy is not new. The Tribunal has in very many cases discussed the role of policy in the exercise of discretion. We agree that in the new V.P.P based planning system an even greater emphasis is placed on the importance of planning policy, but much of what has been said in the past about the role and application of planning policy is still relevant. For example the Administrative Appeals Tribunal in Appeal No P89/1819, Australian Posters Pty Ltd v Shire of Cranbourne, a 1990 decision, said:

"Planning schemes generally provide broad discretion in relation to both use and development in provisions which can apply to widely different locations and circumstances. A planning policy or code may quite reasonably seek to prohibit certain uses or development on the basis of the attributes of the locality or other planning circumstances.

Planning policy is a very important planning tool. Planning policy enables a planning authority to codify the exercise of its discretion established by a planning scheme, in a non-binding document. The benefits of planning policy include:

- A public informed of the Responsible Authority's general policy in relation to the exercise of its discretion, and

- The flexibility to adapt to changing events or the circumstances of a particular proposal,

- The capability of responding to complex issues without being bound by the rigidity of planning scheme provisions.

In considering a planning policy the Tribunal must decide three matters. They are:

1. Is the policy consistent with overriding Regional and State planning policies?

2. Is the policy reasonable and appropriate to the local circumstances in which it applies?

3. Are there any positive attributes of the specific proposal under consideration which would justify a departure from the planning policy?

The positive attributes referred to in 3 above, must be more than the mere absence of significant adverse effects of the proposal, planning policies are often concerned with the cumulative effect of change over time, therefore their consistent application is often extremely important."

Presumably it is to be assumed that if policy has been approved and forms part of the scheme it is not intrinsically inconsistent with the Planning Scheme. Perhaps the matters that the Tribunal must decide can be restated as follows:

* What is the balance to be struck between relevant aspects of the planning policy framework, in the particular case.

* Are there any special characteristics of the proposal or locality which justify a departure from the planning policy framework.

What then is the contribution of this particular building to the significance of this heritage place, what is the appropriate balance to be struck when considering the policy and framework applicable to this site and this proposal.

We primarily agree with Mr Raworth's assessment of the architectural significance of this dwelling. It is a reasonable example, although not the best example, of the work of a moderately well known architectural practice, in fairly poor condition. The building could undoubtedly be restored, but it does not lend itself readily for reuse in the context of its location within the zone and the character of the locality on the north-west side of Fitzroy Street, St Kilda.

The existing building does not contribute strongly to the character or the heritage significance of the area. The area is somewhat heterogenous in character, our inspection has led us to agree with Mr Raworth's view that this building is "the odd building out" within this heritage streetscape. The mere fact that a building is the odd building out, within a heritage area, will not always mean that it is a suitable building for demolition, but in this case the building is not of such great architectural value that it would warrant preservation in such a context.

Dr Reginald Morton built the existing house on the land in 1920 and practised and resided in it until his death in 1947. Doc Morton, as he was known, has some fame because of his long association with cricket. He was president of the St Kilda Cricket Club from 1921 until his death in 1947, and was associated with the administration of cricket at both the State and Federal level being at various times chairman of the Australian Board of Cricket Control and vice president and president of the Victorian Cricket Association.

Doc Morton's important contributions to cricket in the first half of this century are acknowledged through a grandstand bearing his name at the St Kilda Oval, and a chapter in Robert Coleman's Seasons in the Sun : the story of the Victorian Cricket Association" (1993). While there may be persons who are of such importance to the history of the nation or the State that the preservation of buildings associated in some way with their life may be warranted. We agree with Mr Raworth in this case that Doc Morton's fame is not of such a type. While it is less common nowadays, in the past there were men and women who served for very long periods for organisations such as local municipalities, or sporting bodies. It was not unusual for the services of such people to be recognised by buildings being named after them and their contributions being acknowledged in local histories. In our view it is not usual or even appropriate for it to be argued that such persons' dwellings should be preserved because of the cultural significance associated with these persons' contribution to their community. In our view the dwelling itself does not inform us at all about that person's contributions.

Therefore it is our view that this is a case in which this building within a heritage area can be demolished provided that the proposed redevelopment enhances the significance of the heritage place. This is particularly true in the context of an area in which a part of the heritage character of the area is the way in which it has evolved over time. It is entirely possible that a new and excellent building will contribute to the heritage character of this area in a way which is much more significant than the contribution of the existing building.

Car parking is as you would expect a contentious issue in this appeal, because the proposal is quite a large development and therefore notwithstanding the provision of 49 car spaces in a two level basement car park, the number of car spaces provided is insufficient to satisfy peak demands whatever basis of assessment is applied. Moreover, the Responsible Authority has exhibited a planning scheme amendment intended to implement a parking precinct plan in respect of a number of shopping centres including the Fitzroy Street shopping centre. Parking precinct plans are intended to perform an important role in the new VPP based planning schemes in relation to the assessment of car parking requirements for uses and development. Parking precinct plans are intended to ensure that planning scheme provisions relating to car parking in a particular area are based on the broader strategic aims for the area in question.

In the case of the Fitzroy Street Parking Precinct Plan, the policy context of the plan is related back to the Municipal Strategic Statement, i.e:

In relation to car parking generally, the Planning Scheme includes the Municipal Strategic Statement, which sets out the broad principles of planning for the provision of parking throughout Port Phillip, namely:

* that new land uses and development should provide sufficient parking to satisfy their needs, but in the context of encouragement for alternative transport modes, and

* that levies may be required for public parking (and other transport) provision projects.

* the preparation of Parking Precinct Plans for activity areas (such as neighbourhood shopping centres) which address parking requirements and alternative forms of transport.

With specific reference to Fitzroy Street, the Planning Scheme incorporates a Local Policy for the Fitzroy Street Neighbourhood Shopping Centre at Clause 22.05-3. The relevant objectives of the policy include:

* to enhance the convenience retail role of Fitzroy Street by encouraging a balanced range of retail and associated uses to serve the local community, workers and visitors and, in particular, creating new retail opportunities on the St Kilda Station site;

* that new residential and office developments be encouraged, especially as part of mixed use and "shop top" housing developments'

* that existing café and restaurants be retained, but that new uses and developments be discouraged.

* to ensure that new use and development provides adequate car parking and does not result in a loss of amenity to nearby residential areas.

The Fitzroy Street Local Policy implies that new shop, residential and office uses or developments be allowed to provide parking at reduced rates (or not at all). New cafes, restaurants, taverns and similar entertainment uses of developments, on the other hand, should provide sufficient parking to meet their full (peak) demands, and on the own land.

The plan also set outs the special parking needs perceived by the Responsible Authority in the Fitzroy Street shopping centre, i.e:

"The City of Port Phillip recognises the special parking needs of its various retail/commercial areas, and is preparing Parking Precinct Plans for them.

Fitzroy Street in St. Kilda is a local/neighbourhood shopping centre which has traditionally included tourism and recreational facilities as well as convenience retail. More recently, many of the shops have been converted to restaurants and this has caused two significant problems:

* a reduction in the retail and other services available to local residents and employees;

* an increasing pressure on parking facilities, especially at night and on weekends.

This is a major issue given the expanding local resident community and the City of Port Phillip has taken various land use and transport policy initiatives to address these problems, including the preparation of this Parking Precinct Plan."

In relation to the issue of car parking requirements the approach adopted by the Parking Precinct Plan is to specify car parking requirements to be used instead of those set out in the planning scheme for 5 particular uses. The Plan also sets out a further variation of the specified car parking requirements in respect of three preferred uses, that is shop, office, or dwelling depending upon whether or not the proposal is for the redevelopment of the site, the extension of a building, or for a change of use within an existing building. Attachment 1 to this decision is a copy of Table 1 from the Parking Precinct Plan, which succinctly sets out what is proposed.

In very general terms the purposes or effects of the proposed Parking Precinct Plan, are to set out new car parking rates for a small range of uses, which the Responsible Authority says are a more accurate reflection of actual demand for these uses in the context of this locality. Then the Parking Precinct Plan proposes to allow concessional car parking rates, in some cases a zero rate, for a range of uses which the Responsible Authority wishes to encourage in the shopping centre having regard to the strategic intentions of the Responsible Authority within the shopping centre precinct.

In our view this is a valid approach, it is appropriate for a planning authority to be seeking to influence the form and function of an important activity such as Fitzroy Street. A planning authority cannot influence the mix of uses within the shopping centre in the same way as an operator of a privately owned regional shopping centre such as Chadstone. However a Planning Authority should ensure where feasible that an appropriate range of uses are available to the community which relies on the shopping centre for services.

The pool of publicly available car parking within any shopping centre is an important public resource, and it is not unreasonable for a planning authority to seek to manage the way in which this public pool of car parking is utilised having regard to its strategic plans for the centre. A valid approach is to provide concessional car parking rates, for preferred uses. Therefore providing such uses favourable access to this pool of publicly available car parking, rather than insisting on the provision of on-site car parking. In the same way it is considered reasonable to require that uses which are not preferred to make adequate provision for their own car parking demand without reliance on this valuable resource, that is the pool of publicly available car parking.

However, the Tribunal does have some reservations about the exhibited Parking Precinct Plan, and it may be helpful to outline them here, they are:

* The plan is in part based on the Responsible Authority's characterisation of this shopping centre as a "Local/Neighbourhood Shopping Centre", we wonder whether or not this is an appropriate characterisation of the shopping centre in the broader metropolitan context.

* The strategy for the shopping centre is essentially to halt the established pace of change within the centre, and to re-establish its local convenience role. One could question whether or not this policy is appropriate in a metropolitan context, and whether or not it is entirely reasonable or necessary even in the local context. However, our primary concern in this regard is perhaps its practicality, is it indeed possible or even desirable to resist the transformation of the Fitzroy Street shopping centre which has been progressing for the last decade or so?

* Our most important reservation relates to the car parking rates, the rates proposed are generally less than those set out in the planning scheme, which are maximum rates set down in the context of a scheme which applies over the whole State. However, we are concerned on the basis of our own experience, and on the basis of Mr Hunt's evidence, that the rates set out in the Parking Precinct Plan are too high and are inappropriate in this urban location.. There may be planning reasons for adopting car parking rates for a particular use, which are different to those which arise from an empirical assessment of existing demand for car parking for the particular use in question. However, it appears to the Tribunal that this is only justified where the chosen rate is less than that which arises from the empirical system, as it is difficult to envisage the circumstance in which it would be justifiable to impose a requirement on a private individual to provide in excess of that required by their particular use or development.

* The car parking rate for dwellings is higher that the GDG, making no allowance for single bedroom dwellings, it is difficult to see how this is justified in such an urban environment.

* The assessment of the existing car parking deficiency within the shopping centre, and the proposed car parking rates, is not justified in the Parking Precinct Plan in the Parking Precinct Plan, perhaps such an addition would be helpful to a readers understanding of the policy.

Turning now to this particular proposal. Mr. Hunt in his evidence assessed the parking demand of the proposal on the basis of the planning scheme requirements, Parking Precinct Plan requirements, and his own empirical assessment. Results of this are set out below:

* Both Mr Hunt and the Planning Scheme assessment use the GDG rates for the residential component, this is lower than the PPP rates which makes no allowance to 1 bedroom dwellings.

* Mr Hunt used empirically derived rates for both restaurant and convenience shop; as discussed below.

* Mr Hunt acknowledged the difficulty of efficiently using the 13 car spaces available on site for the restaurant/convenience shop, however suggested that good management practices would enable them to be used

Mr Hunt in part made his assessment of car parking demand on the basis of interview surveys conducted in the Fitzroy Street shopping centre. Surveys were conducted for both Restaurant and Convenience Shop. It is Mr Hunt's approach to restaurant parking rates which is interesting and perhaps even contentious. In relation to this survey he said:

"The average car occupancy was 2.32 persons, equivalent to an overall car driver ratio of 0.29 cars/patron.

It was ascertained from the survey that while some patrons of the restaurant had travelled to the area specifically to visit the particular restaurant, a proportion were people who had visited the area and chosen the restaurant as part of their visit or were already in the area for other purposes (eg. work, shopping) who then used the facility while in the area.

This includes people who had driven to the area and chosen the restaurant "at random" from the various restaurants available.

Accordingly, while a car parking rate of 0.29 car spaces/patron occurred, a lower demand of 0.20 spaces per patron was identified as people who had specifically driven to the area to visit the site.

When related to the peak occupancy of the restaurant of 45% at 9 pm a customer parking generation rate of 0.13 spaces per available seat occurred.

There is in our view a certain validity to this approach. It assumes that a new use should have equal access to the pool of publicly available car parking referred to above. However, as discussed above the decision about whether or not this approach should be adopted, is an issue of planning policy in relation to the particular activity centre.

Mr Hunt's survey results revealed that car parking demand within the shopping centre is very high on Friday and Saturday evenings with car parking being generally available at other times, at least in the commercial multi deck car parks. When surveyed the smallest number of available car spaces on Friday and Saturday evenings range between 24 and 121 car spaces i.e between 3.5% and 17.5% of the total available car parking of 690 car spaces. This is a very high level of car parking utilisation, which reveals that on the peak nights during the peak season, all of that parking is effectively in use.

The fact that at critical periods car parking within the shopping centre is saturated is not always a basis for disallowing the establishment of a new use which cannot provide all or any of its car parking demand on-site. For example see the decisions of the Administrative Appeals Tribunal in Appeal No 1996/46940, Graham Hubbard and Ors v City of Boroondara and Appeal No 1991/12636, Merrill Stars Pty Ltd v Fitzroy City Council. A difficulty with this approach in this case, is the planning policy set out in the Parking Precinct Plan, which does not allow for such an approach, at least for a restaurant use. In the VPP based planning scheme system, decisions are intended to be informed by planning policy, and considerable weight should be given to planning policy. However, the Fitzroy Street Parking Precinct Plan has not yet been adopted and is not yet part of the planning scheme, although obviously seriously entertained by the Responsible Authority. Moreover the plan has a number of deficiencies which might modify the weight to be given to the plan in the context of this proposal.

The urban design issue in this appeal is connected to both the heritage place issue, and the question of orderly planning in the context of the Fitzroy Street shopping centre. In our view the issues which should be addressed in the context of urban design are:

* The quality of the architecture and its place in the streetscape and locality generally.

* The scale of the building, is it too high, too wide or too chose to boundaries.

* The relationship of the building to the street, Fitzroy Street, at footpath level.

The architecture of the building, in particular its modern style, its forms and the materials used were the subject of some criticism during the appeal. In some instances the criticism was based on the context of the building within the Fitzroy Street streetscape, and in other cases the criticism seemed to be based on more general reservations about modern architecture.

Having carefully considered the plans, and the evidence of Mr Justin and having inspected the site, we are of the view that the proposed building is an example of an excellent, innovative and contemporary design. The building therefore is of merit in its own right.

However, the building sits within a heritage place, and in this context the important issue is how the building, whatever its individual merits, fits within the streetscape of the north-western side of Fitzroy Street. Mr Justin argued that his design had paid particular attention to the relationship of the proposed building to the adjoining buildings. We agree with this assessment, not only is the building a fine example of architecture in its own right, it will contribute in a very positive way to the enhancement of the Fitzroy Street streetscape.

It was also argued that the scale of the building was excessive in its context, and that in particular it was too high and the setbacks, particularly the setbacks from the front and rear streets, were too small. Again it was considered that within the context of the broader area, the overall scale of the building is not inappropriate having regard to the scale of other buildings along this side of Fitzroy Street. Also within this broader context the particular relationship of the proposed building to the buildings on the adjoining sites has been carefully resolved in our view. At the Fitzroy Street frontage, the front of the building has been articulated so that it provides a transition between the buildings on the adjoining sites. The proposed building is stepped back sharply from the West Beach Road frontage providing a reasonable transition in scale from Fitzroy Street to West Beach Road and preserving the outlook from the flats to the north east of the site. The proposed building is a relatively large building built fairly close to its side boundaries, but this highly urban relationship between buildings is appropriate in this locality.

The proposed building is also taller than the adjoining buildings, but the upper level is inset from all boundaries and the overall height of the building is not inappropriate in the broader context and does not create unreasonable changes in scale between itself and the buildings on the adjoining sites.

One piece of urban design jargon which is prominent in activities centres is the question of active frontages. An "active frontage" would be a conventional shopping street with an uninterrupted expanse of shop fronts, fronting onto the footpath, an example being the south-east side of Fitzroy Street. A less "active frontage" would be one in which relatively blank facades face onto the footpath, absolutely limiting any interaction between a person on the footpath and the activity within the site. In relation to this, within the continuum of active street frontages, the existing situation on the north-west side of Fitzroy Street is about half way in-between these two extremes.

The proposed building at ground floor level primarily comprises a continuous glazed shop front with the set back area in front effectively designed as an extension of the footpath thereby creating a very active street frontage, which is in some respects more typical of the shopping street on the south east side of Fitzroy Street. On the north-west side of Fitzroy Street when buildings are set back from the frontage of the site, it is common for this set back area to be enclosed by a low transparent fence, and the buildings themselves tend to be a mix of solid and glazed surfaces, even at ground floor level. We consider that this proposal would benefit by some relatively minor amendments in respect of this ground level interface. It would be appropriate to create a low fence or barrier between the footpath and the frontage setback area with a small number of gateways or openings providing access between the footpath and the property. Furthermore, there could perhaps be some change to the mix of glazed and solid surfaces at ground floor level, to breakdown the impression that the frontage of the site is a continuous collection of shop fronts, albeit an attractive glazed curtain wall in the modern idiom.

The existing building has a quite large garden setback, and while this front garden area could not be said to be a quality of landscape, it is quite different to the very small landscape areas available on other sites on the north west side of Fitzroy Street, and therefore creates a reasonably strong visual impact. Nevertheless, the landscape character of Fitzroy Street generally and the north west side in particular is created by large street trees, rather than the landscapes on private land. Therefore, having regard to this established streetscape character, the loss of this garden setback is not inappropriate. The proposed design allows for the preservation of some existing vegetation along the south-western boundary of the site, and incorporates measures to aid the preservation of a group of Canary Island Palms located on the adjoining site adjacent to the north eastern boundary of the site. In this regard, the Permit Applicant has also agreed to an additional setback of the ground floor level wall adjacent to this boundary. Mr Vernon's landscape proposal is basically developed around enhancing these existing site boundary landscapes with some minor landscaping proposals across the face of the site. The changes along the frontage of the site foreshadowed by the Tribunal above might create some additional opportunities for further landscaping.

The Responsible Authority opposes the establishment of new restaurants and convenience shops on the north west side of Fitzroy Street, Mr Schuster submitted in part:

"The Municipal Strategic Statement seeks to encourage the provision of retailing opportunity in established retail centres in a manner which maintains existing amenity and services the local community. It is to be noted that the zone provisions prohibit the use of land for the purposes of shop and clearly intends the north side of Fitzroy Street to be used for service businesses such as offices, and residential purposes. The Council does not view the north side of Fitzroy Street as a retail centre and thus does not support the further intrusion of restaurant uses onto the north side of Fitzroy Street (noting that there are only three existing restaurants within the whole of the strip on the north side of Fitzroy Street between Canterbury Road and the Foreshore) which would dilute the residential character of that side of the street and would unnecessarily increase pedestrian movements across Fitzroy Street, mid-block."

We agree that the character of the north western side of Fitzroy Street is quite different to that of the south eastern side. The north western side is not a shopping street and new infill development should be careful not to lead to the transformation of the north western side into a shopping street. Nevertheless, we do not agree that it necessarily follows from this conclusion that no new restaurants or no new convenience shops should be permitted on the north west side of Fitzroy Street. The difference in character between the two sides of the street is not solely a matter of the mix of uses. The mix of uses is important, but it is also a matter of the character created by the design of the buildings and their particular relationship to the street. A convenience shop in particular would service the needs of the emerging residential community on this side of Fitzroy Street.

It is our conclusion that with some minor modification to both the design, and the mix of uses, this proposal should be approved. We base this decision on the following conclusions:

* The architectural and cultural significance of the existing building on the site, and therefore its contribution to the significance of the heritage place, is not so significant that the building could not be demolished to make way for a new building which will itself contribute to and enhance the character of the area. In our view the proposed building is an appropriate infill building, and will in time itself become an important element in this heritage place.

* At critical times car parking here is saturated, and there is in effect no car parking available in the area to cater for the off-site car parking demand of the proposed restaurants. The local policy proposed by the Responsible Authority is that new restaurants should make provision for their car parking demand, in this proposal only part of the car parking demand of these proposed restaurants can be provided on-site. Because we think that some weight should be given to this policy, and because of the arguments put forward on behalf of the Responsible Authority in relation to the mix of uses appropriate on the north west side of Fitzroy Street, we are of the view that only one 80 seat restaurant should be permitted on this site. It is considered that a small convenience shop is an appropriate use, given the high density residential development within the Business 5 zone.

* The proposed architecture is excellent, the building will be an innovative, contemporary addition to this important streetscape.