The construction of buildings and works and the use of the land for the purpose of a medical centre.

1. Prior to the commencement of the development hereby permitted the applicant must submit to the Responsible Authority three copies of plans drawn to scale generally in accordance with the plans accompanying the application but amended to show:

a) Amended plan and elevational detail to show full retention of the existing roof over the front four rooms including caves and proposed walls and the existing chimney.

b) The panel above the car access opening as face brick to match the existing building.

c) The inclusion of solid gates to the undercroft parking entrance.

d) A schedule of all external materials and finishes. The schedule must show the materials, colours and finishes of all external walls, roof, fascias, window framers, glazing types, doors, fences and paving, (including car park surfacing), outbuildings and structures.

e) A dimensions and location of any business identification sign.

2. These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.

3. A scheme for landscaping and planting in connection with the proposed development must be submitted for the approval of the Responsible Authority before development on the site commences and the agreed scheme must be implemented within 2 months of the completion of development, or as otherwise may be agreed with the Responsible Authority and the areas concerned must be subsequently maintained to the satisfaction of the Responsible Authority.

4. Staff (including a Radiographer) operating on the Subject Land are not to carry out work on the Subject Land other than work generated on the Subject Land.

5. The use hereby permitted is for a specialist medical centre. Consultations and/or appointments are to be made by prior appointment only.

6. The number of medical practitioners conducting services on the premises at any one time shall be limited to two (2), and the total number of staff, including practitioners, located on the premises at any one time shall be limited to five (5).

7. The operating hours of the premises shall be restricted to the following times: 8am to 6pm Monday to Friday.

8. The maximum noise level emitted from the premises must not exceed levels specified in the State Government Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area) No. N-1.

9. The air conditioner hereby permitted must not cause a nuisance by reason of noise to the occupiers of any residential property.

10. The parking spaces as shown on the approved plans shall at all times be used in connection with the lawful use carried out on the site.

11. All garbage and other waste material must be started in an area set aside for such purpose to the satisfaction of the Responsible Authority.

12. No garbage bin or waste materials generated by the permitted use shall be deposited or stored outside the site and bins must be returned to the garbage storage area as soon as practicable after garbage collection.

13. Prior to the commencement of the development, including any demolition works, a specification and scope of works be submitted to and approved by Council which details how the late roof is to be reinstated, how the materials are to be stored and reused.

14. The development as shown on the endorsed plan(s) must not be altered or modified without the prior consent of the Responsible Authority.

15. The use of any land or building or part thereof as shown on the endorsed plan(s) must not be altered or modified without the prior consent of the Responsible Authority.

16. The time for the commencement of the development hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

17. The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

2. The application for the indemnity certificate under the Appeal Costs Act 1998 is denied.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 ("The Act") brought by the permit applicant Bruce Allen Architect to review a decision by the City of Melbourne ("The Council") to refuse a permit .

2. It is proposed to use an existing dwelling for the purpose of a medical centre. Alterations and extensions to the dwelling are also proposed and these will consist of internal alterations and an upper level extension to the rear of the dwelling. The existing building is intended to be used for a disable toilet, plaster room, dark room, radiology, reception and waiting room. Internal stairs will lead to the upper level extension which will include offices, storage, meeting room, kitchen and staff facilities. A double storey "coach house" is also proposed to be constructed at the rear of the site, within which four car spaces are proposed at ground level, and storage at the upper level.

3. It is proposed that the medical centre will be used by four consultant surgeons, however it is intended that only two of the surgeons will work from the centre at any one time. I was advised that each of the doctors have a posting at the Royal Children's Hospital which require them to be on call one week in six, exclusively for the Hospital. Proximity to the hospital is therefore a significant factor in the choice of location for the centre, however it was emphasised that the proposal is for a private medical centre, is not related in any way with the Hospital and does not constitute an expansion of the Hospital into a residential area.

4. The provision of four rooms within the centre is required to provide the opportunity for privacy for both patients and doctors. Each surgeon will use two rooms while they are working from the centre. A schedule of the four surgeons timetables were submitted to the Tribunal during the hearing.

5. An X - ray facility is proposed to be incorporated within the centre, with a radiologist attending as required. It is not proposed to provide private radiology services from the centre.

6. The proposed hours of operation are 9.00 am to 6.00 pm Monday to Saturday.

7. The review site is located on the north side of Chapman Street, North Melbourne, east of the intersection of Abbotsford and Chapman Streets. Mr Biacsi, a town planner who was called to give evidence on behalf of the applicant for review, provided the following description of the review site and of the land use and development pattern of the surrounding area, which I adopt;

"The site is regular in shape with a frontage of 12.69 metres to Chapman Street, a depth of 50.29 metres and a total site area of 638.18 square metres. There is a gradual fall in the land from the rear to the front (Chapman Street frontage) of approximately 3.5 metres.

The site is currently occupied by a single storey brick Victorian dwelling which is a derelict condition.

There is a driveway with a width of 2.7 metres positioned adjacent to the eastern boundary of the site that provides access to a single uncovered car parking space at the eastern side of the existing dwelling.

Landscaping in the front setback consist of mainly shrubs and lawn area with picket fence to the streetscape. The planting is, by no means significant, but provides a front garden theme that is complementary of nearby properties.

Some mature vegetation is located in the rear yard of the review site.

Land to the north (171 Flemington Road) is developed with an apartment complex comprising a twelve-storey residential building. South facing apartments have windows which allow for direct views into the rear yard of the review site.

This apartment building is setback approximately 15 metres from the shared boundary. The area between the building and the review site is used as a car parking area for the apartment complex.

Land to the east is developed with a car park associated with the apartment complex at (171 Flemington Road). Access to the car parking area is from Chapman Street and extends between 54-62 Chapman Street and subject site (64 Chapman Street). The asphalt of the car park is constructed to the shared boundary and there is no form of buffer zone between the review site and the car park.

Land to the west (66 Chapman Street) is developed with a double storey brick Victorian dwelling setback from the street frontage approximately 4.4 metres. The dwelling is setback from the shared boundary approximately 1.0 metres. There has recently been a single storey extension to the rear of the property along with brick building/storage area constructed on the rear boundary. The new extension has an outdoor entertaining area which is covered by a open pergola. There are two new east facing windows on this extension which face the subject site. These windows are not the main source of daylight to this room as the single storey extension to the rear of the dwelling has north facing glazed doors which open onto the outdoor living and private open space area.

There are three properties generally opposite the site on Chapman Street. These three properties are occupied by single storey, single fronted Victorian dwellings at No's. 71, 73 and 75 Chapman Street.

The surrounding area is characterised by a diversity of residential development, including single and two-storey Victorian terrace houses, community facilities, contemporary infill townhouses/units and twelve-storey apartment building (Royal Park Towers with associated car parking. Chapman Street is a double carriageway street with a landscaped centre median.

A variety of residential and non-residential uses exist in the surrounding area both along Chapman Street and Flemington Road in the vicinity of the site.

* Rydges Hotel - Corner of Chapman and Errol Street;

* Heatherlea House (Counselling Centre) at No. 34 Chapman Street;

* Uncle Bob's Child care and development centre at No.54-62 Chapman Street; and

* Chapman Gardens YHA Hostel at No. 76 Chapman Street.

* St Vincent De Paul - Oznam House and Bailey House; and

* Education centre - Royal Children's Hospital."

8. The review site is zoned Residential 1 under the Melbourne Planning Scheme. The purpose of the zones is, in addition to implementing the State and Local Planning Policy Frameworks;

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

To encourage residential development that respects the neighbourhood character.

In appropriate locations, to allow educational, recreational, religious community and a limited number of other non - residential uses to serve the local community needs.

9. A permit is required to use land for the purpose of a medical centre in the zone. A permit is also required to construct a building and to carry out works for a section 2, permit required use.

10. The site is also affected by a Heritage Overlay (HO3). A permit is required under the overlay to construct a building and to carry out works. In considering an application, the responsible authority must consider the following relevant decision guidelines under clause 43.01 - 5:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

* Any applicable heritage study and any applicable conservation policy.

* Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.

* Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

* Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.

* Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

11. The building on the review site is graded C and is located within a level 3 streetscape under the relevant Conservation Study.

12. Clause 52.06 sets the requirement for the provision of car parking. Under the table to clause 52.06 - 6, a medical centre attracts a requirement for the provision of 5 parking spaces to each practitioner.

13. There is a wide range of policies within the planning scheme which are applicable to the consideration of this application. These polices are contained in the following clauses;

* Clause 22.05 Heritage Places Outside the Capital City Zone.

* Clause 22.14 Discretionary Uses in Residential Areas.

14. In broad terms the applicable policy framework recognises that non residential uses which service a local community need are appropriately located in residential areas, provided that the amenity and character of those areas are protected. Similarly, heritage polices seek to ensure that external alterations to buildings make a positive contribution to the built form and amenity of an area and are respectful to the architectural or historic character of the streetscape and the area generally. Both Mr Milner and Mr Biacsi provided a comprehensive assessment of the application against the relevant policy framework, and I will return to a consideration of the policy issues subsequently.

Council consideration and the Application for Review

15. The application was received by the Council July, 2002, and notice of the application was required to be given. Twelve objections to the application were received by the Council.

16. I was advised that the application was the subject of internal referral to the council's heritage adviser whose primary concerns had been addressed by the applicant through the submission of amended plans through the application process. The application was also subject to an assessment by an independent traffic consultant who concluded that sufficient car parking is proposed to be provided to accommodate the use and that traffic generated by the site would have a minimal impact on Chapman Street.

17. The application was refused by the Council on the following grounds;

1. The introduction of the proposed use into a predominantly residential area would have a detrimental impact on the amenities (sic) and environment of nearby residential properties.

2. The use is contrary to the Residential 1 zone and Local Policy 22.14 (Discretionary Uses in Residential Areas).

18. The permit applicants subsequently commenced an Application for Review citing the following grounds;

"(i) The proposed use of the land will not adversely affect the residential amenity of the area.

(ii) The proposed use is consistent with the Local Planning Policy concerning Discretionary Uses in Residential Areas (Clause 22.14 of the Melbourne Planning Scheme). In particular, the proposed use is compatible with the residential character and amenity of the surrounding area, and will serve the needs of the community, including the local community.

(iii) The proposed use is located in an area which is highly accessible to public and private transport.

(iv) The car parking spaces to be provided in association with the proposed use will satisfy the anticipated peak parking demand and comply with the requirements of the Planning Scheme.

(v) Traffic generated by the proposed use will have a minimal impact upon Chapman Street.

(vi) The proposed development satisfies the purposes and objectives of the Heritage Overlay 3 affecting the land and is consistent with the provisions of Clause 22.05 (Heritage Places Outside the Capital City Zone) of the Melbourne Planning Scheme.

(vii) The proposed development will not result in an unreasonable impact upon the amenity of the adjoining properties or the streetscape.

(viii) The proposed use promotes State Planning Policy with respect to the provision of health facilities (Clause 18.06)."

19. At the review hearing, all parties tabled and read from written submissions and supplemented these with oral submissions.

20. Mr Townsend called Mr R Milner, town planner of Coomes Consulting, to give evidence. Mr Milner presented a written report and gave oral evidence and was made available for cross examination.

21. Ms Quigley called Mr A Biacsi, town planner of Contour Consultants, Mr S Hunt, traffic engineer of Grogan Richards Consulting Engineers, Mr R Dickens, orthopaedic surgeon, and Dr I Torode, orthopaedic surgeon and one of the applicants for review, to give evidence. Each witness presented a written report and gave oral evidence and was made available for cross examination.

22. Various plans, photographs and other documents were tendered, either as attachments to written submissions and reports, or as separate items. The evidence submitted in documentary form, together with the written submissions have been retained on the Tribunal's file.

23. I inspected the review site and its locality, unaccompanied by the parties, after the hearing.

24. At the commencement of the hearing Mr Townsend advised that the Council would not be pursuing the first ground of refusal, which relates to the impact of the use on the amenity of the area. Mr Townsend further advised that the Council was satisfied that the proposal adequately resolves the traffic, parking and heritage issues associated with the application.

25. It was the Council's submission however that the proposal does not achieve acceptable outcomes having regard to the applicable policy framework, in particular clause 22.14, and the purpose of the zone, because it involves the loss of a residential use and because it is a use which is intended to serve a wide rather than a local community need.

26. Mr Townsend relied on the evidence of Mr Milner in support of his submission. It was Mr Milner's evidence that the policy framework emphasised the desirability of retaining housing stock and population in residential zones, providing services to meet local needs and enabling projects that protect medical needs of genuine state significance. It was Mr Milner's assessment that against this policy background, the proposal is inappropriately located in Chapman Street, is inconsistent with the pattern of medical based uses in the locality and that there are more suitable locations in mixed use zones or in residential zones closer to the hospital than the review site.

27. The objectors generally supported the Council's submission with respect to the issues of the loss of residential use and lack of policy support. Alternative sites were also identified by the objectors as being superior to the review site for the proposal. The objectors however, further submitted that the proposed extensions and alterations to the building are not acceptable from a heritage perspective and do not comply with clause 22.05. Concerns were also expressed about the impact of increased traffic in Chapman Street and in particular the impact of increased on street parking. Ms Jack, whose family resides at 66 Chapman Street adjoining the review site, raised a number of amenity concerns associated with the disturbance (noise and fumes) emanating from the car park, the loss of on street parking, the scale of the double storey extension and the loss of vegetation from the site. Objectors were also concerned that the grant of a permit would establish a precedent for further, similar uses in Chapman Street leading to a conversion of the street from residential to a medical precinct associated with the Childrens Hospital.

28. I think the principal issues in this matter concern the questions about whether the proposal is appropriately located and whether it achieves an acceptable outcome having regard to the applicable policy framework.

29. Prior to dealing with these issues it is appropriate that I record my findings with respect to the other matters raised during the hearing. These are as follows;

* Adequate car parking is proposed to be provided on the site and the additional traffic generated by the use will be relatively low and capable of being absorbed within the street network with minimal disruption. The provision of ten car parking spaces meets the requirements of clause 52.06 of the planning scheme, and I accept Mr Hunt's evidence based on empirical research that the proposed use will generate a peak parking demand of nine spaces when two surgeons are consulting concurrently. On occasions when appointment overruns may occur there is sufficient capacity in the on street parking availability to accommodate these occurrences. While I acknowledge that two of the parking spaces will be blocked by vehicles parking behind them, I consider this to be acceptable given that these spaces will be designated for staff use and will not be subject to regular turnover. There will also be occasions when vehicles parked in two of the spaces along the rear boundary will not be able to exit the site in a forward direction due to other vehicles parked along the western boundary, but these occasions will be relatively rare and I do not regard this as a fatal flaw to the application.

* The proposed extensions and alterations to the building meet the relevant tests under clause 22.05 for a C graded building in a level 3 streetscape. The proposal provides for the restoration and reuse of a graded heritage building and makes a positive contribution toward the achievement of the heritage policies of the planning scheme.

* The scale and intensity of the proposed use (limited to two surgeons working concurrently and limited to hours of 8.00 am to 6.00 pm) is such that the use is unlikely to lead to amenity impacts which could be regarded as unacceptable. I think it is important to distinguish between this proposal and larger medical centres which have emerged over recent years which provide for extended trading hours and large numbers of doctors working concurrently. These medical centres are capable of giving rise to adverse amenity impacts by virtue of the volumes of traffic generated and the demand for car parking, together with the extended operating hours, but this proposal does not fall within that category of use and from an amenity perspective, I think the proposal is appropriately located in a residential area.

* I agree with Mr Biasci's evidence that the impact of the proposed extensions in terms of the visual bulk, privacy, and daylight are acceptable. The interface between the car park and the open space on the neighbouring property is capable of being appropriately treated with fencing and landscaping to minimise off site affects.

* The character of this neighbourhood can appropriately be described as mixed in both built form and land use terms. There are a number of non residential uses and higher density residential uses in Chapman Street in the general vicinity of the review site including the Rydges Hotel (corner Chapman and Errol Street, the Heatherlea House counselling centre at 34 Chapman Street, a child care centre at 54 - 62 Chapman Street, and a YHA hostel at 76 Chapman Street. I agree with Mr Biasci's assessment of the neighbourhood that it is "....reflective of a diversity of built form, land use and interface conditions. The area is not one which could be said to be a pristine residential area and a specialist medical centre will not be out of place in this context....."

30. Turning now to the policy issues, clause 22.14 is the relevant local policy against which the application needs to be assessed. It is significant that the policy recognises that non residential uses are capable of being compatible with the amenity and character of residential areas, and that uses which are not compatible having regard to their amenity impacts, are discouraged. There is a strong emphasis in the policy on the protection of the amenity and character of established residential areas. The objectives of the policy are as follows;

* To facilitate non-residential uses which are compatible with the residential character and amenity of neighbourhoods and serve the needs of the local community.

* To encourage the re-use of purpose-built non-residential buildings for a mix of residential, local convenience and retail uses.

* To facilitate the establishment of home occupation uses where the neighbourhood amenity will not be adversely affected.

31. In assessing an application, the policy requires consideration of the following factors;

* The loss of an existing residential use should be avoided.

o Significant changes to traffic conditions in local streets including an increase in car parking demand.

o Disturbance associated with the hours of operation.

* The use should benefit and convenience the local resident and working community.

* The re-use of buildings originally built for non-residential purposes will be encouraged and facilitated.

* Home occupation will be encouraged where it can be demonstrated that the amenity of the neighbourhood will not be adversely affected.

* Residential buildings should have clear and workable management arrangements for their operation to the satisfaction of the responsible authority.

32. Having regard to my findings as outlined above, it follows that I am satisfied the proposal achieves outcomes which are consistent with those sought to be achieved by clause 22.14 with respect to amenity, car parking and traffic issues. The remaining issues relate to the loss of residential use and the requirement that the use serve a local need.

33. I do not regard the fact that the proposal will result in the loss of one residential use as a significant impediment to the grant of a permit. Nor do I think that the existence of policies in support of urban consolidation objectives is sufficient to sustain a refusal of an application for a non residential use which may otherwise be appropriate. I regard the loss of one residential use as an insignificant factor in the context of the population forecasts for the City of Melbourne presented to me during the hearing by Ms Quigley. These forecasts show that the population of the City has grown from 20,521 in 1992 to a current population of 52,117 and that the population is forecast to increase to 109,606 by 2016. The number of dwellings in the City is also forecast to almost double from 27,217 to 59,810 by 2016.

34. With respect to the issue of local need, it was Mr Townsend's submission that the onus rested with the applicant to demonstrate by way of the submission of evidence, that the proposal does service local needs, and that in the absence of such evidence I am entitled to form the view that the use does not serve local needs. It was Mr Townsend's submission that the proposal would therefore fail to satisfy the relevant purpose of the zone and the objectives of the local policy and should be refused.

35. The issue of local need is one which has been the subject of consideration by this Tribunal and its predecessor tribunals, over a long period of time. Mr Townsend conceded that the Tribunal had consistently held that non residential uses often serve a wider catchment than the immediate neighbourhood but that the fulfilment of a local need test under the planning scheme does not require that every patient or every patron of such a use must reside within an area which could be defined as local.

36. The combination of the zone purpose for the Residential 1 zone and the local policy at clause 22.14 establish that the issue of local need is a relevant factor in determining whether a not a proposed non residential use is appropriately located in a residential area. The degree to which this is a relevant consideration however, will vary depending on the circumstances of each individual case. I can, for example, envisage circumstances in which greater or lesser weight would be given to this factor depending on a proposal's location within the residential area, the character of that area and the pattern of surrounding land uses, and also depending on the nature of the use itself.

37. The proposed use in this case is not one which is intended to serve exclusively local needs. The surgeons who are intending to occupy the medical centre provide both private and public, specialist health services and the residential origin of their patients is not confined to any particular location. Notwithstanding this, Dr Torode did provide information to me which indicates that some of the patients of each of the doctors intending to work from these premises, do reside in suburbs which could be broadly termed "local". While I acknowledge that the information provided by Dr Torode fell short of what might be termed a comprehensive analysis of the residential origin of the doctor's patients, it was information that was not disputed by the other parties and I have no reason to question its authenticity. On the basis of that information I am satisfied that while the proposed medical centre will serve a catchment wider than the local neighbourhood it will also serve a local need. In the circumstances of this case, and having regard to the scale and intensity of the proposed use, I do not think that it is necessary for the applicant to demonstrate that a certain proportion of patients originate from a local area in order to satisfy this test of the planning scheme.

38. I was referred to a decision of the Administrative Appeals Tribunal (Appeal No. P87/1923) which upheld a refusal by the Council of an application by the Royal Children's Hospital to establish an education unit as part of the hospital's Adolescent Medicine Department, on the site at 50 Chapman Street. I agree with Ms Quigley that that case is distinguishable from the application currently before me on the basis the earlier application was refused primarily because the Tribunal viewed the proposal as an ad hoc expansion of the hospital into a residential area. The current application is for a use which is not associated with the hospital and I do not think that the concerns which the Tribunal had in the earlier case about the expansion of the hospital, arise in the current case.

39. At the conclusion of the hearing I provided the parties with the opportunity to comment on draft permit conditions provided by the Council. I received submissions from a number of parties but it is not necessary for me to detail the nature of those submissions. The conditions I have imposed follow logically from my findings as outlined above. I will comment however on the following specific matters;

* The condition limiting the total number of staff on the site at any one time to five, including practitioners, is based upon an acceptance of the traffic and car parking evidence and the empirical research upon which that evidence was based. I refer specifically to page 10 of that evidence where an explanation of the empirical research is provided and where it is stated that;

It is understood that not more than two surgeons hold consulting sessions at the subject site, at any one time. With two support staff and, at times a radiographer also on site, up to 5 "staff" members may be present at the site concurrently.

* I do not consider it necessary to impose a condition requiring a schedule of practitioners or a registry of appointments, as proposed by the Council. The conditions I have imposed including a restriction on the number of staff including practitioners, consultation by appointment only, and a limitation to specialist medical practice only, is sufficient to control the use. I also agree with Ms Quigley that the requirement for a schedule and a registry goes beyond a reasonable imposition of permit conditions and adds an unnecessary layer of control.

40. At the conclusion of the hearing Ms Quigley and Mr Townsend made application to the Tribunal for an indemnity certificate under the Appeal Costs Act 1998, in respect of their costs associated with the hearing in April 2003, which was adjourned at the direction of the Tribunal on the day of the hearing.

41. The basis of the application was outlined for me by Ms Quigley. This case was originally set down for a one day hearing in April, 2003. At the commencement of the hearing, the Member adjourned the hearing to a date in July, 2003 and set side three days for that hearing. The adjournment was facilitated on the basis that the hearing was unlikely to be concluded in the one day originally scheduled. Ms Quigley relied on s. 10 of the Appeal Costs Act 1998 which states that;

(a) the hearing of any civil proceeding is discontinued; and

(b) the reason for the discontinuance was not attributable in any way to the act, neglect or fault of any of the parties to that proceeding or their legal practitioners; and

a party to that proceeding may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of the party's own costs of the discontinued proceeding.

(2) The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that the reason for the discontinuance was as set out in sub-section (1)(b).

(3) A party granted an indemnity certificate under sub-section (1) who pays, or is ordered to pay, any additional costs as a consequence of the order for a new trial is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the discontinued proceeding that the Board considers to have been reasonably incurred.

42. I am not prepared to grant an indemnity certificate under the Appeal Costs Act in this matter. The case had originally been set down for a one day hearing and, as subsequent events proved, this would not have been sufficient to complete the case. The original listing of the case for one day was made by the Tribunal on the basis of the information it had available to it at the time, which is in effect the material required to be supplied by the Council in accordance with the Tribunal's Practice Note No. 2. At that point in the process, there was no indication as to what evidence if any, was to be called and by whom. I note that in the Practice Note material provided by the Council, an estimate of 1.5 days was stated as being required to hear the case.

43. The parties were advised in January, 2003, that the matter had been set down for a one day hearing in April, 2003. At some stage prior to the April hearing, I would have expected that both the Council and the Applicant for Review would have become aware that the scheduled one day hearing was unlikely to be sufficient, especially given that the Council was intending to call one witness and the Applicant for Review four witnesses.

44. In the event that the time scheduled for a hearing is inadequate, there is a responsibility on the parties to advise the Tribunal accordingly. Clause 4.1 (b) of the Practice Note Planning and Environment List (No.1) - General Procedures, relates to the estimate of the duration of hearings and states that if a party becomes aware;

After receipt of a hearing notice, that it may take more than the time allowed, - that party must immediately give written notice to all other parties and the Tribunal of that party's estimate of the duration of the hearing.

45. None of the parties advised the Tribunal that more time would be likely to be required to hear the case

46. While the original listing of the case may have been optimistic in terms of the assessment of time needed to hear the case, the Tribunal was not at that time aware that both the Council and the Applicant for Review were intending to call a total of five witnesses. Once the parties became aware that five witnesses were being called, it is my view that it would have become very apparent that a one day hearing would not be sufficient, and the Tribunal should have been advised accordingly so that alternative arrangements could have been made.

47. In these circumstances, I am not satisfied that the tests as set out in sub-section (1)(b) of the Appeal Costs Act 1998 have been satisfied.

48. It follows from the above that the decision of the responsible authority is set aside and it is directed that a permit issue in accordance with the attached