1. 'Sub-acute' is not a land use defined in the planning scheme. Therefore, we rely on the description of the use provided by the respondent.
2. We are satisfied the use of the term 'sub-acute' is an acceptable description of the proposal as it indicates the facility will be treating patients with low to moderate mental illness. We consider this definition works in conjunction with the OMP and conditions as high-risk patients are clearly identified as being excluded from the facility.
3. We agree with the respondent that the applicant is primarily concerned the use will evolve into a facility that treats patients with serious mental illness. Our following findings lead us to the conclusion that this is not what is proposed, and the types of patients treated at the facility will be limited by the exclusions in the OMP and conditions.

SHOULD A SUB-ACUTE FACILITY (HOSPITAL) OPERATE NEAR A SCHOOL?

1. A fundamental issue is whether it is appropriate to operate a sub-acute facility (hospital) near a school.
2. The applicant argues the proposal is inappropriate given its proximity to the school grounds. It submits the proposed use may have negative psychological impacts on its students due to exposure to patients who may be experiencing manic episodes, disturbed behaviour, or low inhibitions. It says this poses a security risk that has not been properly addressed.
3. The applicant is not satisfied that the screening measures in the OMP will ensure the sub-acute facility (hospital) only treats patients with mild to moderate psychiatric conditions. It relies on the evidence of Associate Professor Doherty who considers there will be very few exclusions in practice as patients are unlikely to disclose their full particulars. He says there is no reliable, predictive, and sensitive screening tool that will determine this before or after admission.
4. Associate Professor Doherty considers that suicidal acts and deliberate self- harm may occur outside the boundaries of the sub-acute facility (hospital). He acknowledges this behaviour is uncommon but states it will occur. He considers that students would be exposed to this distressing behaviour from an inpatient, possibly monthly.
5. The applicant is concerned that the very purpose of the facility is to treat patients with significant enough conditions to warrant in-patient treatment. It says that this will lead to fear and anxiety for parents, which may result in reduced enrolments and thus impact the economic viability of the school. It also says that the safety and security of its students will be compromised due to the public access to the school grounds through Old Heidelberg Road as there are no security measures in place to ensure patients do not interfere with students.
6. The principal, school psychologist, and primary school principal provided lay evidence to the Tribunal. They all have concerns about the negative impacts of the proposed use on the school community if an incident occurs when students are exposed to patients. They consider there is no precedent for this and there is an inherent high risk for an incident to occur.
7. The applicant submits the proposal therefore fails the tests of impression and substance. It says there is nothing site specific about this land that warrants the use at this location.
8. Council argues the proposal will have no unreasonable off-site amenity impacts on the school and surrounding area due to the range of constraints on the operation of the use in conditions on the permit and the OMP.
9. The respondent argues the proposal will not present an unacceptable risk or unreasonable impact on the amenity of the surrounding neighbourhood, including the school and its students. It submits the applicant's concerns are overstated and result from a misunderstanding of the nature of the facility, its proposed patients, and operation. It says there is an urgent need for mental health facilities to meet current and future demand in the municipality and Melbourne broadly and it is uniquely placed to meet this need. It submits there is no proper basis to conclude the proposal will result in increased crime in the area.
10. The respondent refutes the proposition that use of the land for a mental health facility is inherently incompatible with the operation of the school. It submits the applicant's assertions that future patients will be criminal, drug addicts or sexual predators is clearly based on a misunderstanding of the nature of the use, mental illness, and its proper treatment in general.
11. The respondent relies on the evidence of Professor Newman who is a specialist child and adolescent psychiatrist. She considers there will be negligible risk of harm to students, the school environment, or the local community. She says that people with mental health problems are frequently reserved and quiet and are highly unlikely to engage in any disruptive or inappropriate public behaviour.
12. Professor Newman says that the risk to children is minimal and there is no evidence to support the conclusion that children will be approached in any disruptive or troubling way by patients of the facility. She considers children will not be at risk from serious criminal behaviour including sexual offending, violence, or destructive acts as patients with neurological disorders requiring treatment will not be the clientele of this sub-acute facility. She states:

In my view, an approach which unnecessarily raises community parents and staff concerns around child development and the need to protect children from developing any mental health literacy is concerning.[6]

In a community where mental health issues are high as is the case across Australia, there is no doubt that children are witness on occasion to disruptive behaviours, often drug-related in their local area and would benefit from some explanation of these sorts of behaviours. However, there is a very low probability that with appropriate screening, triage and management that patients with any of these conditions would present for admission to a private facility.[7]

1. The respondent also relies on the evidence of Associate Professor Jayaram, a psychiatrist who is also active in teaching and research.[8] He is one of the directors of the proposed facility who has partnered with Healthe Care Group Pty Ltd to establish the facility. He was involved in the preparation of the OMP and will be responsible for the implementation of these policies.
2. Associate Professor Jayaram outlined that the facility will operate with a targeted approach to treatment and run by a range of multi-disciplinary professionals for patients who voluntarily choose to undertake their program.

1. The applicant is primarily concerned that patients will interact with students as they must pass the facility on their way to and from school and this will put them at risk of psychological harm which will have flow on effects to the wider school community.
2. We consider this perception has been reinforced by the evidence of Associate Professor Doherty. Whilst we acknowledge his previous experience in the management of mental health facilities, we find his evidence unconvincing as he assumes children will experience psychological trauma if they have interactions with patients of the facility who may be undergoing a mental health episode. We fail to see how he concludes that students will be exposed to distressing behaviour, possibly monthly, as he provided us with no evidence to substantiate this assertion.
3. On the other hand, we have benefit of the evidence of Professor Newman who is an expert in child trauma with considerable experience in the field of psychiatry. Whilst she has not managed a private health facility like Associate Professor Doherty, her curriculum vitae states she has been in senior roles at various hospitals in the past[9] and she also currently runs a practice in Melbourne in conjunction with teaching roles at various universities and is the Director of the Centre for Woman's Health at the Royal Women's Hospital.[10] We consider she is eminently qualified to comment on the operation of mental health facilities, patient behaviour and child and adolescent responses to mental health episodes.
4. We accept her evidence that assumptions made by the applicant that patients treated in sub-acute facilities are dangerous, disruptive, and potentially unpredictable are unfounded.
5. We accept that sub-acute patients are more likely to be reserved and unlikely to engage in disturbing public behaviour. We also agree with her recommendation that students should be supported in developing mental health resilience instead of asserting, as the applicant does, that they need protection from negative impacts that may occur.
6. In terms of risk, we note that Professor Newman acknowledged, under cross-examination, that the facility may treat persons with PTSD who may have symptoms such as irritability, reckless or self-destructive behaviours and angry outbursts. However, we do not consider this acceptance as reason to refuse the application as the applicant cannot assume there will be no risk at all given students can be exposed to persons with mental health issues in any public place.
7. We are satisfied that the types of psychiatric conditions which are proposed to be treated at the facility will not include severely disturbed patients or drug withdrawal patients as they are excluded in the OMP. We will discuss the OMP further below. We note that Professor Newman says private hospitals run programs that include a range of counselling services for a range of stress-related issues, depression, and anxiety. We accept her evidence that these holistic programs are of great benefit for individuals and are well subscribed in private hospitals.
8. We have not been presented with any evidence that Associate Professor Jayaram will run this facility contrary to the recommendations/policies in the OMP, which we will discuss further below. Therefore, we find the operation of a mental health facility will have negligible risk to the school students and community provided it operates in accordance with the OMP and conditions on the permit. Based on the evidence presented by the respondent we consider the concerns raised by the applicant about the impact on students are unfounded.

1. The applicant asserts the proposed use will have an economic impact and affect the future viability of the school. The principal states that prospective parents have withdrawn their enrolments which has flow on effects on staffing levels. She considers this use will create uncertainty in student numbers, particularly if a major security incident occurs.

1. The applicant provided us with no evidence that there has been a decline in student enrolments since this application was submitted, and thus we do not consider any impact on the school's viability has been demonstrated to the point where it should weigh against a permit being issued.

WILL THE OPERATIONAL MANAGEMENT PLAN MANAGE IMPACTS OF THE USE?

1. Section 6.4 of the OMP limits the types of patients that can be treated at the facility by excluding patients with the following conditions:
   1. Patients who are unable to consent to their treatment.
   2. Patients who meet the criteria to be placed under compulsory treatment under the Mental Health and Wellbeing Act 2022 (implemented from 1 September 2023).
   3. Patients with medical conditions that require medical interventions that are too complex to be provided in the private mental health setting.
   4. Any person who is under the age of 18.
   5. Persons who require respite care, are awaiting nursing home placement or are in postoperative condition or recovering from surgery that requires a complicated management plan.
   6. Patients seeking treatment and management of eating disorders.
   7. Any person seeking primary addiction services (substance detoxification and/or rehabilitation).
   8. Patients who are deemed unwilling to comply with the offered treatment plan and/or has a history of non-compliance must be discussed with the admitting/treating psychiatrist.
   9. Any person with a known history of discharge from the sub-acute facility (hospital) and/or other facilities due to their inappropriate behaviour. In such cases, discussion should be made with the Director of Clinical Services prior to admission.
   10. Anyone determined to be high risk, for example presenting with aggression or suicidal behaviour, or anyone who would require seclusion or any other form of restrictive intervention that cannot be implemented in a non-designated mental health service. The OMP sets out the risks that are relevant to the risk assessment to be undertaken. They include substance misuse issues, a history of aggression or violence, social stressors, and non-adherence to treatment.
   11. Any person who has a known outstanding criminal charge.
2. This plan also includes hours of operation for visiting hours, consulting hours, security measures, a smoking policy, and conditions for use of the courtyards. A detailed explanation of the risk assessment procedures for admittance are outlined in the plan which will be conducted by a multi-disciplinary team. The OMP also includes times and procedures for day and overnight leave and complaints procedures. Security is addressed as it states a licensed security contractor will be employed to conduct nightly patrols.
3. The applicant questions the effectiveness of the OMP. It relies on the evidence of Associate Professor Doherty who considers there will be very few exclusions in practice. He says the interests of the admitting psychiatrists determine the actual mix of diagnoses of inpatients. For example, he says a person admitted for depression who also has an eating disorder will not be excluded in the OMP. He considers the clinical assessment of risk is undertaken at the point of referral and such assessments have no predictive value. He says admission is a clinical decision left to the admitting psychiatrist to determine what is acceptable and management rarely intervenes in this decision. He also has concerns about security as he considers there are no measures in place to ensure patients do not interfere with the school or students.
4. The applicant argues there is a limit on what even a well-managed facility might achieve as patients may not disclose past criminal conduct or sexual attraction to children. It says the admitting psychiatrists will also not know the facility is near a school as they are unlikely to have read the OMP. It says that opacity of the admission process means the OMP, and permit conditions will be impossible to enforce.
5. The applicant submits that despite the OMP including security systems, no system is foolproof and therefore the best practice is to separate these two uses.
6. Council refutes the proposition that patients of the facility will pose a safety risk to children and the community. It submits the exclusionary criteria in the OMP significantly reduces the potential for any risk to students and the broader community that might be related to patients with high medical needs. It submits that adverse impacts can be reduced by placing limitations on the opening hours and operation of the facility, such as:
   • The facility is secure to prevent unauthorised persons gaining access and to prevent patients leaving without knowledge of staff;
   • Admissions by appointment only;
   • Visiting hours outside school peak times;
   • Consulting hours similar to a general practice (i.e. 9.00am to 5.00pm);
   • Staggered admissions throughout the day;
   • Staffing at all times of the day and night;
   • Security contractor patrolling sub-acute facility (hospital) three times per night;
   • Escorted leave must include a person who is present at pick-up and drop-off of the patient; and
   • Internal courtyard available for smoking.
7. The respondent argues the applicant's concerns are not based on a proper understanding of the sub-acute facility (hospital) or proposed restrictions on patients. It says there will be negligible risk of any aspect of the use affecting the school in any way. It relies on the evidence of Associate Professor Jayaram who was involved in the preparation of the OMP. He says this document is designed to provide a framework to guide and assist staff in the day-to-day operation of the sub-acute facility (hospital) which will minimise any interaction between patients and the school community.
8. He says the sub-acute facility (hospital) has no intention of admitting severe patients as the setting is unsuitable and it will compromise the care of other patients. He submits the OMP is an overarching document that requires accredited psychologists to triage patients prior to admission to ensure they do not fall within the exclusionary category. He says there is a dynamic process of assessment of patients throughout their stay by the staff.
9. The respondent also relies on the evidence of Ms Jordan. She considers that the condition requiring an OMP does not make the use inherently inappropriate. She says the benefit of having such a plan is it provides clear parameters within which the use must operate so everyone in the community can understand accepted boundaries. She says it will also ensure that in the event the use strays outside the boundaries, the Council can undertake appropriate enforcement.
10. She considers the proposed use requires a management plan to maintain a respectful presence in the community and to ensure that it does not morph into something different, without consent of the Council. She is of the view that the OMP contains the required specificity of the operation, detail of the hours of operation and numbers of expected movements in and out of the building. She also considers it includes sufficient information regarding the degree of patient activities and behaviour that will be managed on a day-to-day basis.
11. Whilst Ms Jordan has expressed some concerns about the excessive terms of control to be imposed which may create an administrative burden for Council, she considers the OMP:

strikes a balance between providing the community information that will allow expectations to be set as to the day-to-day operation of the facility and ensuring it can operate efficiently and effectively for the full benefit of the patients that are being treated. This balance is the epitome of net community benefit which is a foundation of the Victorian planning system.[11]

1. We are satisfied the exclusionary criteria specified in the OMP will ensure patients admitted have mild to moderate mental health conditions which will limit any off-site impacts and minimise the possibility of students witnessing disturbances from patients. This plan clearly articulates the sub-acute facility (hospital) will specialise in mild to moderate psychiatric conditions such as depression, trauma, and stress-related disorders. We accept the evidence of Associate Professor Jayaram that the exclusionary criteria in the OMP will ensure that the admitting psychiatrists have limited parameters to admit patients that don't fit its criteria, as is it is contrary to the model of care the facility intends to operate.
2. We agree with Ms Jordan that an OMP is required to ensure the facility operates within the sub-acute classification, thus limiting the potential impact on the school and wider residential area. We concur with her view that the OMP should include:
   • Total patient and staff numbers onsite to be specified and the breakdown of staff.
   • Hours of operation of various aspects of the facility including visitors, attendance by day patients and admission times.
   • Management of deliveries so as avoid conflict with peak operation of school drop off and pick up within Old Heidelberg Road.
   • Inclusion and exclusion criteria for patients which clearly eliminates high risk patients from the facility.
   • General risk assessment procedures to clearly articulate how patient assessment leads to compliance.
   • Procedures for the assessment and management of any patients that will be permitted to leave the facility so as ensure this is controlled appropriately given it will result in patients entering the community for periods of time.
   • Complaint management to ensure there is an opportunity for the facility to address concerns as the first point of contact.
   • General security and safety procedures which are required for any facility that is providing health related treatment.
   • House rules to set a clear standard of behaviour.[12]
3. We further agree with Ms Jordan that the OMP must focus on the planning permission required and provide an appropriate level of control in this context. We are persuaded that detailed information in the OMP regarding the admission procedures, including the process of corresponding referral practitioners, are administrative procedures that may change over time and not directly related to the planning permission. This can be dealt with as part of the amended OMP that will be required as a condition on the permit.
4. We do not share the applicant's concern that compliance with the OMP will not be enforceable. We accept Associate Professors Jayaram's evidence that auditing of patient admissions records can be undertaken to verify the types of patients admitted to the facility.

1. The applicants are concerned about the use of the courtyards for smoking. Associate Professor Doherty considers the management of nicotine addiction is problematic and use of the courtyards for smoking may not be a sustainable solution. He says that there will be an expected stream of inpatients coming and going from the facility, including to smoke. He says that reliance on the internal courtyards poses an Occupation Health and Safety (OH&S) issue for staff as dispersal of smoke will be difficult.

1. We note the OMP contains the following smoking policy:
   • Smoking by employees, visitors, and members of the public within the confines of all buildings, and within 20 metres of the entrance of any building is not allowed. This policy applies to all employees, visitors and members of the general public without exception.
   • An internal courtyard will be the only designated areas for patients to smoke. Management will ensure smoking occurs within the confines of this area. Any breaches will be appropriately managed.
   • Employees will be permitted to smoke completely off hospital grounds. Smoking breaks must only be taken during the rostered meal and tea breaks.
   • All cigarette butts and other used smoking apparatus must be disposed of by using the receptacles provided.
   • Non-compliance by employees with this policy will be considered a serious matter.
   • Employees who wilfully disregard this policy will be in breach of their obligations under Workplace Health and Safety laws to ensure a safe and healthy working environment, as well as in breach of Alphington Private Hospital policy. Such employees will be subject to counselling and/or appropriate disciplinary action that could result in the termination of their employment.
   • Employees, day patients and visitors will be directed not to smoke in the vicinity of Alphington Grammar School.[13]
2. Whilst we understand the applicant's concerns about patients smoking in public places, Old Heidelberg Road is public land and smoking is allowed by law for those over 18. On-site, we are comfortable the OMP will ensure that smoking is managed in an appropriate manner to minimise potential impacts on staff and patients by ensuring smoking is restricted to designated areas within the site.

1. The applicant argues that controlling public access to the school grounds is already difficult. It says this is due to the existence of a public road that runs into and terminates in the school grounds. It is concerned there is the potential for patients to enter the school grounds which will impact child safety. It states:

Over time, this road is expected to be discontinued and incorporated into the School Land. In the meantime, staff cannot lawfully evict members of the public being on this land notwithstanding the practical concerns that this may raise, particularly when staff and students are on the school's playing grounds.[14]

1. This issue was particularly concerning for the principal who acknowledged under cross-examination that the easy solution would be to provide the school with the ability to use the land exclusively.
2. We heard submissions from Council that the school had constructed a gate through Old Heidelberg Road that was subsequently removed following complaints by local residents. Council directed the applicant to remove the gate preventing access to this public land.
3. The respondent argues the applicant must do more to discharge its duty of care than it is presently doing. This may include engaging a security guard during school hours to prevent any member of the public entering school grounds.

1. At the present time, Old Heidelberg Road remains open to the public and it is an issue the applicant must manage. Whilst we acknowledge that members of the public may include patients on day release from the facility, the assumption that this will cause psychological distress to students is, we consider, a long bow to draw.
2. We agree with the respondent it is incumbent on the school to effectively manage its own security whether it be by greater teacher supervision of grounds or other measures.
3. We note the OMP contains procedures for patient leave which includes approval by the treating psychiatrist after a thorough risk assessment. The OMP also states that patients will be informed during their admission about leave processes, including that school land cannot be accessed whilst patients are on leave. Day program patients are not provided with formal leave as they only attend the site for approximately four hours at a time.
4. We are satisfied these procedures will minimise risk of patients frequenting and causing a disturbance on public land adjacent to the school grounds.
5. We consider that staff monitoring of patients on a 24/7 basis and overnight security patrols indicates the facility has factored in security as part of their operation.

IS IT AN ACCEPTABLE PLANNING OUTCOME TO HAVE A SUB-ACUTE FACILITY (HOSPITAL) NEAR A SCHOOL?

1. One of the main issues we must consider is whether the use will create an unacceptable planning outcome by introducing an incompatible planning use adjacent to an existing lawful use (i.e. the school).
2. The applicant argues that whilst there is no doubt there is a community need for mental health services and there will be commercial benefits in using the former aged care facility, there is nothing specific about this site that warrants its position next to the school. It says this is an opportunistic application that can comfortably relocate elsewhere.
3. The applicant relies on the Tribunal findings in various cases[15] relating to balancing community need for medical/social/community services against other relevant conflicting policies, expectations, and objectives in determining whether to grant a permit that would result in a net community benefit.
4. Council argues that site is an appropriate location for the use that will be an acceptable planning outcome for the site. It agrees with Ms Jordan who considers the site appropriate as the immediate surrounds include a variety of non-residential uses, such as the school, public open space, and the former Tower Hotel.
5. Ms Jordan also considers that when comparing the proposed activity to the previous use as an aged care facility, the intensity will be very similar. Council agrees and submits the use will provide remedial health services to its patients that will have similar noise emissions to a residential use. It says other noise emitted from people arriving and departing the site are considered reasonable given the site's proximity to Heidelberg Road and the school.
6. The respondent argues the sub-acute facility (hospital) is appropriately located on a site that has long functioned as an institutional use. It argues that any critical assessment of incompatibility is whether reality of the situation matches perceptions. It says the applicant's objections have not been grounded in reality.
7. The respondent relies on the evidence of Ms Jordan who considers the nature of the intended use is appropriate at this location as the facility has proximity to public transport networks, the hours of operation are like that of a general practice medical centre and staff parking can generally be provided on-site. She also says there are examples of mental health facilities near schools including the Ramsay Clinic in Albert Road that is near Wesley College, St Georges Hospital that is near Genazzano FCJ College and Upton House that is near Box Hill Senior College.
8. The applicant submits these schools are not located as close to the facility as what is proposed in this case.

1. The applicant is primarily concerned that inpatients will interact with students as they must pass the facility on their way to and from school and these patients may also walk onto the school grounds. We consider the applicant is seeking a situation where there is no risk of harm to their students from the operation of this facility.
2. Logically this is not possible as the wider area contains many places frequented by persons with mental health concerns where children may also be present. The obvious one is a medical centre where patients generally commence their journey to improve their mental health. Medical centres are an integral component of most residential areas, many of which are close to schools. On a wider level any public place, such as shopping centres, train stations, places of worship or bus stops may be areas where persons with a mental illness may attend where students may be present or passing by.
3. We agree with the Council and Ms Jordan that the site is suitably located for a mental health facility as it is within an area that contains other non-residential uses (such as the school) and is accessible to public transport options along Heidelberg Road and the nearby railway station.
4. We have inspected the building and consider the reuse of the former aged care facility for a sub-acute facility (hospital) is an appropriate use of the existing building as it includes secure areas, rooms suitable for in-patients, consulting rooms and larger rooms suitable for group sessions. The ability for staff to park on-site and for patients to arrive and leave via the porte-cochere is a positive as it will assist in containing most activities within the confines of the subject site. This will also minimise interactions with students who may be walking past the site.
5. We find this layout, in conjunction with patient management measures within the OMP, means that location of the sub-acute facility (hospital), opposite, and in proximity to a school, acceptable.[16]
6. Whilst this use may be closer to the school than facilities elsewhere in Melbourne operating proximate to a school, this is not a determining factor in our decision as we are satisfied the scale and operation of the use will minimise potential detrimental impacts to the applicant. These other facilities have different patient numbers and will not operate in the same manner as proposed on this site.

IS THERE DEMAND FOR A SUB-ACUTE FACILITY (HOSPITAL) IN ALPHINGTON?

1. The applicant accepts there is a community wide need for mental health facilities and there are benefits to repurposing the former aged care centre, but that there is nothing specific that makes this site near the school the ideal site. It submits:

It is, in a non-pejorative sense, an opportunistic application that can comfortably relocate elsewhere.

1. In support of its position, it draws on the case of Association for Better Living and Education v Yarra Ranges SC [2015] VCAT 86 ('Better Living'). The applicant takes from that case that the Tribunal was concerned about a number of issues including impact on primary school enrolments, the attributes of the site and proposed management arrangements. It submits that the Tribunal, in part, refused the application because of a lack of compelling need in the proposed location.
2. The applicant called Associate Professor Doherty to give evidence on this matter. His evidence was largely focussed on psychiatry and the management of the facility, but he also commented at length on the issue of need in his oral evidence. He accepts there is a current unmet need but also gave evidence that many private facilities currently have empty beds and relatively low levels of occupancy, and that the unmet demand is in public facilities. His evidence was that Alphington is not identified by the Commonwealth Government as an area of need and he considers 'it is not an area of need full stop'.
3. The applicant also draws on a report by the Australian Private Hospitals Association which noted that there is unprecedented demand for mental health services, but that private facilities are unable to meet timely admissions in many cases due to a lack of available psychiatrists for overnight hospital admissions.[17]
4. The respondent called evidence from Mr Rhys Quick who undertook a hospital needs assessment. At a general level his evidence, based on the findings of the Royal Commission into Victoria's Mental Health System,[18] was that there is a significant undersupply in mental health professionals and services, there is an undersupply of community based, local services for mental health, and that young people are disproportionately affected by mental health issues and lack adequate services.
5. He identified that the site is in the North Western Melbourne Primary Health Network but right on the boundary with the Eastern Melbourne Primary Health Network as shown in Figure 3. For his assessment, Mr Quick noted that the facility could play a broader more regional role but he considered the core demand would come from the surrounding municipalities as shown in Figure 4, being Yarra, Darebin, Banyule, Boroondara and Manningham. His evidence was that the population of the Core Service Area will grow from 665,000 people in 2021 to 808,000 in 2036.

Figure 3 - Mr Quick's Core Service Area within the health network

Figure 4 - Mr Quick's Core Service Area with existing and proposed facilities

1. He noted that both the Eastern (2018) and North Western (2021) Health Networks have undertaken health needs assessments. The 2021 report found there is increasing and unmet demand for mental health services including particular risks in Yarra (alcohol and other drugs) and Darebin (mental health episodes). The assessment found long waiting lists exist for public and private facilities and there are 'high levels of self-reported psychological distress compared to the Victorian average'. The 2018 assessment for the Eastern network had similar findings.
2. In the Core Service Area Mr Quick's evidence was that there are 352 private inpatient beds in three facilities; this facility will add 32 beds to that number. Based on his calculation of population growth, he considered 70 new beds will be required by 2036, against a background of an existing undersupply.

1. It was common ground in the hearing that, in a general sense, there is a significant undersupply of mental health services to the Victorian community. There was some disagreement as to the extent of the need in relation to public compared to private facilities, but we consider on the material before us, private facilities are a much-needed complement to the public system and should not be looked on in some lesser light.
2. We are satisfied that at least some of that need for mental health services in the Core Service Area, as defined by Mr Quick, is present now, and unmet to some extent, and this need will increase as the population grows over time. Logically this need will have to be met by both the public and private system working together across the spectrum of mental illness. Overall, we accept the facility is appropriate at a regional or subregional level. We note it would be difficult, if not impossible, and entirely unnecessary in our view, to establish a specific need at the suburb level (i.e. Alphington) as opposed to this broader demand.
3. In relation to this specific site, smaller private facilities, compared to large public facilities associated with major hospitals, would seem by their nature to require a more flexible and opportunistic approach to siting. State and Local Government do not plan for and provide land for such private facilities in their strategic planning as they might for major public hospitals.
4. We consider there is a certain amount of 'go where you can' dependent on a range of factors including funding models, land use planning, physical land size and characteristics and commercial matters. The repurposing of the aged care facility at 9-11 Old Heidelberg Road appears to be a good example of just those considerations coming to fruition.
5. We are not tasked with undertaking a relative assessment of suitable locations. Our role is to consider the application on the site before us and determine whether it is an acceptable planning outcome.
6. The applicant took us to the decision of the Tribunal in Better Living. We have reviewed the case and consider it illuminates some relevant issues which we will turn to shortly. However, on the facts, the proposal in Better Living can be clearly distinguished from the application before us, including:
   • It was for a Narconon program of drug and alcohol rehabilitation with patients living on-site for between 3 and 12 months, not a sub-acute mental health care facility.
   • It was the only facility of its type proposed in Australia.
   • There was a large number of objectors to the proposal in the community.
   • There was a history of incidents at the existing facility run by the applicant in that case, including instances of police intervention.
   • Up to three graduation ceremonies a year might be held attracting up to 140 people at a time.
7. Due to its nature, the proposal in Better Living required the preparation of a management plan. The items in the management plan to be developed were what might be described as 'high security' including security guards with dogs, CCTV, thermal imaging and movement detection cameras, alarms, a boom gate entry, screening, sniffer dogs and other measures. The Tribunal expressed significant concern about the ability and capacity of the applicant in Better Living to implement the significant levels of management and security required.[19]
8. It is not in our view a comparable application. However, the Tribunal in Better Living, correctly in our view, did establish in relation to need:[20]

In the present case, our consideration of the issue of need has been primarily related to our assessment of the suitability of this use for this site. Principally, in relation to need, the question for us is to decide whether the need for this facility is so great as to influence our assessment of the concerns expressed about the location of the use in a residential area, and the impacts of the use on the amenity and character of that residential area. [Tribunal emphasis]

1. The Tribunal in Better Living also drew on past cases to make the point that concerns about amenity must be real concerns, not perceived concerns:[21]

While we can appreciate the concerns expressed by the resident objectors on these matters, in any assessment of the amenity impacts of this proposal, a distinction must be drawn between what people perceive the impacts of this use will be, and the reality of those impacts. It is perfectly reasonable for the residents to hold the fears that they do, but from the Tribunal's perspective we must be satisfied that there is a factual or realistic basis to those fears in order for us to conclude that this use will result in the amenity impacts alleged by the residents.

1. In this case, as concluded above, we consider the location at 9-11 Old Heidelberg Road to be an acceptable location for the proposal, given the broader community need. We do not go so far as to say it must be at this location, but rather this is an acceptable location to meet an established need.
2. The second part of the equation, as put in Better Living, relates to impacts on the amenity of residents (and in this case the school). As we discuss elsewhere in these reasons, we do not consider the impacts of the proposal on the surrounding residential area (or school) to be unacceptable. On the contrary, we consider they will be insignificant.
3. Overall, we are satisfied that there is a demand for the facility and the location proposed is an acceptable planning outcome.

ARE THE CAR PARKING AND TRAFFIC IMPACTS ACCEPTABLE?

To the satisfaction of the responsible authority

1. It is common ground between the parties that car parking for the proposal must meet the requirements of Clause 52.06 (Car Parking) in the planning scheme. It is also common ground that the 'hospital' use being applied for is not included in Table 1 in Clause 52.06-5 and thus car parking requirements are to be established through Clause 52.06-6. The relevant part reads:

Where a use of land is not specified in Table 1 or where a car parking requirement is not specified for the use in another provision of the planning scheme or in a schedule to the Parking Overlay, before a new use commences or the floor area or site area of an existing use is increased, car parking spaces must be provided to the satisfaction of the responsible authority.

1. Council and the respondent are of the view that as Council had decided that the proposed car parking was acceptable (to its satisfaction) when it considered the application, the Tribunal has no role in reviewing the acceptability of the car parking quantum.
2. In support of this view, Council identifies several cases including Semmens v East Gippsland (Red Dot) [2006] VCAT 683, Miller v Yarra CC [2019] VCAT 493 ('Miller'), Wertheimer v Bayside CC [2019] VCAT 1689, and Hobsons Bay Yacht Club Inc v Minister for Planning [2022] VCAT 765 ('Hobsons Bay'). Council submits, and the respondent makes similar submissions, that these cases support the proposition that there is no permit trigger for car parking, and consequently no associated review rights under Section 82 of the Planning and Environment Act 1987 (Vic) when car parking is to be provided to the satisfaction of the responsible authority. Thus, the Tribunal has no jurisdiction to consider the quantum of car parking.
3. Council notes that while it is not within our jurisdiction to consider the number of car parks to be provided, other impacts of traffic, such as amenity, may still be relevant to our consideration.[22]
4. The applicant notes the decisions in Miller and Hobsons Bay but submits that it is not clear that Clause 52.06-6 specifically excludes third party rights, noting that explicit, limited, exemptions in Clause 52.06 are included in Clause 52.06-4. It argues that Clause 52.06 should be read more broadly, including consideration of the purpose:

To ensure the provision of an appropriate number of car parking spaces having regard to the demand likely to be generated, the activities on the land and the nature of the locality.

1. It submits that it was contrary to the purposes of Clause 52.06 that the Tribunal and parties should have a role in a permit application for a reduction in car parking[23] but not in the case-by-case assessment required to be undertaken by the responsible authority in Clause 52.06-6.

1. We are not convinced of the merits of the applicant's arguments on this point. Clause 52.06 is constructed to consider the quantum of car parking required in two main pathways, through Clause 52.06-5, a 'tick-a-box' approach where car parking rates for many uses are tabulated, and through Clause 52.06-6 where car parking amounts for uses not specified in Clause 52.06-5 are left to the discretion of the responsible authority. There is no permit trigger under Clause 52.06-3 for the consideration of the car parking requirements in Clause 52.06-6; one could have been included if the drafters of the planning scheme intended it.[24]
2. Our view is that the cases on this issue are quite clear, and we note that the four cases specifically mentioned above were all decided by legal members of the Tribunal or included a legal member's opinion. We understand none of the cases referred to above have been challenged in a higher court, so at this time there is a clear line of authority at the Tribunal establishing that Clause 52.06-6 is not a permit trigger, and thus there is no jurisdiction for the Tribunal to consider an application for review under Section 82 of the Planning and Environment Act 1987 (Vic) on the quantum of carparking.
3. Ultimately, in this matter it is a moot point. Having considered the material before us and the expert evidence, we are satisfied that on the merits, the application provides an adequate level of car parking for the facility. Our reasons for this view are considered in more detail below.
4. We accept that the broader impacts of traffic and parking in the application are relevant in terms of amenity, as they are called up in the zone controls and Clause 13.07-1L-01.

1. Traffic expert evidence was called by the applicant from Mr Andrew Farran and by the respondent from Ms Charmaine Dunstan. The experts met in a conclave prior to the Hearing and agree on the following points:
   • The traffic impacts from the proposal are acceptable and can be accommodated on the surrounding road network.
   • Three bicycle spaces are required for the proposal and should be provided via condition.
   • Loading and waste collection arrangements are acceptable.
   • The internal carpark layout is acceptable subject to conditions requiring:
     • signage identifying the 3.2 metre wide car space at the north eastern corner of the car park as DDA[25] compliant.
     • Landscaping around the eastern driveway (exit) to maintain adequate visibility of pedestrian for exiting vehicles.
2. There was some disparity in the expert witness statements about the proposed number of staff and patients at the facility. In the conclave the numbers were reviewed to reach agreement on the following:
   • Up to 20 staff will be on-site at any one time, including Doctors.
   • There are 32 beds in the hospital. In addition, there may be up to 8 day-patients, and up to 5 outpatients at any one time.
   • There is no medical centre on-site.
3. We were advised that 'day patients' would be patients attending site to undertake treatment programs including workshop sessions and group therapy. These sessions may be some hours at a time and be in the morning, afternoon, or both. 'Outpatients' are patients attending from outside for an appointment with consulting doctors who have suites in the facility and would be expected to be on-site for a waiting period and the appointment itself.
4. The main difference between the expert's opinions related to the car parking demand assessment for the facility, whether car parking could be accommodated on-site, and if not, is there adequate capacity for 'overflow' parking in the surrounding street network.
5. Ms Dunstan noted that there are 16 existing parking spaces at the facility associated with the previous aged care use, and that this number was accepted by Council under Clause 52.06-6 as being an appropriate parking provision. Her view was that 16 spaces is an appropriate provision of car parking for the proposal and that staff will generate a demand of up to 14 spaces and patients and visitors 2 spaces, noting that in her experience with other facilities, patients will generally not drive themselves and there is good public transport access.
6. Her overall conclusion was that:

Accordingly, I consider that car parking demands will generally be met on-site through the continued provision of 16 car spaces, and that there will be a minimal impact to on-street car parking conditions as a consequence of this development.

1. As part of her evidence, Ms Dunstan undertook an on-street parking survey in the area as defined in Figure 5. She identified between 155 to 190 car spaces available within the area, with a cluster of short-term spaces near the school on Lucerne Crescent and Como Street.

1. Her evidence is there are clear peak demand periods associated with school drop-off (morning) and pick-up (afternoon) but overall, the on-street parking demand is moderate, and the maximum occupancy recorded was 72 per cent.
2. Mr Farran's evidence was that there will be substantially more demand generated than predicted by Ms Dunstan and there will be significant overflow parking required in the surrounding area. His evidence in his Technical Note was that a peak parking demand of 37 spaces could be expected, and that a reliance on 21 off-site parking spaces is not an orderly planning outcome. In oral evidence he adjusted his total demand to 35.
3. He acknowledged that there are on-street parking spaces in the vicinity, but these are generally greater than 100 metres from the subject site.
4. There was general agreement amongst the experts and parties that there will need to be some overflow parking off-site, particularly at staff changeover times.

1. We have had some difficulty in the reconciling the demand assessment for overall parking numbers and the amount of overflow on-street parking put to us by the different parties and in evidence. What is clear is that in making its original decision, Council operated on the basis that up to 12 spaces might be needed for on-street parking at times and was comfortable that this could be accommodated in the area.
2. Mr Farran was of the view that 35 spaces would be needed in total and thus up to 19 on-street spaces at peak times.[26] Ms Dunstan, we understand, considers peak demand may reach 24 spaces based on 0.75 parking spaces per bed, or up to 8 spaces for on-street parking, but that in normal operations the on-site parking will be sufficient or nearly so.
3. We understand the peak demand for parking from the facility will occur at staff changeover times which are likely to be of short duration. When the school is not operating, there is additional on-street parking in the area that will be available. Most of the time we are satisfied that the parking needs of the facility can be accommodated on-site. It may be useful for the proposal to consider operational measures such as staggered shift times for staff and ensuring staff changeover time is offset from school drop-off and pick-up, but we have not required that via condition as do we not consider the impact is sufficient to make it necessary, as opposed to desirable.
4. When overflow on-street parking is required, we consider based on the evidence that there is ample on-street parking within a reasonable walking distance of the proposal. We accept most of this street parking may be more than 100 metres from the proposal as put by Mr Farran, but we do not consider such a limit is usual or useful in establishing parking availability. A peak allowance of between 8-19 spaces for on-street parking is an acceptable planning outcome, in our view, in this location, and we consider the upper limit of that range overly conservative.
5. We note the proposal has good public transport access by bus along Heidelberg Road and is approximately a 10 minute walk to the Alphington Train Station.
6. We note there were no resident respondents from the area objecting to the proposal on traffic or other grounds. While this is not determinative, it does appear to point to a lack of concern regarding on-street parking in the precinct.
7. We consider the current traffic and parking impacts caused by the school in the area during drop-off and pick-up times are greater than those that will be generated by the proposed sub-acute facility (hospital). We observed very heavy traffic congestion during a school pick-up of a duration of perhaps 30-45 minutes in Old Heidelberg Road, Lucerne Crescent, Constance Street and Como Street including instances of illegal parking and standing in 'No Standing' areas during peak times.
8. We have considered other matters such as waste collection and loading and are satisfied they are acceptable and do not weigh against issuing a permit for the proposal.
9. Overall, we find the parking provision for the proposal an acceptable outcome subject to minor changes regarding sightlines and DDA provision which we have included in the conditions.

1. The application concerns the property at 9-11 Old Heidelberg Road. There are two existing dwellings at 13 and 15 Old Heidelberg Road which we understand are in the same ownership as 9-11 Old Heidelberg Road. The zone and overlay controls are the same for all three properties.
2. The applicant's view is that the application is being advanced in a piecemeal manner and 13 and 15 Old Heidelberg Road are proposed as part of the facility, and therefore should be included in the application before us. In support of its argument, it provided an 'Existing Site Plan' with the dwellings being marked as 'Administration Area for Hospital'.[27] It sought to establish that the proposal is not feasible without additional, associated health facility development on 13 and 15 Old Heidelberg Road.
3. Associate Professor Jayaram gave evidence that he, along with another psychiatrist, and the Permit Applicant, would be responsible for the establishment and running of the facility. He also stated that there have been ongoing discussions about the possible future development of 13 and 15 Old Heidelberg Road for mental health facility beds. In communications attached to his evidence, this was outlined as Stage 1 - the current proposal and Stage 2 - future development, possibly including 13 and 15 Old Heidelberg Road.
4. He concluded his evidence by confirming that 13 and 15 Old Heidelberg Road are not part of this application and proceeding before the Tribunal and:

It is obvious to me that prior to any future application for any further planning permissions being filed or lodged, it will first be necessary to successfully establish the current proposal on the subject site before embarking on any further stages of development at some unknown time in the future.[28]

1. Under cross examination Associate Professor Jayaram was questioned about whether any financial modelling had been done just on the basis of Stage 1 alone and to its profitability. He answered that he was not aware of any additional figures (beyond the spreadsheets provided) and it is not his area of expertise. He answered that he is 'happy and comfortable' with the 32-bed facility which should be able to run successfully as a standalone facility not contingent on Stage 2.
2. Council rejects the piecemeal argument on the basis that 13 and 15 Old Heidelberg Road are not integrally linked to the proposal and their development is not necessary for this proposal to succeed. It notes that 13 and 15 Old Heidelberg Road could be used for residential dwellings and any other proposal requiring a use permit would proceed through the planning process in the usual way with associated notice and review rights.
3. The seminal decision on piecemeal applications is the High Court decision in Pioneer Concrete (Qld Pty Ltd v Brisbane City Council (1980) 145 CLR 485 ('Pioneer'). Pioneer involved an application for a quarry and whether approval for the road to access the future quarry needed to be included in the quarry application. Amongst others, the respondent provided an extract from the judgement of Stephen J including:[29]

...it is that where, as here, the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane's town planning measures; instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.

1. In Pioneer Stephen J went on in his judgement to explain that to 'sever' an application in that case would prevent its proper consideration by the decision maker and others such as objectors who may be prevented from considering all the aspects of the application.[30]
2. The respondent observes that the facts of the application are very different from Pioneer and this proposal is 'self-sufficient', including that the application is confined to 9-11 Old Heidelberg Road and does not propose or need any connection to 13 and 15 Old Heidelberg Road. It submits:

Alphington Grammar have confused the potential for possible expansion with the notion of an impermissible piecemeal application.[31]

1. We find that, unlike Pioneer, there is no physical access or infrastructure proposed which makes the proposal we are considering contingent on possible future proposals for 13 and 15 Old Heidelberg Road. On the evidence and submissions before us, we are satisfied that this application is not piecemeal in nature.
2. There may be a future application for a sub-acute facility (hospital) on 13 and 15 Old Heidelberg Road, just as there may be applications for other uses allowed via permit under the zone. That is a separate consideration to the current application and will be subject to the planning controls and notice and review requirements as may be in place at that time. That is a separate consideration to the current application and will be subject to the planning controls and notice and review requirements as may be in place at that time.
3. The applicant also sought to establish a financial co-dependence in its questioning of Dr Jayaram, suggesting that the current application will only succeed financially if 13 and 15 Old Heidelberg Road is also developed as a mental health facility. We do not consider this is a piecemeal issue within the scope of the Pioneer principles as that was concerned with relevant application information and the need for the decision maker and parties to fully understand the physical aspects of a proposal; not whether a proposal will be financially viable or under what circumstances.
4. Financial viability is rarely a relevant consideration in planning, and we do not consider it relevant here. The financial viability of the proposal at 9-11 Old Heidelberg Road, either on its own or in conjunction with a possible future expansion to 13 and 15 Old Heidelberg Road, is a matter of commercial risk for the respondent, not a matter for the Tribunal.

1. At the conclusion of the hearing the applicant tabled a revised set of draft conditions. In summary, these changes extracted several of the requirements of the OMP into separate conditions on the permit.
2. We consider management of the hospital in an OMP preferable to separate conditions on a permit. We have come to this conclusion as we see the OMP is the appropriate mechanism to regulate the types of patients admitted to the facility and the management of those patients when in attendance on the site.
3. It is the responsibility of Council to ensure the conditions on the permit are met. In terms of the OMP, based on the evidence of Associate Professor Jayaram, we are satisfied the operator of the facility can produce evidence that demonstrates the requirements of the OMP are met. We note that condition 12 of the draft conditions states that this detailed information can be requested at any time by the responsible authority.
4. There were several other changes to the draft conditions recommended because of the Traffic Conclave Statement and evidence of Ms Jordan that have now been included as conditions. These include:
   1. Widening of accessible car spaces to meet DDA requirements;
   2. Low level landscaping to provide sight lines for the crossovers;
   3. Modification of Condition 11 so that any amended version of the OMP is to the satisfaction of the responsible authority; and
   4. Inclusion of an additional condition in the OMP (Condition 10) to ensure the floor plans identify patient, staff supervised and staff only areas, internal and external to the building.
5. We accept that Conditions 3, 4 and 5 have been amended to reflect the updated number of inpatients, day patients, outpatients, and staff on-site at any one time.
6. In submissions, Council initially sought to restrict the use of the external courtyard after 7.00pm each evening. The OMP states the courtyards will be open from 7.00am to 10.00pm. Council amended its position and now supports the closing time of 10.00pm on the basis that surrounding land uses are not residential in nature.
7. We agree that given the courtyards are centrally located in the building and surrounding land uses are generally non-residential, operation of the courtyard until 10.00pm is reasonable. The condition in the OMP will be amended accordingly.
8. Other conditions were discussed at the hearing and any changes to the permit conditions contained in Appendix A of this order reflect those discussions and further consideration by the Tribunal.

1. We conclude that the respondent has demonstrated that there is a net community benefit for a mental health facility at this location. We are satisfied that management of the facility, in accordance with the conditions on the permit and the OMP, will minimise unreasonable off-site amenity impacts on the school and wider residential area.
2. For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

• Use of the land as a sub-acute facility (Hospital), installation of a bicycle hoop, construction of a fence and a reduction to the bicycle requirements of Clause 52.34 of the Scheme

1. Before the use or development commences, 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 this permit. The plans must be drawn to scale with dimensions, and three copies must be provided. The plans must be generally in accordance with the decision plans prepared by HSPC, Drawings A000, A001, A005, A006, A010, A050, A400, A401, A402 and A403, dated 18 November 2022, but modified to show the following:

(a) An additional bicycle hoop on the land, installed and designed in accordance with Australian Standards;

(b) Minimum 1.8m-high fencing along the boundary shared with the north- westernmost parcel of No. 12 - 18 Old Heidelberg Road (i.e. Lot 7 on Plan LP7221);

(c) Any requirement of the Waste Management Plan (Condition 13);

(d) The 3.2m wide car-parking space located at the north-east corner of the carpark is signed as disabled parking; and

(e) Landscaping on the eastern side of the eastern crossover to Old Heidelberg Road, to be maintained below 900mm, within a sight triangle of 2.5m deep x 2.0m wide.

1. The development and use as shown on the endorsed plans must not be altered (unless the Yarra Planning Scheme specifies that a permit is not required) without the prior written consent of the Responsible Authority.
2. Except with the prior written consent of the Responsible Authority, no more than 32 in-patients are to reside on the land at any one time.
3. Except with the prior written consent of the Responsible Authority, there must be no more than eight (8) day patients and five (5) out-patient consults on-site at any one time, restricted to the hours of 9am to 5pm Monday to Saturday.
4. Except with the prior written consent of the Responsible Authority, a maximum of 20 staff members are to be on-site at any time.
5. The amenity of the area must not be detrimentally affected by the use or development, including through:

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

(b) the appearance of any buildings, works or materials;

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

(d) the presence of vermin,

1. The use must at all times comply with the noise limits specified in the Environment Protection Regulations under the Environment Protection Act 2017 (Vic) and the Noise Protocol (Publication 1826.4, Environment Protection Authority, May 2021).
2. The collection of waste from the site must be by private collection, unless with the prior written consent of the Responsible Authority.
3. Before the building is occupied, or by such later date as approved in writing by the Responsible Authority, external lighting capable of illuminating access to building entry and car park must be provided within the property boundary. Lighting must be:

(a) located;

(b) directed;

(c) shielded; and

(d) of limited intensity,

1. Before the use or development commences, an amended Operational Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the amended Operational Management Plan will be endorsed and will form part of this permit. The amended Operational Management Plan must be generally in accordance with the Operational Management Plan prepared by Healthe Care Surgical and dated 31 August 2023, but modified to include (or show, or address):

(a) Further details on in-patient admissions, including that it will be by appointment and limited to day-time business hours (9am to 5pm). Check ins should be spread throughout the work day to avoid congestion.

(b) Details of day-leave arrangements, contained to the hours of 10am to 8pm, and how this will be documented and managed.

(c) Commitment that visiting hours will only be permitted between 10.00am and 2.00pm or 5.30pm and 8.30pm on weekdays to avoid conflict with school pick-up times. Further details of visitor sign in / out and arrangements.

(d) Commitment that patients and visitors will be alerted of limited on-site parking prior to arrival and that details of public transport and car share options be provided.

(e) The courtyards to be opened no earlier than 7am and close at 10pm.

(f) Details of "House rules" with regards to recreation and noise, particularly during the sensitive evening and night-time hours.

(g) Details of smoking arrangements, with a designated area to be chosen away from sensitive interfaces and for receptacles to be provided and appropriately disposed of.

(h) Commitment to assist / organise appropriate transportation for patients on departure (i.e. assist in organising pick-up from family or friends, provide public transport timetabling, ordering car share or taxi services).

(i) Details of complaint procedures with a commitment that neighbours and Alphington Grammar School will be provided with a direct telephone number for contact and communication.

(j) That all day patients, out-patients and consultations will be on-site between 9am to 5pm only.

(k) Details of the exclusion criteria for patients admissions, including a commitment that the facility will not provide for acute de-toxification/addiction services.

(l) Further details of the security arrangement.

(m) Floor plans to identify areas of patient, staff-supervised and staff-only areas, both internal and external to the building.

1. The provisions recommendation and requirements of the endorsed Operational Management Plan, or any amended and endorsed version of the Operational Management Plan, must be implemented and complied with to the satisfaction of the Responsible Authority.
2. At any time, the Responsible Authority may, with just cause, request that the permit holder produce detailed information to demonstrate compliance with the Operational Management Plan, to its satisfaction.

1. Before the development or use commences, a Waste Management Plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the Waste Management Plan will be endorsed and will form part of this permit. The Waste Management Plan must be generally in accordance with the commitments and provisions of the Decision Plans.
2. The provisions, recommendations and requirements of the endorsed Waste Management Plan must be implemented and complied with to the satisfaction of the Responsible Authority.
3. Delivery and collection of goods to and from the land may only occur between 7am and 10pm Monday to Saturday, or after 9am on a Sunday or public holiday except for those allowed under any relevant local law.

(a) the development is not commenced within two years of the date of this permit;

(b) the development is not completed within four years of the date of this permit;

(c) the use is not commenced within two years from the date of this permit; or

(d) the use is discontinued for a period of two years.

In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[5] Australian Government - Australian Institute of Health and Welfare - Development of nationally consistent subacute and non-acute admitted patient care data definitions and guidelines (2013) - page xii.

[8] Dr Jayaram's submission indicates that he is the Associate Professor of Psychiatry and Director of Graduate Teaching and Learning programs with the Department of Psychiatry at the University of Melbourne. He is also consultant psychiatrist at Western Health and private psychiatrist at the Ramsay Clinic and has consulting rooms in East Keilor.

[9] Professor Newman's curriculum vitae indicates that she was clinical director of the Paediatric Mental Health Service, South West Sydney Area Health Service and a Registrar of Psychiatry at Redbank House, Westmead Hospital.

[10] This includes the Professor of Psychiatry at the University of Melbourne, Clinical Professor of Psychiatry at the University of Newcastle and adjunct Professor of Developmental Psychiatry at Monash University

[13] Operation Management Plan, 9-11 Old Heidelberg Road, Alphington, Healthe Care Surgical Pty Ltd, 2023 - Section 13.

[14] Applicant opening submission, [66].

[15] Association for Better Living and Education v Yarra Ranges SC [2015] VCAT 86 and Alfred Hospital v City of Melbourne [1986] P86/1260-1.

[16] We note the subject site only partially abuts the north boundary of the junior school which is enclosed by 2 metre metal picket fencing. Our site inspection revealed that this setback is the blind side of the school building that has no access to students. The remainder of the subject site faces the school grounds on the opposite side of Old Heidelberg Road. The junior school is mostly separated from the subject site by 13 and 15 Old Heidelberg Road.

[17] Mental Health - crisis and solutions, a private hospital perspective April 2023, 3.

[21] Self Help Addiction Resource Centre Inc v Glen Eira City Council [2005] VCAT 2647, [56] and in Better Living, [90].

[22] And this approach is supported in at least some of the cases mentioned above.

[23] A permit is triggered by Clause 52.06-3 if an applicant wishes to reduce the amount of car parking required in Clause 52.06-5.

[24] A Section 149 review of car parking required under Clause 52.06-6 could be initiated by a 'specified person', for example if a permit applicant considered the responsible authority was requiring too much parking; but that would not extend to third party review rights.

[25] Disability Discrimination Act 1992.

[26] It was put to Mr Farran in cross examination that there may be a double up in his counting in one area, resulting in a reduction overall of 7 spaces, leading to an on-street demand of 12 spaces. It is our understanding that Mr Farran did not accept this point in principle.

[27] Mr Quick's evidence on Map 1 had a similar notation, perhaps from the same source.

[28] Witness Statement of Dr Mahesh Jayaam - [22].

[31] Further submissions on behalf of the respondent - [39].