1. By consent:
   • (a) Pursuant to section 127 and clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application number is amended to PL07/0506.
   • (b) Pursuant to Section 60(1) of the Victorian Civil and Administrative Tribunal Act 1998, Banyule City Council is joined as a party to this proceeding.

2. In permit application no. PL07/0506, a permit is not granted and no permit is to be issued.

Mr I McP Pitt SC, solicitor of Best Hooper. He called the following persons to give evidence:

• Mr P Barrett, architectural historian.
• Ms C Dunstan, traffic engineer.
• Mr D Simonsen, arborist.
• Mr B Echberg, landscape architect.
• Mr T Biles, town planner/urban designer.

Mr J Rantino, solicitor of Maddocks. He called the following persons to give evidence:

• Mr A Hutson, architect.
• Mr B Raworth, heritage consultant.

Mr A Crack, planning consultant, on behalf of the Banyule City Council.

Mr A Infanti, Co-ordinator, Darebin Creek Management Committee on behalf of the Committee.

A written submission was filed by Mr Rantino on behalf of Mr A Briant.

1. Positioned abutting the Darebin Creek, south of Old Heidelberg Road, the Alphington Grammar School occupies an attractive location at the north-eastern edge of the City of Yarra. The Darebin Creek separates the municipalities of Yarra and Banyule. It is part of a river corridor and Melbourne's wider waterway network that are increasingly valued in ecological, landscape and environmental terms. That is demonstrated through the multiple controls applied to development along the same corridor, and policies setting its strategic direction, administered through several planning schemes.[1]
2. Grassed flats, escarpments and treed slopes typify much of the lower reaches of the Darebin Creek and are three obvious components of the land occupied by the Alphington Grammar School. The School proposes to erect a multi-purpose hall cantilevered over an escarpment and to the west of floodprone flats that it uses for sports courts and fields. It lodged a planning permit application for that proposal and, because Yarra City Council did not decide upon the application within the prescribed time, a review has been lodged with the Tribunal. The application is opposed by the Council, Darebin Creek Management Committee, Banyule City Council and some residents for a range of reasons that focus on the building's relationship to the river corridor and parking/traffic issues. There are also questions about the long term planning of the School site. These are matters that are challenged by the Applicant who submitted the proposal is a positive response to the landscape and environmental outcomes sought by policy for the waterway and, among other benefits, would substantially improve amenity outcomes locally, would optimise developable land available to the School, and can be integrated with the escarpment by the extensive native landscaping proposed.
3. The Tribunal must decide whether the proposal is acceptable based on the Scheme's provisions and policies. Having considered all written and oral material put before the Tribunal with regard to the provisions of the Scheme, and having inspected the site and locality[2], we will not allow the Application. The Tribunal's reasons follow.

1. Alphington Grammar has some 600 primary and secondary students and is located on the south-eastern corner of Lucerne Crescent and Old Heidelberg Road. It comprises an area of 3.7 hectares, in multiple titles.
2. The eastern portion of the School's property is floodprone associated with the Darebin Creek. This area is used for sports fields including a soccer ground, constructed multi-purpose courts and cricket practice nets. The western side of the river flats is enclosed by an embankment of varying slope and a height up to around 10 metres. Upon it stand a significant number of Sugar Gums, several Monterey Cypress and other trees.
3. Beyond the embankment are the buildings, re-locatable classrooms, pathways and parking areas associated with the School. Among them are Flowerdale House, the original dwelling on the land, with a verandah around several sides of the building. The principal access into the School, in terms of formal entry, is via Old Heidelberg Road. The buildings on the campus are focussed to the north and north-west of the School property including a building on the north side of Old Heidelberg Road that is a no through road. School-related parking is within Old Heidelberg Road while most pick-up/drop-off occurs on street including Lucerne Crescent.
4. The site proposed for a multi-purpose hall is to the south of Flowerdale House, east of No. 116 Lucerne Road, and north-west of the surfaced multi-purpose courts. It is located in the southern portion of the School campus. No. 116 Lucerne Crescent is not part of the School property.[3]
5. The surrounds include residential properties in Lucerne Crescent and on the eastern side of the Creek. Dwellings on the west side of Clarke Street are positioned toward the street with vegetated embankments to the rear. There is an informal path Creek-side of these lots and an easement from Clarke Street leading to the Creek. To the south and south-east of the site for the proposed hall, also within Banyule, is the vegetated Napier Waller reserve. The reserve contains several structures and is elevated above the Creek and School. There is a steep embankment close to the Creek edge. The LaTrobe Golf Club is to the south of the School, with access off Farm Road.

1. Approval is sought to construct a multi-purpose hall intended primarily for sporting activities associated with the School. It is also proposed to relocate existing portable classrooms to create on-site car parking for 38 vehicles and 7 mini-buses. That car park would be to the south of No. 116 Lucerne Crescent, accessed from the Crescent, with another eight overflow parking east of No. 116. An additional 29 on-site overflow spaces would be on a hard surface play area fronting Lucerne Crescent. A coach drop-off zone is part of the application, utilising the eastern leg of Old Heidelberg Road.
2. The proposed hall would comprise two levels. The "ground" level would contain a basketball/multi-purpose court with a foyer and spectator seating for 200 persons. Below this level would be a PE classroom and gym. Change rooms and toilets would be at both the ground level and lower levels.
3. The hall would face the Creek. It would cantilever over the embankment with a deep under-croft including rainwater tanks. Here the development would be 18.6 metres high whereas the main entry into the hall, from the west, would be single storey. The void above the playing court would be recessed from the ground level. The useable spaces within the hall would not be below the 1:100 year flood level nominated by Melbourne Water.
4. A total of 45 trees would be removed, although Mr Biles' evidence was six trees to the north of the proposed hall should be retained in the short term. Pathways and associated works are shown on the application plans including demolition of a music hall (to be replaced in a relocatable building).
5. It is proposed that the hall be used mainly during School hours and on weeknights for events such as parent information evenings, parent/teacher consultations, Greek Orthodox events and community elections, rehearsals for musicals, and performances.[4]

1. A permit is required to develop the review site for "indoor recreation facility" under the provisions of the Special Use Zone 3 of the Yarra Planning Scheme.[5] Some works are proposed within an Urban Floodway Zone that also affects part of the review site.[6] The use of the land operates under existing use rights[7] and it is common ground between the parties that no permit is required for the use of the land for the multi-purpose hall in association with the existing education centre.
2. Three Overlays apply to the site proposed for the hall with permissions also required under the terms of each control:
   • Environmental Significance Overlay (Schedule 3 - Darebin Creek and Environs). A permit is required to construct a building or carry out works and to remove vegetation.[8]
   • Design and Development Overlay (Schedule 1 - Yarra River Corridor - Inclusive of Merri and Darebin Creeks). A permit is required to construct a building or carry out works.[9]
   • Land Subject to Inundation Overlay. A permit is required for buildings and works. [10]
3. Two other Overlays affect the wider School property - a Heritage Overlay (HO78) and a Public Acquisition Overlay (PAO2) along the Creek edge to provide for the creation of a continuous liner park/trail system adjacent to waterways. The former is the subject of a ruling made by Deputy President Gibson that is attached to these reasons.

What is the relevance of the ongoing development of the School campus?

1. It should first be said that there is no dispute between the parties that a multi-purpose hall is a reasonable proposition to enhance the School's facilities. Even though no permit is required for the use of the hall, parties presenting at the hearing commonly indicated that they do not object to a multi-purpose hall for School use per se, rather, their concern is with the siting and form of the building. We also consider an indoor recreation facility is acceptable in principle and is consistent with the purpose of Special Use Zone 3 to encourage the orderly planning and development of School facilities.
2. The same parties referred to the future development of the School campus and their concerns that the proposal is an incremental or piecemeal step in the absence of an approved Masterplan and the potential to incorporate the property at No. 116 Lucerne Crescent into the campus. Two things must be said about these submissions. First, there have been several versions of Masterplans provided to the Council but not approved. It is apparent to us that the School has sought to approach the development of its campus in an ordered manner and aspects of the current permit application would bring wider benefits, such as on-site car parking. However, there is no mandatory requirement for a development to await an approved Masterplan albeit it is reasonable to be mindful of how any one proposal might fit within the broader ambitions and aims being contemplated. Mr Biles accepted that proposition in his evidence. Second, the property at No. 116 Lucerne Crescent is not part of the School site and not zoned Special Use. While it may logically be incorporated into the School campus in time, or, as described by Mr Biles the "reality is that the land will in all probability be used by the School", we cannot direct that to occur.

Does the proposal satisfy the requirements of the Overlays?

1. We have addressed the proposal's response to both Overlays (DDO and ESO) together for convenience as there are inter-related issues with respect to design and landscaping.
2. DDO1 relates to the Yarra River corridor including the Merri and Darebin Creeks. It has objectives for the whole River corridor and specific objectives for sections of these waterways. In this case, the review site is within the "Park Landscape River Edge". The focus of the design objectives to be achieved for the whole River corridor include:
   • To relate the siting, scale, bulk and massing of new development to the distinctive landscape character of each section of the corridor.
   • To consider the impact of building massing and siting on long-range views of the River corridor from roads, paths and rail corridors and areas of public open space adjacent to the river corridor and on the opposite bank.
   • To encourage development that improves natural surveillance, general safety and public accessibility within the River Corridor without compromising the environmental qualities of the Corridor.
3. For the Park Landscape River Edge, the design objective is "to maintain and strengthen the natural landscape of the river edge and the treed, parkland landscape of the adjoining open space".
4. DDO1 then refers to provisions relating to buildings and works for the corridor as a whole and the Park Landscape River Edge. For both, it is said that "buildings should be setback from the river bank". For the corridor as a whole, it is said that landscaping should be provided to screen the view of buildings from the Main Yarra Trail and areas of public open space. There are other provisions relating to car parking, retaining walls, boat landings, fencing and landscaping which we have noted but do not recite.
5. ESO3 relates to the Darebin Creek and environs. The environmental objectives to be achieved are the ecological and conservation values of the Creek and its environs; protection of the streamside environment and water quality. It also encourages retention, restoration and revegetation of continuous corridor of vegetation along the Darebin Creek valley to provide for wildlife movement, enhance water quality and contribute to the natural aesthetic. Provision of a shared pathway along one side of the waterway corridor is a related objective, this is being actively pursued.
6. The focus of opposition by the two Councils, Darebin Creek Management Committee, Parks Victoria and residents, to the proposal is the visual impact of the hall given its position on the escarpment, the extent of vegetation removal, and the building's architectural expression. The length of time to achieve a landscape outcome was raised together with issues relating to the proposed landscaping in terms of surveillance and security for users of the proposed Creek pathway. Those opposing the proposal were critical of the dense planting sought to screen the building when the visual bulk would be apparent from a number of vantage points in the area.
7. Evidence from Mr Hutson was called on behalf of the Council. Mr Hutson expressed concern about the scale and form of the building given the position over the escarpment, describing the hall as imposing a monumental structure within the context beyond the more modest nature of the built environs of the valley. He said the proposal would unreasonably present to the new pathway along the Creek and the architecture does not ameliorate the mass. He said the proposal could be improved by breaking the elevations into smaller articulated elements with a range of setbacks and greater transparency.
8. In response, Mr Pitt submitted the proposal is acceptable for a school and has sought to achieve outcomes sought by the Scheme such as extensive planting associated with the new pathway and River corridor. He said the scale and form of the hall would relate to the high tree canopy and the outlook would improve passive surveillance. He emphasised the extent to which the building would be setback from the Creek itself, viewed across the flats associated with the School's sports grounds. It was also noted that most of the trees to be removed are designated environmental weeds and thus the opportunity to replace them with substantial and appropriate new plantings would be a positive outcome, consistent with the Scheme's aims.
9. Mr Pitt relied on the evidence of Mr Biles, Mr Echberg and Mr Simonsen. We do not recite this evidence. We note, however, Mr Biles' evidence that the intent is to achieve a setting similar to that achieved opposite the School on the Banyule side of the Creek. He also said it would be appropriate to retain some trees to the east of the proposed hall, on the escarpment, in the short term to "de-scale" the proposed building even though they are weeds.
10. We record that some of the material before us, such as the model and visual analysis images, are not acccurate indicators of various aspects of the proposal and thus we have placed greatest weight on our assessment using the plans and facts before us assisted by our site visit.
11. The focus of the two Overlays is to achieve an outcome whereby a new building sits within a landscape setting. There are some substantial structures on the east side of the Creek but their visual impact is ameliorated by landscaping on the hillside and along the flats that mean trees sit in the foreground when viewed from near and far and from low and high points. It is important to stress that the Scheme does not require a building to be hidden or invisible. But there is a dominance of vegetation apparent on the east side particularly in the foreground. The Scheme places significant emphasis on strengthening the natural and parkland landscapes.
12. It is common ground between the parties that key viewing points relevant to our decision are from the proposed public pathway along the Creek, from within the School grounds, and from properties opposite and from Farm Road. Some of these will be/are views from the public realm (eg. pathway along the Creek, Napier Waller reserve and Farm Road - but not inside the grounds of the LaTrobe Golf Course) while others are from the private realm (within the School, from private dwellings and from the Latrobe Golf Course entry and practice fairway). Greatest weight is placed by us on public views, as referenced in DDO1. Even though the public pathway along the Creek is not yet constructed, there is a Public Acquisition Overlay in place and permit applications have been lodged with Yarra and Banyule Councils seeking approval for the pathway and associated landscaping. [11] No party suggested the pathway is unlikely to proceed, and although the funding arrangements were not detailed to us, all accepted this as a critical view point.
13. The proposal involves the removal of existing planting on the escarpment including large and attractive trees. These are Sugar Gums and cypress with only four of 45 of the trees proposed to be removed not identified weeds and none of these four being indigenous. While they serve habitat and aesthetic functions, the trees are identified weeds including in ESO1. We do not think it is appropriate to retain them even in the short term as suggested by Mr Biles. Indeed, of the six suggested for retention by Mr Pitt following Mr Biles' evidence, it is apparent from Mr Simonsen's evidence that several are in poor condition, in decline and have fungal bracket. Some or all of these trees may well need to be removed for safety reasons given that the area is accessible to children and staff. It is possible that most of this vegetation could be removed whether or not we grant a permit. Replanting could ensure that there would be appropriate screen planting in the medium term for a hall.
14. The proposed landscaping comprises trees along the southern boundary, at the eastern corner of the building, to the west of the constructed outdoor courts, to the north of the hall on the escarpment, and in three extended groups along the Creek corridor within the School's titles. The planting proposed is quite dense. It would screen views to the building in time for those using the proposed path relatively soon given the proximity of planting to the path. However, it would not screen views to the building from sections on the opposite side of the Creek or some more distant viewing points such as Farm Road or sections of The Boulevard (mainly glimpses). Within the School site, from the river flats and around Flowerdale House, the building mass would be evident. The density of planting is regarded as a safety issue as raised by several parties but we think this could be managed. As shown on some of the plans (eg. "RA11") and correlated with permit applications lodged by Parks Victoria, a considerable amount of planting to the east of the hall, close to the Creek, would abut the water with open views to the hall remaining from the pathway. With the front façade of the hall being over 18 metres high, and landscaping not possible fully forward of the building, the visual impact would be significant for many years. It is not an impact that is acceptable when assessed against the aims of the Scheme notably the design objectives of DDO1.
15. It is relevant the Applicant acknowledges the need for co-operation with Parks Victoria for planting. However, there is no agreement and, through DSE, Parks Victoria raises issue with the proposed hall because of the building's bulk, lack of screening from critical views.
16. Mr Biles' evidence referred to the design as having "sense of 'energy' as if it is diving off the escarpment".[12] We do not consider the form, plus issues associated with the proposed landscape treatment, lead to an outcome where the objectives of DDO1 are met, despite recognising landscape benefits would be derived from the removal of weeds and the contribution made by new planting.
17. Rather, we prefer Mr Hutson's evidence that the style, position and scale of the hall would be too visually intrusive. We accept a structure over the escarpment may be acceptable, but the scale and form should be altered, together with the hall's position as discussed below. A more recessive form is desirable in association with more landscaping forward of and close to the building.

1. Flowerdale House is a single storey Edwardian villa constructed in 1911. The City of Yarra Heritage Review identifies it as of local historical and architectural significance. The description includes:

...constructed of red brick with rendered dressings, and will a hipped and gabled slate roof. Typical of the Queen Anne style, the house is a picturesque composition of projecting half-timbered gables, tall red brick chimneys, with roughcast rendered caps and terracotta chimney pots and bow windows with leadlights. A verandah returns around the north and east elevations, and is supported on cast iron columns and decorated with a cast iron freize. A distinctive ogee-roofed turret penetrates the north-east corner of the roof, above a polygonal bay window of leadlight casements....

...The house has historical associations with Charles Trescowthick, a prominent late 19th and early 20th century Melbourne bookmaker. Architecturally, the house is a highly distinctive example of the Edwardian Queen Anne style, substantially intact, and particularly notable for its tower and cast iron verandah details.

1. Mr Pitt conceded that cultural heritage significance is a relevant consideration under Clause 19.03 even though the heritage provisions (Clause 43.01) of the Yarra Planning Scheme do not apply to Flowerdale House and its curtilage.
2. Even though both heritage witnesses proceeded on the basis that HO78 applied to the House, we have interpreted their evidence in light of the findings of Deputy President Gibson (as attached). Mr Barrett's evidence was the relationship between the proposed hall and Flowerdale House is acceptable while Mr Raworth disagreed with this conclusion.
3. Flowerdale House's primary elevation is to the north with the eastern façade also being significant given the verandah and detailing. The south-east corner of the building has a distinctive bay with the verandah continuing around to part of the southern elevation. Views to the eastern façade of Flowerdale House from areas that will become part of the public walkway are currently limited by cypress and some other plantings on the escarpment. Their removal would open up views to the building particularly from the east and north-east.
4. We understand that the proposed hall has been positioned taking into account the foreground with paved courts that impede into the viewlines from the south-east. Although the courts interfere with the viewing line, they are a fairly transparent element and contrast with the mass of the hall. When viewed from an arc to the east/south-east, Flowerdale House would be concealed behind the proposed hall.
5. Moving further northwards, east of Flowerdale House, the north-east elevation of the proposed hall would be quite sharp in its relationship with the heritage structure given the narrow separation and the impression of built mass associated with the cantilevered structure. There would be the obvious contrast between the projecting hall and the diminutive House on the hill.
6. The proposal hall is not, in our view, sufficiently to the side or rear of Flowerdale House to achieve an acceptable interface. Instead the House would have a dwarfed appearance in views from the public realm. We accept Mr Raworth's evidence that the position and form of the proposed hall is not sufficiently sensitive to the important heritage values of Flowerdale House and there should be a larger separation between Flowerdale House and the proposed hall. Mr Raworth suggested 10 or so metres. As the hall is proposed to be 14.65 metres from the southern boundary, something just less than 10 metres might be achievable while retaining a 5 metre wide landscape buffer along the boundary as is currently proposed. One of the closest elements is the eastern side of the hall with a store and change rooms - there may be scope to reduce the width of the building with a reduction in deck area or other internal changes.
7. We said in paragraph 31 that considerable vegetation on the escarpment could be removed whether or not we grant a permit. Replanting could in the medium term screen parts of Flowerdale House near where the structure is proposed.
8. Our attention was drawn to the existing outbuilding to the south of Flowerdale House and its potential heritage value. The proposal would see its removal. The structure was not regarded as significant by either heritage witness and is not identified as having significance in the Allom Lovell study. While we would not oppose its retention, on the information available, there is no basis for us to direct its retention.

Are proposed arrangements for car parking and traffic circulation acceptable?

1. While not a significant concern to the Council, some parties spoke of traffic and parking issues associated with the School's activities and their concern that the more intensive use of the land would exacerbate existing problems. Mr Golder sought a different approach to parking on-site such as the undergrounding of car parking.
2. The proposal before us involves the creation of on-site parking, something severely lacking on the School property. It also involves the creation of improved facilities for buses utilising Old Heidelberg Road, east of Lucerne Crescent. There is no application to use the proposed hall as a place of assembly and instead its use would be in association with School activities. Examples of the types of uses were referred to in evidence as noted previously. It is true that the availability of the hall may extend on-site activities into the evening and weekends in a manner that does not presently occur but on-site facilities are proposed to improve upon the existing situation. We note the lack of opposition of the Council on this point. We do not consider the proposal requires a major change to the intended parking arrangements such an underground car park as was suggested by Mr Golder.
3. We accept Ms Dunstan's evidence as to the workability of the proposed layout for permanent and part-time parking including the shared use of hard court areas. A traffic/parking management would be appropriate as agreed by the Council and Applicant at the hearing. However, we would expect that issues in relation to the form and position of the proposed hall will in turn require a review of the parking arrangements recommended by Ms Dunstan.

Would the proposal have other adverse impacts that warrant its rejection?

1. Respondent Objectors raised a large number of other concerns about potential impacts of the proposed development. They included impacts arising from noise, light emissions and the floodprone nature of the land. Our findings on these matters follow:
   • Flooding. The lower portion of the School campus is floodprone and the proposal has been designed to accommodate the requirements of Melbourne Water that has nominated the 1:100 year flood level as RL18.22 AHD. The water authority has no objection to the proposal subject to conditions that are, or can be, met. The Council withdrew this aspect of its objection to the permit application in recognition that the building has been designed in a manner that is acceptable having regard to the flooding characteristics of the river corridor.
   • Noise emissions. The potential for noise emissions from the hall is a valid concern given the proximity of dwellings across the river valley, the potential for noise to travel in that environment, and the inclusion of an open deck oriented toward the Creek. We have no expert evidence as to the acoustic measures required to ensure noise levels are acceptable however the primarily daytime use of the proposed hall, in association with School activities, is influential to our conclusion that an acoustic report could have been required by a permit condition to ensure these matters are addressed. A facility with much higher night time use and non-School use may have caused us to require this information as part of this proceeding. As we are refusing this permit application, the information could be supplied in another application.
   • The other main impact in terms of noise is related to the on-site car park that would abut dwellings that are not within the School campus to the north and south. The car park may not be frequently used into the night but even the extent of proposed use suggests to us that an acoustic fence would be desirable to protect the amenity of those abutting dwellings, that are within a Residential 1 Zone. This is a matter that could have been dealt with by conditions but given our final decision might also be addressed in a future permit application.
   • Light emissions. There is potential for light to be emitted from the hall, such as for security, and in association with the car park. We are satisfied that this is a matter that could have also been addressed by permit conditions so that car parking lighting would be low, such as bollard-style, and security lighting would be suitably baffled.

Vegetation proposed in association with the proposal would also assist to filter lighting in time. Mrs Fleming referred to the potential for bird strike and although that can not be precluded, it is not a matter that warrants rejection of the proposal.

1. There is no debate that the provision of a facility such as the proposed hall is a reasonable expectation for the Alphington Grammar School. However, we have concerns about the siting and form of the proposed development with respect to the setting of the Darebin Creek and Flowerdale House as explained in these reasons. Thus, we find the proposal is not acceptable in the terms required by the Yarra Planning Scheme.
2. We have considered affording the School an opportunity to prepare a revised plan but have been mindful that there are also implications for the School's Masterplan that could take some time to resolve. There may be scope for the School to consider a revised form of hall combined with its intended auditorium. The School may also decide the remove some of the weeds and dangerous trees in the short term, enabling revegetation in the short term to start to work as framing landscaping for any revised proposal involving the escarpment.

1. My responses to the two questions of law referred to me are:
   • The heritage provisions (clause 43.01) of the Yarra Planning Scheme do not apply to Flowerdale House and its curtilage.
   • The relevant part of the policy in clause 22.10-3.3 of the Yarra Planning Scheme applies to new development on land, where the land abuts land in a Heritage Overlay.

1. I have been asked to decide a question of law or mixed fact or law arising in this proceeding.
2. The two questions can be expressed as follows:
   • Do the heritage overlay provisions (clause 43.01) of the Yarra Planning Scheme (Scheme) apply to Flowerdale House and its curtilage notwithstanding the mapping error contained in the Scheme?
   • Is the proper construction of the words "abutting land", where they appear in clause 22.10-3.3 of the Scheme, that the relevant part of the policy only applies to new development which is attached to (or touching) land in a heritage overlay?
3. For the purposes of the second question, the relevant part of the clause 22.10-3-3 reads:

The height of new development abutting land in a Heritage Overlay should:

Adopt a façade height to the street frontage which is no higher than the adjacent building within the Heritage Overlay;

Design and site taller structures so that they do not visually dominate surrounding heritage places; and

Match the floor levels of the adjacent heritage building.

1. The facts relevant to the two questions are not in issue.
2. As to the first question, it is common ground that the Scheme contains a mapping error. Heritage Overlay 78 (HO78) is depicted on the heritage overlay maps in a location which does not align with the location of Flowerdale House and its curtilage.
3. As to the second question, it is common ground that no part of the proposed development is attached to (or touching) Flowerdale House.

Shown on the planning scheme map as HO with a number (if shown).

1. Clause 43.01 then states under the heading of 'Scope':

The requirements of this overlay apply to heritage places specified in the schedule to this overlay. A heritage place includes both the listed heritage item and its associated land. Heritage places may also be shown on the planning scheme map.

1. The case of Librey Pty Ltd v Melbourne City Council [2001] VCAT 1833 dealt with an application for declaration about whether a permit was required for demolition of a building shown on the planning scheme map as in a Heritage Overlay but which was not listed in the Schedule to the Heritage Overlay. The Tribunal held that the map is determinative of whether the Heritage Overlay applies to land. In terms of the role of the schedule, the Tribunal found that if the overlay applies, Clause 43.01 establishes when a permit is required. Reference to the schedule is made to ascertain if the heritage place is subject to a variation of the controls in Clause 43.01.
2. However, in a similar case of Walsh v City of Yarra[13] the Tribunal came to a contrary view and held that primacy must be given to the schedule over the map in ascertaining whether the Heritage Overlay applied to land.
3. In both cases, the wording of Clause 43.01 relating to 'Scope' was subject to detailed examination. Neither case referred to Clause 4. Clause 4 is the User Guide and states with reference to the planning scheme map:

The planning scheme map shows how land is zoned and whether it is affected by an overlay. The information is indicated by a letter and number code that is explained on the front page of each map. For example, R1Z stands for Residential 1 Zone.

To find out the effect these requirements have on your land, it is necessary to refer to the written document.

1. This would indicate that the map is intended to be determinative of how land is zoned or whether it is affected by an overlay. The interpretation is reinforced by reference to planning certificates in Clause 4, which states:

You can also apply for a planning certificate for a particular parcel of land. This will state the planning scheme zone and overlay requirements that apply to that land as shown on the scheme map. (Tribunal's emphasis)

1. In the present case, it is clear that there is an error in the planning scheme. HO78, which refers to Flowerdale House, is included in the Schedule to the Heritage Overlay.[14] However, Flowerdale House is not mapped with a Heritage Overlay. The land shown on the map as HO78 contains no heritage assets. The council submitted that I ought give effect to the purpose of the overlay and other planning scheme objectives, which are to conserve and enhance heritage places and ensure that development does not adversely effect the significance of heritage places, by applying the controls found in the Heritage Overlay over Flowerdale House.

2. Whilst I accept that there is an error in mapping, that error ought to be rectified by an amendment to the planning scheme. The planning scheme should not be interpreted so as to apply zone or overlay controls to land which is not shown as being within that zone or overlay on the planning scheme map. Such an interpretation would remove the certainty about how land is zoned or affected by an overlay, which is absolutely essential to the administration of the planning system.
3. I find that the zone or overlay controls applying to a piece of land as those shown on the planning scheme map. As Flowerdale House is not shown on the planning scheme map as covered by a Heritage Overlay, I rule that the Heritage Overlay provisions of clause 43.01 of the Yarra Planning Scheme do not apply to Flowerdale House and its curtilage.

1. The relevant part of clause 22.10-3.3 is a design guideline relating to setbacks and building height in the Built Form and Design Policy of the Yarra Planning Scheme. The council argues that when read in the context of this policy and in light of the objectives of clause 22.10, it is clear that the relevant part of clause 22.10-3.3 is intended to ensure that, in general terms, new development not included in a Heritage Overlay responds to the context and respects the scale and form of surrounding development. It says that it would defeat the purpose of the clause to read it narrowly and inflexibly such that it applies only in very limited circumstances where a new building physically touches an existing heritage building or is on the boundary of land in a Heritage Overlay.
2. By contrast, it was submitted on behalf of the applicant that the language used in this part of the policy is quite clear and the words are used differentially rather than a substitutes for one another. Thus, "abut" means touch: "adjoin" or "adjacent" is less precise. The development must touch land in the Heritage Overlay for the policy to be applicable, although it does not need to touch any building within the Heritage Overlay. If the policy is applicable, then the height and floor levels of adjacent heritage levels must be respected in the manner set out in the guideline.
3. In my view, the term "abutting" used in this design guideline should be given a common sense meaning within the context in which it is used. A design guideline intended to provide guidance in a range of different circumstances, it is unlikely to have been drafted with the same exactitude as a mandatory planning control. I was referred to various dictionary definitions of the words used in this guideline, however as the Tribunal said in Clapana Pty Ltd v Stonnington CC[15]:

[40] It would appear from the definitions just referred to that whilst "abut" indicates contiguity it does not have always have such a meaning. Authorities to which the solicitor for the applicant referred the Tribunal such as Traill v Rural City of Wodonga and Ors 3 AATR 107 at 119, a decision of Jones J. indicate that words such as "adjoin" should be given a common sense meaning having regard to the context in which they are found. ...

1. I agree. In my view, it is inappropriate to treat the interpretation of design guideline in the same way as a prescriptive planning control. This guideline will be applicable in numerous circumstances. It would be interpreting the guideline too narrowly to suggest that it only has application when the development itself abuts (meaning touches) land in a Heritage Overlay. As the council submitted, if this was the case then the application of the guideline could be avoided by setting the development back a minimal area from the boundary of the land. I do not consider that this is what the guideline envisages. I interpret the guideline to be applicable when new development is on land which abuts land in a Heritage Overlay.
2. In clause 22.10-3.3, which deals with setbacks and building height, there is emphasis in the design objectives to the context of the area. Some of the design guidelines are applicable in a street context and others will be applicable in a non street context. The first guideline for new development abutting land in a Heritage Overlay will be applicable only within a street context whereas the second design guideline would have a wider application. On the other hand given my finding that there is no Heritage Overlay applying to Flowerdale House, the relevance of this design guideline is questionable, although the height of the new development is able to be considered generally as part of the overall planning assessment of this proposal under the general provisions of clause 65 dealing with orderly planning and amenity. In my view, it is a question of fact whether any of these guidelines are relevant in the present context. This is a matter best determined by the planning members who are constituted to determine this case on its merits.

[1] The controls and policies are discussed later in these reasons. The Yarra, Banyule and Darebin Planning Scheme are examples of Schemes with controls and policies that address the Darebin Creek and Yarra River corridors.

[2] An unaccompanied inspection of the review site, surrounds, and wider area occurred on Monday 7 April 2008.

[3] We were provided with title particulars in relation to this property. It is zoned Residential 1.

[4] These details are usefully summarised in Ms Dunstan's statement of evidence (exhibit "A28") at pages 6-7 that is similar to that set out in a draft Masterplan for the School (exhibits "A36" and "A46") at page 5.

[5] Clause 36.02. Other Clauses of the Scheme are relevant to the consideration of this Application including Clauses 11, 12, 14, 15.01, 15.05, 15.11, 15.12, 18.02 18.07, 19, 21, 22.08 (Protection of Biodiveristy), 22.10 (Built Form and Design) and Clause 65 (general decision guidelines). The Tribunal was also referred to the Lower Darebin Concept Plan, Middle Yarra Concept Plan, City of Yarra Heritage Review by Allom Lovell, and Amendment C84 to the Yarra Planning Scheme.

[6] Clause 37.03. This includes works associated with Old Heidelberg Road and landscaping but not the hall.

[8] Clause 42.01 and Schedule 3. The purpose, environmental significance objectives, statement of environmental significance, environmental objectives to be achieved and decision guidelines have been considered by the Tribunal.

[9] Clause 43.02 and Schedule 1. The Tribunal has considered the purpose, design objectives and decision guidelines.

[10] Clause 44.04. Melbourne Water has offered no objection to the proposal subject to conditions that include finished floor levels must be no lower than 18.22 metres to Australian Height Datum.

[11] Copies of the plans were provided to the Tribunal.

[12] Page 16 of Mr Biles statement of evidence (exhibit "A35").

[13] [2001] VCAT 1117

[14] It is described in the schedule as: 18 Old Heidelberg Road Alphington House. The parties accepted that this reference was intended to apply to Flowerdale House even though the address given is not generally understood to be part of the address of the Alphington Grammar School.

[15] [1999] VCAT 1492