Paragraphs 9-13: Ruling by a legal member that the grant of a permit for hospital extensions and alterations would contravene a restrictive covenant applying to part of the land. The Tribunal proceeded to make detailed findings on the substantive planning merits of the application.

Paragraphs 56-73: Application of policy concerning the provision of health care facilities and social infrastructure.

Paragraphs 131-136: Comments on Net Community Benefit.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

Interpretation of the policy framework as it applies to the provision of health care facilities and social infrastructure generally, emphasising the need to facilitate the provision of social and physical infrastructure in an efficient, timely, equitable manner, and in response to social needs. Assessment against relevant activity centre, heritage, urban design, character, and residential amenity policies. The integration and balancing of policies relevant to the issues to be determined in favour of net community benefit and sustainable development.

The Tribunal considered an application for significant extensions and alterations to the John Fawkner Hospital. Part of the hospital is affected by a restrictive covenant. A legally qualified member of the Tribunal determined that the grant of a permit for the hospital extensions would contravene the restrictive covenant, and a permit could not therefore be granted. The Tribunal proceeded to make detailed findings on the substantive merits of the application, and concluded that, had it not been for the interpretation of the covenant, it would have directed that a permit be granted. There are a number of mechanisms available to the permit applicant to remove or amend the covenant. The Tribunal provided detailed reasons because it was thought they maybe useful in any subsequent proceedings about the merits of this proposal.

The Tribunal's findings on the planning merits include an extensive analysis of the policy framework as it applies to the provision of health care facilities and social infrastructure generally. Relevant heritage, urban design, character, and residential amenity policies are also considered. The Tribunal also provides a discussion on the integration and balancing of policies relevant to the issues to be determined in favour of net community benefit and sustainable development.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit for a Hospital expansion in residential zone; Policy analysis; Traffic and Parking; Conditions recommended.

Restrictive Covenant preventing erection of 'more than one dwelling house'; Construction of covenant; Whether proposal prohibited by covenant; Planning and Environment Act 1987, s.61 (4) preventing issue of permit in breach of a registered restrictive covenant.

Healthscope Ltd v Moreland CC & Ors (includes Summary) (Red Dot) [2013] VCAT 99

1. Pursuant to the VCAT Act 1998, Schedule 1 clause 64(2) (there being no objection) the Tribunal permits the plans listed in Appendix B to be substituted for the plans accompanying the application.
2. The proposed development would result in a breach of the registered restrictive covenant.
3. Since a permit has not been issued, nor a decision made to grant a permit, to allow the removal or variation of the registered restrictive covenant, the Tribunal must, pursuant to the Planning and Environment Act 1987 s.61(4), refuse to grant a permit which would result in a breach of the covenant.

Mr Paul Connor of Counsel instructed by Ms Ingrid Player in-house counsel for Healthscope. Mr Connor called Mr Marco Negri Planning Consultant of Contour; Mr Bryce Raworth, Heritage Consultant, Mr Stephen Hunt, Traffic engineer of Cardno and Mr John Patrick Landscape Architect of John Patrick PL to give expert evidence.

Ms Louise Hicks of Counsel by Direct Brief from Mr Nick Muhllechner Planning Officer.

For Respondents: Maria & Felice Giordano, Georgia & Pavlos Dimitriadis, Tanya Pittard, Ian & Claire Ross and Helen Deans.

For Respondents: Maureen McCunnie, Sally Anania, Jan & Scott Sharman, Shirley and Leo Driscoll, Robert Bitmead, Nella & Giuseppe Valvo, Margherita Frazzetto, Francesca Frazzetto, Maria Alessandrini, Grace Alessandrini, Agatino Coniglione, Maria Falvo, Frank Falvo, William Howard, Sandra Shotlander, Catherine Moore, Mina, John McCunnie, Pino & Rosa Mazzeo, John Di Natale, Colette Walker, Lance Walker, Michele McKay, June Edwards ,

Nick Gray, Mia Abdulrahim, Emma Horsey, Scott Geddes, Ann Lightowler, Bruce Howard, Rachel Deans, Andreas Kinzel, Jan Rose, Doug Cumming, Yim Wah, Wai Ting Choi, Natala Cannata, Paul Lisciandrano, Ian Ross , Mark Higginbotham, Amber Benjafield.

Stage 1 Buildings and works to expand an existing six-level hospital building with an adjoining two to four storey building with undercroft parking facing Glencairn Avenue and a four-level multi-deck staff car park facing Jessie Street.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 43.01 Heritage Overlay HO82 (Glencairn Ave, Maranoa Crescent and Wattle Grove Precinct).

The site abuts a road in a Road Zone Category 1 (Moreland Road).

Clause 32.01-6 : a permit is required for building and works for a use in section 2 of the R1 zone;

Clause 43.01-1: a permit is required for building and works in HO82;

Clause 52.29: a permit is required to create or alter access to a road in a Road Zone Category 1.

Clause 63.05: a permit is required to construct buildings or works for a use in Section 2 or 3 of the zone for which an existing use right has been established.

The review site comprises the John Fawkner Hospital. The six-level hospital building was constructed in 1939 and is surrounded by consulting suites associated with the hospital, while driveways, loading bays, service bays and car parks also surround the hospital building.

The site occupies multiple lots and is located on the north side of Moreland Road. The main part of the site has a frontage to Moreland Road of 124 metres, a depth of 99 metres and a frontage of 124 metres to Jessie Street, which runs along the site's northern boundary. Glencairn Avenue is located to the west of the review site. Two lots on the eastern side of this street and which directly abut the main hospital site, are used for car parking.

The area surrounding the hospital site is predominantly residential in nature. The area to the west and north west in Glencairn Avenue is covered by a heritage overlay reflecting its early twentieth century origins. Residential uses are located on the north side of Jessie Street opposite the hospital, and further to the east, on the south side of the street. The south side of Moreland Road is also residential.

The Moreland Railway Station is located about 250 metres to the east. The Sydney Road Shopping strip is about 500 metres to the east.

14 December 2012 accompanied by representatives of the parties.

Prowse v Johnstone [2012] VSC 4; Ex parte High Standard Construction Ltd [1928] NSWStRp 107; (1928) 29 SR (NSW) 274, 278-9 per Harvey CJ in Equity in the Supreme Court of New South Wales; Bevalacqua v Port Philip CC [2002] VCAT 1537; Design 2u for and on behalf of Y & P Harel Pty Ltd v Glen Eira SC (Correction) [2010] VCAT 1865.

1. Healthscope Ltd have applied to the Council for a permit to undertake extensions and alterations to the existing John Fawkner Hospital. The proposal involves the construction of a new 4 level 114-space staff car park on the north side of the site facing Jessie Street and redesign of the existing ground level car park facing Glencairn Avenue with a new three level building above the car park. This building provides 51 additional beds, sterilisation services and staff room facilities. Other alterations to the existing building include a new east side lift well up to the fifth floor and internal rearrangement of the remaining hospital services including ground floor internal reception and emergency bed and cafeteria modifications and two fifth floor theatre additions. Car parking on the site will increase from 173 to 243.
2. The Council gave notice of the application and received 88 objections.
3. The council resolved to refuse the application on the following grounds:

1. The car parking provision is not sufficient for the expanded hospital use and is not to Council's satisfaction. 2. Loading and unloading arrangements have not been adequately addressed for the expanded use.

1. Increased traffic movements as a result of the expanded hospital use will cause an unreasonable impact on local residential streets, including Glencairn Avenue and Jessie Street.
2. We note that the Council's decision was made notwithstanding a recommendation from Council officers supporting the grant of a permit. We were advised that when considering the application, the Council accepted its officer's recommendation about all aspects of the proposal, other than with respect to the matters identified in the grounds of refusal.
3. The permit applicant has applied to the Tribunal to review the Council's decision.
4. Objectors to the application have submitted statements of grounds to the Tribunal. The objectors' statements raise a variety of issues in addition to those covered by the Council's grounds of refusal. These issues include concerns about general amenity impacts (noise, overshadowing, overlooking, visual bulk), the adverse impact of the proposal on the heritage place (HO82), failure of the proposal to respect the character of the neighbourhood, failure to respond to the planning scheme's policy framework, disruption during construction, property devaluation.
5. Prior to the hearing the applicant circulated amended plans in accordance with the Tribunal's Order dated 15 October 2012. In general terms the amended plans increase the Jessie Street car park's setbacks, provide increased landscape opportunities across the site, and modify the northern and front façade treatment of the proposed extension.
6. The applicant applied to substitute the amended plans and there was no objection to that application.
7. There is a restrictive covenant affecting part of the site. The lots at 4 & 6 Glencairn Avenue which have been used as a car park for about 40 years, are burdened by a restrictive covenant preventing the erection of more than one dwelling house. The objectors submit that the grant of the permit would result in the breach of the covenant and, because there has been no permit issued to allow the removal or variation of the covenant, the permit application must be refused.
8. The Tribunal in this case has been constituted to include a legal practitioner to decide the questions of law raised by the objectors in relation to the existence of the restrictive covenant. Senior Member Komesaroff has decided the question of law. For the reasons contained in this decision, Senior Member Komesaroff has concluded that the issue of a permit for this proposal would contravene the covenant. We are therefore prevented from directing the issue of a permit.
9. The submissions about the restrictive covenant were presented to us at the commencement of the hearing. Senior Member Komesaroff reserved her decision on that matter and we proceeded to hear submissions and evidence about the balance of the issues in dispute in this case. All parties presented comprehensive submissions and the permit applicant called expert evidence from four witnesses. The hearing in total was conducted over four and one half days. Having regard to the fact that the issues in dispute were fully ventilated before us, it is appropriate that we record our findings about those issues, notwithstanding that the interpretation of the covenant prevents us from directing the issue of permit.
10. Having considered the submissions and the evidence presented, and having inspected the site, neighbouring properties and the surrounding area, had it not been for the constraint imposed by the interpretation of the restrictive covenant, we would have directed the issue of a permit for this proposal. For the reasons we elaborate on subsequently, we have concluded that this proposal achieves a significant community benefit in the form of upgraded medical facilities. This community benefit is achieved without imposing unacceptable impacts on surrounding residents. It is also achieved in a manner that is acceptable having regard to the applicable policy framework, the zone and overlay provisions and decision guidelines of the planning scheme.
11. Our decision to provide detailed findings about the merits of the proposal is also influenced by the fact that there are a number of mechanisms available to the permit applicant to remove or amend the covenant. It is of course, a matter for the permit applicant to determine which, if any, of these mechanisms it may seek to pursue in order to facilitate the approval of the proposed extensions and alterations to the Hospital. Having regard to the significant community benefit that will undoubtedly flow from the upgraded and enhanced medical facilities associated with this proposal, we have concluded that our detailed reasons on the merits of the proposal together with the detailed conditions we recommend may be useful in any subsequent proceedings about the merits of this proposal.

1. The objectors raised a preliminary question of law on the construction of a restrictive covenant over the proposed west wing extension which constrains the Tribunal pursuant to the Planning and Environment Act 1987, s.61(4). This part of the decision was written by the legal member, Senior Member Komesaroff. Section s.61(4) reads:

If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

1. Two consolidated blocks of land at 4 & 6 Glencairn Avenue form part of the hospital's proposed west wing. Nos. 4 & 6 are Lots 36 & 37 LP 5737 created out of the parent title of the former Glencairn estate at 6 Craigrossie Avenue Coburg. Nos. 4 & 6 are burdened by a restrictive covenant preventing the erection or placement of 'more than one dwelling house'. Most of the west wing of the hospital will occupy these two lots, which for the past twenty years have been and still are being used for parking hospital staff cars[1]. The issue is whether the covenant prevents construction on nos. 4 & 6 of the proposed west extension to John Fawkner Private Hospital.
2. When Lot 36 was transferred out of the parent title on 18 May 1920 and when Lot 37 was transferred out of the parent title on 31 July 1913 each transferee and his successors entered into a covenant with the transferor and his successors. Only four Instruments of Transfer of lots transferred out of the Craigrossie estate containing this covenant were tendered to the Tribunal[2]. The Tribunal has been asked to infer that all Transfers from plan of subdivision LP 5737 contain this restrictive covenant and given the imprimatur of the VCAT Act 1998 s.98(1)(d) [3] we so infer. No objection to this course was raised by the hospital's legal counsel.
3. The covenant reads:

... will not erect or place on such land more than one dwelling house no such house to be other than a New Double Fronted Weatherboard, Brick, Stone, Concrete or other similar Building, and to have the Front thereof to or facing the east side of Glencairn Avenue shown on the said Plan of Subdivision, and also will not at any time hereafter in any manner howsoever quarry on the said land hereby transferred or any part thereof or make any excavations thereon or on any part thereof except as may be necessary for laying the foundations of any Buildings to be erected thereon.

1. There is a slight difference between the covenants on each of Lots 36 & 37 LP 5737 which were contained in Instruments of Transfer dated 1913 and 1920 when the relevant lot was transferred out of the Craigrossie estate. One covenant has a comma after the word 'dwelling house' and one does not. One covenant addresses the 'west' instead of the 'east' side of Glencairn Avenue. I agree with Mr Connor[4] that but for these minor variances in punctuation, the covenants are essentially the same. These typographical differences have made no difference to my analysis.
2. The Responsible Authority's attitude to the covenant is:

As the proposed development consists of an extension to the existing hospital and no dwellings are proposed to be constructed, the proposal does not breach the restrictive covenant

and it is this simplistic interpretation that the hospital urges upon the Tribunal.

1. The objectors submit that the proposal would result in a breach of the restrictive covenant, triggering s.61(4) of the Planning and Environment Act 1987, which requires the Responsible Authority and in its place the Tribunal, to refuse a permit unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of that covenant.
2. The objectors submit the covenant is a restriction on built form designed to create a consistent domestic or residential subdivision out of the primary Craigrossie estate. The hospital agrees the covenant is directed to preventing the construction of multiple dwelling houses, but submits any other type of building does not breach the covenant provided it is not more than one dwelling house.
3. The objectors did not also insist that the use of the land, not merely its built form, must be residential. That discussion was left to another day. There is a body of case law which holds that a constraint on domestic built form does not necessarily constrain use of the land to a residential use. See for example the medical centre cases which permit conversion of existing dwellings to use for a medical centre provided the built form remains residential or domestic[5].

1. There are two ways in which the covenant can be construed. Either any building provided it is not 'more than one dwelling house' can be erected on the land. This would permit a single dwelling house as well as any other type of building including a hospital, shop, tannery, pub or factory but it would not permit multiple dwelling houses per lot.
2. Alternatively, no building other than 'one dwelling house' can be erected per lot. Under the latter interpretation the word 'more' does not mean a measure of quantity attached to the word 'one' but means 'anything other than' and is attached to the whole phrase 'one dwelling house'.
3. Put another way, the objectors say the engine room of the covenant is the first line - will not erect or place on such land more than one dwelling house - and everything else flows from that engine room. It means will not erect or place on such land [anything] more than one dwelling house.
4. The hospital adopts a simplistic approach and submits that since what is proposed is not a 'dwelling house' the covenant does not 'speak to' or address the proposal and that different words would have been used were it intended to restrict development to only one dwelling house, e.g. 'no building other than one dwelling house'. The same argument was attempted without success in Prowse v Johnstone[6], which I address later.
5. Further, the hospital submits that the words 'any buildings' mentioned in the quarrying restriction prove that buildings other than dwelling houses are contemplated. To which the objectors respond that firstly, the words 'any buildings' mentioned in the quarrying restriction refer back to the 'dwelling house' as a building type and secondly are internally consistent with allowing quarrying for outbuildings appurtenant to a dwelling house.
6. In this case, given the time, money and effort expended on bringing this critically needed hospital expansion to a hearing utilising the Major Case List, it is tempting to adopt the first simplistic interpretation.
7. But the objectors submit that to construe the covenant as preventing multiple dwelling houses per lot but allowing any other type of building would be to find against the intention of the parties to the covenant and render the covenant futile. Planning controls were not introduced into Victoria until the mid-twentieth century, so owners placed restrictive covenants over their land to establish a residential estate of a particular character. The covenants contained in the Instruments of Transfer out of LP 5737 are said to establish just such a residential estate.
8. Plan of Subdivision LP 5737 applies to a consistent row of fifty allotments extending between Moreland Road and Craigrossie Avenue on the east and west side of Glencairn Avenue and the east side of Strathearn Avenue. If the covenant means that any type of building can be built on each allotment provided it is not multiple dwelling houses per lot, that would apply across the whole subdivision not just to nos. 4 & 6 Glencairn Avenue.
9. We were directed to many precedents, although one must exercise caution in applying the wording of different covenants or in applying a different set of facts[7].

32 The language of the covenant should be interpreted in a common vernacular use or colloquial and ordinary sense, not in any technical or legal sense and should be interpreted in the context of the document as a whole[8]. Downie v Lockwood[9] permits reading the document in light of the factual background against which it was made i.e. to create a residential estate of a particular character for the entire subdivision in LP 5737. It is that context which leads me to conclude, after the same struggle that I experienced in Brissac[10] and Saxena[11]__, that the simplistic interpretation is incorrect, for it would result in an absurd or unintended outcome. Deputy President Macnamara (now Judge Macnamara) adopted the same logic and reasoning in D'Amelio & Ors v Monash CC[12] where he refused to adopt a literalist construction of a covenant on the basis that, looking at the covenant in a colloquial and non-technical sense, it would be an unlikely outcome.

1. Firstly, in its colloquial or ordinary sense, laypersons seeing this covenant would understand it as a single dwelling covenant restricting more than just multiple dwellings per lot. Secondly, the entire subdivision is affected by this covenant which is intended to operate to create a residential estate of a particular character over the entire subdivision. Thirdly, it would be absurd for the covenantor to permit in his subdivision a single dwelling house as well as any other type of building including a hospital, shop, tannery, pub or factory just not more than one dwelling per lot.
2. Prowse v Johnstone[13] (Prowse), a recent Supreme Court decision on restrictive covenants, is directly on point. Cavanough, J. expounds the principles to be applied when constructing restrictive covenants. The relevant part of the covenant in Prowse is almost identical to ours:

will not erect more than one house[14] on each of the said lots.

1. In Prowse the plaintiff submitted that one block of 18 apartments[15] complied with the 'one house' requirement because it was a built form restriction as opposed to a use[16] restriction[17]. Cavanough, J. rejected that 18 apartments read or presented as one house[18] holding that the words 'one house' prohibits the erection of any building designed for separate occupancy by more than one household or family[19] regardless of how it 'presents'[20]. Cavanough, J. held that the object of constraint on population density emerges from a reading of the entire document[21] militating against acceptance of an apartment block as a 'house'.
2. In Prowse the plaintiff submitted alternatively that if the proposed development does not constitute one house, it is not a house at all and thus does not contravene the restriction. The plaintiff submitted:

'the words do not prohibit the erection of one house, or of a building which is not a house'[22].

This latter contention mirrors the hospital's submission in this case.

1. Cavanough, J. disposed of this construction. He called it an 'artificial and unreal construction'[23] which would 'turn the covenant on its head'[24] with the effect of allowing anything other than [in that case] buildings designed for trade or commerce, but allowing a vast range of things and also free of the requirements as to building materials expressed in the second part of our covenant which only apply to a 'dwelling house'[25]. In respect of the 'vast range of things' Cavanough, J. said:

[89] On that basis, a vast range of things could be erected, even if buildings designed for trade or commerce were excluded. At the very least, any kind of building designed for private recreational purposes could be erected. Examples might include a private menagerie or aviary or fowl house. Or it might be a private sporting facility, such as a squash court. Moreover, on the plaintiff's alternative approach, the building would be free of the requirements as to building materials and minimum cost. Those requirements apply only to "any house so erected". By hypothesis, the plaintiff's proposed block of flats, not being a house or one house, could be constructed of weatherboards or any other building material, however cheap. That would have been so in 1912 and at all times since.

1. I am bound to follow the Supreme Court decision by Cavanough J and I agree that it would result in an absurd or unintended outcome for the covenantee to permit in his subdivision a single dwelling house as well as any other type of building including a hospital, shop, tannery, pub or factory or anything provided it was not more than one dwelling per lot. I also think that if persons were asked at the time of the drafting of the covenant what they thought the covenant meant in the common vernacular, they would be startled to discover it allowed an unlimited range of buildings which are not dwellings.
2. Where a doubt or ambiguity about the meaning of a restrictive covenant arises and cannot otherwise be resolved, the rule is that the covenant should be construed against the covenantor (in this case the hospital) although this is a rule of last resort[26]. However I do not need to apply this rule against the hospital, as the principles of construction of restrictive covenants makes it clear, upon analysis, that there is no ambiguity in this case.

1. Has use of the two lots as a hospital car park rendered the restrictive covenant obsolete and unenforceable? The hospital submits that even if the covenant is interpreted against it, it is unenforceable therefore s.61 (4) of the Planning and Environment Act 1987 does not apply to prevent us from directing the grant of a permit.

41 But s.61 (4) is not concerned with enforceability. Says Senior Member Byard in Bevilacqua v Port Phillip CC & Ors[27]:

I think it is clear, indeed obvious, that the existence of a restrictive covenant is not dependent on it being able to be enforced, or upon there being someone able to enforce it, or upon there being someone against whom it is able to be enforced.

1. Rather, it mandates refusal of a permit unless a permit has been issued or a decision made to grant a permit to allow the removal or variation of the covenant. In Design 2u for and on behalf of Y & P Harel Pty Ltd v Glen Eira SC (Correction)[28] Deputy President Gibson exhaustively analysed s.61 (4) against the machinery provision of s.62(1)(aa) and explained the mischief which the Planning and Environment (Restrictive Covenants) Act 2000 intended to address. Deputy President Gibson summarily dismissed the review proceeding as there was no permission to remove or vary the covenant and in doing so, following Senior Member Byard in Bevilacqua.
2. In any event submit the objectors, the fact that an open air hospital car park (but no building) exists on the site does not ipso facto mean that beneficiaries of the covenant are barred from exercising whatever rights they do have to prevent the hospital from building a hospital extension on nos. 4 & 6. See Bevilacqua:

to consent to a mouse does not imply consent to an elephant, or even a rat[29].

The mouse, elephant and rat argument has much to commend it and was applied in Ferella v Otvosi[30] to uphold a covenant even though some alteration had occurred in the abutting neighbourhood.

1. Since a permit has not been issued, nor a decision made to grant a permit, to allow the removal or variation of the registered restrictive covenant, the Tribunal must, pursuant to the Planning and Environment Act 1987 s.61(4), refuse to grant a permit which would result in a breach of the covenant.

1. The issues in this case can be categorised under following headings:
   • Is the proposal acceptable having regard to the policies and provisions of the Moreland Planning scheme?
   • Will the proposal adversely affect the natural or cultural significance of the heritage place?
   • Will the proposal have unacceptable amenity impacts?
   • Has the applicant managed the traffic, car parking, and loading, unloading and waste management arrangements in an acceptable manner?
2. Our reasons for concluding that this proposal achieves acceptable outcomes are set out under each of these headings as follows.

Is the proposal acceptable having regard to the policies and provisions of the Moreland Planning scheme?

1. A Hospital has been continuously operating from the review site for about 70 years. Alterations and modifications to the hospital have occurred periodically over that time. We were advised that the construction of the main six storey building was completed in 1939 and at that time was known as Sacred Heart Hospital. As a consequence of a change of ownership the hospital was renamed John Fawkner Hospital in 1992. The current owners acquired the hospital in 2005.
2. The hospital provides a range of surgical procedures, medical treatments and diagnostic services. Ancillary medical services such as physiotherapy, pathology, radiology, occupational therapy, diabetes services, dietetics and nutrition services are also provided. The hospital treats about 25,000 patients per year. The emergency department treats over 10,000 patients per year. The hospital employs approximately 600 people and accommodates about 450 accredited visiting specialists.
3. The objectors however submit that the proposal to upgrade the hospital conflicts with a range of policies contained within the State and Local Planning Policy Frameworks of the Moreland Planning Scheme.
4. With respect to the State Planning Policy Framework (SPPF) the objectors refer to and rely on those provisions of Melbourne 2030[31], and Clauses 11, 15, 17 and 19 of the planning scheme. It is their submission that this proposal conflicts with those policy objectives that emphasise the need for the design of all developments to respect neighbourhood character, respond to the local context of the site, integrate with the local community, and not contribute to unacceptable amenity impacts.
5. The objectors also refer to local policies relating to these matters[32]. The objectors submit that the council's policy at Clause 22.01, which states that master plans may be required when considering applications for non residential uses in residential areas, is a relevant consideration in this application. The applicant's failure to prepare a master plan is, in the objector submissions, a significant shortcoming of the proposal.
6. By virtue of the height, scale and design of this proposal, the intensity of the use, and the failure to provide a master plan, the objectors submit that the proposal fails when tested against each of the policy objectives.
7. The objectors further submit that the proposal should be regarded as an "out of centre" development that, in accordance with Clause 17.01-2 of the SPPF, is discouraged at this site. We were advised that consideration had previously been given by the hospital to relocate to a proposed health precinct centred on a major activity centre at Bell Street, Coburg. Notwithstanding the demise of that proposal, the objectors continue to submit that the relocation of the hospital to a site in or on the border of an activity centre represents an optimal planning outcome supported by planning policy.
8. We note that the council appropriately acknowledges that the hospital is a long established key community health facility and that it is a major employment generator. The council submits that the proposal to upgrade and extend the existing hospital facilities is consistent with the overall purpose of both State and local planning policy framework. As we have indicated previously the council's concerns with this proposal do not extend beyond car parking and traffic management
9. With respect to issues of neighbourhood character, building design and heritage, we address these matters in detail subsequently. We note at this point however, that a hospital is a discretionary use in the Residential 1 zone (this hospital enjoys existing use rights) and the location of hospitals in residential areas is not uncommon. There is a long line of Tribunal decisions that have commented on the appropriateness of non residential uses (including hospitals) being located in residential areas. Any assessment of this proposal's respect for the character of the area must be undertaken in the context that hospitals are a permitted, legitimate and appropriate use in a residential zone.
10. Submissions about the hospital being an "out of centre development" are not sustained. The concept of an out of centre development arises from Clause 17.01-2 which forms part of State policy on economic development and is a sub clause of clause 17.01 which relates to commercial development. The objective of clause 17.01-2 is:

To manage out of centre development in Metropolitan Melbourne.

Ensure that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.

Ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal.

Discourage large sports and entertainment facilities of metropolitan, State or national significance in out-of-centre locations unless they are on the Principal Public Transport Network and in locations that are highly accessible to their catchment of users.

1. The policy at Clause 17.01-2 does not refer to health facilities when identifying the type of uses that are discouraged from establishing in out-of-centre locations.
2. We acknowledge that the policy framework of the planning scheme places considerable emphasis on activity centre policy and the importance of facilitating activity centres "as a focus for high-quality development, activity and living for the whole community"[33]. However, a balanced and comprehensive analysis of the applicable policy framework does not support the proposition that the extensions and alterations to the John Fawkner Hospital should not be approved because it is not located in an activity centre.
3. To some extent at least, the objector submissions on these points are predicated on the private ownership of the John Fawkner Hospital. The objectors described this proposal as an "international commercial venture" that aims to commercialise a residential area, to the detriment of local residents, without the payment of compensation to the residents. Because of the hospital's private ownership, the objectors question the extent to which the hospital does contribute to the community's well being. They submit the existing operations of the hospital adversely impact on the amenity and character of the neighbourhood, and these impacts will be further exacerbated by the proposed extensions.
4. The ownership of the John Fawkner Hospital is of little relevance to our consideration of the merits of this proposal. The hospital, along with all other private and public hospitals form part of the totality of the provision of facilities intended to provide health care for the community. We acknowledge that in most cases, a hospital in public ownership is likely to be located on land reserved under the planning scheme for that purpose, and is therefore unlikely to require a planning permit for its initial establishment or for subsequent extensions or upgrades. However the suitability of a site for a hospital use, its acceptability having regard to the policy framework of the planning scheme and, importantly in the context of this case, its impacts on neighbouring and surrounding properties, should be assessed in exactly the same way irrespective of whether the hospital is in public or private ownership.
5. The provisions of Clause 19.02-1 of the SPPF that relate specifically to health care facilities reinforce our findings on this matter. The objective of that clause is:

To assist the integration of health facilities with local and regional communities

Facilitate the location of health-related facilities (including acute health, aged care, disability services and community care facilities) with consideration given to demographic trends, the existing and future demand requirements and the integration of services into communities.

Plan public and private developments together, where possible, including some degree of flexibility in use.

Locate hospitals and other large health service facilities in areas highly accessible to public and private transport.

Adequate car parking facilities should be provided for staff and visitors

1. The policy draws no relevant distinction between public or private health facilities.
2. In terms of the submission made in this case against the grant of a permit, it is also of some significance that Clause 19.02-1 is included as part of the SPPF headed "Infrastructure". That policy states:

Planning for development of social and physical infrastructure should enable it to be provided in a way that is efficient, equitable, accessible and timely.

Planning is to recognise social needs by providing land for a range of accessible community resources, such as education, cultural, health and community support (mental health, aged care, disability, youth and family services) facilities.

Growth and redevelopment of settlements should be planned in a manner that allows for the logical and efficient provision and maintenance of infrastructure, including the setting aside of land for the construction of future transport routes.

Strategic planning should facilitate efficient use of existing infrastructure and human services. Providers of infrastructure, whether public or private bodies, are to be guided by planning policies and should assist strategic land use planning.

Planning authorities are to consider the use of development contributions (levies) in the funding of infrastructure.

1. There is clearly an emphasis in the policy on the need to facilitate the provision of social and physical infrastructure in an efficient, timely, equitable manner, and to ensure that infrastructure is accessible. Infrastructure should be provided in response to social needs, and the efficient use of existing infrastructure is encouraged.
2. The objector submissions that this application should be refused, needs to be considered within the policy context that encourages the efficient, timely and equitable provision of infrastructure, and the encouragement for the efficient use of existing infrastructure.
3. The objectors have not presented to us any material that would persuade us that the closure of this long established hospital and its relocation to some undefined site in an activity centre, is consistent with the policies relating to infrastructure provision, the efficient use of existing infrastructure, and the policies relating specifically to health care.
4. The policies relating to the use of existing infrastructure is particularly relevant in this case. The review site enjoys existing use rights pursuant to Clause 63.01 of the planning scheme[34] and consequently the operators of the hospital are entitled to continue to use the land for the purpose of a hospital in accordance with the provisions of that clause. Ultimately therefore, decisions about relocation are matters to be determined by the operators of the hospital. It is fair and reasonable to assume that in order to continue to provide high quality health care from this site, the hospital will need to undergo continuous change. Provided that these changes can be facilitated in an acceptable manner having regard to the provisions of the planning scheme, there is no policy basis to support the refusal of this application on the basis that, in the objector's submission, it is a use that should be located elsewhere.
5. During the course of the hearing the Tribunal commented in the context of the objector submissions about the hospital relocation, that the Tribunal is charged with assessing whether the proposal before us achieves acceptable outcomes, and that it is not our role to decide whether the ideal or optimal outcome would be achieved by the hospital being located elsewhere[35]. Our comments made at the hearing are reinforced by our findings that the objectors have not established a sound policy basis in support of their submission that the hospital should be relocated, or that the proposed extensions and alterations are not in line with the planning scheme's policy framework.
6. The lack of a master plan for the hospital is a relevant matter for us to consider. The master plan approach has been adopted by a number of councils throughout the metropolitan area as a means of managing the adverse impacts of institutional uses located in residential areas. The Tribunal in a number of cases has supported the preparation of master plans in such circumstances[36]. There are also cases in which the Tribunal has found the preparation of a master plan to be unnecessary[37]. The preparation of a master plan is not a mandatory requirement. Whether a master plan is necessary in order to achieve an acceptable outcome is a matter to be determined in each case. We agree with Mr Negri's evidence on this point. In the circumstances of this case, a master plan is neither a necessary nor desirable prerequisite to the consideration of the permit application because issues relevant to determining whether or not a permit ought to be issued are capable of being addressed through the planning permit process. We are not persuaded that a master plan would assist us in any significant way in making decisions on the relevant issues.
7. As we have indicated above, we address in more detail the policy provisions relating to specific aspects of the proposal such as built form, character, heritage and amenity considerations. From a broad policy perspective, we agree with Mr Negri's analysis of the policy issues. The proposal contributes to improved and increased health care facilities within an existing, well established hospital on a site that is integrated with local and regional communities, and is accessible to those communities. This is a policy outcome specifically encouraged by Clause 19.02-1 of the planning scheme. Our findings on this point are influenced by the fact that the site is located on a main road and enjoys excellent access to public transport. The Moreland railway station is about 200 m to the east. Bus services operate along Moreland Road and tram services operate on Moreland Road (to the east of the railway station), and along Sydney Road.
8. Having regard to the above, we are satisfied that the proposal is acceptable with respect to the policy framework of the planning scheme.

Will the proposal adversely affect the natural or cultural significance of the heritage place?

1. The review site comprises a number of lots and forms a large site with a primary frontage to Moreland Road, and secondary frontages to Jessie Street to the north, and Glencairn Avenue to the west. The site is unencumbered by a heritage overlay except for two lots that have a frontage to Glencairn Avenue. These lots currently contain a car park. The heritage overlay affecting these lots is HO82 (Glencairn/Maranoa Crescent/Wattle Grove Precinct) that covers an area from Glencairn Avenue to the east, Wattle Grove to the north, Haig Avenue to the west and Moreland Road to the south. HO82 does not extend into Jessie Street to the north of the review site, although a separate overlay (HO115) commences to the east of the review site and extends to Station Street, encompassing the eastern end of Jessie Street.
2. The primary heritage issue in this case is the effect that the works proposed for the car park in Glencairn Avenue will have on the significance of the heritage place defined by HO82.
3. The statement of significance for the heritage place is as follows:

The Glencairn Avenue Precinct is of local historical and architectural significance. It is an early 20th century subdivision surrounding Glencairn, the original homestead of the area. The Precinct as a whole is notable for the intactness and homogeneity of its mainly inter-war houses, displaying a high level of integrity and cohesion of scale, materials and setbacks. The Precinct represents the more affluent suburban development in Coburg which occurred between the wars. The hilly topography, mature street planting and curvilinear street pattern contrasts with much of the rest of the municipality[38].

1. There is no real dispute in this case about the significance of the heritage place. The statement of significance accurately represents this heritage place. Mr Raworth describes Glencairn Avenue to the north of the review site as a relatively consistent streetscape of single storey largely Edwardian and interwar timber dwellings.
2. The objectors refer to and rely on the SPPF at Clause 15.03, the purpose and decision guidelines of the heritage overlay at Clause 43.01, and the council's local heritage policy at Clause 22.13. They point out that these policies and provisions require that developments undertaken in heritage areas enhance the character and appearance of heritage places, ensure that developments do not adversely affect the significance of the heritage place, and ensure that contributory elements remain prominent in the heritage place and are not dominated by new buildings.
3. The objectors submit that the proposal to construct a multi storey building above the existing car park in Glencairn Avenue creates a building that will assume a dominating presence in the streetscape and, because of its siting, form, height, mass, materials and colours, it will adversely affect the significance of the heritage place. The objectors submit that an acceptable heritage outcome for this site would be a building that derives its influences from the dwellings in the street, adopts a more conservative and less overpowering presence in the street.
4. Having regard to the existing context of the site, the principal heritage issues for us to determine in this case, are conveniently summarised in the council's heritage policy. At Clause 22.13-3 under the heading New Buildings and Alterations and Additions, new buildings are encouraged to be respectful of the existing scale, massing, form and siting of contributory or significant elements and should not dominate the heritage place. New buildings should not detract from nearby contributory or significant elements within the precinct.
5. In undertaking our assessment of this proposal's effect on the significance of the heritage place, the existing condition of the site, its position in the streetscape and its existing contribution to the significance of the place, are relevant matters. In this respect the existing use of the two lots in Glencairn Avenue as a car park makes no contribution to the significance and appreciation of the heritage place. We agree with Mr Raworth that the car park has a detrimental visual impact in the streetscape. The lack of structures on the site creates a gap in the streetscape (admittedly a gap located at the southern extremity of the street) and exposes views within Glencairn Avenue of the six storey hospital building, making that building more visually prominent from various vantage points within HO82, than it might otherwise be. By virtue of its function, the car park is utilitarian and unattractive.
6. It is also very relevant that the proposal is for a new building associated with a long established hospital that enjoys existing use rights on this site. To the extent that the council's heritage policies and guidelines for new developments or additions in a heritage place are directed at residential development, these are not particularly useful when assessing this proposal. The hospital function of the building necessarily influences the form of the proposed building and there cannot be a reasonable expectation that the new building should be required to adopt a domestic, residential scale or form. A balance must be struck between the competing provisions of the planning scheme relating to, in this case, the provision of health care facilities and the protection and enhancement of heritage areas[39]. The striking of the appropriate balance requires judgements to be made in each case by all those involved in the planning process, and ultimately by the decision maker. The judgement we have arrived at in this case is that the design of this proposal represents an appropriate response to the site's heritage context and is acceptable from that perspective. We have reached that conclusion for the following reasons.
   • The proposed building will fill the gap created by the car park at the southern end of the street. It will achieve this beneficial outcome through the construction of a building that is clearly contemporary in style. The council's local policy encourages innovative and contemporary design that makes a positive contribution to the heritage place and discourages development that closely replicates historic styles and detailing[40].
   • The building will reduce the visibility of the existing hospital building from within Glencairn Avenue through the car park. The upper levels of the existing hospital building will continue to be viewed from within the streetscape, but the foreground of that view will contain a well designed, contemporary building that obscures the lower levels of the existing hospital, and replaces the existing view of the utilitarian car park.
   • The proposal involves the retention of the ground level car park with the new building constructed above. The new building at first floor (immediately above the car park) is setback from the street 4.8 m, generally in line with the front setback of the dwelling to the north, narrowing at the southern end to 3.2 m where the building abuts the sideage of the new, two storey medical building that has a frontage to Moreland Road. Above that level, the building is setback 14.85m from Glencairn Avenue. At the third floor the setback increases in part to 22.55m (northern section).
   • The height of the proposed building at the second level (RL 64.615) is comparable to the roof height of the dwelling to the north (RL 63.20), and to the new double storey building to the south. The additional heights at third and fourth levels are significantly setback from Glencairn Avenue.
   • The street façade of the proposed building is articulated through a combination of materials, colours and setbacks.
7. Because of these features, the building assumes a two storey form in the streetscape. It is setback in accordance with the existing street setback pattern, with the upper levels recessed significantly from the front street boundary. On this basis we are satisfied that while the building will be prominent in the streetscape, it will neither dominate the heritage place nor detract from nearby contributory or significant elements within the heritage place.
8. Having concluded that the proposal is acceptable from a heritage perspective, we are nevertheless required to be satisfied that the proposal is also acceptable in terms of respecting the preferred future character of the neighbourhood
9. Issues about the character of a neighbourhood are different than those required to be considered when assessing a proposal affected by a heritage overlay. The council has a separate neighbourhood character policy that applies to all residential areas irrespective of the existence or otherwise of a heritage overlay. In this case, part of the site is affected by a heritage overlay, and part of it is not. Preferred Future Character Statements and Neighbourhood Character Guidelines have been prepared to guide the exercise of discretion about a proposal's impact on the character of a neighbourhood.
10. While the heritage overlay decision guidelines and heritage polices require us to be satisfied that a proposal does not adversely affect the significance of the heritage place, neighbourhood character policies place a greater emphasis on the need to ensure that new development respects the existing scale and siting of the predominant built form of the precinct[41]. The different wording used in the different provisions is significant to the extent that the character policies contemplate or accept a level of change in the character of an area as a consequence of new development, and requires that development to be "respectful" in its design.
11. Our earlier comments about the form and the building necessarily being influenced by its function as a hospital, are equally relevant when considering this proposal's impact on the character of the neighbourhood.
12. The review site is located in two neighbourhood character precincts, no.47 which relates to the area to the west commencing at Glencairn Avenue and no. 38 which extends to the north and the east of the hospital[42]. In addition to Clause 22.10, the council also has a policy at Clause 22.11 relating to development of four or more storeys.
13. The preferred future character statement for both precincts suggest a maximum height for new development of 2 storeys unless the prevailing height of the neighbourhood is greater than that, in which case an additional 1 storey above the prevailing height is contemplated.
14. With respect to precinct 47, we are content to record our finding that the proposal achieves an acceptable neighbourhood response, based largely on our assessment of the proposal as outlined above. The height of the building, the setbacks and the articulation of the façade all contribute to a design response that is respectful of the character of that precinct. The opportunity for the provision of additional landscaping across the frontage of the site also contributes positively to the proposal's character response.
15. With respect to precinct no.38 Mr Negri provided a detailed assessment of the proposal's response to the character of this neighbourhood. We agree with Negri's evidence on this issue. In broad terms the principal issue is the proposal's presentation to Jessie Street to the north. At this interface it is proposed to construct a four level staff car park. The building is setback 4.0 m from Jessie Street, and 8.0 m from the western property boundary, at ground, first and second level, increasing to between 12.0m and 13.0 m at the top level.
16. The car park is to be located on an existing at grade car park with the rear of the existing main hospital building beyond, rising to between 3 and 6 storeys at this location. Limited landscaping is currently provided on this part of the site. A three storey building which forms part of the hospital is located to the east of the existing at grade car park.
17. Having regard to these matters we are satisfied that the applicants have, within the constraints presented by the site, designed a proposal that is respectful of the existing and preferred future character of the neighbourhood. This is not a case in which the applicant has sought to "push the boundaries" of acceptability in terms of the proposal's impact on the character of the neighbourhood. Clearly, the new car park will assume a strong visual presence in the neighbourhood, but that is almost an inevitable outcome of any proposal for this hospital seeking to upgrade and extend its facilities.
18. Apart from the buildings on the hospital site, the prevailing height of the residential area in precinct 38 is one storey, although there are higher buildings in the precinct. Nevertheless we are satisfied that the height of the car park at this location is acceptable having regard to the existing context of the site. The proposed car park is lower than the existing three storey building immediately to the east. The proposed car park also mediates between the higher buildings on the site to the south and the single storey dwellings opposite the site in Jessie Street. The proposed car park's setbacks from Jessie Street and the western boundary provide ample opportunity for meaningful landscaping to be provided around the site boundaries.
19. Clause 22.11 of the LPPF applies to development of four or more storeys. The policy is structured around five design themes being public/private interface, off site impacts, movement and access, internal planning and design, and technical performance.
20. We have addressed above several of the issues identified in the policy, relating to character and heritage. We address below issues concerning off site impact, movement and access. There are no other matters raised in the policy that would persuade us that the proposal is not acceptable.

Will the proposal have unacceptable amenity impacts?

1. The review site has two sensitive residential interfaces that directly abut the review site. These properties are at nos. 8 and 10 Glencairn Avenue.
2. No. 8 Glencairn Avenue is occupied by a single storey dwelling and presents a side boundary to the existing car park in Glencairn Avenue, and a rear boundary to the existing Jessie Street car park. A substantial car port is located on the southern side boundary with outbuildings constructed along much of the rear boundary.
3. The Glencairn Avenue extension over the existing car park is proposed along the side boundary of no. 8. The proposed building is setback a minimum of 6.6 m from the common side boundary, increasing to 9.5 m at the upper levels. While the first floor of this building extends to within 4.8 m of the front boundary (in line with the dwelling at no.8), the upper levels are significantly setback from the front boundary, and commence at a point generally aligned with rear of the dwelling.
4. The proposed Jessie Street multi deck car park is to be setback between 8.0 and 12.0 m from the rear boundary of no. 8.
5. The potential amenity impacts of the proposal on this dwelling include overshadowing, overlooking, and visual bulk/building appearance.
6. With respect to overshadowing, the impact on no.8 is confined to a small increase at 9.00 am associated with the proposed multi deck car park. The small additional shadow diminishes through the morning and is clear of the site well before midday. There is no significant shadow impact associated with the Glencairn Avenue building, which is located to the south of no. 8.
7. Overlooking from the multi deck car park has been managed through the use of solid metal cladding in the western elevation. Highlight windows have been incorporated into the northern elevation of the Glencairn Avenue building. These techniques successfully minimise overlooking opportunities to a level consistent with the standards typically applied to residential development[43].
8. With respect to visual bulk/building appearance, we agree with Mr Negri's assessment that the combination of building setbacks, articulation in façade treatment, building materials and finishes, and the landscaping opportunities available along both the northern and western boundaries, are sufficient to ensure that the proposed buildings will not have an unacceptable impact on the amenity of this dwelling.
9. No. 10 Glencairn Avenue is located immediately to the north of no.8. A single storey dwelling occupies this site. The proposed multi deck car park is sited so that it straddles the common side boundary between nos. 8 and 10 and, with respect to no.10, occupies about 2/3 of the width of this lot. It is setback between 8 and 12 metres from the rear boundary of no.10. An existing hedge along the rear boundary is to be retained and enhanced in accordance with Mr Patrick's recommendations.
10. The shadow impact of the proposed multi deck car park is confined to a small additional shadow at 9.00 am falling over the roof of the outbuilding constructed on the south and east boundary of the site. This will have no significant impact on the amenity of that dwelling. Our earlier observations about the proposal's impact on no.8 with respect to overlooking and visual bulk/building appearance, are equally applicable to no.10.
11. In addition to the matters addressed above, objectors referred to a range of other issues falling generally within the category of amenity impacts. These issues include waste management (which we address subsequently), noise, health and safety, vermin control, property devaluation, and disruption during construction.
12. We commented on many of these issues during the course of the hearing. We noted that at least some of the issues relate to operational matters associated with the existing hospital and are matters that could be addressed as a result of liaison between the hospital, council and residents. We are not persuaded that submissions about alleged declining property values in the area are relevant to our consideration of the merits of this proposal. Issues associated with disruption during construction are partly resolved through the building permit system and though permit conditions requiring a construction management plan.
13. We note that the council has included a condition in its draft conditions requiring an acoustic report to be prepared prior to the commencement of development. The acoustic report is required to demonstrate compliance with the appropriate State Environment Protection Policy (SEPP N1). In the circumstances of this case, we are satisfied that a condition of this type is appropriate in terms of ensuring that the SEPP is complied with, although we do offer the observation that in different circumstances, such a report is most appropriately prepared as part of the application material. In any event, we are satisfied that all aspects of the proposal are capable of demonstrating compliance with the appropriate noise standards.

Has the applicant managed the traffic, car parking, and loading, unloading and waste management arrangements in an acceptable manner?

1. The John Fawkner Hospital has three street frontages. Moreland Road is a secondary State arterial road and is included in a Road Zone category 1 under the planning scheme. Glencairn Avenue and Jessie Street are local, predominantly residential streets. The hospital currently takes access from seven locations across each of the streets.
2. A total of 173 car parking spaces are currently provided on site in three main car parks (Jessie Street, Glencairn Avenue and a car park to the east of the main building)
3. Loading and unloading currently occurs at the rear of the main hospital building, accessed off Jessie Street. Vehicles are required to reverse into the site to access the loading area, and then egress in a forward direction[44]. Linen pick up and delivery occurs at the south west of the main building. Vehicles enter from Moreland Road and then on site reverse into the pick up point.
4. As part of the proposed development the following changes to the parking, loading/unloading and traffic circulation are proposed:
   • An additional 70 parking spaces are to be provided (total of 243 spaces).
   • The existing loading bay is to be retained with a new compactor and garbage collection point proposed at the north east of the existing building.
   • Linen pick up and deliveries are to be retained in the current position. Existing access to the Moreland Road Porte Cochere is to be reversed, to operate east to west.
   • The Glencairn Avenue car park is to be reconfigured and access to it relocated to the south, furthest away from the dwelling at no.8 Glencairn Avenue.
   • The access to the new multi deck staff car park in Jessie Street is to be converted to entry only, with an internal link road providing egress to either Moreland Road or Glencairn Avenue.
5. The council submits that the proposal does not provide adequate car parking for the hospital use, and there will occur in increase in traffic movements in Glencairn Avenue. The amenity of the surrounding residential areas will be adversely affected as a consequence of these changes. In addition, the council submits that the access and egress to the Moreland Road car park should be reversed from that proposed by the applicant, in order to facilitate safer traffic movement.
6. The objectors generally support the council submissions on these points. They refer in their submissions to existing difficulties being encountered in surrounding streets as a result of car parking and traffic movements generated by the hospital. They submit that these difficulties will be exacerbated by the proposed extensions to the hospital.
7. With respect to these matters, the only expert evidence presented to us in this case is that of Mr Hunt. Mr Hunt provided a comprehensive analysis of the existing conditions within and around the hospital, and assessed the implications of the proposal on traffic management and car parking.
8. We note that the council's traffic engineers assessed the permit application material and concluded that the proposal is generally satisfactory.
9. It is acknowledged by all parties in this case that the streets surrounding the John Fawkner Hospital currently experience high demand for on street car parking, especially during weekday peak periods. While it is also acknowledged by the applicant that the existing hospital operations contribute to that high demand, it is not the only source of that demand. Objectors related concerns about increasing parking associated with commuters at the Moreland railway station, for example.
10. The objector concerns about the existing high demand for on street car parking are matters which are largely outside of our control. As we indicated at the hearing, these matters are most appropriately dealt with by the council through the implementation of a range of mechanisms designed to control and manage traffic and car parking issues in the streets around the hospital (and the railway station for that matter). These mechanisms might include revised parking restrictions, resident parking schemes such as parking restricted to residents only on one side of each street, and other local area traffic management techniques.
11. These mechanisms are commonly adopted throughout Melbourne where institutional and other uses are located in or near residential areas. A good example of this is two-hour visitor parking on one side and resident only parking on the opposite side of much valued heritage streets around Cabrini Private Hospital in Malvern. Mr Hunt expressed his astonishment that such mechanisms are not already in place around the John Fawkner Hospital. Ms McCunnie expressed a reluctance to accept the imposition of restrictions of the type imposed elsewhere, ostensibly because parking signs spoil a heritage streetscape. But given the parking difficulties experienced by all the residents, the above mechanisms need to be resolved urgently by council's traffic engineering department.
12. Our task in this matter is to assess the acceptability of the parking, loading/unloading and traffic management associated with the proposed extensions.
13. We accept Mr Hunt's evidence in relation to these matters.
14. With respect to car parking, the additional 70 spaces will accommodate the additional peak parking demand (estimated at 60, comprising 32 staff and 28 visitors) generated by this proposal. It is Mr Hunt's evidence that this provision of parking is in fact likely to contribute to an easing of the demand for on street parking because staff who currently park on street are likely to be able to find parking within the new on-site staff car parks.
15. The proposal will generate increased traffic movements in the streets surrounding the hospital, especially Jessie Street and Glencairn Avenue. Mr Hunt estimates that in Jessie Street average daily traffic volumes will increase from 237 to 354 (an increase of 138), while in Glencairn Avenue the volumes will increase from 1281 to 1563 (an increase of 282). The volumes in Jessie Street near the intersection of Station Street are likely to increase from 746 to 1563 (an increase of 138).
16. From a traffic engineering perspective, these additional traffic movements can be accommodated within the existing road network, and are within the design capacity for these streets.
17. We are also satisfied that the additional traffic movements will not contribute to an unacceptable loss of amenity for the residents of those streets. While the increased number of traffic movements may appear significant in the context of the existing volumes in Jessie Street and Glencairn Avenue, the total numbers are quite small and post development, the function of these roads will not change to any significant degree. These streets will continue to function as local roads. Probably the best objective indicator of the amenity impact of the increased volumes, is obtained by reference to Clause 56 of the planning scheme, which sets out the standards for new residential subdivisions. Standard C21 of Clause 56.06-8 sets out a hierarchy of road functions based on traffic volumes. An access lane[45] is the smallest street in the hierarchy and is designed to accommodate 300 vehicles per day. At the next level in the hierarchy is an access place[46], which is designed to accommodate 300 vpd to 1000 vpd. An access street[47] - level 1 is designed to accommodate 1000 vpd to 2000 vpd.
18. We received a number of submissions about the existing loading and unloading, and waste management arrangements for the hospital.
19. As we have indicated above, the existing loading bay is to be retained in its present position with a new compactor and garbage collection point at the north east of the existing building. Relocation of the garbage collection will greatly improve the amenity of the residents at nos. 8 & 10 Glencairn Avenue compared with their current experience when noisy garbage collection occurs almost next to them.
20. We recognise that existing arrangements are not ideal, but they are carried out on a site that does have some constraints in terms of its physical configuration, and access arrangements. To a large extent however, loading and unloading is capable of being conducted on site. A level of management is required to ensure that these functions are conducted efficiently and potential off site impacts are minimised. To this end, the preparation of a waste management plan, to be approved by the council, represents an opportunity to achieve improvements in the manner in which this activity is conducted. Had we been able to direct the issue of a permit we would have imposed a permit condition to give effect to this requirement.
21. With respect to the council's submission that the access and egress to the Moreland Road car park should be reversed from that proposed by the applicant, this is not necessary. We acknowledge that Mr Hunt did indicate that it might have the potential to improve safety related to internal traffic movements. It was also his evidence however that the proposed arrangements are not unsafe, and are acceptable. We agree that a reversal of the proposed arrangements would adversely impact on ambulance circulation through the site from Moreland Road.

1. During the course of the hearing, we received submissions that queried whether this proposal, for a variety of reasons, would achieve a net community benefit. We find it necessary to make some observations about those submissions.
2. This hospital makes a significant contribution to the provision of health care facilities for the community served by it. That community is both localised, and also extends broadly throughout the northern metropolitan region. It is a community whose population is characterised by a high proportion of non English speaking people, and exhibits a diverse cultural and socio economic mix. Mr Connor advised us that the hospital's services are geared toward meeting the particular needs of this community. Mr Connor's submission on this point was not disputed in any significant way, and there is no reason for us to not accept that submission.
3. The proposed extensions and alterations will impose some impacts on the immediately surrounding community. The planning scheme[48] requires us to consider whether this proposal will achieve acceptable outcomes. We have in this case assessed the impacts that flow from the proposal and for the reasons we have articulated above, we have concluded that none of those impacts are unacceptable.
4. We are also required to balance competing and conflicting policies to achieve the most appropriate outcome for the community[49]. The term "the community" is an imprecise term. It may apply to a highly localised group of people, or it may embrace a wider geographical area or community of interest. Of course, a proposal under consideration may have impacts on a localised community but may also have benefits for a broader community. To some extent at least, this appears to be case here.
5. The Tribunal on occasion is required to make decisions about proposals that will have a significant adverse impact on one part of a community, but which is found to be acceptable because of the overriding benefit expected to accrue to a wider community or to the community as a whole. In Alfred Hospital v City of Malvern[50] for example, the Planning Appeals Board directed the grant of a permit for a heliport at a hospital notwithstanding the significant adverse amenity impacts likely to be experienced by local residents. In that case the severity of the residential disamenity anticipated to arise from the noise of helicopter arrivals and departures was balanced against the level of public need for the facility having regard to the purpose of the helipad.
6. In the present case, the balancing exercise we have had to undertake has not necessitated a balancing of significant adverse impacts against a wider community benefit. We have concluded that the benefit to the community arising out of the ability of the John Fawkner Hospital to provide enhanced medical facilities to its community, is achieved without imposing amenity impacts on surrounding residents that could be considered to be unreasonable or unacceptable. It is also achieved in a manner that will not adversely affect the significance of the heritage place, and is respectful of the character of the neighbourhood.

1. It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be set aside and that a permit be issued.
2. Had we not been prevented from directing the grant of a permit because of the interpretation of the covenant, we would have pursued this course of action.
3. We have included in Appendix A permit conditions that we would have included on a permit. In deciding the conditions we have had regard to the "without prejudice" conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from our reasons and clearer façade treatment conditions recommended by Mr Raworth, clearer landscape treatments recommended by Mr Patrick, a construction management plan and additional car parking conditions.

Conditions that would have been imposed on a Permit had the Tribunal been in a position to direct the issue of a Permit

The permit would have allowed buildings and works to extend the existing hospital including a four level extension facing Glencairn Avenue with ground level car parking, a four storey multi-deck car park facing Jessie Street and alterations to access to a Road Zone Category 1 at 269-275 Moreland Road, Coburg generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the development commences, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans dated 29 October 2012 substituted by the Victorian Civil and Administrative Tribunal but modified to show:

1. Any changes required by Condition 32 imposed at the direction of VicRoads. 2. The west and north facing front façade of the northern component of the hospital extension facing Glencairn Avenue finished in natural zinc or in a zinc-look finish with a materials sample provided to the satisfaction of the Responsible Authority.

1. The west facing front façade of the southern component of the hospital extension facing Glencairn Avenue finished in a muted rose colour with a materials sample provided to the satisfaction of the Responsible Authority.

1. A solid wall on the western elevation of the multi-deck car park. 2. The lighting in the multi-deck car park and Glencairn Avenue extension baffled to ensure no light spill into adjoining residential properties. 3. Conversion of car spaces nos. 36 & 37 to a loading bay. 4. Four (4) bicycle parking spaces for staff in a location that is within a cage, room or other secure area and in manner that accords with the dimensions specified in Bicycle Victoria's Bicycle Parking Handbook. 5. Two (2) bicycle parking spaces for visitors in a manner that accords with the dimensions specified in Bicycle Victoria's Bicycle Parking Handbook. 6. Any changes recommended by the acoustic report required by Condition 14 of this permit. 7. Any changes recommended by the amended Environmentally Sustainable Development (ESD) Management Plan report required by Condition 6 of this permit. 8. Any changes shown on the Car Parking Management Plan report required by Condition 10 of this permit.

1. Details of the window treatments in the Glencairn Avenue building intended to limit overlooking of the neighbouring property to the north including showing the details on the elevations.
2. The development as shown on the endorsed plan(s) must not be altered or modified unless with the further written approval of the Responsible Authority.
3. Prior to the commencement of any development works, an amended landscape plan must be submitted to and approved by the Responsible Authority. The landscape plan must generally be in accordance with the landscape plan prepared by John Patrick Landscape Architects (Landscape Architectural Plans for the John Fawkner Redevelopment, 269-275 Moreland Road, Coburg) and provide the following:

1. The continuation of the green wall onto the west side of the multi-deck car park together with the addition of ficus to the southern component of the western wall of the multi-deck car park. 2. Notation of SaR Resilience Lilly-pilly along both boundaries with no. 8 Glencairn Avenue and along the northern site boundary to Jessie Street.

1. A schedule of all proposed trees, shrubs and ground covers (including numbers, size at planting, size at maturity and botanical names), as well as sealed and paved surfaces. The flora selection and landscape design should be drought tolerant and based on species selection recommended in the Moreland City Council Landscape Guidelines and Technical Notes.

1. Identification of any existing tree(s) and vegetation proposed to be removed and retained. Vegetation retainment must include strategies for the retainment (i.e. barriers and signage during the construction process). 2. Details of the location and type of all paved and sealed areas. Extensive hard surfaces are not supported. The adoption of porous/permeable paving, rain gardens and other water sensitive urban design features is encouraged.
2. Following completion of the development the areas designated as garden or green areas on the endorsed landscape plan must be maintained and used as garden areas and all dead or diseased vegetation must be replaced.
3. At all times during the development of the land, the trees identified for retention on the endorsed plans of this permit must be protected by the use of temporary fencing that extends out to the drip line of the trees. The fences will serve to increase contractor awareness, whilst maintaining the safety and integrity of the existing vegetation and preventing the parking of vehicles or stockpiling of soil or materials under the canopy of the trees_._
4. Prior to the commencement of development, an Environmentally Sustainable Development (ESD) Management Plan Report must be submitted to the Responsible Authority. The report must be generally in accordance with the Environmentally Sustainable Development (ESD) Management Plan Report dated 22 March 2012 and the recommendations of the report must be incorporated into the design and layout of the development and must be implemented to the satisfaction of the Responsible Authority prior to the occupation of the development.
5. Before the development commences, an ESD implementation schedule to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. This should identify the different areas of responsibility and provide a schedule for implementation, ongoing management, maintenance and monitoring.
6. All works must be undertaken in accordance with the endorsed Environmentally Sustainable Development (ESD) Management Plan to the satisfaction of the Responsible Authority. No alterations to the ESD Management Plan may occur without written consent of the Responsible Authority.
7. Prior to the occupation of the development approved under this permit, a report from the author of the Environmentally Sustainable Development (ESD) Management Plan report, approved pursuant to this permit, or similarly qualified person or company, must be submitted to the Responsible Authority. The report must be to the satisfaction of the Responsible Authority and must confirm that all measures specified in the Environmentally Sustainable Development (ESD) Management Plan have been implemented in accordance with the approved plan.
8. Prior to the commencement of the development hereby approved, a Car Parking Management Plan prepared by Mr Stephen Hunt of Cardno or a person of similar experience must be submitted to and approved by the Responsible Authority. The Car Parking Management Plan must show:

1. The number and location of those car parking spaces to be reserved for staff and other consultants; 2. That no car parking space in the eastern car park accessed from Moreland Road will be reserved for staff or other consultants, except for spaces beyond the existing boom gate which serve the Jessie Street medical consulting rooms;

1. The western vehicle crossing in Jessie Street as 'Staff Entry Only' controlled by a boom gate that allows vehicles to enter only;

1. Spaces allocated for infirm patients in the Glencairn Avenue car park; 2. Signed short-term 2-hour restricted parking in the Moreland Road eastern public car park to encourage shared use by visitors to the hospital only; 3. Installation of a boom gate immediately to the south of the egress point of the Glencairn Avenue car park; 4. Any other control or restriction placed upon traffic movements within the car parks.
2. Prior to the commencement of the development hereby approved, a Loading Management Plan must be submitted and approved to the satisfaction of the Responsible Authority stating:

1. The location of deliveries; 2. The times that deliveries and/or collections are permitted;

1. Whether any alterations are required to the existing No Stopping zones within Jessie Street opposite the site or at the Jessie Street/Station Street intersection.

1. How truck movements in and out of the western most vehicle entrance from Moreland Road will be managed so that service vehicles do not block vehicles heading south on that accessway.
2. Prior to the commencement of the development hereby approved, an amended Waste Management Plan must be submitted and approved to the satisfaction of the Responsible Authority. The plan must generally be in accordance with the plan dated 27 November 2012, but amended to show the following:
   1. That waste is to be collected only between 7am to 8pm Monday to Saturday and 9am to 8pm Sunday and Public Holidays; and
   2. That the waste collection vehicles must not exceed 8.8 metres in length.
3. The Waste Management Plan approved under this permit must be implemented and complied with at all times to the satisfaction of the Responsible Authority unless with the further written approval of the Responsible Authority.
4. Prior to the commencement of the development hereby approved, a report prepared by a qualified Acoustic Engineer must be submitted outlining specific noise attenuation measures to ensure that the use and development complies with State Environment Protection Policy SEPP N1 - Control of noise from commerce, industry and trade (as applicable) to the satisfaction of the Responsible Authority. Construction and maintenance of the buildings must be in accordance with the recommendations contained in this report to the satisfaction of the Responsible Authority.
5. Prior to the commencement of the development hereby approved, a detailed Construction Management Plan must be provided to the satisfaction of the Responsible Authority. Construction of the development must be in accordance with the Construction Management Plan.
6. The site must be drained to the satisfaction of the responsible authority.
7. Prior to the occupation of the development, a vehicle crossing must be constructed in every location shown on the endorsed plans to a standard satisfactory to the Responsible Authority.
8. Prior to the occupation of the development, any existing vehicle crossing not to be used in this use or development must be removed and the kerb and channel, footpath and nature strip reinstated to the satisfaction of the Responsible Authority (Moreland City Council, City Infrastructure Department).
9. Prior to the occupation of the development, any Council or service authority pole or pit within 1 metre of a proposed vehicle crossing must be relocated or modified at the expense of the permit holder to the satisfaction of the Responsible Authority and the relevant service authority.
10. Prior to the occupation of the development the pedestrian path(s) within the development must be clearly delineated from the remainder of the road pavement.
11. The area set aside for the parking of vehicles and access lanes shown on the endorsed plan must to the satisfaction of the Responsible Authority:

1. Be completed prior to the occupation of the development. 2. Be maintained.

1. Be properly formed to such levels that it can be used according to the endorsed plan.

1. Be drained and surfaced. 2. Have the boundaries of all vehicle parking spaces clearly marked on the ground to accord with the endorsed plan. 3. Not be used for any other purpose other than the parking of vehicles.
2. The car parking spaces provided on the land must be solely associated with the development allowed by this permit and must not be subdivided, leased or sold separately from the development.
3. No goods, storage containers, pallets or any other materials or equipment may be stored on any car parking space or accessway to the satisfaction of the Responsible Authority.
4. Prior to the occupation of the development hereby approved, bicycle signage at least 300mm wide and 450mm high showing a white bicycle on a blue background must be erected directing cyclists to the location of the bicycle parking as required by Clause 52.34-5 of the Moreland Planning Scheme.
5. The area marked as a loading bay on the endorsed plan must not be used for any other purpose.
6. Unless in accordance with the approved waste management plan, the loading and unloading of vehicles and the delivery of goods to and from the premises must at all times be conducted entirely within the boundaries of the land, except whilst in a specified loading area. Loading and unloading of vehicles and the delivery of goods must be undertaken in a manner that limits interference with other vehicular traffic to the satisfaction of the Responsible Authority.
7. Any solid waste and recyclable material produced on the land must only be stored temporarily and then removed from the land to the satisfaction of the Responsible Authority. The storage and removal must be in a manner to avoid any smell, nuisance, litter, pollution or loss of amenity to any surrounding property.
8. The occupier of the land must make arrangements to the satisfaction of the Responsible Authority for all litter (including any food wrapping and containers) to be cleared away from the land on a regular basis.
9. All stormwater from the land, where it is not collected in rainwater tanks for re-use, must be collected by an underground pipe drain approved by and to the satisfaction of the Responsible Authority.
10. Prior to the commencement of the development, a legal point of discharge is to be obtained, and where required, a stormwater drainage plan showing how the site will be drained from the property boundary to the stated point of discharge, must be submitted to and approved by the Responsible Authority.
11. This permit will expire if one of the following circumstances applies:
    1. the development is not commenced within three (3) years from the date of issue of this permit;
    2. the development is not completed within two (2) years from the date of commencement of development.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. Before the development starts, amended plans must be submitted to, and approved by VicRoads. When approved by VicRoads, the plans may be endorsed by the Responsible Authority and will then form part of the permit. The plans must be drawn to scale with dimensions, and two copies provided. The plans must be generally in accordance with the plans submitted to VicRoads, but modified to show:

1. 'No Entry' signs placed on either side of the proposed exit of the internal loop, facing Moreland Road. 2. 'No Exit' signs placed on either side of the proposed entry of the internal loop, facing vehicles inside the site.

1. The existing 'No Entry' signs facing Moreland Road on the proposed entry point of the internal loop to be removed.

Proposed Pedestrian Access & Circulation Plan (Lower Ground)

Proposed Pedestrian Access & Circulation Plan First Floor (Ground level)

Proposed Plan First Floor (Ground Level Hospital Entry Level)

Proposed Hospital Extension & Refurbishment Section 01

Proposed Hospital Extension & Refurbishment Section 02

Proposed Hospital Extension & Refurbishment Section 03

John Patrick Landscape Architects: Landscape Architectural Plans for the John Fawkner Redevelopment, 269-275 Moreland Road, Coburg including:

[1] There is a Melbourne University Archives photo proving two dwellings on the land in 1945 which were incrementally converted to an open air hospital car park by 1988.

[2] No. 941582 Lot 36; No. 721229 Lot 37; No. 700073 Lot 41 & No. 778190 Lot 32.

[3] The Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

[5] Saxena v Manningham CC [2003] VCAT 1837; Panayiotou v Moonee Valley CC [2003] VCAT 1279. However In Salerno v Hainsworth Butterworths Conveyancing Service 1 Casenotes [91972] 1 a covenant not to build more than one dwelling house was held to prohibit a building not used for a residential purpose.

[6] [2012] VSC 4 at [41]

[7] Prowse v Johnstone [2012] VSC 4 at [54]

[8] Ex parte High Standard Construction Ltd [1928] NSWStRp 107; (1928) 29 SR (NSW) 274, 278-9 per Harvey CJ in Equity in the Supreme Court of New South Wales.

[9] [1965] VicRp 38; [1965] VR 257

[10] Brissac Investments Pty Ltd v Stonnington CC (2004) 17 VPR 96; [2004] VCAT 342 (1 March 2004)

[11] [2003] VCAT 1837

[12] [2004] VCAT 2644 (13 January 2004) at [16] & [18].

[13] Prowse v Johnstone [2012] VSC 4

[14] For our purposes, nothing turns on omission of the word 'dwelling' before 'house'.

[15] With a single driveway to a basement car park and a single entrance lobby

[17] Prowse v Johnstone [2012] VSC 4 at [34]

[26] Ferella v Otvosi [2005] NSWSC 962

[27] [2002] VCAT 1537 (26 November 2002) at [19]

[28] [2010] VCAT 1865 (10 December 2010)

[29] Bevalacqua v Port Philip CC [2002] VCAT 1537 at [28]

[30] Ferella v Otvosi (2005) 64 NSWLR 101; [2005] NSWSC 962 (23 September 2005)

[31] Melbourne 2030 (Department of Sustainability and Environment, 2002).

[32] In particular Clauses 21, 22.01, 22.10, 22.13.

[34] There was no dispute between the parties about the site's existing use rights.

[35] There is a long line of decisions of this Tribunal and higher jurisdictions that have applied this principle to the determination of planning disputes. The principle of acceptable v ideal planning outcomes has been recently discussed in Richmond Icon Pty Ltd v Yarra CC (includes Summary) (Red Dot) [2011] VCAT 2175. In that decision the Tribunal referred to a recent decision of Osborn J in Rozen v Macedon Ranges SC, in which His Honour commented that:

"The planning scheme does not require an ideal outcome as a prerequisite to a permit. If it did, very few, if any, permits for development would ever be granted and there would be difficult differences of opinion as to whether the outcomes were in fact ideal. The Tribunal is entitled to grant a permit where it is satisfied that the permit will result in a reasonably acceptable outcome having regard to the matters relevant to its decision under the planning controls.

[36] See for example Hooker R & Ors v Stonnington CC & Anor (1997/83267) [1998] VICCAT 295 (18 March 1998); Lowther Hall Anglican Grammar School Limited v City of Essendon, Appeal 1991/019096; Phibbs & Ors v City of St Kilda (1984) 12 APAD 365, Islamic Society of Victoria v City of Preston (1985) 18 APAD 1; Caulfield Grammar School v City of Malvern and Mulder and Others (1992/21542).

[37] The King David School Holdings Pty Ltd v Stonnington City Council [2004] VCAT 239.

[38] City of Moreland Heritage Review. Allom Lovell and Associates for Moreland City Council, Vols. 1-5, January 1999.

[39] Epworth Healthcare v Yarra CC (includes Summary) (Red Dot) [2012] VCAT 1801

[42] The preferred character statements for both precincts were provided to us. In broad terms the statements provide a description of the existing character of the neighbourhoods, and encourage new developments to reinforce the positive elements of the existing character.

[44] Objectors submit that a level of loading and unloading occurs on Jessie Street. We observed some evidence of this during our accompanied inspection.

[45] A side or rear lane principally providing access to parking on lots with another street

[46] A minor street providing local residential access with shared traffic, pedestrian and

[47] A street providing local residential access where traffic is subservient, speed and volume

are low and pedestrian and bicycle movements are facilitated

[49] Clause 10.04 (in part): Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future

[50] (1986) 4 PABR 334.