The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for Shops and Dwellings at 1-7 Waltham Street, Sandringham generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, three copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be the endorsed plans for this permit. The plans must be generally in accordance with the Amended Plans substituted for the Application Plans , but modified to show to the satisfaction of the Responsible Authority:

a) All wall heights above ground level to be nominated on the plans.

b) A schedule of all external materials and finishes showing the materials, colour and finish of all external walls, roof, fascias, window frames, and paving (including car park surfacing).

c) All plant and equipment (including air conditioning units, heating units, hot water systems, etc.).

d) Devices necessary for the safe and practical functioning of the basement entry and exit ramp.

e) The car park ramp generally in accordance with the recommendations of Ms. Gillian Austin, Traffic Engineer, in her report to the Victorian Civil And Administrative Tribunal in Application For Review P3112/2002.

f) The allocation of car spaces within the basement to tenancies with the building.

g) All balconies shall not project further than 1.4 metres beyond the building facades, without being reduced in total area.

2 The development as shown on the endorsed plans must not be altered or modified (whether or not in order to comply with any statute, statutory rule or for any other reason) without the prior written consent of the Responsible Authority.

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

* The development and use is/are not started within two (2) years of the date of this permit.

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

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

4. Before occupation all buildings and works specified in this permit must be completed to the satisfaction of the Responsible Authority. The Responsible Authority must be advised in writing when all construction and works are completed to enable the site to be inspected.

5 All service pipes, (excluding downpipes), fixtures and fittings must be concealed on exposed elevations to the satisfaction of the Responsible Authority.

6 The alterations of soil levels involving an increased or decreased level at the boundaries must be retained by the provision of an adequate retaining wall, constructed of brick or masonry or other suitable alternative approved by the Responsible Authority, to buttress the soil against the possibility of shift. The construction of this retaining wall shall be the sole responsibility of the developer.

7 All brickwork on or facing the boundaries of the site must be raked and cleaned or rendered or bagged and painted to the satisfaction of the Responsible Authority.

8 Before the development starts, areas set aside for parked vehicles, access lanes and associated access ramps as shown on the endorsed plans must be constructed, drained, signed and line marked, to the satisfaction of the Responsible Authority. Parking areas and access lanes must be kept available for these purposes at all times.

9 All basic services, including water, electricity, gas, sewerage and telephone, shall be installed underground and located to the satisfaction of the Responsible Authority.

10 All redundant vehicle crossings shall be reinstated to the satisfaction of the Responsible Authority at the cost of the applicant/developer.

11 Before the use and development starts the permit holder is to provide a Certificate of Environmental Audit or Statement of Environmental Audit for the land in accordance with Section 53Z of the Environment Protection Act 1970.

12 Finished floor levels must be a minimum of 300 millimetres above the applicable flood level. Units (tenancy) 1-4 are to have a minimum floor level requirements of 13.30 metres to Australian Height Datum. Unit 5 is to have a minimum floor level requirement of 13.90 metres to Australian Height Datum (AHD).

13 The basement to be appropriately flood proofed. Vents, staircases, entry and exit points are not to act as flood water inlets to the basement car park.

14 No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.

15 The basement car park is to have a entry point a minimum of 13.90 metres Australian Height Datum (AHD).

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

Ms Jennifer Bowdern, Solicitor, appeared on behalf of the Responsible Authority.

Mr Ian Pitt SC, appeared on behalf of the Applicant for Review and Permit Applicant. Mr Pitt called Ms. Gillian Austin, Traffic Engineer, and Mr. Tim Biles, Town Planner, as a witnesses in support of his submissions.

The following Respondent/Objectors appeared on their own behalf and on behalf of other Respondent/Objectors:

1. This is an application to review the decision of the Responsible Authority to refuse permission for a mixed use development comprising shops (5) and dwellings (25) in a three and four level building over a basement car park within the Sandringham shopping centre. The Responsible Authority issued a notice of refusal to grant a permit for the following reasons:

1. The proposal will not be in keeping with the neighbourhood and streetscape character.

2. The proposal will create excessive height and visual bulk to adjoining properties.

3. The proposal is an overdevelopment of the site.

4. The proposal will adversely impact upon car parking and traffic generation in the area.

2. The parties and the witness in the appeal made both written and verbal submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

3. In Application For Review 2001/16215, (Boeing Developments PL v Bayside CC [2001] VCAT 1595), the Tribunal directed the grant of a permit for a very similar development of the subject land. In the earlier proposal the architecture was almost identical to that proposed in this case, and the principal differences between the two applications are that the interior of the building has been re-planned so that the number of dwellings is increased from 13 dwellings to 25 dwellings, and the number of car spaces available in the basement is increased from 24 to 34 spaces, primarily through the use of car parking stackers.

4. I constituted the Tribunal in this earlier Application For Review. As a consequence of this, Mr Anderson at the commencement of the hearing requested that I disqualify myself from hearing the current Application For Review, on the basis of perceived bias. Ms. Bowdern for the Responsible Authority had no objection to me continuing to hear this current application. Mr. Pitt opposed the requested reconstitution of the Tribunal. After considering submissions I advised the parties that in my opinion there was no proper basis for a perception of bias and declined to disqualify myself.

5. In the argument in relation to disqualification, and later in the hearing in relation to the issue of consistent decision making, Mr Pitt relied on a decision of the Supreme Court of Victoria in Ewert and anor v Lonie and anor, LGRA, 1971, P132. Given the circumstances set out in Paragraph 4 above I think it is useful to set out in full the section of the decision relied on by Mr Pitt:

"I think it is important to examine what is intended to be meant by the word "bias" when it is used in the present case. It is not suggested that the tribunal was interested in the outcome of the appeal in the sense that the members could possibly derive any advantage from a decision one way or the other. Nor is it suggested that they have a partiality due to some prejudice or to a sentimental preference for one party or the other. What is suggested is that, having had the precise issues and three of the four relevant parties before them in the earlier appeal, it was highly likely that they would adhere to their then decision in the later appeal. It is therefore said that they did not come to the adjudication with an independent mind, or that they had predetermined the case. This then is said to amount to bias of such a kind as to disqualify the tribunal from hearing the case.

The submission was very properly taken into the next step that, even if it be assumed that there was no bias in fact, nevertheless a reasonable onlooker might very well think that in the situation that existed at the hearing of the second appeal, that hearing would not be a real hearing at all but a sham.

In my opinion, there is nothing in the evidence, and there is nothing even in the allegations in the statement of claim to indicate that in the result the appeal did not in fact receive a proper and correct hearing.

In my judgment, what the plaintiffs feared and still fear is that the tribunal, before which, as far as I can tell, neither new material in evidence nor new argument was placed in the second appeal, would either follow or be persuaded by the reasons given in its earlier decision. Since the application was for a permit for the same use of the same land and the applicant was the same and one of the two objectors was the same, there can be no doubt that any observer would think it more than possible, and perhaps even likely, that the same conclusions would be reached. In my opinion, however, it simply does not from this consideration that the appellants were entitled to feel that justice was not appearing to be done. Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not he same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution of authority or to think that every cynical appraisal represents an absolute truth."

6. At the conclusion of the hearing I gave oral reasons for my decision to set aside the decision of the Responsible Authority and order the grant of a permit. A summary of my reasons is set out below.

7. Increasing the number of dwellings within the proposed building, and reducing the size of many of the proposed dwellings is likely to lead to an increase in the diversity of dwellings available within this local area. As a matter of general planning principle this is a change supported by the planning policy framework.

8. The scale and form of the proposed building, and to a slightly lesser extent the architecture of the proposed building, are almost identical to that before the Tribunal in the earlier application. In the earlier application I concluded:

Therefore not only does the proposed design directly respond to the policy framework set out in the planning scheme, it in my view reasonably responds to the nature of surrounding development.

9. In forming this opinion that the scale form an architecture of the proposal were acceptable on the last occasion I relied heavily on the Planning Policy Framework, in particular Clause 22.04 Sandringham Urban Village Policy, which is directly applicable to the land and the proposal. There has been no relevant change to the planning scheme provisions since that time. A relevant change in planning policy has been the adoption of Melbourne 2030, which supports the existing Urban Village policies in the LPPF and supports my conclusion in respect of the earlier application. No new argument or evidence in respect of planning policy, architecture, or urban design was led in respect of the current application. I therefore conclude that for the same reasons put forward on the last occasion the scale, form and architecture of the proposal are acceptable in the local context.

10. Much of the argument at the hearing of the current application related to car parking. If one applies the Res Code car parking standards, and allows one staff car space for each of the small retail tenancies, then there are a sufficient number of car spaces within the basement for resident and staff car parking demand, plus a small surplus. The proposal seeks to rely on on-street, and public off street car parking for the purposes of customer and visitor car parking demand.

11. As Mr Haddaway observed in his submissions, the Responsible Authority and the Objectors wished to revisit my conclusion in respect of customer and visitor car parking, in the earlier decision. In the earlier decision I concluded:

"Given that I am of the view that it is reasonable for customer and visitor car parking demand to be met from the pool of publically available car spaces within the locality, then in my view one can be reasonably satisfied that adequate provision is made on site for resident and staff car parking demands."

12. Reconsidering the issue of customer and visitor car parking demand I have formed the view that the following considerations essentially reinforce the conclusion I reached in respect of the earlier application:

* In the current application for review, the permit applicant's case was supported by an expert traffic engineering report. This was the only expert evidence lead to in relation to this issue, and supports the conclusion that there is capacity in the local area for customer and visitor car parking off site.

* There was some concern expressed by the Responsible Authority and Objectors that the shopping center was in a state of minor decline, these concerns tend to support Ms Austin's limited survey which indicates the availability of on street, short term, car parking spaces.

* Mr Haddaway in his submission produced some new factual material in support of his concern about the availability of car parking. His survey indicated that there is considerable supply of unrestricted , long term, car parking available in and near the shopping centre, and that this long term car parking is relatively heavily utilized, in part by commuters. I am of the view that the quantity of unrestricted car parking is an indicator of relatively low levels of demand for short term car parking. The municipality can in this shopping centre increase the availability of short term customer car parking by changing the current management of the available public car parking, if greater demand for short term car parking becomes evident..

* It is in my view undesirable to provide additional car spaces on site. It was accepted by the parties that the small basement car park is not well suited to the provision of customer or visitor car parking. While it would be possible to provide some additional car parking within the ground floor of the building, the loss of retail floor space, and the likely detrimental impact on the shopping streetscape, significantly outweighs the benefit to be gained by the provision of additional on site car parking, particularly where it is evident that there is car parking available within the locality, and this is a site which has substantial street frontages along which car parking and loading can take place.

13. So for all the above reasons, it was my conclusion, that a permit should be granted.