[3] Both matters came on for hearing before us on 7 December 1998. At that stage Mr Hampton's representative, Mr Bowden of Bowden Verhoeven, sought to rely upon a further variation of the proposed plans. Mr Liversidge of Counsel who represents objectors Judge & Mrs Campbell opposed this course. Following discussions during a stand-down of the hearing, Mr Bowden consented to or perhaps did not oppose, a set of directions which we gave for the re-advertising of the proposal based upon the revised plans. We adjourned the matter part heard. It came on for hearing six months to the day thereafter. In accordance with directions which we gave, the Responsible Authority re-considered the proposal upon the basis of the plans which Mr Hampton sought to rely upon at the December 1998 hearing which might be described as "Mark 3". This time the matter was referred to a standing committee of Council, rather than being dealt with by delegation. After lengthy debate and after consideration of a number of motions proposed and lost, the Committee determined that the permit application should be refused. We adjourned the matter part heard. It came on for hearing six months to the day thereafter.

[4] Approximately three weeks prior to the adjourned hearing date Mr Hampton's consultant had given notice of yet a further amended set of plans upon which Mr Hampton sought to rely. The result then was that at the adjourned hearing we were asked to consider what might be described as "Mark 4". Once again Mr Liversidge opposed our taking this course as did Mr Martin who represents the objectors Mr & Mrs Greenham. For reasons which we then gave, we overruled the objections and ordered that Mr Hampton's proposal be amended so as to be based upon a set of plans dated 11 May 1999.

[5] At the outset of the adjourned hearing we made an order that Mr Sagar who had recently purchased the property at No. 60 Patterson Street, Middle Park be joined as a party to the proceeding.

[6] When we gave leave in this proceeding for Mr Hampton to rely upon the "Mark 4" plans, Mr Bowden sought and was granted leave to withdraw Application No. 1998/054484 which was the application to review the condition contained in Council's Notice of Determination to Grant made by delegation.

[7] The present proposal once again entails three units, two of which front Patterson Street and the third fronting Ashworth Street. The two front units are to be of two storeys. The rear unit is to be three storeys; the third storey being a "loft". The open space allocation for Unit 3 is to be by way of a balcony of some 18sq m surrounded by a wall to 1.6m. Parking for the units is to be provided by three tandem parking garages with access direct to Ashworth Street. It is the location of these garages at the Ashworth Street frontage which requires Unit 3 to rise to an attic level rather than being a simple two storey structure like the front units.

[8] Middle Park is a seaside suburb. Beaconsfield Parade constitutes the "Esplanade" fronting Hobsons Bay which is to the south-west. Ashworth Street which is in the form of a cobbled laneway, is the first street inland. It is some 6m wide and approximately twice the width of a traditional inner-suburban laneway. Patterson Street is the next street inland. No. 58 is on the south-western side of Patterson Street, two properties east of the intersection of Patterson Street and Langridge Street. Mr Sagar's residence at No. 60 abuts No. 58 on the south-east side. The next property to the south-east No. 62, is occupied by Judge and Mrs Campbell. Mr Greenham occupies one of two units on a property at No. 51 Langridge Street which is situated at the corner of Langridge Street and Ashworth Street. The rear of No. 51 Langridge Street directly abuts the rearmost part of the north-west boundary of No. 58.

[9] The site is approximately 475sq m and zoned Residential 1 under the Port Phillip Planning Scheme. This is one of the "new format" schemes which came into force in October 1998, that is, after the initial Notice of Decision to Grant and after this proceeding was commenced. Nevertheless, in accordance with Section 26 of the Planning and Environment (Planning Schemes) Act 1996 it must be determined in accordance with the "new format" scheme which is now in force. Under Clause 32.01-4 a permit is required to construct two or more dwellings on a lot. This clause requires the Responsible Authority and hence this Tribunal to consider amongst other things the Good Design Guide for Medium Density Housing Revision. The site is also subject to Heritage Overlay controls under Clause 43.01 and a permit is required to demolish or construct a building and carry out works. The site is contained within Area HO3. A study known as the "Port Phillip Heritage Review" has recently been carried out and its recommendations embodied under Amendment C5 to the Planning Scheme which was introduced into the Planning Scheme by Amendment C7 on 31st December 1998. The house at No. 58 is categorised under that review as a "significant heritage place" grade C. The same designation of "significant heritage place" is applied to Nos. 54, 58, 60, 62 and 64. No. 56 has been graded as a "contributory heritage place". All of those properties are within the Heritage Overlay area. Pursuant to Amendment C5 the City of Port Phillip is also divided into various neighbourhoods with a local policy ascribed to each. The site is in the South Melbourne/Albert Park/Middle Park Neighbourhood Area No. 1 described as: "the established residential areas of South Melbourne, Albert Park and Middle Park".

[10] Mr Liversidge on behalf of Judge and Mrs Campbell, conceded that the proposal broadly met "some of the techniques of the Good Design Guide", he submitted nevertheless that clearly fundamental and major objectives are not met, for example the concept of the new development being "respectful of its neighbourhood" Mr Liversidge relied on evidence from Mr D. Bick, an architectural historian and conservation architect. He gave evidence and was cross-examined, and in his statement, said that:

"The proposed new building is very different to the adjacent buildings in exterior design and detailing, as well as being two storeyed, and this will cause it to break-up this row of buildings from the one period, and stand out in a negative sense."

[11] Mr Bick queried the necessity for demolition of the existing house. Mr Liversidge also referred to handwritten notes from Council's Heritage Consultant with respect to one of the earlier versions of the proposal where he stated "does not work in this landscape - more demonstration required to prove otherwise". The consultant also stated:

"In general I am against the demolition of graded buildings. If a building is to be demolished its replacement should be a strong contributor to the character of the landscape."

"The present development fails to satisfy the Planning Scheme or the Good Design Guide in terms of heritage and design issues, in relation to streetscape or relation to appropriate bulk or development of the site"

[13] According to Mr Liversidge the development would adversely affect local amenity in that it would "hang" over the backyards for a number of residences facing Beaconsfield Parade and in general that the bulk of the development would be "oppressive and overbearing". He produced and relied upon a number of photographs in which artists' impressions of the development had been superimposed on photographs of existing front and rear gardens abutting the site. He referred to and relied upon the evidence of a town planner, Mr Patterson, to the effect that the access and configuration of the tandem car parks was unsatisfactory and too narrow. This would lead to residents not using these car parking spaces therefore creating on-street car parking difficulties.

[14] According to Mr Liversidge, confining private open space to an 18sq m balcony for Unit 3, screened by a 1.6m wall, would not provide either proper protection against overlooking for the neighbours nor a satisfactory open space area for the residents of this unit. He submitted the brick wall on the boundary of a deck area at No. 60 would "oppress that area and reduce access to sunlight and daylighting generally to an unacceptable degree". In general he submitted that the proposal constituted an overdevelopment.

[15] Mr Sagar speaking for himself and his wife Kate, generally echoed Mr Liversidge's submissions. He is particularly critical of the proposal for elevated private open space in Unit 3 and the boundary wall opposite an existing outdoor living space in his residence was also of particular concern.

[16] Mr Martin, Solicitor, represented Mr & Mrs Greenham. Their open space is a courtyard abutting the rearward part of the south-western boundary of the site. According to Mr Martin:

"I have visited this courtyard and it is a sunny area with lots of wall plants that clearly is essential to the amenity/enjoyment of the property by my clients. The courtyard measures roughly 6 x 4.6m in size."

[17] Mr Martin submitted that the proposal entailed an overdevelopment and further, that there would be a brick wall along the side boundary adjacent to the Greenham property which would raise the level of the boundary fence some 1.7m which would create an unduly "boxed in" feeling in the Greenhams' courtyard. Mr Martin attacked the submission made on behalf of Mr Hampton that the new boundary wall would raise the wall/fence level of the Greenham courtyard only 0.8m. This was true he said, if one regarded the lattice work which tops the fence as part of the fence. In Mr Martin's submission this was incorrect. Mr Martin also submitted that the construction of Unit 3 would lead to a loss of privacy in the Greenhams' courtyard and would be damaging to the streetscape. He also submitted that the proposed parking arrangements would create traffic problems and that the elevated balcony open space for Unit 3 would cause noise and adverse amenity problems. He submitted that amenity levels for the occupants of Unit 3 would be unsatisfactory.

[18] Mr Bowden did not call any evidence in support of his submissions but tabled and relied upon copious documentary material and reports. First, he said that demolition of the existing house was manifestly justified. He noted the determined efforts at restoration which Mr Hampton had undertaken over the years. He referred to photographs graphically showing the sad state of the house in 1987 and the relatively impressive appearance which it now bears both internally and externally. Nevertheless, he said that the internal photographs demonstrated serious structural distortions with doors not opening, windows not excluding drafts and so forth. He tabled a report prepared for his client by Mr Simon Dixon, Entomologist of Exopest Australia Pty Ltd stating:

"Major structural termite damage was found in the sub-floor of the home.

Numerous floor joists and bearers are totally eaten out by termites and only a honeycomb shell remains.

Termite damage floor joists, bearers and flooring were found in all sections of the sub-floor, however the heaviest damage is in the central and front areas of the home. We recommend a structural engineer be consulted."

He also tabled a report from Mr Allan Lorenzini of AA & AS Lorenzini Pty Ltd, Building Surveyors, Building Consultants and Sub-division Specialists. Mr Lorenzini had been asked to report on "the feasibility of refurbishing the buildings given their current state of disrepair". According to Mr Lorenzini, Clause 5.7(3) of the 1994 Building Regulations required the building to be brought into conformity with the current regulations because alterations representing "more than half the original volume of the building" were being carried out. He said the house "has considerable amount of termite and dry rot infestation to it". The house "needs to be re-stumped because of the amount of rot that has occurred". Floors "have sagged some 75mm in local areas from chimneys and across passageways". In the result, the house would also have to be re-plastered "because it would be impossible to re-level a building to the extent that this one is required to be done without there being a significant amount of damage to the plaster wall, particularly given that this house contains lathe and plaster walls and ceilings". A new roof would have to be fitted and new wiring and plumbing would have to be effected. Mr Bowden said that ultimately the criticisms of Mr Bick were non-specific except in so far as he was critical of the balustrades at the front of the building and the use of bagged cement finish for one of the walls rather than face brick or proper rendering. These matters he submitted could be dealt with by the addition of permit conditions should we be concerned as to these matters.

[19] More generally he rejected the suggestion that a two storey development must be regarded as inappropriate on this site. He produced a photograph of a two storey development in what he submitted was a similar street, namely McGregor Street. The two storey re-development according to Mr Bowden, won an urban design award. Mr Bowden produced a report from Mr Anthony Styant-Browne, Architect Pty Ltd, approving the urban design of this proposed development. He said the criticisms of the rear unit were generally without justification. He drew attention to the large number of multi-storey hard-edged developments already directly abutting Ashworth Street including one on Judge Campbell's property at No. 62. In those circumstances he said the development at No. 58 was harmonious and respectful of its neighbours in Ashworth Street.

[20] He rejected Mr Patterson's evidence as to difficulties of using the three tandem garages. He conceded that the garage doors and arrangements were less generous than is provided for in the Good Design Guide. Nevertheless he submitted that they were quite practical and accorded with the garaging arrangements used by many residents of the Melbourne metropolitan area. He said that problems of narrowness could be dealt with by car owners parking their cars close to the left hand wall of the garage leaving room for comfortable entry and exit from the driver's door on the right. Passengers could board and alight the car before it entered the garage or after it backed out.

[21] He said Mr Sagar's concerns as to an overbearing wall adjacent to his semi-outdoor "deck" area at the boundary of No. 60 could be met by a 1m setback which was agreed to by Mr Patterson, the Campbell's town planning expert, as being a satisfactory treatment. This setback would require moving the wall of the relevant unit some distance to compensate for the loss of internal area caused by the setback.

[22] Mr Bowden produced photographs to demonstrate that the latticework topping the fence of the Greenhams' courtyard was opaque and in effect the opaque wall or fence abutting that courtyard would only be raised some 0.8m and not the 1.7m contended by the Greenhams.

[23] Mr Bowden drew attention to the fact that according to the Campbell's town planner, Mr Pattterson, the rearrangements of the third level of Unit 3 created a satisfactory treatment of the frontage to Ashworth Street.

[24] Mr Bowden said that Unit 3 would likely be occupied by a small family and the suggestions of excessive and intrusive use of the terrace open space were without foundation. Mr Bowden attacked the reliability of the "artist's impressions" produced by the objectors. He produced a set of views drawn by Mr Brodie which he said demonstrated that the proposed units would not create an oppressive or overbearing vista from the open space areas of nearby houses.

[25] More generally, Mr Bowden submitted that since the Tribunal was an expert Tribunal, we were at liberty to make our own judgment on all these matters and if we felt in need of further expert evidence we had the authority to call our own witnesses.

[26] Mr Mitchell on behalf of the City of Port Phillip said that the Council accepted the officer's assessment that this property was structurally unsound and therefore can be demolished. Accordingly, a permit to demolish should be forthcoming. It nevertheless opposed the grant of a permit to re-develop in accordance with the present proposal. In Council's view the proposal amounted to an overdevelopment. Some 54% of the south-eastern boundary consisted of walls rather than 50% suggested by E6.T3 of the Good Design Guide. The walls on both the north-west and south-east boundaries exceeded the 3.6m suggested by E6.T4 of the Good Design Guide. On the north-west boundary "there is also a 7.5m length of wall at first floor level to a height of 5.8m" to accommodate a stairwell. The highest point of Dwelling 3 is 8.6m. Council

"acknowledged that the height is comparable to the highest point of the property to the west (No. 51 Langridge Street), it is still substantially higher than the property at No. 60 Patterson Street. It is conceded that the presentation of the Ashworth Street elevation has been improved by the introduction of an attic style third level. Nevertheless it is submitted that the third level of Dwelling 3 as last sought to be modified was still inappropriate, having regard to the prevailing building scale and height in the immediate locality."

The pitched roof which had been artificially cut "simply to ensure that at its highest point it would not exceed the roof pitch of the property at 51 Langridge Street" was in Mr Mitchell's submission "contrived" and related to none of the roofs in the immediate vicinity. According to Mr Mitchell the Patterson Street elevation

"Also exhibits a building height that does not sit comfortably with either of its existing neighbours. The flat façade that it presents to the street even though it is behind a balcony, is in stark contrast to the recessive appearance of both the properties at 56 and 60 Patterson Street. The hard-edged appearance of the front façade of the proposed development even with the latest changes does not sit comfortably with the built form on either side."

Mr Mitchell also referred to the City of Port Phillip Design Manual referred to in Amendment C5 to the Scheme which in its provisions as to new house and addition guidelines states a preference for private open space at ground level.

[27] We generally agree with the criticisms of the treatment of the Patterson Street frontage in light of the heritage overlay affecting the site and the grading of surrounding buildings. The property has been appropriately aligned with existing buildings but not precisely. Without suggesting that no two storey elevation could be proposed which would be "respectful" of the heritage values in this group of dwellings, we regard the two storey configuration as a particular problem. Moreover, the twin gable treatment and upper level front balconies in this proposal do not appear to relate to any of the adjacent buildings.

[28] We accept that there are a large number of multi-storey "hard-edged" buildings abutting Ashworth Street in properties fronting both Patterson Street and Beaconsfield Parade. We had no exhaustive evidence as to the uses to which these were put. It was suggested that some were "granny flats", others were "studios". Even accepting the concession that the revision of the roof line of Unit 3 creates an acceptable elevation to Ashworth Street, the fact that the expedient of a loft or attic room has to be resorted to, flowing from the location of the parking garages at ground floor level, is to our mind supportive of the contentions made by both the Responsible Authority and the objectors that this proposal is an overdevelopment. We accept Mr Bowden's contentions that the garaging arrangements are workable, nevertheless, their workability represents an expedient, not satisfactory design. Mr Bowden's concession that they do not meet the standards suggested by the Good Design Guide confirms us in this view. We accept that residents of the units will probably find it more convenient to use on-street parking, given the "tightness" of these garages.

[29] We believe there is considerable force in the criticism of the elevated terrace being the sole open space for Unit 3. This is not a satisfactory arrangement either for the inhabitants of the proposed unit nor for the neighbours. It creates problems of overlooking and potential problems of noise created by matters as simple as the likelihood that residents of Unit 3 would leave the French doors accessing the terrace open to give some feeling of space, leading to the escape of noise from radios, televisions and stereos playing within the unit. This treatment of the open space requirement for Unit 3 smacks of an expedient, once again supporting the view that this proposal entails an overdevelopment of the site. It is for reasons such as this that we imagine that Council's local policy suggests provision of open space at ground level.

[30] It follows that we should direct that no permit issue with respect to this proposal for use and development.

[31] This then brings us to the application for demolition. The case put by the proponent Mr Hampton and accepted by the Responsible Authority is that inspection by Council officers and by Mr Hampton's own experts has shown that the house is "structurally unsound [and] cannot feasibly be re-used ...". This would provide a justification for demolishing a house designated under the Scheme as a "contributory heritage place" see Clause 23.03-2 of the Scheme. However in the case of significant heritage places, local policy as embodied in the Scheme requires that they "should be conserved". This means that even if we accept the material placed before us by Mr Bowden, it is far from clear that it would be proper to direct the issue of a permit for the demolition. In any event we are far from satisfied by the material placed before us. As Mr Liversidge correctly observed none of the expert reports relied upon by Mr Bowden was supported by the presence of the expert for cross-examination. Mr Bowden somewhat airily suggested that we ought to consider obtaining our own expert evidence on this subject. This suggestion appears to proceed from the sometimes expressed view that this Tribunal and its predecessor, the Administrative Appeals Tribunal had an inquisitorial rather than a purely adversary function, that is, that the Tribunal has an obligation to go out and make its own enquiries in the quest for the correct or preferable decision rather than merely determining matters upon the basis of the evidence placed before it by the parties (the latter being the traditional adversary function exercised by courts in the common law world). We reject this submission.

[32] The suggested inquisitorial function of the General Division of the Administrative Appeals Tribunal was enthusiastically embraced by Eames J. in Bausch v Transport Accident Commission (1996) 11 VAR 116 and not specifically repudiated by the Court of Appeal in dismissing an appeal from His Honour's decision. See [1998] 4 VR 249. It was never enthusiastically embraced by the Tribunal itself. Compare for instance Wilson v Transport Accident Commission (1997) 12 VAR 252, 263-5. Even accepting that there may be circumstances in which the Tribunal does have an inquisitorial function, the circumstances of this proceeding indicate to our minds that it was incumbent upon Mr Hampton to bring forward such evidence as he wished to rely upon to support his case. The procedural history narrated shows that this matter has been pending in one form or another for more than two years. Contrary to the usual media commentary, these delays are in no way attributable to this Tribunal. They have resulted from the repeated reformulation of the applicant's proposal. Mr Bowden said it was unfair to criticise his client for doing this. The reformulations merely amounted to continuing attempts on his client's part to meet the criticisms and objections pressed against his proposal. To a certain extent we would agree, although our findings suggest that by attempting to squeeze too much development on this site his client has contributed to the delays experienced in this matter. Nevertheless, we must also be conscious of the specific obligation placed upon us by Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 to deal with these matters as expeditiously as compliance with the Planning and Environment Act and the Rules of Procedural Fairness permit. Save in the most exceptional circumstances (cf R. v War Pensions Entitlement Appeal Tribunal exparte Bott (1933) 50 CLR 228) the parties have an entitlement in accordance with the Rules of Natural Justice to cross-examine any expert whose evidence is to form a key basis for a finding of fact City of Brighton v Selpam Pty Ltd [1987] VicRp 5; [1987] VR 54. If the Tribunal were now to commission its own building expert to examine the state of the existing house and to consider the feasibility of repair and refurbishment, there would be further delay entailed in the commissioning process, arrangements for examination and the preparation of the report. A further hearing would need to be appointed to enable the parties to consider the expert's report and cross-examine him or her. Against the background of the long history of this matter, we would regard such a process as unacceptable. If any party were to suggest that the Tribunal should commission its own reports, that suggestion should be made long before the final hearing. In the present case, Mr Bowden's suggestion was made after the conclusion of normal sitting hours in circumstances where we had agreed to sit late to complete this proceeding in one day at his request. In a more general sense, although Eames J. said in Bausch's case that there is no burden of proof in a Tribunal proceeding, it seems to us generally fair that a development proponent who seeks approval for a development, no doubt with a view ultimately to obtaining a profit from the transaction, should bear the responsibility of placing before the decision-maker any expert opinion upon which he relies.

[33] It follows that we propose considering this issue solely on the basis of what was placed before us. On that basis having regard to the diminished weight which expert evidence which cannot be tested by cross-examination must bear, we are not satisfied that the house at No. 58 is so structurally unsound that it is not feasible to repair and refurbish it.

[34] We direct that no permit issue either as to the use and development or as to the proposed demolition. The approach which we have adopted is consistent with the one taken recently by Mr Ball and Ms Monk in Lawonnue Pty Ltd v City of Port Phillip (1998/014394) in which they considered the same heritage overlay provisions in the Port Phillip Planning Scheme as those which govern this proceeding.

[35] The application for review of the conditions will be formally dismissed.