(b) In condition 1, the following subparagraph is to be added:

"(b) the elimination of car parking level B6 and part of level B5 so as to reduce the total number of spaces to 224."

(c) In condition 3, the words "in consultation with the City of Melbourne" are to be added after the words "the approval of the responsible authority".

(d) In condition 7, the words "and Council's Planning and Design Guidelines for new and existing public car parks" are to be added after the words "Australian Standard 2890.1-1993".

(e) In condition 11, the words "responsible authority" are to replace the words "Melbourne City Council's Group Manager - Engineering Services".

"The developer must prepare a construction management plan, including a works programme, with the objective of minimising the impact of construction works on adjacent buildings, to the satisfaction of the Melbourne City Council. The plan must specify means of reducing the impact of the construction of the building, in particular, dust, noise, vibration and the like to surrounding buildings. The plan, and any works provided for in it, must be prepared at the cost of the developer."

2. The tribunal makes no order in relation to costs.

1. The relevant facts are set out in the decision of the President in proceeding P1735/2003; and we adopt them.

2. By reason of a ruling previously made by the Tribunal, which was upheld by the Supreme Court of Victoria (both at first instance and on appeal), the only issue that the applicant for review can rely upon in this proceeding is whether or not a permit should be granted for the construction of the proposed building over that part of the subject land which is affected by Heritage Overlay H0 506, but which is not subject to Heritage Overlay H0 581. The applicant for review did not pursue any claim that a permit should not be granted for the demolition of existing buildings on the site nor in relation to the number of car spaces to be provided.

3. Clause 43.01-3 of the Melbourne Planning Scheme provides that no permit is required under the Heritage Overlay to develop a heritage place identified in the schedule to the overlay as a place which is included on the Victorian Heritage Register if, inter alia, a permit for the development has been granted under the Heritage Act 1995. The schedule identifies, as a heritage place, the place known as Formally the Auditorium, 167-173 Collins Street and Flinders Lane, Melbourne and refers to this place as H0 581. The schedule also identifies this place to be a place which is included on the Victorian Heritage Register, noting the reference H416.

4. On 23 February 2001, Heritage Victoria granted a permit under the Heritage Act for the proposed development.

5. The heritage overlay maps, which form part of the scheme, show the area H0 581 as including the eastern portion of the land, but excluding two western portions, one at the centre of the site and the other at the south of the site.

6. The land which is subject to the registration under the Heritage Act is not the same as that identified in Heritage Overlay H0 581. The land identified in the Heritage Register includes the western portion, at the centre of the site; but excludes the portion in the south western corner of the land, but this exclusion is to a slightly greater extent than that in Heritage Overlay H0 581. However, this difference is insignificant.

7. The President holds that the circumstances where no permit is required under the Heritage Overlay are to be ascertained from the schedule to the overlay, rather than from the Victorian Heritage Register. This follows from the words used in clause 43.01-3.

8. Hence, in the present case, a permit is required under the Heritage Overlay for the construction of that part of the building which is to be located on the two western portions of the subject land. In other words, a permit is required for the construction of a building on the land which is subject to Heritage Overlay H0 506, except for that part of H0 506 which is within H0 581.

9. The critical decision guideline which is relevant is whether the proposed development will adversely affect the cultural significance of the place, being the area of H0 506, known as the Flinders Lane precinct. Clause 22.04 of the scheme sets out the policy basis for heritage places within the capital city zone. The key attributes of the Flinders Lane precinct are stated to be:

* the scale and character of the 6 and 7 storey office and warehouse buildings constructed in Flinders Lane before the Second World War and the predominant building forms and materials of the precinct.

* the traditional association with "RagTrade" activities, other creative professions, or dwellings.

* the large showcase windows at the ground and basement floors of the warehouse offices constructed for the Second World War.

10. The tower element of the proposed building is setback 17m from Flinders Lane. The proposed building within 17m of Flinders Lane has been designed in a manner which is sympathetic to heritage policy for the Flinders Lane precinct. Indeed, this part of the design was not criticised in the proceeding before us.

11. The two tower elements which protrude onto the western portion of the land, and hence require a permit pursuant to the Heritage Overlay, are not in any way contrary to the policy objectives of Heritage Overlay H0 506. This would be the case even if we were required to consider the whole of the proposed building. However we are only concerned with those parts of the building which are outside Heritage Overlay H0 581; and a consideration of these parts needs to be performed on the assumption that the balance of the building exists on the land subject to Heritage Overlay HO 581. On this basis, it is even easier to conclude, as we do, that the additional parts of the building are inconsequential and will not in any way be detrimental to either the heritage policies for area H0 506 or the cultural significance of that place.

12. The City of Melbourne submitted that certain conditions contained in the notice of decision to grant the permit should be modified. These changes were agreed to by the other parties. Subject to some minor drafting changes, we grant the permit with varied conditions and direct the responsible authority to issue it.

13. Sweetvale submitted that an order should be made that the Minister pay part of its costs in relation to the previous proceeding. The tribunal does not agree. The commercial context of the dispute, the complexity of the legal issues and proper allowance for the rub of the green in the hearing of planning merits cases point to the usual rule applying.