1. The application was not advertised and the question of whether the application should be advertised was not considered, according to Council records.

2. No referrals were made in respect of heritage advice despite the site being within a Heritage Overlay and being of heritage significance.

3. The proposal is not exempted from advertising requirements either under the provisions of the Business 1 Zone or the Heritage Overlay.

4. There was no officer report prepared in respect of the application and there was no evidence on the file that the matters required to be considered under the Planning Scheme were, in fact, considered.

5. None of the prerequisite matters required by permit conditions to be completed prior to the commencement of the development were, in fact, done.

There was no condition on the permit relating to time limits and the default provisions of the Planning and Environment Act 1987 apply whereby the permit would have a life of two years for commencement and completion unless extended pursuant to a request made within three months of the expiry date.

17 Despite the absence of any written Delegate Report, I was advised that the planner who had handled the Permit application on behalf of Council was Mr Bernie Wilder. As mentioned above, the Permit was issued one day after it was lodged, although I should confirm that Mr Bowden indicated at the hearing that the Applicant had a number of pre-application meetings or exchanges with Mr Wilder prior to the Permit application being lodged.

18 Although the Permit curiously does not include the usual "two years to commence and four years to complete" permit condition, there was an additional page of notes which formed part of the Permit. In these notes, under the heading "When does a Permit expire", the relevant text is as follows (with my emphasis).

A permit for the development and use of land expires if-

* the development or any stage of it does not start within the time specified in the permit; or

* the development or any stage of it is not completed within the time specified in the permit, or if no time is specified, within two years after the issue of the permit; or

* the use does not start within the time specified in the permit, or if no time is specified, within two years after the completion of the development; or

* the use is discontinued for a period of two years.

19 However there is only so much weight I can give this note, as it is written in very small print and is only one of a page of such notes (hence I do not see it as playing any key role).

20 I note that in response to my query at the hearing, Mr Tweedie confirmed that the Applicant did not utilise any internal heritage consultant as part of the preparation of the permit application.

21 The subject land is zoned Business 1.

22 Although Mr Tsotsoros' written submission refers to the site as being affected by the Heritage Overlay HO27, my reading of the Heritage Overlay plan supplied to me is that the subject land does not have its own site-specific Heritage Overlay listing but falls within the precinct-wide control being HO165. The description of the "heritage place" in the Schedule to the Heritage Overlay for HO165 is "Portland Heritage Precinct". However I should also note that the two properties directly to the west of the subject land have individual Heritage Overlay controls and there appear to be two buildings with individual Heritage Overlay listing two lots further along to the east. There are also four properties on the other side of Julia Street individually listed under the Heritage Overlay, if one takes in the 4-6 properties moving either east or west.

23 I will not repeat the "objectives" and "decision guidelines" of the Heritage Overlay but they are obviously important to the extent that any heritage issues arise here.

24 Apart from the "heritage" permit trigger, the use of "serviced apartments" (which fall under the broader use of "accommodation") is a "Section 2 use" in this Business 1 zoning, and there is also a "buildings and works" permit trigger under the Business 1 zoning.

25 In relation to applicable planning policy, during the hearing Council referred me to the State level heritage policy at Clause 15.11. The objective of this policy is as follows:

To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria's image and making a contribution to the economic and cultural growth of the State.

26 Council also relied on the following "General Implementation" provisions under Clause 15.11-2 (with my emphasis).

Planning and Responsible Authorities should identify, conserve and protect places or natural or cultural value from inappropriate development. These include:

•

Sites associated with European discovery, exploration and settlement of Victoria.

•

Important buildings, structures, parks, gardens, sites, areas, landscapes, towns and other places associated with the historic and cultural development of Victoria, including places associated with pastoral expansion, gold mining, industrial development and the economic expansion and growth of Victoria.

27 There was also passing reference by Council to the Clause 17.01 State "Activity centres" policy. In relation to local policies, there is no specific local "Heritage" policy but Council did bring to my attention Clause 22.03-4 (Tourist development) and Clause 22.03 (Economic development policy). Mr Bowden also highlighted Clause 22.01 (Settlement policy).

28 It was common ground at the hearing that there has been no material changes in the relevant planning policies and controls since 2003.

Circumstances Leading to Need for Extension of Permit

29 At the hearing of this matter, Mr Bowden gave evidence that following the granting of the Permit on 27 August 2003, the following actions were taken over time by the Applicant:

Structural, Electrical, Hydraulic, Mechanical and Civil Engineers were engaged to carry out various tasks associated with the project.

30 It is common ground that the project then got underway and it was only on 8 February 2006 that the Shire of Glenelg issued a "Stop work order", which led to "tools being downed". Council apparently advised at this stage that a new planning permit application would be needed to be lodged with the Shire before any works could commence. Mr Bowden indicated (and this was not contested by Council at the hearing) that no further works had since taken place and that the site remains locked up. Certainly the photos provided to me confirm that significant initial demolition works have occurred. Mr Tweedie put to me that at this stage in the order of $300,000 has already been spent by the Applicant on initial works.

31 On 20 February 2006 a Request for a Prompt Final Hearing to extend the Permit out of time was lodged with the Tribunal.

32 It was also common ground at the hearing that on 7 March 2006 the Applicant had on a without prejudice basis also lodged a new planning permit application with Council to "Demolish part of the existing development; carry out buildings and work and use of the renovated buildings as serviced apartments".

33 I was told that after the advertising period for the new application ended, there had only been one objection lodged, from the owner of the land on the same side of the street adjacent to the west, and that this objection mainly reflected concerns about the future of the side fence between the properties. It was further put to me that, following further negotiations, the Applicant expected this objection to be withdrawn very shortly.

34 In relation to Council's position, Mr Tsotsoros advised me that Council is still considering this fresh permit application and in particular is still obtaining heritage advice.

1st Major Issue - Should Tribunal Exercise its Discretion to still Allow the "Application for Renewal" to be Considered, Despite it being Made Over Three Months After the Permit had Lapsed?

35 It was agreed at the hearing that before I should focus on the substantial merits of the situation, my initial task is to make a finding whether or not I can even go through this exercise in light of the fact that the "application to extend the life of the permit" was made over three months after the expiry of the permit.

36 The reason this "over three months delay" aspect is important is due to the statutory provisions directly on point. Keeping in mind that the Permit did not have any "expiry of permit" type permit condition, the situation here is regulated by Section 68. In simple terms, the effect of Section 68(3)(b) is that the approved use and development here had to be completed within two years of the Permit being granted ie by 27 August 2005. In addition, Section 69(1) provides that once a permit expires, there is a three month "grace period" in which the permit holder may apply for the permit to be renewed. As it turned out, I was told that work only started on the subject land in September 2005 and the Stop work order was then lodged on 8 February 2006 (which in turn led to the Application for a Prompt Final Hearing on 20 February 2006).

37 In relation to the relevant case law here, there are two main cases on point.

38 First, Deputy President Gibson's decision in Gavin Mathieson v Corangamite Shire Council (VCAT P1088/2005) makes it clear that the Tribunal's jurisdiction to intervene in terms of extending the life of the permit hinges on the relevant Council having already refused such extension. In other words, the applicant cannot just unilaterally apply to the Tribunal to extend the life of the permit.

39 In this regard, Mr Tweedie conceded there might from a technical perspective be scope for debate about whether the Prompt Final Hearing notice was in the ideal written format for its purpose. However he urged me to find that the intent of this notice was still clear enough for our purposes here. He also relied on his instructions that the Applicant had verbally approached the Council prior to 20 February 2006 seeking Council's approval of the extension of the Permit, and had been verbally advised by the relevant Council planner that Council would not be providing any such approval. Mr Tsotsoros did not challenge this factual account of the situation.

Comment - while the circumstances in question are "borderline" in terms of compliance with the need for prior Council refusal of the extension of the life of the relevant permit, on balance I am satisfied that the test set out in the Gavin Mathieson decision is satisfied. The crucial fact in my view is that the Applicant at least verbally requested the extension of the life of the Permit prior to its 20 February 2006 written application to the Tribunal, and had apparently been told by Council that no such approval would be given. The various information on the Tribunal file generated since 20 February 2006 is consistent with this basic position. In addition, I note that this technical point was not particularly pursued by Mr Tsotsoros at the hearing.

40 Second, there is the broader issue of how flexible I should be in exercising my discretion whether or not I should still allow myself to review the merits of this matter, in light of the fact that "application to extend the life of the permit" was made over three months after the Permit had expired. The key case here is Schneider v Boroondara (2004) VCAT 642, where Justice Morris considered that the key issue is whether (in the circumstances of an application made after the relevant three month period had expired) it is in the overall interests of justice to disregard the failure to make the application within time.

41 Mr Tsotsoros urged me to find that there has been a pattern established of the Tribunal disregarding the failure to make the application within time either where Council supported same (eg Bala v Hobsons Bay CC (2005) VCAT 2900) or where it was common ground that the application would have been granted if it had been made within time (eg in the Schneider case).

42 In response, Mr Tweedie put to me that it would be fair and in the interest of justice in all the circumstances to disregard the failure of the Applicant here to apply within time. Mr Tweedie relied on his instructions that the Applicant (in the absence of any express "expiry of permit" condition in the Permit) was unaware of the two year deadline under Section 68 of the P & E Act to complete the project, and had been using the intervening two years to carry out extensive preparation for the project including obtaining a building permit within the two years. He put to me that, given the fact that most planning permits granted in recent years in Victoria include a standard "two years to start and four years to finish" condition, it would be overly harsh in the absence of such a condition here for me to "knock out" this appeal simply due to the Applicant's application not being made within time.

Comment - firstly, in light of the small number of cases relied upon here by Mr Tsotsoros, it is hard to see any real "pattern" emerging. Surely what is the "right decision" will still depend on the facts of each case, whether or not Council is supportive of what the Applicant seeks. In terms of what would be "fair and equitable" here in all the circumstances, I agree with Mr Tweedie that it would be unduly harsh for me to find against the Applicant simply due to its failure to apply within time, particularly since this is a relatively major project and the two year deadline applied to not only the commencement but also the completion of the project.

The available information indicates that the Applicant cannot be said to have "sat back and done nothing" in the relevant period, nor is there any evidence that the Applicant knew of the three month period to apply and flouted or ignored that deadline. Rather, the fact that the Stop work order was issued by Council on 8 February 2006 is consistent with the Applicant simply being unaware of the role and importance of the three month period after the expiry of the Permit to apply for the Permit to be extended. I also agree with Mr Tweedie that it was unfortunate that the Permit did not include the usual "two years to start and four years to finish" condition and note that Mr Tsotsoros did not provide me with any explanation in this regard.

43 In summary, for the reasons set out above and relying on my broad powers under Section 126 and the Schedule to the VCAT Act, I consider it fair and reasonable that I still consider the application here for the extension of the life of the Permit, despite such application having been made out of time. For completeness and for "tidying up" purposes, I also allow the format of the Application to be retrospectively amended to be in the form set out in the letter and attachments from Bowden Verhoeven dated 25 May 2006.

2nd Major Issue - Having Considered the Merits of the Situation, Should the Tribunal Allow the Life of the Permit to be Extended?

44 I note here that Mr Bowden's report indicates that the Applicant is seeking a 12 month extension of the Permit.

45 In summary, Mr Tsotsoros urged me to not allow the renewal of the Permit, on the merits, relying on the unusual circumstances of the granting of the Permit (see my quote above of the features of the application process). Mr Tsotsoros submitted in particular that there were major heritage issues associated with the Mary McKillop Commemorative Gardens and associated Well, and that it would be inappropriate to allow the Permit to be extended without these heritage issues being properly investigated, discussed and reviewed by way of a fresh permit application. Mr Tsotsoros also specifically queried the lack of public advertising of the permit application in 2003 (which he indicated raises "natural justice" issues) and the fact that the Permit was issued the day after it was lodged.

46 At the last page of his written submission, Mr Tsotsoros also sought to effectively "leverage off" the relatively recent Auditors Report into the Council's Planning Department, which did raise some "due process issues" including some specific applications where there was either inadequate public notification and/or a failure to appropriately refer proposals to relevant government agencies or bodies.

47 Although Mr Tsotsoros did not pursue the point at the hearing, I am also conscious that the earlier written submission prepared for Council by Mr Scott Taylor dated 26 May 2006 raised the issue of whether in fact the Tribunal (as a point of law) is barred from renewing the Permit due to what Council sees as the defective nature of the Permit.

48 In response, Mr Tweedie (in the spirit, using an AFL analogy, of a spirited backman "turning defence into attack") dismissed these Council concerns as unfounded and unduly speculative, and urged me to find that there is no specific evidence before me to justify the refusal of the renewal of the Permit. He was critical of the Council:

•

just assuming that no Delegate Report for the permit application was prepared in 2003, without specifically proving this fact;

•

failing to call any heritage evidence to support its "heritage concerns" (Mr Tweedie argued that there is no specific evidence that heritage issues were not addressed as part of issuing the Permit);

•

failing to call either Mr Wilder or any other Council staff to attest to the alleged procedural problems with the granting of the Permit;

•

failing to provide any credible arguments or any expert evidence to raise any doubt about the general planning benefits of the project being allowed to proceed through the extension of the life of the Permit.

49 Mr Tweedie relied on the planning evidence given at the hearing by Mr Bowden. In summary, Mr Bowden reviewed the history of the matter, the relevant planning controls and policies, the features of the proposal approved under the Permit. He then gave evidence that on the planning merits the proposal will be very beneficial for this area of Portland, will have tourist benefits, will greatly improve the appearance of the motel, and is generally deserving of having the life of the Permit improved. Mr Bowden also relied on the fact that the Permit involves the condition of the garden area at the rear being improved, including preserving the Well, carrying out landscaping works and creating a conference centre named the "Mary McKillop Centre". In relation to the lack of public advertising of the permit application in 2003, Mr Bowden's evidence was that the proposal was so innocuous that Mr Bowden supported the lack of advertising as being appropriate in the circumstances.

50 Mr Tweedie otherwise put to me that there was no "defective permit legal issue" despite previous suggestions by Council to this effect, and produced the memorable one-liner that "wild speculation is not the basis for decision-making".[1] He relied on the fact that only one neighbour has raised an objection to the recent without prejudice fresh permit application as justifying the Applicant's position that the Council's concerns are "a storm in a teacup". He regarded any reference to the recent Auditor General's report as irrelevant unless the Auditor General made any specific findings about this particular Permit. He urged me to find that Council had not raised any specific/credible concerns about the one day turnaround of the granting of the Permit and that such turnaround was acceptable in the context of there having been pre-application negotiations between Mr Wilder and the Applicant.

51 In terms of the correct framework for me to reach a finding on this type of "extension of the life of a permit" decision, it was common ground at the hearing that this framework was established by the decision of Kantor v Murrindindi Shire Council 18 AATR 285. At page 313 of that decision, his Honour Justice Ashley initially makes the point that some reason or material needs to be advanced why the permit should be extended (ie there needs to be more than just a simple request made).

52 His Honour then helpfully listed a number of factors to then be considered, which in summary are:

•

whether there has been any change in relevant planning policy or legislation (comment - this is not a problem here);

•

whether there is any suggestion that the permit holder has been "warehousing" the permit (comment - there seems no suggestion of this problem here);

•

any intervening circumstances of relevance, such as initial steps taken by the permit holder towards the commencement of the project (comment - there is real evidence here of the permit holder having taken steps to commence the project before the permit lapsed, notably obtaining a building permit);

•

the total elapse of time involved ie the case to extend will be more difficult if there have already been previous extensions and vice-versa (comment - it is favourable to the Applicant that this is the first application for the Permit to be extended);

•

whether the original time limit for the development was adequate in all the circumstances (comment - I consider that a two year period here to both commence and complete the project seems tight);

•

whether the economic issues involved reasonably affected the progress of the project (comment - I accept that being in a position to commence this type of project, which I was told has a project value of about $6 million, takes some time);

•

"the probability, if it be the case, that if a request to extend time was refused and a fresh application for a permit was then made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged; and if it seemed improbable that- if a fresh policy application was made- any new considerations would be raised by potential objectors" (comment - this issue is dealt with below).

Findings of Tribunal - General Planning Merits (Excluding Heritage issues) and Kantor Factors (Excluding the final "Probability of Fresh Permit being Granted" Factor)

53 Dealing first with the more straight forward aspect of the merits of this matter, my finding is that I see no reason to refuse the extension of the life of the Permit in relation to:

•

the general planning merits of the proposal (excluding heritage issues); and

•

all of the above-mentioned Kantor factors apart from the last factor of the "probability of a fresh permit being granted".

54 In making this finding, I rely upon the evidence of Mr Bowden about the general planning benefits that should flow from the project being able to proceed through the extension of the life of the Permit (eg the "face lift" to the motel, tourism benefits, it being consistent with the Business 1 zoning etc). It is clear to me that if one excludes the issue of the future of the garden at the rear of the site and the heritage issues associated with the garden, the project is otherwise fairly straightforward and deserving of being given the chance to be completed.

55 In relation to the queries raised by Council about the "due process" of the granting of the Permit in 2003 (eg the lack of public advertising and the 24 hour turnaround of the granting of the Permit), these are legitimate concerns but (excluding heritage considerations and what happens to the rear garden) I do not see these "due process" issues as outweighing the general planning merits of the proposal.

56 In relation to my position on all of the Kantor factors apart from the final one of "the probability of a fresh permit being granted", I have already indicated in my discussion of these Kantor factors above why I see the situation here as favouring the extension of this Permit (see my comments above which I have underlined).

Findings of Tribunal - Heritage Issues and final Kantor Factor of Probability of a Fresh Permit being Issued

57 In relation to the evidence of Mr Bowden, it is significant that he is a planning not a heritage expert. Hence his general view of the planning merits of the proposal essentially "side-stepped" any heritage issues that existed when the permit application was being processed in 2003.

58 It was conceded by Mr Tweedie that the Applicant did not utilise a heritage consultant in preparing the permit application. Mr Bowden did in the course of his evidence indicate that the Applicant had recently engaged the heritage consultant Mr David Bick, but Mr Bick had made no real progress in investigating the situation and reaching his own views on the heritage issues. The reason given for this was Council's delay in providing the necessary information for Mr Bick to review.

59 These are what I see as the key considerations in terms of how I should approach the heritage issues associated with the Permit:

•

the subject land does not have any individual heritage listing under the Heritage Overlay but forms part of the HO165 "Portland heritage precinct";

•

while the Glenelg Shire Council (despite having 165 items on its Heritage Overlay Schedule) has no local heritage policy or relevant Statement of Significance for the contentious gardens, the fact remains that at a State level there is Clause 15.11 dealing with heritage (see my reference to that policy above). The "General Implementation" provisions in that policy are quite prescriptive and include the need to "identify, conserve and protect places of natural or cultural value from inappropriate development", with the examples given of the type of possible place which might require such protection including "garden";

•

whether or not Council or indeed any potential third parties give priority to heritage preservation issues affecting Portland, there is previous Tribunal authority of the need to consider heritage issues as part of the assessment of new development in Portland. In the case of Portland Historic Buildings Restoration Committee Inc. v Halliday/Glenelg SC (VCAT 2000/46287), Member O'Leary made the following statement at paragraph 57 - "During the hearing there were a number of references to Portland being the poor relation of the area and that standards for Melbourne or even Warrnambool cannot be expected. From the Tribunal's observations the town of Portland has a number of physical, social, cultural and historic strengths which should not be understated in an effort to justify dispensing with a proper assessment of the heritage significance of the site";

•

it is clear to me that Julia Street is one of the key heritage streets in Portland. In this section of Julia Street west of Percy Street, there are 10 properties with individual listing on the Heritage Overlay;

•

whilst all the evidence points to the lack of any heritage significance of the balance of the subject land excluding the gardens at the rear, the evidence also indicates to me that there are real heritage issues associated with the Mary McKillop Commemorative Gardens and associated well. Mary McKillop is a relatively well known historical figure, as reinforced by the fact that the Applicant's own Site Context Plan refers to this area as a commemorative garden;

•

while I appreciate we do not have the assistance of any previous relevant heritage study of the gardens by a suitably qualified heritage architect, my concerns about the potential impact of the works under the Permit on the gardens are reinforced by the notations on the Site Context Plan referring to the well in the gardens as "the famous well" (my emphasis). I am struggling to reconcile the message from Mr Tweedie that there are no real heritage issues here with this use of the words "famous well".

60 The "heritage concerns" which I see as arising from the above considerations are exacerbated by the following particular features of the Permit process and the hearing before me:

•

firstly, the Applicant has conceded that it did not utilise any heritage consultant in preparing its permit application in 2003. Given the size of the project (with an estimated dollar value of $6 million) and the evidence that there was at least some recognition of the historic value of the Well in the garden (ie the use of the words "famous Well"), in my view it is quite surprising that the Applicant did not utilise its own heritage consultant;

•

secondly, notwithstanding any pre-application meetings or exchanges between the Applicant and Mr Wilder, all of the evidence indicates that the proposal was not referred by Council to anyone with specialist heritage expertise prior to the Permit being granted Hence we have no way of knowing whether or not Council might have re-considered or at least tempered its support for the proposal if Council had received specialist heritage advice prior to the issuing of the Permit;

•

thirdly, the lack of any public advertising of the proposal also had the effect of denying any interested third parties with heritage concerns the chance to raise those concerns with Council prior to the Permit issuing;

•

fourthly, I see the following features of the Permit as reinforcing that there was no meaningful consideration of heritage issues when the Permit was issued. The preamble at the beginning of the Permit which describes the nature of the approval makes no reference to allowing approval for any demolition works, despite specific planning approval being needed for any such demolition as the whole of the subject land falls within the Heritage Overlay. In addition, there is only a very trivial passing reference to "heritage" in Permit condition 7 in terms of the need for the colour scheme to "respect the heritage values of the area". I regard Mr Tweedie's reliance on these words as "clutching at straws";

•

fifthly, whilst I accept that the works under the Permit include some landscaping works to improve the appearance of the gardens at the rear, it needs to be recognised that these works also involve creating a new conference centre in the western end of the gardens, together with four new units over two levels (and three new car parking spaces) in the eastern end of the gardens. Accordingly, the works involved go a long way beyond simply "sprucing up the gardens" - there will be significantly more built form in this rear section of the subject land than before (notably a new double storey building);

•

sixthly, whilst it is true that Council did not call any expert heritage evidence, it is also true that it is the Applicant who has brought this application, and the Applicant also failed to call any heritage evidence. While there was vague reference to some preliminary recent work on behalf of the Applicant by Mr Bick, it is inconsistent with Mr Tweedie's "there are no real heritage issues" position that the Applicant failed to call Mr Bick to give evidence. In relation to the submission that Mr Bick has been hampered by a lack of information from Council, I regard this as a "furphy" lacking credibility - an experienced heritage expert such as Mr Bick would be entirely capable of unilaterally progressing his own investigations in this matter.

61 I return now to the final Kantor factor, which is "the probability, if it be the case, that if a request to extend time was refused and a fresh application for a permit was then made, it would be granted. Such a conclusion might perhaps be reached if planning policy remained unchanged; and if it seemed improbable that - if a fresh policy application was made - any new considerations would be raised by potential objectors".

62 When I apply the various heritage concerns and considerations which I have listed above to this final factor under the various Kantor criteria, I see a real possibility that if a fresh decision had to be made on the proposal (by a properly informed and competent decision-maker who makes a balanced decision as per the comments of Member O'Leary referred to above), that the proposal would be refused on heritage grounds. Where Justice Ashley in the quote above obviously places weight on the likelihood or otherwise of "...any new considerations being raised by potential objectors" (my emphasis), I consider that the proper consideration of heritage issues associated with the garden as part of any fresh permit application would effectively be a new and important issue, given the one-way evidence that any heritage issues were essentially ignored when the Permit was granted in 2003.

63 Hence whereas Justice Ashley indicates in the quote above that it would be favourable to the renewal of the permit that it is "improbable" that any new considerations could be raised by objectors, the reverse is the case here.

64 In reaching my finding here, I am conscious of Mr Tweedie's submission to the effect that it is a sad day when Council is relying on problems with its own procedures to justify achieving the non-renewal of a permit. From the evidence available, it would appear that this particular permit application in 2003 suffered from the same type of "due process problems" as was identified in the Auditor-General's report. While Mr Tweedie's "it is a sad day" submission does not change my overall finding that the Permit should not be renewed, I take his point. It is clear that this is exactly the sort of case that undermines public confidence in the effectiveness and transparency of the planning permit application process in Victoria.

65 It is important to this public confidence that "good planning decisions by Councils are not just made, but are seen to be made". In practice, this should involve appropriate use of Delegate Reports to record the application process and the key issues involved, referrals by the Council planner to utilise other suitable areas of professional expertise, public advertising of proposals in accordance with the statutory requirements, and so on.

66 In reaching my overall finding in this matter, given the analysis which I have been through in the above paragraphs, it comes down to weighing up:

•

on the one hand, the "positives" associated with the Permit satisfying all of the other Kantor factors apart from the "probability of a fresh permit issuing" factor; and

•

on the other hand, my view expressed above that I see a real possibility that, if there was a fresh permit application, that such application (assessed in the proper manner) might be refused on heritage grounds.

67 On balance, I see such fundamental and far-reaching issues and shortcomings of the Permit arising from the heritage issues I have canvassed, that I am not satisfied that an adequate case has been made out (when one applies the Kantor case in totality) for the life of the Permit to be extended. Hence my overall finding is that the appeal here against Council's refusal to extend the life of the Permit by 12 months is refused.

68 In terms of what is "fair and reasonable", I regard the Applicant's apparent carrying out of $300,000 worth of works already as unfortunate but not enough in itself to justify the Permit being renewed. In addition, the Applicant's position in this matter is not necessarily "as clean as driven snow" - the Applicant chose not to obtain any internal heritage advice on the proposal prior to the Permit issuing, the Applicant apparently overlooked the "When does a permit expire" notes on the back of the Permit, and I do not regard the explanation given for the two years plus delay in starting the project as entirely convincing.

69 I note in passing that, even if I had renewed the Permit, the nature of the approval under the Permit makes no reference to allowing any demolition, despite all of the subject land being affected by a Heritage Overlay. Contrast this with the wording of the proposal in the fresh without prejudice permit application including the words "Demolish part of the existing development...". Hence there prima facie seems a real case that any demolition works carried out to date were unlawful, and that any additional intended demolition works would require separate planning approval even if I had allowed the renewal of the Permit.

70 I also make the point, for those who may not realise, that my role here has simply been to decide whether the Permit (as it stands) should be renewed or not. Unlike a normal "merits appeal", it has not been open to me to allow a modified permit to be approved. However this "flexibility to modify the proposal" is obviously available as part of the fresh permit application currently being processed by Council (bearing in mind that I accept that the rest of the proposal, excluding the impact on the gardens, is straightforward).

71 To remove any doubt, despite the contents of Mr Taylor's 26 May 2006 "Legal Issue Submission", I consider that the issues before me have been capable of being adequately resolved within the framework of the Kantor decision, and that there has been no need for me to move outside of that framework.

[1] Relying on the previous case D Juric v Banyule CC 11 VPR 201