(given orally at the hearing and subsequently revised)

1 On 23 October 2003 the tribunal, constituted by Senior Member Byard, heard an application for review by a permit applicant in relation to a decision of the Hobsons Bay City Council (the council) to refuse to grant a permit pursuant to the Hobsons Bay Planning Scheme (the scheme) to demolish an existing house at 13 Elphin Street, Newport (the land) and to construct thereon two attached dwellings.

2 The grounds upon which the council refused the proposed demolition and dual occupancy were as follows:

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.

3 At all relevant times the land has been zoned Residential 1, and has been subject to a Heritage Overlay, pursuant to the scheme. The Heritage Overlay provisions in the scheme are supported by policies about the manner in which decisions should be made under the Heritage Overlay. These policies build upon or make reference to various reports that have been prepared from time to time for the council by heritage advisors.

4 Prior to the hearing in October 2003, the council had introduced an amendment to the scheme, known as C17, designed to revise its heritage policies. Graeme Butler & Associates had prepared a heritage study in 2000 for the Altona, Laverton and Newport districts. The study identified an area, described as the "Halls Farm Residential Precinct", as an area of heritage significance, principally by reason of its mainly Edwardian era and some Californian Bungalow style weatherboard single storey detached houses. Amendment C17 was approved on 12 August 2003. The effect of the approval of the amendment was to modify the heritage policies contained within the scheme. One modification was that the subject land was identified in a reference document as containing a building which was a contributory building to the Halls Farm Residential Precinct.

5 At the commencement of the hearing before Senior Member Byard on 23 October 2003 Mr Darren Camilleri, a town planner who appeared on behalf of the council, raised the question of whether the grant of a permit would be inconsistent with the policy recently approved in relation to the contributory status of the building on the subject land. Senior Member Byard expressed surprise at what he described as:

an attempt on behalf of the Responsible Authority to raise as an issue the question of whether the existing house should be conserved.

All indications, including explicit statements in the officer's report and from the Responsible Authority's heritage consultant, indicated that there was no objection to the demolition of the existing building.

There then followed a lengthy discussion between Mr Camilleri and Senior Member Byard as to the basis for the council then asserting that the demolition of the building would be contrary to policy. I will turn to aspects of that discussion later. But it would seem that following the discussion, Mr Camilleri eventually abandoned the demolition point. This is recorded in paragraph 26 of Senior Member Byard's reasons as follows:

After these matters were explored at some length I put it to Mr Camilleri that, if he wished to rely on the ground of asserting that the existing building should not be demolished, he would have to apply for an amendment to include that proposition in the grounds of refusal of the Responsible Authority. Each time I asked him if he was applying for such an amendment he declined to do so and then announced that he would abandon the demolition point and proceed on the original grounds of refusal. That resolved that issue, and he omitted the passages relating to it that appeared in his written submission. It follows that I have no occasion to consider it further now. Nevertheless, I make the observation that the raising of such a ground calls for more rigour in relation to procedural fairness and as to what is and is not a reference document.

6 Senior Member Byard was ultimately not satisfied with the design of the proposed dual occupancy. However he concluded that the shortcomings might be able to be corrected by the preparation of new plans changing some aspects of the design. Accordingly he ordered that the applicant have leave to prepare, file and serve a revised set of plans taking into account comments made in his decision. Those revised plans were prepared and were circulated.

7 There then followed a further hearing before Senior Member Byard on 22 March 2004. The intention of this further hearing was to assess whether the revised plans were satisfactory and, if they were, to determine whether to grant a permit subject to conditions. However on that occasion the council, now represented by Mr Warrick Nelson, solicitor, submitted that Senior Member Byard should disqualify himself because there was a reasonable apprehension that Senior Member Byard would be biased in the determination of the application. Mr Nelson presented a detailed written submission, which was supplemented by oral submissions.

8 After considering these submissions, Senior Member Byard published a written decision on 25 March 2004 in which he rejected the application that he disqualify himself. Essentially Senior Member Byard concluded that a well informed, independent bystander would regard comments made in his decision as legitimate and fair criticism based on the information available to him; and would not conclude that he would be biased in relation to any further assessment of the matter.

9 The council was not satisfied with that outcome and indicated that it wished to exercise its right pursuant to section 108 of the Victorian Civil and Administrative Tribunal Act to require the matter to be referred to me.

10 I have heard further argument from Mr Nelson. I have read the written submission he presented to Senior Member Byard. I have read the two decisions written by Senior Member Byard. I have also heard from Mr Connor, who appears on behalf of the permit applicant.

11 The principles that apply to applications of this sort were considered by Kellam J in Metrospan Developments Pty Ltd v Whitehorse City Council, [2000] VCAT 44. I agree with that analysis. Essentially the Metrospan decision establishes that, quite apart from the question as to whether or not a member might be biased, or there be a reasonable apprehension of bias, section 108 gives the President a broad discretion to reconstitute a tribunal.

12 The essential criticism that Mr Nelson makes of Senior Member Byard's approach relates to what the member said in paragraphs 7-26 of his reasons for the order dated 13 November 2003. These paragraphs contain what I would describe as an excursus about the heritage policies which applied to the demolition of the building on the land. I say it was an excursus because ultimately Mr Camilleri, on behalf of the responsible authority, indicated that he abandoned the demolition point. Hence it was unnecessary and, as it has turned out, problematic for Senior Member Byard to have devoted such a significant proportion of his reasons to this issue. He could have, and, perhaps, on reflection, should have, simply said that the demolition point was initially raised but, after discussion, was abandoned.

13 One of the specific criticisms made by Mr Nelson related to the comment in paragraph 21 of the decision to the effect that Amendment C17 was not part of the planning scheme as at 13 November 2003. I am informed and accept that this was in error. It was said by Mr Nelson that a reasonable person would lack confidence in Senior Member Byard's ability to fairly determine the matter, having regard to this error.

14 Mr Connor joined issue on the bias question. But ultimately I think the matter can be decided on a simpler basis. In my opinion once the demolition point was abandoned it meant that policies that might apply to the demolition to the building on the subject land were irrelevant. Hence, even if Senior Member Byard may appear to have made up his mind on this issue, it is of no consequence.

15 The council has indicated to me that it wished to resile from Mr Camilleri's abandonment of the demolition point and would now seek to ventilate it. But I do not believe that would be appropriate. It is established in the courts that where a party admits a fact in its defence it must obtain the leave of the court in order to resile from the admission. Although this tribunal does not blindly follow court practices, the principle underlying that court practice has a bearing on what would be a proper approach to this matter in the tribunal. The basis of such an approach is that it is unfair to concede a point and then have the case run on that basis and to then change the ground rules after the other party has committed time and resources, and followed a particular strategy, in the light of the concession. So here I think that it is too late to allow the demolition point to be revived, this case being three quarters completed.

16 Ironically it could be argued that the original grounds of refusal included an argument that the proposed demolition was contrary to council's heritage policies. In a sense it might be thought that Mr Camilleri could have relied on that point without the need to amend the council's grounds of refusal and thus cause an adjournment. However having regard to the way it was specifically abandoned (as is recorded in paragraph 26), the question has to be regarded as having been abandoned.

17 I want to return to, and make a comment about, the excursus. The excursus discussed what was described as a study by Mr Graeme Butler of Graeme Butler & Associates, who Senior Member Byard described as "a well known professional in the heritage field". In the course of his submissions before Senior Member Byard on 23 October 2003 Mr Camilleri questioned Mr Butler's report and for that he received a mild rebuke from the tribunal. I have now been presented with extracts of the report of Graeme Butler & Associates dated 2000 and it does seem to me that at least some of Mr Camilleri's criticisms may well be justified. In the report the Halls Farm Residential Precinct is identified[1]; and 24 dwellings in Elphin Street are described as non-contributory places[2]. One of these is number 13 Elphin Street, being the subject land. Yet in Appendix 14 to the same document, there is a list of places which are said to be individually significant to the city's localities, the city as a whole, the western region, the State or the nation and contributory places to assessed precincts. This list identifies No 13 Elphin Street as contributory, which is obviously inconsistent with the conclusion on page 115. Ironically this same inconsistency would also seem to be present in relation to the following properties in Elphin Street: 7, 18, 20, 23, 34, 36, 39, 41 and 47. Such an inconsistency might be thought to be surprising for a "well known professional" in the heritage field, but I suspect it too often characterises studies of this sort. It is important when a council considers whether to grant a permit pursuant to a heritage overlay for it to assess the proposal before it having regard to the primary evidence that is available and to be hesitant before automatically applying a heritage study. The study may have been done several years before and be outdated. The study may even have been done with a lack of professional skill. By their nature heritage studies will rarely consider every individual building in detail. Indeed sometimes they may be correctly described, to use Mr Camilleri's language, as drive-by studies. Further, and importantly, other factors may be important in assessing an application to demolish a building, such as the achievement of planning policies concerning urban consolidation. I fear that there may be a tendency for some councils to treat heritage studies, and policies which adopt them or which refer to them, as the equivalent of mandatory statutory provisions. This is a mistake.