The proceeding is listed for hearing on the date and for the time as detailed below.

If there is any change to these details, the Tribunal will notify you.

10 March 2021

10.00 am - 4.30 pm

The details of the online platform will be provided to the parties before the hearing.

1. The remaining procedural orders dated 21 October 2020 relating to the circulation of material to be relied and the payment of fees must continue to be complied with.
2. Costs are reserved. If any party wishes to make an application for costs arising from this preliminary hearing they must advise the Tribunal and parties by 1 March 2021 to enable more detailed directions to be issued.

Mr Hugh Gerrard, Town Planner, Glossop Town Planning

1. These reasons concern the preliminary issue of whether there are any third party rights to participate in the application for review by virtue of relevant provisions of the Banyule Planning Scheme (planning scheme).
2. This is relevant to whether Ms Grace (who has lodged a Statement of Grounds form seeking to be heard on multiple issues) can lawfully participate as an objector respondent in this review proceeding. Ms Grace raised concerns with equitable development rights, visual impact and the public realm, traffic, parking and waste management, environmentally sustainable design and amenity.
3. Banyule City Council (Council) gave notice of the application to develop the land for a six storey mixed use building. However, it did not indicate in its notification that objection or review rights were confined in any way. This could have been delineated more clearly.
4. In reality, there are a number of planning scheme provisions under which permission would be required for this proposal. It is clear that some do not carry rights of notice and review, but less clear whether others remain open.
5. All parties accepted that although planning permission was required to reduce on site parking under the Parking Overlay, by virtue of the exemption provision in Clause 52.06-4, no rights of review arise. I accept this analysis.
6. Likewise, they accepted that the requirements of Schedule 5 to the Design and Development Overlay were met (including maximum building heights and minimum setbacks) such that no rights arise under this part of Clause 2.0 of the Schedule to Clause 43.02.
7. However, the parties disagreed as to whether review rights arise:
   1. under the Commercial 1 Zone (Clause 34.01-7) because the subject land is within 30 metres of land used as a hospital; or
   2. the proposed use and development is not 'generally in accordance with' the Structure Plan for the Heidelberg Precinct 2007 (Structure Plan), referencing the carve out from the exemption in Clause 2.0 of Schedule 5 to the Design and Development Overlay.

1. The land use Hospital is defined in Clause 73.03 of the planning scheme as:

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

1. An essential component of this definition is the provision of health services to people admitted as in-patients.
2. Mr Livingston on behalf of Ms Grace submitted that the facility at 77 Hawdon Street, Heidelberg should be regarded as a Hospital such that the application was not exempt from public notice and review rights. This position was principally based on the reference to in-patients in the services outlined on its website.
3. However, Council confirmed that the land operates subject to a planning permit. It explained that the land is used for the North East Area Mental Health Service. There are a number of supporting and approved documents that it provided to the Tribunal that indicated to it that the land is used more in the nature of an Office for administration associated with a healthcare facility, albeit that the permit authorises the use of the land for Medical centre. These include:
   • the description of the use in the application material submitted to Council (including the amendment application);
   • the endorsed plans under the original permit and amended endorsed plans which do not appear to show facilities catering for in-patients; and
   • the condition of the planning permit limiting client visiting hours between 9am and 5pm.
4. This information was supplemented by material from the facility's website referred to by Mr Gerrard. He also explained that he had spoken with a member of staff at the facility who confirmed that they do not offer services on site to in-patients.
5. I accept the submissions of Council and the permit applicant on a high balance of probabilities that the nearby facility is not used as a Hospital. There is no evidence of its use as such before me and the information on its website is inconclusive. Notably, it appears clear that the current layout of the premises does not support this purpose (especially as a primary use) and that such use would be in breach of its permit if it were to operate in this manner.
6. Although the website refers to opportunities for in-patients, from experience it is far more likely that this is referring to other facilities in conjunction with the Austin Hospital since the facility operates under its auspices. The health service also appears to offer a mobile outreach service.
7. Therefore, I do not consider that this aspect of the control gives rise to review rights for the Austin Hospital let alone for Ms Grace.

Is the proposal generally in accordance with the Structure Plan?

1. This is a more nuanced issue, and is one of fact and degree.[2] The underlying logic behind the exemption in this instance is that structure planning is a detailed process involving extensive public participation, leading to accepted parameters for the future of these activity centres.
2. Therefore, unless the proposal does not align with the principles set out in the Structure Plan, it is reasonable for third parties to be excluded from review processes for individual permit applications. In this respect, it is relevant that notice and review rights are only triggered if the responsible authority forms the view that the proposal is not generally in accordance with the Structure Plan, rather than having to form a positive view at that stage that it is generally in accordance with it. This is the analysis I am required to undertake.
3. When analysing this proposal against the Structure Plan it is also relevant to consider that key aspects of the Structure Plan such as those pertaining to built form have been enshrined in the provisions of the Design and Development Overlay and in policy provisions of the planning scheme such as Clause 21.08-2.
4. The Heidelberg Structure Plan is a document intended to guide change within relevant activity centres. It comprises a series of Framework Plans and detailed written document which:

...supports growth to enhance liveability and sustainability in the Heidelberg Precinct and stimulate local economic and social activity. It also reconciles potential conflicts between land uses, allowing different components to complement one another. More specifically, it provides strategic direction and detailed recommendations to improve the identity of the precinct and its public realm, as well as better integrate public transport and pedestrian movement. The plan also describes a built-form that will accommodate future growth and strengthen the local economy.[3]

1. Council officers supported the grant of a permit but Council as the decision maker refused to grant a permit for reasons including (in summary) insufficient articulation to the street frontage, unacceptable design and building proportions and poor development equity. Mr Atkinson explained that this may indicate that the proposal was not generally in accordance with the Structure Plan.
2. Mr Livingston submitted that the proposal was not generally in accordance with the Structure Plan given deficiencies in the way it which addresses the public realm, provides a predominantly commercial ground floor frontage and does not provide for equitable or sustainable development rights.
3. Mr Gerrard responded for the permit applicant that the fact Council refused to grant a permit is not necessarily an indication of a lack of compliance with the Structure Plan. Unlike the mandatory requirements of many Development Plan Overlays, it is only a threshold issue for the giving of notice in this instance. He also noted that the Structure Plan is a reference document in the planning scheme but that the policy provision that implements it (Clause 21.08-2) was not cited as a reason for Council's refusal.

1. Having considered the application plans which were the subject of notice by Council by reference to the Structure Plan as a whole, I find that it is not evident that proposal is 'not be generally in accordance with' this plan for the reasons below. On this basis, the relevant exemption applies and review rights for third parties do not arise.
2. In so far as the Structure Plan deals with broader themes such as Access and Connections, I find that the proposal would be generally in accordance with these broader activity-centre focused aspirations. For example, it would provide an intensified use of the land for mixed use purposes and reduced on site parking demand consistent with stated policy directions.
3. The Public Realm theme focuses on the creation of civic spaces and enhancement of public spaces in particular. While individual development proposals have the potential to contribute to or detract from these centre-based aspirations, I do not consider that there is any particular guidance for this part of the activity centre that the proposal would not achieve in principle. To this extent, it cannot be said to depart from general accordance with this aspect of the Structure Plan.
4. Beyond this, the question of whether the particular design response is an adequate response to its physical context is a matter that goes to site responsiveness and can be addressed in the hearing in response to this ground of refusal.
5. Strategic objectives relevant to Built Form include:
   1. Ensure that new residential development is of an appropriate scale and is sensitive to the interface with the Yarra Valley open space environment and floodplain
   2. Encourage high quality commercial buildings of appropriate height and scale
   3. Ensure Burgundy Street retains its primary retail form
   4. Ensure that new development makes a positive contribution to the existing streetscapes and urban form
   5. Respond to and respect the character of urban form in residential areas adjoining the precinct
   6. Allow for built form that signifies the importance of the medical services precinct, whilst not detracting from the high quality low scale residential development in the precinct
   7. Encourage a more diverse housing stock to enable and facilitate people to reside in or adjacent to the centre such as in upper floors above retail or commercial spaces in well designed mixed use buildings
   8. Develop dwellings compatible with the prevailing residential built form
   9. Use environmentally sensitive and sustainable design and building technologies.
6. The Structure Plan further confirms that:

this involves a strong commitment to achieving sustainable building outcomes that exceed current minimum standards.[4]

1. It appears that the application meets the requirements in Plan E to Built Form since the maximum building heights and minimum setbacks provided in that plan have been reflected in Schedule 5 to the Design and Development Overlay and no other specific guidance is provided for this land.
2. Beyond this, on a broad analysis, the proposal would align sufficiently with strategic objectives 1 to 9, especially when considered in the context of the accompanying plans in the document. In my opinion, the Structure Plan does not descend to the level of detail where it seeks to achieve particular design outcomes for this site, such that it could be said the proposal is not generally in accordance with its directions.
3. This is a matter to be evaluated when determining if it is appropriate to grant a planning permit but is not properly a threshold for the giving of notice.
4. As to Land Use and Economic Development, the proposal would comply with strategic objectives to provide mixed use development and medium density housing with a diverse range of dwelling sizes in appropriate locations. This is consistent with Plan F which identifies the land for both retail and commercial use as well as mixed use residential.
5. Whether the land use mix at ground floor achieves an acceptable response to the site's particular context is a more 'macro' issue that does not detract from general compliance with the Structure Plan to this extent.
6. The theme of Identity is also very high level within the document, seeking to develop activity centres that encourage a mix of people to live in, work in and visit Heidelberg. The proposal would not fall foul of this aspiration, neither would it be obviously inconsistent with the broad intent to improve the image and identity of the shopping precinct in Plan G.
7. To this extent, the directions in the Structure Plan are in my view more peripheral to this proposal since its strategic objectives are principally directed elsewhere in the activity centre.
8. I agree with the applicant's submission that the Structure Plan does not appear to be prescriptive as to equitable development rights for adjoining land. When it addresses sustainability, it does so in the more traditional context of environmental sustainability. In any event, I do not consider that the proposal would fundamentally jeopardise the ability of adjacent land to meet the policy aspirations in the Structure Plan.
9. These findings are consistent with (or not greater than) the extent of detail that one may expect a responsible authority to go to when deciding whether to grant notice of a permit application.
10. Beyond this, the issue of equitable development is a matter raised by Council as an orderly planning issue that can be explored at the substantive hearing irrespective of third party rights.

1. For these reasons, I conclude that there are no third party rights to participate in this application for review.
2. The appropriate course of action is to remove Ms Grace as a party and to reduce the hearing day to one day as sought by the applicant and Council.
3. For completeness, I note that the applicant has circulated amended plans it seeks to have substituted at the start of the hearing. The Tribunal will consider the appropriateness of an order to this effect as a preliminary matter at the hearing.
4. If the Tribunal receives any Statements of Grounds from third parties seeking to participate in the proceeding as a result of the amended plans, these individuals will be notified that they were mistakenly directed to be served with this material since no third party rights of participation accrue.

[1] The submissions and any supporting exhibits given at the hearing, and the statements of grounds filed have all been considered in the determination of the preliminary issue. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Parties accepted common case principles on this point such as Canet v Brimbank CC [2003] VCAT 13 such there is no need to reiterate them here.