2. The number of units namely 28 referred to in what the permit allows is deleted and the number 31 is inserted.

3. Condition 1(i) is to be omitted from the permit and the remainder of Condition 1 renumbered.

4. Condition 3(e) is omitted by consent. The remainder of Condition 3 shall be renumbered.

5. The wording in Condition 18 is deleted and is replaced by the following wording:

"No part of the buildings on the subject land may be dedicated for the purpose of the provision of meals by the operator of the premises to residents . No part of the site shall be used for a cafe or restaurant without the permission of the Responsible Authority. This condition does not limit use of the units or grounds by residents preparing their own meals nor the delivery of food to residents of such units.

___________________ ___________________

Mr. P. Barber, Lawyer, represented the Responsible Authority. Mr. Barber called Ms. H. Lardner, Heritage Architect, as a witness.

Mr. R. Beazley, Director, represented Mausie Nominees Pty Ltd. Mr. Beazley called Mr. N. Lewis, Heritage Architect, as a witness.

Messrs. M. Sanz, P. Harvey, I. Haskin, N. Crichton and C. Pollard, attended and made submissions.

Mr. C. Townshend of Counsel, represented the Application for Review/Permit Applicant. Mr. Townshend called M. Barlow, Town Planner, and D. Bick, Heritage Architect, as witnesses.

1. This is an Application for Review pursuant to Section 80 of the Planning and Environment Act 1987 of a decision of Mornington Peninsula Shire Council to impose Conditions 1(i), 3(e), 18 and 19 of Permit No. P992398. The applicant also sought to have the preamble to the permit altered.

1. Condition 1(i) requiring the deletion of Units 17, 18 and 31 and that units finish approximately at the eastern wall of Unit 16 is unreasonable, unnecessary and is not an outcome sought by the applicable Planning Policy Frameworks.

2. Condition 3(e) in requiring the submitted landscape plan to have more than 80% of species indigenous to the locality is unreasonable and makes a requirement out of character with the neighbourhood having regard to the range of vegetation within the neighbourhood and appropriate to the site and the heritage and neighbourhood character of the locality and is unnecessary given the discretion under the condition vested in the Council when deciding whether to approve a submitted landscape plan.

3. Condition 18 is unreasonable and unnecessary and a fetter upon the typical activities comprised in the use of the land for the purpose permitted.

4. Condition 19 is unreasonable and unnecessary as any proposal to operate a restaurant, cafe or licensed premises would require a further town planning permit under the provisions of the Planning Scheme and the grant of a permit for the subject use and development provides no reason to preclude a future application for one or more of the specified facilities.

5. As a consequence of an allowance of this Application the preamble to the permit will require amendment so as to refer to 35 units.

3. At the conclusion of Day 2 of the review, Mr. Townshend tabled amended grounds of application for review. These were:

1. Condition 1(i ) is misconceived as it does not appear to relate directly with the plans submitted with the application and advertised under section 52 of the Planning and Environment Act 1987.

2. Condition 1(i) refers directly to plans which were submitted to the Council without prejudice to the plans submitted with the application.

3. The Plans submitted with the application were for a forty four room proposal. These were substituted by revised plans for a thirty-eight room proposal. The revised plans were advertised under the provisions of the Planning and Environment Act and became substituted for the plans submitted with the application. Condition 1(i) does not appear to relate to these plans. It was clear to Council at all relevant times that the plans submitted on a without prejudice basis were not substituted for the application plans.

4. Condition 1(i) is inconsistent with the preamble to Condition 1.

5. Alternatively, Condition 1(i) requiring the deletion of units 17, 18 and 31 and that units finish approximately at the eastern wall of unit 16 is unreasonable, unnecessary and is not an outcome sought by the applicable Planning Policy Frameworks.

4. During the hearing, all parties agreed that Condition 3(e) should be omitted and that the wording in Condition 18 should be deleted and substituted with wording tabled by Mr. Townshend. These matters will be confirmed as part of the decision.

5. The two remaining conditions of the permit that are critical in this dispute, apart from the description of the permit are contained in Condition 1(i) and 19.

5.1 Condition 1(i) requires amending plans to be submitted to and approved by the Responsible Authority showing:

"(i) Units 17, 18 and 31 shall be deleted and units finish approximately at the eastern wall of Unit 16." and

"Prior to the commencement of the use hereby permitted, the applicant must enter into an agreement under Section 173 of the Act with the Responsible Authority to provide that no application shall be made to operate a restaurant, cafe or licensed premises which provide facilities for non guests. The Agreement must be registered on title prior to the commencement of the use hereby permitted to the satisfaction of the Responsible Authority."

"Demolition of some of the existing buildings on the site and development and use of motel/serviced holiday apartments and associated buildings and works (tennis court, swimming pool, earthworks, carparking, removal of vegetation and landscaping."

7. The application was accompanied by plans and elevations, and a detailed written report by Hansen Partnership Pty Ltd.

8. The Responsible Authority directed notification of the application, the public notice referred to the purpose as:

"Demolition of part of existing buildings and development and use of 44 motel/serviced holiday apartments and associated buildings and works (tennis court, swimming pool, earthworks and landscaping."

10. On 18 January 2000, the applicant lodged a revised set of plans. The Responsible Authority directed notification of these revised plans. The description of this notification referred to the development as:

"Demolition of part existing buildings, development/use of 38 motel/serviced holiday apartments, associated buildings and works (tennis court, swimming pool, earthworks and landscaping) REVISED PLAN."

11. On 4 April 2000, the application was reported to the Development Approvals Committee. There was debate about whether to approve or reject the application and subsequently the [Council] Committee directed deferral of the application and requested the applicant to respond to various issues and consider other matters including use of a Section 173 Agreement (under the Planning and Environment Act) to restrict sale of liquor from the premises, prevent the establishment of any cafe or restaurant, and provide for a landscape management plan, noise abatement issues and other design treatment. On 19 April 2000, the applicants submitted a further set of plans on a "without prejudice" basis. These plans showed 31 motel units.

12. On 26 April 2000, the Responsible Authority considered the "31 motel unit" plans and issued a Notice of Decision to Grant a Permit for "Demolition of part existing buildings, development/use of 31 motel/serviced holiday apartments, associated buildings and works (tennis court, swimming pool, earthworks and landscape plan Revised Plan". There were 19 conditions attached.

13. On 4 May 2000, Arthur Cooksley, Development Planner, from Mornington Peninsula Shire Council, wrote to the applicant and advised:

"An amended notice has now been issued, as it was noted that the description of "What will the permit allow" referred to 31 motel/serviced apartments, which was inconsistent with Condition 1. The amended notice now refers to 28 motel/serviced apartments. The date of the notice has been amended accordingly. I apologise for any inconvenience this may have caused."

14. On 5 May 2000, Arthur Cooksley sent a further corrective letter which omitted reference to the tennis court in the description of the approval..

15. There were no applications for review of the Council decision lodged by objectors. A permit subsequently issued on 9 June 2000.

16. The subject site and all surrounding properties are zoned Residential 1 pursuant to the Mornington Peninsula Planning Scheme. A planning permit is required to use and develop land pursuant to Clause 32.01-4 of the Planning Scheme. There are various purposes of this zone, but these are not relevant in this application for review.

17. Food and drink premises (cafe or restaurant) is a Section 2 (permit required) use under Clause 32.01-1 of the Planning Scheme. In addition, a separate planning permit is required under Clause 52.27 - Licensed Premises, of the Planning Scheme. This is of relevance in the determination of the appropriateness or otherwise of Condition 19.

18. The subject site is within a Design and Development Overlay - Schedule 2, Bayside and Village Design . A permit is required pursuant to Clause 43.02-2 (unless exempt by the DDO schedule) to construct a building or to construct or carry out works.

19. The relevant Objectives of this DDO - Schedule 2 Overlay include:

* To ensure that the design of subdivision and housing is responsive to the environment, land form, site conditions and character of coastal and bayside residential areas and rural villages;

* To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting,

20. The Decision guidelines applicable to this overlay require that the Responsible Authority consider, inter alia:

* Whether the proposed siting, height and design of building and works will be in keeping with the character and appearance of the area; and

* The effect of any development, including demolition, on the heritage values of the site and the local area.

21. The subject site is also within a Heritage Overlay - Schedule 1, Sorrento Historic Precinct. A planning permit is required pursuant to Clause 43.01-1 of the Mornington Peninsula Planning Scheme to demolish or remove a building, to construct a building, to externally alter a building by structural work, rendering and so forth, and to construct or carry out works.

22. The relevant purposes of this Overlay area are:

* To conserve and enhance heritage places of natural or cultural significance;

* To conserve and enhance those elements which contribute to the significance of heritage places;

* To ensure that development does not adversely affect the significance of heritage places;

23. Decision guidelines under the Heritage Overlay include the need to consider, as appropriate:

* The State and Local Planning Policy Framework;

* The significance of the heritage place and whether the proposal will adversely affect the natural and cultural significance of the place.

* Any applicable heritage study and any applicable conservation policy;

* Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place;

* Whether the location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place;

* Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

24. The subject site is also within a Vegetation Protection Overlay - Section 1, Township Vegetation. A permit is required to remove or lop a tree. There are certain exemptions to this provision.

25. Other planning controls and policies of relevance in this matter are contained within the following clauses in the Planning Scheme but have not been repeated for the sake of brevity. They are retained on file:

26. The Sorrento Nursing Home, that is the building on the subject site, is specifically listed in the table to Clause 22.04 of the Planning Scheme as a place of individual significance within the Sorrento Historic Precinct. The Objectives of Cultural Heritage Places (Clause 22.04) are:

* To recognise and apply the principles of the Burra Charter (the Australian ICOMOS charter for the conservation of places of cultural significance) in the practice of local heritage protection;

* To ensure that the significance of a site, including the aesthetic, historic, scientific or social value of a place to past, present and future generations, is assessed and used to guide planning decisions; and

* To conserve, manage and enhance identified sites and places of a cultural heritage significance.

27. Policy references for the Cultural Heritage Places include the Shire of Flinders Heritage Study History and Heritage (Context Pty Ltd; Kellaway C and Lardner H; 1992).

28. At the review hearing, all parties tabled and read from written submissions. The Tribunal was provided with an array of information including a set of plans considered by the Responsible Authority (ie. the 31 motel unit development), plans submitted to the Responsible Authority (ie. the 38 motel unit development), a set of plans which purported to respond to the conditions on the planning permit with the exception of the matters in dispute in this application for review (ie. a 35 motel unit development). There was also a substantial array of photographs of the site and general locality, policy reference documents, history of the planning permit application, copies of various Supreme Court, VCAT and AAT Decisions, including:

* S Antonopoulos v City of Collingwood and City of Richmond &Ors, P86/1586 (5 PABR).

* McMillan Straits Services Pty Ltd & Ors v Minister for Planning and Environment, Shire of Bairnsdale, P89/0576

* P Cade v City of Yarra and Jopsal Pty Ltd, 1997/1563, 1997/15379, 1997/34155, 1997/34131 (22 AATR).

* Geelong Regional Commission v City of Geelong and Yuncken Industries Limited, P88/2191 and P88/2350 (2 AATR).

* B & E McMahon & Ors. v Boroondara City Council and J. Scalzo, 1997/72198 (21 AATR) and

* Targaville Pty Ltd, Milton and Patricia Green v Mornington Peninsula Shire Council and Joe and Anne Gowans, 1999/098673.

* R Rosemeier v City of Greater Geelong (No.1) (20 AATR).

* Dullard v Campaspe Shire Council (1999) VCAT 496 (8 April 1999).

* Pentland Park Amusements Pty Ltd v Melbourne Metropolitan Board of Works VR (1972) 540

29. All witnesses were available for cross-examination. In addition, the Tribunal undertook an inspection of the site on 28 October 2000.

30. Essentially there are three issues for resolution in this application for review.

1. There is a legal issue with respect to Ground 5 and the application to amend Ground 1. This matter is to be decided by Mrs. J. Rickards (Legal Member) in accordance with the provisions of Section 107(3) of the Victorian Civil and Administrative Tribunal Act 1998.

2. Whether the requirement in Condition 1(i) is appropriate having regard to the heritage significance of the site.

3. Whether it is appropriate or not to impose a Section 173 Agreement, which in effect, covenants of the owner of the land to agreeing not to apply for permits for cafe, restaurant or licensed premises.

31. The Applicant for Review as well as seeking a review of 4 conditions of Permit 992398 sought in its grounds of review:

5. As a consequence of an allowance of this application the preamble to the permit will require amendments so as to refer to 35 Units.

32. On 24 October 2000 this issue was put before Mrs Rickards who heard written and oral submissions from the parties. The following is an analysis of the written and oral submissions and subsequent decision on this issue solely by Mrs Rickards who upon hearing the written and oral submissions of the parties took no further part in the hearing.

33. A summary of the background to the granting of Permit 992398 was given. The Responsible Authority ultimately resolved that the officer's recommendation for approval of 31 units be adopted with the imposition of condition 1(i) requiring the deletion of 3 units. The condition specifically identified the units to be deleted as units 17, 18 and 31.

34. Mr Barber on behalf of the Responsible Authority submitted that in transcribing the officer recommendation (as changed by resolution) onto a Notice of Decision the number 31 was used instead of 28 units in what he describes as the "Words of Permission". This he submitted was corrected in a second notice of decision issued on 4 may 2000 and on 5 May 2000 another correction was made to delete the reference to a tennis court resulting in a third notice of decision being forwarded. It was this third notice of decision that the permit was issued from.

Demolition of part existing buildings development/use of 28 motel/serviced holiday apartments, associated buildings and works (swimming pool, earthworks & landscaping) in accordance with the endorsed plans.

36. The application for review is brought pursuant to section 80 Planning and Environment Act 1987(PE Act).

An applicant for a permit may apply to the Tribunal for review of any conditions in a permit which the Responsible Authority has issued or decided to grant to the person.

37. The Applicant for Review requests the Tribunal amend what the Applicant describes as the "preamble" to the permit. The Applicant has requested the amendment to show 35 units allowed, this is due it is said to the application being for 38 units. The Applicant submits section 50(1) PE Act enables the Responsible Authority to make any changes to an application for permit before notice is given under section 52. After the giving of such notice the only way that an application can be changed by the Responsible Authority is by means of a condition imposed on the permit. Therefore the Responsible Authority cannot unilaterally change the application for permit. The Applicant submits, the last advertised application was for 38 units and there was no notice to the owner by the Responsible Authority that it was intending to change the application, that is despite the Applicant providing to the Responsible Authority plans for 31 units for consideration.

38. The Applicant relies on section 51 Victorian Civil and Administrative Tribunal Act 1989 (VCAT Act), which provides:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it ; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

39. Section 61 PE Act sets out what the Responsible Authority, the decision-maker may decide

(c) to refuse to grant a permit on any ground it thinks fit.

40. The enabling enactment in this matter is the Planning and Environment Act 1987. Section 85 PE Act sets out the powers of the Tribunal in relation to the determination of an application for review under that Act and provides:

(1) After hearing an application for review, the Tribunal

(b) in the case of an application for review of a

refusal or failure to grant or a decision to grant a

(ii) grant the permit, direct that the permit must

(c) in the case of an application for review of a

(d) in the case of an application for review of a

(e) direct that a permit must or must not contain any

(f) direct that the time within which a development or

Subdivision Act 1988 is to be certified must be

extended, in the case of an application for review

41. The Responsible Authority and the Objectors submitted the provisions of section 85 PE Act limits the powers of the Tribunal. In an application for review of conditions under section 80 PE Act the Tribunal they submitted, cannot go outside the subject of the application, namely the conditions sought to be reviewed and amend the words of permission in the permit. The sub-sections of section 85 are stand-alone provisions and refer to what the Tribunal may do in relation to the different applications for review that can be brought under the PE Act. In this respect in an application under section 80, section 85(1) (e) and (g) only relate to the Tribunal's powers following an application for review of conditions. The Responsible Authority referred to the decision of Antonopoulos v City of Collingwood & Others 5 PABR 179 which considered section 22 Town and Country Planning Act which was similar to the current section 85 said:

I am of the opinion that it would be manifestly unfair if the law operated so that the Applicant's own actions by appealing against conditions worked so as to place in jeopardy what has been already granted to him. The proper interpretation of Sub-section 22(1) is that, unless Sub-Section 22(1A) is applicable, the limits of an appeal against conditions involve a consideration of the issues which arise from those conditions. The Board has a clear power to amend, delete, reword or add conditions (see Pentland park Amusements Pty Ltd v MMBW[1972] VicRp 61; , (1972) VR 540) but it does not have power to overturn the whole decision (unless of course Sub-Section 22(1A) applies).

42. The Applicant submitted, the Tribunal has broad powers under section 85 PE Act and the Tribunal is not limited in an application under section 80 as to what it can do. The Applicant further submitted the reference in section 85(e) to any specified condition means any condition by the Tribunal. In this respect the Tribunal was referred to Pentland Park Amusements Pty Ltd v M&MBW [1972] VicRp 61; (1972) VR 540.

43. The Applicant submitted, the Tribunal has jurisdiction to amend the description of the use and development in so far as it refers to a number of dwellings because:

* The number of units to be permitted forms part of the decision under review; and

* The inclusion of a number of units in the description of the use and development in this case constitutes a condition of the permit.

44. The decision under review, the Applicant submits is the decision, inter alia, to permit a reduced number of units than that applied for. The reference to the 28 units is contained within the wording of the permit that forms the basis of the permit. These words are not as submitted by the Applicant a preamble but rather as submitted by the Responsible Authority the words of permission. They are the basis of the permit and it is not the basis of the permit that is under review.

45. The Responsible Authority and objectors submitted the only provisions open to the applicant to challenge what has been permitted in the present circumstances is an application for failure by the Responsible Authority to consider the application. In this respect it was submitted this would be the application as advertised for 38 units.

46. It appears clear that as a result of the comments of the Responsible Authority the Applicant submitted amended plans for 31 units and it was these plans that were before the Responsible Authority when it made its decision. The Applicant submitted that although it had provided the amended plans showing 31 units this was on a "without prejudice" basis and were not the advertised application plans. Although these plans were not advertised, there was clear indication from the covering letter to the Responsible Authority that the owner was submitting amended plans showing 31 units and it can be inferred from this course of action that it was assenting to the Responsible Authority considering an application for 31 units. All parties agreed the Responsible Authority had considered the amended plans for 31 units.

47. It was submitted that the grounds of review requesting review of the number of units does not enable the Tribunal wider jurisdiction to deal with such request on a limited application for review of conditions under section 80. The Tribunal has been requested to consider whether a condition is or is not appropriate. In the present case the Tribunal reviewing the condition the subject of the application is reviewing the number of units. The plans before the Tribunal for consideration are the plans, which were before the Responsible Authority when it made its decision. The decision referred to 31 units, as did the first notice of decision to grant a permit. It is not clear on what basis the Responsible Authority amended its notice of decision to grant the permit it was said it could rely on section 71 PE Act, however this section relates to the correction of mistakes to permits once issued not to notices of decisions to grant.

48. The Tribunal does have wide jurisdiction under section 51 VCAT Act it not only has the powers of the decision maker, the powers it is given under the enabling act, but it also has its own powers under its own act.

(1) At any time, the Tribunal may order that any document in a proceeding be amended.

(2) An order under sub-section (1) may be made on the application of a party or on the Tribunal's own initiative.

50. In the present matter the proceeding before the Tribunal is a review of conditions contained within a permit. The document in the proceeding is the permit in which the conditions are contained. The number of units is the basis of the condition being reviewed.

51. Schedule 1 VCAT Act allows for variations from Part 3 the jurisdiction and functions of the Tribunal and Part 4 the General Procedure of the Tribunal for certain proceedings under certain enabling enactments. In particular Part 16 refers to Planning Enactments of which the Planning and Environment Act 1987 is one such enactment. Clause 64 Schedule 1 VCAT Act allows the Tribunal to amend applications for permits in particular proceedings. The clause only applies to a proceeding for review of a decision under the PE Act of a responibsle authority in respect of an application for a permit or the failure of a Responsible Authority to grant a permit. This clause does not cover the present application for review of conditions of a permit. Clause 64 Schedule 1(4) states " This clause is in addition to, and does not limit or affect section 127."

52. In the circumstances the Tribunal will pursuant to section 127 VCAT Act amend the preamble/words of permission to delete 28 units and insert 31 units in the permit document to reflect the number of units that were the subject of consideration of the Responsible Authority. In this respect the Tribunal does not consider the Applicants request to have the number of units amended to 38 is appropriate. The Tribunal accepts that the amended plans showing 31 units submitted to the Responsible Authority were submitted in lieu of the 38 unit plans and for all intents and purposes were expected to be considered by the Responsible Authority, as indeed all parties agreed they were and on which the Responsible Authority gave its decision.

53. If, as a consequence of the Tribunal's findings, following consideration of the merits of the application for review of conditions, the number of units referred to in the words of permission do not reflect the number of units on the plan to be endorsed as part of the permit, being the number referred to in the condition under review, it is considered the Tribunal has jurisdiction pursuant to section 127 VCAT Act to make a further and consequential amendment to the permit. This in the Tribunal's view is considered in similar terms to the scenario of the Tribunal in an application for review of conditions deleting a condition and as a consequence of the deletion ordering the renumbering of the permit conditions that remain to follow consecutive numbering.

53. Mr. Barber submitted Condition 1(i) is eminently reasonable having regard to the very clear message being sent by the parties in the planning scheme and the nature of the site and its environs. He claimed the subject site can be seen from several vantage points including the very significant Sorrento Park opposite and adds considerably to the characteristics of this section of Point Nepean Road, which he claimed was quite spectacular. He argued the intrusion of units into the front setback area would "overpower" the heritage building and disrupt its relationship with other significant buildings in the immediate environs. He claimed Units 17, 18 and 31 on the plan would act like a "wedge" between two notable buildings which are specially recognised in the planning scheme. He argued there should be no reliance made upon existing trees on the site due to their being no guarantee of their retention. Similarly he argued the Cypress trees in the front of the old vicarage site, next door, could easily be removed.

54. Mr. Barber argued that the Responsible Authority intended to grant a permit for 28 units and no more than 28 units. He argued the Tribunal should have regard to the spirit and intention of Section 85(1)(g) of the PE Act which allows it to cancel a permit if it is held that such condition is beyond power. He argued that the Tribunal is unable to consider any plans other than the 31 unit plan submitted by the applicants (albeit with a threat to take the matter on appeal in the event of a rejection or other objector appeals). He argued this matter cannot be considered a de novo hearing of the merits of the substantive application and stated that it follows that any discussion about the layout of the site must be in the context of the plan considered by the Responsible Authority at the time it decided to grant a permit.

55. Mr. Barber called Ms. Helen Lardner, Heritage Architect, to explain her recommendations to the Responsible Authority that Units 17, 18 and 31 should be omitted. The crux of her evidence was:

"Currently there are substantial views of the property from Point Nepean Road which will be lost in the proposed development. Maintenance of the views is a heritage issue in two regards. Firstly in terms of the visibility of the aspects of the site identified as being of significance, ie views of the main building. Secondly in terms of the contribution of this property to the Heritage Overlay Precinct. Currently, the view to the main building extends to both property boundaries along Point Nepean Road. This will be reduced with the proposed development. The proposal submitted shows sight lines to the main house from the drive in plan. However, as can be seen in photographs, this is only one aspect of important views to the significant part of the site available from Point Nepean Road.

The proposal also detracts from the Heritage Overlay Precinct by reducing the amount of open landscape with areas of grass and mature trees. The proposal diminishes the existing extent of the lawn setting to the Point Nepean Road frontage of the significant building.

The location, bulk, form and appearance of the proposed building will adversely affect the significance of the place. It is desirable for the new elements to be recessive in the streetscape when compared with the identified heritage elements in order to retain the heritage character. The proposed new building to the Point Nepean Road frontage projects much closer to the road than the existing heritage building or the neighbouring heritage building to the south. This will make the proposed new building a more dominant element in the precinct.

The former Anglican Vicarage to the south of the property on the Point Nepean Road frontage is partly shown on the drawings. The relationship between the front of the former Vicarage and the front of the former Nursing Home follows the approximate alignment of Point Nepean Road. The residence to the north along Point Nepean Road, across Boroondara Road, is not shown. Its position has less impact on the site.

In making my recommendations for the extent that the new building should project forward, 1 considered an imaginary line from the front of the former Anglican Vicarage to the front of the former Nursing Home. This line is approximately parallel with the alignment of Point Nepean Road. In keeping the new development back from this alignment, I sought to retain the existing line of sight to the significant building and retain its landscaped setting so as not to diminish the contribution of this significant individual place to the Heritage Overlay Precinct. 1 also sought to stop the location, bulk, form, and appearance of the proposed building from adversely affecting the significance of the heritage place and precinct."

56. Mr. Barber submitted in support of retention of Condition 19 the Responsible Authority had proceeded to determine this application upon the basis of the applicants' own statements that there was no intention to include a cafe or restaurant. He claimed the Responsible Authority is, however, entitled to take steps to send a clear message to the applicants, and local residents, about its views on the facilities under discussion, having regard to a number of factors such as planning policy and site restrictions. He also claimed that "while a permit condition which simply provided that no further permit applications could be made be ineffective, Section 174(2)(a) of the Act expressly provides that the Responsible Authority can enter into a Section 173 Agreement which provides for, inter alia, the prohibition, restriction or regulation of the usual development of the land."

57. To support his claim Mr. Barber relied on Rosemeier v City of Great Geelong 20 AATR 86, which was an application for review regarding declarations concerning a special rate or special charges imposed under the Local Government Act 1989.

58. Mr. Barber also submitted the Responsible Authority had sought to prevent the granting of the permit being used as a "stepping stone" for the introduction of other non-residential elements such as a cafe or restaurant. He claimed the Responsible Authority was sending a message to the applicants and their subsequent purchases that this permit is not a vehicle for an extended use. He claimed the community and any potential purchaser ought to know "up front" what the position is, and the Responsible Authority wished to make that plain with this form of statutory restrictive covenant.

59. Mr. Barber argued that the applicants did not have to sign the Section 173 Agreement unless they are proceeding with this particular development. He claimed if the applicants did not wish to proceed under this permit they are at liberty to apply for a combined apartment restaurant use that will give proper consideration on its merits. He stated that one of the things that gives town planning a bad name is for applicants to put a permit such as this "in their pocket" and then use it as a spring board to apply for units and a restaurant. He intimated that it would appear the applicants are seeking to bolster the value of the land by pretending that a restaurant is a likelihood.

60. Mr. Beazley submitted the objectors were weary of the process which has taken almost 12 months. He submitted that notwithstanding the heritage constraints which have caused the massing of the proposed building to the western portion of the site, they accepted the Council's decision to grant a permit on the conditions strictly laid down. He claimed objectors supported the Responsible Authority's position and argued Condition 1(i) is reasonable and necessary to preserve the streetscape, the heritage buildings on the site and the Heritage Precinct. Mr. Beazley argued that if the units in question remained they would destroy the appearance and pre-eminent position of the heritage buildings on the site and that it was not an outcome sought by the planning policy framework. Mr. Beazley called Mr. Nigel Lewis, Heritage Architect, whose evidence (in an edited form) was:

The consideration of the retention of this condition must be taken in context with the overall adverse impact resulting from this development, both on significance of the heritage place and surrounding areas within the Sorrento Historic Precinct. The Notice of Decision to Grant with this condition represented a major compromise, and this must be taken into account before a decision is made. This is because many aspects of the project fail to conform to the guidelines and policies of the planning scheme.

This has been outlined in my previous submission to council as well as the report of Helen Lardner before a Notice of Decision to Grant was made. The extra conditions imposed by council did not fully address the recommendations of the Lardner report.

Condition 1(i ) would minimise the most adverse aspect of the proposal.

The construction of the new buildings with an extensive footprint of a two storey scale will overwhelm this site and dramatically reduce the significant landmark character of the former Sol Green residence of the subject site.

The juxtaposition of the new buildings on the former Green residence and adjacent limestone cottage will also adversely affect their significance. The location of the units projecting into the front landscape area has forced the location of the swimming and children's playground directly in front of the former Green residence. The new buildings will also adversely affect the significance of the surrounding landscape, especially the curtailment of the open front area of the site.

The projection of the new building toward Point Nepean Road will destroy the integrity of the context of the former Vicarage at 3399 as well as its landscape setting.

It will introduce an entirely new development pattern into an area that is relatively intact.

The design of any buildings in the front setback area is a critical issue within a heritage precinct. The design of these units is completely out of character with the overall scale and appearance of the significant buildings within this precinct, and the buildings on the subject site in particular. Particular concerns are the massing and articulation of forms, fenestration and finishes. The roof forms will create a dominant impact on the site because of the design and extent of continuous roof forms. Windows are of an expedient design that is not in keeping with the traditional character of the area. The weatherboard panels') appear to be a pre finished panel potentially of a different profile and detailing from traditional weatherboards. The overall design quality is low and not in keeping with the aesthetic values of this precinct-

The increased setback required by this condition is essential, in order to ameliorate impact of these design issues."

61. Mr. Beazley submitted that Condition 19 is essential to protect residents amenity and to ensure in the long term that neighbouring residents do not face a future application for a permit to operate a restaurant, cafe or licensed premises. He submitted the Council imposed this condition in accordance with the Planning and Environment Act, the MPPS, and in response to the developer's clear application not to seek a permit for the use as a licensed restaurant/cafe or licensed premises for non-guests and in recognition of the need to provide a certain outcome for the developer and the neighbouring residents in this issue. He submitted these were rights for any future owner to seek to terminate or amend the Agreement under Sections 177, 178 and 184 of the Planning and Environment Act.

62. Mr. Beazley was supported by a number of other objectors who held similar concerns about impact of the development and use, and the likely impact on the amenity of their residential neighbourhood if Condition 19 was deleted.

* Is incapable of logical application by reference to the plans submitted with the application.

* On Council's own case must wrongly refer to plans provided as "additional material" without identifying those plans.

* Is not justified in any event having regard to the planning merits of the proposed development and use.

64. Mr. Townshend also argued that the Council Officer misunderstood the context of the "without prejudice" plans, and further misunderstood the approach to be taken to properly draft a permit with conditions to produce the outcome envisaged by the request for the 31 motel unit plans, which had been submitted in response to Council's request. He argued the Council was obliged to consider the advertised plans (ie. the 38 motel unit plans) and not the "additional material" provided pursuant to the Responsible Authority's request. He argued the application plans are the plans showing 38 units.

65. Mr. Townshend submitted there were substantial difficulty with Ms. Lardner's approach when the proposal is assessed with regard to the relevant policy objectives and reference documents in the planning scheme because:

* The relevant Heritage Overlay reflects a large area which includes the township and parklands extending the Port Phillip Bay coastline.

* There is no reference in the objectives of this Heritage Overlay to views of dwellings from Point Nepean Road or Sorrento Park nor to an association between this.

* The Flinders Heritage Study, the only relevant reference document in the planning scheme, does not refer to views from the Point Nepean Road, nor the relationship of the buildings on the site with the vicarage building.

66. Mr. Townshend submitted that Ms. Lardner's approach is a new one, not reflected in planning policy, achieved after discussions with, and a written report from, Mr. Lewis, which included his "Significant Setback Zone" plan.

67. Mr. Townshend submitted that both witnesses (Lardner and Lewis) placed too much weight on an esoteric issue, namely the impression one gains from the views at Point Nepean Road. On the other hand, Ms. Lardner conceded in cross examination, that there were considerable benefits to be achieved in heritage terms from the proposed development which included:

* A condition requiring a conservation management plan which would support the restoration of the heritage buildings

* a lower front fence and a concession that the proposed use was appropriate in heritage terms.

68. Mr. Townshend also submitted that Ms. Lardner and Mr. Lewis had failed to satisfactorily deal with an existing permit for subdivision of the land into four lots. He claimed the subdivision permit is evidence that as recently as 1999, Council was of the opinion that the front portion of the site was capable of development subject to a restriction on buildings within 12 metres of the site frontage.

69. Mr. Townshend also submitted that Clauses 11, 12 and 13 of the Planning Scheme required an integrated decision making process, balancing various policies and objectives in order to achieve net community benefit.

70. Mr. Townshend called David Bick, Architectural Historian and Conservation Architect, as a witness. A summary of his evidence is:

* Sorrento Heritage Overlay (HO1 Area) comprises both locally significant heritage buildings and buildings of no significance that are mostly concealed/fully concealed from each other by the combination of planting, the topography and the distances between them.

* This location is not one where the buildings result in a significant built environment in physical terms, but rather one where the vegetation predominates and the heritage buildings are secondary elements.

* The heritage buildings on the subject site, and the mature exotic planting are significant only at local level, and should and will be conserved under this application.

* The Flinders Heritage Study is wrong in claiming Regional Heritage Significance for the subject site, and is wrong in claiming that the Regional Heritage Significance is due to its long associations with various community groups (actually less than 20 years including the RSL, the YMCA and the private nursing home).

* The former dwelling completed in the 1900's/1910's is only really visible from Point Nepean Road in front of the property.

* The rear 19th century limestone house is also not visible at all in Point Nepean Road.

* The application must be assessed for its impact on both that part of the HO1 Area near the subject site as well as on the dwelling completed in the 1900's/1910's and the rear limestone house which comprise the heritage places of individual significance listed in the Table to Clause 22.04-3 of the Planning Scheme.

* The existing buildings on the subject site proposed to be demolished comprise an early 20th century weatherboard single car garage and a 1950's concrete block institutional additions, neither of which justify preservation on heritage grounds.

* The site of the front part of the proposed building is a secondary part of the front garden that is mostly lawn. The key part of the existing front garden in terms of the setting of the main heritage building, the section between the front facade and the Point Nepean Road, and the Boroondara Road frontage will not be built on and remain open.

* The front of the proposed building comes much closer to the angle of Point Nepean Road frontage than the main (front) heritage building on the site. However being to one side and separated from it by some 7 metres will result in a similar situation to two different buildings on two abutting allotments.

* The north-east corner of the subject site near the intersection of the two streets is the closest and the significant part of the setting of the main heritage building, while the south-eastern half, the site of the proposed development is not an essential part of its setting.

* Essentially none of the abutting or adjacent dwellings are visible when standing in Point Nepean Road in front of the subject site so there is no existing setting or physical relationship between the main heritage building at No. 3405 Point Nepean Road and any other building.

* There is no uniform or even similar front setbacks in any of the buildings that front Point Nepean Road between Hotham Road and St Aubins Way.

* The heritage buildings in Point Nepean Road between Hotham Road and St Aubins Way are also different or very different in design and form to each other so there is also no continuity in the building stock in this part of the HO1 Heritage Overlay Area.

* The basic nature of the proposed development as viewed from the streets would not be dissimilar to subdividing the frontage and constructing a large residence on the new lot.

* While the proposed new building will be a quite substantial change to the existing situation, the end result will not adversely impact on either the HO1 Heritage Overlay Area or the two heritage buildings on the subject site, providing modifications are made to the design as set out later.

71. Mr. Townshend also called evidence from Mr. M. Barlow, Town Planner. His evidence was primarily on planning matters, but paragraph 7.2.1 of his evidence provided some context about the impact on the character and appearance of the area. He stated:

"The site is fairly prominent in the streetscape in terms of its location on Point Nepean Road and proximity to Sorrento Park and the nearby buildings. However this contribution is limited due to the presence of the Elm trees on the site frontage and the extensive landscaping on the north and south boundary. The site's existing contribution is the view of the main two storey dwelling from the south-east through the gateway, the open lawn in front of the main building and the dominant Elm trees on the site's frontage."

72. With regard to Condition 19 Mr. Townshend submitted the requirement for a Section 173 Agreement is unreasonable. He submitted the applicant does not intend to operate a cafe or restaurant. There is no resistance to a sensible condition to the effect. He submitted the matter is sufficiently addressed by a condition imposed on the permit as contemplated in Condition 18 and contrasted this approach to the situation in Rosemeier v City of Geelong 20 AATR 86. He submitted that if Council received an application in the future, the applicant could be assessed on its merits and affected persons could expect to be given notice under the provisions of the Act. He claimed there was no purpose to be served in the present situation by denying the statutory right of a permit holder to make an application for permit. He submitted there is nothing about what is being permitted which could be said to prejudice the right of a Council to refuse any permit application in the future should that application be appropriate.

73. Mr. Barlow's evidence was that he considered the condition to be unreasonable because:

* "The Council appears to have undertaken no analysis of the relative merits of a restaurant, cafe or licensed premises on the site. In any event this would have been impossible as no proposal has been put forward for the site. The proper planning arena to assess whether or not any of the uses are appropriate for the site would be when an application for permit was submitted.

* It is inappropriate to restrict any application that may come forward in the future for any of the uses. Over time circumstances change and these changes cannot be predicted by the Council."

74. The Tribunal considers Condition 1(i) to be unreasonable and unwarranted. It accepts the evidence of Mr. Bick and, where relevant, Mr. Barlow. I consider Mr. Bick has been able to identify more accurately the relevant heritage considerations for this site in the context of the Heritage Overlay Area.

75. I consider that Ms. Lardner and Mr. Lewis have placed too much emphasis on the relationship between various buildings listed in Clause 22.04 and buildings listed on the subject site. When the Tribunal undertook a site view, its observations were consistent with Mr. Bick and Mr. Barlow's evidence. Having regard to this evidence and my own observations, I find there is very little immediate relationship between the "Sol Green house" (and the smaller building) and the other listed heritage buildings in the vicinity of the subject site.

76. I accept Mr. Bick's evidence that there is no uniform or even similar front setback in any of the buildings that front Point Nepean Road between Hotham Road and St Aubins Way. Similarly I do not accept the evidence of Mr. Lewis or Miss Lardner that there is an imaginary setback line created by the placement of the Sol Green house and the Vicarage. A site view of both the vicarage and the subject site is, to a large extent, obscured by substantial trees and vegetation. The Tribunal found it difficult to read both buildings in the one plane. It is acknowledged that a view as depicted in a photo montage is possible, but that is not a common view which would be experienced by a pedestrian or a motorist travelling along Point Nepean Road.

77. I accept Mr. Barlow's evidence about the site's visibility and impact on the character of the area. I consider that the view to the Sol Green house from Point Nepean Road will be improved, in part, when the driveway is relocated, the front fence replaced with a lower fence, and the Canary Island Palms are relocated. This, to some extent, will assist to enhance the primary view of the Sol Green house. Accordingly I am satisfied the purposes of the Heritage Overlay will be met.

78. It is acknowledged there would be some minor, albeit small, loss of view for pedestrians of the Sol Green house roughly at the south-eastern corner of the site in Point Nepean Road, but this is not the primary view of the Sol Green house. Any loss of view would be inconsequential in the context of the Heritage Overlay provisions and is outweighed by the improved view from the front/driveway view.

79. I find there is no localised heritage precinct within the larger Sorrento Heritage Precinct, and therefore the significance of the overlay must be referred to in the broader context of the Sorrento Historic Precinct as depicted on the planning scheme map.

80. I am not satisfied that the footprint of the proposed two storey building would overwhelm the subject site and dramatically reduce the character of the Sol Green residence. I acknowledge the new building will substantially change the current appearance of the Sol Green house, but in the context of the Heritage Overlay Precinct, I am satisfied the new building (including motel units 17, 18 and 31) represents a reasonable response, and will assist in the conservation of the two heritage buildings on the site without compromising their integrity.

81. I am satisfied that the changes to the built form as recommended by Mr. Bick, is a satisfactory design response and will enable the buildings to sit comfortably on the subject site without detracting from the integrity of the adjoining buildings.

82. I consider, as a matter of fact, that the Responsible Authority considered the 31 unit motel plans. There was no dispute to this matter. Whether it should have considered the 38 unit proposal is a matter this Tribunal cannot determine in this application for review. This is an application for review pursuant to Section 80 of the Planning and Environment Act 1987.

83. It is acknowledged that the retention of Condition 1(i) places the applicant in somewhat of a dilemma because this decision allows the footprint of the building to be larger, and theoretically allows the building inferred in the 31 motel unit plans or even 35 motel unit plans.

84. At the commencement of the hearing, Mr. Haskin questioned the Tribunal about what it would be considering if the description of the purpose of the permit was not changed. The Tribunal advised it would be examining the appropriateness, or otherwise, of the footprint (and appearance) of the building (and in particular motel units 17, 18 and 31). As it stands the Tribunal is only in a position to consider the merits, or otherwise, of that condition. I consider the condition to be unreasonable and should be deleted. I acknowledge that this may be seen by some persons as a shallow victory for the applicant, but the Responsible Authority considered the plans for 31 motel units, and directed the issuance of a permit for 28 motel units.

Condition 19 - The Section 173 Agreement

85. The Tribunal agrees with the applicants' position that Condition 19 is unreasonable. It acknowledges that the applicant, from the outset, submitted that it did not intend to use the premises for a restaurant or cafe, or licensed premises. It also notes that the permit would be required for each of the uses under various provisions of the planning scheme. (See paragraph 17).

86. This is not a situation where the planning scheme is silent about use of land for cafe, restaurant or licensed premises. Nor was there any evidence of any misrepresentation or ambiguity on the applicants' behalf.

87. I accept Mr. Barlow's evidence that any application for restaurant, cafe or licensed premises would require the merits of that application to be considered fully, and that matters such as carparking, noise and odours would need to be assessed in relationship to the amenity of the neighbourhood and planning requirements at the time of consideration. I consider it would be inappropriate to fetter a discretion which currently exists in the planning scheme simply on the basis of the submissions placed by the Responsible Authority or objectors perception or fears which have not been verified.

88. I consider the rewording of Condition 18 would provide a sufficient control of the use for restaurant and cafe. I reject the notion that this should be seen as a "stepping stone" for the introduction of other non-residential elements such as a cafe or restaurant. There was no evidence produced that a restaurant was proposed. The planning scheme contains provisions for assessment of the merits, or otherwise, of such proposals without the need for a restrictive covenant to be placed on the site.

89. With respect to Mr. Barber's claim that "one of the things that gives town planning a bad name is for applicants to put a permit such as this `in their pocket' and then use it as a spring board to apply for units and a restaurant" seems to be unfounded in this case. The applicants have unambiguously advised of their intention to have no cafe, restaurant or licensed premises.

90. At the commencement of Day 3 of the review hearing, Mr. Barber sought leave to table an Arborist report because he claimed concerns had been raised about the health of a number of trees on the subject site and on the adjoining (vicarage) site. Mr. Townshend objected to the tabling of the Arborist report. Mr. Beazley supported the Responsible Authority's position. The Tribunal advised the parties it would respond to this issue after it had undertaken a view of the site. At the commencement of the fourth day, I advised the parties I did not consider the tabling of an Arborist report would assist in my decision. I provided oral reasons, which included reference to Mr. Barlow's evidence (including Section 7.2.1). This issue was not pursued any further.

91. In conclusion, I consider Condition 1(i) and Condition 9 are unreasonable and will remove them from the permit. As a consequence of the determination of Mrs Rickards that the preamble/words of permission of the permit be amended to 31 units instead of 28 units and my conclusion that Condition 1(i) should be deleted following my consideration of the proposal based on the 31 unit plans there is no requirement for me to further amend the wording of the preamble/words of permission of the permit. Condition 3(e) is omitted and the remainder of Condition 3 shall be renumbered. Condition 18 is to be reworded by consent.

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