1. The applicant's description states that in each case there are associated aspects of the proposal. The proposal includes ancillary services and facilities such as two small cafés and shop, hydrotherapy pool, hairdresser, cinema and shared community facilities. The description continues as follows:[3]

The ILUs are comprised of a mix of one-, two- and three-bedroom apartments, some including studies. They will be operated in accordance with the Retirement Villages Act 1986 (Victoria) (RVA). They will be held in single ownership, with residents paying an ingoing contribution upon entry, which is refundable upon exit, less a deferred management fee. Residents of the ILUs will live there subject to a loan license agreement.

Occupancy of the Retirement village will be available to people who meet the definition of "retired person" under the RVA, namely, who are 55 years of age or older, or who have retired from full time employment, and the spouses or domestic partners of such people. ...

Residents of the Retirement village will have access to the following services and facilities:

(a) communal open space, cinema, gym, hydrotherapy pool, library, function space and roof top terrace;

(b) catering, laundry, cleaning and maintenance services;

(c) general medical and allied health services; and

(d) specialised palliative care and progressive neurological disease services, including respite services.

The ILUs have been designed with features suitable for a Retirement village:

(b) to enable access for hospital beds to the master bedroom and circulation spaces;

(d) to enable installation of oxygen points and emergency call buttons; and

(e) to allow for interior design and wayfinding to respond to the special care needs of future residents.

1. Subsequent to a compulsory conference, and in accordance with orders made by the Tribunal after the conference, Mr Shnookal identified a question of law to be determined - "Does Clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres?" The applicant responded by identifying related but separate questions being:
   • Whether the application is characterised appropriately?
   • Whether the application constitutes an unspecified, innominate use?
   • Whether the existing use of the premises means the use should be treated as an 'existing use'?
2. The Tribunal was reconstituted on the first hearing day to include Member Whitney, an Australian lawyer[4], so that the questions of mixed fact and law could be determined. The decision is included in Appendix A. In summary, the decision on the question of law is:

1. The real and substantial purpose of the proposed use of the subject land is use for a Hospital (sub-acute hospital), Residential aged care facility and Retirement village, along with a medical centre and café; 2. The use of that part of the subject land that is to include the ILU tower is properly characterised as use for a Retirement Village;

1. The use of that part of the subject land that is to include the ILU tower does not constitute use for a Residential aged care facility;

1. The proposed use as a whole is not properly characterised as an innominate use; 2. A Retirement village is not a Dwelling or a Residential building for the purposes of the Glen Eira Planning Scheme. As such, specific provisions of the scheme that only apply when land is to be used or developed for the purposes of a Dwelling or Residential building do not apply to use or development of land for a Retirement village; and 3. Clause 32.09-8 of a superseded version of the Glen Eira Planning Scheme is not relevant to the Tribunal's assessment of the proposal because: 1. The version of the scheme that is relevant to the Tribunal's determination is that which is in force at the time the Tribunal makes its decision; 2. Clause 32.09-9 is the clause that currently applies to Dwellings and Residential buildings;

1. The transitional provisions contained in Clause 32.09-14 of the scheme apply to this planning permit application; and
2. The transitional provisions contained in Clause 32.09-14 of the scheme do not require compliance with Clause 32.09-8.

1. This means that the specific response to the question:

Does clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres?

1. In terms of the two alternative questions that were agitated at the hearing, the answers are as follows:
   • Whether the application is characterised appropriately? Yes, the use is a retirement village.
   • Whether the application constitutes an unspecified innominate use? No.

1. The subject land is bounded on three sides by Kooyong Road, Saturn Street, Ludbrook Avenue and abuts properties at No. 13 Saturn Street and No. 12 Ludbrook Avenue. It does not include the "Saturn Street car park" at Nos. 470-472 Kooyong Road and No. 1 Venus Street.
2. Multiple titles apply to the land that is the subject of these proceedings, as demonstrated in title information we have received.[5]
3. At the start of the hearing, and over the course of the hearing, the potential use of the Saturn Street car park has been referred to in submissions and evidence. We have amended the description of the land included in the permit application to exclude No. 472 Kooyong Road which forms part of the Saturn Street car park.[6] This is consistent with our findings with respect to car parking provision later in these reasons.

1. A letter dated 21 September 2017[7] from the Minister for Planning asks the Tribunal (among other points) to carefully consider the effect of the development on the surrounding low scale residential neighbourhood character and how it satisfies the objectives of the NRZ. The letter refers to the proposed development as including buildings and works ranging from three to 19 storeys and refers to land uses including a child care centre.
2. The parties addressed the Tribunal on this letter at the start of the hearing. Submissions varied as to how this letter should be considered.

1. Mr Townshend QC submitted the Tribunal should decline to receive the letter as the letter itself does not make clear how the Minister suggests it should be received and the letter relates to the earlier form of the proposal not the proposal included in the plans that are sought to be substituted.
2. Ms Blok submitted the letter should not be given any weight. She concurred with the applicant that the Minister has no specific status in relation to the proceeding and has not sought to exercise any specific powers available to him under the Planning and Environment Act 1987.
3. Conversely, the Council submitted the letter should not be disregarded. It said there is value in the letter and the suggested approach to be taken by the Tribunal despite there being no explanation in the letter as to what basis or head of power is relied upon. Mr Vorchheimer submitted the Tribunal could seek clarification on this point.
4. We have noted the letter and make the following points:
   • The letter does not indicate or inform the Tribunal as to the basis upon which it is made.[8]
   • We have not sought clarification from the Minister about this, as Mr Vorchheimer proposed we should do. We informed the parties of our position on this point during the hearing. The letter relates to the proposal for 19 storeys, which is no longer before the Tribunal given plans have been substituted in this proceeding. The child care centre has been deleted as well.
   • Merits issues and policies to which the Minister refers are matters we must consider regardless of any request to do so because of the provisions and policies of the scheme that we must apply in our assessment.
   • We do not rely upon the Minister's letter commenting on which mandatory or other height controls apply. This a matter of law determined by Member Whitney based on the submissions of the parties alone.
   • We have formed our own conclusion about the proposal's response to the NRZ and "achieving balance", these being topics also addressed in the Minister's letter.

Characterisation of the proposed land uses for the purposes of the scheme

1. Having regard to the findings on the question of law, we find that the permit application is made for the construction of buildings and works for a hospital, retirement village, residential aged care facility, medical centre and food and drink premises (café); and for the use and development of a retirement village, medical centres, and food and drink premises (café).

1. It is common ground that the in-patient facility (sub-acute), public services and base for outreach services are existing uses of the land and rely on Clause 63. These include the specialities of palliative care and progressive neurological services. The use of the land for a residential aged care facility is as-of-right use pursuant to Clause 32.09-2 of the scheme.

1. Like all land around it, the subject land is within the NRZ, as shown on the scheme extract below. Schedule 1 (NRZ1) applies to Minimal Change Areas.

1. The proposed uses which require planning permission, and the proposed development, must be assessed against the NRZ purpose which includes:
   • To recognise areas of predominantly single and double storey residential development.
   • To manage and ensure that development respects the identified neighbourhood character, heritage, environmental or landscape characteristics.
   • To allow educational, recreational, religious, community and a limited range of other nonresidential uses to serve local community needs in appropriate locations.

1. Decision guidelines in Clause 32.09-12 are relevant to various parts of the permit application. As relevant, they are under the headings of general, dwellings and residential buildings and non-residential use and development.
2. Clause 55 is triggered for the residential aged care facility (a residential building). It is not triggered for the retirement village and other buildings and works. Variations to Clause 55 are included in NRZ1.
3. Decision guidelines in NRZ1 apply to an application for a permit under Clause 32.09, in addition to those specified in Clause 32.09 and elsewhere in the scheme such as Clause 22.10.
4. Relevant decision guidelines in NRZ1 are:

• Whether a loss of amenity would result in varying the requirements of part 3.0 of this schedule. [being the varied Clause 55 standards]
• Whether opportunities exist to avoid a building being visually obtrusive through the use of alternative building designs, particularly for developments with overall building heights in excess of 8 metres (where permitted).
• The layout and appearance of areas set aside for car parking, access and egress, loading and unloading and the location of any proposed off street car parking.

1. Having regard to the findings on the question of law, mandatory heights cited in Clause 32.09 do not apply to any part of this application. The residential aged care building is, nonetheless, no more than 9 metres high above natural ground level based on survey information contained in the plans.

1. Many parts of the scheme are relevant to our consideration, as listed in the "Information" section of these reasons. The following themes have particular relevance to the key issues we have distilled. We refer to some others later.

• Within a minimal change area;[9]
  • Within the Garden Suburban Neighbourhood Character Type and specifically the Elsternwick - Caufield South Character Area; [10]

1. In a location where the aim is to maintain the existing character and retain the prevailing character.[11]
2. Clause 15 and the Urban Design Guidelines for Victoria have the broad objective to create urban environments that are safe, functional and provide good quality environments with a sense of place and cultural identity. Contextual responses are central to the approach in State policy including the design principles set out at Clause 15.01-2 and the character considerations at Clause 15.01-5 that we do not recite.
3. A hierarchy of housing diversity areas is adopted by this scheme. Greater change and diversity is expected in activity centres while minimal change areas cover the majority of the municipality. There is a very strong emphasis in local policy on protecting the low density vegetated character of the minimal change areas and ensuring the design of new residential development is sensitive to and respectful of the scale of existing residential development.[12]

1. New residential development is to be "consistent with surrounding use, character and scale". [13] Local policy does, however, acknowledge pre-existing development sites in minimal change areas where policy states:[14]
   • Recognise that key pre-existing development sites over 2000m2, including transitional sites (eg sites once used for industry or other redundant uses) and existing residential sites, may be rezoned and developed in minimal change areas:
     • With a higher development yield than would normally apply in minimal change areas.
     • Incorporating a range of multi-unit developments.
     • Ensuring that any multi-unit residential development is consistent with the prevailing streetscape scale, especially along the perimeter of sites.
2. There are no specific design policies or controls for the subject land, such as a Design and Development Overlay. Nor are there any heritage or vegetation-based overlays. The land is not identified as a landmark site or opportunity in policy, nor expressly recognised as an existing physical landmark.

1. State policy acknowledges health facilities including their role in supporting neighbourhoods.[15]
2. The local Framework Plan recognises Bethlehem Hospital:[16]

1. The Strategic Framework at Clause 21.03 includes:

Institutional and non residential uses in residential areas

• Medical and other associated uses, such as nursing homes and retirement villages, are where practical encouraged to concentrate in defined medical precincts adjacent to existing hospitals (ie: around Monash Medical Centre and Caulfield Hospital), and to a lesser extent near smaller hospitals. [Tribunal emphasis added]
• Other institutional and non-residential uses may locate in appropriate locations throughout the municipality.

1. Clause 21.08-1 states that "Many of Glen Eira's Institutions, such as schools/hospitals have grown over time. As these uses also serve a local population it is reasonable to allow their development and growth". Consistent with this, Clause 21.08 provides an overview of institutional and non-residential uses in residential areas that recognises their place in residential areas. This Clause contains policy that seeks to ensure that they are not "badly sited" and that they are integrated into residential areas with a minimum impact or loss of residential amenity. The policy encourages buildings and works that are compatible with the residential character of the streetscape and neighbourhood. In addition, policy encourages the development of masterplans involving community consultation and a concentration of complementary uses and/or facilities in appropriate locations.
2. The "Non-residential uses in residential zones" policy at Clause 22.02 is relevant to the proposed medical suites/centres and cafés. It contains policy and performance measures about, among other things, the preferred location of non-residential uses, design and siting, landscaping and general amenity. It is notable that the preferred locations for non-residential uses include main and secondary roads and/or corner sites with service access from a side road, which is the case before us.

1. State policy supports the provision of aged care facilities.[17]
2. Clause 16.02 addresses housing form and specifically residential aged care facilities. The objective is to facilitate the timely development of residential aged care facilities to meet existing and future needs and encourage planning for housing that enables older people to live in appropriate housing in their local community. Further, State policy recognises that they are an appropriate use in a residential area, consistent with the fact that no permit is required for this land use.
3. Aged persons housing can take different forms, as recognised in State and local policy. Residential aged care facilities "are different to dwellings in their purpose and function, and will have a different built form (including height, scale and mass)"[18] [Tribunal emphasis added].

Ensure that residential aged care facilities are located in residential areas, activity centres and urban renewal precincts, close to services and public transport.

• Proposals to establish residential aged care facilities early in the life of a growth area are in locations that will have early access to services and public transport.
• Residential aged care facilities are designed to respond to the site and its context.
• Residential aged care facilities aspire to high urban design and architectural standards.[19]

1. Clause 22.10 is the local aged persons housing policy. It applies to a range of housing forms linked to the level of support and independence of the residents. We refer to it later but note at this stage that it, too, states that town planning considerations vary with the different levels or care and that the policy must be read in conjunction with (among others) Clause 22.08. Among other things, the local policy addresses the preferred location of aged persons housing, amenity, design and siting, car parking and traffic, and management. It contains decision guidelines which we have considered.
2. The Glen Eira Housing and Redevelopment Strategy 2002, a reference document in Clause 21.04[20], refers to the subject land as a 'key development site'. The document refers to an intention by then owner of the Bethlehem Hospital to relocate to the Caufield Medical Centre and sell the Bethlehem site. This is no longer the case as evidenced by the current permit application by a different entity.

Issues arising with respect to policy application and interpretation

1. Submissions and evidence presented to us refer to the above and related policies. The policies are ascribed different weight by parties and by other persons lodging statements of grounds. We conclude these reasons by referring to the weighting of policy. Separate to this, we next address some points about the application or interpretation of policy made in submissions.
2. First, Ms Blok refers to policy at Clauses 22.02-2 and 22.02-3 and performance measures for assessment including "Any buildings are not greater than the mandatory maximum height specified in the relevant residential zone applying to the subject land". Ms Blok describes the "rule-like quality" of this "requirement" that is "more than simply a preferred outcome and should be applied as a mandatory limitation on the exercise of discretion in respect of non-residential uses in a (Minimal Change) residential area".
3. Policy is not a requirement nor can it be applied as if it is mandatory:
   • The Victoria Planning Provisions are predominantly performance-based. They specify the objective to be achieved and provide a degree of freedom as to how it is achieved.
   • Extensive case law addresses the role of policy in planning schemes and makes the point that policy is not a mandatory requirement or control.[21]
   • Further, and consistent with Clause 20, Practice Note 59 addressing the role of mandatory provisions in schemes says:[22]

A local planning policy is not a control. Local planning policies have a defined role to guide the exercise of discretion created by a zone, overlay or particular provision. Local planning policy cannot remove the discretion under the relevant planning control that triggers its consideration. Mandatory requirements cannot be included in local planning policy as to do so would remove the very discretion created by the planning provision. Hence mandatory requirements must be in a zone or overlay.

1. We therefore do not accept that any aspect of policy is a mandatory limitation. Moreover, the determination of the question of law is that there is no applicable mandatory height limit when applying Clause 32.09 to the specific circumstances of this permit application.
2. Second, Ms Blok submits that the differential treatment of residential aged care facilities at Clause 16 does not extend to retirement villages. She submits there is "no wholesale exemption from built form preferred outcomes for either health care facilities or aged care housing".
3. In relation to this submission we find as follows:
   • There is no express exemption from the application of the purpose of the zone or the applicable policies and provisions for health or aged care facilities and housing. But it cannot properly be expected that health care facilities must adopt a domestic idiom even in a minimal change area.[23] A hospital has existed on the subject land since 1941 and the existing distinctive cream brick building form dates from the 1960s.[24]
   • Aged care housing takes many forms, as recognised in Clause 22.10. Clause 16.02 is specific to a defined land use, being residential aged care facilities, and we have already observed that Clause 22.10 states town planning considerations vary with different levels of care associated with aged persons housing development and use. Clause 22.10 recognises that aged persons housing has special needs regarding location, land topography, housing design, access, car parking, open space, amenity and management which differentiates it from conventional housing.

• The proposal does not involve a stand-alone retirement village or residential aged care facility. The permit application is for the redevelopment of the whole of the Bethlehem Hospital (excluding the Saturn Street car park). The retirement village/ILUs are only one component. Local policy anticipates more intensive development associated with smaller hospitals such as Bethlehem. A retirement village in this location is supported. The realities of the land size mean that a building of some scale must reasonably be anticipated.
• Policy for the minimal change areas also anticipates higher development yield than would normally apply in minimal change areas on key pre-existing development sites of more than 2,000m2. While local policy states that "Ensuring that any multi-unit residential development is consistent with the prevailing streetscape scale, especially along the perimeter of sites" it is silent about other forms of residential and non-residential development on sites of more than 2,000m2.

1. Third, Mr Vorchheimer makes reference to development being required to exhibit "design excellence". Clause 15 seeks "good design" with the aim of achieving "architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties". The Urban Design Guidelines for Victoria make the similar points but there is no policy before us requiring "design excellence" per se.
2. Fourth, Mr Vorchheimer submits Clause 22.08 contemplates the comprehensive development of larger sites on a presumption or assumption that some kind of strategic planning process of rezoning would occur to facilitate such change. He submits this would be a basis to properly exclude the application of normal policy parameters within the NRZ.
3. Local policy at Clause 21.08 encourages master plans, but it is not fatal to this application that there is no master plan. It is also does not count against this permit application that the subject land has not been rezoned or the subject of specific design/development controls. We agree with Mr McNamara's description in his evidence that the proposal is a "whole of site renewal" other than for the Saturn Street car park. We appreciate the permit application does not include redevelopment of the Saturn Street car park but, as will become apparent in these reasons, we see an ongoing role for this car park in the context of this permit application. Any future development of the Saturn Street car park will be intertwined with its ongoing role, as necessary, to service parking for the main campus. We further observe that the proposal is contained wholly within the existing hospital site and does not encroach into other land.[25]
4. Fifth, Mr McNamara's evidence refers to a gap in policy and a lack of balance with respect to how neighbourhood character is weighted against the provision of important medical facilities. Existing institutional forms are, he says, part of the existing character but not so acknowledged.

1. We conclude these reasons by balancing various policy considerations in favour of net community benefit. It is not our role to rewrite or dispute local policy. However, we observe that although the scheme acknowledges institutional land uses and the prospect of their expansion, it does not provide specific guidance about the future development of relatively large, historical, institutionally-used land. The policy in Clause 22.02 is to be applied as it relates to matters such as location, amenity and design. The policy does not distinguish between single lots contemplated for (say) a medical centre or child care centre and large and, (say) complex large institutions with multiple land uses. Local policy also does not acknowledge the subject land as a community facility on the map at Clause 21.09 but it is identified in the Framework Plan.
2. Sixth, Clauses 21.08 and 22.10 adopt terminology that is not consistent. For example, Clause 21.08 references retirement villages in the context of being associated with medical uses/institutions yet other parts of local policy include retirement villages and residential aged care in the context of accommodation. We have endeavoured to reconcile differences in interpreting and understanding, holistically, what local policy is seeking to achieve.

1. The applicant describes the opportunity to offer people a chance to age in place, to keep couples and families together in their own community, to live with dignity and autonomy as they age or predictably decline, and to die in familiar and comfortable surrounds. The wholesale redevelopment of the land is needed in order to deliver contemporary best practice in a purpose-built facility. This will help fill identified service gaps including:
   • Residential care options for young and old persons with progressive neurological diseases;
   • Interim care beds for short term respite;
   • Independent living units for people who are able to live independently but seek security, community and access to services as they age and their care needs change; and
   • Residential options to enable families to stay together while still obtaining a level of care a family member requires.
2. The proposed model adopted in this permit application is described as being unique to Victoria if not Australia. It is said to be an innovative model of care. Mr Townshend submits the proposal an important agglomeration of community infrastructure and housing for which there is a clear community need. It is an integrated facility where the ILUs are highly adaptable to the complex care needs and increased level of care requirements over time, with direct access to sub-acute palliative care and progressive neurological disease services with potential access as well to allied health services (including medical suites/centres) and the residential aged care facility.

1. The applicant relies on the evidence of Ms Ainsworth, Mr McLoughlin and Ms Cooper in particular in submitting the proposal will meet the emerging social and clinical needs of an ageing population. We do not recite that evidence but have fully considered it.
2. Respondents and the Council challenge the need case in multiple respects:

• Various parties submit that there is little evidence of any particular need for ILUs of this size or at all beyond a generalised recognition that there is an ageing population and potential under-supply. There is not evidence of an essential need or any independent medical evidence.

1. The Council refers to its own support for ageing in place[26] but says there is no evidence of an over-arching need for ILUs in this location which would justify a departure from the prevailing building scale.

• Ms Blok submits that a need for the residential aged care facility is not an over-riding consideration and the new medical/allied health services do not serve a specified need, let alone a critical need, other than for the ILUs.
  • Ms Cooper's evidence is particularly criticised for failing to undertake any independent analysis and relying on the Service Plan and associated information and research prepared by Calvary.
  • Mr Shnookal refers to a lack of credible scientific rigour and confused evidence in the applicant's case. He says that the Tribunal must ask itself "what is the actual evidence of societal need on which the application could be granted? What evidence was there of societal need for this specific project?"
  • Various parties question or challenge the uniqueness of the facility as there are other examples of ageing in place including in Glen Eira.
  • Some question the benefits of a retirement village/ILUs being co-located on the subject land.
  • Some say if the need is so great then why are more hospital beds not being provided?

1. In considering these and related submissions, we first say that case law indicates that a demonstrated need for a facility or use may be a relevant factor in a decision but lack of a need will rarely, if ever, be a ground for refusing to grant a planning permit.[27]
2. Need is a relevant consideration in this case because:
   • Multiple scheme policies that apply to our assessment of this permit application reference need in various ways.[28]

• A purpose of Clause 32.09 is to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs in appropriate locations.
• A decision guideline relating to non-residential uses in Clause 32.09 is whether the use generally serves local community needs.
• The applicant in this case has placed need squarely up-front as a weighty factor that, it says, should influence a decision in this proceeding.

1. Many Tribunal decisions address what is a local need and whether a proposal with, for example, a regional catchment undermines or offends a residential zone purpose about local need.[29] Local need does not require that every user of the facilities on-site must reside within an area which could be defined as 'local'. Frequently, non-residential uses draw from a wider catchment, but also include persons from the immediate neighbourhood. Here, catchment data for the palliative care services shows that 94% of patients are from the municipal areas of Glen Eira, Bayside, Port Phillip, Kingston and Stonnington. The data shows the State-wide role of the progressive neurological disease services with only around 11% of patients being from those same municipalities. The current use of the land therefore has a local and a much wider community role. This is not surprising for this hospital and its specialised medical services and facilities.

Need for renewed hospital facilities and accommodation

1. Although there is no additional independent research provided through Ms Cooper's evidence, we accept why that it is the case, given the extensive material prepared by Calvary. It is true that Calvary is the permit applicant, as the project's opponents point out. But it is also true that Calvary is a specialist in its field, offers an important State-wide service from the Bethlehem site, and that the infrastructure on the subject land is ageing and requires renewal. There is no contrary evidence that would persuade us that the data relied upon is unreliable or flawed. Indeed, Ms Blok did not challenge service gaps and other needs associated with the hospice and associated services.

1. We are persuaded by the applicant's evidence that the proposed redevelopment of the hospital infrastructure is needed and will have a positive impact locally and broadly. Our site visit and the chronology in Appendix B confirm the closure of facilities. We accept the need for the hospital and associated medical services to be upgraded.
2. That there is no intention to increase in-patient beds in this proposal does not downplay the overall need for a major upgrade of the existing facilities. We accept that there is a focus on outreach services with many people wishing to be treated in their home or to receive palliative care at home, not in a hospital, as Ms Ainsworth describes.

1. More contentious are new residentially-based components, being the residential aged care facility and the retirement village.
2. A general need for more housing for older people, whether as residential aged care or a retirement village, is not in dispute.
3. Ms Blok submits that the combination of uses does not create an unusual or emerging concept[30] nor is there an expectation of co-location of the three uses as an integrated concept. We have considered these arguments.
4. Our decision does not turn on whether this proposal is one-of-a-kind. Our experience is that retirement villages vary in their design and access to services, consistent with the evidence before us. There is no single or uniform approach or model. We agree with the applicant that the proposal does not have to prove its uniqueness, that it is special, or that it includes features not found anywhere else. We also do not consider that identification of a need for the purposes of applying the scheme must extend to specific proof that a vertical retirement village of the scale proposed on the subject land is essential or required to meet a need.
5. There can be many ways in which identifiable needs can be met, and in many places. A vertical retirement village in a suburban setting is no longer an 'alien'[31] form where (by way of example) a single storey retirement village is increasingly unlikely given the lack of large sites and the competing development pressures for well-located large sites in strategic terms. Examples of high-rise aged persons accommodation were shown at the hearing. They may be adaptations of buildings built for other purposes and/or purpose-built residential aged care facilities.
6. The degree of apparent scepticism about the proposal by some people is reflected in submissions questioning the generous size of the proposed ILUs and drawing attention to the outstanding views and other features that would attract people who have no need to use on-site services.
7. We accept the evidence that the proposed ILUs are designed to accommodate residents with care needs, such as allowing for the manoeuvrability of a hospital bed and "flight deck" services.[32] This does not mean the ILUs will not cater for the needs of other aged and retired persons but the design takes account of the specific needs of residents with progressive neurological disease and/or using the specialist palliative care services, as are Calvary's specialities and areas of particular expertise. We accept the evidence that there is an inadequate supply of residential care options for people with complex needs such as progressive neurological disease. The proposal will offer choice - a key strategic direction in State policy.

1. Mr Shnookal[33] and other parties question the accessibility of the proposed ILUs to the local community and the likely entry prices. They doubt there will be a turnover and, because of the views and amenities in the ILU tower, they question whether the ILUs will be accessible when people who use the specialist services on-site would wish to seek independent accommodation. There is no way of giving those persons priority and there is no certain progression or relationship between the three components said to offer an integrated facility. Ms Kennedy is among those persons who state the market will determine who lives in the retirement village.
2. We accept that access to the residential aged care facility is dependent on an aged care assessment, as required by Commonwealth law, and that formal steps are required to enable people to move between different parts of the proposed complex. That fact does not undermine the model being advanced.
3. The proponent does not have to prove that people using the specialist palliative care and neurological services will be the only ILU occupants. It is true that there is no guarantee that the ILUs will only be occupied by persons with needs arising from a progressive neurological disease. But we accept Mr McLoughlin's evidence that initial marketing of the ILUs to existing clients of Calvary's Bethlehem services is likely to attract people with a desire or need to currently or in future use the specialist services available. We further accept that there is a level of integration in the development's physical components (eg. pedestrian and vehicle access), operationally and through the ability for users and occupants of the whole complex to access communal spaces and facilities.
4. The retirement village cannot offer every service an older person might or will need, and not every occupant will need such services. We agree with the applicant that the proposal provides a choice to age in place with expert and specialised services at hand for those who will benefit from those services. That is a benefit anticipated by the scheme and responds positively to policy.[34]
5. Further, in balancing the outcomes of this permit application, it is important to have regard to the benefits of the proposal and its multiple components not just the question of need. Addressing need and providing social benefits are consistent with various scheme strategies.[35] They are relevant to a balanced assessment of the permit application and the principle of net community benefit.

1. There is less material addressing the need for the proposed medical centres and small cafés. It is self-evident that they would draw from the population resident on, working at, or otherwise using the subject land. They may draw from the local community and, dependent on the nature of the use, more broadly.

1. We therefore agree with Ms Blok that there is no demonstrated need for the allied medical centres. However, as indicated elsewhere in these reasons, there is an association and synergy associated with uses that are supported by local policy on the hospital site.

Continuation of the established use and operation

1. As shown in Appendix B, a hospital has operated from part of the subject land since before 1941. Since this time new buildings have been constructed. Changes have occurred to the services and programs operated on and from the land. The largest of the existing buildings, which is at the north-west corner of Kooyong Road and Saturn Street, is shown in the image below.[36]

1. Calvary Bethlehem operates with bed-based and non-bed based services. The former include respite beds and terminal care. Non-bed based services include clinics, community care at home, consultancy and a day centre.[37] Ms Ainsworth's evidence refers to current (2016-2017) activity as including:[38]
   • 1,061 admissions to service, 750 to the palliative care service and 311 to the State-wide progressive neurological diseases service;
   • Patient contacts comprising 36,643 contacts for the palliative care service and 20,083 for the State-wide progressive neurological diseases service.
2. It is not disputed that Calvary Bethlehem is a recognised leader in specialist palliative care services and a State-wide provider for people with progressive neurological diseases such as Motor Neurone Disease, Parkinsons Disease, Huntingtons Disease, and complex Multiple Sclerosis.

1. These services are proposed to remain in new facilities, including the same bed numbers as today. Consulting suites and a day centre will be re-housed in new buildings. Associated activities such as education and research will also continue in the proposed development.
2. The new components proposed on the site are the residential aged care facility and the retirement village/ILUs with ancillary elements, the medical centres (for which there are no confirmed uses or users but are shown in the application to include a dentist, audiology, allied health and general practice)[39] and two cafés.
3. The Council and respondents agree that the hospital and residential aged care components are acceptable and, as we have noted, neither need 'use' permission. The Council's submission emphasises its support for ageing in place proposals in other locations on the basis of community benefits.
4. We accept that the different use components will have their own target populations with different clinical and other needs. There are overlaps and synergies between the components consistent with the direction of State and local policy to encourage medical and associated uses, such as nursing homes and retirement villages to concentrate in defined medical precincts adjacent to existing hospitals (ie: around Monash Medical Centre and Caulfield Hospital), and to a lesser extent near smaller hospitals such as Bethlehem.

Locational issues raised by the parties for the retirement village and other uses requiring planning permission

1. The Council takes no issue with the proposed land uses, per se.
2. Ms Blok refers to the combination of proposed expanded and new uses, when combined with the hospital, as being too intense. Multiple parties raise issues about the layout of the site with respect to the medical centres and the placement of non-residential uses having regard to local policy for such uses. Notable is Ms Blok's submission, based on Mr Milner's evidence, that the hospital is not on a main road and is located in the most sensitive part of the site adjacent to existing dwellings. However, Mr Milner makes clear that the "land use concept is sound".[40]
3. Ms Blok says her clients consider the location for the ILUs is relatively isolated, as Mr Milner explains in his evidence. The occupants are likely to be more active and engaged than people within the residential aged care facility but there is not good access to public transport, only bus services on Kooyong Road. None of the non-residential uses are located within easy walking distance of public transport, Ms Blok submits. Hence, although conceding that there is some policy support for more intensive development on this site, Ms Blok submits the locational attributes do not align with policy expectations. Mr Milner states that planning policy does not support such a high concentration of people, independent living and aged care facilities so poorly sited relative to criteria ordinarily associated with higher densities of development. He estimates some 350-400 persons might be on-site during a peak period.

1. Mr Dreadon emphasises that the subject land is not a designated activity centre, is relatively remote from rail and tram services, and submits the proposed cafés, hairdresser, retail spaces and medical suites will create a new activity centre and dilute the functioning and viability of other activity centres.
2. These and related submissions raise concerns about the inclusion of commercial components, site planning and layout, and the intensity of the proposed land uses. The applicant disagrees with the submissions and relies on expert evidence of Mr Biasci and Mr McNamara in particular.
3. We set out our findings on these locational issues next.

Relationship to activity centres and transport

1. We accept that State and local policy encourage health facilities to locate within identified precincts and other places where there is good access to public transport and other infrastructure. Health precincts referred to in Plan Melbourne, particularly for larger hospitals, are part of this.
2. However, the subject land is an established hospital site. This is not a case where a new health facility is being planned. The existing use will remain on the land in new facilities.
3. Neither State nor local policy support a proposition that the existing hospital site is unsuitable for growth or for new associated and related land uses. As indicated earlier, the reverse applies. Local policy recognises the location and expressly supports retirement village and medical uses co-locating here.[41] That is in the knowledge that public transport options are more limited than in other parts of Glen Eira.
4. Despite local policy encouraging co-location at smaller hospitals, it also states a preference for a location with better access to transport and other services. Better served locations are expressly preferred for some types of aged persons accommodation, particularly for the more independent categorisation. Minimal change areas are regarded as being less appropriate. However, Clause 22.10 states that "... on some pre-existing large sites, aged persons housing may be appropriate in Minimal Change Areas".
5. Clause 11.03, relating to activity centres, encourages the concentration of activities as cited in the clause but does not indicate that established non-residential sites for key community purposes should not be redeveloped. Further, it is State policy to:[42]
   • Facilitate neighbourhood health and community wellbeing precincts through the colocation of general practitioners, allied health services, community health facilities and not-for-profit health providers.
   • Facilitate regional health and community wellbeing precincts through the co-location of hospitals, allied health services and not-for-profit health providers.
6. The proposed medical centres are located on Kooyong Road, a secondary road, consistent with preferred locations in Clause 22.02. We accept that the subject land is not identified by the scheme as an existing activity centre or the location for a new activity centre.[43] We accept that the uses would draw custom beyond direct users and occupants of the subject land. However, in the context that the new non-residential uses are aligned with the other uses on the land, and in absence of any evidence to demonstrate a broader impact on the activity centre hierarchy, we do not consider that they will undermine the network of activity centres. Small food and drink premises, such as the facility proposed adjacent to open space and close to the medical centres, are an acceptable inclusion to service users of the site, including staff, visitors to the land and residents.
7. A number of other uses, such as a hairdresser and small café/retail use near to the centralised main entry are acceptable adjuncts for a modern hospital with a residential aged care facility.
8. For these reasons, as a matter of principle, we do not consider that the proposal fails to meet State and local policy with respect to the siting of new land uses that require permission under Clause 32.09. We accept the applicant's submissions and evidence in this regard. We address character outcomes below.

1. Use of the subject land has diminished as facilities have been de-commissioned, even though outreach programs have increased. In 2014, there were 70 in-patient beds whereas today there are 32. Mr Hunt refers to staffing levels showing these are far lower than several years ago. Ms Kennedy is one local resident who describes the area's peace and quietness notwithstanding the on-going presence of the hospital and its activities.
2. We appreciate that the proposal represents a sizeable increase in activity compared with today's scaled-down operation. The redeveloped facilities may see more/expanded palliative care service and State-wide progressive neurological diseases service.
3. However, an increase in activity, in itself, is not a reason to refuse a permit. The suitability of the intensity of the proposal will be determined by an analysis of its impacts not by the numbers or site coverage per se. It is essential to assess the amenity and other impacts of the new uses and activities, such as traffic, parking and relationships with existing residential properties. The outcome of this assessment carries significant weight through Clause 32.09 and when applying local policy.
4. We think it is noteworthy that the Council does not take issue with the overall extent of activity when it indicates that there would be scope to re-configure the ILUs to achieve the same yield.

1. Some parties criticise a lack of information about components of the proposed uses, saying that it is difficult to properly assess the impact of the proposal. Examples are a function centre and a business centre, staffing levels and the nature of medical and allied health services. Ms Blok refers to inconsistencies in the evidence of Ms Ainsworth and Mr McLoughlin in relation to some matters.
2. Through the course of the hearing we have sought, or been provided with, information from the applicant that we need to properly and comprehensively assess the permit application's response to the applicable decision guidelines in Clause 32.09, the purpose of Clause 32.09 and relevant policies. The function centre and business centre serve ancillary purposes.

1. The plan below is extracted from the application plans. It compares the existing building footprint in red with the proposed development footprint.

1. Experts called for the applicant say the site planning is appropriate and logical. The southern and eastern perimeter building forms are three storeys, where they interface with existing residential properties in local streets. Palliative care services and State-wide progressive neurological diseases services would be at the eastern end with the seven-eight storey integrated care services positioned between that building and the tallest form of the retirement village/ILUs at the north-west corner at 10-11 storeys.

1. The applicant emphasises that the tallest form is on the corner with the main road, opposite a car park on the northern side and where there is already a tall building relating to the corner. The medical centres and a café are part of the Kooyong Road frontage and abut the "community open space"[44] that separates the tower from the southern aged care facility.
2. Giving expert evidence for the Council, Mr Czarny agrees with the layout conceptually and acknowledges that the corner is the most appropriate location for height. His principal concern is the height and profile of the retirement village/ILUs which affects the relationships between buildings of different functions and open spaces.
3. The basic site layout is, however, criticised:
   • By Ms Donald who suggests access to on-site car parking should be shared among two or three street frontages with separate access points for different uses.
   • By Mr Milner who says the proposal represents a radical change and departure from the existing layout. He refers to the centralisation of access and the relocation of the hospital mid-block at the eastern interface that contrast with the current corner location with bus access. He says this brings a 24 hour institutional use to the most sensitive part of the land.
4. We address the built form again below but at this point we say:
   • A centralised access point from Saturn Street is acceptable. We do not assess any alternatives because we have formed the view that the proposed vehicle access is satisfactory. The single access in Saturn Street is opposite the existing at-grade car park and west of the porte cochere. Providing multiple access points would spread traffic movements, but it would also create or retain vehicle access points closer to and opposite to existing dwellings. We accept Mr Hunt's evidence that the layout is workable in traffic management terms and that parking allocation can also be undertaken in a sensible and acceptable way. Sectioning-off different parts of the basement may limit flexibility to allocate parking for shared purposes.
   • While there will be increased activity focused on Saturn Street compared with the current situation, it is relevant to recognise reduced vehicle activity on Ludbrook Avenue opposite existing residences. Mr McNamara observes this in his evidence, noting the removal of the car park and patient access to the progressive neurological services component of the existing hospital activities. Vehicle and pedestrian access to these services is proposed instead to be from Saturn Street. A staff entrance to the residential aged care facility will be provided from Ludbrook Avenue and is regarded as being important by the design experts. It will be secured. A car park management plan can discourage staff parking in Ludbrook Avenue. Spaces will be available within the basement for staff.

• The basement car park offers far greater opportunities for on-site parking than the current situation which means residents' concerns about parking and vehicle movement in the local streets has the potential to improve.
• The hospital forms are low-rise and appropriately located on the site perimeter where there is less visual intrusion for existing residents. Issues about lighting, noise and the operation of the hospital are not reasons to find the layout is fundamentally flawed, as evident from our conclusions below relating to potential amenity impacts. Local policy encourages a corner location on a main road for non-residential uses and in this case pedestrian and vehicle access are shared from the side road, in the location that will have least impact on existing residents, opposite the at-grade car park and closer to Kooyong Road. The Saturn Street car park will continue an existing use.

1. There is much criticism about the design and layout having regard to the site's slope and the way in which people should or can move around the site.
2. This was a matter raised in Ms Donald's evidence with respect to access to car spaces, pathway grades and routes, access through the building to the residential aged care facility, and circulation patterns more generally. Some other submissions raise concern about navigability and wayfinding within the development including, for example, accessing the residential aged care facility from the porte cochere via the residents lounge to reach resident rooms.
3. More broadly, the Council challenges the level of amenity provided for future occupants of the proposed complex. Referring to internal amenity as contained in Clause 22.10, as well as the Urban Design Guidelines for Victoria, the Council submits the proposal fails to provide adequate on-site amenity particularly in relation to accessibility around the land and with respect to the areas of open space. It is critical of the number of steps and level changes, and contends that the applicant's evidence does not properly address the quality and amenity of spaces.
4. The applicant challenges the Council's submissions and evidence. Further information was provided at the hearing in relation to the largest of the proposed open spaces that will be accessible to the community as well as additional lift access to the medical centres.[45] The subject land has a significant fall and the slope is a challenge in ensuring suitable pedestrian mobility within and external to the land. This is, however, resolvable. Despite the many criticisms, we are satisfied that the plans provide for safe and appropriate access having regard to the needs of persons with mobility limitations, persons who are seriously ill, and persons who may be moved to different parts of the complex for example, in their beds and by wheelchair. We understand that all accessways and paths are designed to accord with the relevant Australian Standard.

Quality of the publicly accessible central open space[46]

1. The Council criticises the quality of the central open space in terms of its outlook, accessibility and the extent of overshadowing. These concerns are a function or consequence of the higher built forms to the north/north-west and the slope of the land. Various submitters and experts sought to draw on their own experience and some knowledge of sunlight access in a setting involving a hospital and residential aged care in commenting on solar access to the central space.
2. The further information provided during the course of the hearing satisfies us that the open space provides a range of opportunities for pedestrian movement and seating in shade and sunshine. While accessible to the wider public, the open space has a specific role in providing amenity and an opportunity for patients, staff and residents to enjoy an attractively landscaped external space with good stair and lift access. The shadow diagrams presented by the applicant and discussed in expert evidence show there will be considerable shadowing at the equinox particularly before 11am but that sunlight access improves after this time. More may be better for some people but we do not find this to be an adequate reason to reduce the level of the retirement village/ILUs by two or more floors (as discussed further below).
3. Clause 21.13 seeks to ensure that the siting and design of new development maximises community safety and provides opportunities for surveillance of public open space. We consider the proposal does so.
4. We are not troubled about the open space's aspect to Kooyong Road in terms of noise as suggested in the Council's assessment.
5. It is likely that the space will be secured at night, as is appropriate to do so in this case.
6. We are satisfied that fencing associated with the open spaces can be confirmed and addressed through permit conditions.

Shadowing of rooms in the residential aged care facility

1. Submissions about excessive overshadowing of the northern face of rooms in the residential aged care facility are linked to the issue discussed above. Information provided during the hearing[47] shows shadowing of this northern façade at the equinox. Sunlight access would be gained in the afternoon with variable levels of direct sunlight in the morning and at noon.
2. The design of rooms in a facility such as this is guided by Commonwealth Standards. There is no material before us suggesting the proposal would not meet the necessary standards.

BUILT FORM, CHARACTER AND OFF-SITE AMENITY OUTCOMES

1. The way in which the proposal responds to its setting is a major issue. The applicant submits the proposal will replace unsightly and ad hoc infrastructure with a purpose-built facility of high architectural quality. It will not have adverse effects on neighbouring amenity. The applicant relies on the evidence of planning and design witnesses in support of these submissions.
2. The contrary view is very firmly advanced by the Council and respondents, as well as many persons who have lodged statements of grounds. The Council and Ms Blok rely on expert evidence in support of their submissions. Those opposing this development mostly, but not wholly, take issue with the scale and form of the retirement village/ILUs. They submit this component of the development is not expected in this location, is a radical departure from the existing character and preferred character, conflicts with the purpose of the NRZ, will detract from the character and amenity of the area, and will adversely affect the landscape character. They submit the mass, scale and extent of the proposed development is better suited to a high growth location and does not respect the site and its context. The ILU looks like an apartment tower which is not charactertistic of the immediate area or wider suburban areas, not sought by policy for this location, will dominate the skyline and create a landmark that is not sought for this site.

1. The subject land has three street frontages - Saturn Street to the north, Kooyong Road to the west, and Ludbrook Avenue to the south. The prominence of this site is increased by being at a high point within the immediate area and also by the openness of the large hospital car park on the north side of Saturn Street. The subject land falls by some 5 metres from north to south.
2. The existing buildings comprise a four to five storey cream brick hospital structure 23.54 metres high at the corner of Kooyong Road and Saturn Street, two to three storey institutional buildings to the south along the Ludbrook Avenue, and various other buildings including a convent to the east. Some information about existing heights as shown in Exhibit A6 are disputed. We are satisfied that we have sufficient survey information about the existing buildings on the land to properly assess the proposed development. The surrounding area otherwise has a typically suburban grain with many dwellings in garden settings on lots of some 600-800m2. There is some redevelopment such as the large detached house and units at the western end of Ludbrook Avenue opposite the subject land.
3. Kooyong Road is lined with mature deciduous street trees and is relatively narrow in its profile (when compared with various main roads). Saturn Street and Ludbrook Avenue also contain street trees.
4. All parties recognise the incongruity of the existing complex in the low-rise residential neighbourhood. There are not submissions before us contending that replacement of the existing buildings with a more appropriate building would not be welcomed.

1. While the institutional corner building is prominent from both Saturn Street and Kooyong Road, the eastern part of the site is open and well vegetated. It contains several car parking areas. There are mature trees on the subject land that form part of the wider presence of green canopy. At present, the hospital has either a landscaped buffer or low scale domestic convent building to the east. In this it contributes to the existing low-rise character that residents value and wish to retain.

1. The proposal sees demolition of all existing buildings, replacing them with a 10-11 storey (36.5 metres) built form at the north-east corner, linked to a seven to eight storey building along Saturn Street which serves as a central access to all services on the site and provides levels of ILUs above. To the east of this is a three to four storey building housing the specialist palliative and progressive neurological services. A series of three storey linked pavilions are proposed along Ludbrook Avenue housing the residential aged care facility. Between these and the higher built form to the north are two gardens for use by patients at the hospital and a large open space providing outlook from the residential aged care and the public access from Kooyong Road. We note that rooftop plant and equipment adds to the height.
2. Two extracts from photomontage evidence below (in Kooyong Road) give an impression as to how the development transitions to the corner.[48] The first has trees masking part of the residential aged care facility.

1. Statements of grounds before us say that a redevelopment of the subject land should be limited to three or maybe four storeys and many submissions and statements of grounds argue that the two elements housing the ILUs/retirement village are excessive. Among the identified issues are the prominence and visual dominance of the proposed development adversely affecting the Kooyong Road streetscape (mindful that the subject land is on a crest), as seen in local residential streets and from private dwellings.
2. However, experts called by parties opposing the application do not adopt the same position, although all reference the existing built form in relation to their opinions. To summarise some of the key points:
   • Mr Czarny's principal concern is the profile and height of the built form at the corner of Kooyong Road and Saturn Street. He considers that this is the appropriate location for a higher form and that new built form to the corner should broadly emulate the existing height at the corner of Kooyong Road and Saturn Street. His evidence references the top of the telecommunications infrastructure at 27.8 metres in this regard. He says the two uppermost levels exacerbate the building bulk. Mr Czarny considers the proposed building form should be concealed from within the Ludbrook Avenue streetscape and from along Saturn Street, due to their distinctly different character and subdivision grain, but he "not troubled" by a higher corner form in the Kooyong Road streetscape.
   • While the Council opposes the scale of the central building fronting Saturn Street, Mr Czarny is less concerned about this element. However, he does raise the question of transition should the north-west tower be lowered. Mr Czarny also comments on the lift shaft and detailing of the side elevations of the residential aged care facility.
   • Mr Milner considers that the increase in scale and intensity is unacceptable in the suburban setting, notwithstanding the attributes of the existing hospital on the north-east corner or its designation in local policy as a "key development site". He refers to the proposal as the tallest and most visually intrusive built form on the Glen Eira skyline, outside of activity centres. It would, by default, become a landmark.
   • Mr Milner's evidence is that the development should be limited to six to seven storeys. He is critical of the continuous built frontage at the scale proposed along Saturn Street and refers to inadequate building articulation along the interfaces with existing dwellings around the site.

1. The purpose and provisions of the NRZ and policies relating to neighbourhood character envisage a scale of residential development that allows for some change, but minimally, and in a way that respects the neighbourhood character and landscape characteristics. New dwellings are now capped in their height and number of storeys based on mandatory scheme controls. On large pre-existing development sites, while expecting a higher yield, policy is that multi-unit residential development is to be consistent with the prevailing streetscape scale, especially along the perimeter of sites.
2. The proposal is not, however, for multi-units. It provides (among its component parts) a redeveloped hospital, retirement village and residential aged care facility. Policies at Clauses 16.02 and 22.10 refer to the difference in height, scale and mass of residential aged care facilities because of their function. Policies seek to ensure that these facilities are designed to respond to the site and the context. Clause 22.10 addresses retirement villages with objectives to:
   • Ensure that the density, mass, height and built form and appearance of aged persons housing is appropriate to its location.
   • Ensure that the design of aged persons housing respects the existing neighbourhood character.
3. An understanding of existing neighbourhood character cannot exclude the building forms currently on the land. Like them or not, they are part of the existing setting and a relevant matter even though the whole site is proposed to be redeveloped.
4. Further, we ask rhetorically that when policy also encourages the co-location of medical uses and associated uses such as a retirement village and nursing home to concentrate in defined locations associated with the major hospital sites, and to a lesser extent smaller hospitals, how could it not be expected that larger and more intensive development will take place, beyond the prevailing built form?
5. Although local policy is that non-residential building should not be higher than the mandatory maximum height specified in the relevant zone, no party at the hearing advocated for development across the whole site to be capped at 9 metres (10 metres with the slope).
6. Mr Milner and Mr Czarny acknowledge the reality of the existing built form on the land and that the size of the land enables a transition to be achieved from the lower rise perimeter forms. Both accept that a sizeable built form scale is appropriate for the land although they disagree as to the appropriate height.

1. As we have indicated, the overall site layout is acceptable. The design appropriately locates three storey forms closer to the interfaces with existing dwellings to the east, north-east and south. The diagram below, included in Mr O'Dwyer's evidence, shows the setback dimensions. It is relevant that a large precinct private garden wraps the built form on these boundaries.

1. The eastern elevation of the north-east building and the east and west elevations of the residential aged care facility are acceptable as proposed. They are modulated with projecting elements and varied materials. They form part of a carefully detailed integrated design and do not seek to be prominent in a suburban setting. Setbacks from adjoining property boundaries in Saturn Street, Ludbrook Avenue and Kooyong Road are all in excess of 6.4 metres. These setbacks, combined with a detailed non attention-seeking design treatment which complements the more prominent built form on the site, produce an appropriate built form in a residential context for these land uses.

1. The residential aged care facility extends for a considerable length at two storeys in height with a recessed third floor. The built form is broken into five modules by recessed bays and, at the setbacks proposed from Ludbrook Avenue, responds acceptably to the dwellings to both the east and south. Due to the fall in the land, this part of the development is higher than the dwellings on the south side of Ludbrook Avenue. However we find that, at street setbacks of 6.39 metres to nearly 9 metres, the outcome is acceptable. It improves upon the existing built form on the land. The five modules respond to the grain and rhythm of development in the established residential area. It is an appropriate architectural response to the context. We find the three storey wing to the north-east, facing Saturn Street, also responds acceptably to this residential setting. In both cases building setbacks from the street frontages allow good opportunities for landscaping without pathways and crossovers interrupting the garden setting. This part of the design response is respectful of both the streetscape and the wider neighbourhood, including its relationship with abutting residential properties.
2. The lift shaft was criticised in evidence. Mr Milner describes the built form across the full length of Saturn Street as 'continuous'. Mr Czarny finds the view of the proposal along Saturn Street as 'jarring' and sought further erosion of built form. The shaft, with a total floor area of around 5.5 by 7 metres, is setback in excess of 24 metres from Saturn Street, and the rebate from adjoining built form is apparent from both north and south. This serves to break down the continuity of the built form along Saturn Street. The external finishes schedule depicts the design treatment of the lift shaft - glazing to the northern elevation which wraps around to enclose part of the east and west of the lift shaft. When viewed from the west, the part glazed form will be seen set against the plant enclosure at the top level of the ILUs, serving to moderate its impact. We are not aware of any proposal to install telecommunications infrastructure, a concern expressed by Mr Milner, and none forms part of the application. We find the lift shaft as proposed acceptable.
3. For many people opposing this permit application, it appears that because the proposal could read as an apartment tower, the higher ILU component is deemed unacceptable. Mr O'Dwyer, however, emphasises under cross-examination the importance of this element of the building in tying the complex together and reinforcing the corner, which the expert design and planning witnesses agree is the most appropriate location on the subject land for higher built form. The position of this taller element also allows impacts such as shadowing to be substantially internalised.
4. Mr O'Dwyer says that well-designed buildings such as this one can both contribute to a high-quality public realm while maintaining an appropriate relationship with lower scale adjacent residential areas. His evidence is that deleting the top two floors of the corner building as proposed by Council would be a substantial change affecting the integrity of the whole concept, flattening the form and diminishing the architectural quality of the proposed complex.

1. The applicant submits that the removal of two storeys from the corner building would have little real or substantive difference to the visual impact of the building. The highest form at 10-11 storeys is only part of the development footprint, with the top four storeys further recessed and four ILUs at each of the top two levels. The elevation above shows the transition along the Saturn Street frontage leading to the Kooyong Road corner (right side of the image). It also shows the comparator used on the plans of the height of the existing telecommunications array. The tower is approximately 8.7 metres higher than the array, in the order of two floors in this design, or 17.45 metres above the top parapet of the existing hospital structure.
2. Mr Poole describes the architectural devices adopted in the design to reduce the perception of height, framing and banding that respond to the scale of nearby buildings, the manner in which the buildings work as an ensemble, and the use setbacks, materials and colours that respond to the context. We accept his evidence that the three storey podium elements contribute to an appropriate contextual response aided by the landscape concept to soften and, in part, screen.
3. The tallest building form in particular is prominent, open to the street corner, and associated with a high point in the topography. It will be a landmark, of high architectural quality and part of a property that serves as an existing hospital. It is a significant change. But the visual setting can absorb this building. The development will present with a foreground of landscaping and street trees, dependent on the viewing location, for example, in Kooyong Road and the side streets. New landscaping within adequate setbacks will assist to present with a garden setting. For a building that is physically integrated with other functions such as a hospital and residential aged care facility, we find the proposed design respects its setting even though it is a different, higher new form. A complex to provide for ageing in place can reasonably be expected to be different in its scale and massing compared with the low-rise residential setting. It is also relevant that there are not heritage considerations at play nor is there a DDO directing specific design responses through nominated preferred or mandatory heights.
4. Removal of the top two floors of the corner building would lower the built form. But we have not been persuaded that modification is required or will have significant benefits in terms of reduced visual impact on the public realm. It has the disbenefit of losing a feature of the design that assists to achieve transition more broadly across the whole of the development. Despite the resultant punctuation to the low scale residential fabric which surrounds the site, the proposed maximum building height is lower than emerging in the main growth areas. Taller forms are being developed in the Phoenix Precinct and are provided for in association with other activity centres (such as DDO8 for the Bentleigh Urban Village and DDO9 relating to the Carnegie Urban Village seeking 14 storeys in nominated locations). The proposal does not usurp the role that landmark buildings in these locations will serve.
5. The development will be apparent in distant views, such as from Gardenvale Station, local streets in the wider area, further south along Kooyong Road and other locations referred to in submissions. In these views, the existing buildings on the subject land are frequently apparent above the tree canopy and breach the skyline. The proposal is a superior architectural response and, while we see why there is a case advanced to lower the form to around the existing height of the array, we have already indicated that would have disbenefits to the way in which the proposed buildings are read in the round. As a building that forms part of a site which functions as a hospital with co-located activities, we are not persuaded that the visual impact is such that the design must be modified.

1. The subject land offers a strong landscaped presence to the neighbourhood today. This includes vegetation to the south-west of the land as well as trees within the site. Vegetation will be removed including several street trees that will be replaced with new street trees.
2. The proposed landscape concept is described in Mr Patrick's tendered report. A number of parties submit that the concept plan does not adequately respond to the character of the area and will not soften and screen the form. Mr Dreadon emphasises the time it will take for trees to mature adjacent to existing dwellings. A number of parties contend that the existing landscaped buffer to residential properties will be removed and the landscape treatment is not sufficiently resolved.
3. We have considered these and related submissions addressing the landscape proposal and the overall landscape response. We are satisfied that there are sufficient opportunities for a sound landscape response that will respect the character of the area. Obviously, proposed landscaping will not hide the tallest structures. However, it will make a positive contribution to the public realm.

Interface with existing dwellings in terms of potential off-site impacts

1. The main issues arising in submissions and statements of grounds about potential off-site impacts relate to overlooking, visual bulk, overshadowing, noise from occupants of the ILUs, noise from plant and equipment, and lighting.

1. These submissions were considered in the evidence of Mr Milner, Mr O'Dwyer and Mr Biasci in particular. We accept the expert evidence for the applicant that the amenity impacts are reasonable and can be managed by appropriate permit conditions, as we explain next.

1. Immediately abutting dwellings are at No. 13 Saturn Street and No. 12 Ludbrook Avenue. They contain detached dwellings with secluded private open space. The setbacks of the proposed development from these properties is shown in the diagram above (paragraph 145). The setbacks are generous for proposed built forms that adopt a height that would comply with the mandatory height in the NRZ albeit not the number of storeys. The side and rear setbacks comply with Standard B17 of Clause 55 and provide for landscaping. The interface also benefits from the large corner landscaped private garden. We consider the interface is appropriately handled.
2. Plant and equipment should be shown on the plans. State Environment policies apply to protect against unreasonable noise intrusion from plant and equipment. Lighting is unlikely to be a specific issue given the manner in which side elevations have been treated with limited windows.
3. We find the three storey, 9 metre high, residential aged care facility presents in an acceptable way to Ludbrook Avenue. It does not create unreasonable amenity impacts for the dwellings on the south side of the street in terms of visual bulk.
4. The larger proposed forms will not be screened or hidden from the closest dwellings. But they are also generously setback from the closest dwellings to the east with distances of some 50 metres to the integrated services building.

1. There will plainly be wider views to the development from dwellings within the residential area. We visited locations referred to in submissions to consider the outcome. The extent of views will vary, influenced by foreground elements including buildings and vegetation. To the extent that the development will be seen, the separation distances are sufficient so as to be acceptable given the historical and ongoing purpose for which the subject land is, and is expected to continue, to be used.
2. The potential for occupants of the ILUs to place washing and bicycles on balconies is an issue in some submissions. This can be managed in occupancy/ tenure agreements but is not something that we make other findings about.
3. Noise from the use of balconies is unlikely to cause serious issues for other residents in the wider area.
4. Overlooking is well beyond 9 metres which is the typically applied standard where screening is triggered when applying Clause 55 Standard B22. Mr O'Dwyer suggests several windows could be screened if necessary, such as to a stairwell door, but we agree with the Council's suggested condition that screening only occur where a habitable room window is within 9 metres.

1. Hours of operation will limit the use of the medical centres to times that are appropriate for the main road and unlikely to give rise to off-site impacts for dwellings opposite.
2. Some dwellings on the opposite side of Kooyong Road would experience shadowing early in the day over the front gardens at the equinox. When applying tests typically used in residential areas through Clause 55 Standard B21, there is, however, no basis, upon which we would find the level of overshadowing to these or other properties between 9am and 3pm at the equinox is unacceptable.

1. The subject land and Saturn Street car park currently provide 141 car spaces based on Mr Hunt's evidence.[49] The proposal is for 210 on-site car spaces in basement levels. We have been told that the applicant has no current plans to change the use of the at-grade Saturn Street car park which provides the bulk of these spaces (95). We understand that the car park is in Calvary's ownership.
2. Clause 52.06 provides the basis for assessing the proposed car parking allocation. No rate applies to the hospital uses, for which parking must be to the satisfaction of the Responsible Authority. Clause 52.06-5 provides rates for a residential aged care facility, retirement village (at rates that are the same for dwellings, including occupants and visitors), medical centre and food and drink premises. Application of the statutory rate results in a requirement for 165 spaces (excluding the hospital) based on Mr Hunt's evidence.
3. Clause 22.10 includes "guideline rates" which include staff and visitors for different care levels including retirement villages, independent living units and a nursing home. We have considered these as well although they do not replace the rates in Clause 52.06 and there is no Parking Overlay tailoring rates for these land uses or this location.

1. Based on an empirical assessment and car parking demand assessment addressing matters in Clause 52.06-7, Mr Hunt's initial evidence was that the whole redevelopment would generate a demand for 197 spaces, with a reduction sought for medical centres (one space each for three of the proposed centres), shop and café, and ILUs. He proposed 91 spaces as a peak staff rate for the hospital use based on 33 beds.
2. Relying on Ms Donald's evidence, the Council challenges the applicant's evidence that adequate parking is provided on-site to meet the needs of the users and visitors. Ms Donald raises many questions and issues with respect to the traffic report accompanying the permit application and Mr Hunt's evidence. These include:

• The lack of accounting for other staff/consultants, the outreach program, the day centre and attendances at the other neurological services;
• An under-estimate of staff in the medical centres, such as a dentist;
• An under-estimate for the ILUs which, relying on her personal experience in part, a rate of one per dwelling should be applied;
• The lack of an allocation plan for car parking spaces;
• Insufficient disabled bays.

1. Ms Donald estimates some 309 spaces would be required plus day centre parking. Mr Hunt disagrees with this analysis. He adopted lower rates for the hospital, ILUs and medical centres than Ms Donald.
2. During the course of the hearing Mr Hunt corrected his evidence.[50] This correction provided for additional staff and revised estimates relating to staff changeovers, which are a peak period for parking. The revised staff numbers and information increase the projected demand to 125 spaces with 149 spaces at staff changeover. With 41 spaces for the ILUs, at a rate of 0.6 spaces per unit, there is a total demand for 191 spaces at peak with 166 estimated for the balance of the day. Mr Hunt's estimate of short term demands (ie: visitors to the ILUs, customers to premises and staff) is 63 spaces. As not all would peak simultaneously, his evidence is that 50 spaces are needed to accommodate short terms (visitor/customer) parking demands.
3. Mr Hunt recommends 166 spaces be allocated on-site with the balance for visitors/patients and staff overflow at shift change. Having said that, Mr Hunt also acknowledges the presence of the Saturn Street car park and its particular convenience for visitors to all uses on the land including the medical centres. Based on his estimate of around 50 short term visitors, the applicant offers 50 spaces in this car park to be relied upon as other land in accordance with Clause 52.06-7. This can be secured via a section 173 agreement. In the applicant's submission, such an agreement should be linked to a car parking management plan that allocates parking. That should include a monitoring and review process that may, in time, be able to trigger the agreement's sunset if all monitored visitor and users' needs can be met on-site.
4. Impacts on parking are a key concern for the respondents and other persons who have lodged statements of grounds. There are concerns that on-street parking will worsen. Ms Blok and Mr Shnookal express concern about the under-estimation of parking demand for the ILUs and staff. They refer to the size and likely market for the ILUs, and lack of public transport access, in support of their submissions. They also challenge the basis for the conclusions reached by Mr Hunt including the lack of information about studies upon which the evidence is derived.
5. In considering the material and opinions presented, we comment that:

• Personal experiences to which some parties refer do not greatly assist us because they lack information to ascertain their applicability to the current case.
• We do not accept Mr Shnookal's calculations with respect to Mr Hunt's evidence as it misinterprets the analysis by appearing to add the statutory rate to the empirical estimate.

1. In terms of our assessment, we recognise that a significant level of on-street parking already occurs in local streets. The Saturn Street car park is well-used based on the survey information included in reports and evidence.[51] This is particularly the case between 10 and 4pm. However, the proposal will provide a significant amount of basement parking that will reduce on-street parking needs. The ability to limit on-street parking that may occur is within the Council's control as road manager. It can retain or extend the current parking restrictions.
2. Based on Mr Hunt's corrected evidence, the amount of parking for staff and timing of shift changeover is clearer. We consider the estimates made by Ms Donald are over-stated because (for example) some roles are different from those assumed in Ms Donald's estimates. An example is an allocation of 41 spaces for consulting rooms whereas these rooms currently operate as part of the existing hospital. The rate adopted by Mr Hunt for the medical centres is close to the statutory rate and, if the statutory rate is applied, this would add six more spaces. The rates for shop/café and the residential aged care facility are essentially agreed between the experts.
3. A specific point of debate through the hearing is the rate for ILUs. Ms Donald applies one car space per unit (69) plus seven visitor spaces which is essentially based on her experience where a family member resides. This is a total of 76 car spaces. Mr Hunt applies 0.6 spaces per unit on the basis of his experience and studies as cited in his evidence. This is a total of 41 spaces and 0.1 space per dwelling for visitors, a total of 48 car spaces.
4. If we apply Clause 22.10 guideline rate, the total number of car spaces on-site for visitors and staff would be 69 spaces for Level 1 facilities and between 34 and 48 spaces for Level 2 facilities. When using these rates and calculating the balance for the whole development, the total would be 125 spaces plus a figure ranging from 34 to 69. That is a total of 159 to 194 car spaces. With an extra allowance of 24 spaces at staff changeover, the 210 basement spaces would be fully used if applying the higher figure.
5. We expect that the likely parking demand for ILUs would be lower than one car per unit and that visitor peaks are unlikely to coincide with staff changeovers. But we also appreciate that there is a level of uncertainty. In this case, there is the ability to require all staff and resident parking on-site and for short term demands to be accommodated in the Saturn Street car park. The car park contains 95 spaces against a predicted short term demand of 63 or, on Mr Hunt's evidence, a likely short term demand of around 50 spaces.

1. The flexibility to use the Saturn Street car park ensures a generous on-site supply for long term demands including at peak turnover times and for some growth in hospital services. Further, it is persuasive that the Saturn Street car park is highly visible, already known and used, and offers easy and very close parking to the main entrance serving the hospital, residential aged care facility, medical centres and ILUs. We think the Saturn Street car park has an important and beneficial role for visitors and short term users in the immediate future.
2. The potential for shared parking within the basement can be dealt with in more detail via a car parking management plan. For example, we consider some on-site visitor allocation for persons with mobility or other disabilities would be appropriate so that lifts can be accessed easily.
3. A Section 173 agreement is essential to secure short term spaces in the Saturn Street car park, as Ms Blok submits. We agree, too, with a monitoring and review program but any removal or completion of the section 173 agreement should occur via provisions in Division 2 of Part 9 of the Planning and Environment Act 1987. We are not persuaded that should be within the terms of the agreement itself, a matter that was addressed at the hearing with respect to possible permit conditions.
4. On these bases, we find that the requested reduction in parking is acceptable as is the use of other land for visitor parking having regard to the relevant matters in Clause 52.06-7 and Clause 22.10. The purpose of Clause 52.06 is met.

1. In addition to the requirements of Clause 52.06 relating to car park and access design, Clauses 22.02 and 22.10 address car parking and access including with respect to deliveries, ambulance access and waste management. We have had regard to these policies in our assessment.
2. Relying on Ms Donald's evidence, the Council expresses concern about the operation and layout of various elements of the car park and site access. Specifically, Ms Donald criticises the workability of the car park design. Among the issues she raises are:
   • Operation of the loading dock and ramp access;
   • Swept paths for large vehicles in the porte cochere including the ability for vehicles to pass and the potential for access to become blocked;
   • Use of tandem parking for fleet and staff car parking;
   • The ability for large ambulances to park in the basement including clearance heights;
   • End-of-trip bicycle facilities and bicycle parking for visitors in a basement;
   • Lack of information about parking allocation within the basement.

1. Mr Hunt's evidence addresses and responds to these issues raised. The swept path evidence is based on a B99 vehicle including with respect to movement in the basement.
2. On our review of all of the evidence, we are satisfied that the design of the porte cochere and car park are acceptable for use by residents, staff, visitors as well as by ambulances and for deliveries/loading. Further, we accept Mr Hunt's evidence that includes the following:
   • The porte cochere has a high clearance and will accommodate the largest ambulances. This is demonstrated in swept path diagrams for a CPAV ambulance appended to the statement of evidence.
   • The ambulance bay in the basement is suitable for its purpose and this bay would also allow for the transfer of deceased persons. The largest ambulances are not required to use the basement bay.
   • The design provides for vehicles up to 10.7 metres in length which, on Mr Hunt's instructions, is the largest vehicle type to be used to service the development.
   • The loading dock will accommodate such a vehicle and the only time any blockage would occur is when it reverses into the bay. There is space available for another large vehicle to wait as well.
   • The parking layout is acceptable including the proposed tandem spaces that can be appropriately allocated in association with the hospital use. A larger bay such as this may also suit a shuttle bus, if one is provided to service the use/s on the land.
   • Waste collection can occur on-site within the basement.
   • Bicycle parking is provided in accordance with Clause 52.34 but end-of-trip facilities need to be included on-site.
3. The recommendations made by Mr Hunt for waste management, loading and car parking management plans are all necessary for a development of this type and size. Mr Hunt also recommends some relatively minor modifications to the car park in his evidence[52] that are appropriate to adopt. There are no significant implications from these changes to the parking supply or layout. Nor are there issues in accommodating additional permit conditions proposed by the Council and accepted by the applicant, such as wider sightline splays.
4. We are satisfied that the car park layout is acceptable having regard to Clauses 22.10 and 52.06 subject to some detailed matters being addressed by conditions.

1. Clause 32.09 requires us to consider the safety, efficiency and amenity effects of traffic to be generated by the proposal in the context of a new non-residential land use.

1. Local policies also expressly direct consideration of traffic impacts. For example, Clause 21.08 seeks to ensure that traffic generated by a new use is appropriate to the location and can be accommodated within the existing street network. New uses here are the retirement village, residential aged care facility and medical centres and two small café spaces. Clauses 22.02 and 22.10 also address traffic matters.
2. More broadly, Clause 65 requires us to consider the effect on the amenity of the area.
3. Many of the statements of grounds filed in this proceeding raise traffic issues. They refer to the likely increase in traffic movements in the area, adding to existing congested conditions and safety issues.
4. We have already referred to Ms Donald's evidence suggesting access to different uses from different street frontages. This, she says, would improve congestion issues at the intersection of Kooyong Road and Saturn Street and would provide more efficient operation. Further, in her written evidence, Ms Donald refers to errors in calculations, an under-estimation of traffic, and notes proposed mitigation works all arising in a traffic report accompanying the permit application. Ms Donald considers that it would be worthwhile considering the installation of a right turn lane from Kooyong Road into Saturn Street, with a pedestrian refuge, and potentially the installation of signals at Saturn Street/Kooyong Road. We note, however, that during cross-examination, Ms Donald conceded that the warrant for signals would not be achieved.
5. Mr Hunt's evidence addresses the issues raised by Ms Donald. On our review of all of the evidence, we are satisfied that the additional traffic generated by the proposal can be accommodated through the Kooyong Road/Saturn Street intersection. There will be an increase in queue lengths and delays, likely particularly at the busiest time of shift turnovers. However, the SIDRA analysis is not contested and it shows that the post-development conditions and operation will be acceptable.
6. The distribution of traffic will see vehicles using local streets, noting that they already do so. The increases based on Mr Hunt's evidence are within the capacity of the local streets, notably Saturn Street, and also Kooyong Road. Increases would be noticeable but cannot be unexpected given that there is a level of acceptance that redevelopment of the land is reasonable. There is no evidence before us demonstrating that there are identifiable safety or functional implications that warrant specific works or refusal of the application. We do not consider the increase is an amenity impact that is unacceptable when the land is accepted as a hospital and co-location with additional uses is expressly contemplated by local policy.
7. Further, provision for on-site waste collection and loading/deliveries, managed through plans approved by the Council and tied to a permit, offer benefits compared with the existing arrangements.

OTHER MATTERS IDENTIFIED IN SUBMISSIONS, GROUNDS AND EVIDENCE

1. Residents fear approval of the current application will set a precedent for the substantial redevelopment of other hospital and institutional properties in the municipality. They stress that there are options to develop new sites in locations strategically earmarked by the Council for intensive redevelopment. In the alternative, they submit the intensity and height of the proposal should be modified to better suit the surrounding neighbourhood character and amenity.
2. Several key points arise from these submissions:
   • We are required to determine whether the proposal will produce an acceptable outcome. It is not the role of the decision-maker in assessing the permit application afresh to determine if there is a better or ideal solution.[53] Nor is it our role to explore better locational alternatives.
   • The subject land is a strategic location even though it is not part of an activity centre or substantial growth precinct such as Phoenix. Sites such as this with its long established health-related uses cannot reasonably be expected to be redeveloped for medical and related purposes in a domestic, residential scale or form. The balance we must strike is between redeveloping the existing medical facilities, and additional services and residential components, with the built form and design outcomes anticipated for minimal change areas.
   • The proposal has been revised and refined from the original plans which included the highly contentious 19 storey tower. It is clear from the evidence of multiple expert witnesses for the applicant that this was regarded by them as an unacceptable design response. The revisions better address the specific circumstances of the land and location and, for reasons explained, achieve an acceptable response when the planning objectives are objectively weighed.
   • It is open to the Council as planning authority to advance the inclusion of controls in the scheme for other hospital sites/medical precincts to guide their future development.

1. The Council submits that the proposed open space will be accessible to the public but does not adequately deal with the provision of public open space necessary to cater for future demand likely to be generated by the proposal. Clause 21.13 addresses open space planning and we understand the Council's submission is that there is an identified shortfall in public open space provision. While the Council's submission also refers to Clause 22.12, this policy does not apply to this permit application, there being no application for subdivision.

1. Ms Kennedy also refers to open space planning and limitations on public open space in this area. She highlights that the original proposal included open space that has been removed in the substituted plan - she says the local community has lost that and achieves nothing in return.
2. The proposed publically accessible open space will benefit the community but it is not the role of this proposed development to meet the wider needs of public open space for residents in the locale. The Council has an express role in this regard and collects public open space contributions for this purpose. We are satisfied the proposed open spaces assist to provide for the amenity of occupants, in addition to secured open spaces serving particular patients (eg. the dementia garden). There is no proper analysis provided by the Council that leads us to conclude that the proposal fails because of its open space provision.

1. The Council and respondents express concern about unresolved elements of the proposal and changes and/or clarifications offered by the applicant over the course of the hearing. Among these are the components of the landscaping treatment, connectivity and accessibility within the site, whether or not the Saturn Street car park will be relied upon for parking to service the development, access to the medical suites on Kooyong Road, and various components of the operation of the site as an integrated facility. Mr Vorchheimer alleges aspects of the proposal are being "designed on the run".
2. There is no doubt that the large site, the topography and multiple components of the proposal mean that there is a significant level of complexity to be understood and considered. It is true that elements of the proposal have been more clearly described over the course of the hearing, notably the communal open space and the proposal for better internal access between the basement car parks and the facilities on the land. These are not, however, fundamental changes to the proposal.
3. All parties have been provided with the opportunity to address refinements to the plans offered through the course of the hearing. In our view, these have not only assisted a better understanding and resolution of the proposal, they create a better outcome. Moreover, design development will occur through a project of this scale and form and we note the responsiveness of the applicant to make enhancements.
4. Increased stormwater runoff as a result of increased site coverage and permeable surfacing has also been identified as an unresolved matter. Mr Dreadon addresses this in his submission. As he indicates, drainage and stormwater management must be addressed, and we agree. There is no reason why this should not be satisfactorily resolved with the Council in its role as drainage authority.

1. Ms Blok made an application to strike out part of Mr Poole's evidence at the hearing, which we declined at the time for reasons given.

1. Reply submissions by several parties make multiple points about the weight to be given to expert evidence and the lack of independent research underpinning expert opinions, such as in Ms Cooper's evidence. These arguments include experts' reliance on personal experiences and anecdotes, such as contained in the written and/or oral evidence of Ms Donald, Ms Cooper and Mr Poole.
2. There are many other submissions about the weight that should be given to lay evidence and expert evidence the applicant relies upon which we have considered but do not recite.
3. When we reflect on all of the submissions and evidence before us, we see that many of the participants in this proceeding have drawn on, or referred to, their personal experience of family and friends. This includes witnesses, advocates and individuals appearing on their own behalf. We have, however, assessed the expert evidence based on the relevant expertise and experience as could be properly tested.
4. We refer specifically to the scenarios included in Ms Cooper's evidence. They are just that, scenarios. They assist to assess how she understands the proposed development will operate. The scenarios do not show that the ILUs will be occupied outside of the requirements of the Retirement Villages Act as has been suggested by some parties. The examples of persons under 55 years of age are consistent with the provisions of the Retirement Villages Act.
5. We have recorded the fact that Mr Patrick was not called to present his evidence. This affects the weight that we have given to the evidence and, specifically, we are aware that many questions raised by Mr Dreadon were not able to be put to Mr Patrick.

1. Mr Dreadon refers to his concerns about the impression created by the photomontages, the selection of viewing points, the accuracy of the representation of proposed vegetation and the fact that the proposed trees will take many years to grow to the heights shown. Mr Dreadon observes that the images show new deciduous trees in leaf while the street trees are bare - that is, the proposed trees are depicted in a different season to the photographs that form the base of the montages.
2. The photomontages provide four viewing points. They depict the proportional relationship between the proposed development and surrounding buildings and elements such as trees only at those points. They do not match what one actually sees standing at those locations. We have stood in the locations that are the subject of the images.
3. Multiple qualifications must be ascribed to the images, including the mis-match in seasonal conditions. The photomontages are a tool in an analysis but our decision is made based on the facts and application (substituted) plans before us. The plans have detailed information about the levels on the subject land, upon which we have sought more information over the course of the hearing. We have levels surveyed to multiple points on abutting properties.

1. Our site visits have enabled us to assess the visual impact of the proposed development from many vantage points, both near to the land and from much greater distances.
2. This is the information that our decision is based on.

1. Through the hearing, Mr Townshend urged the Tribunal not to reduce the number of retirement village units/ILUs. He relied on Mr McLoughlin's evidence that the ILUs will assist to fund other services. Amendments made in the substituted plans, reducing the number of ILUs from 85 to 69, will require an extension of the loan period. Additional losses in ILUs will further affect the capacity of borrowings to meet the costs and extended loan repayment periods would be outside Calvary's "usual position". Mr McLoughlin notes that Calvary is a not-for-profit provider and profits are used to further develop its services.
2. We agree with Ms Blok and Mr Vorchheimer that there is no independent financial analysis supporting the applicant's submissions. However, financial considerations have not been influential in our decision because, as we conclude below, the proposal is acceptable without the need to remove ILUs.

1. The presence of a bluestone building on the subject land was not the subject of submissions at the hearing. We observe that there is no Heritage Overlay affecting the subject land and that demolition of this existing element can occur without a planning permit being required or granted. Information provided with the permit application describes the altered condition of the structure.

1. Clause 10.01 of the scheme[54] states that 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 generations. On review of a responsible authority's decision, the Tribunal must undertake this task.
2. This permit application seeks approval to redevelop all of the hospital and health facilities on the land while adding a residential aged care facility, a retirement village, medical centres, and food and drink premises (as two modest cafés). The palliative care facilities and program provide a valuable service to the local and wider community. The progressive neurological services are recognised as of State-wide importance. The very significant benefits of the hospital should not be lost or understated in the debate about the size of the vertical form of the retirement village/ILUs.

1. Much of the debate in this case has focused on the height of the corner building and, to a lesser extent, the mid-range structure on Saturn Street. The difference in expert opinion on the tallest corner structure is, on one view, significant but not substantial. Take Mr Milner's position at six to seven storeys, Mr Czarny's eight storeys and the proposal's 10-11 storeys (the higher figure relating to the topography). In the case of Mr Czarny's opinion, this amounts to eight ILUs.
2. The Council and respondents urge the Tribunal to give greater weight to neighbourhood character and the lack of fit this proposal represents. Ms Blok submits the needs (only some of which are demonstrated) do not outweigh broader policy expectations, in particular built form considerations. Conversely, the applicant submits need should not be reduced to a background hum and should be given real weight, a weight that is greater than the weight of neighbourhood character. Having said that, the applicant also states in its closing submission that the Tribunal does not need to decide between two mutually exclusive planning objectives because, as designed, the scale of the development will not have a detrimental impact on neighbourhood character or residential amenity.
3. We were referred to several cases where the need for housing for the aged was being considered by the Tribunal but did not persuade the Tribunal to accept the development under review. In TLC Aged Care Pty Ltd the Tribunal commented on need, in part saying:[55]

In planning terms, the need for aged care is not high priority, urgent or a game changer. This building is not required to land helicopters next to a hospital so lives can be saved, or to accommodate world class research in association with a leading university. It is not required to do research into, or develop solutions to urgent environmental issues. While its social benefits are positive, they do not have the priority or urgency to outweigh any adverse built form, heritage or amenity considerations.

...In terms of need, this development is no different to a proposal for dwellings in an apartment building, an industrial showroom complex or a shopping centre.

1. In Residential Aged Care Services,[56] the Tribunal accepted the need and benefits of the proposed aged care facility but also found that the need and benefits did not outweigh issues arising from the impact on a heritage place, (including a 'significant' building) and adjacent heritage places, as well as the overall composition and massing in heritage, character and design terms.
2. Both of these permit applications were for stand-alone facilities. The permit application before us is not. And it is not akin to a proposal "for dwellings in an apartment building". It seeks approval for contemporary facilities to house palliative care and progressive neurological services. A residential aged care facility and a retirement village are the main added components in an integrated complex by a not-for-profit service provider.

1. Need is a factor, but not an over-riding factor, in our decision. Underpinning our decision is the express strategic support in local policy for the combination of uses proposed at this location and the fact that there are already structures of a significant scale on the land.
2. Many residents opposing the project perceive the proposal will detract from the qualities of the area that they enjoy. However, from the perspective of implementing the Glen Eira Planning Scheme, the outcome is acceptable, particularly because it comprises the co-location of medical and other associated uses, including the residential aged care facility and a retirement village, on an existing hospital site. This is expressly encouraged by local policy. In adopting this policy to be part of the scheme's strategic directions, as we have said, up-scaling of development on the site must reasonably be anticipated by the Council and the local community.
3. The proposed built form will have a greater impact compared with the presence of the existing structures on the subject land. However, the built form is acceptably managed around the site perimeter and it is a matter of judgment as to whether the most contentious highest elements are acceptable. As we have noted, the expert evidence for the Council is not substantially different to the expert evidence presented for the applicant with respect to the tallest corner building.
4. We reach the view that, in its strategic context and having regard to the integrated nature of the hospital, aged persons housing and other uses, the outcome is acceptable. We further find that the impacts in terms of off-site amenity, traffic and car parking can be acceptably managed, for reasons set out in this decision. The proposal is likely to improve the outcome with respect to car parking as there will be a substantial on-site provision with short term parking primarily in the existing Saturn Street car park.

1. For the above reasons, we will set aside the Responsible Authority's decision. A permit is granted subject to the conditions in Appendix C. The conditions take account of submissions presented by the parties and accord with our findings.

1. Prior to the hearing, one of the objectors, Mr Shnookal, raised the following question of mixed fact and law:

Does clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres?

1. Subsequently, the applicant suggested in response that the question raised broader questions as to the proper characterisation of the use, including alternative questions as follows:

Whether the application is characterised appropriately;

Whether the application constitutes an unspecified innominate use;

Whether the existing use of the premises means the use should be treated as an 'existing use'.

1. I note that the third of the alternative questions, that dealing with existing uses, was not agitated by the applicant at the hearing, it being common ground between the parties that the subject land has been used for a hospital and there being no challenge advanced to the proposition that the site enjoys existing use rights in relation to the hospital use.

1. The application for planning permit includes permission sought for use of the land of the purposes of a Retirement village. The Applicant described the proposal in its submissions, as set out at paragraphs 7 and 8 of the main body of these reasons.

WHAT ARE THE RELEVANT PROVISIONS IN THE SCHEME?

1. Mr Shnookal's question refers to clause 32.09-8 of the Scheme.
2. In referring to this clause, Mr Shnookal was referring to clause 32.09-8 of the NRZ as it was in the VC104 version.
3. Mr Shnookal was not referring to the current clause 32.09-9 of the NRZ "Maximum building height requirement for a dwelling or residential building" given the operation of clause 32.09-14 Transitional Provisions of the NRZ, where it is stated that:

The minimum garden area requirement of Clause 32.09-4 and the maximum building height and number of stories requirements of Clause 32.09-9 introduced by Amendment VC110 do not apply to:

A planning permit application for the construction of extension of a dwelling or residential building lodged before the approval date of Amendment VC110.

1. The planning permit application for the proposal was lodged before the approval date of Amendment VC110, hence the transitional provisions apply.
2. I will address the reference to clause 32.09-8 later in these reasons. However, irrespective of which of the two clauses is appropriate, in order for this height control to apply the proposal would need to be for, or include, use of the building for the purpose of a dwelling or residential building. As such, it is appropriate to firstly consider the question as to what is the appropriate characterisation of the proposal.

1. Clause 74 of the Scheme contains definitions of land use terms that are used in the Scheme. The opening words of this clause state:

The following table lists terms which may be used in this planning scheme in relation to the use of land. This list is not exhaustive. However, a term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.

1. The following land use terms were referred to during the hearing.
2. "Dwelling" is a defined land used term in clause 74 of the Scheme as follows:

A building used as a self-contained residence which must include:

1. a kitchen sink;
2. food preparation facilities;

It includes out-buildings and works normal to a dwelling.

1. "Residential building" is a defined land used term in clause 74 of the scheme as follows:

Land use to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

1. Dwelling and Residential building are both forms of Accommodation. Clause 75.01 contains the nesting diagram for the Accommodation group. The information in clause 74 is shown in the diagrams in clause 75 as a means of indicating the nesting of the land use terms. These two land use terms are separated in this nesting diagram, both being a form of Accommodation but neither being a subset of the other.
2. Relevantly in terms of this discussion, the land use term "Retirement village" is similarly a form of Accommodation that is separately listed in the nesting diagram but is neither a subset of Dwelling or Residential building.
3. Retirement village is a defined land used term in clause 74 of the scheme as follows:

Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

1. The nesting diagram in clause 75 shows " Residential aged care facility" as being within the term Residential building, where that land use is defined as:

Land used to provide accommodation and personal or nursing care for the aged. It may include recreational, health or laundry facilities and services for residents of the facility.

1. Finally, the land use term "Hospital" was referenced; this is defined to mean:

Land used to provide health services (including preventative care, diagnosis, medical and surgical treatment, and counselling) to persons admitted as inpatients. It may include the care or treatment of outpatients.

1. The Council submitted that the proposed land uses of the site are:

1. "Residential aged care facility", in terms of the use of the building that fronts Ludbrook Avenue and is proposed to contain the aged care facility; 2. "Hospital", in terms of the sub-acute hospital use of the part of the built form that is located to the east of the site, as well as the ground floor reception areas of the central tower part of the site;

1. "Retirement village", in terms of the tower located on the northwestern part of the site.
2. It was the Council's view that the various land use components of the proposal were three distinct uses and it was not appropriate to characterise these as a single 'innominate' use under the Scheme.
3. The Council submitted that the uses of each of the towers did not fall within the definition of either a Dwelling or a Residential building under the scheme and therefore the maximum height contained in the NRZ did not apply to either of those buildings. The Council highlighted that the definition of Residential building specifically excluded Retirement village.

1. Ms Blok acknowledged that the aforementioned definitions were broad and contained overlap, in particular as between Retirement village and Residential aged care facility in terms of providing accommodation for the aged. In terms of analysing the proposed ILUs, Ms Blok submitted that:

101....They are clearly a form of permanent accommodation and as such, appear to fall within the definition of 'retirement village' in Clause 74. The adjective 'independent', which describes the 'living units' suggests that the retirees who will live there will maintain a level of 'independence'. That there may also be an extra level of support if necessary is not inconsistent with how retirement villages are understood in the broader community.

102. On the other hand, the Permit Applicant seeks to emphasise that the ILUs in this case are different from typical independent living units, in that they are intended for an older, frail, more unwell population (no doubt to emphasise the need for the Proposal). This has also been pressed in cross-examination of Mr Milner and other witnesses by Senior Counsel for the Permit Applicant. As such, the future ILU residents are cast is older, frail and even may suffer from progressive neurological diseases (albeit in the earlier stages) therefore requiring a much-increased level of care. Hence also the purpose fitted ILUs for these particular or increased care needs. Perhaps then, the ILUs are in substance and purpose, if not in name, a 'residential aged care facility' - they are a 'land use that provides accommodation and personal care or nursing for the aged'? They do not need to be a 24 hour care nursing home to be a 'residential aged care facility'.

1. It was Ms Blok's submission that if the ILUs are a 'residential aged care facility', the ILU towers will be subject to the height limit, as they come within the concept of a 'Residential building' for the purposes of the Scheme.
2. Ms Blok then addressed the proposition that the ILUs are a 'retirement village', stating that in such instance, the 'retirement village' land use component must comply with the height limit that applies to Dwellings:

103.... This is because a retirement village is comprised of 'dwellings'. The ILUs are themselves 'dwellings' and must comply with the obligations that attach to 'dwellings'.

1. In support of this proposition, Ms Blok cited Casey CC v Blue Hills Residences, a case in which the Tribunal considered whether the owner of a retirement village was required to pay a development infrastructure levy under an approved development contributions plan that applied to all new residential lots and multi-dwelling developments. In that case, Member Code (as he then was) decided that a development infrastructure levy must be paid for each independent living unit and each serviced apartment in the retirement village "because the units and apartment are, collectively, a multi-dwelling development for the purposes of the DCP".[57] Ms Blok argued:

106. Likewise in this case. The ILUs individually are used for the purposes of a 'dwelling' and together they may form a 'retirement village'. Just as the units in the retirement village in Blue Hills were 'dwellings' (at least for the purpose of paying the levy payable under the DCP), so too the ILUs in the 'retirement village' here, for the purpose of the height control. They each fall within the defined meaning of 'dwelling': each has a kitchen sink, food preparation facilities a bath/shower, a closet pan and wash basin. Just because they may have additional fixtures or functions (such as the emergency button, or the capacity to manage a hospital bed or wheelchair) does not mean they are no longer 'dwellings'.

109. The broader context and purpose of the height controls within Clause 32.09 supports a construction that the ILUs are subject to the height controls. The height controls are contained within the NRZ which in large part, albeit not exclusively, seeks to control residential growth and development. Whatever name is given to the ILUs, they will offer accommodation. They are an accommodation use, and therefore, without a doubt a residential use. It is inappropriate to label the ILUs in such a way as to avoid the intent of the scheme (which is clearly to bestow a height limit on residential development). This would include a characterisation as an 'innominate use', a 'mixed use' or as a 'health and retirement precinct'.

1. Mr Shnookal's primary contention was that the ILUs are dwellings and, as such, are regulated by the mandatory height control contained in clause 32.09-8 of the Scheme. Like Ms Blok, Mr Shnookal took the Tribunal to the differences between the profiles of the likely residents of the ILUs, in terms of their level of independence and level of frailty. Mr Shnookal suggested that there was nothing unusual about the features of the ILUs and that:

29. Adding wide corridors, swept parts for hospital beds and call buttons to a three bedroom, one study apartment does not make it no longer a dwelling. It remains caught by the mandatory height limit. There is no distinct term used to describe these apartments in common use or in the planning scheme. They are and remain apartments; they are dwellings.

34. In my submission, this should be the end of the Application. There is no loophole in the Planning Scheme that permits high-rise dwellings to be built in an NRZ zone that exceed the mandatory height limit for dwellings by calling them part of a retirement village. As dwellings, albeit with some special features, it matters not a jot if they are part of retirement village; they are dwellings and the Scheme is clear that it applies to both dwellings and residential buildings.

1. Mr Shnookal then addressed the proposition that the mandatory height restriction does not apply to the towers containing the ILUs because they are part of a retirement village. Mr Shnookal explored the provisions of the Retirement Villages Act 1996 (RV Act) and the Retirement Village Regulations 2005 (and also those of 2015) regarding any references made to the term "independent living units" and the distinction made between the reporting requirements for an ILU and for serviced or supported residences in that legislation. He also considered the use of that term in clause 22.10 of the Scheme, where a distinction is drawn between the various forms of aged person housing as to the level of care provided to residents, with Level 1, being the lowest level of care, being:

Accommodation with a high degree of independence of residents and with minimal support from staff including independent living units, retirement villages.

1. Mr Shnookal considered the industry meaning of the term ILU, how the Building Act 1993 treats buildings of this nature, the approach taken to "residential premises" in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the approach taken in assessing whether work constitutes domestic building work pursuant to the Domestic Building Contracts Act 1995.
2. Mr Shnookal submitted that the tower containing the ILUs should be considered to be a Residential building and not within a Retirement village, effectively on the basis that the Retirement Village Regulations 2005 drew a distinction between ILUs and accommodation facilities where care and service are provided.
3. It is noteworthy that Mr Shnookal did acknowledge:

109. There is some logic to exempting from the mandatory height controls facilities in a Retirement Village where care and services must be provided. For such facilities a tall multi level facility can provide efficiency and service delivery that a low rise arrangement cannot. Good planning suggests building forms such as this should be exempted from the mandatory height limit and considered on their merits. The serviced accommodation in a Retirement Village is similar to other exemptions from the definition of residential building in the planning scheme - corrective institutions, dependent person units and group accommodation. Independent living units, on the other hand, are nothing at all like these types of accommodation. At the time the mandatory height limit was introduced, ILUs were not able to be serviced or supported at all.

110. There is no apparent logic to exempting a tower of 3 bedroom apartments with studies intended to be occupied and used as ILUs from the mandatory height limit.

114....if the Tribunal considers the Application should be considered an application for a single Use, it must determine what is the most appropriate Use under the Planning Scheme.

115. In my submission it must be a Residential Aged Care Facility.

119. It is submitted that if the ten levels of ILUs are not regarded as dwellings then they nevertheless form part of an Integrated Residential Aged Care Facility under Planning Scheme and, as such are within the definition of Residential Building and the mandatory height limit of 9m applies to it.

1. In reply submissions, Mr Shnookal submitted that the real and substantial purpose of this development was to provide self-contained accommodation through ILUs "that are attractive to persons with particular medical conditions"[58], rather than to provide housing for retired persons. In support of this argument, he cited the examples given by Ms Cooper in her expert evidence.

1. The applicant submitted that the proposal comfortably falls within the land use term Retirement village under the Scheme given that:

27.... The intended purpose of the relevant use is to provide permanent accommodation for retired people or the aged, including communal, recreational and medical facilities for residents.

28. The following facts about the ILUs are particularly relevant:

(a) They are designed specifically to enable adaptation over time for the specific needs of ageing people;

(b) They will be generally available only to retired persons and the aged;

(c) They will be operated in accordance with the RVA;

(d) They include communal, recreational and medical facilities for the residents; and

1. The applicant drew a distinction between the ILUs and the Residential aged care facility component of the proposal:

because services such as medical, nursing and personal services are offered but not necessarily provided, at the election of the residents. In essence, care is available but not a necessary component of the use.

1. The applicant submitted that whilst the ILUs contain the components of a Dwelling as defined and are designed to be lived in:

...that does not mean that the relevant land use is properly characterised as Dwellings for the purposes of the Glen Eira Planning Scheme or the NRZ. The question is not determined by the physical attributes of the building.

1. The applicant drew attention to the different treatment of "Dwelling" and "Retirement village" in the Table of Uses to the NRZ, where a dwelling is as of right whilst a Retirement village is a section 2 use.
2. The applicant went on to highlight that the maximum height requirement specifically refers to Dwelling and Residential building and that:

If it had intended to operate in respect of Retirement villages - which on any view can and commonly do include physical form that individually meets the definition of "Dwelling" - it would have said so.

1. As for the argument advanced by Mr Shnookal that there was nothing special to distinguish the ILUs from Dwellings and that the term ILU is not a term of art, the applicant stated:
   1. ...With respect, these arguments miss the point. The purpose for which the subject land is intended to be used (and the permission being sought) is as a Retirement village, not a number of Dwellings or "independent living units".
   2. The ILUs for the purpose of characterisation do not have to exhibit any unusual or special features to distinguish them individually from Dwellings. The choice of marketing label is also irrelevant.
   3. Looked at more broadly, it is evident that the Scheme relies on the distinction between the uses Dwelling and Retirement village for the purposes of policy.
2. It was the applicant's preference that the proposal include permission for a Retirement village so that it was beyond doubt to future occupants what the intended use of the property was and the legislative obligations that were required to be met. However, in the alternative, the applicant suggested that the proposal should be characterised as an innominate use on the basis that:
   1. ...the proposal integrates a number of defined land uses so as to form an independent land use, namely, a health and retirement facility.
   2. It is open to the Tribunal in circumstances of this case to find that a health and retirement facility is an innominate use, having regard to:

(a) the unique combination of Hospital, Residential aged care, Retirement village and ancillary uses proposed;

(c) the integrated operation of the proposed uses; and

(d) the interdependency of each component to the creation of a truly integrated facility that enables its residents and patients to ageing place.

1. The consequence of a finding that the proposal is appropriately characterised as an innominate use is that no part of the proposal would be affected by the mandatory height limit contained in the NRZ, as the site would not be used for the purpose of a Dwelling or Residential building.

The ILU component of the development constitutes a Retirement village for the purposes of the Scheme

1. As is evident from the parties' submissions, the main area of conjecture was whether the component of the proposal that contains the ILUs and the associated facilities was appropriately characterised as a Retirement village and in the event that it was, whether this meant, nonetheless, that the mandatory height limit applied to that aspect of the proposal.
2. In terms of the real and substantial purpose of the proposed use of the subject land[59], having regard to the planning permit application materials it appears clear to me that the applicant is intending to use the land for the purposes of a Hospital (sub-acute hospital), Residential aged care facility and Retirement village. I did not understand there to be any argument in relation to the first and second referenced land use terms, just in relation to the last referenced - ie the Retirement village.
3. The Retirement village component of the use will contain the ILUs. Through the provision of the ILUs along with the communal recreational and medical facilities, the applicant intends to provide permanent accommodation for retired people or the aged. The entry restriction on occupants will be a condition of the planning permit and will ensure that occupants meet the eligibility requirements of the RV Act. The site will remain in single ownership and is not intended to be subdivided, and the ILUs will be managed by the one entity.
4. What is sought to be provided on this part of the site aligns with the definition of Retirement village, in that it is:

Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

1. This is what the applicant has applied for in the planning permit application and what the applicant proposes to undertake on this part of the land fits within the land use term definition.
2. I acknowledge that the use of the term "independent living units" might have led to some confusion regarding what is being proposed. At first blush, it perhaps connotes a form of independent accommodation - perhaps like an individual dwelling. However, these "independent living units" will form part of a Retirement village and I accept the logic of the submissions put by the applicant in drawing a distinction between the "independent living units" component of the Retirement village and the communal recreational and medical facilities component of the Retirement village - i.e. the term is employed more to distinguish between the private and the communal areas of the greater retirement village, as opposed to being used to describe whether or not an occupant was assisted in their living arrangements.
3. If one was to focus on the physical components of the definition of the term "Dwelling", one can understand why the project's opponents argue that what was being sought was a series of Dwellings located in the towers. However, that is not what the applicant is proposing (the question of whether the Retirement village looks like an apartment tower is addressed in the main body of the Tribunal's reasons). Rather, the applicant is intending to use that part of the land for permanent accommodation for retired people or the aged. Although the individual ILUs might satisfy the elements of the definition of a Dwelling, the applicant is seeking to provide these in a Retirement village development and to a restricted catchment of people; ie retired people or the aged. This distinction is important.
4. In planning terms, Retirement villages are treated differently to Dwellings. Notably, accommodation in Retirement villages is not subject to clause 55 of the Scheme (the 'ResCode' provisions), there being an implicit recognition that living in a Retirement village is a more communal experience than living in an independent dwelling outside such a village, resulting in, for instance, different amenity expectations.
5. This can be the case, notwithstanding any distinction made under the Retirement Village Regulations 2005 between serviced or supported residences and independent living units, and the reporting obligations under that legislation in relation to these; any such distinction in that legislation is not determinative for the purposes of characterising the proposed land use under the Scheme. For the purposes of characterisations under the Scheme, it matters not whether a residence in a Retirement village is serviced.
6. Part of the opposition to the ILU component of the development is that it is seen by some as looking like an apartment tower and not like a retirement village. Firstly, the retirement village units - the ILUs - are not just contained in a tower rather than an expanse of villa units, but a tower that will have attractive views of the Bay and the city. Secondly, these ILUs are, by some estimations, relatively large compared with the more traditional retirement village offerings and some have three bedrooms. Given their size and location, it is conceivable that these ILUs might be on the higher end of the price spectrum. Finally, the communal facilities provided are located within the building - some at ground and lower ground floors, others on Level 7, rather than in separate community hall-type buildings.
7. It is not a new or novel proposition to suggest that the profile, needs and desires of the ageing population is changing. And it appears that the industry is paying greater attention to the needs and desires of this demographic and tailoring its services accordingly. Many people are living longer and retiring to a facility such as this later than those who went before them. Many people are living improved and more independent lives notwithstanding health conditions that, in years gone by, may have resulted in an earlier deterioration or demise and transition into an aged care facility. Some retirement villages on the market are targeting, for want of a better term, the lifestyle market, where retirement village living is provided in a relatively vibrant environment of activities and facilities. It is not uncommon for modern retirement villages to contain multi-storey buildings rather than the more traditional concept of an expanse of villa units with communal buildings, arguably in response to the increased price of well-located land. Within these buildings might be a mix of independent living apartments/units and serviced apartments, representing a varied offering tailored to the needs of various residents. Entrants to a retirement village are influenced by many factors, including its location, any vacancies, its services and facilities, its cultural mix and, of course, its price point. To the extent that there ever was a 'one size fits all' model of a retirement village, this is no longer the case nor has it been for some time.
8. With respect to Mr Shnookal's submission that the real and substantial purpose of this development was to provide accommodation to persons with particular medical conditions, I do not agree. Entry into the Retirement village is not intended to be restricted to persons with particular medical conditions, notwithstanding the long association of this site with particular neurological conditions and the intention that the site will continue to make a contribution in this regard. Whilst this might result in the ILUs being more attractive to people affected in this way, I do not think this results in a change to the real and substantial purpose of this part of the development from a Retirement village.
9. Further, the increasing emphasis on the benefits of 'ageing in place', whilst not a new concept, has resulted in an evolving expectation as to how long a resident can ably reside in a retirement village before moving on to another form of housing that provides an increased level of care. Hence, the divide between assisted living in a Retirement village and low-level care in a Residential aged care facility, whilst still evident, might not be as obvious as it once was.
10. In any event, I am satisfied that based on the provision of accommodation in the form of ILUs to a subset of the population - retired people or the aged - along with the provision of, or access to, some communal recreational and medical facilities for residents, that what is proposed in the ILU tower component of the development is appropriately characterised as a Retirement village.

The ILU tower component is not a Residential aged care facility

1. I do not consider that the Retirement village component of the proposal is a Residential aged care facility, as was suggested by Ms Blok.
2. Notwithstanding that there are different levels of care that may be provided in a Residential aged care facility, the term as defined in clause 74 envisages that along with accommodation, the land will provide "personal or nursing care for the aged". This is a component of the land use term and this aspect of the definition would need to be provided even in a low care scenario in a Residential aged care facility.
3. The ILUs, by contrast, do not provide "personal or nursing care for the aged" as a matter of course although access to medical or nursing assistance, including the "off-site" provision of palliative care from the hospital component of the proposal, will be available at the election of a resident. Further, although I understand that the ILUs are able to allow active daily living monitoring through the inclusion of 'smart' fittings that can be monitored from the 'flight desk' in the central hub, I do not consider that these are equivalent to providing "personal or nursing care". Whilst these services will no doubt be useful and used to monitor occupants, in some ways they are not dissimilar from personal care alarms that many elderly people wear on their person when living in their own home and which enable monitoring or communication by an outside service provider. That they are perhaps a more advanced form of the technology does not result in this transforming into "personal or nursing care".
4. In my mind, the "personal or nursing care" referred to in the definition would require a person to provide care in a more interactive, organised and physical manner, including through being present with the occupant on and off, throughout the day. This care is to be provided by the facility as a whole as part of the land use, rather than on an ad hoc basis, where some residents have arranged for such provision and others have not.
5. Such services by election are perhaps akin to a person arranging for, and separately financing, grocery shopping or cleaning services to their residence. And such provision is perhaps not dissimilar from an elderly person living independently in their own home who might have arranged to obtain such services. In short, it is not part of the offerings of the development for a resident to receive these services; they are by separate election, arrangement and payment.
6. Accordingly, the provision of advanced levels of 'in-home' assistance and "off-site" palliative care from the hospital component of the proposal to some of the individual ILUs but not all of them - and not on a formal, managed basis - would not convert what I consider to be a Retirement village into a Residential aged care facility.
7. I say this notwithstanding clause 22.10 of the Scheme - Aged Persons Housing Policy - where a description is provided of the various forms of aged persons housing distinguished by the level of care provided to residents. I note that the terms "independent living units" and "retirement villages" are separately specified in Level 1 of Aged persons housing, as follows:

Accommodation with a high degree of independence of residents and with minimal support from staff including independent living units, retirement villages.

1. In my mind, little turns on the separate listing of these terms and I interpret the reference in the Table as being more by way of example of the types of accommodation that are envisaged as being of a Level 1 nature, rather than as distinguishing between different types of land uses. I also observe that this policy is some 10 years old. I note comments that were made by Mr McLoughlin during evidence-in-chief as to the three levels identified in clause 22.10 and the absence of Level 2-type facilities in modern aged persons housing developments, these containing either Level 1-type care (often modified over time to suit changing needs) and/or Level 3-type care, being a Residential aged care facility.

1. Finally, I do not consider that the proposal should be characterised as an innominate use. I say this notwithstanding the intended integration of the proposed components of the land use and the intention for this to be operated and managed as a health and retirement precinct.
2. I acknowledge that the applicant intends for the facility to be integrated in terms of:

1. its management by a central group of persons; 2. its physical layout, whereby persons will largely enter the 'precinct' via a central porte cochere;

1. its intention to enable persons who enter the ILUs with the requisite needs to be able to have 'off-site' palliative care services provided to their rooms until they need to advance to either the Residential aged care facility or the sub-acute Hospital, when there is availability. Similarly, for persons who enter at the Residential aged care facility level to be able to progress to the sub-acute Hospital, if and when the need arises and when there is availability;

1. the provision of specialist care and knowledge to patients with progressive neurological disorders throughout the facility.
2. Further, the applicant argued that this was a "unique combination" of the core uses of Hospital, Residential aged care facility, Retirement village along with other, uses such as medical consulting suites, with the added benefit of being a centre of knowledge and research for PNDs. Ms Ainsworth cited international models that adopt a similar approach in terms of co-locating such complimentary land uses and referred to them as being 'beyond best practice'.
3. On the other hand, the other parties each took us to local examples of aged care facilities that similarly co-located either a hospital and a type of aged care housing, or various forms of aged care housing. Notwithstanding that none of those facilities contained the exact combination here proposed, they argued that this facility was not unique.
4. Whilst the offering might be the first of its kind in Victoria, especially in light of the intended continued link with research and development regarding PNDs, I do not consider that the proposal is an innominate use. I do not see that the use components are so integrated that they are what was envisaged by the Tribunal in Typhoon Pty Ltd v Macedon Ranges SC [2004] VCAT 913. Central management of the facility and its services no doubt provides cost efficiencies and enables a coordinated approach to marketing, management practices and the like. Similarly, there is a logic in co-locating various forms of housing for the aged, in terms of services provision and 'ageing in place'. Having a sub-acute hospital that specialises in disorders that affect the aged in higher proportions than the population at large is also a logical component to have on-site, in terms of physically transferring an occupant as well as how the person and their family emotionally copes with the person's advancing condition - that they are in a known and familiar place must bring some comfort at an otherwise difficult time.
5. However, notwithstanding the applicant's aspirations for this to be a fully integrated facility, there is no guarantee that a person who enters an ILU will be able to obtain a funded bed in the Residential aged care facility. Further, although the ILU occupant list is in the applicant's control (as manager of the facility), there is no guarantee that a person with a PND will be able to obtain a room (for instance, in the event that all the rooms are already occupied at the time of application), and there is nothing to prevent a person without such a condition from applying for and successfully being granted occupation. Certainly, the marketing of this facility and the awareness of its intended focus might result in it being more appealing to some subsets of the population than others, which might, of itself, act as a 'control' on occupants, however, this would act in an informal manner.
6. Playing into this are the ways in which beds in the Retirement village component are funded compared with those in the Residential aged care facility. In my mind, it is not the fact that the beds are funded through different legislation that is the complication; it is that the two systems seemingly operate independently of one another, the consequence of which is that an occupant of an ILU who needs to move into the Residential aged care facility on site is not guaranteed to be able to obtain a bed in that facility.
7. Notwithstanding the laudable aspirations of the applicant that the proposal will operate as a health and retirement precinct, I do not see that the various components of the proposal are so integrated that they are no longer a collection of three core uses (ie Hospital, Retirement village and Residential aged care facility) along with other uses.
8. In any event, if I am not correct in my characterisation of the land uses and the proposal is for an innominate use, the consequence of this would be that a permit would be required for the innominate use under clause 32.09-2 of the scheme. As such innominate use would not be a Dwelling or a Residential building as defined in the scheme, the maximum building height requirement for a Dwelling or Residential building would not apply anyway.

A Retirement village is not controlled by clause 32.09-8

1. Clause 32.09-8 of the NRZ (VC104 version) is expressed to control:

The maximum height of a building used for the purpose of a dwelling or residential building...

1. As detailed above, I have formed the view that the ILU tower component of the development is properly characterised as a Retirement village and not as a Dwelling or Residential aged care facility, noting that the latter term is within the broader land use term "Residential building".
2. As the ILU tower component of the development is not a "building used for the purpose of a dwelling or residential building", the control in clause 32.09-8 does not apply (putting aside, for now, the issue of the appropriate version of the Scheme to be used).
3. Notwithstanding the relatively clear wording of the provision, the objectors through Ms Blok and Mr Shnookal argued that clause 32.09-8 should apply to the ILUs on the basis that the ILUs constitute residential accommodation. I will now address these submissions.
4. Firstly, clause 32.09-8 of the Scheme specifically refers to "Dwelling" and "Residential building". If the maximum height requirement was intended to apply to other land-use terms within the Accommodation group it is reasonable to expect that the clause would have included a reference to those other land use terms.
5. It is important that clauses 74 and 75 distinguish between different types of Accommodation and nest these differently. "Dwelling" is a subset of Accommodation and itself includes Bed and breakfast and Caretaker's house, but is not included in, and does not include, any other land-use term.
6. I accept that reference to the term "Dwelling" in clause 32.09-8 of the Scheme might lead to some confusion when one considers the rather broad manner in which that term is defined in clause 74. However, even though, conceivably, several of the land use terms in the Accommodation group might have the physical attributes of a Dwelling, and might provide a "residence" for an occupant for a period of time, this does not convert such structure into a Dwelling for the purposes of clause 74 or the Scheme.
7. Interpreting the provision in this way - to only apply to the referenced terms - might lead to a broader question as to why only those land use terms were brought within the control. It is not necessary to answer this broader question in determining the planning permit application before this Tribunal. However, I do observe that the Scheme treats a Dwelling and Residential building differently to other forms of Accommodation. There are specific, separate provisions that regulate the development of a building used for the purposes of a Dwelling or a Residential building (clauses 32.09-4 and 32.09-5 of the VC104 version) but not for other forms of Accommodation. Those clauses also require a Dwelling or Residential building to comply with ResCode; similarly, clause 55 itself only applies to a Dwelling or Residential building and not to other forms of Accommodation.
8. As for the height control contained in clause 32.09-8, this is similar to that of the previous Residential 3 Zone, which had amongst its purposes "to limit the maximum height of a dwelling or residential building" and which was introduced into the (then) Scheme in order to:

introduce new planning provisions that protect residential amenity in established residential areas and protect the character of neighbourhood centres where only incremental change is intended.[60]

1. Amongst the listed effects of the Amendment were:

Reducing the time and cost of disputes over residential planning by providing greater certainty in decision-making.

Reducing design costs by providing guidance on the development of higher density housing.

Reducing costs by providing a consistent basis for assessment of permit applications for higher density residential development through statewide provisions.[61]

1. A similar control over the building height of a Dwelling and a Residential building is also contained in the General Residential Zone and Residential Growth Zone, albeit specifying greater maximum heights (as the default position).
2. Both Dwelling and Residential aged care facility (being a type of Residential building) are as of right uses in the NRZ.
3. By contrast, a Retirement village requires use and development planning permission, both under the current Residential Zones, and, for the purposes of this discussion, under the previous R3Z. Although the mandatory height controls do not apply to a Retirement village, height will still be assessed in considering whether to grant a use and development permit and the outcome might be more or less conservative than the mandatory height controls, depending on the site context and matters affecting the particular case.
4. Both Ms Blok and Mr Shnookal referred to the Tribunal's comments in Casey CC v Blue Hills Residences Pty Ltd [2010] VCAT 797 in support of their argument that a Retirement village must comply with the height limit that applies to a Dwelling because a Retirement village is comprised of Dwellings. That proposition is incorrect, while the case is distinguishable on its facts. I will deal with the case first.
5. In Blue Hills, Member Code (as he then was) was required to consider whether a retirement village comprising independent living units and apartments was properly considered to be a multi-dwelling development for the purposes of payment of a development infrastructure levy under the Local Structure Plan 3 (Cranbourne East) Development Contributions Plan (DCP). The levy applied to all residential lots or in the case of a multidwelling development, each new dwelling. The DCP did not define "multidwelling development" so it fell upon the Tribunal to determine what that term meant for the purposes of deciding whether a levy was payable in respect of the retirement village.
6. Member Code's analysis began with reference to the modern approach to statutory interpretation that considers "context" in the first instance and in its widest sense, with a view to remedying the mischief that the statute was designed to overcome.[62]
7. In that case, Member Code stated that the purpose of the DCP was:

...to ensure that future households in the DCP area equally contribute directly or indirectly to the costs of providing the specified items of infrastructure that will benefit residents in the DCP area.[63]

1. In considering the term "multi-dwelling development", Member Code stated that:

38. The Responsible Authority correctly characterised the use as a retirement village when it granted the permit. This does not remove the possibility that the retirement village or part of it may constitute a 'multi-dwelling development' for the purposes of the DCP.

39. A multi-dwelling development has its ordinary meaning. 'Multi' means many. The ordinary meaning of dwelling is '1. a place of residence or abode, a house ...2. continued or habitual residence'.

1. Member Code then went on to find that each of the units and apartments was a dwelling under the ordinary meaning of the term and also under the narrower meaning under clause 74 of the Scheme, having regard to the physical components of each unit and apartment.
2. Finally, Member Code considered whether any inconvenience or improbability would result from the interpretation he preferred as against the alternative interpretation being sought. To this end, he commented upon the possible interpretations:

47. Firstly, if I construe a multi-dwelling development as to exclude development in a retirement village, the outcome is that a levy is not payable for that development and households in a retirement village will not share equally with non-retirement village households in contributing to the cost of infrastructure. Other households may need to pay a higher levy if the DCP is amended to raise levies to ensure total contributions meet anticipated costs.

48. Second, if I construe a multi-dwelling development has more than one dwelling having regard to the ordinary meaning of dwelling, the outcome is that some potentially unintended forms of dwelling may be levied....

53. I consider the balance of convenience lies in a preference for the second outcome. The second outcome is more consistent with the purpose of the DCP.

1. In short, Member Code found that the retirement village proposed in that case constituted a multi-dwelling development for the purposes of the DCP as this supported the purpose of the DCP in requiring households in the DCP area to contribute to the cost of infrastructure that will benefit residents in the DCP area.
2. In my mind, that case is distinguishable on its facts: it involved a DCP, where the intention is to include households so that those who will benefit from the infrastructure funded will contribute to that infrastructure; and, it involved a term - multi-dwelling development - that was not defined in the DCP and so relied upon ordinary terminology.
3. In the present case, the mandatory height limit applies to land use terms that are defined in the Scheme. Had the drafters wanted to include "Retirement Village" or any of the other forms of Accommodation in the restriction, it is reasonable to consider that those terms would also have been referenced.
4. As for the objectors' approach, there are several reasons why it is incorrect to look behind what is being sought and analyse whether, notwithstanding its definition in clause 74, it actually comprises Dwellings. Firstly, it disregards the inclusions identified for each land use term in clause 74 and reflected in the nesting diagrams in clause 75 and thus disregards the way in which the Scheme has been drafted. A Retirement village is not a form of Dwelling or Residential building because the drafters of the Scheme have not made it so.
5. Secondly, it confuses the structure of the built form with its use as a whole. Although the ILU tower building might contain the physical attributes of a series of Dwellings, and each might be used as a self-contained residence by its occupant/s, they form part of a larger whole that is intended to be managed and used as a Retirement village. Whilst the ILU tower might become the residence of several people, the building, by virtue of its restriction on entry, will be used for the purposes of a Retirement village, not one or more Dwellings. Clause 32.09-8 is clear in stating that it applies to a "building used for the purposes of a dwelling or residential building"; this is neither.
6. Thirdly, to take the proposition to its logical conclusion, does that mean that any clauses that apply to a Dwelling would therefore apply to a Retirement village? For instance, would the Retirement village need to meet the objectives of ResCode? Such an approach would introduce confusion into the Scheme and is contrary to the first purpose of the Scheme, "To provide a clear and consistent framework within which decisions about the use and development of land can be made".[64]
7. Importantly, the consequence of my findings on this issue is not an automatic approval for the proposal. Rather, the proposal, including the ILU tower, must be assessed on its merits and this will involve a consideration of, among other things, the height of the proposed built form.

Does clause 32.09-8 of the NRZ apply to the planning permit application?

1. In light of my finding that the tower containing the ILUs is appropriately characterised as a Retirement village and that this is neither a Dwelling nor a Residential building, for the purposes of the ILU tower nothing turns on the question of whether clause 32.09-8 of the NRZ applies to the planning permit application.
2. However, these comments are of relevance to the Residential aged care component of the development, given this land use falls within the defined term "Residential building".
3. The provisions of the Scheme in force at the time that the decision is made are those that are relevant to the application and the decision.[65] Hence, the provisions of the Scheme that are in force at the time that the Tribunal issues its decision are those that are relevant to the Tribunal's consideration and assessment.
4. The current clause 32.09-9 of the Scheme provides that the building height of a Dwelling or Residential building must not exceed 9 metres and must contain no more than 2 storeys.[66] Although the building height of the Ludbrook Avenue building measures less than 9 metres, it is more than 2 storeys so would be prohibited by the current clause 32.09-9.
5. However, given the operation of the transitional provision contained in clause 32.09-14, as the planning permit application for the proposal was lodged before the approval date of Amendment VC110, the maximum building height and number of storeys requirements of Clause 32.09-9 introduced by Amendment VC110 do not apply. I note that there was no amendment made to the application under section 50 of the Planning and Environment Act 1987 and that the application can still rely on the transitional provisions.
6. The exact wording of the transitional provision in clause 32.09-14 (as is relevant) is:

The minimum garden area requirement of Clause 32.09-4 and the maximum building height and number of storeys requirements of Clause 32.09-9 introduced by Amendment VC110 do not apply to:

• A planning permit application for the construction or extension of a dwelling or residential building lodged before the approval date of Amendment VC110.

1. There is an absence of direction in clause 32.09-14 as to what does apply to such an application. This is in contrast to the clear direction provided in the transitional provision in clause 32.09-6 "Construction and extension of two or more dwellings on a lot, dwellings on common property and residential buildings" of the same NRZ, where it is stated:

Clause 55 of this scheme, as in force immediately before the approval date of Amendment VC136, continues to apply to:

• An application for a planning permit lodged before that date.
• An application for an amendment of a permit under section 72 of the Act, if the original permit application was lodged before that date.

1. In that clause, it is clear that a previous version of clause 55 is to apply to the specified types of planning permit applications. Clause 32.09-14 does not contain any such direction.
2. In addressing this issue, Mr Townshend and Ms Porter also drew the Tribunal's attention to the contrasting wording contained in clause 32.09-6 of the NRZ. Mr Townshend and Ms Porter submitted that the transitional provisions in clause 32.09-14:

53....do not provide that any alternative maximum building height applies, or that such application is to be assessed by reference to an earlier version of the Glen Eira Planning Scheme.

55. There is no basis to interpret the NRZ on the basis that the height limit in a previous version of the Glen Eira Planning Scheme applies.

1. In addressing this issue, Ms Blok referred to the Opinion on the Question of Law delivered by Deputy President Dwyer in Harsley v Banyule CC [2017] VCAT 623. In that case, DP Dwyer considered whether a planning permit application for the construction of a part two-storey, part three-storey dwelling made under the Significant Landscape Overlay, and where no planning permit was required under the NRZ, could take advantage of the transitional provision contained in clause 32.09-14 due to the date of its lodgement. DP Dwyer was also asked to decide whether the planning permit application had the benefit of any of the other transitional provisions listed in clause 32.09-14. The Harsley case involved different questions before the Tribunal and for this reason I consider that case to be distinguishable on its facts.
2. Having regard to the wording of the transitional provisions in clause 32.0914, including the absence of any wording directing what controls, if any, are to be applied for those planning permit applications that can take advantage of the transitional provisions, I see no warrant to argue that the clause 32.09-8 of the NRZ, applicable under the previous version of the NRZ, applies to a planning permit application such as this. There is no direction in the Scheme for this to occur. Absent clear direction, there is no reason to consider that any version of the Scheme other than the current version is relevant to the planning permit application before the Tribunal.
3. I am aware that the consequence of this approach is that whilst it is the current version of the NRZ that is relevant, not all of the provisions of the current NRZ are applicable, by virtue of the operation of the transitional provisions. This includes the maximum building height requirement for a dwelling or residential building as contained in clause 32.09-9. Consequently, there is no maximum building height requirement imposed by the NRZ for a Dwelling or Residential building that is subject to the transitional provisions in clause 32.09-14 (although building height is still regulated by clause 55 of the Scheme). And any planning permit application must still be determined on its merits and with consideration of matters relevant to the application and the site, including the site's context, which will appropriately constrain building height.

1. In summary, for the reasons set out above, I find:

1. The real and substantial purpose of the proposed use of the subject land is use for a Hospital (sub-acute hospital), Residential aged care facility and Retirement village, along with a medical centre and café; 2. The use of that part of the subject land that is to include the ILU tower is properly characterised as use for a Retirement Village;

1. The use of that part of the subject land that is to include the ILU tower does not constitute use for a Residential aged care facility;

1. The proposed use as a whole is not properly characterised as an innominate use; 2. A Retirement village is not a Dwelling or a Residential building for the purposes of the Glen Eira Planning Scheme. As such, specific provisions of the scheme that only apply when land is to be used or developed for the purposes of a Dwelling or Residential building do not apply to use or development of land for a Retirement village; and 3. Clause 32.09-8 of a superseded version of the Glen Eira Planning Scheme is not relevant to the Tribunal's assessment of the proposal because: 1. The version of the scheme that is relevant to the Tribunal's determination is that which is in force at the time the Tribunal makes its decision; 2. Clause 32.09-9 is the clause that currently applies to Dwellings and Residential buildings; 3. The transitional provisions contained in clause 32.09-14 of the scheme apply to this planning permit application; and 4. The transitional provisions contained in clause 32.09-14 of the scheme do not require compliance with clause 32.09-8.
2. This means that my specific response to the question:

Does clause 32.09-8 of the Planning Scheme limit the maximum height of the residential tower component of the proposed development to 9 metres?

1. In terms of the two alternative questions that were agitated at the hearing, my answers are as follows:

Whether the application is characterised appropriately

my answer is "Yes" the use is a retirement village, and

Whether the application constitutes an unspecified innominate use

APPENDIX B - CALVARY BETHLEHEM CHANGES TO FUNCTIONS AND FACILITIES 1941 - 2016

Berkelea Private hospital acquired by Little Company of Mary (Saturn Street)

Major building corner Kooyong Road and Saturn Street opened

Palliative care education with Monash University in operation

Public funding for neurological unit consultative service for state-wide cases

Domiciliary palliative care service commenced with Telemedicine project with Wimmera Health

Period of facilities planning across Southern Health region that endorsed redevelopment of the subject site

Department of Health and Human Services signs 10-year agreement for CBCH services; constituting a commitment that requires and underwrites the redevelopment

In preparation for the redevelopment, a reduction in bed capacity on the subject site from 70 beds to 32 beds. Increase in ambulatory services and outreach services (Community Palliative Care Service)

Extracted from the statement of evidence of Mr B McNamara at page 11

Nos. 476 - 482 Kooyong Road and 11 Saturn Street, Caufield South

• Construction of buildings and works for a hospital, retirement village, residential aged care facility, medical centre and food and drink premises (café); and
• Use of the land for a retirement village, medical centre and food and drink premises (café); and
• Reduction in car parking requirements.

1. Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must generally accord with the plans identified as Drawing Nos AR-A-10-0G00, AR-A-10-0100, AR-A-10-0200, AR-A-10-0300, AR-A-10-0400, AR-A-10-0500, AR-A-10-0600, AR-A-10-0700, AR-A-10-0800, AR-A-10-0900, AR-A-10-1000, AR-A-10-B100, AR-A-10-B200, AR-A-10-B300, AR-A-10-LG01, AR-A-10-LG02, AR-A-11-0001, AR-A-30-0010, AR-A-30-0020, AR-A-30-0030, AR-A-30-0040, AR-A-40-0000, AR-A-40-0010 and AR-A-40-0020 Revision 'Amended Plans for VCAT Submission' dated 4/10/2017 prepared by Team 2 Architects Pty Ltd) but modified to show:

(a) A notation confirming that the entrance from Ludbrook Avenue is limited to staff only with signage to this effect.

(b) Fencing details for all open spaces.

(c) A staging plan showing the whole of the site and addressing all buildings and works (including plant and equipment) including acoustic treatments and car parking provision.

(d) Acoustic treatments in accordance with the recommendations of the acoustic assessment prepared by Wilkinson Murray (Version A) dated June 2016, but revised based on the 'Amended Plans for VCAT Submission' dated 4/10/2017.

(e) The location of any substation (if required) to be clearly shown on the plans and integrated within the building envelope, basement or basement ramp to the satisfaction of the Responsible Authority.

(f) The proposed crossover from Saturn Street relocated to ensure the retention and protection of Tree no. 94 (White Cedar) as identified in the 'Arboricultural Impact Assessment' prepared by John Patrick Landscape Architects dated May 2016 retained and incorporated into the landscape design.

(g) A schedule of construction materials, external finishes and colours.

(h) Provision of a Landscape Plan in accordance with Condition 6.

(i) The provision and design of bicycle parking facilities including the provision of showers and change rooms as required by Clause 52.34.

(j) All disabled parking spaces to be designed in accordance with Australian Standard AS2890.6-2009 (disabled) and the Building Code of Australia.

(k) All disabled parking spaces must be provided as close as practicable to the building entries or lifts and must be clearly marked with a sign to indicate that they must only be utilised by disabled persons. The minimum dimensions of the car space must be 2.4 metres wide with a 2.4 metres shared space at the side and rear.

(l) A passing area provided at the car park entrance at least 5 metres wide and 7 metres long.

(m) A corner splay measuring 2.5m along the driveway and 2m along the footpath to be clear of visual obstructions greater than 600mm in height to provide driver sight triangles.

(n) All loading bays designed to accommodate a 10.7m long rigid vehicle.

(o) Dedicated ambulance parking provided on-site.

(p) The basement car park designed to allow staff, residents and visitors as appropriate to access the ground floor of the building internally via lift(s) generally in accordance with the plans SK-013-Rev 1 and SK-014-Rev 1 and Exhibits A20, A21, A22, A25 and A46 tendered in Tribunal proceeding P973/2017.

(q) Pedestrian routes through car parking areas and building entries and other destination points clearly marked and separated from traffic in high activity parking areas.

(r) The height clearance within the basement car parks clearly shown and demonstrate that the height clearances for all ramps comply with Figure 5.3 of AS2890.1:2004.

(s) A splay of a minimum 3m by 3m provided on the north-western corner of the subject site to provide for pedestrian sight triangles.

(t) Amendments to the location of bollards, and to ramp grades and widths generally in accordance with the plan by Ratio Consultants ref 14742-AT02/TC sheets AT and AT(2) dated 24 October 2017.

(u) Appropriate wayfinding measures being included in the design to indicate the location and means of accessing community open space, communal areas, lifts and car parking areas.

(v) Provision for security measures (such as fencing) as appropriate to allow for shared access to the community open space by the general public and occupants, residents, staff and visitors of the development during prescribed hours (nominally daylight/business hours).

(w) Details of screening in conformity within Clause 55.04-6 (Standard B22) of the Glen Eira Planning Scheme to be applied to habitable room windows within 9m of the eastern boundary to limit overlooking.

(x) The location of plant and equipment (including oxygen tanks).

When approved, the plans will be endorsed and will then form part of this Permit.

1. The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority except where no permission is required under the Glen Eira Planning Scheme.
2. The layout and description of the use(s) as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority except where no permission is required under the Glen Eira Planning Scheme.

1. As part of the ongoing consultant team, Team 2 Architects or an architectural firm to the satisfaction of the Responsible Authority must be engaged to oversee the design development process ensuring the design quality and appearance of the approved development is realised as shown in the endorsed plans during the construction unless with the prior written approval of the Responsible Authority.

1. Before the commencement of buildings and works, a detailed Landscape Plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the Landscape Plan is approved, it will become an endorsed plan forming part of this Permit. The Landscape Plan must be generally in accordance with Drawing no.'s VCAT01 & VCAT02 (Rev. D) dated 3/10/2017 prepared by John Patrick Landscape Architects and must incorporate:
   • (a) A survey, including botanical names, of all existing vegetation to be retained.
   • (b) Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.
   • (c) A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.
   • (d) Landscaping and planting within all open space areas of the site.
   • (e) Screen planting along the eastern interfaces with residential properties.
   • (f) Landscaping and planting using mature height trees along the perimeter of the site.
   • (g) Advanced canopy trees (minimum 3.0 metres tall when planted) in the following areas:
     • (i) 30 trees (minimum 3.0 metres tall when planted) throughout the site including boundaries;
     • (ii) 5 larger supplied trees along the North site frontage;
     • (iii) 7 larger supplied trees along the South site frontage;
     • (iv) 5 larger supplied trees along the West site frontage
     • (v) 3 larger supplied trees along the East site boundary;
     • (vi) 5 larger supplied trees within the Community Green

Or 55 trees as above in locations to the satisfaction of the Responsible Authority.

1. The landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority before the occupation of the development and/or the commencement of the use or at such later date as is approved by the Responsible Authority in writing.
2. The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.
3. Prior to the commencement of the development, the two existing Purple-leaved Cherry Plum trees located on Saturn Street must be removed under the supervision of Council's Parks Services Department. The street trees must then be replaced with the species, maturity and location of which will be selected by Council's Parks Services Department before the building is occupied and at no cost to Council, unless otherwise agreed in writing by the Responsible Authority.
4. The proposed works must not cause any damage to any existing street tree to be retained. Root pruning of this tree must be carried out to the satisfaction of the Responsible Authority prior to the construction of the crossover/works.
5. Prior to the commencement of the buildings and works (including demolition), a tree protection fence must be erected around the street trees to be retained at the radii in metres from the base of the trunk to define a 'tree protection zone' except where this radius overlaps with a footpath or road. The radius from each street tree must be in accordance with the table below:

Saturn Street (near intersection with Kooyong Road)

1. Temporary fencing is to be used as per AS 4870-2009 section 4.3. This fence must be constructed of star pickets and chain mesh (or similar) to the satisfaction of the Responsible Authority. The tree protection fence must remain in place until the construction within the tree protection zone is required. The tree protection zone for that component of the development not required for construction must remain fenced until construction is complete. No vehicular or pedestrian access, trenching or soil excavation is to occur within the tree protection zone. No storage or dumping of tools, equipment or waste is to occur within the tree protection zone.
2. The ground surface of the tree protection zone must be covered by a protective 100mm deep layer of mulch prior to the development commencing and be watered regularly to the satisfaction of the Responsible Authority.

Above ground canopy TPZ (Tree Protection Zone) to be adopted. No works, structures or machinery will come within 1m of the trees crown/canopy as per AS 4870-2009 section 3.3.6. Tree Protection Zone (TPZ) fencing must be adopted to protect the street tree's trunk. Set at edge of TPZ on all sides (Finishing at paved surfaces). Temporary fencing to be used as per AS 4870-2009 section 4.3. Hand excavate any area within 1.5m of the Tree Protection Zone (TPZ). If roots over 40mm are found, Park Services are to be notified and further inspections will be carried out. Ground protection is to be used if temporary access for machinery is required within the Tree Protection Zone (TPZ). Strapped rumble boards are to be used within TPZ to limit ground compaction as per AS 4870-2009 section 4.5.3. 3. No excavation is to come within the minimum distances specified in the table below from the existing street trees without the prior consent of the Responsible Authority.

Saturn Street (near intersection with Kooyong Road)

1. Any excavation within 1.5m of the tree protection zones must be hand excavated. If roots over 40mm are found, Park Services are to be notified and further inspections will be carried out. Ground protection is to be used if temporary access for machinery is required within the TPZ (Tree Protection Zone). Strapped rumble boards are to be used within the tree protection zone to limit ground compaction as per AS 4870-2009 section 4.5.3.

1. Prior to the commencement of any buildings and works permitted by this permit, a Car Parking and Loading Management Plan (CPLP) must be prepared to the satisfaction of the Responsible Authority. It must include, but is not limited to, the following:
   • (a) Vehicle parking
     • (i) Measures to secure the availability of no less than 50 visitor car spaces in the car park at 470-472 Kooyong Road and 1 Venus Street ("Saturn Street car park");
     • (ii) Parking to be available based on the staging plan referred to in Condition 1;
     • (iii) A monitoring and review program including:
       • Surveys of on-site and off-site car parking usage by staff, residents and visitors to the site;
       • An assessment of the parking needs of the facility based on those surveys;
       • An agreed timeframe for monitoring and review;
       • Any recommended changes to the CPLP arising from the monitoring and review program;
     • (iv) Location of car parking for fleet vehicles;
     • (v) Minimum number of car parking spaces to be provided on the land;
     • (vi) An allocation plan for the number and location of car parking for residents, staff and visitors including taking into account the staging plan required under Condition 1 and including visitor parking for disabled persons within the basement;
     • (vii) Staff and visitor parking on and associated with the use of the land and the Saturn Street car park are to be free of charge (excluding any arrangements associated with staff remuneration);
     • (viii) Parking provision for a shuttle bus if provided.
   • (b) Loading
     • (i) Hours of deliveries;
     • (ii) Nature and location of deliveries (including oxygen deliveries)
     • (iii) Management of loading areas to prevent vehicle and pedestrian conflicts;
     • (iv) Restrictions on the size and type of vehicles including the maximum vehicle length of 10.7 metres.

The CPLP may be amended from time to time and must be to the satisfaction of the responsible authority. When approved the CPLP will form part of this permit and must be complied with to the satisfaction of the Responsible Authority.

1. Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:
   • (a) constructed;
   • (b) properly formed to such levels that they can be used in accordance with the plans;
   • (c) surfaced with an all-weather sealcoat;
   • (d) drained;
   • (e) line-marked to indicate each car space and all access lanes;
   • (f) clearly marked to show the direction of traffic along the access lanes and driveways;

to the satisfaction of the Responsible Authority. Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

1. Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.
2. The loading and unloading of goods from vehicles must only be carried out on the subject land within the designated loading bay, as detailed on the endorsed plans, and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land.
3. Prior to the completion of the basement floor constructions, written confirmation by a Licensed Land Surveyor must be provided to the Responsible Authority verifying that the car park floor levels have been constructed in accordance with the endorsed plans (prior to the construction of the levels above being commenced).
4. Prior to the completion of the ramps within the basement car parks, written confirmation by a Licensed Land Surveyor must be provided to the Responsible Authority verifying that the ramps have been constructed in accordance with the endorsed plans (prior to the construction of the levels above being commenced).
5. Access to on-site car parking areas and car spaces provided in the Saturn Street car park must be available for visitors at all times.
6. Prior to the commencement of the development, the owner of the land must enter into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987 to the satisfaction of the Responsible Authority to the effect that while the land is used and developed generally in accordance with this permit no less than the required number of car parking spaces as set out in the CPLP endorsed under Condition 16 must remain available and accessible in the car park at 470-472 Kooyong Road and 1 Venus Street ("Saturn Street car park") for use in association with the uses on the land. A memorandum of the agreement is to be entered on title and the costs of the preparation and execution of the agreement and entry of the memorandum on title are to be paid by the owner.

1. Prior to the commencement of any site works including demolition and excavation, the owner must submit a Construction Management Plan to the Responsible Authority for approval. No works including demolition and excavation are permitted to occur until the Plan has been approved in writing by the Responsible Authority. Once approved, the Construction Management Plan will be endorsed to form part of this permit and must be implemented to the satisfaction of the Responsible Authority. The Plan must be to the satisfaction of the Responsible Authority and must provide details of the following:
   • (a) Construction and works in accordance with the staging plan required under Condition 1;
   • (b) Delivery and unloading points and expected frequency;
   • (c) A liaison officer for contact by owners / residents and the Responsible Authority in the event of relevant queries or problems experienced;
   • (d) An outline of requests to occupy public footpaths or roads, or anticipated disruptions to local services;
   • (e) Any requirements outlined within this permit as required by the relevant referral authorities;
   • (f) Hours for construction activity in accordance with any other condition of this permit;
   • (g) Measures to control noise, dust, water and sediment laden runoff;
   • (h) Measures to ensure that sub-contractors/tradespersons operating on the site are aware of the contents of the Construction Management Plan; and
   • (i) Any construction lighting to be baffled to minimise intrusion on adjoining lots.

1. Prior to the occupation of the approved development, the owner/permit holder must prepare and have approved in writing by the Responsible Authority a Waste Management Plan (WMP) for the site with respect to the collection and disposal of waste and recyclables associated with the proposed uses on the site to the satisfaction of the Responsible Authority. The WMP must be generally in accordance with the plan prepared by Leigh Design dated 2 October 2016 and provide for the following:
   • (a) Waste collection arrangements in accordance with staging plan required under Condition 1;
   • (b) The collection of waste associated with the uses on the land, including the provision of bulk waste collection bins or approved alternative, recycling bins, the storage of other refuse and solid wastes in bins or receptacles within suitable screened and accessible areas to the satisfaction of the Responsible Authority. Commercial waste bins being placed or allowed to remain not in view of the public, and receptacles not emitting any adverse odours.
   • (c) Designation of methods of collection including the need to provide for private services. This method must incorporate recycling services and must comply with the relevant EPA noise guideline relating to the time of collection.
   • (d) Appropriate areas of bin storage on site and areas of waste bin storage on collection days.
   • (e) Details for best practice waste management once operating.

Once approved the WMP will be endorsed to form part of this permit and must be complied with to the satisfaction of the Responsible Authority and must not be varied except with the written approval of the Responsible Authority.

1. Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

1. No plant, equipment, services and substations other than those shown on the endorsed plans are permitted without the prior written consent of the Responsible Authority.
2. Privacy screens must be in accordance with the endorsed plans and must be installed prior to the occupation of the development. The privacy screens must be maintained to the satisfaction of the Responsible Authority.
3. All outdoor lighting must be baffled and/or located to prevent light from the site causing detriment to the locality to the satisfaction of the Responsible Authority.
4. All pipes, fixtures, fittings and vents servicing any building on the site must be concealed in service ducts or otherwise hidden from view to the satisfaction of the Responsible Authority.
5. No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building/s without the prior written consent of the Responsible Authority.
6. All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.
7. All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.
8. The permit holder must ensure that all medical waste is disposed of by an authorised collection/disposal agency to the satisfaction of the Responsible Authority.
9. Disabled access to the building must be provided to the satisfaction of the Responsible Authority. All work carried out to provide disabled access must be constructed in accordance with AS1428.1 to the satisfaction of the Responsible Authority.

1. The Independent Living Units must be operated and managed in accordance with the Retirement Villages Act 1986 (Vic).

1. Except with the further written consent of the Responsible Authority, the following hours of operation apply to the medical centres fronting Kooyong Road:
   • Monday - Friday: 8:00 am to 6:00 pm; and
   • Saturday: 8:00 am to 12:00 pm.

1. Except with the further written consent of the Responsible Authority, the following hours of operation apply to the food and drink premises (café):
   • Monday - Sunday: 7:00 am to 5:00 pm.

1. The permit holder must take all reasonable steps to ensure that disruption to bus operation along Kooyong Road is kept to a minimum during construction of the development. Foreseen disruptions to bus operations during construction and mitigation measures must be communicated to Public Transport Victoria fourteen (14) days prior.

1. This permit will expire if:
   • (a) The use and development does not start within four (4) years from the date of this Permit; or
   • (b) The use and development is not completed within six (6) years of the date of this Permit.

The Responsible Authority may extend the time referred to if a request is made in writing before this Permit expires or within six (6) months after the expiry date if the use/development has not commenced. If the development has commenced, the Responsible Authority may extend the time referred to if a request is made in writing within twelve (12) months of the expiry date.

[1] We have taken account of the fall of the land that means descriptions of the number of storeys and building height, particularly the north-west tower, can vary.

[2] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the Tribunal's practice, not all of this material is cited or referred to in these reasons. This includes a reply by Mr Dreadon filed with our leave (order dated 4 December 2017).

[3] Paragraphs [20] - [25], Exhibit A35. This description is also relevant to the question of law.

[4] Sections 107 and 108 of the Victorian Civil and Administrative Tribunal Act 1998 and Clause 66 of Schedule 1.

[6] As confirmed by the permit applicant, Exhibit A31. In making this amendment, we are exercising our powers under Clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

[7] Received by the Tribunal on 24 October 2017.

[8] The Minister has powers such as those included in Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 and Division 6 of the Planning and Environment Act 1987.

1. [11] Such as contained in the policy at Clause 22.08-3.1.

[12] Clause 21.03 and Clause 22.08-2.1.

[15] Clauses 11.01-1, 11.06-5 and 19.02-1. Plan Melbourne also contains more detailed policy with respect to the delivery of social infrastructure and the creation of health and education precincts as referenced in Mr McNamara's statement of evidence, section 7.1.1.

[16] Extract from map at Clause 21.03. Caufield Hospital is identified further to the north. The only other hospital shown in the Framework Plan is the Monash Medical Centre.

[20] Exhibit B33 is an extract from the Strategy.

[21] SMA Projects v Port Phillip CC [1999] VCAT 1312 was an early decision in this regard.

[23] Our finding is consistent with other decisions such as in relation to the John Fawkner Hospital Healthscope Ltd v Moreland CC & Ors (includes Summary) (Red Dot) [2013] VCAT 99.

[24] Chronology contained in the statement of evidence of Mr B McNamara at page 11.

[25] An issue identified in Clause 21.08-1.

1. [26] RA's Positive Ageing Strategy 2015 - 2020 Exhibit RA11.

[27] Such as Shell Company of Australia Pty Ltd and Ors v City of Frankston and Anor 8 APAD 127 at 135.

[29] Such as Bruce Allen Architect v Melbourne CC [2003] VCAT 1320, [35].

[30] Referencing the Tribunal's decision in Typhoon PL v Macedon Ranges SC [2004] VCAT 913 which is also referred in MAMF Functions Pty Ltd v Buloke SC (Red Dot) [2016] VCAT 289, [18].

[31] Using a word adopted in some submissions.

[32] Plan AR-A-11-0001 identifies many of these features.

[33] Referring to Property Council documents, Exhibits S38 and S39.

[34] Clause 22.10-2 states "If a proposal is located in a Minimal Change Area, the applicant needs to demonstrate that the needs of the development's future residents, based on their level of care, can be met without locating in close proximity to facilities and services such as those located in an activity centre".

[35] Such as Clauses 11.06, 16.02, 21.09 and 22.10.

[36] Images extracted from Mr O'Dwyer's evidence.

[37] Information from the evidence of Ms Cooper and the CHCB Service Plan, Exhibit A41.

[39] Statements of evidence provide more detail including Ms Ainsworth's evidence at section 3, pages 6-9.

[40] Mr Milner's statement of evidence at paragraph 129.

[41] Clauses 21.03 and 2108-1. In addition, Clause 21.09 addresses community facilities and encourages "the establishment of co-located, adaptable, accessible and flexible facilities wherever possible".

[44] We refer to the role and size of this and other community spaces later.

[45] Exhibits A20, A21, A22 and A25 show, among other things, lift access and a large stairway. ExhibitA46 shows double-loaded lift access to the medical centres from the basement.

[46] Plan AR-A-06-0010 Rev 6 [Sheet 12 of the plan booklet used at the hearing] identifies multiple spaces as "community open space" but the largest space in the western portion of the land, separating the tower and residential aged care facility is the focus on the submission we address at this point.

[48] We refer later to qualifications relating to these images.

[49] Although the plans state there are 145 spaces.

[50] Memorandum dated 13 December 2017, filed with the Tribunal's leave.

[51] For example, Appendix B of Mr Hunt's statement of evidence.

[52] Such as the location of bollards, and modifications of ramp grades and widths as shown in the plan by Ratio Consultants ref 14742-AT02/TC sheets AT and AT(2) dated 24 October 2017.

[53] Knox City Council v Tulcany Pty Ltd [2004] VSC 37.

[55] TLC Aged Care Pty Ltd v Yarra CC [2015] VCAT 1601, [18] and [21].

[56] Residential Aged Services Pty Ltd v Stonnington CC [2017] VCAT 435.

[57] Per Casey CC v Blue Hills Residences [2010] VCAT 797 at [72].

[58] Refer Reply Submission by BA Shnookal dated 22 March 2018 at [18].

[59] With reference to Cascone v Whittlesea Shire Council (1993) 80 LGERA 367.

[60] Refer Amendment VC31 Explanatory Report at page 1; Amendment VC31 introduced the Residential 3 Zone into the Victoria Planning Provisions.

[61] Refer Amendment VC31 Explanatory Report at page 2.

[62] Quoting from the Court of Appeal in Popular Pastimes Pty Ltd v Melbourne City Council [2007] VSCA 188.

[63] Casey CC v Blue Hills Residences Pty Ltd [2010] VCAT 797 at [35].

[65] Refer Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259.

[66] Noting that Schedule 1 does not modify this clause.