On behalf of our clients, the owners of the above mentioned site, we request that Council extend the planning permit (copy attached) for a further 2 years.

As the previous extension in 2002 was supported by VCAT at the time (see attached VCAT judgement), we expect this to be a straightforward matter and respectfully request Council consider our request by delegation as soon as possible.

We have enclosed a cheque for $100-00, which we understand is the fee associated with an Extension of Time application.

35 On 16 June 2004 the responsible authority wrote again in the following terms:

Further to our letter 3rd June 2004 requesting an extension to the above mentioned permit in our subsequent telephone conversation, we have set out below the reason for this application, and as to why this project has not proceeded to date.

i) As there has been considerable uncertainty in the media about the residential/apartment market over the past 12-18 months, this has adversely affected the ongoing marketing of the residential component.

ii) The requirements in securing development finance has changed, now requiring a higher level of pre-commitment with regard to apartment sales, given the conditions of the residential/apartment market (see Point 1).

iii) Given the negative publicity associated with the Victoria Gardens development nearby, our client had experienced some delays in securing tenants and finalising commercial leases.

iv) The permit extension previously granted was issued for 12 months from the date of the previous permit and not from the date of the VCAT judgement. Our client effectively lost 7 months waiting for a VCAT hearing date and judgement.

v) Increase in building costs have necessitate the re-costing of certain aspects of the project and hence re-documentation and re-design of structural elements within the project to contain the price. This is ongoing in parallel there have been no significant changes, planning scheme controls relating to the land since the permit was originally granted. Further, the proposal is consistent with the current planning scheme controls affecting the land, which would encourage a development of this nature on the site.

Our client is finalising tenants for the commercial component of the development, as well as still marketing the residential component and for the above mentioned reasons, we respectfully request Council now consider our request as a matter of urgency.

Yours faithfully [numbering in the original ere not Roman but they have been converted to avoid confusion with paragraph numbers in this document. In felicities of expression appear in the original.]

36 The response came in a letter from the responsible authority dated 30 June 2004 which, omitting formalities, read:

I refer to your request of 7th June 2004 which seeks an extension of time to the above permit. Your request was considered by a Development Assessment Panel meeting on 29th June 2004, where it was resolved to refuse extension of time request on the following grounds:

•

Eight (8) years is more than reasonable time for works to have commenced on the site; and

•

The approved development in its current form does not comply with recent changes in planning policy, in particular Amendment C50 - Development Guidelines for Development Above Three Storeys and the draft Victoria Street Master Plan.

As a result, your request to seek an extension of time to the above permit has been refused under powers of delegation from the Council.

Should you wish to proceed with the development, then a fresh planning application must be submitted to Council to enable proper consideration of the proposal.

37 This decision by a delegate or delegates of the responsible authority is based on the previously mentioned delegated report of 30 June 2004. That report recommends refusal of extension, but does not suggest grounds. I have already mentioned this report, and discrepancies between it and the position taken by the responsible authority at the hearing in relation to warehousing. I note a further discrepancy. At part 5 of the report on page 7 consideration is given to the question "Having regard to the above would this permit be granted under current circumstances?" The brief answer given to that question commences "It is considered that the permit would not be granted under current circumstances". I do not know that this consideration is as objective as the reference to "it is considered" might suggest. It seems to me it can be no more than the opinion of the person who wrote the report. It seems to me to be rather a bold assertion. A project like this is now, as it was at the time of the grant of the original permit, strongly supported by planning policy considerations. This dates back to the policy considerations referred to that led to the re-zoning of the land before municipal amalgamations. The land is now zoned Business 1 and the purpose of that zone, apart from general implementation of state and local planning policy frameworks is:

To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

38 At paragraph 44 of the written submissions presented at the hearing before me the following concession is made on behalf of the responsible authority:

It is conceded that it is likely a permit would issue for a four storey building with basement parking at this location which allows for a mix of retailing and residential activities. Certainly, there is ample policy support for this type of activity in a building of this general scale at this location.

39 The position taken by the responsible authority before me is not that this building or something very like it would not get a permit if applied for now, but rather it is suggested (see paragraph 44 of the written submissions of the responsible authority) that there is now a need for "further requirements over such fine details of the development as the layout of open spaces, the location of services, the management of car parking etc. of the building".

40 The responsible authority's case has got down to the proposition that there may be a need for requirements in relation to fine details, rather than a bold assertion that a permit would not be granted.

41 The responsible authority discounts the company's reasons as set out in its letter of 16 June 2004 for not having commenced works. The responsible authority is content to discount those reasons on the basis of lack of evidence to support them, where it apparently did not ask for such evidence and on the basis of various inferences it has been pleased to draw from what was said. Before me it is suggested that there is a need for a detailed and meticulous trial of the various elements and that these claims must be proved. This seems to suggest that I cannot make inferences from the more detailed evidence called before me, although I am in a better position to make them than those made by the responsible authority itself.

42 Although I do not accept everything in the letter of 16 June 2004 at face value, I do recognise that the opening of the Victoria Gardens development in Victoria Street down near the Yarra River, and approximately 1.5 km from this site, is a significant event in the commercial and retail life of Richmond, and of Victoria Street in particular. It has been open for approximately 18 months and contains a very substantial IKEA furniture store, a supermarket, other bulky goods outlet such as Freedom Furniture, a bowling alley, eight cinemas, approximately 50 speciality shops, offices and residences. I can well understand that this might provoke reassessments, not only by the developer itself, but also by prospective financiers and tenants. While a tenant for the supermarket on this site had apparently been secured by the time of the 2003 case, the evidence indicates that this was subsequently lost or came into doubt.

43 My attention has been drawn to the case of Pentas Property Investments v. Yarra CC [2004] VCAT 1861 (10 September 2004), a case heard on 18 and 19 August 2004 in relation to which a determination was given on 10 September 2004. In that case a substantial development has been approved on the other corner of the intersection of Nicholson Street with Victoria Street namely the north-east corner. The property concerned is 329 to 341 Victoria Street, Abbotsford. The proposal there is for a development, one two storeys higher than this one, to contain six retail shops with associated parking and 48 dwellings. The permit granted by the Tribunal in that case (by member other than myself) indicates an acceptance that the proposal is in accordance with policy applicable to the area. Indeed, as that building is higher than this, it might almost be argued that the current proposal is an under development of the site.

44 I might say that, early in the submissions on behalf of the responsible authority, I was taken through current state and local policy framework provisions including the Council's Municipal Strategic Statement and other associated policy provisions. I will deal separately with the Design Guidelines for Development Above Three storeys introduced into cl.22.10 of the planning scheme by Amendment C50 previously referred to and the bicycle facilities provisions in cl.52.34 introduced by Amendment VC 28 and operating from 6 October 2004.

45 I have considered all these other policy provisions that I was referred to and see nothing untoward in relation to them if the current permit was to be allowed to proceed.

46 I think, in assessing whether an extension of time should be granted, it is important to bear in mind the purpose of conditions, or fall back provisions in the Act, which impose the lapse of permits if not acted upon within a specified time. Once such provisions did not appear in the then planning Act and once such conditions were not common. However, experience proved that there was a need for them. Unless limited in such a way, permits would continue in force indefinitely. This might mean that somebody obtains a permit at one stage, and then, perhaps decades later, act upon it at a time when circumstances have changed considerably, either in relation to the locality and/or in relation to planning policies or controls. What may have been appropriate in 1970 may not be appropriate by 2005. Circumstances may have changed. The imposition of expiry time limits means that that evil can be avoided. A change in planning control provisions so that a proposal has become prohibited may well be a reason for not extending a permit. A change in policy, or the nature of the area, or both, might well lead to a situation where a permit would not be again granted, or may not be, or may only be granted on different terms as to conditions and the like. Refusal of a proposal that has become prohibited means that it will not proceed. A refusal in relation to a proposal that has not become prohibited, means that it will have to be reconsidered, if a new permit application is made. As such it will be considered in terms of current circumstances, both as to planning controls and policies, and as to the circumstances at and surrounding the site.

47 Where circumstances are such that the permit that is expiring should be granted again, on the merits, if a new application was made, there is little purpose to be served in refusing an extension.

48 Although reconsideration, due to a new permit application, may give an opportunity to vary conditions or otherwise perform some fine tuning of details, that is not the only means by which such things can be achieved, if they are necessary. I disagree with Ms. Lane's suggestion that a refusal to extend, imposing the need for consideration of a new permit is the only means of achieving such adjustments. If really warranted, there is always s.87 which enables amendments to permits. A request under s.87 can be made by a responsible authority. On the face of it, that would be an appropriate means of dealing with adjustments to fine details, which is all that is suggested as being required in the case put on behalf of the responsible authority.

49 Nevertheless, a material change in planning policy or planning control provisions may well be just such a change in circumstances as would justify the refusal of an extension so that there will be a re-consideration of the grant of a permit if the matter is to proceed. The coming into operation of the amendments that introduced cl.22.10 (Design Guidelines for Development Above Three Storeys) and cl.52.34 (Bicycle Facilities) might well represent material changes warranting refusal of extension. I say might well, because the mere introduction of those provisions does not necessarily lead to that result.

50 In the first place, it is "material" changes in circumstance, and thus material changes in control provisions or policy provisions, that are relevant. It has to be a change of some significance and relevance. Obviously an irrelevant change is not material. However, there is another reason why an apparently substantial, and perhaps lengthy alteration or addition to policy provisions may nevertheless not be material. If it is a mere statement or re-statement or setting down of relevant but well known propositions that were taken into account when the original permit was granted, and in relation to which there are no material changes, then there may be no occasion for refusal of an extension. That is so even if the relevant policies had not been set down in writing at the time the permit was granted and were only written into the planning scheme, by the time the extension is being considered.

51 Clause 22.10 containing the Guidelines for Development Above Three Storeys is a weighty tome running to 28 pages with introductory provisions and guidelines in relation to nine subject matters. However, on going through them I find many of them to be irrelevant for present purposes. Others are obvious propositions, obviously taken into consideration at the time of the grant of the original permit and unchanged since save for being written into the planning scheme. Still others are minor or otherwise catered for. On pages 18 to 25 of the written submissions of the responsible authority, in an extensive paragraph 96, there is a traversing of the various guidelines said to be relevant in this connection.

52 The first guideline deals with setbacks and site coverage. The objectives of the guideline are to ensure that setbacks and site coverage respect the desired neighbourhood character of the area and respond to the features of the site. I was informed that there is no statement of desired neighbourhood character yet, and no specific neighbourhood character designated for this area, only some municipality wide concept. As there is no relevant statement of desired character for this area that seems to be beside the point. In any event, having regard to the actual locality, it is obvious that site coverage would be 100% and setbacks, at any rate, at ground level would be zero. One does not look for frontage setbacks in the middle of a busy shopping street in a major activity centre like this.

53 This lack of desired neighbourhood character was overlooked by the planning officer in the preparation of the delegation report. The officer referred to "minimal setbacks" proposed at first and second floor levels which were said to depart from the characteristic of relatively low level hard street edge formed along the northern side of Victoria Street. I do not agree with any of this. Firstly, setbacks of 5.5 metres at first and second floor levels are not "minimal". In any event this is not out of keeping with the actual circumstances, at present low level, on the northern side of Victoria Street. Of course the new six level development on the other side of the intersection rather weakens the proposition of the responsible authority which I do not accept in any event.

54 Guideline 2 deals with building height and silhouette. I am satisfied that there is nothing new to be considered here. The objectives contemplate a height for new development that respects prevailing pattern of heights (which does not necessarily mean copying them) with a recognition that some sites can accommodate taller buildings. Roof forms are not to the point here. I do not consider that there is anything requiring reconsideration in relation to height or silhouette, particularly having regard to the recent decision in relation to the nearby property on the other side of the intersection.

55 The third guideline deals with streetscape amenity and contains a number of objectives that are clearly met. By this stage it becomes clear that these guidelines have been gone through in an attempt to conjure an arguable case for the refusal without there being any particular regard to importance or significance. One of the objectives is to achieve continuity of built form in the area having regard to "streetscape rhythm, spatial characteristics of the area and any distinctive street pattern where it exists". Another is to encourage new development that is well articulated and breaks in building bulk and mass with appropriate solid to void ratios and appropriate levels of visual permeability. It needs to be realised that these guidelines are not designed to be particular to a setting like the significant business context where this site is located. The submissions merely adopt some assertions by the Council's planner, presumably in the delegation report that assert. (without explanation, argument, or justification) that the upper levels do not have regard to the rhythm and spatial characteristics of the section of Victoria Street, are not well articulated and will present as dominant in the streetscape. It will not be unduly dominant, particularly in view of the approved new building on the other side of the intersection, and articulation and streetscape will not be inappropriately affected. All these were relevant matters previously, and are not changed by the rather jargonistic expression of them in the guideline provisions.

56 The case becomes even thinner in relation to an attempt to utilise guideline 4 in relation to environmental sustainability. As to that the submission says:

It may be that the environmental sustainability of the development could be ensured by the imposition of a suitably worded permit condition.

57 It may also be that it could not, or that it is not necessary. The officer did not really look into this item, as admitted in paragraph 96.3.2 of the written submissions of the responsible authority. I am not prepared to give weight to a speculative possibility where there is no reason to suppose that a re-examination is necessary, and every reason to suppose that it is not.

58 Guideline 5 refers to on-site amenity. In this connection there is an attempt to feed off the evidence of Mr. Biles who gave expert planning evidence on behalf of the applicant. He may have some ideas for amendments. If so, his client can seek amendments. It does not necessarily follow from that such amendments are necessary or that an extension should be refused on that account. The responsible authority did not even really argue that.

59 The attempt to utilise guideline 6 in relation to off-site amenity becomes so slight as to approach the status of a waste of time, paper and effort. If it is not to be shown that there are problems in these respects, and that they were not (in any event) considered and assessed in relation to the original grant of the permit, I begin to wonder as to how applicable this guideline is in the present situation. One of the objectives is to ensure that new development does not substantially overshadow adjoining residential private open space or public facility such as parks and gardens. I am not pointed to any residential private open space that is to be so affected and I would not expect to find any. As to public facilities, the attempt is made to argue that the proposal will overshadow Victoria Street. Well, of course it will; to some extent, at some times. You can't have substantial buildings, in accordance with the policy provisions applicable to this major activity centre, along the northern side of a street without casting some shadows on it some times. Of course, the same would be true in relation to the Pantas proposal next door. Are all the significant and relevant planning considerations to be thrown overboard because some shadows will fall on Victoria Street? A more discriminating assessment of what is worth arguing is called for.

60 Guideline 7 in relation to landscaping and fences has an objective that proposed landscaping should include the use of indigenous plants listed in the "Gardening with Native Plants in Yarra" booklet prepared by the City of Yarra. This can hardly be a very significant matter in relation to a shop and apartment building of the sort here proposed. The argument is that Mr. Biles indicates that such plants can be incorporated and that without a permit condition this cannot be achieved. If it is not important enough to warrant a request to amend the permit on the basis of material change of circumstances then it is not important enough to warrant refusal of an extension of this permit. If someone disagrees to the extent of thinking that it warrants a request for permit amendment under s.87, they can make such a request after the extension has been granted.

61 Guideline 8 deals with parking, traffic and access. Guidelines deal with parking spaces, bicycle storage, traffic volumes, congestion and the possibility of new development resulting in vehicles banking along tram line in such matters.

62 It is asserted, without evidence, that traffic conditions in Victoria Street have changed since the permit was issued in 1996. I do not know whether it is said that they have changed since 2003. I do not know the source of the assertion or what the nature and extent of the change is, or whether it is material or relevant. I am treated to some speculation without any basis for it. In particular, there is nothing to suggest that any traffic engineers, or VicRoads, think that there is anything in relation to the proposed access, congestion or banking of cars at intersections or in relation to tram lines that would warrant concern.

63 It is said that the guidelines now encourage on-site provision of bicycle storage and end of trip facilities (showers and changing rooms). In fact the latter do not appear in the guidelines. Condition 7 of the existing permit requires the provision of lockable bicycle parking in the basement carpark to the satisfaction of the responsible authority and a notice at the entry to the carpark and ground floor concourse indicating parking availability. The matter, except for so-called end of trip facilities, are already dealt with in the conditions. In fact, there are a number of conditions in relation to parking, access, line marking and the like. I will deal with the question of end of trip facilities in relation to cl.52.34 introduced by Amendment VC 28.

64 Guideline 9 deals with service infrastructure and requires it to be sited and blended into the design and obscured from the private domain, and also the garbage recycling and storage facilities to be provided on site.

65 In relation to these matters I am informed that there was no explicit requirement in the scheme about them in 1996. That does not mean that they were not considered or that there is a problem. An attempt has been made to extend this concern with service infrastructure to the question of "plant". Again there was no suggestion that there is actually any problem, even if plant is service infrastructure.

66 The question of bike facilities is more effectively dealt with in the provisions of cl.52.34 operating from 6 October 2004. The purpose of these provisions is to encourage cycling as a mode of transport and to provide secure accessible and convenient bicycle parking and associated shower and change facilities. Clause 52.34-1 provides that:

A new use must not commence or a floor area of an existing use must not be increased until the required bicycle facilities and associated signage has been provided on the land.

67 Clause 52.34-2 provides that a permit may be granted to vary, reduce or waive the requirements of cl.52.34-3 and cl.52.34-4 which set out various requirements in that connection.

68 The proposed uses here of dwellings and shops may be as of right, so far as the Table of Uses in the Business 1 zone are concerned, but they appear to me to be, nevertheless, "new" uses in the relevant sense. As such they must comply with cl.52.34, either by providing the facilities specified as being required, or by obtaining a permit for their variation, reduction or waiver. I do not accept that it is true to say that there is no control over these matters unless the permit expires and a new permit applied for. Superficially, this argument about cl.52.34 appeared to be a strong point in favour of refusal, but upon consideration it is clear that these facilities have to be provided, or the requirements waived or reduced. A plan was produced before me indicating where they can be accommodated. If an application is made for the reduction variation or waiver, that is a planning permission that can be granted. It does not have to be in the existing permit, or any permit that might be granted in its place, if the extension was to be refused. It could be included, but it does not have to be.

69 At page 8 of the written submissions of the responsible authority, in paragraph 42.2, there is a list of considerations relevant to the case drawn from the decision in Kantor previously referred to.

70 The first is whether there has been a change in planning policy. Although there have been amendments I do not consider them to involve material changes in planning policy that are relevant to present circumstances except in relation to the provision of end of trip facilities for cyclists. For reasons already given that element does not warrant refusal. It has to be catered for in any event.

71 The second is the question of warehousing, but it is not sustained as a reason for refusing extension in this case.

72 The third is intervening circumstances bearing on the grant or refusal. I have not listed all the evidence in this connection, but it does give some account of what has been going on, difficulties encountered, delays encountered and why the project has not progressed further.

73 The fourth matter is total elapse of time. The total elapse of time is now considerable, notwithstanding that, in my opinion, the original time allowed was inadequate and each subsequent extension was also inadequate. It is also material to consider a lapse of time since the extension granted by the Tribunal in 2003, and what changes have occurred since then.

74 I do not regard the total elapse of time as requiring refusal in present circumstances.

75 The fifth was whether the original time limit was adequate. It was not.

76 The sixth is the economic burden imposed on the land owner. The commitment, financially and otherwise, in this proposal is very considerable. I do not think that the permit has been warehoused, and it appears that there is a continuing intention to proceed with the matter. There would be a financial burden imposed if the extension is granted, and the company is obliged to start again with a new application. That would be a burden in terms of money, time and trouble. If it was necessary to impose it, then it would be imposed. If there is no reason, in all the circumstances to do so it should not be imposed.

77 The seventh consideration was the probability of a permit issuing should a fresh application be made. It is common ground that this is probable, even more than probable. I do not find the arguments about the need for fine tuning of detail relied upon by the responsible authority justify the refusal.

78 Initial appearances, in terms of the total that has elapsed, and apparent material changes in circumstances, gave an impression that there was, or might be, a strong case for refusal of an extension. Upon examination I find the situation to be otherwise. I do not think that a refusal in this case is necessary or desirable. On the contrary, I think one should be granted.

79 I wish to avoid granting an extension that is either too long or too short. I propose to grant an extension for commencement of two and a half years from 1 January 2005, in other words, until 30 June 2007. In relation to completion I propose to grant an extension to be three years from the date of commencement.

_________________

RUSSELL BYARD

SENIOR MEMBER