Mr. Warrick Nelson, solicitor of the firm of Harwood Andrews Lawyers, appeared for the Responsible Authority.

Mr. Russell Hocking, Town Planner of City Shire Planning Pty Ltd, appeared for the Applicant.

Mr. Anthony Day and Ms. A. Canteralla, Respondent/Objectors, appeared in person.

Application under s.77of the Planning and Environment Act 1987 (PE Act) for review of a decision of the Responsible Authority to refuse to grant a permit.

Demolition of an existing house and the construction of two attached dwellings.

Residential 1 Zone and subject to a Heritage Overlay under the Hobsons Bay Planning Scheme.

1. The proposed development is not respectful of neighbourhood character.

2. The proposal is not consistent with Local Planning Policy, particularly Council's heritage policies and objectives.

3. The proposal is not consistent with Council's 'Guidelines for Infill Development in Heritage Areas'.

4. The proposal does not demonstrate sufficient compliance with Clause 55 (ResCode) of the Hobsons Bay Planning Scheme.

* Heritage controls and policies including amendments, reviews and seriously entertained planning proposals.

* Council's guidelines for development in heritage area.

2. The proposal is consistent with Clause 55 of the Planning Scheme.

3. The proposal is respectful of the prevailing neighbourhood character, when properly, realistically and fairly assessed.

1 This case was heard on 23 October 2003 as a merits hearing. The appearances were the same as for this latest hearing on 22 March 2004 except that Mr. Nelson, solicitor, did not appear and the Responsible Authority was represented by Mr. Darren Camilleri, town planner of the City of Hobsons Bay.

2 An interim determination dated 13 November 2003 with attached reasons was given.

3 The proposal considered at the hearing on 23 October 2003 was for the construction of two double storey townhouses on the land. Such construction would involve demolition of the existing building. The circumstances encountered on that day as set out in the reasons attached to the document of 13 November 2003. The Applicant and I came to the hearing on that day in the expectation that the case was being conducted in relation to the suitability of the proposed new development. For the reasons given in the previous document neither Mr. Hocking nor I anticipated that there would be any issue in relation to the proposed demolition of the existing house. On the contrary, we believed that the question of demolition was not in issue, and that the only issue was the suitability of the proposed form of development. There was some discussion of the question of demolition at the hearing, and there is some discussion of matters related to that subject in the reasons in the previous document. The reasons for that discussion are therein referred to. However, the representative of the Responsible Authority declined to seek to amend the grounds of refusal of the Responsible Authority, or to seek an adjournment to enable the question of demolition or conservation of the existing house to be contested. In fact, having sought to raise the question of demolition at the beginning of the hearing, the representative of the Responsible Authority specifically abandoned that ground.

4 I was satisfied with the proposal in relation to other aspects except that I was concerned about the appearance of the front of the proposed building and its presentation to the street. The reasons for my misgivings in this respect are also referred to in the previous reasons. Mr. Hocking, on behalf of the Applicant, explained the reasons for the then current form of the proposal and submitted that, should I be satisfied with the proposed development in other respects, but was concerned about the prominence of crossings, garages and garage doors (which matters I have referred to in the hearing), I should adjourn the case and afford the Applicant an opportunity to present amended plans to meet those concerns. He was concerned that his client has been delayed for a very considerable period in relation to the permit application giving rise to the review proceedings, and that his client's original proposal was broadly in line with the indications I had given in relation to the form of the development. The Applicant had been talked out of its original approach, and adopted a number of design aspects that I was concerned about, at the instigation of officers of the Responsible Authority.

5 I proceeded in that way and gave directions in relation to the filing, service and giving notice of amended plans.

6 The Applicant availed itself of that opportunity and proceeded with the preparation, filing, service and giving notice of amended plans accordingly. The hearing fixed for 2.15pm on Monday 22 March 2004 was appointed for hearing parties in relation to the amended plans.

7 In the meantime, although approximately two months after the interim determination had been given, the Responsible Authority wrote to the Tribunal seeking to have the Tribunal reconstituted in relation to this case. The letter is dated 16 February 2004. It did not give grounds for seeking such reconstitution except for reference to some alleged errors in relation to the history of the matter, although not relating to the issues determined following the previous hearing or the outstanding issue that had been adjourned. The letter also gave notice that it wished to amend its grounds of refusal to add a further ground opposing demolition of the existing dwelling.

8 The procedure in relation to reconstitution of the Tribunal is in s.108 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). That procedure provides for an applicant for reconstitution to apply to the Tribunal as presently constituted which, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted. In that circumstance the President is to reconstitute the Tribunal. However, if the Tribunal rejects the application a party may require the matter to be referred to the President who allows the parties to make submissions and then may reconstitute the Tribunal.

9 The parties were advised an application under s.108 VCAT Act could be made to the Tribunal as presently constituted at the hearing fixed for 2.15pm on Monday 22 March 2004.

10 At the hearing on that day it was indicated, on behalf of the Responsible Authority, that there were some matters in relation to the revised plans that the Responsible Authority would wish to debate. However, it appeared appropriate and necessary to deal with the application under s.108 before dealing with such questions.

11 Mr. Nelson presented substantial written and oral submissions. The kernel of his application was to suggest, not that I would be biased, but that an independent but informed bystander might perceive that I would not bring an independent and unbiased mind to a determination of the case. However, he was not referring to a determination of the outstanding issue in submitting this. Rather, he was looking to a re-opening of the case of the Responsible Authority in relation to the abandoned issue of whether the proposal should be refused on the basis that the existing building should not be demolished, but conserved. It is yet to be determined whether the Responsible Authority should have an opportunity to re-open its case and amend its grounds to deal with such an issue.

12 The hearing on 23 October 2003 had its difficulties, and a good deal of time was devoted to trying to work out what the Responsible Authority's representative was seeking to say and justify in relation to whether the applicable existing dwelling should be regarded as a contributory building in the heritage overlay area. Some of this difficulty arose from uncertainty as to the status of documents he referred owing to their lack of identifying dates, their incompleteness, and perhaps lack of information on the part of the representative of the Responsible Authority. The Responsible Authority now contends that the planning scheme, at the time of the previous hearing and now, by reference to documents referred to in the planning scheme (although perhaps with uncertainty as to their names, dates and identities) establish that the existing dwelling should be regarded as a contributory building and the question of its demolition assessed on that basis.

13 If there are errors in this connection they were caused by the presentation of the case of the Responsible Authority on 23 October 2003 but that, in any event, they are not material, is not relating to any relevant issue in the case.

14 Mr. Nelson referred to paragraph 7 of the reasons in the previous document. It appears, from what he says, that the reference to "appendix 6" in the fifth last line of that paragraph should read "appendix 10". In any event, that is not material in as much as the passage clearly refers to exhibit C4 as being the document referred to. The paragraph discusses why it was perceived that the case did not have an issue in relation to demolition, and that that view was strengthened by reference to exhibit C4.

15 Mr. Nelson also referred to paragraph 21 as containing what he says was an error.

16 I should have thought, if these matters were to become relevant due to the Responsible Authority being given leave to re-open its case and to amend its ground, any errors could be referred to and pointed out or clarified as might be necessary. At the time the reasons were written these were comments by the way, and not final decisions because it was not necessary to finally decide them. I do not think that the informed independent bystander would conclude that the presence of any such error showed bias or that other than a fair and independent mind would be brought to considering the issues to which they relate, if and when they become relevant.

17 Mr. Nelson also referred to and sought to rely on paragraph 24 of the reasons as a basis for a perception of bias. In that paragraph I dealt with an attempt by the Responsible Authority's representative at the previous hearing to denigrate a heritage study by a recognised expert as a "drive-by" review in support of his contention that the expert had made an error in his study. No inconsistency in the study, as suggested by Mr. Nelson was detected at that stage. The extract from the study tendered did not include information that would enable Mr. Nelson's contention to be arrived at. The Responsible Authority's advocate preferred a later conservation study, referred to in the reasons as "Helms work" as superior and as correcting the previous "error".

18 Mr. Nelson contended that paragraph 24 indicated that I had formed the view as to whether or not the dwelling in question at 13 Elphin Street, Newport, was, or was not, a contributory building. In my opinion, a fair reading of that paragraph cannot justify any such conclusion. It does not contain any conclusion, one way or the other, as to whether the dwelling is to be so regarded. It does contain a criticism of the Helms work in as much as it includes blocks of dwellings as being all contributory to the Victorian to circa 1940 period of interest in relation to developments in the street. I said, in effect, that this appeared to be too sweeping in that some of the buildings I had observed in the street designated as contributory could not possibly justify such status.

19 I assume that the well informed independent bystander would read the paragraph fairly and decide that it does not contain assessment of No. 13 Elphin Street itself. Such bystander might consider that there was criticism or doubt in relation to the Helms document, with the reasons given for such criticism. The bystander might think it fair criticism on the basis of the information available at the time. I don't think such bystander would conclude that a biased mind would be brought to any future assessment that might become relevant if further information and circumstances needed to be taken into account. That would not mean one way or the other, that the outcome of such further consideration could be predicted, although the paragraph does draw the Responsible Authority's attention to a concern in relation to that study. It raises this in a way and at a time so that, if the question ever became relevant, the Responsible Authority would realise that it may need to deal with it.

20 My conclusion, therefore, was that I saw no reasonable basis for a perception of bias, that I had dealt fairly with the matters that were relevant, and that there was no reason to conclude that further consideration, if they were raised and became relevant, would not be dealt with fairly and given the weight and consideration they deserved. On that basis, and for the reasons announced orally at the hearing, I said that the application under s.108(3)(1) VCAT Act would be rejected.

21 Mr. Nelson then sought a brief adjournment to obtain instructions and, on the resumption, indicated that his client wished the matter to be referred to the President under s.108(5) VCAT Act.

22 After some discussion as to how to proceed, it appeared most convenient that the case should be listed as a practice day matter for Friday 2 April 2004, or as soon as convenient with the idea, not that there would necessarily be a full hearing of the referral, but that there would be directions to decide how and when the referral to the President would be dealt with. It was suggested that this might be done on Friday 26 March 2004 but time was proved insufficient for that date to be met.

23 The case is otherwise adjourned to a date to be fixed.